On the Issues with Michele Goodwin

11. Trump Stacked the Courts. Now What? (with Nan Aron, Joan Biskupic and Rick Perlstein)


October 5, 2020

With Guests:

  • Nan Aron, the founder and president of Alliance for Justice, the foremost progressive organization providing research and resources on federal judicial nominees. She is the author of Liberty and Justice for All: Public Interest Law in the 1980s and Beyond.
  • Joan Biskupic, a full-time CNN legal analyst who has covered the Supreme Court for 25 years and is the author of several books on the judiciary. Before joining CNN in 2017, she was an editor-in-charge for legal affairs at Reuters, and the Supreme Court correspondent for the Washington Post and USA Today. She most recently published a biography of Chief Justice John Roberts (The Chief: The Life and Turbulent Times of Chief Justice John Roberts, spring 2019).
  • Rick Perlstein, the author of the recent release Reaganland: America’s Right Turn 1976-1980.   He is a contributing writer at The Nation, former chief national correspondent for the Village Voice, and a former online columnist for the New Republic and Rolling Stone. His journalism and essays have appeared in Newsweek, The New York Times, and many other publications.

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In this Episode:

President Trump has appointed and confirmed a near record number of judges to the federal bench in four years. In fact, nearly one-third of all active federal judges on the U.S. appeals courts have been appointed by Trump.  On the federal courts of appeal, the president has not appointed one African American and only one Latino judge. 
These issues are magnified by Trump’s recent nomination of Judge Amy Coney Barrett to fill the vacancy on the Supreme Court left by the passing of Justice Ruth Bader Ginsburg—a nomination made 38 days before the Election Day, during a time in which some voters across the country are already in the process of voting. The passing of Justice Ginsburg and the promise of confirmation hearing, even during COVID and while the president is under medical surveillance, has now caused an uproar.

How did we get here? And what can we do to bring balance back to the U.S. judicial system?

Have something to share? Drop us a line at ontheissues@msmagazine.com.

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00:00:05 Michele Goodwin: Welcome to “On the Issues with Michele Goodwin” at Ms. Magazine, a show where we report, rebel and tell it like it is. On this show, we center your concerns about rebuilding our nation and advancing the promise of equality. Join me as we tackle the most compelling issues of our times. On our show, history matters. We examine the past as we pivot to the future. On today’s show, we focus on the question: Trump stacked the courts. Now what? 

On September 26, President Trump announced that he’s nominating Judge Amy Coney Barrett to fill the vacancy on the Supreme Court left by the passing of Justice Ruth Bader Ginsburg. This nomination was made 38 days before the November 3rd election. With the passing of RBG and the promise of this nomination has caused an uproar in light of Republicans’ refusal to consider President Obama’s nomination of Merrick Garland in 2016, eight months ahead of the 2016 election.

In fact, President Trump has appointed and confirmed a near record of judges to the federal bench in four years. As of the recording of our show, President Trump nominated 269 judges, and 217 of them were confirmed, meaning that almost a third of all active federal judges on the U.S. Appeals Courts are Trump appointed. These changes have raised, and continue to raise, serious concerns about the future of the judiciary, or federal courts, especially considering that federal judges have a lifetime appointment.

In Judge Barrett’s case, she’s 48. How did we get here? Helping us to sort out these questions and how we should think about all of these matters and more, our very special guest. 

I’m joined by Nan Aron. She is the founder and president of the Alliance for Justice, the foremost progressive organization providing research and resources on federal judicial nominees. She is the author of Liberty and Justice for All: Public Interest Law in the 1980s and Beyond.

I’m also joined by Joan Biskupic. She is a full-time CNN legal analyst who has covered the Supreme Court for nearly 25 years and is the author of several books on the judiciary. Before joining CNN in 2017, she was an editor in charge for legal affairs at Reuters and the Supreme Court correspondent for the Washington Post and USA Today. Her most recent publication is a biography of Chief Justice John Roberts. It’s called The Chief: The Life and Turbulent Times of Chief Justice John Roberts, out in paperback this week. 

I’m also joined by Rick Perlstein. He’s the author of the recently released Reaganland: America’s Right Turn 1976-1980. He’s a contributing writer to The Nation, former Chief National Correspondent for the Village Voice, and a former online columnist for the New Republic and Rolling Stone. His journalism and essays have appeared in Newsweek, the New York Times, and many other publications. Welcome to our Ms. Magazine show.

The confirmation process has become quite contentious, especially in the wake of Merrick Garland not getting his day before the Senate. In 2016, we had Mitch McConnell, Chuck Grassley, John Cornyn and Lindsay Graham standing in opposition to Merrick Garland getting a confirmation hearing. In fact, let’s listen to what they had to say.

00:03:32 Mitch McConnell:

Look to history. We haven’t filled a vacancy created during a presidential election year in 80 years. You’d have to go back to 1888, Grover Cleveland in the White House, to find the last time a Senate, controlled by the opposite party of the president, confirmed a justice in a presidential election year.

00:03:50 Chuck Grassley:

The people deserve to be heard, and they should be allowed to decide, through their vote for the next president, the type of person that should be on the Supreme Court. This is a reasonable approach, it is a fair approach, and it is a historical approach.

00:04:08 John Cornyn:

The president exercised his unquestioned authority under the Constitution to nominate somebody to this vacancy, but that same Constitution reserves to the United States Senate, and the United States Senate alone, the right to either grant or withhold consent to that nominee.

00:04:28 Lindsay Graham:

This is the last year of a lame duck president, and if Ted Cruz or Donald Trump get to be president, they’ve all asked us not to confirm or take up a selection by President Obama. So if a vacancy occurs in their last year of their first term, guess what? You will use their words against them. I want you to use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsay Graham said let’s let the next president, whoever it might be, make that nomination, and you could use my words against me, and you’d be absolutely right.

00:05:11 Mitch McConnell:

One of my proudest moments is when I looked at Barack Obama in the eye and I said, Mr. President, you will not fill the Supreme Court vacancy.

00:05:20 Michele Goodwin:

Let me turn to you, Nan. President Trump has successfully nominated, and had confirmed, more federal judges than any other president, save George Washington, and as of July 2020, he had nominated, and the Senate had confirmed, about 53 federal appellate judges, none of them Black, maybe one Latino. How did we get here?

00:05:45 Nan Aron:

We got here because the Republican Party prioritizes the federal judiciary and has done so going back decades, really beginning with Ronald Reagan’s run for second term where he couldn’t get anything through Congress. Couldn’t get anything through executive order, and he said, you know what?

I’m going to start appointing judges who I will make sure will carry out…implement my agenda on the federal bench, and at that same moment, he called upon the Republican Party, which actually came up with language in its platform calling for the appointment of judges who were opposed to abortion, opposed to civil rights, favor prayer in school.

And from that time on, the issue has been a galvanizing one for the right wing base of the Republican Party, particularly the Evangelicals who, since 1973, have sought to overturn Roe versus Wade, and we see that same fervor carry over today. It’s why Donald Trump has moved so quickly to name Amy Coney Barrett to the Supreme Court, hoping that she will also energize the right wing base of the party to come out and vote on Election Day.

00:07:18 Michele Goodwin:

So, Nan, based on what you’re saying, this seems predictable. So, you know, what are your insights into how and why the Democrats perhaps have failed to see this coming or that the Democrats did see this coming, but there was nothing that they could do?

00:07:35 Nan Aron:

I think Democrats have seen this coming for a while, but certainly, we have not seen three and a half years of appointments like the Trump Administration, and I do think that have…Democrats have got religion at this point. Let’s hope they’ve got religion at this point.

They’ve seen judge after judge sent to the Senate, confirmed by the Senate, whose records are very similar. They all share a desire to turn the clock back on our rights and liberties and freedoms. Senators understand that, and particularly now, in the middle of a pandemic when Republicans are unable to pass legislation that will serve the needs of the American people, and the only thing they come back to Washington to do is confirm judges to the federal bench.

The other thing to mention is Republicans know long after Donald Trump leaves the White House, his judges will be on the bench making rulings that will really threaten the rights of Americans for years to come. I would say Democrats get it, and we will see a very energized Democratic caucus confronting a Supreme Court nominee, Amy Coney Barrett, over the next several weeks.

00:09:10 Michele Goodwin:

Rick Perlstein, it is such a pleasure to have you on the show today. Your book, Reaganland, is absolutely superb, and it builds upon your prior works, chronicling the rise of conservative movements in the United States. What’s interesting about the book is that you spent a considerable amount of time also focusing on President Jimmy Carter. So I want to hear more about the origin story and our listeners to hear more about Carter’s origin story and what made his rise to office possible, and if you could also talk about why he was frowned upon by the DC establishment? What all did that mean?

00:09:48 Rick Perlstein:

You can’t understand the ascension of Jimmy Carter to the presidency without understanding Watergate and what Watergate did to the American people’s confidence in their elites in Washington. Jimmy Carter was a guy who ran for president on the slogan I Will Not Lie To You. Of course, previously, the presumption was that anyone running for president would not lie to them.

President Jimmy Carter. (Wikimedia Commons)

But of course, Richard Nixon did away with all that, and if you add to that the humiliation of America losing its first war in Vietnam and the idea that this was really a moral stain on the country, Jimmy Carter was presented to the public almost as a religious figure that would redeem the moral self of America. There was a poster you could see at the 1976 Democratic Convention in New York that had Jimmy Carter with a big beard, and it says J.C. can save America.

00:10:42 Michele Goodwin:

It looks like a Jesus Chris poster.

00:10:44 Rick Perlstein:

That’s right, and one of the ways he did that, one of the ways he, you know, won the presidency was he said I’m not a lawyer and I’m not from Washington, and he brought a team with him, much as Bill Clinton did from Arkansas, that were all from Georgia and had very little experience in the federal government. They were called the Georgia Mafia. You know, they were mocked as these good old boys. You know, his main man, his chief of staff Hamilton Jordan would wear cowboy boots and jean jackets.

And the permanent DC establishment class, you know, the fabled Georgetown cocktail parties, despised them. The night before the inauguration, there was a big gala concert at the Kennedy Center, and Sally Quinn complained the next day in her column that there was no “royal feeling” in the room. So the idea that, you know, America had surrendered its seat of power to bumpkins was something right off the bat that Jimmy Carter had to fight against.

00:11:44 Michele Goodwin:

Rick, I’d like to stay on this line just a little bit more, this Jimmy Carter origin story, because, as it turns out, during his administration, he had an opportunity to nominate a number of judges to the federal bench, and it was something that he looked on with a bit of reserve. It stands in tremendous contrast to what it is that we see today, but I’d like you to help our listeners understand what exactly he was cautious about. Why was Jimmy Carter so reserved on this question, even though he had a tremendous opportunity to shape the direction of the federal bench?

00:12:19 Rick Perlstein:

Another aspect of the Carter presidency was that he had this instinctual contempt for the muck of power politics, right? Log rolling, all that kinds of stuff. You scratch my back, I scratch yours. He absolutely had this kind of hard shell Baptist contempt for that, and that came out in his ideas about filling the federal judiciary. In 1978, a law was passed expanding the federal judiciary by 36 percent, a number of judges. He had to appoint 150 new judges, and any other president in the history of the United States would’ve been thrilled at the prospect of putting his stamp on the federal judiciary for a generation, right?

00:13:04 Michele Goodwin:

So what problem did Carter have when he was doing that, because you’re absolutely right?

00:13:06 Rick Perlstein:

Yeah, he had this contempt for the idea of wielding power. He wanted to be above all that, and he literally wrote in his diary, this is a power I certainly don’t want. In this four-year term, I will have appointed more than half the total federal judges in the United States. So that really kind of sets the table for a 180-degree turn when Ronald Reagan is elected.

00:13:30 Michele Goodwin:

And that is a dramatic difference from what it is that we’re seeing today. I mean, it’s just worth noting that when Carter was in office, he nominated to the court and had confirmed six women to the federal appellate judiciary, the first woman in the 2nd Circuit, 3rd Circuit, 5th Circuit, as well as the 10th, 11th, and DC Circuits.

Many will know that Justice Ruth Bader Ginsburg, her first court appointment was actually through Jimmy Carter, and she wasn’t the first on the DC Circuit that he had appointed, and it’s also worth nothing that, prior to that time, there had only been two women that had been appointment to the federal appellate judiciary. One dating back to the 1930s, 1934, in fact, and another in 1968. So Carter plays a pivotal role with actually starting women in the pipeline.

So I want to turn this question open to all of the guests, and I want to hear from you, too, Joan, which is that, you know, what is it about after that period of time where we begin to see this sort of organization that’s being made against Roe v. Wade, and I would like to hear more about whether that’s a Carter backlash or it’s just a sort of where our country was in the time, because Roe v. Wade becomes a pivotal issue with regard to our courts.

00:15:01 Joan Biskupic:

Well, you know, it’s much more than a Carter phenomena, although Rick nicely lays out, it just covers part in that there. You remember what happened…Ronald Reagan ran on a sort of moral majority platform with many other elements to it. You know, obviously, on the economy, too. So you had Roe v. Wade from 1973 did not experience the kind of backlash we saw for several years, until, essentially, the Reagan campaign.

Justice John Paul Stevens liked to remind everyone that during his confirmation hearings in 1975, he was not asked a single question about Roe v. Wade, which was only two years earlier. So you can see that that was building, that sort of moral question, social issues, the culture wars, school prayer, abortion.

All those things that Ronald Reagan runs on as part of his campaign in 1980 are things that only can be addressed by the courts, they say. So the courts become a big issue, and the Federalist Society is founded just a year and a half after Reagan’s inauguration by young people who completely buy in, and John Roberts himself heard Reagan’s inaugural and heard it, as he says, a call to arms.

So you had the combination of what Jimmy Carter stood for, which, in hindsight, we can all see the great benefit of diversifying the bench, putting on someone like Ruth Bader Ginsburg, and starting to want a judiciary that did not look just like him, to President Reagan’s emphasis that really saw the judiciary in a different way, as a way to have his ideological stamp on the law, and Rick and Nan referred to this lightly, but I can’t overstate it enough, that presidents have now come to realize that it’s the courts that are sort of a partner with them to ensure that their legislation then survives.

And Donald Trump and his men, and they are mostly men, understand that innately, that it’s not just the culture wars that they want to win, but it’s also what’s to become of government. And the conservatives that Nan first tracked on the Supreme Court and lower court benches are much different than our current ones. The current ones have much more of a religious agenda, and they also have much of a diminished government agenda than before.

00:17:47 Michele Goodwin:

So, picking up on that, Nan, I’d love to build from what Joan was just sharing with us, which is that, look, this wasn’t just about Roe v. Wade. Roe maybe was a central part of this, but let’s be clear, in that 7 to 2 opinion, we’re talking about Justice Blackmun, who was a Nixon appointee nominee, as well as 5 of the 7 having been Republican nominees. So this wasn’t just abortion. It was also race and other things. Nan, can you help us out a bit more on that?

00:18:17 Nan Aron:

One thing I just want to remind people, it was Jimmy Carter who signed an executive order, and it was one of the best things Jimmy Carter did, calling for the appointment of women and people of color for federal judgeships, and he actually created a structure for people to recruit candidates for the bench.

It’s something that’s not well known about Carter, but it was certainly one of his, I think, greatest accomplishments. So, going back to the ‘80s, we have a very lively, energized coalition of Evangelicals seeking to overturn Roe versus Wade, encouraged by Ronald Reagan, but we have something else at the same time, and that is, going back a little, early 1970s, Lewis Powell, who became a Supreme Court justice, happened to write a memorandum.

It became a very well known persuasive memorandum calling upon the business community, the Chamber of Commerce, to acknowledge and realize that some of the judges that were appointed by previous presidents were ruling in favor of the environment, consumers, women, and Lewis Powell basically sent out a call to arms. It said, business community, get serious.

The federal courts need to have your attention and your financial resources. So you basically, from that point on, had two forces in America. You had the corporate America, and you had the right wing base of the party working together, seeking different agendas, but all focused on the federal judiciary, and I should just say Democrats…because you raise the issue of the Democrats.

Democrats, it really didn’t occur to them I think until the late 1980s that something massive was afoot with transforming the judiciary. They preferred to appoint judges based on patronage. Their donors, their political friends, their fundraisers, but I think that the wake-up call came with the nomination of Robert Bork in 1987 to the Supreme Court. They suddenly realized, whoa, we’re about to see a takeover of the federal courts.

00:21:02 Michele Goodwin:

Rick, you were going to join in there.

00:21:05 Rick Perlstein:

Yeah, it’s really interesting to learn that during the Nixon presidency and during the Ford presidency…and don’t even talk about the Eisenhower presidency when he, you know, nominated Earl Warren, which, of course, drove the right apoplectic. The Republicans also saw appointing judges, especially at the lower levels, as a patronage function. The role in the entire governmental system was 180 degrees different. It was basically a way to do favors for senators, right?

They were the ones who put them forward, and of course, the Republican coalition was full of liberals and moderates. So, you know, you would see liberal Republican judges get nominated, and this disgusted the Reaganites who were extremely ideological, and another important watershed was not just Ronald Reagan winning the White House in 1980, but even more importantly for the subject we’re discussing, having the Senate taken over by the Republican Party for the first time since the 1950s.

And this sent in motion a revolution, the idea of an ideological litmus test for judges, which you never really saw. I mean, I report a scene at the Republican Convention in which a state delegation was having a debate over the plank which says that the Republican Party will work for the appointment of judges at all levels of the judiciary who respect the traditional family values and the sanctity of innocent human life.

And Senator Percy, who’s a Republican liberal, says that’s the most outrageous thing he’d ever seen, right? It’s completely routine now, and a judge from Cook County, you know, Illinois, Chicago, my hometown, wondered how the litmus test had gone from do you support the United States Constitution to if you’re not against abortion, you can’t be a judge.

And that was operationalized in the White House and in the Justice Department. It used to be that the screening of judges was very pro forma. Done in the Justice Department. The White House, under Attorney General William French Smith and Reagan and all his aides decide they’re going to centralize this in the White House. They have daylong interviews with candidates.

They have computer banks full of everything they’ve ever said about anything, and this was completely unprecedented, and you know, Herbert Brownell had been Eisenhower’s attorney general. He called this whole operation, which, again, is totally routine now, shocking, and Griffin Bell, who had been Jimmy Carter’s attorney general, said I don’t believe you should ask a judge his views because he’s likely to have to rule on that. I mean, it’s a sea change.

00:23:39 Joan Biskupic:

That’s something else that’s changed here. In 1980, yes, the Senate switched Republican, but then it went back to Democrat in ’86, which is why Robert Bork then gets blocked, but what’s different today is the partnership that Donald Trump’s White House has with Mitch McConnell. Mitch McConnell is playing a much larger role in who gets on and who gets off of the lower courts, obviously.

But you know, we saw it so clearly in 2016 when he blocked Merrick Garland during the final year of President Obama, and that was another deliberate strategy that I think that, again, Nan, you might agree, was sort of lost on Democrats early on. Don McGahn, who was White House counsel as soon as Donald Trump came in, established this partnership with Mitch McConnell.

They had been old friends from before, and instead of having any kind of committee, instead of working with a great group of people to screen folks, whether for patronage or ideology, they essentially set the terms of who they wanted, and that’s why that machine got rolling so much faster during the Trump years than the prior ones, although, obviously, Reagan was lightning fast in many ways. So I think that’s another key piece here, is the Senate element, especially in the hands of Mitch McConnell.

00:25:09 Michele Goodwin:

Well, let’s pick up on that, and Nan, to just pivot back just one last time and then we’re going to be all into the current hot space that we’re in today, which is, I’m wondering what cements this? What involved racial politics in this? What was the sort of scene of the United States that gets us to this point where then Reagan’s able to be successful with this new trajectory?

I mean, I can’t help but notice that a central part of the launch of his campaign was in Philadelphia, Mississippi, and Philadelphia, Mississippi is only known for, to most people, the tragic murders of Goodman, Chaney, and Schwerner, three young people in their 20s who attempted to help Black people vote, and of course the rise of the welfare queen rhetoric and so much more. So what else was it about that time that really cements what Reagan is able to do?

00:26:04 Nan Aron:

You had, on the Senate Judiciary Committee early on, some senators from the south, Democrats. I remember Howell Heflin, a former State Supreme Court I think Justice from Alabama. Very conservative on the court, but I will say this. That during that period of time, the Senate was very cognizant of racial politics. For instance, if a judicial nominee belonged to a club, an exclusive, private club that did not permit Blacks or Jews, that person did not make it onto the federal bench.

So there were some important markers. I do recall a nominee being shot down because he didn’t like the fact that people in a store that he was frequenting were speaking Spanish. I think there was, particularly we got to remember Joe Biden was either chair or ranking on that committee. There was a sense that racial politics was extremely important and groups like the Legal Defense Fund and the NAACP, like today, but then were very active on judgeships.

We just saw Donald Trump put up a candidate to a district court seat in North Carolina who led the effort in that state around voter suppression, and we and civil rights groups had to move heaven and earth to force this lawyer to withdraw from his judgeship, but today, very sadly, you see so many men…

So many men, as Joe would say, very few women go on the bench who have appalling records, not just on abortion, religious freedom, but on voting rights, workers rights, and civil rights. In fact, there is not one, not one of the 200 judges appointed by this president who you can say has a record that would, on the court, advance the rights of people of color.

00:28:44 Michele Goodwin:

I listen to what you say. That, for those who had belonged to segregated clubs and what not, that would be a ding. To what extent did people who have been nominated learn how to pivot, learn how to say the right things, do the right kinds of things, even if their own backgrounds have not necessarily shown a commitment to civil liberties and civil rights?

00:29:11 Nan Aron:

I would just say your audience would be aghast that so many of the Trump nominees refused at their hearings to say that they agree with the holding of Brown, and that to me was absolutely breathtaking. If you go back in time, had a candidate for the federal bench said that he or she did not believe in the holding of Brown, they simply…their nomination would not move forward. Now, with this Republican hold on the court, these people are confirmed easily.

00:29:53 Michele Goodwin:

Nan, to your point, it is troubling, individuals who’ve been nominated to the federal bench, but who show no commitment to the precedential value of Brown v. Board of Education, though it was really the most pivotal decision of the 20th century. Thank you so much for raising those issues. I know that you have to go brief senators now, but I thank you for being on the show today. Joan, in your book, The Chief: The Life and Turbulent Times of Chief Justice John Roberts, he’s had to come out recently and say that there is no such thing as Trump judges, Obama judges, and so forth. What led up to that?

00:30:34 Joan Biskupic:

Well, it was Donald Trump himself, because John Roberts was once a judge picker for George H. W. Bush. So John Roberts knows how people get on the court, but now that he’s chief justice, as he has been since September of 2005, he’s got to worry about the integrity of the institution, especially in the face of a president who’s constantly challenging all manner of norms and taking on judges by individual names.

And when he made that statement in November 2017, was his first remark about judges, and then the following year in ’18, it was because Donald Trump had said, oh, that ruling is just by an Obama judge, and I might be off by one year on that one. I just remember it was during Thanksgiving because he said we need to be thankful for an impartial judiciary.

But he was prompted by Donald Trump and all of his complaining about individual judges and Donald Trump acting as if any Democrat appointee, he would automatically rule against him, and any appointee of his own would automatically side with him. So it was a helpful statement that John Roberts put out in some ways, because lower court judges…

Yeah, it must’ve been in ’18 because lower court judges have been pleading with him and others, you know, in the administrative office of the courts for some sort of statement because they were feeling under siege, but the truth is that, you know, the appointees of Bill Clinton are not the appointees of George W. Bush. You’re going to have differences, but Donald Trump acts as if he owns his appointees, and he’s automatically going to have someone on the opposite side.

00:32:22 Michele Goodwin:

To your exact point, Joan, let’s listen to a clip from District Judge Carlton Reeves as he was speaking to the University of Virginia School of Law on the occasion of receiving an award, but he spoke exactly to the point that you’re making about the attack on federal judges. Let’s take a listen.

00:32:40 District Judge Carlton Reeves:

When lawmakers say we should get rid of our judges, you can hear segregationist senators writing bills to strip our courts of their power, and when the executive branch calls our courts, in their words, stupid, horrible, ridiculous, incompetent, a laughing stock, and a complete and total disgrace, you can hear the slurs and threats of executors, like George Wallace, echoing into the present.

I know what I heard when federal judge was called very biased and unfair because he is of Mexican heritage. When that judge’s ethnicity was said to prevent his issuing fair rulings, when that judge was called a hater simply because he is Latino, I heard the words of James Eastman, a race-baiting politician, empower the falsehood of white supremacy, questioning the judicial temperament of a man solely because of the color of his skin.

00:33:48 Michele Goodwin:

Joan, I want to ask you about the perception of the court as being partisan now. There’ve always been ideologies that’ve been expressed by members who are on the courts informed by their backgrounds and so much more, but there is real concern now that the court has turned into a political branch of government. Can you tell us more about that?

00:34:13 Joan Biskupic:

Well, two things, Michele. First of all, I think there’s reason to be concerned. It’s not just Donald Trump, who I will get to, but you know, since 2010, the court was divided 5 – 4. The four liberals were Democratic appointees, and the five conservatives were Republican appointees. So you already had these kind of partisan battle lines drawn that way.

And now with the expected addition of Amy Coney Barrett, who will be a Republican appointee joining the conservative side, you’re going to have a deeper split identified both by ideology and presidential benefactor, which will have a partisan cast. Again, you know, part of this was reinforced, certainly, by the Bush v. Gore decision, the 5 – 4 decision in 2000, but I do think that you see true elements of partisanship along the way from justices and judges.

They usually can keep it in check, and they usually, you know, are reverting mainly to ideology when you have these deep, bitter splits, but it’s still there, and it’s real, but then what’s made it more problematic and deepened the concern I think for the public that, you know, most of us would like to have belief in a fair, impartial judiciary is the way Donald Trump is characterizing it and reinforcing the cloak of partisanship, which I have to say then affects the judges and justices themselves.

There was a case that was sort of little noticed in the 4th Circuit where a veteran judge by the name of Harvey Wilkinson, one of Ronald Reagan’s first appointments to the 4th Circuit, accused the majority on that 4th Circuit of just dumping on Trump because it’s Trump. Saying, you know, this is a partisan ruling we have here. He was in dissent, and the majority responded in kind, not as much, and I’ve seen traces of that at the Supreme Court.

Clarence Thomas, during the Trump documents case that was argued in May, said, you know, at one point, isn’t this just because of the president we have, in terms of some of the arguments that were going back and forth with his colleagues. So it’s getting deeper and more serious, and as we all know, it’s the judiciary that’s supposed to be the non-political branch.

00:36:50 Michele Goodwin:

That’s right. It is supposed to be the judiciary that’s supposed to be the non-political branch, but you know, Rick, what you have basically written in your book is that a central part of the planning…and it’s over time, because what you have is really a trilogy. This is a rise which we could say begins with Reagan solidly, but we see the aftermath of it living with us today.

00:37:16 Rick Perlstein:

Right, and you have to look at this in terms of a history of ideas. Conservatives, which is the faction that took over the Republican Party since the ‘60s, you know, really do see politics as a battle of all against all with cosmic stakes, and there’s no part of it that’s not political, and part of that political work is to use the language of, you know, ideological neutrality when it’s useful to do so and part of the psychological dynamics behind it, and we see this over and over again, especially with our president, is the notion of projection.

So the idea that these profoundly ideological people who don’t even probably recognize the legitimacy of the idea of a branch of our government that wouldn’t be ideological, they accuse the Democrats of doing so. I remember I first became aware of Nan Aron, you know, reading right-wing publications and seeing her described as if she was like Pol Pot or something, you know, and then being kind of surprised to learn that, you know, she turns out to be a pretty civilized person, you know? But the idea that the Democrats started it in any fight is very crucial.

So when you hear about this decision in the 4th Circuit, Joan, in which, you know, a conservative justice says, oh, well, they’re just doing this because they’re so ideological and they’re mean to Donald Trump because they don’t consider conservatives legitimate, you can almost always kind of flip that around and realize that they’re, you know, talking about themselves, and it makes things very disorienting to try and kind of get your mind around it, but the bottom line is that this is ideological warfare of the sort we see in Bolshevism, right? It’s not liberal pluralist politics.

00:39:09 Michele Goodwin:

So what’s interesting about that is that we’re also in a time in which there’s a lot of talk about fake news and a time in which people are concerned about, you know, what should they really know? What can they actually trust in media, and I’m thinking about that in relation to what you just said, Rick. That you were reading something, this was years ago, and it was about Nan Aron, and then you find out that she’s a really decent, smart person. So is the kind of rise of fake news just today something that is really apparent, but it actually started back when, and when is that back when? And both of you can chime in on this.

00:39:52 Rick Perlstein:

Well, I mean, you know, America has always had a deeply conspiratorial train in its politics going back to the founding. I mean, in the 1920s, you know, the Ku Klux Klan controlled the State of Indiana and government all over the place, and their operative theory was that, you know, the Vatican was organizing to take over the country, right? So there’s a lot of that in America, you know, certainly in McCarthyism. He completely had the media wrapped around his finger, specifically because he was able to accuse them of being biased if they didn’t, you know, respond to his charges in the correct way.

And it’s especially difficult I think in the realm of the judiciary because the work that they do is often very technical and at a high level of intellectual abstraction, and has to be interpreted to people by experts, and the idea that there’s a realm of politics in which you have to defer to experts is something that, you know, really doesn’t scan with the right-wing populist. So the idea is either these folks are on our side and fighting for the good and the true and beautiful, or they’re part of some kind of conspiracy to undo everything that’s, you know, decent about America’s patrimony.

So that makes the situation of judicial politics ripe for exploitation by cynics, you know, and the Federalist Society is a very fascinating manifestation of it. I mean, it starts out in a pretty organic way as kind of a student debating society, and I think Nan mentioned the Powell memo. Immediately, William Simon, who was the former treasury secretary, very conservative, and Irving Kristol, who was a neoconservative leader, they were joined in this project of telling corporate America that they needed to fund an intellectual counterrevolution to liberalism.

Funds the Federalist Society. Richard Mellon Scaife funds the Federalist Society until, you know, before long, it’s not a student debating society at all, even though it has that element, but it’s part of a political machine completely yoked into the machinery of conservatism and the Republican Party. It’s a vehicle for a political goal in the guise of this intellectual project.

00:42:22 Michele Goodwin:

So, Joan, what is it that we’ve seen over time that perhaps also makes this confirmation process a bit suspect, beyond what we’ve already heard, but the money behind how people can be placed or the court’s even decisions about money and politics?

00:42:46 Joan Biskupic:

Well, this superstructure that’s now a partner to Republican administrations choosing judges, the Federalist Society has done the screening for administrations going back a couple decades, but now it’s in the White House, essentially. The choice of Brett Kavanaugh was certainly a partnership between Don McGahn and Leonard Leo of the Federalist Society.

Amy Coney Barrett has been a favorite of the Federalist Society since the start of the Trump Administration, and the original list that Donald Trump put out in May of 2016 of his potential Supreme Court candidates was devised by the Heritage Foundation and Federalist Society, and these are big money enterprises now with huge advertising budgets, budgets that were able to quickly put ads against Merrick Garland, against senators acting on Merrick Garland into key senators’ states, you know, at a time when there might’ve been a chance of at least somebody meeting with Merrick Garland or having some sort of hearing back in 2016.

And immediately after President Trump chose Amy Coney Barrett, you have all sorts of bragging about multimillion-dollar campaigns by the Federalist Society offshoots, you know, people who are toggled among all these groups, went into play. So this is no grassroots enterprise that we’ve got going here, and this then raises the questions of rulings like Citizens United and the gerrymandering case and the Wisconsin Voting Rights case.

You know, a lot of these that start out, for someone like me, as kind of ideological voting race representation, questions that morph into big issues of who truly is pulling the strings and being represented in America, and corporate America is funding a lot of this, and it’s very real, and I think democrats, that’s another thing that, Michele and Nan, I know you’ve observed, is, you know, Democrats are trying to get on board with that, but it really takes everything to a level way beyond where the public feels like it has some say.

00:45:10 Michele Goodwin:

Well, of course, if you look at the court itself, the court doesn’t necessarily reflect the America that it serves, in many ways.

00:45:18 Rick Perlstein:

But 20 percent of America didn’t go to Notre Dame?

00:45:20 Michele Goodwin:

That’s right. That 20 percent of America didn’t go to Notre Dame or Yale, Harvard, right? So if Judge Barrett is confirmed, what can we expect from the Supreme Court’s jurisprudence on a variety of issues, from the Affordable Care Act, abortion, immigration, LGBTQ justice, and more? What are your thoughts?

00:45:47 Joan Biskupic:

Well, I’ll start, and I’ll start with the 2nd Amendment, gun regulation. This court had a majority to suddenly expand the 2nd Amendment for individual gun rights, but it has not had the appetite with John Roberts as one of the key conservatives, one of the five, to take on more gun regulation and expand 2nd Amendment and individual rights. He’s balked at that, and that’s been a great source of dissatisfaction with his conservative colleagues to his right.

President Trump announcing Barrett’s nomination to the Supreme Court on Sept. 26. (Mike Pence @Mike_Pence / Twitter)

Amy Coney Barrett is on record with a very robust dissenting opinion on the 7th Circuit showing that she would pretty clearly be ready to vote to take a new case on gun regulation and to join the other four conservatives, with John Roberts or without, to, again, enhance individual gun rights and make it harder for states and localities to enact gun regulation. I think we would see that for sure. I’ll leave plenty of areas for Rick, but the only other one I will mention here is that she has shown an interest in curtailing what the Trump Administration refers to as the administrative state.

Regulations, regulators. That’s why I earlier mentioned that the conservatives we have today have stronger views on getting government out of life, even stronger than the Powell corporate memo, and they also have much stronger views about the kind of religious liberty that obliges religious conservatives. So I will just mention those three areas and see what else Rick or you want to add to it.

00:47:34 Michele Goodwin:

Yeah. Thanks for that, Joan, and those are huge. Those are huge areas. Those are not slight by any account. What else, Rick?

00:47:43 Rick Perlstein:

Well, I got something even huger. So, I mean, I kind of have made a pledge not too many weeks ago that I wouldn’t do any immediate interviews about the election without insisting that Donald Trump doesn’t see this as an election. That the number of votes he gets, the number of electoral votes are secondary to his project of maintaining power for him and his regime by any means necessary.

And now that he’s said we need to achieve this nomination and confirmation to have a Supreme Court by the election…and he’s made it quite plain that he intends to use this court as a weapon to preserve his power, and that he has nominated someone, clearly, that he at least believes will be his partner in that effort. The most pressing and existential judicial issue is not any of our familiar issues around, you know, regulation or choice or guns or race, as crucial as those are.

But the question of free and fair elections in a democratic republic in the first place, and yes, I think that makes anyone who votes for Ms. Barrett a collaborator with a dictatorship. We have to entertain that possibility, and it’s horrifying, but that’s how Donald Trump is thinking. We have to stare that in the face and not get bogged down, as important as they are, in the question of individual subjects of litigation, but the question of democracy itself.

00:49:29 Joan Biskupic:

On September 18, the day that Ruth Bader Ginsburg died, earlier in the day, I was preparing a piece about a Bush v. Gore / Trump v. Biden kind of scenario thinking about what would John Roberts do? Because I think John Roberts who, at that point in time, would’ve been the key vote in a scenario that Rick has laid out, he would hedge. I think he truly would hedge. It doesn’t matter anymore. John Roberts…you won’t have that fifth vote

00:50:00 Rick Perlstein:

…the vote anymore for democracy.

00:50:02 Joan Biskupic:

That’s exactly right, and she, as an associate justice, is not going to feel the same sort of institutional overlay. The other thing I just want to mention briefly, Michele, again, thinking about what your listeners really care about, is one week later, on November 10, the court will be hearing, with likely Justice Barrett in her seat, another challenge to the Affordable Care Act, and I think that it’s clear that she’s going to view that signature domestic achievement of Barack Obama that has been so meaningful to Americans out there through a different lens than, certainly, Ruth Bader Ginsburg and probably even John Roberts, who was the swing vote to uphold it before.

00:50:47 Rick Perlstein:

Yeah, and let’s talk about Ruth Bader Ginsburg. To go back to this fact I was talking of earlier that, you know, folks on the other side of the aisle really do see everything in politics as a cosmic war and see us, you know, as enemies to be destroyed and humiliated, the fact that, you know, Amy Coney Barrett’s nomination was announced around the time of Yom Kippur, the holiest day of the year when Ruth Bader Ginsburg wasn’t even yet in the ground, was a humiliation, right?

Ruth Bader Ginsburg lies in state on the steps of the U.S. Supreme Court (Wikimedia Commons)

It’s basically a slap in the face to, you know, people who think that there should be norms of decency and respect around our politics, and the very fact that, you know, decent folks consider this indecent is probably why they do it. That’s the game plan. To say we’re going to humiliate you. We’re going to shame you. We’re going to say none of the rules apply to us, and what are you going to do about it?

00:51:48 Michele Goodwin:

Well, what’s your response to those who say, well, this is the same thing that the Democrats would’ve done if they had this chance?

00:51:55 Rick Perlstein:

Well, that’s obviously false. I mean, the Democrats are the people who nominate and turn into a hero a nominee who said there is no red America, there is no blue America, right? When the Democrats take over the Senate, as Patrick Leahy, you know, in charge of the Judiciary Committee, expands the blue slip process, giving Republicans a chance to veto any nominee from their home state. Whereas when the Republicans get into power in the Senate, they steal a Supreme Court seat. This is a party where, you know, the nominee in 1988, Michael Dukakis, says this election is about competence, not ideology. This is a pluralist party. This is not a party that sees politics as a war of all against all. It’s simply not true. It’s not factual.

00:52:37 Joan Biskupic:

Michele, their nominees are different, too. You know, it’s hard to remember that Ruth Bader Ginsburg, when she was nominated in 1993, was not President Clinton’s first choice. In fact, it took him three months to settle on her. He had to be pushed into it by Janet Reno, his attorney general, to say go back and look at Justice Ginsburg, because Justice Ginsburg, then Judge Ginsburg, did not have a very liberal record.

She was seen as much more of a moderate liberal on the DC circuit. So President Clinton puts on Ruth Bader Ginsburg and Stephen Breyer, two people who were not flaming liberals, not at the extreme end of that ideological spectrum, the way we would easily have characterized Robert Bork and Antonin Scalia. You know, and the same thing happened with Barack Obama. He chose two very competent, well-regarded jurists, but neither of whom were identified with the far left.

Obviously, Sonia Sotomayor, she is now the most liberal member of this court, but that’s saying something when you think of back to William Brennan and Thurgood Marshall, that Sonia Sotomayor is now the most liberal member of this court, but she wasn’t chosen for her liberalism, and even the kinds of people that we know are on the list for former Vice President Joe Biden are not people who are pillars of liberalism.

00:54:03 Michele Goodwin:

Well, you know, and that’s an interesting point, too, because you see that more of the people who are coming onto the bench are people who’ve been prosecutors, not necessarily public defenders, individuals who spent time in big law firms, not necessarily in small law firms or working on behalf of civil society organizations. So what does that also mean in terms of the temperament and experience of the people who are coming onto the bench?

00:54:30 Joan Biskupic:

Well, they’re much more of the same. In fact, Amy Coney Barrett’s law degree being from Notre Dame when the rest are Ivys, but she’s definitely in an elite category. She is the sixth appointee who will be sitting who is a former Supreme Court law clerk. You know, what demographic does that cover? We’re not even talking 1 percent. We’re talking, you know, a smidgen of 1 percent, former Supreme Court law clerks. Those people have been on certain tracks, and it includes the chief, people who were able to go to mainly elite schools.

And obviously, Notre Dame is still an elite school of sorts, even though it’s not on the east coast, and you know, then got put on tracks of distinguished lower court clerkships. She had been a law clerk to Larry Silberman on the DC Circuit, and then she had been a clerk to Justice Scalia. So there you have six of nine justices who are on this very elite, narrow path, not running for office the way Sandra Day O’Connor did, not working in the trenches of civil rights law the way Ruth Bader Ginsburg did. It’s a whole different crowd.

00:55:45 Rick Perlstein:

Yeah. I mean, I think that, to take it back to the historical shift, you know, when the Senate was getting their judges appointed to the lower courts as a patronage function, you know, these were kind of local courthouse guys that they knew from around the way. Even Lewis Powell was a Virginia tobacco lawyer. He wasn’t a guy who was on this, you know, kind of career fast track that really didn’t even exist then in the same way, but really was a product of the recruitment efforts of the Reagan Administration.

You know, they found ideological members of Senate staffs, former clerks to conservative justices, like Rehnquist, law professors, a lot more law professors, and people who had established records as scholars that was very ideological. Like, Robert Bork, you know, was a guy who had written the most important textbook when he was at Harvard on a right-wing libertarian view of antitrust law, right? Richard Posner comes from this law and economics school, which was very much, again, an elite-funded project, to try and reorient law around the principles of free American economics.

00:57:00 Michele Goodwin:

My final question, one of the things that we do on this show, every show, is to ask about a silver lining, and it’s very hard for Americans right now to see a silver lining, given everything that we’ve talked about on the show and things that we haven’t even mentioned, but if you were to think about a silver lining as to what it is that we have now, what would that look like? I’ll start with you, Rick.

00:57:23 Rick Perlstein:

Well, the dialectic, comrade. I think that, you know, we see the true face of the conservative take over the Republican Party, and we can’t look away anymore. People are really understanding that the stakes for this fight and all the fights around the Trump Administration really are whether we’re going to be a decent civil society or one that’s ruled by plutocrats and racial nationalists.

00:57:46 Michele Goodwin:


00:57:48 Joan Biskupic:

You know, I’m clinging to the life story of Ruth Bader Ginsburg. That woman had gone through so much. Born in the Depression. Saw death all around her from a sister, then a mother. Lots of cancer in the family. Lots of cancer with her, and she was constantly believing in her phrase this, too, shall pass and hanging in there and staying in the trenches, and I just have to cling to the optimism that she was all about and knowing that the kind of national awareness we have now about the situation and especially with the reckoning that we’ve had that we didn’t even discuss at all…we haven’t even talked about Black Lives Matter and the real awareness that’s beyond even the judiciary to this gulf in society that so many more people want to do something about. That gives me hope.

00:58:45 Michele Goodwin:

Joan and Rick, thank you so much for that. Joan, your book, The Chief: The Life and Turbulent Times of Chief Justice John Roberts out in paperback this week. Please pick it up, my listeners. It’s a great book. So informative about the Chief Justice and also about our court, and also, Rick, your book, Reaganland: America’s Right Turn 1976 – 1980, a fabulous, insightful, and dynamic book. Thank you both so much for being on the show, and as we end, let’s listen one last time to US District Court Judge Carlton Reeves as he speaks about the importance of diversity of viewpoint on our courts.

US District Court Judge Carlton Reeves. (Wikimedia Commons)

00:59:27 US District Court Judge Carlton Reeves:

To find truth, we need all the angles, all distances, all perspectives, what Judge A. Leon Higginbotham called a multitude of different experiences to find the truth. That is what justice requires. Justices demand for diverse experiences is best seen in the heart of our court system, the jury. The Constitution requires trials by an impartial jury. The Supreme Court says we should try to draw juries that reflect a representative cross-section of the community.

Excluding classes of people from the juries, like women and Black folk, results in decision-making that, according to the Supreme Court, is exposed to the risk of bias. Reams of scientific evidence support this conclusion, along with the idea that diversity is essential to all kinds of courtroom decision-making. As Justice Thurgood Marshall said, if we deprive the legal process of the benefit of differing viewpoints and perspectives on a given problem, then we are left with one-sided justice.

01:00:38 Michele Goodwin:

Guests and listeners, that’s it for today’s episode of “On the Issues with Michele Goodwin.” I want to thank my guests, Nan Aron, Joan Biskupic, and Rick Perlstein for joining us and being part of this critical and insightful conversation, and to our listeners, I thank you for tuning in for the full story. We hope you’ll join us again for our next episode where we will be reporting, rebelling, and telling it like it is with special guests tackling issues related to an extremely relevant issue, equality being on the ballot.

We’ll be joined by Jennifer Carroll Foy, Ellie Smeal, Lieutenant Governor Juliana Stratton, and Julie Suk. It will be an episode you will not want to miss. For more information on what we discussed today, head to MsMagazine.com, and if you believe, as we do, that women’s voices matter, that equality for all persons cannot be delayed, and that rebuilding America being un-bought and un-bossed and reclaiming our time are important, then be sure to visit us at Apple Podcast.

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“On the Issues with Michele Goodwin” is a Ms. Magazine joint production. Kathy Spillar and Michele Goodwin are our executive producers. Our producers for this episode are Maddy Pontz, Roxy Szal, and Mariah Lindsay. The creative vision behind our work includes art and design by Brandi Phipps, editing by Will Alvarez and Marsh Allen, and music by Chris J. Lee. Stephanie Wilner provides executive assistance.