Checks and Balances Episode 6 Paul Rosenzweig: Hello, and welcome to Checks and Balances: Threats to this American Election. This weekly podcast is sponsored by Checks & Balances, a group of conservative and libertarian lawyers dedicated to bolstering the rule of law and opposing the degradation of American legal norms. My name is Paul Rosenzweig, and I'm your host. Joining me today as my guests on the podcast are Jonathan Adler and Adam White. And our topic today is the Supreme Court Nomination of Amy Coney Barrett. Fostering free and fair elections is not a partisan issue. It's not a right and left issue, and it's not a conservative, libertarian, liberal, or progressive issue. It's an American issue. And so in this podcast, we aspire to offer accurate information that captures the ground truth about our election process. We'll talk about what the law entails and how to make sure that every legal vote counts. And we'll also talk about what is at stake in the election and why elections have consequences. Today's discussion hits on the second of those, and it melds the election with the rule of law. The nomination of Judge Barrett is both a political matter, and a matter of law and the judiciary. I'm joined today for our discussion by Professor Jonathan Adler, who is the Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. He is also the director of the Coleman P Burke Center for Environmental Law at Case Western, where he teaches courses in environmental, administrative, and constitutional law. Also joining us today is Professor Adam White. He's an assistant Professor of Law at George Mason University's Antonin Scalia School of Law, teaching and writing on administrative law and related subjects. And he directs the law school's C. Boyden Gray Center for the Study of the Administrative State. Adam is also affiliated with the American Enterprise Institute and is a public member of the Administrative Conference of the United States. As you might gather from the intros this week, all three of us are active members of the Federalist Society, and consider ourselves conservative in our judicial philosophy. Like me, Jonathan is a member as well of Checks & Balances. And Adam, you should be. And you should also be part at the R St. Institute instead of AEI, but you're young yet. So gentlemen, welcome to the show. Thanks for joining me. Adam White: Well, thanks. Thanks, Paul. Jonathan Adler: Good to be here. Paul Rosenzweig: We always start with something in the news that is law related and close to our topic. The obvious question today is a pure process question. What do we think of the Senate conducting its hearings this week? We'll talk later about the history of confirmations and the proximity to the election. So let's put that aside. My question they really right now is more about the pandemic and about the COVID-19 disease. Jonathan, what can you tell us about remote hearings in the Senate since March, since the start of the disease? Have there been other judicial confirmation hearings conducted remotely? Jonathan Adler: There have. The Senate judiciary committee has had hearings for over 20 judicial nominees since March. Conducting those hearings at least partially remotely. So for most of those hearings at least some of the Senators participated remotely. And in, I believe at least five of those cases, the nominees themselves selves participated remotely. The Senate Judiciary Committee's rules actually provide for proxy voting, including proxy voting that can be done over the phone. In a way that the House and Senate rules generally do not. So the fact that a hearing in a context in which not everyone can be there in person is something that the Senate Judiciary Committee has been able to handle for a while. So, Adam, some say the Supreme court should be different. Right? It's the one court that is above all the others, and some suggest that nominees to the court should be looked in the eye. In-person. Does that distinction make sensor or should the same rules apply to all judicial nominations, whatever their level? Adam White: I think it's a fair point. Supreme Court nominations are some of the most significant things that happen in government now. And so of course, I think it's fair to say that a Supreme Court nomination isn't exactly like the other nominations, but I'm not sure that it's a distinction that really makes difference. I'm glad that the Senate judiciary committee has found a way to do its work during that these extraordinary times. And yes, doing the Supreme Court confirmation hearing partly remote is not ideal, but I think it was fair for the committee to go forward with it. Paul Rosenzweig: Jonathan. What's the provenance of those proxy rules that you mentioned? Are they from this Congress or have they been around for a long time? Jonathan Adler: I'm not entirely sure how old they are, but these are rules that were adopted pre-pandemic. Both the House and the Senate have talked about modifying their rules to allow for different sorts of proxies given the pandemic. The House passed something back in the spring, and then, on a party line vote, and then Republicans challenged in the Senate in recent weeks. There has been discussion of, by Republicans, of allowing proxy voting. Unfortunately, like so much else, the idea of having common sense rules to allow continuity in government procedures and proceedings during something like a pandemic has fallen victim to efforts to gain partisan advantage. Paul Rosenzweig: Okay. So, let me ask you, Adam. What are the rules? I mean, given that proxy voting can happen in the judiciary committee, it seems like it doesn't matter that, three of the, at least two of the Republican members have tested positive for COVID. Senator Lee and, um, uh, who was the second one? I forget. Adam White: Tillis. Paul Rosenzweig: Tillis, Senator Tillis. And Senator Johnson has also tested positive though he's not on the committee. But what about in the Senate itself? Is there a provision there for proxy voting? And if there's not, what might the absence of three members of the Senate mean for quorum purposes in the Senate itself? Adam White: Well, actually, the process of actually voting in the full Senate that's much murkier, both in the House and the Senate. We saw a constitutional lawsuit filed against Speaker Pelosi a few months ago. I think it was led by Kevin, by Congressman McCarthy, challenging of the House's enactment of rules that provided for proxy voting. So giving somebody else your proxy to vote on your behalf, if you can't be there in person. There is language in the constitution that really seems to strongly imply the expectation that members of Congress would come to the building to do at least the final sort of key parts of their job: voting on legislation, giving advice and consent on nominations. It wasn't conclusive. I think you... I think it's fair to say the framers probably expected that's how it would go, but whether it rises the level of constitutional requirement is not really clear to me. But I think it's fair to say that if this does get to, if this goes through committee, as I presume it will, and it goes to a full Senate vote, you'll have every effort by every Republican Senator who could possibly be there to come and vote in person, if at all possible. So that there's no question about the legitimacy of the votes surrounding this nominee. You could see a leader McConnell taking extraordinary lengths. Say another Republican member of the Senate is stricken by COVID-19. You could see the Senate holding the vote open for many hours, maybe days, allowing the sick member to enter the chamber alone and vote. I mean, I'd say it's, I'd be shocked if any Republican Senator tries to vote by proxy or remotely given the stakes surrounding this nomination. Paul Rosenzweig: Well, that's interesting. One last question about this, and I didn't preview this for you guys so if you don't know the answer, let me know, but do we have any experience with voting during the Spanish Flu a hundred years ago? How did Congress deal with that? If either of you knows. Jonathan Adler: Yeah, I don't know that. I do know that Congress has experienced with forcing members to show up, to establish a quorum, which is something that's been talked about if the Democrats decided that they wanted to boycott a vote on the floor. But I don't know about 1918. Adam White: Yeah, that's a good question. I don't know the answer either. Paul Rosenzweig: Well, it's a fun historical Chestnut. I know the part about forcing people to do show up. They, a lot of state legislatures lately have tried to run across state lines to avoid that very issue. Yeah? Okay. So let's turn to the more meaty substance of our discussion today, which is Judge Barrett's nomination itself. And I want to break that into two parts. First, I want to talk about the politics of it, and then I want to talk about judging judicial philosophy in the law. Okay. So, let's start with the politics. Leaving aside COVID completely, the Barrett nomination plays out, of course, against the backdrop of the failed nomination of Merrick Garland. At the time Senate Majority Leader McConnell said that Garland should not be considered because an election was then less than nine months away. About eight and a bit. Of course, Justice Ginsburg's death was less than two months before the coming election that is three weeks from tomorrow. So some see the precedent that Leader McConnell set with respect to Garland as persuasive. Yet, Senator McConnell is taking a different tack this time around. Seemingly disregarding much of what he said before. Jonathan, tell us again about some history. Tell us about the history of nominations in an election year. What's the actual history itself. For example, one case I know of is the case of Justice Anthony Kennedy, but tell us as much of this as you want. Jonathan Adler: Sure. So, as a general matter, it's not a surprise that since the development of political parties that vacancies in election years are more contentious than vacancies in other years. By my account, prior to the Trump presidency, there were 15 occasions in which a vacancy arose within 12 months prior to the election. The Kennedy example actually doesn't fall within that because that vacancy actually occurred earlier and as listeners may recall, the Senate first projected a prior nominee, Robert Bork in 1987. There was then a going-to-be the nomination of Douglas Ginsburg. He withdrew before his nomination was full, was actually offered. And then, Anthony Kennedy was nominated. But of the 15 times where a vacancy arose within a year prior to the election, and that was only filled prior to the election seven of those times. Then there were some cases where the vacancy was filled after the election in the lame duck session. The other thing that you noticed when you look at this history is that when the Senate and the presidency were in the same hands, their vacancy tended to get filled either before or after the election, but it would get filled by the president who was an office at the time. And where the president and the Senate were in separate parties, it's closer to a 50/50 proposition. And in at least some cases, I think in at least two, the vacancy was filled by a nominee from the other party, likely nominated out of a recognition that the Senate would not go along before an election in giving the president somewhat of his own party. And this is, I think one of the reasons why, with the exception of her Earl Warren deciding to step down in 1968, because he did not think he would last another four years and he wanted to give President Johnson the chance to name a successor. Justices have generally avoided a retiring in election years because they know what puts an additional stress on the process. And the reason that we haven't been able to avoid it recently was because we had the tragic and unforeseen deaths of both Justice Scalia and Justice Ginsburg occurring in election years. Paul Rosenzweig: So, Adam, what that says to me is this to me is that this is not actually a norm of behavior to refrain, or an abuse of a normal behavior, to refrain from confirming a nominee of the other party during an election year. But what it also says to me, is that that means that what Senator McConnell was saying last year was actually not exactly what he meant. If he'd said we're not going to confirm Justice Garland, because there's an election coming and he's a Democrat that would have been one thing. But he didn't say the second part of that. Was it implicit? Is that kind of a norm binding in any way? And if it's not, what should we make of all of the seeming, I say that advisedly, the seeming hypocrisy of the way that Senator McConnell has approached the question? Adam White: I've spent a lot of time thinking about 2016, like a lot of us have, as it happens many years before 2016, in fact, while I was still in law school, I wrote a law review article about why the Senate didn't have a constitutional duty to vote on judicial nominations. I wrote it during the Bush years when Democrats were filibustering lower court nominations and President Bush was making a sometimes constitutional case for the Senate to vote. And so I wrote that article in which precisely zero people cared about because it was a student note, until Justice Scalia passed away. And then suddenly I spent a lot of time talking with Senate offices and Senate staff about why the Senate didn't need to vote. And I remember being struck by the point that you just highlighted that Republican Senators could have made a pretty straightforward case saying this is divided government. We as Republicans, don't owe a vote on this nominee, and therefore, because president Obama is from a different party we're not going to go forward. And it's true that the Republicans from time to time alluded to the fact of divided government, but the real thrust of their case throughout 2016 was a principled case against election year confirmations. That's precisely why McConnell's flip-flop on it a couple of years ago when he were announced that position was so controversial. It's why Senator Grassley and Graham, their statements are not coming back to haunt them. And so there's no real, I wouldn't say there's a norm or a precedent. In the Senate norms and presses, since our acts are extremely important and they always have been. I think just because of the small sample size and the facts specific nature of those small sample of cases really doesn't point towards a concrete norm. But what I do think is the case is that by binding themselves so tightly to this principle talk throughout 2016, about election year confirmations, I think Republicans really shot their own credibility by suddenly flip-flopping on it. They could have made a case for changing their mind. They could have sort of admitted that they were changing their mind and take the political heat for it. But now they've done throughout 2016, and even in the beginning of the hearings today, as I was listening to Chairman Graham give his opening statement, is they're trying to really rewrite the history of the rhetoric through 2016. It yndermines their credibility. What I worry is that it undermines the credibility of the nominee. It's not her fault, and it shouldn't undermine it, but this is, this hearing, is first and foremost, the opportunity to introduce Judge Barrett, who I think would be a phenomenal justice to the public. And everything Republicans do to undermine their own credibility it corrodes at least a little bit the reputation of Judge Barrett coming into the court. And it'll be one more thing that she has to sort of overcome as she establishes herself as a justice. Paul Rosenzweig: Jonathan, what do you think the right answer is? In a perfect world if one ever existed. Right? Should Garland had been confirmed? Should we countenance election year nominations and treat them as no different? Jonathan Adler: Well, I think if you look at the history of judicial confirmations, you see that we've gone through periods of intense conflict like we are now. And there've been periods of, I guess you'd characterize it at detente. And I prefer the detente model. I prefer the model where, as Hamilton discussed in Federalist 76, the president is picking the justice with an eye towards the justice's overall philosophy and the legacy they will have on the court. And the senators are really there to protect against cronyism or the appointment of someone who lacks qualifications. So if it were up to me, the Senate would be fairly deferential without regard to who the president is. I also think that instead of simply relying upon norms, if we were to have a presumptive schedule about how nominations were to proceed, that would be very beneficial. And in fact, President Bush back in 2002, when at the time the Senate was controlled by the Democrats and they were holding up, quite a few of his nominees to federal appellate courts, and he gave a speech in October 2002 to where he outlined a set of essentially a presumptive schedule. How far in advance a judge should let the White House know they're planning on retiring? How long a White House should wait before forwarding a nominee so that we don't have judicial emergencies and vacancies for too long a period of time? How long it should be before the Senate has its proceedings, and then how long before a vote? And unfortunately that went nowhere. But I think if we had something like that, then we would have an easy answer to how close to the election is too close? And we wouldn't be stuck in the situation where as Adam noted, politicians overstate their case. They try to justify their actions on imaginary constitutional principles that aren't really there. And then when circumstances changed, they suddenly find themselves on the other side of their own arguments, and being politicians and up acting expediently instead of based on principle. And I agree with Adam as well, that it's particularly unfortunate when we're talking about judicial nominees, because we depend upon judicial nominees once they are confirmed of being able to exercise their judicial role, perform their judicial role, with the degree of impartiality. Paul Rosenzweig: So Adam, how should Senators vote on nominees they don't... Adam White: Jonathan makes a, just a great point about the role of the Senate. The classic writing on this from the founding era was Federal 76, where Hamilton is talking about the Senate's role, both on executive appointments and judicial appointments, says that the Senate operates is sort of a silent check to deter, just palpably unqualified nominees. People who are really being appointed because the president's personal biases towards them. Personal relationships with them and so on. And I agree with Jonathan that surely the test can't just be whether each and every individual Senator agrees with that nomination. Just whether that now that that Senator as president would nominate the same nominee. That surely can't be, it's just a challenge in thinking through what is the right standard then, sometimes we talk about an in terms of a qualified nominee. And I'm not sure qualification is really kind of in the eye of the beholder, and I'm not sure how much... That's the challenge with this area is that I think ultimately this calls for some measure of self-restraint by senators. I don't know how much, I just know they need more than they've been giving in the last several cycles of this. But of course the senators in turn are going to answer the voters. And it would be one thing for a Senator say, Grassley, I'm originally from Iowa. So say Senator Grassley says, I don't, I wouldn't nominate Elena Kagan myself, but she was a good Solicitor General, and she's a credible scholar, and she's the president's pick. And therefore, I will vote to confirm her. Well, he'd face a primary challenge. Or maybe not Grassley, so established an Iowa. But Joni Ernst. If she had done that. If she'd been in the Senate, when Kagan was nominated, she surely would have faced a primary challenge. And so it's hard for me to dictate for the senators, what their job ought to be. Except all I can do is sort of from my perch in the ivory tower point out that this is just unsustainable. This just constant war of all against all over judicial nominations is unsustainable. And it's ultimately going to just destroy the credibility of the court. Our constitution has a, not as a political process, for producing nonpolitical judges. That's always been a challenge, a riddle of sorts, a paradox, but I think we're really pushing it beyond the breaking point in ways, which we may profoundly regret years ahead. Paul Rosenzweig: Let me, let me stay with you, Adam, and pick up on that last point. You spoke eloquently about how the Republican majority's machinations have adversely reflected on Judge Barrett, through no fault of her own. And let me ask the broader question. Do these machinations adversely impact the credibility of the court more broadly? And, if so, to what effect the court, as Bickel said, is the least dangerous branch? It has no armies to enforce its judgements. Will we be losing something here? Adam White: Well, on one level, nothing that happens outside of the court can affect the court's credibility. Right? It's good to say that the court makes its decisions. It justifies them with opinions, with written judicial opinions. And that is the way in which the public should assess the legitimacy of the court. And also you can take it another step and say, if the people at a given moment in time, don't like a particular decision, that doesn't mean that the court's work is legitimate because ultimately the courts work has to be graded against the text of the laws they're applying. And on one level, I agree with all of that, but I also think that the ongoing public opinion of the court matters. The framers understood this, and the going back to the Federalist again, Alexander Hamilton in Federalist 78. Yes. He said the court exercises neither force nor will, but merely judgment. But at times in that essay, he points out the dangers of being seen as an uncredible court, and I think the justices need to keep that in mind. It doesn't mean they should change the way they do their work, or it shouldn't change their decisions, but it should change the way they carry themselves, and the way that they justify their opinions, and the way that they conduct their work with one another on the national stage. And the Senate, and the president, politicians all around, to the extent that they say that they are going to nominate judge to carry out certain agendas. As President Trump had said with the Affordable Care Act, to the extent that senators justify their votes for nominees by pointing back to decisions that the judge later made once on the bench, all of this undermines the court's credibility. And I think it's very, very dangerous stuff to play with because it just feeds this public perception that the court is simply, the justices on the court, are simply naked power organs of the judge of the political parties that appoint them. Paul Rosenzweig: You didn't just say naked power organs, did you? I remember that from college in law school and enjoying that very much. So, Jonathan, let me turn back to you with one more question, and then we'll close with a final question about court packing. But my question for you, Jonathan is really about the limiting principle, if any, in the election year reticence to confirm people nominated by a president of the opposite party. I was listening to the opening statements today in Judge Barrett's hearing, and more or less Senator Cruz seem to be saying that in his view, there should never be a confirmation of any nominee from a President of the opposite party, irrespective of when that nomination happened in that president's term. I'm over reading and overstating what he says, but only slightly. Is there any way to limit the progress of this to just this election year? Jonathan Adler: I think it's problematic. And if you look at the history of this idea, there used to be something called the Thurman rule, which was the idea that once the political season begins that confirmations cease, and then Senator Joe Biden in 1992 gave a very extensive speech on the floor of the Senate justifying this idea and his formulation was that there should not be a Supreme Court confirmation, especially when the Senate is held by the opposite party once the political season begins. Now in 1992, the political season perhaps began over the summer. These days it seems like folks start campaigning for president the second a presidential election ends. And I think that then would create a justification for simply not approving any Supreme court nominee at all. I think that's very dangerous. I think for some of the reasons that Adam talked about it undermines the credibility of the court. And I think a much better approach would be, as I noted before, Senators are agreeing on what the schedule for confirmation should look like, and then the way you deal with partisan advantage is you get the senators to agree in year, to agree in say 2021, what the rules will be starting in 2023, or starting in 2025, so they at least all have... are behind the veil of ignorance about who's going to win and who's going to lose. But we can talk about, okay, what would be rules that make sense? How long of a vacancy is too long, et cetera. I think that's a much better way to go then than what Senator Cruz is suggesting. And I would love to think that there are at least a handful of senators that perhaps after this election, could provide leadership of that sort. Paul Rosenzweig: So we would be remiss if we didn't end this discussion of the politics of this nomination before turning to the substance of Judge Barrett's jurisprudence. If we didn't talk a little bit about the court packing controversy, if you will. It seems, to me, fair to say that as with the principle of withholding confirmation in an election year, there is nothing unconstitutional about changing the number of members of the court provided that the Senate and House can do so by the passage of legislation, that's signed into law by a president. Yeah, that too seems to me to be a significant disruption of norms of behavior. The last time that the court size was changed was back in the 1800s. And it also seems to me highly likely that it would be an escalatory step in the combat over the Supreme court. On the other hand, if you're a results oriented person, if Merrick Garland had replaced Scalia there would have been a five to four liberal majority for the last two years, at least until Justice Ginsburg died. So I'll throw it over to either of you or both of you, is seven to six the new five to four? Is orange the new black? Let's start with you Adam. Adam White: If it does go to seven, a 7-6 court, that'll only be a short time before it's a 9-7 court. I just, I think that once we open that Pandora's box, there's no shutting it. And will very, very quickly, within 25 years, have a court that does - that will be much significantly... much much bigger than the current court. In a way that really transforms the work to look even more like a legislature with coalition, and so on. And so I'm profoundly worried about this. One of the things that bothered me about the rhetoric surrounding the nomination of Judge Barrett was people saying, people on the right saying, "You know, the only rule for confirming a judge is that she has to be nominated by the president and confirmed by the Senate, and there's nothing else to it. That's just the rule." And that bothered me so much because it's the same that could be said for packing. You know, the only rule for court packing is you can do it when you have the House and the Senate vote and the president sign it. I just think that's such a nihilistic view of politics. I think it's right that appointing, sorry, packing the court with additional seats would not be unconstitutional in the legalistic sense. But I think it would be unconstitutional or anti-constitutional in terms of the lower c constitution of our government. Both of the laws and the sort of settled expectations that are unsettled only at great risk to the overall governance in our country. And one of the reasons why I've been so worried about Republican rhetoric surrounding this nominee is I worry that it's going to further inflame Democrats, who admittedly, were talking about packing the court for two years now throughout the season of these primaries. But I very, very much worry that Republicans are making them even more inflamed on this point. Paul Rosenzweig: And yet Jonathan we've had changes in the court size. The court was shrunk when Adams left and Jefferson became president to prevent Jefferson from adding people. Is this so unusual, or is it as Adam seems to suggest, a norm of a different color or flavor, then the nominations norm we've been discussing? Jonathan Adler: I think it is a different character. In some respects it's a lot more like the idea of impeaching a judge for disagreeing with their rulings. That was tried once, very early on with Justice Chase, the effort failed. And when, because when folks looked at it very closely, they realized that would be a very bad precedent. That courts could not perform as courts if judges always had to worry about being removed for reaching the wrong result. I think something similar happened with Franklin Roosevelt's court packing plan, during the New Deal that even though he had an overwhelming majority in Congress, when folks really thought about the precedent that would set, they realized that too would undermine the ability of courts to act as courts. And I think that remains true today. The last point I'll make is, is that since the mid 1980s we've been witnessing what happens when you have a cycle of escalating retaliation, where each side figures it has to hit the other one back just a little bit harder when it comes to judicial nominations. And that was for a while confined to the lower courts. And it's been very destructive. It's led to seats going on unfilled. It's led to qualified people being blocked, of both parties. And I think allowing that cycle to replicate itself when it comes to the size and composition of the Supreme Court would be yet another, a bad move down this road. And I think it's something that hopefully, members of the Senate can figure out a way to avoid. Paul Rosenzweig: So we've talked politics a lot. Let's turn to jurisprudence and qualifications. In the conservative judicial pantheon there are lots of different flavors. Though they're both very conservative, Justice Kavanaugh's jurisprudence is very different from Justice Gorsuch, and they're both different from Justice Thomas. And while nobody could call Justice Roberts a liberal, his conservativism is still different again. Perhaps we might call that a flavor of institutionalism. So Jonathan, you've looked at it a little bit. Where does Judge Barrett, or where would you expect Judge Barrett to fall on this spectrum? Tell us about our judicial philosophy. Jonathan Adler: Sure. Well, based on her writings as an academic, and her jurisprudence as a judge on the seventh circuit, I think there's no question that Judge Barrett is on the conservative side of the spectrum. She considers herself to be a textualist and originalist in the mold of Antonin Scalia. For whom she clerked. And she has not only exhibited this in her opinions, she's also given some speeches and lectures about this. She gave one here at Case Western about a year ago, which our law review just published, where she talked about how she understands textualism and what that means. I think that within the range of conservatives on the current court one of the questions that a lot of us have is, you know, is she going to be more on the say Roberts/Kavanaugh side of things in terms of being more institutionalist or pragmatic, or more on the Justice Thomas side of things in terms of her approach to precedent. And my suscpicion is she will actually be somewhere in the middle. That she thinks precedent is important, but does believe that the court sometimes needs to correct its own mistakes. I also think that in terms of the judicial engagement, judicial restraint spectrum there again she may not be as restrained as perhaps Justice Scalia was, or as some conservatives would argue for, but I don't think she's going to be quite the advocate of judicial engagement that some of my libertarian friends would hope for. I think she feels that the judiciary does need to play a more restrained role in its and its actions than do the political branches. And that's certainly what I would expect from her as a justice. Paul Rosenzweig: Adam, in a world where there were no political issues. Is there anything about Barrett's judicial philosophy that ought to spark controversy? That ought to be outside the boundaries of norms given the deferential theories that we've espoused for the Senate, generally? Adam White: No, I don't think so. I have to admit I followed her work less closely on the lower court than I did Kavanaugh and Gorsuch, just because of my general focus on administrative law. Those two are really in the wheelhouse of what I focused on. Barrett's work on precedent has been so fascinating to read over the last few years, in a moment when I think the biggest issue before the court is this almost metaphysical issue of precedent and how it maps on to originalism. It's just such an interesting issue. We saw in the last term in Ramos and in June medical services, and strangely Judge Barrett just seems to be the ideal judge for this moment. In that she has really, as a scholar, thought through the issue of precedent without. pointing at particular precedents and saying, these must go. If anything, maybe the most controversial part, her record is there are a number of people, among the conservative legal movement who have no patience at all for precedent. And I'd say that that's the same for folks on the left, who if given the right moment would with a snap of a finger overturn precedents like Citizens United and so on. And so in some ways, to the extent that the public as a whole is really impatient with precedent, I suppose she is sort of out of step, but I think out of step in the in a good way. Paul Rosenzweig: So let's, you mentioned precedent, it would be odd to have a discussion about this without talking about some of the more significant precedents. For example, Senator Holly has said that he will vote for no jurist who he doesn't think will overturn Roe versus Wade. And he's also said already that he's reached that conclusion about Judge Barrett, not withstanding the fact that she's never spoken directly to the issue. So two questions, or three questions, right? First is that an appropriate ground for a Senator to be base a confirmation vote on? Second, is it likely that he's correctly assessed Judge Barrett or is she, as you just said, Adam, a more respectful of precedent and possibly not going to vote in that direction? How do we assess that problem in this context? Adam White: Judge Barrett has said a few times, I think they've found that a couple of examples over the years where she's criticized Roe V Wade. So that suggests that she wasn't convinced by its merits as original matter. I don't think she's gone so far as to say that the, that as a Justice, she would overturn it. She's probably never spoken in those terms before this year. I suppose she hasn't spoken to those terms. But I will say, speaking as somebody who thinks that Roe V Wade was a profoundly wrong decision. John, I quoted Herbert Wechsler earlier. I'll quote John Hardy Lee right now that the Roe V Wade it's not bad constitutional law, it's that it's not constitutional law at all and doesn't even bother pretending to be. It's such a, it was such a profoundly based baseless decision from the start, and it's never had a coherent...it's never been given a coherent intellectual or legal framework ever since. I would have no sympathy to see it go. I would like to say, given what I said earlier about the Senate, Senators shouldn't have litmus tests, but of course their senators are always going to have some sort of test. I just don't know that always agree with it. And what, even if I were to say, boy, I don't like this particular litmus test. If I would have gone back a hundred years, would I like to think that I would support senators who would only vote for justices who are committed to overturning Plessy V Ferguson? I'd like to think so. And so I don't fault Holly for having a litmus test. What I do fault senators for is for trumpeting their litmus tests so clearly in a way that colors the public's perception of the judge. Jonathan Adler: Yeah, I would say I disagree with Adam on the question of whether senators should have litmus tests. I mean, in Federalist 76, which both Adam and I have invoked, Hamilton predicted that senators would have more parochial and narrow concerns when evaluating judges than what a president. He'd said, that was the nature of committees or collective bodies. And I think we see this. Not just in Holly's litmus tests, but senators before him have announced litmus tests. Senators before him have made clear they want assurance is about specific issues. And I think it's a problem in part because if the dynamic of the process is that a nominee knows that the way to get a senator's vote is to convince the Senator that they will vote a particular way on a particular matter. Then there was a real question about whether or not that nominee can be expected to be impartial when that matter comes before them. Not because they have a judicial philosophy or some sense of how an issue should be evaluated, but because they will have been essentially before a Senator, as a supplicant giving some sort of assurance in return for the vote. That is the sort of interaction whether it occurs in the Senate judiciary committee hearing, whether it occurs in a senator's office, or for that matter were to occur in a private interview in the White House. Which is, I think contrary to what we expect of judges and the nature of judicial oath. So I think it is better to do as much as possible foreclose, these sorts of litmus tests and foreclose senators getting the sorts of answers that could answer these sorts of litmus tests. As for the underlying question, I agree with Adam. I think it's clear that as a Professor Amy Coney Barrett thought Roe was wrongly decided. I think it's clear as a judge on the seventh circuit that she does not think that the existing abortion precedent Casey should be read broadly. But I think once one's actually in the position of making the decision that has potentially national ramifications, I think that has a tendency to clarify and perhaps bring a question into relief and focus that it doesn't have as a purely theoretical or academic matter. And I'm not so quite so sure what you would do if and when that issue is squarely presented to her. Paul Rosenzweig: So one last kind of substantive question about Judge Barrett. In today's Washington Post, Senator Sheldon Whitehouse said that during the hearings this week, Judge Barrett should promise to recuse herself from any dispute involving the election that is coming up later next month involving President Trump. And he cited a case that the Supreme Court itself had decided about 10 years ago called Caperton v. AT Massey, which involved a West Virginia Supreme Court Justice, Brent Benjamin, who had failed to recuse himself from a case involving a judgment against a coal company there after the coal companies, chief executive had spent $3 million helping Benjamin win election to that West Virginia court. The Supreme court, through justice Kennedy said just as no man is allowed to be a judge in his own cause, a man should not choose the judges in his own cause. Adam first, and then Jonathan, given President Trump's nomination of Judge Barrett, but more pointedly his explicit claim that he's expecting the election to be decided by the Supreme Court. And that's one of the reasons he's nominating her. If such a dispute should arise, should Judge Barrett recused herself? Adam White: So I don't think I buy an over the top across the board rule, limiting justices from hearing cases involving the administration that appointed them. I'd have to go back and see exactly what White House was calling for, but I don't recall. Paul Rosenzweig: Well, he didn't say that he said there was a case of imminence. He said it was clearly different from Gorsuch and Kavanaugh, and that it involved Barrett because she's being nominated and presumably will be confirmed, just days before or after the election happens with the explicit premise, at least in Trump's public. Adam White: Yea I don't think, she should commit to recusing right now. I do think though that she ought to look very closely at it. I have to be very blunt. I hope she recuses from it. I think that given what President Trump has said about this nomination, what other Republicans have said about the need to confirm a judge for the sake of having a justice in place for election disputes maybe not going so far as saying that this judge would vote in their favor, but just tying the appointment so closely to the schedule of the elections I think that's profoundly dangerous. I think that it would be impossible for Judge Barrett to rule in favor of President Trump, even if he's right on the merits of a case without severely damaging her own credibility and the credibility of the court, given all the things that President Trump has said around her appointment. And so she should, I would not say she needs to commit to recusing now. But I hope that she will recuse if it comes to that in a post-election case. Paul Rosenzweig: Jonathan? Jonathan Adler: Yeah, I think it's a hard call. I don't take seriously that the Caperton decision requires her recusal in this sort of case. And I don't think any justice on the current court believes that either. Justice Ruth Bader Ginsburg made comments about Trump prior to the election, his election in 2016 and indicating what she wanted the outcome to be and when a case involving the Trump campaign came before the Supreme court, she did not recuse of there, even though that I think would have been a fairly clear case for recusal. The other reason, I think it's a hard case is that, and we've seen this at the state level, the idea that the comments of a third party or a litigant can force the recusal of the justice create a really bad dynamic. So I think that under normal circumstances, I think the argument for recusal would be weak. That said, like Adam, I do worry that like so many thing the current situation at least poses the question. And that the President has said some things about this particular confirmation and this particular election that at least pose the question. And so I agree that she should not commit you're recusing now. But it is possible that a case could arise where a recusal would be the proper choice for her to make. Paul Rosenzweig: Okay gents. Lightning round for predictions. Adam, what do you think's going to happen to the nomination confirmed before January 20th? Withdrawn? What? Adam White: Confirmed before the election. Paul Rosenzweig: Jonathan? What role do you expect the court to play in the coming election? More than Bush v Gore or less? Jonathan Adler: Less. I think the court will have something to say about a handful of States, but I do not think the court will be credited or blamed for determining the outcome. Paul Rosenzweig: Good deal. So we always try and end these podcasts with some good news to make the week a little better. And I at least defined good news as a case in which the rule of law wins. This week's good news comes from Texas. The attorney general there is Ken Paxton. Last week in a one page letter, seven executives from the upper tiers of his office said they were seeking an investigation of Paxton quote "in his official capacity as the current Attorney General of Texas." Letter said that each had knowledge of facts relevant to potential offenses of law and provided statements to law enforcement regarding Paxton's alleged criminality. Now, I don't know the truth of these allegations, but upholding your oath and putting your career on the line to do what you think is right is good news. Kudos to those seven executives in Texas. So that's a wrap for our show. Thank you all for joining us, we'll be releasing a new show every Monday. This episode, and all future episodes are available on Apple, Spotify. Stitcher, and anywhere else you can find your podcasts to download. We hope you'll subscribe. We also archive our podcasts@checks-and-balances.org. If you want to find them there, you can send me feedback at podcast@checks-and-balances.org. That's with hyphens between the words. Join us next week as we are joined by two tax professors who are going to talk about Donald Trump's tax returns and the revelations that have come out in the New York Times in the last couple of weeks. Thanks again to Jonathan Adler and Adam White for joining us on today's podcast. I'm Paul Rosenzweig, your host. Remember as Pope John Paul II said, "When freedom does not have a purpose. When it does not wish to know anything about the rule of law engraved in the hearts of men and women. When it does not listen to the voice of conscious, it turns against humanity and society." Thanks for joining us.