Washington Wednesday - One robe, two robe, red robe, blue robe

NICK EICHER, HOST: It’s Wednesday, the 23rd of September, 2020. Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. First up: the fight over the Supreme Court.

Justice Ruth Bader Ginsburg’s death on Friday reset the presidential race and threw Washington into an uproar. As you just heard, President Trump plans to announce on Saturday his pick to fill the vacant Supreme Court seat. 

Here’s White House Chief of Staff Mark Meadows explaining the president’s decision.

MEADOWS: What he’s looking for is someone who will uphold the Constitution. Look at those principles that are the bedrock of our foundation as a nation, and making sure that that court is one that does not make the laws but they actually just implement and interpret the laws in a fair and constitutional way.

EICHER: Interpreting the laws sounds pretty straightforward. But, as we all know, it isn’t. If it were, the confirmation hearing would emphasize a nominee’s legal qualifications. Instead, it’s almost solely about the nominee’s stance on hot-button social and cultural issues. 

In other words, the confirmation process doesn’t address whether a nominee will uphold the Constitution but rather,  how he or she will resolve life’s big questions. 

The makeup of the Supreme Court has become as important to the American political process as which party holds the House and Senate. And just as partisan, as Senator Mitt Romney of Utah noted on Tuesday.

ROMNEY: My liberal friends have over many decades gotten very used to the idea of having a liberal court. And that’s not written in the stars. And I know a lot of people are saying, gosh, we don’t want that change. I understand the energy associated with that perspective. But it’s also appropriate for a nation which is, if you will, center right, to have a court which reflects center-right points of view.

REICHARD: The Founders did not envision the Supreme Court as a partisan body, so how did it get to this point?

Well, it’s Washington Wednesday, or perhaps we should say, Supreme Court Wednesday! Joining us now to talk about the current political drama is James Todd. He’s a political science professor at Palm Beach Atlantic University, a Christian college in South Florida. His research focuses on Supreme Court influence in American society.

Professor, thanks so much for joining us today!

JAMES TODD, GUEST: Thank you. 

REICHARD: Let’s go back to 2018 when Justice Brett Kavanaugh’s confirmation hearing was going on. Senator Ben Sasse of Nebraska made some comments about the court then that are even more applicable now today.  Let’s have a listen.

SASSE: The hysteria around Supreme Court confirmation hearings is coming from the fact that we have a fundamental misunderstanding of the role of the Supreme Court in American life now. Our political commentary talks about the Supreme Court like they are people wearing red and blue jerseys. That’s a really dangerous thing and, by the way, if they have red and blue jerseys, I would welcome my colleagues to introduce legislation that ends lifetime tenure for the judiciary. Because if they’re just politicians, then the people should have power and they shouldn’t have lifetime appointments.

So, how about that? Do Americans have a fundamental misunderstanding of the Supreme Court?

TODD: I believe so. And it’s the court’s fault, really, for getting into such contentious areas of social policy and circumventing legislative majorities on these kinds of contentious issues. So, Americans, of course, now look to the Supreme Court for that sort of policy making role and so the focus of a lot of political activity in our society is directed toward judicial nominations, judicial confirmations.

REICHARD: The court’s outsized influence means that the reactions to any perceived shift in power also are outsized. Senate Minority Leader Chuck Schumer said if Republicans move forward with a confirmation process, quote “nothing is off the table next year.” That’s a pretty vague statement but could be a reference to ending the filibuster rule for all votes, not just judicial appointments.

Congressman Jerry Nadler had a more direct warning. He said if the current Senate votes to approve President Trump’s nominee, the next Senate should move to expand the court beyond its current nine members. Democratic Presidential candidate Joe Biden previously said he opposed the concept of “court packing.” But do you think that could be a very real debate we see in the next four, or even eight, years?

TODD: I tend to think that cooler heads will prevail on that. I believe that’s just overheated rhetoric for the moment, for the election season. I don’t think any kind of court packing plan would get off the ground, which of course could be filibuster. Unless the filibuster is abolished. But I don’t think that’s going to happen either. So, I think that’s just rhetoric for now. I don’t think we’ll have a serious debate about expanding the number of justices on the court. We’ve been at nine since 1869 and the one attempt to make that number larger, since 1869, did not even go well for Franklin Delano Roosevelt who was very popular otherwise and had lots of support in the Congress, but he couldn’t get support for that. So, if FDR couldn’t do it, I don’t think a President Joe Biden could.

REICHARD: Both campaigns are going to use the vacant Supreme Court seat as their loudest rallying cry. I don’t think it’s an exaggeration to say this is the issue that will decide the presidential race. So, which candidate do you think benefits most from that?

TODD: I don’t know. The default setting for most analysts—including me—is that judicial politics tends to help Republican candidates. It seems as though Trump has a basis of support amongst those who care deeply about the Supreme Court and about changing Roe v. Wade and other decisions that sort of reflect prior judicial activism. And so I believe that the conventional wisdom that I’m going to stick to is that judicial politics helps Republicans. I think the Kavanaugh scenario in 2018 helped the Senate Republicans expand their number in the 2018 midterm elections, despite the fact that it was a very good year for Democrats otherwise. So, I’m going to say small, small advantage Trump here because the only thing that’s not a larger advantage Trump is because it is Ruth Bader Ginsburg we’re talking about. As a progressive icon, maybe motivates people to look at the situation a little more closely than they otherwise would on the left.

REICHARD: The court’s role, both in politics and over American society, has continued to grow for decades. Do you see anything that might reverse that trend, or is it only going to get worse?

TODD: I never say never to any trend reversing. But I would say judicial politics is here to stay because judicial review is here to stay. The idea that the Supreme Court should protect minorities, especially in the political process, from the political process. I don’t think decisions like Obergefell are going to be reversed—the same-sex marriage opinion from 2015. And so I think judicial politics is here to stay. Therefore, confirmation battles are going to be political. I’m not sure they’re all going to be as political as this one, because they don’t always present the circumstance of replacing a justice ideologically speaking. In other words, the balance of power is not the issue in a judicial nomination and confirmation dispute. It just happens to be this year. 

One thing that we could consider is it’s hard to speculate about these situations until we know who the nominee is, first of all. So, to the extent that the confirmation process becomes a referendum on someone, a person who is put forward by a president to serve on the court, it’s hard to speak abstractly about the situation. I feel as though the idea that principles enter into this that would bind future Senates, future presidents is futile because really the only two things that matter come from the Constitution. The president nominates and if the Senate majority is so inclined, the Senate confirms. And that’s really the end of the matter when it comes to judicial confirmations. The rest is just noise.

REICHARD: James Todd is a political science professor at Palm Beach Atlantic University who researches the Supreme Court. Thanks so much for joining us today.

TODD: I enjoyed it. Thank you for having me.

(AP Photo/Manuel Balce Ceneta, File) In this June 30, 2020, file photo the U.S. Supreme Court is seen in Washington. 

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