ROBERT COSTA: Hello. I’m Robert Costa. And this is the Washington Week Extra, where we pick up online where we left off on the broadcast.
Joining me around this table, Seung Min Kim of The Washington Post, Pete Williams of NBC News, Joan Biskupic of CNN, and Carl Hulse of The New York Times.
For the second time in less than two years, President Trump will be nominating a new Supreme Court justice. This week Justice Anthony Kennedy announced he would be retiring at the end of July after 30 years on the Court. Kennedy has wielded a lot of influence during his time on the bench as a sometimes-centrist, sometimes-conservative swing vote. Whoever is confirmed could reshape the country’s judicial future for generations. But, Pete, when we think about Congress and how they approach this, the Democrats on Capitol Hill face a dilemma. They could protest and protest whoever the president decides to pick, but then the president has a list of justices who are very similar in profile. So what to do if you’re a Democrat?
PETE WILLIAMS: Well, I think that’s the issue, because if you say I’m sorry, this one just doesn’t work for us, it’s not like the next one is going to be – think about Anthony – let’s finish the sentence, Pete. (Laughter.) It’s not like the next one’s going to be that much different. And here’s what I would contrast it with. Go back to look at the way Justice Kennedy got on the bench. It started, remember with Robert Bork, and it became quite clear that the Senate rejected him. Then we had that little detour to Doug Ginsburg, who – amazingly, back then – (laughs) – smoking marijuana was considered a bad thing for people in government. And then they got to Justice Kennedy. So you actually went from a more conservative to a less conservative choice. It’s not like that now. Now, people in the process that have sort of put this farm team together from which the president is choosing would say, look, these are all people who have a consistent view of the Constitution. They are sort of like Justice Scalia in that sense. They believe in interpreting statutes as they’re written. They don’t want to make law. And that’s all true, but the fact is they all have a pretty consistent sort of view of the law, a judicial philosophy. So all of that is simply to say, you know, this one down, the next one up is I don’t think going to be that much philosophically different.
MR. COSTA: But this is a president who loves throwing a political curveball. Is there any chance he ever deviates from this whole Leonard Leo/Federalist Society – Leonard Leo runs the Federalist Society –
MR. WILLIAMS: By the way, I just have to say for the sake of accuracy he’s actually taken a leave of absence right now to do this.
MR. COSTA: Oh, really? So he’s going to help out formally with the process?
MR. WILLIAMS: Exactly.
MR. COSTA: Interesting. So is there any chance the White House goes off the list?
SEUNG MIN KIM: I mean, doesn’t seem like it because this is the one conventional Republican thing that the president has done. I mean, you look at the list of nominees, this is something that other Republican presidential nominees, had they won the nomination and won, could have nominated as Supreme Court justices. So it’s interesting, while these swing votes that we talk about from Lisa Murkowski to Heidi Heitkamp are privately urging and publicly urging the president to maybe look off the list a little bit, this is – the list is something that they will stick to.
CARL HULSE: But the president said I’m going to pick from this list and it was a huge win for him during the campaign. It was a genius idea. Democrats now think their future candidates are going to have to provide lists like this. And so he’s going to go with that.
I did hear one story during some reporting I was doing on this that the president really didn’t know the difference between the Federalist Society and the Heritage Society, and they –
MR. COSTA: The Heritage Foundation.
MR. HULSE: Heritage Foundation. And they kept trying to straighten him out on that.
MR. COSTA: Well, thinking – and we’re mentioning all these inside names – Leonard Leo, Federalist Society, Heritage Foundation – but to me maybe the real relationship is Don McGahn, White House counsel, with Mitch McConnell, the majority leader.
MR. HULSE: Yeah, I think that is totally accurate. Don McGahn and Mitch McConnell have worked extremely closely together. Don was a Republican lawyer around town, was the head of the Federal Election Commission, and was then – early on in the administration was the president’s – I mean, in the campaign was the president’s counsel, was part of the group that came up with this idea, and he and McConnell are really in lockstep on this, so.
MR. COSTA: He thought about quitting McGahn. There was – every week –
MR. HULSE: There’s always somebody quitting, right?
MR. COSTA: – a new story in D.C., McGahn’s about to quit. Yet, he’s staying for this.
MR. HULSE: Yes. (Laughter.)
MS. KIM: Exactly. Yeah, this definitely extended his tenure by a couple months.
MR. HULSE: So we talked the other day some people could call this the McConnell Court. Maybe it’s the McGahn Court. (Laughs.)
MR. COSTA: Well, McGahn would like that, I’m sure. Joan, you’re working on a book about Chief Justice John Roberts. And you think about, as you go through all your reporting and research, what a moment for him now.
JOAN BISKUPIC: It is. He already – you know, the man in the center chair, he presides over the Court, but so much of his power was undercut by the man next to him, Anthony Kennedy, over the last 13 years because he was that decisive vote. So the chief had to work around him at times. You know, he – face it, Anthony Kennedy was a conservative, but on a lot of these social issues the chief was on the opposite side of him. He dissented when Anthony Kennedy wrote the gay marriage ruling. Now, with Kennedy gone, he doesn’t have to do that. He’ll have a full contingent of four other justices to make a majority who would be on the conservative side. So this will really make a difference for him. But one way that I think it could hurt him a little bit, Anthony Kennedy was – he was kind of an old-fashioned Republican, a very civil individual. He worked well with others. He dissented from the – (laughter) – seriously. I mean, you think of – and if you’re talking about nine people around a table, nine people appointed for life, it matters if someone can work well with others, you know, because they all have their strikingly different personalities. So I think they did have a good cooperative spirit, but the chief now has his own Court and we’ll just have to see what this fifth conservative brings.
MR. WILLIAMS: By the way, you asked me during the broadcast if this would put Justice – Chief Justice Roberts in a different position, would he become the swing vote? And I should have thought of an example from this term where he did it, and that’s the Supreme Court voted a sort of pro-privacy ruling to say if the police want to use your cellphone records to track where you’ve been, they have to get a search warrant. That was a five to four ruling, the chief with the libs.
MS. BISKUPIC: And what does it recall? Obamacare in 2012. It’s the only other major decision that John Roberts went with the four liberals, and boy do we remember that. (Laughter.)
MR. HULSE: Well, and a lot of conservatives continue to think he was a sellout – or, it was David Souter –
MS. BISKUPIC: That is so true. And that’s why, frankly, even on this court, several of the chief’s colleagues don’t quite trust him in ways because he broke from them for this momentous ruling in 2012.
MR. COSTA: We talked about a lot of senators on the broadcast. Two Democrats we didn’t get to bring up but intrigue me, Senator Bob Casey of Pennsylvania and Senator Doug Jones of Alabama, who was just elected in a special election late last year. Any chance they could be drifting toward the Republican pick here?
MS. KIM: So the reason that Bob Casey is interesting, at least from this angle, is that he is the rare Democrat who opposes abortion rights and has voted with Republicans often on these restrictive abortion measures. But if you look at where he is politically, even though Pennsylvania is a state that went, surprisingly, for President Trump in 2016, he – and he’s up for reelection this fall – he is actually not expected to have a difficult reelection race. He is – polling shows he is up, you know, high double digits – or double digits against his challenger, Lou Barletta. He has kind of gone woke, as the kids say. (Laughter.) In the era of Trump, very embracing these liberal, progressive values. So I would be incredibly surprised if he broke the other way.
MR. HULSE: Yeah, he’s been radicalized by the Trump administration. (Laughter.) You know, there’s – Doug Jones is 2020, right? Is that right? So, you know, he’s a civil rights force down in Alabama. Who knows, but I think that he – probably worried about the Voting Rights Act and some of the other things that have happened on this court. He can’t be that open to it. But you know, there’s other Democrats running in red states. Sherrod Brown – or, that were red states this last election, anyway – Ohio, Wisconsin. But, you know, we’re not seeing –
MR. COSTA: Why do we never hear about those names?
MR. HULSE: Why? Because I don’t think that – there’s no way that Sherrod Brown is probably going to ever confirm a – or vote to confirm, you know, someone from Trump’s list. So – and I think – you know, some of these races aren’t playing out that way. I mean, he’s looking pretty good there. And Tammy Baldwin, who was actually – of Wisconsin – was a big concern for the Democrats for a while, seems to be in pretty good shape.
You know, one thing that I’ve been thinking about – and I think I’m right on this – I think Kennedy was the last member of the Court to be elected – confirmed unanimously by the Senate. I think everyone else that’s currently on the Court had at least some opposition – some.
MR. COSTA: It’s a different era.
MS. BISKUPIC: Right. Ruth Bader Ginsburg had three votes against her. And – yeah, so –
MR. HULSE: But then it’s gotten extremely party line. I don’t think we’ll ever see another unanimous confirmation.
MR. COSTA: Speaking of Ruth Bader – Justice Ruth Bader Ginsburg, she’s in her mid-80s. She’s one of the most spry people I ever see in Washington. She moves faster than me when I see her at different events. But any retirement rumors?
MR. HULSE: Oh. (Laughs.)
MS. BISKUPIC: She will – (laughter) – she will go out feet first, frankly. She is not going to go during Donald Trump’s watch.
MR. COSTA: Why?
MS. BISKUPIC: OK. She is – you know, she just turned 85. She’s about to take an international trip. She is going to hang in there as much as she can. And especially I thought, you know, for the four liberals who only had Anthony Kennedy to sort of cling to for most of the rulings that they could possibly prevail, they must have just been devastated Wednesday afternoon. And I think – she’s the senior liberal. And it’s her troops that she’s going to have to try to bring together.
MR. COSTA: Final thought, Pete. Justice Gorsuch. That seems to set the precedent for so much of our discussion right now, how that played out, how President Trump and Senate Republicans went about it. What do you – what do you think about the justice one year – over a year in?
MR. WILLIAMS: Well, I think he’s a little different than he was when he came on the bench. I think – you know, he’s smart. He’s well-regarded. And he came with a very good reputation. But let me just say that – I think the best way to say this – he did not suffer from freshman shyness when he came on the Court. (Laughter.) And I think there were some sharp elbows. But he’s kind of mellowed a little bit.
And one of his – one of his first acts, which struck some of us as rather odd – you know, here is this man he used to clerk for, Anthony Kennedy, who swore him in on the 10th Circuit, swore him in again when he became a Supreme Court Justice. And Gorsuch immediately joins this dissent that has this little dig about the same-sex marriage ruling that Kennedy wrote, which surprised some of us.
But I think he’s sort of settling in and getting the pattern and realizing that even though he came from a court of appeals where collegiality is important, it’s even more important here.
MR. COSTA: You all are terrific. I know we could go on all evening talking about the Court.
MR. WILLIAMS: Let’s do.
MR. COSTA: Maybe we will, Pete, off camera.
That’s it for this edition of the Washington Week Extra. While you’re online take our Washington Week-ly Quiz and find out if you can remember the many other stories that made headlines this week. I’m Robert Costa. See you next time.