The FRONTLINE Interviews

Jack Goldsmith

Law Professor and Former Assistant Attorney General

Jack Goldsmith is a law professor at Harvard University. He served as U.S. assistant attorney general during the George W. Bush administration from 2003 to 2004.

This is a transcript of an interview with FRONTLINE’s Michael Kirk conducted on January 29, 2019. It has been edited for clarity and length.

This interview appears in:

Supreme Revenge

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Before the Robert Bork Nomination

So, the state of the court just pre-the naming of [Robert] Bork as the nominee for Ronald Reagan.

It's a court that had been moving in a somewhat conservative direction from the baseline of the Warren court for about 15, 20 years.It's a court that was still dominated in the middle by Lewis Powell, so it wasn't moving in a sharply conservative direction.It was a time when conservative frustration was growing that they had nominated a lot of justices over the last couple of decades, and the court had not gone quite in the direction or as sharply in the direction as they wanted.So that was the background when Lewis Powell stepped down.He was often the vote in the middle of the court, and so it was a chance to replace a moderate conservative with someone more conservative.

The Nomination of Robert Bork

And when Bork is named, you're in law school?

…I was in the second or third year at Yale Law School.

So Bork is named.He wasn't at Yale when you were there.

No.

He was on the launchpad.But nonetheless, what did you think of the announcement of Bork as the nominee?

As a young, conservative law student at Yale Law School, it was an exciting appointment.I mean, Bork was even then someone who was considered a conservative judicial superstar.He was sort of one of the leading thinkers in what was then the emerging views of originalism.He was someone who was intellectual, and he was very exciting for conservatives when he was nominated.

The Campaign Against Robert Bork

It doesn't take very long.We talked to his son who said he was at the announcement by President Reagan, that he went down to the White House Counsel's Office.They had the TV on, and Ted Kennedy (D-Mass.) comes out.What did Kennedy say?

I don't remember the exact phrase, but he basically said that Robert Bork's America was an America where women had to get back-alley abortions, where police were going to be breaking into your home, where there was racial segregation and the like.It was basically, I thought, a pretty inflammatory charge, that we were going back, back, back to the bad old days, and Robert Bork was going to take you there.

And your thoughts about what that signaled?

I was, again, I was a second- or third-year law student, and it struck me at the time as being really extreme.What I didn't know was that it marked a huge escalation in the kind of attacks that would happen during judicial nominees.It was the opening shot that characterized what was going to come.We didn't realize at the time when he said it.

A lot of people that we've talked to, especially Republicans, call it the “original sin moment” for what is to follow, all the way up through [Brett] Kavanaugh.Agree?

I think it's more complicated than that.I think it was definitely an escalation, but I wouldn't say that it was the original sin.There are many original sins and many causes going back, I think, decades before then, when the court, starting in the '50s, started to become more activist and started to, through their judicial power, regulate many areas of American life in the '50s and '60s and '70s, and increasingly so, and take it out of the hands of the people.There was a conservative reaction to that, starting even in the '50s, when I believe the first nominee after <i>Brown v. the [sic] Board of Education</i> was John Marshall Harlan, who was given a pretty tough time by the Republicans even though he was appointed by a Republican president, because they were worried that he was too globalist, that he was too elite.They were worried about his judicial philosophy even though they didn't press him on it.And then liberals returned the favor with Nixon's appointments when they started being more aggressive and questioning nominees and trying to nail them down on their views.

…I should say, I think that one way to see the original sin is that the court itself started becoming more aggressive in regulating areas of American life, and there was, I think, a quite natural reaction by the political branches that if you are going to start regulating things and taking them away from us, the judicial decisions, then we need to start paying more attention to what you're doing and who gets on the court.

So that was slowly ramping up for a while.What changed with Bork was, Bork marked a change because it got much more inflammatory.It got much more engaged with interest-group politics; television campaigns; serious, extreme pressuring of politicians; I think serious, serious mischaracterization of his judicial record—although, again, that wasn't the first time that had happened.There were precursors to that.He just marked a sharp escalation.

I think that's exactly where we landed in talking about this with lots of people over time.It feels like it's almost like, if you think about the Army-McCarthy hearings as a national televised civic event, maybe Watergate, maybe Bork, certainly Bork, it's like the first reality television program there is for people.

Everybody at the Yale Law School was glued to the set.It was a very—it was a time when everyone was focused on that and nothing else.It was the only thing that was being talked about.… It was discussed on both sides at Yale Law School and in the country in apocalyptic terms, so it was definitely one of those defining moments.

It's also, the other thing that changes—now we're out of the realm of legal things, and we're in the realm of politics.It feels like a campaign moment, almost, like Bork is running against somebody.There are Gregory Peck TV ads; there's hundreds of, as you say, interest groups; there's Norman Lear and the People For the American Way are all over.

Yeah, it does seem like a campaign.As I remember it, Bork was underprepared for what hit him, and I don't think that the Republicans were quite as prepared for the campaign that was waged against him.I think they weren't prepared.I think after Bork, every nominee, with a couple of exceptions, depending on who was being replaced and who was in control of the Senate, every nominee after that became basically a political campaign, and an increasingly strident one, and increasingly funded and organized.

Robert Bork’s “Intellectual Feast”

If there's one moment that everybody—everybody's searching for sound bites at some moment, and when he says, in answer to Simpson—we interviewed Alan Simpson (R-Wyo.) last week—and in answer to Simpson's question about, "Why do you want to be on the court?" he said, "It's an intellectual feast."Everybody leaps on top of this.Do you remember the moment?

I remember it very well, though politically I now understand, and I guess I understood at the time, why that didn't play well.He was being honest.And I think he was being honest, and I think he was saying: "I love the law.I'm really into every element of the law, and being at the Supreme Court and dealing with the hardest problems on a daily basis is kind of a life pleasure."But it wasn't exactly a politic thing to do.

The Defeat of Bork and the Rise of the Federalist Society

So Bork goes down.You're sitting there at law school.What do you think it portends?

…I wasn't sure what it portended at the time, but it certainly was, in retrospect, it was a defining moment for the conservative legal movement, for a lot of reasons.One, with Bork being in the spotlight, coming just after Scalia, it brought originalism as a judicial philosophy to the center of the country's attention, and also it kind of defined the way and concretized the way conservatives viewed the judicial role.Before then, there were several competitors, I would say, for what counts as conservative judicial philosophy.I think starting in the '80s, it really started solidifying …originalism's grip on the conservative movement, and I think that Bork, as a martyr, and I think the discussions about originalism and the reaction to his originalist philosophy really solidified that.

Why did you join the Federalist Society?

I can't actually remember if I joined it or not.I did join the Federalist Society at some point, but I can tell you why I was attracted to the Federalist Society and why I admire the Federalist Society.I was at Yale Law School at a time when the people who were right of left of center who were students, you could count on one hand, maybe two hands.Very few conservatives.No conservative professors, at least doing public law.And there was this progressive bubble that if you didn't buy that, you had to ask yourself, where can I go to learn?Where can I go to learn my intuitions are different?I'm drawn maybe to Rehnquist's philosophy on the court, but he was something of a lone voice before Scalia got on the court.And the Federalist Society represented a way of learning about and communicating with other conservatives, learning about conservatism and communicating with other conservatives.

It landed at exactly the right time.You watch these moments where the perfect storm hits.There's money available.There's an urgent need.There's Harvard, Stanford, Chicago.There's a couple of role models in Scalia and Bork.And for five or six years, it is an explosion in terms of how it grows.

Well, I don't think it's an accident.You know, the truth is that the law schools were extremely progressive and one-sided.They still are, to a lesser degree today, extremely progressive and one-sided.But the country and the politics of the country, and a lot of preferences of people in the country, weren't in line with the progressive courts, and there were things going on in the law and in courts that simply weren't being addressed by law schools.So I don't think the Federalist Society started as a conservative political movement at all, and I still don't think it's really that to the extent—certainly not nearly to the extent that it's portrayed.It really is an organization that is, within the conservative world, very broad-minded in its conception of conservatism and is really interesting in fostering conservative debate.And really, what they were geniuses at were for providing a platform for debates between conservatives and non-conservatives, because conservatives think, and I think they're right on a lot of these issues, that they can win those arguments if they have an opportunity to make them.And that's what the Federalist Society essentially did.

Some of the people we've talked to from the more liberal side of the argument say, look where the money's coming from—Olin [John M. Olin Foundation], the Koch brothers, the Mercers [Robert and Rebekah], Bradley, some dark money.Your answer?

I don't—I'm not sure I share your views about the goodness or badness of those organizations.They're conservative organizations.It's not surprising that conservative organizations would fund a conservative group, any more surprising than it is that there are scores of progressive groups that are funded by progressive organizations, includingpro–progressive legal organizations.

I don't know much about the funding of the Federalist Society.All I can tell you is that it is an organization that I've never once seen push a particular view.There are a range of conservative views and a lot of disagreement within it.They aren't joking around when they say they take no official position on things; that's actually—they live that.

Now, of course, there are people within the movement that are organizing in different ways and that go on to different careers and the like.And there's no doubt that the Federalist Society was and is a kind of organization that fosters conservative judicial thought and that helps conservatives succeed in the world.There's no doubt about any of that.But I don't find that remotely insidious.

The Nomination of Clarence Thomas

Thank you.So now we find ourselves in 1992, watching a political process and a White House that, like all wars, these generals are learning from fighting the last one over again with the nomination of Clarence Thomas.What lessons do you figure, just by watching it, they carried from what happened to Bork?

You know, I'm not going to be able to help you much on Thomas.I was in Europe at the time, and I wasn't watching it very closely.I actually—so I can answer—let me give a better answer than that.

So one lesson that I think was learned and that resulted in the Thomas nomination was that conservatives learned that we need to make sure that we can get someone who's confirmable and we need to make sure that this person really possesses a conservative judicial philosophy.And I think they thought at the outset that Clarence Thomas had both of those things.

When they bring him forward, the very first thing they really try to—Jack Danforth, senator from Missouri, others from the White House, they created a war room, of course, at the Eisenhower Building.

Which I assume they did not do for the Bork.

Exactly.They were like flat-footed.Bork suddenly explodes, and they're like, "The Democrats are ahead of us; I mean, they're killing us here."And I think they decided the number one thing is: "Don't talk too much about your judicial philosophy.Don't give long answers.Talk about your bootstrap youth in Pin Point, Georgia.It’s the Marshall seat; you're an African American; keep your mouth shut.And Kennedy's in some trouble anyway; he can't savage you like he tried to do with Bork because he's got personal issues.Biden's got some personal issues.You can glide through this."

And in a way, if you look at the two cases, the two moments, and you're trying to do what we are doing, which is chart a trajectory of what's happening, if the first one was like a reality TV show, the second one is like a reality trial.It's like a TV trial, right?

I'm not sure what you mean.

Well, because Anita Hill comes up, and suddenly it's a personal charge.Suddenly we're in the land of personal behavior, not qualifications or any of the usual things that you think of when you think of advice and consent.

I would disagree with that in the sense that—so the Anita Hill thing happens.That was not the first time in the history of the country that a judicial nominee has been grilled for personal views, personal behavior and the like.Some nominees were rejected because of things they said about race; John Parker, for example, a nominee of—I can't remember whose nominee he was, but I think it was in the late '60s.I guess it was either—I guess it was Nixon; it may have been Nixon.

Must be, because they did [Harrold] Carswell, [Clement] Haynsworth.

Parker was earlier, I apologize.Parker was under Eisenhower.He was rejected because he became controversial because of something he said about race.Felix Frankfurter was grilled as to whether he was a Communist or not.Louis Brandeis was grilled for all sorts of reasons having to do—really that verged on questions about personal character.It wasn't the first time that issues related to that had come up.This was a question about personal behavior, but it really wasn't the first time it had come up.

It had the feeling of a trial, though.I'm not disagreeing with you.Here's a woman who comes out—

It did have a feeling of a trial; that's right.

And you can't do a trial in a hearing.

It's very hard to do a trial in a hearing room because, first of all, the judges are playing to their constituencies and playing to the television audience.Second of all, you don't have rules for assessing evidence.There are very complicated rules for assessing evidence in court that's designed to keep in reliable evidence and keep out unreliable evidence, and that is very difficult in a hearing.

The Death of Justice Scalia and Mitch McConnell’s Gamble

When you hear that Scalia died, you must have known him?

I knew him.I can't say that I was close to him, but I knew him, and I admired him.

And your thoughts?

My first thought was how terribly sad it is.He was a great, great man.He seemed like he went prematurely even though I guess he was in his 70s.And my first thought was just profound sadness because he was really the most important thinker and leader of the conservative movement.But much more importantly than that, he was just a great justice.He really had a huge impact on the court purely through his mind and his writing and his will.And it was just a very sad day.

It doesn't take very long, like within about an hour and a half, for Mitch McConnell to roll out an announcement.What did you think of the announcement?

So at the time—let me just first of all say that the stakes are enormous, because if you replace Scalia with an Obama appointee, then you probably have five justices on the court that are going to move the court in a much more progressive direction than if you replace Scalia with a conservative judge.So the stakes for the future of American constitutional and statutory law couldn't be higher; they were just enormous.

McConnell announced that he was—you have to correct me if I'm wrong—but McConnell announced that he wasn't going to consider, allow the Obama nominee, whoever it was, to replace Scalia, to get a vote until the election.And he made it a principled argument.Am I remembering that correctly?

Yes.There wasn't going to be a vote.There wasn't going to be—

My initial reaction was that, especially after Merrick Garland was nominated—I admire Garland.He's a great judge.My initial reaction was, I understand the power of politics, and from a pure power politics perspective, it makes sense.And that's what nominations by that point had become.All of the norms surrounding judicial nominations by the time of Merrick Garland's nomination, they had basically disintegrated.

So the nomination and confirmation process had devolved into a pure politics situation, so I wasn't surprised that McConnell made that move.I wasn't sure he'd be able to pull it off, and I was surprised that he was able to pull it off.And at the time, during the election cycle of 2016, I thought it was a mistake.And the reason I thought it was a mistake for McConnell to do that was because I, like everyone else, assumed that Hillary Clinton was going to win.I thought that Merrick Garland was probably the most moderate and certainly a great judge and probably the most moderate judge that Republicans could possibly hope for.It seemed like the Republicans might not be able to hold on to the Senate.So I thought from the conservative perspective it may have been a strategic mistake, because it may have resulted in something worse from a conservative perspective later.And also it meant that Donald Trump as the nominee of the Republican Party would be the one basically carrying Scalia's mantle in the election, which I thought was an unfortunate thing.

That said, I was wrong, and McConnell was right, because it ended up being politically a huge victory for conservatives.

Donald Trump’s Nominee List

Here's Trump, who the conservatives—he's vanquishing, slowly but surely, all of his Republican primary opponents.I think only [Ted] Cruz is left around this time.Trump has working for him Don McGahn from Jones Day, a Federalist Society member.They put a meeting together at Jones Day with Leonard Leo and Jim DeMint.Trump says, "Give me a list."They give him a list.He drives over to Trump Tower, the construction site, and waves the list.He doesn't have it yet, but he waves the list in front the press and says, "I have a list."And it's from the Federalist Society.

I disagree with that.It was not from the Federalist Society.I really do think—so I get the sense, and I'm sure you're going to do this, that there's going to be some subtle demonization of the Federalist Society going on.

No, you're trying too hard.

OK, let me finish, let me finish.It wasn't from the Federalist Society.I think this is very important.McGahn was a member of the Federalist Society.Leonard Leo was a very important member of the Federalist Society.But it really—those weren't—so they're definitely part of the same conservative legal movement, and there was no doubt that they were behind the list, and there's no doubt that Trump really latched on to that and made it an important part of his campaign.But I think it's a mistake to say it was a Federalist Society list.

OK.

Sorry to be picayune about that.

No, I'm chastened.

No, no, no, go ahead, go ahead.Sorry.

I'm just kidding.So Trump has a list, wherever it came from.…

No, no, it was a great list.I mean, it was a great list of judges, and the people that put that list together knew what they were talking about.And it was an extraordinary list of conservative nominees.And indeed, one of the characteristics of Trump's appellate court judges, with very few exceptions, he's had a lot of appellate court judges and two Supreme Court justices.They've all been extraordinary conservative jurists.So it's a list that anyone would be proud of, whoever put it together.

…And something else I just want to say, just to put it out there: the Democrats are doing the same thing.I mean, they are thinking very strategically, increasingly so, both sides, very strategically about who gets put on those lists, who gets nominated to the courts.So it's not surprising that McConnell was thinking about it.

Organizing the Left and Right Around the Courts

Now that you've raised the Democrats, let's spend a second on it, because you may have some observations.We interviewed Nan Aron, other people who are trying to build—Jamie Gorelick—trying to build enthusiasm among Democrats for judgeships, judicial nominees.

I know where you're going.It's a fair point.Keep going.

Where am I going?

You're going [to the idea] that the progressives have not been as successful in organizing.That's absolutely correct.

Why?

The reason is because conservatives have been much more successful at organizing around judgeships for the same reason that the conservative Federalist Society has been much more successful than the American Constitution Society.The conservatives are a discrete and insular minority, and this really matters to them on these issues, so they have a much easier time organizing around this.And they also have a pretty coherent judicial philosophy that they debate about, but it's a fairly coherent set of assumptions about what courts should be doing.

The progressives are much more dominant in the legal academy and much more dominant in the bar.They don't have really the same sort of—they don't share philosophical premises on judicial philosophy.I think they actually care somewhat less about that than conservatives seem to care about [that].And they just have a very hard time.There are scores and scores and scores of great, great potential judges, but they just have a very hard time kind of narrowing and organizing, I think in part because they're so dominant in the culture.

Also a lot of the Democrats are incredibly siloed.There's not a kind of coherent "what do we believe."

But that's kind of inconsistent with—I think there's a very serious agreement on what they believe in terms of outcomes.And you see this when there's organization against conservative candidates.I don't think there's any uncertainty about what progressives as a group and what conservatives as a group want out of the courts.And again, you see this when you see progressive organizing against conservative judges.They want to preserve Roe; they want to preserve the laundry list of things that they've gotten from courts in the last 30 or 40 years.So there's agreement on that.But they haven't been able to turn that agreement into the same kind of intensely, tightly organized focus on philosophy and networking and selection of nominees.

… So if you could help me with a summary from 20,000 feet of, where are we from Bork to the Merrick Garland way station.

So between Bork and Garland, with a few exceptions, you have an increasing tit-for-tat from each side in response to their nominees, where things get a little bit more political, where the campaigns get a little bit more aggressive, where the norms break down a little bit, whether it's extending in the lower courts the length of time for court of appeals judges, whether it's starting to invoke the filibuster to block judicial nominees.So you have an increasing tit-for-tat with the norms slowly—the norms of constraint on each side and the norms of cooperation slowly breaking down.And there were norms of cooperation till you get to the point where, with Garland, that was almost the end.It was the second-to-last norm that went; namely, that the nominee gets a hearing.

... The importance of [Anthony] Kennedy's seat when he retires to the discussion we're having now.

…So Kennedy's seat in 2018 is a little bit like Powell's seat at the time of Bork, except it's even more significant because Kennedy really was the middle of the court.He really defined the middle of the court, whereas Powell was the middle of the court with [Sandra Day] O'Connor, so there was more flexibility, and Powell stepping down and being replaced by a conservative was even less significant than Kennedy stepping down and being replaced by a conservative, because at that point, Chief Justice [John] Roberts become the median vote on the court, and Chief Justice Roberts is more conservative, much more conservative, I think, than Justice Kennedy, although Justice Kennedy is more conservative than he's given credit for.

So it's a really serious moment in the balance of the court, the most serious moment in the balance of the court, really, since even before Bork.

And the stakes?

The stakes for the future of American public law couldn't be higher.The direction of the law, of American public law, really depends on that seat.

Now, I don't want to exaggerate.The court was relatively conservative.Justice Kennedy in most of the cases voted with the conservative side of the court.But replacing Kennedy with a conservative will move the court in a more conservative direction, and also replace an older conservative with a younger conservative.

... You say it's become a degraded confirmation process.

Correct.That's been going on for a long time.

And we're watching the degradation right down to the bone now, I suppose.

It's really—it's descended into pure power politics.And that descent has been going on—yeah, you can start in the '50s.You could probably—I would start in the '50s.It certainly picked up after <i>Roe v. Wade,</i> and it certainly got going in a big way with Bork, and then it just continued.

…All I can say is that it's pure power politics.It has become not about the merits of a nominee, not about the nominee's qualifications.It's really become about winning or losing for outcomes on the Supreme Court.That's the way it's seen by the interest groups on both sides, especially on the progressive side, I think, but also on the conservative side.And those are the terms in which politicians see it, and they're under enormous pressure from their constituents and from their various interest groups to deliver.The conservatives are particularly under pressure because they have tried and failed many times to get successful conservative nominees on the court.And progressives are under particular pressure because they've had over the last 50 years, 60 years so many important victories in the Supreme Court, and they didn't want to give up those victories.

So it's just pure, raw politics, and it's just not tempered by norms of restraint, norms of cooperation across administrations.It's just not tempered by decency.

Perceived Legitimacy of the Court

And the effect on the court and people's view of the court?

…So I think that there are many effects on the court.One effect on the court will be, to the extent this dynamic is what dominates presidential nominations, and to the extent it's what dominates the confirmation process, I think that you're going to see fewer and fewer nominees who are moderate justices or who are unpredictable justices, and you're going to probably, over time, see a more ideologically splintered court.That's the first thing.

The second thing is that as the confirmation process, and indeed the nomination process become more obviously political, and become more obviously about political outcomes, then the court itself suffers, because it looks like a political rather than a judicial institution.

But third of all, I would say that the court deserves a lot of the blame for that, because the court over decades and decades put itself in the middle of American politics by adjudicating issue after issue, taking it out of the hands of the democratic polity.And when that happens, the democratic polity is not going to sit on its hands.It's going to try to do something about it.So I think the court deserves some of the blame.

This is that argument that a lot of the law should have been legislated, not found by—

So this gets into judicial philosophy.This gets into judicial philosophy and whether the court's decisions were right or wrong.And I'm not taking issue right now for this point with any particular Supreme Court decision.But as a simple descriptive matter, over time, really through most of the 20th century, the court took on issue after issue, more and more issues that it viewed as being affected by constitutional law and therefore as something within its purview …issues that used to be considered within the democratic majority's decision to make.

And on issue after issue after issue, mostly going in a progressive direction, but sometimes going in a conservative direction, the court simply took more issues for itself.And these are issues on which the polity really cares about; the American people on both sides really care about it.And they can't fight it out in the democratic process with their legislators to enact the law and change the law and move it in different directions.The only outlet they have is to try to affect who gets on the court.So it's not at all surprising that we've seen more and more political focus on nominations and confirmations.

You mean the divisions are so deep and so partisan in the legislative branch, and the executive comes and goes and represents his base, whatever that is, on either side.There are some people who take great comfort in the fact that there is this body that sits there and says, “Let us do it.”

I think the Supreme Court is a great institution.Of the three branches, I certainly wouldn't put it at the bottom of the rung.And maybe it should be the top one just in terms of the quality of its outcomes and the integrity of the work it does.So I'm a great admirer of the federal courts.

But the point I'm trying to make is that the courts have—this is descriptively, unambiguously true—taken over more and more issues and made them about constitutional law.It's the court's decision.The court exercises the judicial power.The judicial power includes the right to interpret the Constitution.The court has interpreted the Constitution to include more and more things on all sorts of issues that affect the polity.And when they do that, and when they're in effect restricting the legislature because they're saying the legislature or the executive can't do an increasing number of things because of the rights they found or the principles that they've imposed, and when that happens, the polity, the room for democratic politics shrinks.And so—but the polity still cares about those issues.So the only way, the main way that they can effectuate those preferences on both sides is through judicial, political, and the nomination and confirmation process.

Does that make any sense?

Yes.Let's see what we missed.Mike, what have you got?

About the court getting involved in political areas.One of the things we've been looking at with McConnell is when he first gets really interested in appointing judges.And he was a big supporter of the Civil Rights Act and the Voting Rights Act, but when the busing orders came down and his hometown riots, he writes a letter to President Ford and says, "We're not going to get a constitutional amendment on this, but you need to make sure that judges you appoint are judges who will step back from what the courts are doing."Is that an example of the type of issue that—

That's one example that—I could come up with an example on the other side as well.We could use abortion.But yes, that's an example where whatever you think about the correctness or not of the Supreme Court's busing decisions, in the '70s, I think, they were enormously socially controversial.They weren't obviously successful at achieving their ends, but they were enormously socially controversial.And they never became accepted by the polity as a constitutional principle the same way that some of the earlier anti-discrimination rulings did.They were hugely contentious politically.

And the fact of the matter is that if the court doesn't always get it right on its interpretation of the Constitution, and when the court gets it wrong, there are essentially two ways to fix it when the Court gets it wrong.One is to amend the Constitution.The other is to find different judges.

…. You love these courts. You understand the importance of these courts. What is the effect of [all the politics of the confirmation process] on these courts?

So again, let me think about that.How can I put this?It's clearly terrible for courts that the judges and justices who get on these courts have to go through this really hyperpoliticized process.And both sides are guilty of it.It's terrible because it makes them go through this awkward process of not being able to say anything and being asked all sorts of questions that the senators know they can't and shouldn't answer, but insist on them answering anyway.It's terrible because it's gotten so personal, and it's gotten so extreme, and because the charges, often crazy charges about the nominees, fly, and I think both parties are guilty of this.It invariably has the effect of making courts seem like they're part of the political process and that it's just like politics.

…The poor people who go up there and have to suffer through this when they're nominated for the court of appeals or the Supreme Court, they're not individually responsible for this.But what's happened with the president and the Senate is a reaction to what courts have done.There is just no getting around that.You might like what courts have done, you might not like what courts have done, but there's no doubt that what's going on in the confirmation process is about a reaction to what courts have done.And to that extent, courts are responsible, to some degree, for what's happened.

Where is the American democracy when the politics around the confirmation have become so politicized, when our legislature is so divided that we expect the courts to be the mediator?

Well, all of our politics are degraded and polarized.And you see this most clearly in congressional politics where the parties have grown more extreme and where the middle has shrunk.And you see this, to some degree, in presidential politics and presidential elections.And it's infecting and has affected the courts because the process we've been talking about is one that makes the courts seem more political.And because of the way nominations and confirmations get done, and because they've become so important to the constituents in both parties, there is an insistence on ideological purity that makes, I think, over time, the court to be more splintered and the lower courts to be more splintered.And over time, that can just contribute to—it can only contribute—both the process of nomination and confirmation and some of the outcomes in the judiciary can only contribute to the divisions in our democracy.

And the idea that because the other institutions are so splintered that the courts are going to save us, I think, is a fantasy.

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