Thinking In Public

October 12, 2020

The Battle for the Supreme Court: A Conversation with Constitutional Scholar Ilya Shapiro

Transcript

Albert Mohler:

This is Thinking in Public, a program dedicated to intelligent conversation about frontline theological, and cultural issues with the people who are shaping them. I'm Albert Mohler, your host and president of the Southern Baptist Theological Seminary in Louisville, Kentucky.

Ilya Shapiro, directs the Robert A. Levy Center for Constitutional Studies at the Cato Institute, the public policy think tank dedicated to the promotion of individual liberty, limited government, and free markets. Mr. Shapiro earned his JD from the University of Chicago Law School. He later served as a clerk for Judge E. Grady Jolly for the US Fifth Circuit Court of Appeals. His commentary on fundamental constitutional issues has appeared in the Wall Street Journal, the Harvard Journal of Law and Public Policy, the Washington Post, USA Today, National Review, and the New York Times.

Today, we're going to be talking about his most recent book, Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court. The topic couldn’t be more timely, and I'm looking forward to this conversation today.

Ilya Shapiro, welcome to Thinking in Public.

Ilya Shapiro:

Thanks so much for having me.

Albert Mohler:

I just have to say you have the best timing for any new book released of anyone I have ever known. Right now with all that's going on in our country, the President Trump's nomination of Judge Amy Coney Barrett to the Supreme Court, the issues you address in your book, the history you tell, and the arguments you make, they just could not be better time. So, congratulations.

Ilya Shapiro:

Yeah. The publisher had to pay extra for that. I mean, we, of course, were timing it to go ahead of the election, where we thought the court would be an issue, but not necessarily like this.

Albert Mohler:

Yeah. The thing is there are a lot of books about the Supreme Court, and a lot of books about the confirmation process, but you get to the crucial issues, and I have a dialog with the books that I read and so I have my own dye of critical marks on the resume. I mean, I made a mess of your book.

Ilya Shapiro:

Well, you might just have to buy another one so you have a clean copy.

Albert Mohler:

Absolutely. Start with a blank slate. Something I do, by the way, with a lot of books a few years after I read them the first time, I don't want to read the copy that I marked because I want to see how my thought is changed, how I read the book differently, but in your book, you're really dealing with the history of ... well, I don't want to use adjectives here. I'll simply say, what has produced the current context both on the court and in the confirmation process. So, let me just ask you, start that narrative. Start where you want to begin telling the story. Tell us where we need to start thinking.

Ilya Shapiro:

I mean, I'll start with the conclusion or rather the narrative thesis of the book because I set out in the wake of the Kavanaugh hearings and confirmation to find out what role exactly politics has played historically because a lot of us who follow this stuff know back to Robert Bork, basically, 30 years or so, but what happened before that? It turns out the politics has always played a role in nominations and confirmations in all sorts of different ways that we can get into however you like, but George Washington had a nominee rejected.

What's different now is that, first of all, there's the centralization of power in Washington. So, the federal government is big, what the Supreme Court rules on therefore is big and important, and we have divergent interpretative theories of the constitution, of statutory law, that map on to partisan preferences at a time when the parties are more ideologically sorted than they've been since at least the civil war. So, of course, you're going to have these fraught battles over each one of these precious seats when they become open.

Albert Mohler:

You know, right now, we're looking at a context in which many in the media. One of the things I recognize—I’m 60 years old—one of the things I recognize is that so many of the people who are in the media, they're not only ideologically distant from where I am, they're generationally distant from where I am. So, I tend to read things even this morning, with people saying this new hyper politicization of the court, and I'm thinking, "My goodness! Where were you in 1987 with the Bork hearings? Where were you when I was growing up and there were calls to impeach Chief Justice Earl Warren and others?"

Famously, the court was intended as the least dangerous branch, but, actually, one of the points you make is it never actually turned out that way. In other words, it was never apolitical, and in a political culture, it can't be totally apolitical.

Ilya Shapiro:

Well, it was less dangerous or less significant at certain parts in our history. In fact, in the very early days, people would decline nominations even after they've been confirmed. Communications what they were, you didn't find out you were even confirmed until a bit later and it didn't have the same prestige that it has now or would have later.

If you were a prominent lawyer or law professor in Boston or Philadelphia or something or on that state Supreme Court, why would you want to go to the swamp in Washington and sit in the senate basement—didn't have its own building—and be forced to, what was known as riding circuit literally on horseback, going around to the south and northwest, the frontier and what have you, to help the federal judiciary hear those cases?

Of course, the last time that someone declined a Supreme Court seat was Roscoe Conkling, the New York Party boss, in 1882. That's not really going to happen much anymore. You're right that the court has been politicized in different ways at different times. People ask me, "What's been the most controversial or the most political fight that we've had?" asking me, presumably thinking that I'll choose between Kavanaugh, Thomas, and Bork. But I go back to 1916, Louis Brandeis, nominated by Woodrow Wilson, very tumultuous year in American politics. Brandeis was the first Jewish nominee, but even more controversially, he was this crusading progressive on economic regulation on lots of things.

World War I was going on. His process lasted almost five months, the longest of anyone. His final vote was the margin was broader than Kavanaugh or Thomas, but still, very contentious stuff. After he was confirmed, by the way, they had the hearings for the first time ever that year. It wasn't done before then. It's not a statutory requirement, let alone constitutional. Although, the nominee himself did not testify. That was seen as unseemly. Nominees didn't start regularly testifying until the '50s.

Anyway, after Brandeis was confirmed, one of his colleagues, Justice Charles Evans Hughes, resigned from the court to run against President Wilson in the election. So, if you think 2020 or 2016 display an interrelationship between the court and the presidential election, I'll see that, and I'll raise you 1916.

Albert Mohler:

Yeah. Absolutely. I want to get to Wilson and Brandeis and the 20th century, but I've got to take us back still to the late 18th and early 19th century for just a bit because you make a very strong argument that has nothing to do, and everything to do, with the current status of the court, and that is you make an extremely strong argument, and you do so in the beginning, in the middle, and especially in the end of your book, for the Supreme Court's power of judicial review, going back to Chief Justice Marshall.

You basically say there's no point in having the court if it does not have the power of judicial review, the ability to look at acts of congress or even presidential orders and rule them unconstitutional. Here's the question I want to ask you. Do you think that the framers of the constitution explicitly foresaw the court's power of judicial review?

Ilya Shapiro:

Well, I don't know what you mean by explicitly. I mean, it's not in the constitution. It doesn't say, "The court shall review the laws." It doesn't say that. It says the judicial power. I think it's implicit because the way they set up the new republic structurally with three different branches, each one checking each other in various ways, I don't think they set up the Supreme Court purely to resolve contract disputes between citizens of different states. It's also to check the elected branches, the executive branch, the president, and now the administrative state, as well as congress, to make sure that what they were doing came within spitting distance of what the constitution allowed them to do.

It wasn't until our third Chief Justice, John Marshall, the great chief as he was known, that the court really began assuming that kind of power unto itself to make sure to review what was going on, in part because the earliest years of the republic, there wasn't as much political contention. Now, there wasn't the party system. It was just the federalists, and it was when Thomas Jefferson beat John Adams in the election of 1800 that things really started changing.

By the way, we talk about John Marshall. John Marshall was nominated by lame duck President John Adams after he had lost that election to Thomas Jefferson, and then he was confirmed by the capital F federalist senates. So, there's very little new under the sun in terms of hard ball politics of confirming, not confirming, not acting upon, rejecting nominees in our history. It comes down to politics, but judicial review, I think, has to be a part of it.

We had the civil war in part because the Supreme Court did not do a good job in the Dred Scott case and tried to split the baby, not fully resolving the question of slavery in the Fugitive Slave Act, and things like this. It's when the court tries to act politically or tries to think of its own institutional reputation rather than the law itself that it starts getting into trouble.

Albert Mohler:

Yeah. The background to my raising the issue is the fact that when I was a teenager and a college student, American history and civics was taught with a narrative that the innovation of judicial review by Chief Justice Marshall was the great turning point in the court's history and, of course, much opposed by Andrew Jackson as president and others.

So, just given the realities of 2020, your book coming out, I just noted that you made an extremely strong point. You didn't elaborate on it. You didn't have to. I mean, basically, the Supreme Court we know is a court that unquestionably now has the power of judicial review.

Ilya Shapiro:

Well, the elaboration was in the 40,000 words that were on the editing floor as it were, but…

Albert Mohler:

Yeah, I understand that.

Ilya Shapiro:

... I mean, the thing is we ought to debate how the court exercises its power of judicial review, what theories to apply, when it's prudential to not overturn precedent that might be erroneous, stare decisis as lawyers call it. All of these sorts of issues are worthy of debate, not whether someone is being not restrained enough or too activist. Activist is a vapid insult at this point that is thrown around by everybody just to mean a decision they don't like or a justice they don't like.

So, the debate is properly over how do we interrupt the power to regulate interstate commerce, the commerce laws, or the right to keep and bear arms under the Second Amendment. That's valid, but just saying that, "You're activist," or "You should be restrained," I mean, these judicial modes, it's like so many angels dancing on the head of a pin.

Albert Mohler:

Well, lest we be looking at angels dancing on the head of a pin, let's go fast forward then especially to the early 20th century. Woodrow Wilson is now president of the United States, progressivist himself, someone who is president of Princeton University and is professor of the new discipline of political science it would later be called. He's very tied to a Hegelian kind of philosophy and to the unfolding of history and sees the constitution as ratified in 1789 as a hindrance to what he sees as the necessity of a much more aggressive activist, larger bureaucratic administrative, federal government led by experts, much like the European context.

So, when you mentioned Louis Brandeis being nominated to the court, Louis Brandeis was the incarnation of Wilson's vision in so many ways. So, it was really a fight worth having, wasn't it?

Ilya Shapiro:

I mean, I think so. Wilson, I went to Princeton, so I'm well-aware of his legacy. He was just canceled by Princeton, his name removed from the public policy school where my undergraduate degree is from. Yeah. He thought the constitution was outmoded. These checks and balances, he called it the Newtonian kind of structure, that's for another time.

Now, meaning the early 20th century, we know how to govern. We just put the right experts in place for agriculture, the right experts in place for the burgeoning industry during the industrial revolution, the right experts in place for the Department of War and all of these things and let them have at it. There should not be any debate. What do you mean democratic accountability? We know how to do this stuff. It's a political science precisely as you said. So, it's from him.

The administrative state really took off under FDR in the new deal, but it began in the brain of Woodrow Wilson. I mean, his idea of government by administration, borrowing from German political science where he had studied in the Bismarckian notion, that's where that all originated. Yeah.  It set up a big clash of theory of how to interpret the constitution, which also wouldn't really reach fruition until the new deal era in the '30s and early '40s.

Albert Mohler:

So, I think the average American, even the average college educated American, really would be shocked by Wilson's actual explicit statements, long before he was president, about the US constitution. I mean, he was already arguing that if the nation were to be bound by the enumerated powers of the constitution, it could never be a modern progressive government adequate to the civilization that it was serving. The man was elected president of the United States twice. I just don't think the average American had a clue of what Wilson thought about the constitution.

Ilya Shapiro:

Well, arguably, he wouldn't have won the first time had Teddy Roosevelt, then former president, Taft was running for reelection and Teddy Roosevelt, who was a progressive Republican so disagreed with Wilson on some things, but was all about trust busting and regulating to harness the industrial revolution and things like that. So, basically, Roosevelt and Taft split the Republican vote, and Wilson put together what now seems like an unlikely coalition of essentially northern liberals and southern very conservative Democrats, which became the history of the middle part of the 20th century. But you're right.

This is coming from not some populist who is just saying all sorts of things and doesn't really know how the constitution works. He is a learned professor and a PhD, but he rejects the enlightened classical liberal thinking about structural constrains on government. Indeed, he wants a constitutional revolution and how American governance is conducted.

Albert Mohler:

I guess the best word you use is progressivist in this sense historically and technically. The progressivist transformation of the court didn't come instantly, but the court began, basically, to see itself as at least responsible. Of course, you get the switch in time saves nine by the time you get to FDR's court packing out of frustration or at least his effort, but my point is that by the time you get from, say, 1915 to 1955, there's a real shift to a progressivist understanding of the constitution.

I mean, basically, it's no longer a matter of being bound to the words, the sentences, the propositions, the syntax. It's now being bound to a vision of government that's very different.

Ilya Shapiro:

I think that's right. It's reading the words in a way that, as you said, that don't bind you, that the words grow over time, the living constitution, if you will. That was why you spoke of the ‘Impeach Earl Warren’ signs. Part of that is a reaction to desegregation orders and the world of Jim Crow. Part of it is to the revolution and constitutional criminal procedure and other types of social regulation that the Warren court was involved in.

By the way, we talk about resistance to, or advancement of, progressive theories of the constitution or of public policy. Wilson also stands for the idea that presidents can't control very well the nominees who they choose. Sure, he had Brandeis, the progressive crusader. He also nominated William Clark McReynolds, one of the more retrograde justices of the 20th century, a bigot, didn't like all sorts of different classes of people including drinkers and smokers, wouldn't pose in the same photographer with Louis Brandeis because he was anti-Semitic, but even beyond that, was just an unpleasant person.

Two other colleagues of his on the court left, resigned from the Chevy Chase Country Club in Suburban, D. C. so they wouldn't have to run across them so much. And he was one of the, what became known as the four horsemen, the votes against FDR's new deal program in his first term.

Why did Wilson appoint him? Well, they shared racism, of course, but also, they shared a view of antitrust. That was the one progressive issue on which they had an agreement and Wilson really cared about that at the time.

Then Wilson's third nominee was basically an insignificant one. James Hessin Clarke only served a few years, did not leave much of an impression. So, three nominations, a president who was significant, and in three different ways. So, it's not a modern phenomenon that a president nominates someone and then is surprised or would be surprised at the direction the person takes decades later.

Albert Mohler:

We're going to talk a bit, I hope, about why that's so. It's not just a matter of judicial personality and temperament, it's also a matter of the cases that come before the court and any number of other issues. But just following your chronology, the pace of your work picks up, at least it did for me, about the time you reached my own time period, by the time I kind of politically came of age and was fascinated with the constitution, American history, the interpretation of text as a theologian, the Bible, but also looking at the role of judges and others with the text of the constitution, looking at those issues.

Even by the time you reached 1968 and the election of Richard Nixon as the Republican president, he's already using the term strict construction. In other words, there was already a recognition that there were two rival visions of interpreting the US constitution and they had political consequences. I think most people would date that concern to Edwin Meese and Ronald Reagan, but Richard Nixon was talking about it out loud in 1968.

Ilya Shapiro:

Right, and this was a response to the Warren court activism that we've been discussing, and '68 was a turning point. I mean, it was a turning point in American culture, in American politics, and also in American law. LBJ was a self-anointed lame duck, unpopular because of Vietnam, but had a vacancy. Earl Warren wanted to retire in 1968 and so, LBJ nominated or wanted to elevate Justice Abe Fortas to become Chief Justice. He ran into some ethical problems, was paid for some speeches that he didn't declare, certain other financial issues came up, faced by partisan opposition in the senate. Some people would call this the first filibuster of a Supreme Court nominee, but he never even had a majority of declared support. So, in any event, it was bipartisan, so that failed.

That was the last election year nomination when the party in the senate was the same as the party in the White House—that failed, by the way. So, Nixon got to a point, Earl Warren's successor, which became Warren Burger. Nixon also put on the court Bill Rehnquist, who was the most conservative until Scalia arrived, basically, but also Harry Blackmun, who ended up writing Roe v. Wade, but, yeah, you're right that late '60s, early '70s, when Robert Bork was making a name for himself intellectually, was the conservative response to the left word drift or not even drift, but radical action in the late '50s and '60s on the court.

 

Albert Mohler:

Justice Elena Kagan has made the statement, "We're all textualists now," referring to the fact that one of the achievements of Antonin Scalia amongst others, but she credited it, actually, to the late Justice Scalia, was the fact that even more liberal progressive members of the court now making the arguments have to make much more reference to the actual text of either the constitution or more commonly statutory law.

The interesting thing there is the admission that there was a little—you make this point in your book—there are a lot of court decisions during the periods into the Second World War in particular, maybe even before, but until you get to a couple of generations later, there are a lot of court cases that are actually not that legal in one sense. They don't make that much reference to the law or the constitution. How did that happen?

I mean, arguably, Brown versus Board of Education, I'm not debating the outcome of the case, but the point is that it was argued incredibly on the matter of sociology more than even the constitution.

Ilya Shapiro:

The way it was written, I think, I think you're right. Perhaps they didn't have the legal tools. I mean, Michael McConnell, former 10th Circuit Judge, now a Stanford law professor, has made a very convincing case. I think that article is now 20 or more years old about the originalist case for how to decide Brown versus Board of Education. I agree with that on various grounds. We don't need to get into that. But you're right, that's not the way the court was deciding those cases. I should add that this concerted response that we're talking about was also a little off in the sense that it wasn't about you have to interpret the constitution for its original public meaning or even the intent of the founders, which is not correct, but early originalism had that. It was more about this judicial restraint.

The way we fight this activism is by having judges effectively just defer to the political branches, which I think is wrong as well because if the political branches are doing things that are beyond the constitution, then judges shouldn't sit there like potted plants. But you're right, there has been a trend. I graduated law school in 2003. I was told that if you went to law school in the '70s and '80s, the constitution wouldn't even be in your constitutional law case book. By the time I was there, it was at the beginning. It sort of started in Appendix H and then started migrating forward. But you're right, for a long time, the legal theories that were taught in the academy had very little to do with the actual law on the books, let alone constitutional text.

Albert Mohler:

Yeah. I was honored to receive the Edwin Meese Award for originalism some years ago. The former attorney general made the statement at the lunch. He said, "You could have put all of these people in a cloak room in 1975, but by the time you get to the ..." I guess this was about 2005 or 2006. He said, "It's now mandatory discussion in every law school in the land." Not to say they agree with it, but you have to talk about this. It becomes a part of the intellectual background.

The reality is that there's been a huge revolution, but an incomplete revolution. Frankly, even when you talk about originalism, you got strict constructionism and textualism, they don't all mean the same thing even though they can sometimes implicate the same person.

Ilya Shapiro:

Yeah. I mean, Ed Meese is underappreciated in this whole story. Even before he was attorney general and he was counselor to the president, speeches that he gave, there's one notable one to the ABA in 1985 that really set out originalists, and Scalia, of course, was working at that time and had already been put on the D. C. circuit by President Reagan at the time.

I mean, picking judges, not simply to be loyal Republicans or friends of the president or of the senator or what have you, but for their intellectual architecture was an innovation for its time and Meese deserves a lot of that credit. He started doing that with then Governor Reagan in California when Reagan was governor of California. But you're right, there are a lot of differences.

You see that from the Republican-appointed justices now. Not all of them call themselves originalists and textualists. Most of them do explicitly, but there's a big difference between Clarence Thomas' historical approach, Sam Alito's deference to law and order in many cases, Neil Gorsuch with his natural rights, natural law approach. Kavanaugh, also very much text and structure and history, but strategic and cautious, somewhere between John Roberts who's all about strategy and being minimalistic and only moving incrementally between that and the Clarence Thomas wing.

Now, Judge Barrett, if she becomes Justice Barrett, she said in so many words at her rose garden introduction ceremony that Scalia for whom she clerked, "His jurisprudence is my jurisprudence." You can tell that from her academic and judicial writings as well. So, there's a lot of variety among people. This is not a monolith.

Albert Mohler:

Speaking about that, and you mentioned a stare decisis earlier, the principle that precedents have value and, literally, that the precedent stand, the decision stand. Interestingly, Justice Scalia in several of his descents even more than in his majority opinions, which aren't that many, but in his descents, he often cried out that the issue has to be the constitution and it either is the constitution or it's judges, whatever their proclivities.

That's obviously going to be one of the main issues even in the day we're having this conversation, this morning dawned just before the hearings began with people saying, "We need to add this case, in this case, Obergefell, to the questions posed to Judge Barrett about stare decisis. So, walk through that. So, now, the list of precedents is added to this weird language of super precedents. Tell us how to fit that in, what's going to be happening in these hearings.

Ilya Shapiro:

Well, yeah. So, on the issue of when to overturn precedent, there's basically standards. How workable is this rule? How wrong was it? Was it just a little bit wrong or was it just agree just who we see now? How much have people relied on it? Have they built up businesses or organized their personal lives knowing this rule is in place or government agencies and regulatory structures that it would really disrupt our lives and the law more to correct that error than to leave it in place?

Those are the kind of prudential considerations that we're talking. Amy Coney Barrett has actually written a fair bit about stare decisis, about how originalism matches with stare decisis. If you're a true originalist, do you just go by what you think the constitution says, which might mean overturning precedent? That certainly what Clarence Thomas would say.

She says somewhat like Scalia, although maybe a little softer, depends whether how entrenched it is, meaning, is a precedent really embattled anymore? Does anyone seriously question ... Nobody questions Brown versus Board of Education, for example, but people do question Roe versus Wade. The abortion debate has not been settled for the nearly 50 years since that decision.

Other decisions, citizens united, I don't know. I mean, has it or has it not? I mean, there's activists that talk a lot about it, but the average person probably has not seen a change in the way campaign funding is run or what have you.

Obergefell, I have a hard time seeing it ever overturn just because so many thousands—I think at this point, it's hundreds of thousands of people are in same sex marriages because of it, and various other tax treatments have been triggered. It’s very quickly become entrenched. Also, the political wins were going in that direction.

Anyway, I actually agree with Obergefell as a result, certainly not the reasoning or lack thereof. I don't know what the rule of law that Justice Kennedy was getting across there, but I do think that the political wins were going there regardless and would have gotten there much less controversially in a number of years. Whereas with abortion, we were still equally in battle.

Albert Mohler:

That's a part of the reason why the terminology of an activist court arose. It's because the court acted, and acted as a super legislature in essence in Roe v. Wade, for all kinds of political reasons. I actually think it's doubtful that congress could ever have in the 1970s passed nationwide legislation on abortion simply because representatives have to be elected district-by-district, senators state-by-state. There was no national consensus. That frustrates me now when people show a poll saying 78% of ... Well, that didn't matter. Americans don't sit down and elect the senate, states do. That's a very different equation. I tend to think, and I say this as a conservative Christian, I think the secularization of the country and the moral change that’s taking place would have been potentially different on that and that the legislature might have acted, say, in the course of the decade after 2015 or there, but we'll never know. We'll just never know.

We do know that Roe v. Wade was a failure, and I say that as someone very much committed to a pro-life position, but I mean, it was just a failure because it clearly, I mean, Blackmun at one point said in the decision itself, in his majority opinion, he says, "I hope this will settle the issue." Well, no!

Ilya Shapiro:

Yeah. Even, I mean, learned scholars on the left recognize that Roe v. Wade was not a good piece of judicial writing. Ruth Bader Ginsburg, the late Justice, actually got into this. It seems amazing in retrospect, but when she was nominated by President Clinton for the Supreme Court, there were some questions by pro-choice groups about a speech that she had given questioning the wisdom and the timing of Roe versus Wade itself, not because of her policy views on the matter, but on how one rules, how one is a lawyer, and that's not a very lawyerly decision.

This shows that on so many issues, the tensions over the Supreme Court or the battles over nominations would be so much less heated if the court rebalanced our constitutional order by pushing more power back to the people, to the state's localities so that they can govern themselves, as well as within Washington forcing congress to do the legislation rather than punting, passing the truth, beauty, and goodness act of 2020, and forcing the administrative agencies to actually write the laws, the rules by which we live our daily lives. Those two dynamics, the warping of our federalism and our separation of powers, is responsible for a fair bit of the Supreme disorder as I call it.

 

 

Albert Mohler:                                                                                                                                Yeah. You make that case extremely well. Again, I commend listeners to read your book, to get it and read it right now because of the relevance and understanding of what's going on even in the days as we're releasing this conversation.

About that entire question, and one of the points you make is that there've been a lot of presidents who've lost nominations. There've been a lot of soap operas in the confirmation processes. I do think your narrative gets all the more interesting when you get into the '60s and you mention Abe Fortas. I mean, there are huge questions like, why have the Democrats cared more about the federal judiciary? I don't get that. I mean, one of the points you make is that even though Jimmy Carter never got to make a nomination to the Supreme Court, there was a vast expansion of the federal judiciary, so he got to appoint a lot of federal judges, but the Democrats tend to leave a lot of these on the table. In retrospect, I mean, Lyndon Johnson conceivably could have still nominated a Supreme Court Chief Justice. He didn't.

Ilya Shapiro:

Well, he was weak within his own party and approaching the election when, clearly, I mean, he wasn't running, so it wasn't going to be him. He was a lame duck already. You're right. If he had chosen someone other than Fortas who didn't have those [distortion], it's very conceivable that he could have gotten someone confirmed. There are only, in fact, in the last 50 years four Justices appointed by democratic presidents, two by Clinton, two by Obama and, of course, Merrick Garland wasn't acted upon, which is, he's one of ten that have not been acted upon in our history.

As I said, there's precedent for anything. It's all pretty much political all the way down for how nominees are treated, but there's two basic reasons why Democrats, and by this, I mean Democratic voters or the base, has cared less about the courts than their Republican equivalence. I was talking to Bob Bauer who was President Obama's White House Council about this, and he made two points.

First of all, the Democrats didn't really have to worry too much about the courts. They were making enough decisions that they liked. So, there were certainly occasional ones that they didn't, but on the whole, that's not what really got them activated.

Also, very few errors. It's hard to error by a Democratic president in appointing judges or justices because the legal profession, especially at its elite levels, skews to the left. The type of interpretive theories that are applied there, I'm not accusing anyone of being and acting in bad faith or just purely on being policy result-oriented, but whether you're acting on pragmatism or what is the purpose of the law or the legislative intent or what Justice Breyer calls active liberty, it all achieves what the progressive view of justice might be at any given time. So, the idea of judges or judicial appointments is all rolled into the issue of what kind of policies do we like.

Albert Mohler:

Thinking of that and, again, the pace of your book just gets so fascinating, and you offer detail. You've got a lot of reportorial work and research in this. It's not just that you're bringing legal training to this, you have a keen political eye. You're able to tell the story very well, but just walk us through. I mean, you got Bork, you've got Thomas, and then Kavanaugh, but you've also got a soap opera basically with every nomination now. It's just whether it's a louder or softer soap opera.

 

Ilya Shapiro:

Yeah. Well, that's interesting background because a lot of the politics or a lot of the interesting parts of these battles is what happens before the nomination is made. Different factions of the party or different interests try to prevail on the president to nominate someone. President Clinton, famously indecisive, wanted to nominate a politician. We hadn't had a sitting senator, or a governor appointed for a long, long time and so, he really tried to prevail upon Mario Cuomo to take it and he wouldn't because he still had his own Hamlet-like presidential aspirations.

Albert Mohler:

Plane waiting on the tarmac.

Ilya Shapiro:

That's right. That's right. Here's an interesting side note about Bork connecting it to our abortion discussion. So, Roe v. Waded was decided in 1973. It wasn't until Bork 14 years later that a nominee was really questioned about abortion or Roe v. Wade. We had John Paul Stevens, the first nominee after Roe, just two years later under Gerald Ford, and then O'Connor in early Reagan, and then Rehnquist elevated with Scalia together in '86, the year before Bork.

Rehnquist was the controversial one over his role in writing memos when he was a Supreme Court clerk in the '50s over civil rights, and his law and order positions on criminal procedure as a justice drew all the heat there. Scalia as the first Italian American, very affable guy, smoking his pipe during the hearing, skated through, was confirmed unanimously.

Now, Republicans control the senate, then they lost it. Joe Biden became the Judiciary Committee chairman in 1987, and Bork ran into that buzz saw, and Biden was still chairman for the Thomas hearings four years after that.

But it's remarkable—if Scalia had been in '87 and Bork had been earlier, then it's very likely that both of them would have gotten through. Each one of these stories, who do we choose and when, and for what reason, it fascinates me, and I hope that I conveyed that to the reader.

Albert Mohler:

No. Absolutely, but you also triggered the obvious, and that's the name Joe Biden. So, in the Bork hearing, Biden had actually made comments previous to Bork's actual nomination that it would be likely he would get through. Something happened in the Democratic caucus in the senate. Something happened in the Democratic Party between when Robert Bork arose as a myth until he became an actual nominee, and then something happened during the nomination process. By the way, I was watching every minute of that. I can still remember thinking that Bork was sinking his own ship partly by his attitude in the hearings. Nonetheless, Joe Biden really begins to bank the Bork hearings as his political cred with the left.

Ilya Shapiro:

Joe Biden, fresh going into his first run for president after having told President Reagan when the Democrats won the senate in the November '86 elections that if he picks Bork, that's pretty much like Scalia, he'll get through, and I know I'll take some heat from some of these activist groups, but he'll get through and six months later after hearing an ear full from the groups, he changed his way.

Ted Kennedy led the charge in terms of demagoguing it up, making the speech on the floor of the senate 45 minutes after the nomination was announced, but Biden ran the hearings and orchestrated the strategy. You're right. Bork did not do himself any favors as Senator Paul Simon, a Democrat of Illinois on the committee would later write. Bork was trying to score debaters points rather than gain votes. He gave these turgid, academic answers rather than following the playbook that now we all know where the nominee tries to talk a lot and show how smart they are without really saying anything.

Albert Mohler:

Well, I only met Robert Bork once in person, but I was in the room where he was speaking at other times. I will tell you, the guy was born with the genetic code of condescension because he was a towering intellect. I mean, frankly, he didn't have that many peers who had thought through these issues as well as he had. He was irascible to use another term.

Yet, one of the points you make in the book is that this is a television event now or it's now a social media event. So, the personality of the judicial nominee now becomes a big issue. You pointed out, you could have such an antipathetic human being that justices wouldn't sit with him or be in the country club with him. Now, you basically got to have a certain kind of personality if you're going to get through this process.

Ilya Shapiro:

Well we saw that a bit with Kavanaugh who was chosen because he was a milquetoast establishmentarian, if you will, certainly part of the conservative mainstream, the legal establishment in Washington, thought would get through, had been vetted six times, thought would get through easily than some of the other people on Trump's list.

Albert Mohler:

And almost did.

Ilya Shapiro:

And almost did. Well, the thing is, if you remember even before the Christine Blasey Ford allegations and other more crazier ones, even the first hearing had the rolling filibuster, the Spartacus moment, all of this battle over the documents and what have you. It was bizarre, but you're right. Kavanaugh, the one point that he was criticized for was that maybe he got too heated. I mean, I don't know how anyone can react if you're being accused of being a serial gang rapist, whether you wouldn't get a little hot under the collar yourself, but, yeah, the personalities of the justices also makes them more effective. This is why if Judge Barrett becomes Justice Barrett, I think she could be even more effective potentially than the great Justice Scalia, her mentor, because there are no sharp elbows or acerbic barbs with her.

Albert Mohler:

Yeah. One other aspect of this I want to raise with you is that the Republicans have played a game ever since 1987. I don't say that opposed to it because it was kind of necessary, especially given the composition of the senate, but a Republican presidents had to choose candidates who would not answer, and Republican presidents were very careful not to ask, "Would you reverse or overturn Roe v. Wade?" Of course, it wasn't the same on the other side. I can remember when Bill Clinton said that he would only choose justices who would uphold Roe v. Wade. Hilary Clinton said it again in the presidential debate in 2016. I do sense that that game has run out, and when it comes to Judge Amy Coney Barrett, you're talking about someone who's not going to get by without being asked that question and maybe on Obergefell and some others, too, but I think that's in the political calculus. I think both majority leader McConnell and the Trump administration, President Trump himself, they figured out she's going to get confirmed anyway.

Ilya Shapiro:

Well, the nominees aren't going to answer that question or about any other heated case because, I mean, they'll say, as Justice Ginsberg patterned this pincer movement saying, "You can't get too much into the fact because that might come before you, and you can't talk too much about general theory because, well, the judges deal with real cases." I don't think even though Bill Clinton did campaign on only having a pro-choice nominee, I don't think he asked them in their interviews because that's still considered inappropriate.

Albert Mohler:

He was a lawyer.

Ilya Shapiro:

Democrats don't have to ask. It's sort of assumed that if you're on the left legally, politically, you're going to be for it in that way. What's really changed is Trump's list was an innovation. He put out the list breaking with political convention and a conventional political wisdom because people were doubting him. Republicans were doubting him, evangelicals, conservatives. He is thrice divorced.

Albert Mohler:

I doubted him.

Ilya Shapiro:

Former Democrat who had been pro-choice, all these different things. How can we trust him? So, his master shrug, Don McGahn, who became the first White House counsel and the architect of the judicial nomination strategy, came up with the idea of putting out a list, which worked. It solidified the base and I think Salena Zito has done wonderful reporting. She had a book about the 2016 election, where waitresses, and truck drivers, and farmers in Michigan, Pennsylvania, Iowa, Wisconsin would talk about the court in sophisticated terms, understanding exactly what was at issue.

Albert Mohler:

So, I have one big question I'm going to save to the end, but before that, I just want to take a risk and say, so what should folks be looking for in the hearings and what do you expect?

Ilya Shapiro:

Look for anything that's actually news worthy because I'm not expecting much. The one moment that’ll be unique and special is when the vice-presidential nominee for the Democrats, Kamala Harris, who’s on the Judiciary Committee, is asking Amy Coney Barrett, the Supreme Court nominee, questions. That has never happened before. So, I've said there's very little unprecedented as far as the politics surrounding these confirmation battles go, but that hasn't happened before. We'll see. That could become a moment in her confirmation. It could become a moment in the election, but other than that, I wouldn't expect to learn more about her than you can get from her writings already. I just had a cover piece in the Washington Examiner Magazine called ‘The Brilliance Lives Loudly Within Her’ that you can read summarizing her jurisprudence.

I doubt you'll learn much about the state of the law. So, this is mostly political theater, mostly a kabuki process. The Democrats no longer have the filibuster. So, we'll see what kind of delaying tactics they might try.

Albert Mohler:

Now, you mentioned by implication there, Senator Dianne Feinstein speaking to then judge nominee Amy Coney Barrett saying that, "The dogma lives loudly within you." What are the Democrats going to do with a Catholic question this time around?

Ilya Shapiro:

Yeah. That dogma line sounds like something that was rejected from Star Wars. Senator Durbin said, "Are you an Orthodox Catholic?” as if only cafeteria Catholics need apply. That didn't do the Democrats any favors. In fact, that elevated Barrett's profile to the point where she might not be the nominee now had they not gone after her in that way three years ago. It certainly didn't help them politically in religious attacks. Those swing voters in the upper Midwest tend to be some kind of religious voter, maybe lapsed or not as churchgoing, but still. So, that's not effective.

We're seeing that a little bit in the media now, not as much from the Democrats, but I'm a constitutional lawyer, not a political operative. So, I don't know if you'll see the same kind of attack poised in the same way. They might ask about abortion or the death penalty or certain things that might touch upon her religious views, and she'll say, "Look, I've written about this and I've said before, I apply the law, the same as Justice Scalia did. I learned from him. He was as Catholic as I am. End of story. This is nothing new."

Albert Mohler:

Yeah. I think, at least my reading, and we're saying this before the hearings start, but my reading is the Democrats can't not bring up some of these issues, but they don't want to bring it up very far. We'll see.

Ilya Shapiro:

Yeah. I mean, what seems to be polling well for the Democrats is healthcare policy and Obama care. So, they might even be, at a certain point, they might come to realize that they're not going to stop the train and they're just going to be making arguments for the election.

Albert Mohler:

Now, as we close and I so appreciate this conversation, but I want to come back to a term that you used in two different ways in your book. It's one that's very crucial to me. In one place, you speak of the founders’ constitution, and in another place, you speak of the framers’ constitution. I think you're talking about the same constitution, same argument. Christopher Caldwell’s made this argument in a recent book as well and throughout legal studies, at least among more conservative scholars, that this is very much a part of the constitutional discussion.

We really do have two constitutions right now in the United States. You have the one which is, as you identified, the founders and the framers' constitution, the constitution ratified in 1789, but there's another constitution out there. What do you see as the future of that issue? In other words, is there much hope of actually returning to the founders’ or the framers' constitution? I mean, conservatives hold that out, strict constructionists, originalists, textualists hold that out, but I just want some intellectual honesty, and you're very honest in your book. Is there any real hope to that or is it just a mitigation of the progressive trend?

Ilya Shapiro:

Well, it took us decades to get to where we are. It will take us decades to work our way through to go back. It's not just about the founders or the framers. I mean, it's also about the framers of the 14th amendment, which is very important and completed the constitution as some scholars say because what that did was allow you to go to federal court to say that your state is oppressing you in various ways. Again, we properly have debates about what rights exactly are protected by the 14th Amendment, whether enumerated or not enumerated, which is a separate question, but the idea of the states not being able to sensor you or take away your guns or take away your property without compensation or violate your liberty in all sorts of ways, that's an important innovation, and that's an important change in our constitutional structure.

At the end of the day, it comes to the American people. Thomas Jefferson called the constitution a parchment barrier. If the people don't believe in it, in part because our educational system doesn't teach it or for whatever reason, then no amount of elite lawyering or hopefully bestselling books in that vein are going to help because, talk about legitimacy, that comes down to whether the people believe that the system, that the people who have power deserve to have power. That's a much more complicated question simply how judges should interpret the constitution.

Albert Mohler:

Ilya Shapiro is the author of the book, the title is Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court. It could not be a better timing for a book, and for this conversation. So, Ilya, thank you so much for this conversation today. I believe there are many people who want to think in a more informed, more thoughtful way about the court and, hopefully, this conversation will help them to do that just that.

Ilya Shapiro:

Well, thanks for having me. As a coda, a PS, Albert, I'd like to add. We were talking earlier about the cover of my book is a little controversial. There's an activist sitting on Lady Justice in front of the Supreme Court. I actually, through the magic of social media, someone connected me to that woman. She's a political consultant and a lawyer in Colorado, happened to be in D. C. not to protest Kavanaugh, per se, but to meet with Senator Cory Gardner about certain kinds of legislation, and got swept up in this and ended up there. We've actually had a series of very civil conversations both over Twitter and by phone. So, something like that at least gives me a little bit of hope.

Albert Mohler:

Yeah. Absolutely. Well, I'm all for civil conversation. I appreciate that today. By the way, she's indebted to you through this book because you can make each other famous in the weirdest symmetry of time.

Ilya Shapiro:

That's right. That's right.

Albert Mohler:

Thank you again.

Ilya Shapiro:

Thank you. Take care.

Albert Mohler:

So, here we are in October of the year 2020. We're facing uncharted political, and for that matter, judicial territory. We're talking about a president's appointment to the United States Supreme Court. We're talking about hearings before the United States Senate. We're talking about some of the most weighty issues confronting American public life. We're talking about how to read the constitution. We're talking about a rather raw and sometimes raucous political process. We're talking about the hearings for Justice Amy Coney Barrett. We're talking about something that’s just as relevant as any conversation could be in American life today.

I very much enjoyed the conversation with Ilya Shapiro. He just couldn't have written a book that would be more relevant to the conversation today, but it's not only relevant, it's extremely helpful. I really appreciate the way he presents the issues. The narrative that he deploys, especially about the contestant territory of presidential nominations to the nation's highest court.

I'm in large part in agreement with his argument. I especially appreciate the reference to the framers' constitution, the founders' constitution. You hear me use similar language on the briefing and in my other public work on these issues.

These are issues that I think should be incredibly important to Christians, but for more than one reason. For one reason, you've got the obvious reality of the power and stewardship of the United States Supreme Court. You've got the big issues coming before that court, issues, well, it's fair to say of life and death and beyond, about what kind of society we're going to be. The second issue is we as Christians understand how much it actually depends upon how we read a text and how we're bound by that text or not bound by that text.

So, I enjoyed the conversation. You may have noticed that Ilya Shapiro mentioned the Obergefell decision and that he was basically in favor of it. Well, that's just a reminder of the fact that in the world today, we've got an assortment of world views, and one of them is libertarian, and the Cato Institute is the most influential libertarian think tank in America today.

When you look at American conservatism, especially from 1980 and beyond to the fusionism that's often discussed, there's a fusion of corporate, free market interests, and conservative Christians, the moral traditionalists and, yes, libertarians. It's something of a Venn diagram. In other words, there's an awful lot of overlap, but there are some real distinctions as well, and it's always healthy when those things come to the floor. We ask the question, "How could that be?" That's where inquiring minds, responsible minds, try to figure this out. That takes us back to the issue of world view which takes us to the issue of truth, which takes us to the relevance of this conversation.

Many thanks to my guest, Ilya Shapiro, for thinking with me today. If you enjoyed today's episode of Thinking in Public, you'll find more than 100 of these conversations at albertmohler.com under the tab Thinking in Public. For more information on the Southern Baptist Theological Seminary, go to sbts.edu. For information on Boyce College, go to boycecollege.com. Thank you for joining me for Thinking in Public and until next time, keep thinking. I'm Albert Mohler.

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