ROBERT COSTA: President Trump steps up his search for a new Supreme Court justice. I’m Robert Costa. We discuss the highly charged fight over the future of the high court, tonight on Washington Week.
PRESIDENT DONALD TRUMP: (From video.) And I’m very honored that he chose to do it during my term in office because he felt confident in me to make the right choice and carry on his great legacy. That’s why he did it. (Cheers, applause.)
MR. COSTA: Supreme Court shakeup. The retirement of Justice Anthony Kennedy has sparked a political battle over the confirmation of his successor. Democrats argue Republicans should wait until after the November elections and follow the precedent they set in 2016. That’s when Senate Majority Leader Mitch McConnell refused to give President Obama’s Supreme Court pick a vote.
SENATE MINORITY LEADER CHARLES SCHUMER (D-NY): (From video.) Our Republican colleagues in the Senate should follow the rule they set in 2016. Anything but that would be the absolute height of hypocrisy.
SENATE MAJORITY LEADER MITCH MCCONNELL (R-KY): (From video.) This is not 2016. We’re right in the middle of this president’s very first term.
MR. COSTA: President Trump isn’t waiting. He has identified potential nominees who could cement conservative control of the Supreme Court for decades.
PRESIDENT TRUMP: (From video.) We have a very excellent list of great, talented, highly educated, highly intelligent, hopefully tremendous people.
MR. COSTA: We examine the impact a new justice could have on policy, midterm politics, and the president’s legacy with Seung Min Kim of The Washington Post, Joan Biskupic of CNN, Pete Williams of NBC News, and Carl Hulse of The New York Times.
ANNOUNCER: This is Washington Week. Once again, from Washington, moderator Robert Costa.
MR. COSTA: Good evening. President Trump may look back on this final week of June as one of the most significant of his term: The Supreme Court upheld his travel ban; and Justice Anthony Kennedy, a pivotal swing vote on the bench, announced his retirement. Kennedy’s exit will give the president a chance to nominate another justice to a lifetime appointment. On Friday the president said he would make a decision by Monday, July 9th, and that would certainly escalate the already fierce battle between Democrats and Republicans.
Nominated by a Republican president, Ronald Reagan, in 1988, Supreme Court Justice Anthony Kennedy has long been referred to as the swing vote on the bench, a label he never liked.
SUPREME COURT JUSTICE ANTHONY KENNEDY: (From video.) The cases swing; I don’t. (Applause.)
MR. COSTA: But his voting record supports his sometime-centrist and sometime-maverick reputation. On issues of gun rights, campaign finance, and voting rights, Kennedy voted with conservatives. But during his 30 years on the bench, he often sided with liberal justices on cases involving abortion rights and other social issues, including the 2015 landmark opinion which legalized same-sex marriage.
JUSTICE KENNEDY: (From video.) They ask for equal dignity in the eyes of the law, and the Constitution grants them that right. (Applause.)
MR. COSTA: Last year the 81-year-old justice swore in the newest and youngest justice to the high court, his former clerk Neil Gorsuch.
JUSTICE KENNEDY: (From video.) Congratulations. (Applause.)
MR. COSTA: Kennedy’s retirement clears the way for President Trump to name his second Supreme Court justice in as many years. The president is expected to nominate a young conservative who could significantly tilt the Court to the right for generations.
HOUSE MINORITY LEADER NANCY PELOSI (D-CA): (From video.) Republicans now have the opportunity to erase a generation of progress for women’s rights, LGBTQ rights, civil rights, workers’ rights, and healthcare.
SEN. MCCONNELL: (From video.) We will vote to confirm Justice Kennedy’s successor this fall.
MR. COSTA: We’ll get to that scene on Capitol Hill in a moment. And what a great group we have here tonight. Joan, you were there at the Court. You saw his wife, Mary – Justice Kennedy’s wife, Mary. And you must have thought maybe this was in the works for a long time, that this was not a surprise.
JOAN BISKUPIC: I knew he had been thinking about retirement. I knew he had been thinking about it for more than a year. As you said, he’s 81. He’s about to turn 82 in July. But he’s got such a powerful position. And he liked it. He took it very seriously, his role, even though he would be modest about is he the swing vote or not. He really liked deciding cases and obviously controlling the legal reasoning that we’re all living under. So he comes out with the rest of the eight justices that Wednesday morning. They announce this important labor law case, that many of your viewers will be familiar with. The justices look fairly relaxed. Mary Kennedy is there. A few of his other relatives are there.
But Mrs. Kennedy has come often at the very end. And the body language from the bench seemed sort of at ease enough that I thought, huh, maybe not. And then, of course, he doesn’t do anything. And it turns out that he then goes into a private conference with his fellow colleagues – gotten this from other justices – and that’s when he tells them. And then, of course, we know from the White House information, that that’s – then he afterwards goes and delivers his own letter personally to the president. Not all retiring justices do that. They send a letter usually. But he goes over there. And then at 2:00 p.m. Eastern time, we will always remember – (laughter) – that’s when the word comes down.
And I have to say, even though I had written many times about him thinking about retiring, I still have to say I was surprised. He did it. He did it.
MR. COSTA: Were you surprised? Why now for Justice Kennedy, Pete?
PETE WILLIAMS: I think he was ready. I think a couple of things. I think the sort of health always becomes an issue at these ages, not just of him but of other members of his family, his wife especially. You know, everybody says I want to spend more time with his family. He really wanted to spend more time with his grandchildren. And the other thing is, you know, we talk about how decisive he is and sides with the liberals. We forget, he’s a conservative. He is comfortable with this president. Appointed by Ronald Reagan. This term especially he was conservative pretty much right down the line.
And so he thought this would be a good a time to go. I don’t think any Supreme Court justice really sits down – I don’t think their main calculus is ever who’s going to choose my successor. But I think it was probably one of the things he thought about. And I think he was comfortable with this president.
MR. COSTA: And that’s such a good point, Pete, because the White House seems to have had a quiet campaign, Carl, to reassure Justice Kennedy over the course of the past year, by picking Justice Gorsuch and other signals, that this would be maybe this right time.
CARL HULSE: A Kennedy clerk, right? The – and other people who were clerking for Kennedy named to the court. I think there was a very subtle campaign going on. And, you know, to say, hey, things will be OK if you get out. And you have to remember – I mean, I agree with your point at the beginning. This – the judicial approach is what’s been working for the Trump administration. This is something that’s really worked for them. Gorsuch has been a big hit with the conservatives. They’ve got all these other appellate court judges –
MS. BISKUPIC: All these lower court judges setting records.
MR. HULSE: And they have, you know, the district court. And that list – the famous list – was key to his election, because evangelicals stuck with him. So I think Trump looks at this week and says: This is another chance to make a really big mark, you know, and to cement the conservative control on the Court. And, of course, as Seung Min knows, this really stirs up the Senate every time. (Laughter.) There’s nothing like a Supreme Court fight. So we’ve got a ways to go here.
MR. COSTA: And, boy, Seung Min, that’s so right. Does it stir up the midterm elections or what, for both parties?
SEUNG MIN KIM: Exactly. I mean, this is going to be a monumental fight. I mean, we’ve seen Supreme – there is nothing like a Supreme Court fight in Washington, but one that really does have the chance to tip the balance of the Court for a generation is just something monumental, especially in the middle of an already heated year. I mean, if you’re looking at the Democratic messaging that’s coming out on the Supreme Court nomination already, it’s very heavily focused on health care. That’s for a reason. They see this as the year of the woman. They see that health care is the most motivating factor for their voters, particularly with their successful efforts to protect the Affordable Care Act.
So you see that’s why – that’s why you see the messaging from – you know, led by Chuck Schumer, and almost the rest of the Senate Democrats, saying, you know, your – you know, a woman’s right to choose is at stake. The future of the Affordable Care Act is also at stake. And that is to not only motivate their voters and try to keep the rest of the Democratic caucus together, but also to really put that pressure on the two Republican senators who are pro-abortion rights.
MR. WILLIAMS: So a little footnote here, Justice Kennedy said in his retirement letter that he was going to leave the Court at the end of July. Now, what they usually say is I’ll retire when my successor is nominated and confirmed. So if it seems like the Senate is going to try to play this drama out all the way up till the election, what it says is the Senate doesn’t care about the Supreme Court. It cares about the Senate, because they’re apparently not concerned – (laughs) – that by the first Monday in October, when the new term starts, we’re probably only going to have eight justices.
MS. BISKUPIC: And we just went through that for some 400 days after Antonin Scalia’s death. You know, one thing I was going to say about the Senate is that even though this is cast, rightly so, as a monumental battle, this is the first nomination that’s going to be brought to the Senate that doesn’t have the same filibuster power. You know, the filibuster rules were changed for Neil Gorsuch. So now all it takes is a simple majority to approve a Supreme Court nominee. So this could end up potentially being quick and dirty. I mean, they might not have a hard time getting him on the bench by the first Monday in October, which is when the new terms starts.
MR. COSTA: And if anybody’s ready, Carl, it’s Senate Majority Leader Mitch McConnell. (Laughter.) He said – during that whole fight over the filibuster he said, quote, “I thought the decision I made not to fill the Supreme Court vacancy when Justice Scalia died was the most consequential decision I’ve made in my entire public career. The things that will last the longest time, those are my top priorities.” And certainly, this has to be the priority now.
MR. HULSE: Well, I wanted to address Pete. The Senate does care about the Senate. (Laughter.) That’s what they’re really caring –
MR. WILLIAMS: I suspected so. (Laughter.)
MR. HULSE: And I think the Democrats to that would say, you know, well, they had the lack of a justice for whatever that was –
MS. BISKUPIC: Four hundred and forty-two days or something, yes.
MR. HULSE: But, yeah, during that period. But Mitch McConnell doesn’t want to wait, and he is going to push ahead and fill this, and he’s really got the gears oiled up over there from what they’ve been doing. The funny thing now that I think has gone on with Senator McConnell this week, he’s actually gotten quite personally upset with the accusations of hypocrisy against him for holding up Garland because he’s saying, well, wait a minute, this is a midterm election. That was a presidential election. It’s very different. Well, we get the distinction, but a lot of other people don’t. And I thought that was funny, that he was feeling the heat.
But I think when you look at this July 9th date, the White House knows where they’re going here. They’ve worked off this list. These people have all been vetted. Leonard Leo of the Federalist Society is now helping them. So I think they have a pretty good idea of who they want to go forward with.
MR. COSTA: So if the Senate majority is so narrow for Republicans, and they really don’t have a lot of room to lose votes, the president said on Friday he has his list down to five, six, or seven people, two women included in that list. Who are we looking at right now?
MS. BISKUPIC: Well, I can tell you a some of them because they’re – a couple were already put on the bench by him. I’ll just name people who we believe would be the frontrunners.
MR. COSTA: Who’s on your radar? Two or three names?
MS. BISKUPIC: OK. I’ll start with Amy Coney Barrett. That is a woman who had been a law professor at Notre Dame who President Trump put on the 7th Circuit, which is based in Chicago. She has a very strong following among religious conservatives. She had a little bit of a controversial hearing in the Senate, in part because Senator Dianne Feinstein challenged her in a way that, frankly, Trump probably liked. The president probably liked how she and her people, you know, fought back. So that’s one person.
A man by the name of Brett Kavanaugh, who’s been around for a long time, even helped vet John Roberts when he was chosen by George W. Bush. He’s on the D.C. Circuit Court of Appeals. He’s a former Kennedy clerk also. Another former Kennedy clerk who we believe is on the list, a man by the name of Ray Kethledge, who’s based in Michigan on the 6th Circuit Court of Appeals. A McConnell favorite, a favorite of Mitch McConnell from Kentucky, Judge Amul Thapar, who would be the first south Indian Asian-American nominee. And he was also put on the court.
MR. COSTA: Anyone you’d add?
MR. WILLIAMS: Yeah, just – I’m sure Joan would have added it too – Thomas Hardiman of Pennsylvania. He was actually a finalist. It came down between him and Neil Gorsuch the last time.
One thing to note, these are all appeals court judges. And there’s a reason for that, because the Republican mantra is no more Souters – no more David Souters. They want someone who has a thorough record that they can look at and make sure that these people are going to be rock-solid conservatives, that there are no little hidden surprises in there. And appeals court judges write a lot of opinions.
MR. HULSE: And also, that they’ve been through the grinder already and, you know, there’s – especially at the appeals court level – they’ve gotten a pretty good look. So they are hoping – they’ll do another vetting and a background check, but they’re hoping that these people have already – you know, there’s no secrets there that are going to pop up, because really all the Democrats have going for them, because of the lack of the filibuster, is the nominee. They need to create doubts about the nominee.
MS. BISKUPIC: Right. And I will say some have already met with the president from the first round, but some have not. So, you know, it’ll be interesting to see who emerges from the contest of sorts that President Trump puts on.
MR. WILLIAMS: Because that’s important to him. We get the impression that that’s –
MS. BISKUPIC: It is. It is, yeah.
MR. COSTA: Personal rapport does matter, of course.
MS. BISKUPIC: Yes, yes.
MR. COSTA: Your point, Carl, about the confirmation process, they used to be rowdy events. Now it’s all about careful presentations on Capitol Hill.
MR. HULSE: How little you can say, right.
MS. BISKUPIC: Yes.
MR. COSTA: And so some things can be unpredictable, and, Seung Min, you reported this week that two of the most powerful senators in this whole process are Lisa Murkowski of Alaska and Susan Collins of Maine. You wrote, quote, “Murkowski and Collins are the rare elected Republicans in Washington who support abortion rights and voted against repealing the Obama-era Affordable Care Act, issues Democrats are using to frame this battle over the Supreme Court.” When you look at this razor-thin GOP majority, where are Senators Collins and Murkowski going to go?
MS. KIM: That is an excellent question. We probably won’t find out until the confirmation –
MR. COSTA: What are the smoke signals they’re sending? (Laughter.)
MS. KIM: So I spoke with both of them this week on Capitol Hill and asked them about the issue of Roe. So, for Susan Collins, she has had the pretty consistent answer – because she was also asked this during the confirmation process for Neil Gorsuch – and she says she won’t ever ask a judge how he or she would rule on a specific case – that’s inappropriate – but she does really grill each judicial nominee about precedent and how they feel about precedent, and she makes it very clear to them that she personally believes that Roe versus Wade is settled law. I also had a long conversation with Lisa Murkowski. I had to chase her down after a hearing, but we actually had a 10-minute conversation in the stairwell of a Senate office building. That’s kind of how Capitol Hill works. And she told me that Roe versus Wade is clearly a significant factor, but in no way is that the only factor for her. She’s very well aware of the pressures that she’s facing already. She is – mentioned that she is under the pressure cooker a lot considering her independent streak and her willingness to buck the party, buck the party leadership. But it is – for now it’s anybody’s guess where they’ll end.
MR. COSTA: And they’re not the only ones under pressure. I just keep thinking, Carl, of the red-state Senate Democrats. If you’re Senator Heidi Heitkamp of North Dakota, Senator Joe Donnelly of Indiana, Joe Manchin of West Virginia, this is a tough call right before an election.
MR. HULSE: I think it’s – they’re the – they’re in the most interesting position because you’re – right before the election, they don’t really want to be getting crossways with Trump voters. So, you know, how do they approach this? But at the same time, they need Democrats in their state, Heidi Heitkamp and Donnelly particularly. You know, you need your network of Democrats. You can’t alienate them either. I’m actually – this is one of those times you go, boy, I’m glad I’m not a senator – (laughter) – because this is going to be a really tough decision.
I think the interesting thing is that what if – say someone breaks away, one of the Republicans. So then what do those Democrats do? Do they want to be the vote that puts a President Trump nominee on the Supreme Court? I just think that, you know, it’s fascinating the way that they’re going to have to operate in this environment.
MR. COSTA: I want to come back to a point Joan made, that we often don’t pay, I think, enough attention to how this administration has overhauled the U.S. courts. And you look at – it’s not just the Supreme Court; it’s all these other appointees. And you have Don McGahn in the White House working closely with the Federalist Society and the Heritage Foundation, two conservative groups, and they’ve really changed the face of U.S. law, in a sense.
MS. BISKUPIC: They have. They’ve set records for the number of appointments they’ve made to the U.S. Courts of Appeals, which is the intermediate level between your trial judges and the Supreme Court, and that’s where much of the action is because the Supreme Court takes so few cases. And those people not only are changing the law of the land, they’re also on deck. You know, he is putting them on to have them ready for this kind of moment and to, frankly, really change what’s happening out there for the law.
MR. COSTA: What about Chief Justice Roberts? Joan, I know you’re working on a book about him right now. But, Pete, does this make him now the key vote on the Supreme Court?
MR. WILLIAMS: Yes, but nothing like what – of course it does, because I think – for a couple of reasons. One is he’s the least ideologically rigid of the other conservatives. No matter who the choice of President Trump is, I think I can still confidently say that. And, number two, he does think about the Court as an institution. So, for example, when you talk about the Roe versus Wade precedent, first of all, only Clarence Thomas is on record opposing Roe. We don’t really know how the other conservatives would vote; we assume. But I think Chief Justice Roberts would really think twice and maybe four times about whether he wants to overturn a 45-year-old precedent. And the same may be true on gay rights, for example. You know, I think this is, by the way, the thing that many people have wondered about Justice Kennedy’s decision to step down. Many people say, doesn’t he know that, well, whoever comes next will immediately try to begin to saw the legs out from under all the things that he did? He wrote the same-sex marriage decision in 2015. I suspect that Justice Kennedy thinks that once something is in place it’s going to stay and there’s no going back, but I think there Justice – Chief Justice Roberts again would think twice knowing that 70 percent of the country supports it. So, yes, I think he will be in a different position, but nothing like Justice Kennedy was, nothing like Sandra Day O’Connor was before she retired in 2006.
MR. HULSE: But they did overturn a precedent this week, correct, with the Janus decision, so.
MS. BISKUPIC: Right, yeah, a decision that –
MR. WILLIAMS: Well –
MS. BISKUPIC: No, no, a decision called Abood versus Detroit. How many of your viewers would know of that when they would know of Roe v. Wade?
MR. WILLIAMS: I thought you meant Korematsu. (Laughter.)
MS. BISKUPIC: No, which is true. But the point is that if John Roberts – he will be in the middle, but whatever he does with the liberals it will still have much more gravitational weight toward the right side than Justice Kennedy.
And one last thing on Roe. I can see them chipping away on access issues, imposing new regulations that would then make it very – it much harder for a woman to exercise her right to abortion.
MR. COSTA: So, knowing all of this and thinking about this week, Carl and Seung Min, the Democrats saw in the primaries across the country this energized left. We had Alexandria Ocasio-Cortez win an upset primary in New York against Representative Joe Crowley. If you’re Senator Bill Nelson of Florida, a Democrat, you’re under pressure from that left base to maybe not move toward the center and vote here.
MR. HULSE: I think Chuck Schumer is in an interesting position because he has to manage this as the Democratic leader, and they have to look at this and show their base that they’re doing all they can. At the same time, they’re pretty limited in what they can do, and –
MR. COSTA: What can they do, not show up?
MR. HULSE: Well, that is – would be very extreme, but then what would that do to the moderate Democrats out in these other states – well, you’re not even doing your job? I think there’s a(n) argument you can make for the Democrats to say, listen, we know how this is going to end. We need to put up a fight, work over the nominee, see what we can do, but maybe get it done before the election and then go to our base and say look what’s happening here, you need to – you need to elect Democrats so we can stop more of this.
MS. KIM: Exactly. And I think the key for Chuck Schumer and Democrats here, if they do want to defeat this nominee, is that they have to first keep their own members unified because that’s how they were able to defeat the repeal of the Affordable Care Act. Everyone from Joe Manchin to Bernie Sanders was against the Republican efforts to do that. So if everyone from Joe Manchin to Bernie Sanders again is – looks at the nominee and says this person is unacceptable, then that’s when the pressure really heats up on the Susan Collins and the Lisa Murkowskis of the world.
MR. COSTA: You’ve covered House Democrats. Is Leader Pelosi nervous that some money now is going to be redirected to Senate races, not toward House races?
MS. KIM: So I think that there has been some concern from both sides that the focus might be generated towards the Senate because Democrats are seen to have a pretty decent shot at flipping the House. But I think that Pelosi has a lot of things to think about this week considering, you know, is her leadership at stake because of this energy that we’re seeing from a new – from a new generation of Democrats.
MR. COSTA: The Court tumultuous, Congress tumultuous, the White House as always a big story. That’s it for this week. We’re going to have to leave it there, but so glad to have all of you with us for the discussion.
And before we go, our team here would like to extend our heartfelt sympathy to the families, friends, and colleagues of the five Capital Gazette journalists who were senselessly killed on Thursday in Maryland. And even with their hearts broken, the dedicated staff put out the newspaper today – remarkable courage and resilience, done to remember Gerald Fischman,
Rob Hiaasen, John McNamara, Rebecca Smith, and Wendi Winters.
Thank you, and good night.
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