Full Episode: The Senate prepares for a confirmation fight as the nation remembers Justice Ginsburg

ROBERT COSTA: High stakes on the high court and for American democracy.

PRESIDENT DONALD TRUMP: (From video.) I will be putting forth a nominee next week. It will be a woman.

SENATE MAJORITY LEADER MITCH MCCONNELL (R-KY): (From video.) We have an obligation under the Constitution to fill the vacancy.

MR. COSTA: Republicans rush to fill a vacancy as the nation remembers Justice Ruth Bader Ginsburg. And American institutions are tested as the president sparks alarm about the peaceful transfer of power.

FORMER VICE PRESIDENT JOSEPH BIDEN: (From video.) What country are we in? He says the most irrational things.

SENATOR BERNIE SANDERS (I-VT): (From video.) This is an election between Donald Trump and democracy, and democracy must win.

MR. COSTA: Next.

ANNOUNCER: This is Washington Week. Once again, from Washington, moderator Robert Costa.

MR. COSTA: Good evening and welcome. Washington took a pause on Friday to remember Justice Ruth Bader Ginsburg, a trailblazer and an advocate for women’s rights who became a liberal icon. As Chief Justice John Roberts said during a ceremony this week in the Court’s great hall, quote, “It has been said that Ruth wanted to be an opera virtuoso but became a rock star instead.” And on Friday, she became the first woman and the first Jewish American to lie in state at the Capitol.

But that pause here in Washington will be brief. On Saturday, President Trump will announce his choice to fill the vacant seat on the Court. According to The Washington Post, The New York Times, and other news outlets tonight, President Trump has settled on Judge Amy Coney Barrett of Indiana. Barrett is a favorite of conservatives, and her nomination hearings next month would likely become a brutal political battleground roiling the presidential campaign and all those debates over abortion rights and health care. Senate Republicans are determined to move quickly and hold a final vote on the nomination before the election.

What does this mean for the GOP and for Vice President Biden, and what about American democracy? With the Senate and the Court now front and center, we’ve gathered three of the best journalists on those beats: Carl Hulse, chief Washington correspondent for The New York Times and author of Confirmation Bias: Inside Washington’s War Over the Supreme Court From Scalia’s Death to Justice Kavanaugh; Seung Min Kim, White House reporter for The Washington Post; and Nina Totenberg, legal affairs correspondent for National Public Radio.

Nina, I’d like to begin with you. Welcome back to Washington Week. A 6-3 conservative majority is now on the horizon for the nation, for the Court. What’s the significance of that?

NINA TOTENBERG: Well, to begin with, this would be a collection, if Judge Barrett is confirmed, of the most conservative judges to sit on the Court probably back to the 1930s, and a six to three majority means that if any one of them flakes off on a particular issue it doesn’t matter, they’ve still got five votes. So it’s a very – I hesitate to say bulletproof, but a very safe majority for a particular ideological stripe of people.

MR. COSTA: Seung Min, you’re on the byline tonight at The Washington Post. What’s the rationale inside the White House for Judge Coney Barrett?

SEUNG MIN KIM: Well, she’s clearly been the frontrunner ever since this vacancy – the seat became open last Friday night with Justice Ginsburg’s death. She had a series of interviews at the White House earlier this week. Those interviews, according to your sources and mine, went very well. She was very heavily lobbied for in the White House by key White House officials, including White House Chief of Staff Mark Meadows and counsel Pat Cipollone, and she was heavily promoted by Senate Republicans. Senate Majority Leader Mitch McConnell, who will be steering so much of this process on Capitol Hill, was confident with Judge Barrett. She is a known commodity. Not only has she been confirmed, she had become kind of this rising rock star among conservatives because – after her brutal conformation fight for her current circuit court seat, and a lot of Senate Republicans had been privately pushing Judge Barrett for some time. They have seen her as the perfect candidate for the Ruth Bader Ginsburg vacancy, someone who really does excite their base, conservative voters, and they seem to think – they know it’s going to be a bruising fight, but this is one nominee that they’re happy to put it all on the line for.

MR. COSTA: Carl, will Leader McConnell be able to get this done by Election Day?

CARL HULSE: Yeah, I mean, that is their – that’s the big question surrounding all of this. The timeline is pretty tight, and as we’ve seen in recent Supreme Court confirmations things bubble up that could push it past the election. But right now they think they can get it done. It’s going to be very quick. It’s going to feel very quick to people. But in some ways, Bob, to me this is the culmination of what’s been going on in Washington for the last four years. The Republicans in the Senate, led by Leader McConnell, along with the Trump administration, have been reshaping the courts. This is the ultimate reshaping of the courts. This is the big prize, and I don’t think that they’re going to let Democrats stand in the way of getting that.

MR. COSTA: Nina, Carl just said that things could bubble up. You’ve covered Supreme Court nomination fights for decades. We saw in the 1980s with Judge Bork these processes can become quite acrimonious. Should we expect the unexpected here?

MS. TOTENBERG: You should always expect the possibility of the unexpected. And there was a very interesting statement issued from the FBI director today saying that we should please remember that the terms of the investigation by the FBI are set by the White House. Now, to me the translation of that is don’t blame us if something comes up we didn’t find because the White House sets the terms for our investigation. So I would look probably to interest groups that oppose Judge Barrett who will be looking for some information that they don’t know, reporters to be investigating her background, but she’s a very beloved person in her hometown where she lives, in South Bend, Indiana, where she was a law professor for 15 years and still teaches at Notre Dame, and she’s beloved by a diversity of people for whom she is enormously generous. That does not address the question, of course, of her ideology, which is more than conservative; it is right up there with the man she clerked for, Justice Antonin Scalia, a ferocious opponent of abortion. And Judge Barrett, of course, has also weighed in on Obamacare, saying that she’s – she’s been very critical of Chief Justice Roberts’ opinion when he cast his fifth and deciding vote to uphold Obamacare, and we’re going to have – a week after the election we’re going to have arguments in the third challenge to Obamacare.

MR. COSTA: Seung Min, following up on Nina’s point there, how are Democrats on the Senate Judiciary Committee going to handle this? Will they focus on abortion rights, will it be a broader argument against her on health care? What are you learning?

MS. KIM: So there are a couple of decisions that Democrats have to make when it comes to their strategy. First of all is a lot of these procedural tactics, strategy decisions – do you meet with the nominee, do you even go as far as boycotting the hearing? What do you do to delay it out? And that’s a lot of inside baseball talk. But yes, Democrats want to make this about the issues because you and I all know here that the courts have generally been an issue that has galvanized conservative voters, and now under the Trump presidency Democrats and progressive groups have been trying to change that calculus, and there’s some polling that shows that the courts may even be – I mean, before – even before Justice Ginsburg’s death that the courts may – that the courts are slowly turning into a more important issue for Democratic voters, which is a fascinating shift. But the Democrats also know that they have to tie this into issues that matter for their base, and we know that health care matters so much. It was a key part of their midterm victory in the 2018 midterm elections, so they are going to point out, as Nina said, that this justice is going to hear – if she is confirmed, that she’s going to be on the – on the panel of nine that hears this critical case that will determine the future of the Affordable Care Act.

You saw a statement – a pretty strong statement from Senator Dianne Feinstein, the top Democrat on the committee, saying: This is the – this is the vote that matters to the future of abortion. So that’s what you’re going to be hearing a lot from Democrats in the coming days. You will hear a lot about process. You will hear, as we have heard, about the hypocrisy issue, considering what Republicans did to Merrick Garland in 2016. But the message is going to be health care, health care, health care, and the future of these critical rights that Democrats warn are at stake.

MR. COSTA: Carl, Republicans now have a majority in the Senate with 53 seats; Democrats have 47. But come November their power, as Seung Min was saying, could be at risk. According to the Cook Political Report, polls show Republican incumbents Martha McSally of Arizona and Cory Gardner of Colorado vulnerable with their races now leaning toward the Democrats. Could be a tossup for other GOP senators, such as David Perdue of Georgia, Joni Ernst of Iowa, Susan Collins of Maine, and Thom Tillis of North Carolina. Even Senator Lindsey Graham of South Carolina and Kelly Loeffler of Georgia are in tight races. Those lean Republican. So if the Democrats are going to be health care, health care, health care, how does this affect the Senate map?

MR. HULSE: Yeah, I think we’re all still trying to game that out, and so are the people who run these campaigns. There’s kind of two schools of thoughts here. One, that it’s probably not a great situation for Cory Gardner in Colorado, who’s in big trouble in a state that doesn’t like Trump. Arizona may already be lost. Susan Collins, of course, was at the center of the Kavanaugh fight. Some people think, well, maybe this can help Susan Collins, who is opposed to moving forward, separate herself from Trump. But we’ll have to see about that. People think it could help some lagging Republicans – Thom Tillis in North Carolina, lets him tie himself tighter to Trump. I’ve heard Republican strategists say to me it’s basically going to be a Tillis-Barrett ticket down there, and in other states.

So right now, though, I think that Democrats are probably remaining in a pretty good position to take the majority. It’s interesting, Bob. You know, there’s two things that Mitch McConnell really likes. He likes being majority leader, and he likes putting conservative judges on the Court. Are these things in conflict this time? I think we’re going to find out by the end of the confirmation and the election.

MR. COSTA: Nina, this is the battleground right now, but the Court, broadly speaking, is becoming a battleground in American life. We saw today House Democrats are thinking about proposing legislation to have 18-year term limits on Supreme Court justices. When you look at the fight over Coney Barrett, when you look at the Court as an institution, what are the challenges right now moving forward?

MS. TOTENBERG: Well, I think that’s a story that’s yet to be told. You know, six months ago if you would have said that term limits, adding justices to the Court, rotating justices on and off the Court, that that would be a live possibility, we would have all thought you were mad. And I’m not prepared to say that this is a sure bet. But of Coney Barrett is confirmed and the Court moves decidedly to the right and, for example, strikes down Obamacare, strikes other pieces of legislation that might be enacted by a Democratic Congress and signed by a Democratic president, then you’re in a whole different ballgame. And then there’s the possibility, of course, that the election is very close and that it ends up before the Supreme Court. And what if the Supreme Court votes again against the person who carried the popular vote? This is, you know, a powder keg that we’re talking about.

MR. COSTA: Seung Min, when you saw our Cook Political Report information there, and you saw all the different races that are now pretty much up for grabs, when you’re talking to Democrats who do they see as possible Republicans they could peel off?

MS. KIM: In terms of – if you’re talking about Democrats who – where Democrats feel good about these races, they – I mean, it’s like Carl what said earlier. They think that, you know, this hurts people in, you know, these purple/blue leaning states – such as Colorado and Maine. But you have this – the Democratic Senate candidates, who clearly do have the momentum right now, even in these purple/leaning red states, still being very careful around the issue because you know that this is an issue. The Supreme Courts are such a polarizing, toxic issue. It really does make people put on their partisan jerseys.

And a lot of these Democratic Senate candidates do need crossover voters. You know, in North Carolina, there does need to be that Trump-Cunningham voter – or, Cal Cunningham, the Democrat there, needs to appeal to that kind of voter as well. So some of the changes that are being proposed that Nina discussed just a few minutes ago – such as expanding the number of seats or whatnot, while there are certainly threats from some – you know, some lawmakers, and definitely from the base, it is far from assured that even if Judge Coney Barrett is confirmed, that these changes will be enacted in 2021 or even ever.

MR. COSTA: Carl, can you follow up on that? I see you whispering to Senate Democrats I won’t name in the hallways of the Capitol. (Laughter.) Is there an appetite next year if Biden wins the White House to pack the Court?

MR. HULSE: I think that they’re going to be under a lot of pressure from the left to do something. But, Bob, as you know, the first step to that is all what do you do about the filibuster, that you would have to eliminate the filibuster in a narrowly divided Senate to enact these kind of changes. And I think it starts with that. And you have to see where that progresses. You know, who thought a few years ago all these senators who had said they would never do a Supreme Court nomination again – Republican senators – in a presidential year, well, they’ve flipped. You know, you could have Democrats right now who aren’t talking about this who might say later on, well, circumstances have changed, and we need to do it.

They are alarmed right now, though, about talking too much about this subject during the campaign. You know, they need moderate voters. Republicans thinks this turns off moderate voters. They’re really pushing Democrats on that. I think that if the Democrats win the Senate and the White House next year you’d see a lot of activity. But first around the filibuster, and then see what happens from there.

MR. COSTA: We’re a long way away from next year. And I want to turn to something Nina mentioned about a possible court fight, because the Supreme Court could be the pivotal institution in the wake of the election. And President Trump this week continues to warn of widespread voter fraud, even as the FBI Director Christopher Wray shut down such a suggestion in testimony this week, and he said there’s no evidence of that. White House Chief of Staff Mark Meadows then attacked Wray on Friday and told him to, quote, “drill down” instead on the Justice Department’s probe of discarded mail-in ballots in Pennsylvania.

This standoff over the integrity of the election, it’s testing American democracy. And so is the president’s comment this week that, quote, “we’re going to have to see what happens” when he was asked if he will commit to a peaceful transfer of power. A day later, the GOP-controlled Senate affirmed its commitment to a peaceful transfer with no objections to the resolution offered by Senator Joe Manchin, a moderate Democrat. But Republican responses to the president, they were mostly muted.

SENATOR MITT ROMNEY (R-UT): (From video.) There will be a peaceful transition of power, and that anyone who has sworn an oath to our Constitution, including the president, I’m confident is committed to the same principle.

HOUSE MINORITY LEADER KEVIN MCCARTHY (R-CA): (From video.) There will be a smooth transition, and I believe President Trump will have a very good inaugural and will reunite this nation.

MR. COSTA: Nina, how serious is this moment for American democracy?

MS. TOTENBERG: I think it’s pretty serious. If we ended up with a very close election and a Bush versus Gore kind of situation, with a court that’s far more conservative than the Bush versus Gore court was. And I don’t know what that means for voting rights, but in general the Republican nominees on the Supreme Court currently have not been particularly friendly to voting rights. They’ve turned aside virtually every challenge to voting rights infringement this year, and that includes Chief Justice Roberts. So I – you know, this is – has potential to be really explosive. And you know, as a citizen, one can only hope it doesn’t come to that.

MR. COSTA: Carl, there was a headline in The New York Times, your paper, on Friday. Quote, “At Pentagon, Fears Grow That Trump Will Pull Military into Election Unrest.” When you’re talking to Republicans, how do they see this issue privately and perhaps publicly?

MR. HULSE: Yeah. I think that that was an excellent story because the Pentagon – it shows you they are worried about this. I think this has become, just as Nina said, a very serious situation. I think people were taking it a little lighter, but the president has continued to insist on this. And I think Democrats are alarmed and are making plans. Mitch McConnell, the Republicans came out and said: Of course there’s going to be a peaceful transition, and they passed that resolution.

But that’s window dressing. Mitch McConnell may be a lot of things, he’s not a clairvoyant. He can’t sit there and say there’s going to be a peaceful transition. I think this is going to get more worrisome as it proceeds. And I think it – you know, it’s – we’ve all been talking for months – or even years now at this point – when would Senate Republicans really confront President Trump? I mean, that might be the moment where they have to do it. And we will see what happens.

MR. COSTA: Well, Carl, just to follow up, there was that moment famously in ’74 where Senator Goldwater goes to Nixon, says it’s time to go. If President Trump’s defeated, do you see Senate Republicans playing a prominent role in trying to have a peaceful transfer of power, or not?

MR. HULSE: I mean, we haven’t seen that from the Republicans yet, that real showdown moment. I presume that in the event of a clear outcome that they would do that, but as you saw in their comments this week that kind of both sides – well, Hillary Clinton said Joe Biden shouldn’t concede; that was out of context. So you know, they’re not there yet, that is for sure, and you know, we’ve got – we’ve got a ways to go.

MR. COSTA: Seung Min, when you’re reporting on the White House and talking to officials there, inside and outside, do they see the president’s comments as a president trying to protect his brand, or do they see him as a president really ready to use the levers of power to stay in office?

MS. KIM: Well, they have had to explain away a lot of the president’s comments for weeks now, I mean, talking about his repeated baseless claims about the safety of mail-in balloting and this is another – this is another comment that they really had to kind of qualify. You know, you saw Kayleigh McEnany the day after the White House – the White House press secretary – the day after the president’s comments saying the president will support a free and fair election, but that is not what – (laughs) – he had really said, you know, in his comments, and that’s why you’re seeing some of the concern bubble up. And you know, just following up on what Carl was saying earlier, it is not often that Mitch McConnell comments proactively on the president’s comments or his tweets. He makes it clear to us that he does not make it a habit of – do so. So the fact that he put out a statement, you know, as kind of soft as it may be, that there will be a peaceful transfer of power after Election Day, it shows you – it shows you just kind of the level of alarm that Republican officials, Republican leaders were seeing at this point.

MR. COSTA: Nina, I mentioned 1974 and Goldwater and Nixon to Carl. You began your career covering the Court in Washington right around President Nixon, reporting on the Nixon White House. Any lessons learned from that period or when you covered Bush v. Gore in 2000 to help us understand what we’re going through here?

MS. TOTENBERG: Well, those were really different times. People were institutionless. Senator Goldwater, who was among the most conservative members of the Senate, today might be slightly to the left in the Republican Party in the Senate, and there lots of people who had served for a very long time in the Senate and the House, and that is no longer true. There are some old bulls left, but not many of them, and it’s the old bulls, in fact, who could be a block to abolishing the filibuster, who could be a block to any sort of ideas about changing the Supreme Court. That is sort of – but they’re few and far between anymore.

MR. COSTA: And we also are looking ahead next week to the first presidential debate, moderated by Chris Wallace of Fox News Tuesday night in Cleveland, Ohio. Carl, what do Democrats want to see from Vice President Biden? He’s been prepping for days.

MR. HULSE: They want to see a competent debate. I’ve had more and more Democrats say to me in the past few days, boy, we’re really hoping for a good debate. They see this as a critical moment. Biden’s going to have to stand up to the president, you know, call him out on some of these things in a forceful way. To Democrats, there is a lot riding on this debate right now.

MR. COSTA: What about inside the White House, Seung Min?

MS. KIM: Well, they clearly see this as a critical moment as well, but you have seen for some time the president kind of lowering the expectations – not directly in reference to the debates, but just all the references that he and his team make to – make towards the former vice president’s, you know, work ethic, his demeanor, the president’s nicknames towards him – “sleepy Joe” – so I think in that sense they may have, unintentionally or not, lowered expectations for the vice president at this debate. So whether that was a smart strategy move or not is yet to be seen, but the president is clearly not someone who does debate prep in the traditional sense. So on the issues that we know are going to be discussed – so the pandemic, the Supreme Court, all these critical issues – we’ll see how Trump kind of shows up, and it’ll be just a fascinating contrast to watch.

MR. COSTA: Nina, in the final 30 seconds here, your friend Justice Ginsburg, what a week watching all of the remembrances of her. When you stand back and reflect, what comes to mind at this moment on Friday night?

MS. TOTENBERG: Well, you know, what really caught me unaware – I had not anticipated – I anticipated all the political firestorm. What I didn’t anticipate was that when she died on Friday night, within an hour there were hundreds of people who just went to the Supreme Court with candles, with flowers, and singing – singing “Amazing Grace.” That I didn’t expect.

MR. COSTA: Well, Nina, I expected it because we all saw her immense following across the country, but I really wanted to say thank you to all of you. We’re going to talk more with Nina in our Washington Week Extra, but really appreciate Carl Hulse, Seung Min Kim, and Nina Totenberg being here tonight for the broadcast. Really appreciate it.

And we’ll keep taking you as close to the news as we can. But for now, I’m Robert Costa. Good night from Washington.