Jackie McDermott: [00:00:05] I'm Jackie McDermott, a producer of We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the constitution among the American people. This episode was recorded live last week in New York City at the Federal Bar Association's annual convention. Our in-house counsel and We The People guest host Lana Ulrich moderated a debate between Columbia law professors Philip Hamburger and Gillian Metzger on the question: Should Chevron be overturned? These two leading administrative law experts shed light on this complex but increasingly important topic. Here's Lana to get us started.
Lana Ulrich: [00:01:02] Morning. I'm Lana Ulrich, in-house counsel at the National Constitution Center. And welcome to We the People, a weekly show of constitutional debate. Our regular host, Jeffrey Rosen, the National Constitution Center President and CEO, is away this week. I'd like to thank the Federal Bar Association for inviting We the People here to record live at its annual conference in New York. We've got a great show for you today on a hotly debated topic: Should Chevron be overturned? Our two guests, Professor Philip Hamburger and Professor Gillian Metzger, are two of the leading scholars in this area. But before we begin let me tell you a little bit about what we do at the NCC. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the constitution among the American people. We are a museum and an education center that overlooks Independence Hall in Philadelphia and offers educational experiences for people of all ages including live constitutional conversations known as town halls. We also take our educational mission on the road and online with travel traveling town halls, our blog Constitution Daily, CLE programming, classroom initiatives, and this podcast. So please consider visiting us in Philadelphia, checking out our content online at ConstitutionCenter.org, or becoming a member to support our work. And through the Apple podcast app you can subscribe to the show, We the People, to keep up our podcasts and this week you can enjoy a weekly dose of constitutional debate. So let's begin this debate. The motion is: Should Chevron be overturned? The 1984 Supreme Court decision Chevron v. NRDC created a judicial deference doctrine to agency action commonly known as Chevron deference. Chevron doctrine has been implicated in crucial debates about the modern administrative state and separation of powers. I'll ask our two debaters to open by briefly responding to the motion and then I will follow up with further questions and at the end we'll open it up for audience questions as well. First to you Professor Hamburger, can you briefly summarize what Chevron doctrine is and why should it be overturned or not?
Philip Hamburger: [00:03:24] Thank you and it's a great pleasure to be here not least with my distinguished panelists, one of whom actually is not only a colleague but a neighbor, so it's a great pleasure to be here. She happens to be I think the most formidable person on the other side of this debate and that I think will make it all the more fun. So Chevron, the 1984 Supreme Court case, is a very odd duck. It's a case decided by the Supreme Court that requires judges to defer to an agency's reasonable interpretations of ambiguous statutes. Ordinarily when a judge encounters a statute that's a little uncertain the judge decides it and if it's too uncertain the judge will simply let it go and say there's no meaning there. But Chevron does something different. When an administrative agency has already interpreted the statute and put that interpretation into a rule, the Supreme Court requires all judges, Supreme Court judges and lower court judges, to defer to the agency's interpretation within a few guidelines- not very narrow guidelines and the effect of this is twofold. One, it enlarges agency power to make rules. Under Chevron agencies that did not have express authorization in statute to make rules on the subject now can make rules that control all of us and reduce our liberty. And second and I think of particular importance for our purposes: it limits judicial power, barring judges from judging where they ordinarily would do so. So that's what Chevron Chevron is. I hope that's a succinct description of it.
Ulrich: [00:05:03] So why should it be overturned? Or why not?
Hamburger: [00:05:05] Oh, why should it be overturned? Well how can I count the ways? Do we have time? So I could dwell on the fact that it is contrary to statute, it's contrary to the Administrative Procedure Act, quite clearly contrary both to its text and intent. I'm not going to linger on that. I could talk about the perversion of justice that it produces. I'm not going to talk about that. I could talk about the violation of separation of powers and other structural constitutional problems. I don't want to talk about that either. There are thousands of law review articles on this. They are all equally tedious. I want to focus on the really interesting reasons Chevron is unconstitutional. First it requires judges to violate their duty of independent judgment. What is a judge? Well a judge is someone who has a duty, an office and a duty, to judge, to exercise his or her own judgment. And this is implicit not only in long traditions of British judicial duty but in judicial power itself. As James Iredell, one of our first Supreme Court justices, said, this is the duty of the power. With the power to the courts comes the duty of the judges to exercise their judgment. And the result as put by John Marshall in Marbury versus Madison as we all know is, as he puts it, it is emphatically the province and the duty of the judicial department to say what the law is. But then Chevron comes along and says oh no no no judges can't do this where the executive in the form of an agency has said what the law is, where an agency interprets. And this is very odd. Why are we requiring judges to give up their judicial office and duty? And so this alone is reason for thinking this is unconstitutional under Article 3 which establishes the judicial power as we all know. But it gets even worse. There's a second and independent reason to think that Chevron is unconstitutional. It requires judges to engage in judicial bias. I actually wrote an article it's called not Chevron deference but Chevron bias and for those of you who are lawyers I recommend it. It details the sort of arguments we're making today. Where the government is a party to a case, Chevron requires judges to favor the government's interpretation. This is very odd. Can you imagine a rule requiring a judge in a criminal prosecution to favor the interpretation of law put forward by the attorney general? It would be perverse. This is systematic bias in favor of the legal position of one of the parties, indeed the most powerful of parties in violation of Fifth Amendment due process of law. The Fifth Amendment requires unbiased judging if nothing else. And there are very few provisions of the Constitution to which I think there is more general commitment than the due process of law. And the Supreme Court has said even the appearance of a potential conflict of interest violates the due process of law. That's Caperton v. Massey in 2009. Well here we have systematic institutionalized bias in favor of the government in cases. I can go on. The code of judicial conduct requires a judge and I quote to disqualify him or herself in a proceeding in which the judge's impartiality might reasonably be questioned including but not limited instances in which the judge has personal bias or prejudice concerning a party. Now this isn't personal bias. It's worse. It's institutionalized bias. In effect this is an abnegation of judicial power and a violation due process. In fact even the defenders of Chevron more or less admit this. Peter Strauss, another of my distinguished colleagues, calls Chevron deference Chevron obedience. The judges must obey. Adrian Vermeule, another former colleague, expressly calls for the judicial abnegation of power, something that I think would seem grotesque to most lawyers. I'll stop here. I have a lot more to say. I think eventually we should get to the question of Chevron and equal voting rights. But let's just stop right here. I look forward to hearing what my colleague has to say.
Ulrich: [00:09:05] Professor Metzger, please feel free to fill in on That's my theory. The video they said about any of what Professor Hamburger said about Chevron itself and if you could respond to the motion, should or should not Chevron be overturned?
Gillian Metzger: [00:09:16] Thanks, yeah. I'm delighted to be here. Thanks to the Federal Bar Association and also to the National Constitution Center and I'm particularly pleased to be helping in the wonderful work that the NCC does. So I think Chevron should not be overturned. You won't be surprised to hear that's my view given that this is a debate. And let me quickly give a concise summary of why not and then I'll expound a little bit. It shouldn't be overturned because the constitutional attacks on it are unfounded and in fact under a proper constitutional understanding Chevron deference or forms of deference are actually constitutionally compelled. It shouldn't be overturned because the attacks on Chevron deference rest on a conceptual confusion, on the idea of a very strict distinction between law and policy which is one that simply doesn't exist and denies the indeterminacy in law that is a basic aspect of our legal system. It shouldn't be overturned because those who attack it really exaggerate what impact it has, exaggerate both the attacks on the judicial role but also exaggerate and ignore the extent to which Chevron has been in various ways domesticated and is simply a legal framework that will wax and wane over time. And finally it shouldn't be overturned because the effects of doing so, depending on the basis, either has a tremendously radical disruptive potential or will have little effect in practice. So let me expound a little bit on each of those as to why the attacks on Chevron are constitutionally unfounded. Those attacks rest, as my colleague and neighbor Philip Hamburger just recounted, on an idea of the role and duty of the courts. Philip has talked about in terms of the office of being a judge. One thing that ignores is that we've got a long standing precedent of deference by courts to executive interpretations, long standing acceptance that actually if you think about the early years of the country in the early centuries quite a lot of administrative actually including administrative interpretation wasn't reviewed at all. But in addition there has been and historians have documented patterns of judicial deference to interpretations including interpretations issued by executive branches over time. Now there is some debate about whether or not that's just contemporaneous executive interpretation or whether it's a result of the operation of devices such as the writ of mandamus which was how you brought challenges to executive action over time, but the more important thing is that for many, many years and for much of the early centuries of this country until well into the 20th century and then manifested in Chevron we have had a longstanding tradition and practice of deference. So if indeed that was all at odds with Article 3 a lot of people would be surprised. Second reason why it's not an Article 3 problem is because it ignores that Chevron itself gives substantial room for judicial independent judgment. When people talk about Chevron they tend to attack it by focusing on Chevron deference, the second step of Chevron. Well the first step of Chevron instructs a court to determine whether or not Congress has spoken clearly, address the question the agency is addressing given the agency power to address that question. That is all done using a court's independent judgment about what the statute means. Some judges do it- as I'm sure many in this room know, a quite robust inquiry at that step. And that is all independent judgment, right? You only defer once the court has determined that in fact Congress has given this question to the agency. The reason why in fact Chevron is constitutionally compelled turns on that very aspect of Congress and many of the attacks on Chevron point to it as a battle between the courts and the agencies. But actually the critical factor here is Congress, right? The key point is that Congress, using its constitutional power, has delegated authority to an agency to implement and determine policy in an area subject, of course, to a governing statute. When courts defer to an agency's interpretation of a statute that is ambiguous, they are acknowledging that agency role in policy setting that Congress has instructed the agency to undertake. Given that the court has long upheld Congress's power to delegate authority in this way, the court is then bound to acknowledge the implications of that delegation which are that agencies have room to establish policy and that judges, recognizing that Congress- once they recognize that Congress has left this question to an agency, judges at that point need to defer to not just any interpretation- a reasonable interpretation, a permissible interpretation by the agency. And it also bears noting that Chevron is simply one of the many administrative law doctrines that apply and courts regularly also require agencies to provide a reasoned explanation of their decision making. That fact, about recognizing that what is going on when an agency interprets is an act of policy setting, reveals the conceptual confusion underlying the attacks on Chevron which posit an idea of law and policy as conceptually distinct and are based on the idea that giving agencies control over law is fundamentally at odds with our constitutional structure. If you recognize that there is really no such clear distinction between law and policy, that conceptual foundation for the attacks on Chevron dissipate. Why don't I stop there and leave my comments about the exaggerated impact and the potentially radical potential of the attacks for later.
Ulrich: [00:15:17] Great. Thank You. So, Professor Hamburger, I invite you to respond to anything that Gillian said. But also she mentioned the history of deference and you've written on history as well. Is there anything that the history of this case or of administrative law in general has to say about your views on Chevron?
Hamburger: [00:15:38] Oh my. There's a lot to be said there. Just for clarification I should begin by saying I take, in this whole debate, I take no position on the difference between law and policy. That can be clear, it can be amorphous. There can be indeterminacy and some things yet are also clear. We all know that spectrum fairly well. One thought on a point Gillian raised, which is I think very important and interesting, Chevron itself actually requires the judges to interpret. I think that's absolutely true. It requires the judges to interpret, to determine the extent of authority in an agency to engage in their own rule making interpretation, and one might think, oh that's enough. But of course it's rather odd isn't it? A rule that requires the judges to interpret only so far as then to cut off their power to interpretation and not actually interpret the core of the question, the substance of the statute. It's not just any sort of interpretation. In fact it leaves a giant hole. It's like a doughnut. Yes you can eat around the edges but in the middle there's a giant hole and that's where you'd expect judicial interpretation. So the fact that Chevron leaves some room for some interpretation at the edges really does not resolve the problem which still remains. My argument isn't that judges cannot interpret under Chevron. It's rather that they give up their judgment, they give up their power of interpretation, indeed their duty to interpret and do justice between the parties, at the core and the things that really matter. And any application of judgment by a judge let alone in a way that is biased towards one of the parties seems to me utterly incompatible with Article 3 and due process. What sort of country do we live in when judges commit themselves to decide in favor of one of the parties simply because that party declared its position of what the law is prior to the other one and because that one happens to be the government? Now in the history, we could delve into the history at length. I don't really want to do that except to say that I think the defenders of Chevron tend to misread the precedents. Yes there are 19th century cases that use the words respect and deference but they do so for entirely other purposes. It has to do with deference and respect to contemporaneous opinion, in other words it's an originalist position of 19th century judges. If there's contemporaneous opinion by anybody not just the executive they'll pay some respect and deference to that because that's illuminating as to what a statute might mean. And if there's been longstanding interpretation not singularly from the executive or an agency but generally, they pay a certain respect to that. That's what these 19th century cases are about. I'll quote you from one, Decatur versus Poldean 1840 which states very bluntly the Supreme Court position on such things: if a suit should come before this court which involved the construction of any of these laws, the court would not be bound to adopt the construction given by the head of a department. And in fact I've gone through all the Treasury papers when the Treasury was run by Alexander Hamilton. And it's very interesting. He doesn't think there's deference to agency interpretation, and this is the man with the boldest vision of executive power one could imagine. Now, I want to get to a slightly different sort of history: contemporary history. I'm- what I want to emphasize now is that Chevron is already dead. This is the walking dead. It's like some sort of horror film. It's still walking but it's dead. What do I mean by that? Two justices, Thomas and Gorsuch, have already said this is unconstitutional because it deprives judges of their independent judgment. You might think, oh it's just those two. Well not so fast. It's not just them. For nearly half a decade, the Supreme Court has been reluctant to rely on Chevron. It's been obvious to everybody watching the court. It was obvious to me already in 2014. It's dead in the Supreme Court but the court doesn't want to acknowledge this because this would be to admit error and they're very reluctant to admit error, aren't they? They should be more honest and candid shouldn't they? So it's still binding in other courts and that's why I call it the walking dead. And there's deep concern about this in- amongst the judges, the other judges, right? Harvard Law Review recently published a survey of 42 lower court federal judges conducted by Abbe Gluck and Dick Posner, one a distinguished Yale Law professor, the other a former Seventh Circuit Judge, both former colleagues of mine, I think widely respected left and right. And what they found was widespread judicial discontent with Chevron below the Supreme Court. I'm going to give you some key quotes just to give you a flavor of this. Most judges are not fans of Chevron. The exception is the D.C. Circuit. They have drunk the Chevron kool aid. This is from a federal judge. But the vast majority of non D.C. Circuit judges we spoke with seriously questioned the wisdom and even legality of Chevron. All but one of the judges interviewed did apply that rule on opinions but most were decidedly anti Chevron and in fact just earlier this summer with the Wisconsin Supreme Court, in a case called Tetratech, held their state version of Chevron deference unconstitutional and they did on two grounds: judicial independence and judicial bias. They focused on both grounds and what's more they took a very rare step. They basically admonished the Supreme Court of the United States to do the same thing, essentially complaining that they hadn't set the record straight on this. And I want to conclude this little point about the Walking Dead by saying it's entirely non-political. It seems political because of some of the nomination battles, but it isn't. The survey in the Harvard Law Review found and I quote the judges expressing skepticism regarding Chevron divide equally among liberals and conservatives. And just to quote two very different justices on this, about the danger: Justice Breyer has said Chevron would result in a greater abdication of responsibility to interpret the law than seems wise, and Justice Scalia wrote, Chevron may require a striking abdication of judicial responsibility. This is the walking dead and just no one at the very top court wants to admit it.
Ulrich: [00:21:47] So Gillian, lots to unpack there. I guess I'd like you to respond to Philip's assertion that Chevron is the walking dead. Is that- do you agree with that statement? And is there anything from the court's recent terms, for instance you filed in Lucia, maybe not right directly on Chevron but other administrative decisions that tend toward maybe greater skepticism of the court toward the administrative state and administrative law doctrines.
Metzger: [00:22:17] Sure, happy to. Well first of all I want to be quite clear. I am going to be using the term Walking Dead without attribution in my administrative lawclass next semester. I probably will even include a slide from the show just to really jolt them because I can tell you right now, the ins and outs of Chevron deference are not the way to sustain engaged student attention in an administrative law class. So let me just- I definitely want to get into the question of whether it's the walking dead, and I do think it's very important to see the attacks on Chevron in part of the broader judicial and particularly Roberts court approach to the adminsitrative state. But I want to first just say a couple of other comments in response to some things Phillip said. One is I never engaged with his point about bias. I think the answer there is simply the point I made about delegation. What courts are doing when they are deferring is recognizing a choice that Congress made. Congress is the entity that is given the ability to set policy, the ability to legislate. Congress is the democratically accountable branch. Congress has chosen to give that policy setting power to an agency and the courts are simply acknowledging that. We can go into the ins and outs of bias. I think if this counts- to defer in this way- counts as bias in the way we understand bias then we have dramatically expanded the understanding and scope of due process in a way that would have really phenomenal implications. So that's on the bias point. On the history point, I think it's important to note that there's increasing, really interesting scholarship on the history and this is actually to my mind the best benefit from the current debate over Chevron and people are really delving into the history of these doctrines and how they emerge. But in fact the evidence is hard to pin down and it's hard to pin down because there are many overlapping strands. When you hear a reference to deference or weight in early opinions, part of that is because our current model in which the action of administrative agencies is subject to the sort of immediate review by a federal court simply did not exist. That appellate model really comes about at the end of the 19th century, beginning of the 20th century. It's a real development of our modern administrative state and prior to that you had a system of traditional writs, the main one being mandamus which only allows review- doesn't allow review really of discretionary judgments and only allows review in this really clear air that's being attacked. Now it's worth noting the courts didn't think only challenging administrative action under mandamus when there is a clear error was at all problematic with Article 3. That goes to my idea, my point earlier that in fact there's a lot of historical support for limited judicial review here. But it does make it hard to know whether or not the standard of review was actually independent judgment or deference in some instances, or it was a result of the framing of the challenge. Either way, administrative agencies had a whole lot of ability to set the meaning of statutes. I can quote some early precedent back that up. I think it's more important to realize that cases that have quite expressly engaged and said deference is due go back, if you've just focused contemporaneously on the 20th century, they go back to the early decades of the 20th century. It has been consistent. Chevron is not a novel decision in that regard. It is part of a long standing line of precedent under which some forms of deference are greater and some are less. Sometimes it's the power to persuade. Sometimes it's a little bit stronger right. That matters because I think it goes to this point of whether or not Chevron is dead which also connects to my point about- the impact of Chevron is exaggerated. And the potential implications of the challenges. So I actually agree with Philip. I think we've seen a pretty significant curtailment in Chevron deference. A lot of exceptions have been written in. The major questions, exception recently in the case involving the Affordable Care Act, King v. Burwell, is just one example. If you look at the Supreme Court Chevron actually never had the kind of binding effect that it is claimed to have had at the Supreme Court. This is not a surprise, right? You think the Supreme Court is going to consider themselves always bound by their own precedent? Please. But even if you look at the different justices, they had very different forms of Chevron, right? So Breyer who actually defers most probably of anyone on the court, never really bought into the two level framework of there's one step where you look at- the court is supposed to look at the statute and determine if Congress spoke clearly, and then if not, defer. Breyer's approach has always been much more of a multi faceted weighing of whether or not deference is appropriate, is it interstitial, how important is the question to the statutory scheme, and so forth. He coexisted with Scalia who is adamant on two levels and adamant because he thought it was very important to curtail judicial policy choices and that the point of Chevron was a way of curtailing judges interjecting their own views. So we've always had a variety. Right now if you look at the attacks on Chevron there is also a variety. There are some very extreme attacks on constitutional grounds essentially arguing that Chevron is fundamentally unconstitutional along the lines of Philip. You have that from most prominently Justice Clarence Thomas and now Justice Neil Gorsuch. He made the point when he was a judge but now obviously a justice, has made a similar view. Chief Justice Roberts has expressed a lot of skepticism about sort of the overweening administrative state and at times, particularly his dissent in City of Arlington, really critiqued the court's application of Chevron deference. But in fact he's willing to go along with Chevron and accept Chevron but just in a narrower sphere. And he has not been taking the position of a dramatic overturning of Chevron. My own guess is that probably most likely Justice Kavanaugh will be in a similar camp. So I don't think Chevron is going away. It has been domesticated, it has been pushed to the side, and the Supreme Court has always been willing to deviate from it when it so chooses. But it still plays an important role on the lower courts and it plays an important role in ensuring certain kinds of consistency and constraints on judges. This final point, or final two points I want to make: one is, there will always be deference. Part of the problem- and this is why in some sense the attack is not going to be effective is because deference is a reflection of delegation. If you delegate- if congress delegates power to agencies, courts will understand there are some kinds of questions that are just not in their bailiwick. They don't have the competence. It's not legitimate. They are not legitimate, democratically legitimate policy makers. They will defer to agencies. They always have, they always will, ok? So in that sense if you see Chevron as just maybe a more formalized version of the overall trend of deference, it's not going to go away. It may be domesticated, it's not going to go away. The possible dramatic impact of the attacks on Chevron is that the way those attacks have gone is, they've gotten to the point of saying Article 3 and then the response is delegation and then they say oh but that delegation by Congress is unconstitutional and fundamentally what the fight is about is a fight over Congress's ability to delegate. If you try to overturn that, which the Supreme Court has not done, delegation- support for delegation is long standing. Nor do I think there is an appetite other than one or two justices on the court to overturn Congress's ability to delegate. But if the court were to do so that would be dramatic. That would transform the nature of our government today in fundamental ways, very undemocratically I would argue. And so that's the the potential radical impact of this attack. Just one last word because I never got to the overarching challenge but I think you can see how the attack on Chevron fits in with what we're seeing on the Roberts court which is a fair degree of skepticism about administrative government governance and the administrative state. There have been a number of structural constitutional challenges that the Roberts court has engaged in. They've been particularly active when it comes to administrative adjudication. That's the Lucia case. And so we could talk about that if there's interest. But you can see once you understand the attack on Chevron as fundamentally implicating Congress's power to delegate policymaking and implementation to agencies, that's the broader potential attack on the administrative state that the Chevron criticisms invoke.
Ulrich: [00:31:15] Philip feel free to respond to any of the points that Gillian made but also if you could respond directly to- Gillian mentioned judge, likely Justice Kavanaugh if he is confirmed, will that be the final nail in the coffin of Chevron or will there still me as Gillian mentioned some level of deference? And if not though, what will replace it? Will there be some kind of revival of nondelegation doctrine or how will courts sort of fill that gap?
Hamburger: [00:31:45] Right. Will this be the last nail in the coffin? We've all seen the movie right. There's no final nail in the coffin, the beast as always lies there, it's within us ultimately, the desire for judicial prejudice to favor our own cause, to get away with murder. So that beast will always be there. There is no final nail. I wish all the justices Well in thinking about these problems and I think all of them are worrying about it. I don't think it's particularly Kavanaugh. They all have this on their mind and they don't really know what to do because they don't want to admit that they made a mistake. I understand that. But actually it's the job of the Supreme Court to correct error including their own. Now there's so much to be said here in response to those thoughtful comments. Just one little point, is this not really bias, it's just an illusion? I just have a conceptual error. Well yes we should recognize the choices Congress makes but not when they conflict with choices that we the people make in the Constitution and one of those choices, which I think should resonate with people right and left and anywhere else, is that we should have unbiased judges. Whether you believe in one version of due process or another, unbiased judging is the core. Without that we're all in deep deep trouble. One might say and many scholars have said don't worry it's just delegated policymaking, no interpretation here. Just keep on whistling past the graveyard. Well the awkwardnesses is of course Chevron is very ambiguous on this. It mentions interpretation a lot and policymaking, but the opinion rests ultimately on interpretation. I'll quote. If the statute is silent or ambiguous on an issue a judge must defer to the agency's reasonable interpretation. It even says the case turns on the principle of deference to administrative interpretations. You can't run from this. This has been repeated in case after case, as Gillian mentioned, and there is now such a body of law on deference to agency interpretation that the fact that there's bias in favor of government interpretation cases is inescapable. Some of the most prominent defenders of administrative power have conceded this. Thomas Merrel, another colleague and neighbor, writes, even Chevron's most enthusiastic champions admit that the idea of an implied delegation is a fiction, I quote others but you get the drift of it. I have a plea for all of those who have a lingering love of the administrative state. I understand there is a certain appeal to it. But my first plea to you is to consider your own principles. The underlying principles that justifiy administrative power are congressional authorization and judicial review. These are the principles that over the past century justified having so much power in agencies including Chevron deference, but Chevron is the opposite of this. Chevron says even where a statute is silent there is authorization for agency lawmaking and interpretation. And as for judicial review, well it all slants in favor of the government. Live up to your principles. If you want to defend the administrative state, stick to your principles because those are at least plausible principles even if they're not quite in accord with the Constitution. Now I'd like to finish this little comment by getting back to something I mentioned earlier, namely equal voting rights. We don't think of administrative power in connection with voting rights. I'd like to force the question to face up to the grim reality. Since the Civil War there have been two main developments in American law. Equal voting rights from 1870 onwards. It took about a century or so just to get the principles carried out halfway in reality and it's still a struggle. But we're far beyond where we were in 1870 obviously. And the other major development in American law is administrative power. And the question no one wants to ask but we need to ask is, is there a connection? Equal voting rights allowed almost all Americans to vote for their lawmakers. But administrative power shifted lawmaking out of Congress into the hands of unelected administrators. Is this a coincidence? Of course not. And Chevron is part of the story. Now part of the answer to this is simply racism. I want to quote you from Woodrow Wilson. Certainly at the beginning administrative state, racism is a key element. Woodrow Wilson wrote one of the most important essays on administrative power in our history. The reformer is bewildered by the need to persuade, I'm quoting, a voting majority of several million heads. He was particularly worried about the diversity of the nation which meant that reformers needed to influence and I quote the minds not of Americans of the older stocks only but also Irishmen of Germans of Negroes. I quote again, in order to get a footing for new doctrine, in other words to win politically, one must influence minds cast in every mold of race. Minds inheriting every biased environment warped by the histories of a score of different nations, warmed or chilled, closed or expanded by almost every climate of the globe. Now I'm not claiming that today administrative power is racist. All along even more important than the issue of race was class and that is still predominant and it underlies doctrines such as Chevron. Chevron is part of a sweeping shift of power to the knowledge class, a shift of power out of the hands of folks who vote in local elections for the representatives and think that they actually make law, into the hands of people well like us in this room who have university degrees and are more attached sometimes to the authority of our knowledge than to the authority of the voters. And if we're going to deal with Chevron and related doctrines we should recognize that one of the reasons they go so far even beyond the principles of administrative power to shifting power to agencies and why this seems so acceptable to people well like those of us in this room. It's because of class and that's an ugly fact we can never never forget.
Ulrich: [00:37:51] Gillian I'll give you the chance to respond to any of Philip's points before I ask you both for some closing thoughts and then we'll get to our audience questions.
Metzger: [00:37:59] Wonderful. So this is one of the reasons why I love having Philip as a colleague because his ability to span vast areas always is challenging. He did not however by the way bring in his study of Quakerism which I am expecting in those final comments just an FYI there. So unfortunately on this one I think Philip you are fundamentally wrong there. If you look at the advent of what we now consider the modern administrative state and it's you know it existed- it started to exist it existed- much more over, throughout our whole nation's history as historians have shown. It came to be expanded in the progressive era to the turn of the century. But of course the modern dramatic expansion of the modern administrative state happened with the New Deal with FDR. You focus on what were some of the reasons for that. It was an expansion that was fundamentally driven by popular desires for more regulation, popular fights over things like business versus Labor. Who opposed the administrative state? The administrative state was opposed by industrialists. If you go back and you look at the Liberty League which was a leading group that was attacking FDR and bringing all sorts of constitutional challenges against administrative actions and new statutes. Who were they? They were the DuPont brothers, that's who they were. They were the DuPont Brothers and all of their billionaire or probably at that point millionaire industrialists friends. That's what the opposition to administrative government has always been rooted in. And the impetus for administrative government has been for- a desire for greater government protections, for greater government benefits, greater government regulation by those who have not been those traditionally elites with power or wealth. If you particularly go back and look there the real fights were about labor and it's fascinating if you study the debates over the birth of administrative state, today it's much more over environmental regulation and other areas but it was profoundly fraught over Labor at the time it was born. And it is simply mistaken to think that the reason why the administrative state came to be was a way of siphoning off power from the newly empowered working class or lower working classes into the hands of elites. The point about racism. Philip is absolutely right that there were many racist features of key parts of our administrative state. There were many racist features about our country. The problem is that racism is a deep thread in our natural political history and culture. The reason why, for example agricultural workers were not extended coverage under the NLRA was because of the power of Southern Democrats who would not support FDR if he challenged the race relations in the south. His willingness to go along to get something underway is something many people criticize. But it is nothing inherent in administration. It is inherent in many other political factors and in fact if you think about many of the significant moves that our country has made at times to combat racism actually come from administrations. So think about Truman's order, right, ordering that the military desegregate. What was that? That was an administrative action with profound implications. Just one example. There is a whole area of scholarship called administrative constitutionalism and a number of historians who have studied how administrative actors, people at low levels, people at high levels in agencies really thought sought to use their executive administrative powers to address racial imbalance in this country. So finally on this question of whether or not administrative government fundamentally undertakes takes away power from those who vote. Again it goes back to Congress. It is Congress, for whom people vote, who has created the administrative state. It is Congress responding to Democratic desires for regulation and for programs that help create new agencies and create new requirements a new statute. That is all very democratic. In fact the administrative state is probably the most democratic in that sense result of our politics that you could imagine. And what is not at all democratic is a bunch of courts striking down administrative measures on grounds of a constitution. There may be very good reasons to do that. We are a constitutional system. But to argue that this is a battle over democracy with administrative government on the side opposing democracy is simply not an accurate portrayal.
Ulrich: [00:42:46] So Philip I'll ask you for your final thoughts on the future of Chevron and what would you like to see- what change would you like to see in the ways that judges interact with or review both agency decisions and the administrative state more broadly?
Hamburger: [00:43:02] Thank you very much. And I should begin by saying what a pleasure it is to have been discussing this with Gillian. I'm sure we'll continue this in the apartment building and at school. So first the history. I don't want to delve into the history now. Suffice it to say I think the other view of the history is profoundly mistaken. Just to put it simply, when one transfers lawmaking power from the electorate and their elected officials, diverse elected officials, into the hands of a homogenized class it doesn't matter whether that homogenized class considers itself above racism or not. Inevitably there'll be consequences for a diverse populace- a diverse populace cannot be represented through an administrative state. They need to have representatives who are worried about being reelected to respond to them and that's avoided when you put the power into the hands of a marginalized class of administrators. And this is a severe problem. It's not so much about race these days it's about education and knowledge. And we all know these days that there is deep resentment about some of this and some of that actually comes out of the administrative state and doctrines like Chevron. Chevron is now a bad word out there. People hate Chevron even though they don't even fully understand what it is because they do have an innate sense, an accurate sense that this is incompatible both with our representative system of government and of course with judicial independence and a due process and freedom from bias. Now, so much for the history. Now let me talk about the current affairs and the constitutional question. The question is very simple. Do we want to have an independent judiciary that decides cases on their merits fairly between the parties with full due process for both, that is not biased in favor of the government? Wherever the government proceeds against you I think the answer to this is very very easy. If someone really wants to stand up against due process, let let them explore. Let them do so and let them explain why Chevron is all about interpretation and all that affiliated doctrine is about interpretation. The Supreme Court can't walk away from this, right? That's one of their problems. They've said it's interpretation for decades. What are they going to say now. It wasn't really interpretation and that's why we're not biased. They have imposed bias in the federal judiciary and therefore on the rest of us. And we all have to live with this terrible terrible mistake. Chevron is an abomination not merely because of what it does in particular cases. Because it undermines our confidence that we can get a fair hearing in a federal court. And the answer is currently we cannot. When the government moves against us administratively because of doctrines like Chevron, and Chevron of course the worst, what's the future? I don't have high expectations that the Supreme Court will have the gumption to admit its own error. It should. I don't think it will. So I think the action is going to be in the lower courts and we've already seen this. We've seen it in lower federal courts and we've seen it in the state supreme courts as well. The Wisconsin Supreme Court reprimanded the Supreme Court. And I'd like to close by saying if any of you have Chevron cases and you want some help, even if you just want an amicus brief supporting your position, please get in touch with me or get in touch with the New Civil Liberties alliance. We're here to help. And one of our targets of course is Chevron because Chevron as I said is an abomination. It's a destruction of everything we love about due process and unbiased judging. Thank you.
Ulrich: [00:46:36] Gillian, your final thoughts on Chevron and what would you like to see change in the way that judges interact with or review agency decisions?
Metzger: [00:46:45] Thank you and thank you for listening to us. It has been a lot of fun as it always is debating Philip. But one nice thing to say in conclusion, I think there is something that Philip and I agree on which is, I actually think that thinking creatively about ways of making agencies responsive and attentive to the needs of different communities, in the different ways programs are implemented, is important. I think the fundamental way to do that is actually through thinking about the structures of the administrative state. There's a lot of ways of bringing in the states and localities into national programs. The whole nature of administrative rulemaking actually provides much more room for feedback and for comments. People are thinking creatively about how to make it more responsive. But to go down that route is to accept the fundamental constitutionality of administrative governance and that indeed is why I am frustrated by attacks on Chevron or broader constitutional attacks because they think we are missing the urgent questions by fighting these battles about constitutionality that go back to the 1930s. I doubt very much that there will be a popular uprising over Chevron. I have been struck by the extent to which Chevron has come into Senate confirmation hearings. And if it goes beyond that, well look it's great for me. I'm an ad law person. Then I'm suddenly way cool. But I don't think so. In terms of what I do think we will continue to see in the courts a lot of contestation about this and we will see some in Congress. There have been measures in Congress, the separation of powers Restoration Act, to try and peel back at Chevron so I think we will see that. But I think it will be at the level of elites. In terms of what the courts will do. I think we will see continuing further domestication of Chevron. You know the Supreme Court hasn't really relied on Chevron since at least 2006-7, maybe even 2014. But there is one case in 2016 that may count. And so it's not as I said before it's not been that much of a force recently in the Supreme Court. It's been more more relevant in lower courts. But I think what we're going to start seeing is more robust inquiries at the first step is Chevron into what the text of the statute says and the narrowing of the extent to which questions are being read by courts is left to agencies. That's part of the play of Chevron. It won't be overturning it. I don't think the fundamental constitutional attack on Chevron is going to succeed. Because as I've said I don't think it's constitutionally founded. I don't think the justices agree with it across the board. And I think they recognize that deference in another form would simply arise. The broader constitutional attack on the administrative State I think is really one to keep your eye on. That is something that the Roberts court has really been pursuing. And here I think the ultimate outcome will depend a lot on what happens in politics but you know if we have politics that move in a very democratic more progressive more pro regulatory direction and we have a court which is trending very much in the opposite direction that leads to the kind of clash that we saw in 1937. That leads to the Supreme Court being more out of touch with the government and with the populace than is healthy for the institution. And I'm not sure what the court would do then. My own inkling is probably Roberts is enough of an institutionalist he will pull it back. But that turns on politics and in- right now the government that we have elected is actually profoundly not pro regulatory. So there isn't that disconnect right now. The Supreme Court is very much in keeping with governing administration inD.C. So on that one I honestly think we just can't tell what's going to happen.
Ulrich: [00:50:30] Philip, Gillian thank you so much for joining us.
Metzger: [00:50:31] Thank you.
McDermott: [00:50:38] The We the People team would like to give special thanks to the Federal Bar Association for hosting us at their event and to their on site AV team for facilitating this live recording. This episode was engineered by David Stotz and produced by me, Jackie McDermott, and by Madison Polter and Scott Bomboy. Research was provided by me and by Lana Ulrich. Join us back here next week for our Supreme Court term preview. Until then you can keep up with the National Constitution Center by signing up to receive constitution weekly, our email roundup of constitutional news and debate, at bit.ly/constitutioncenter. That's bit.ly/constitutioncenter. On behalf of the National Constitution Center, I'm Jackie McDermott.
The Constitution In Crisis: Can Our Democracy Survive?
Tuesday, October 2 • 8:30 – 10 a.m., Gallup Building
Free with Atlantic Festival pass
Over its 231 years, the U.S. Constitution has been a resilient framework for our government and blueprint for discourse and dissent – surviving a Civil War and gaining strength through conflicting interpretations over time. Today, the Constitution faces new challenges. Polarization is high. Truth is under assault, faith in leadership has declined, and tribalism is on the rise. During this morning summit, The Atlantic and the National Constitution Center will explore the health of the building blocks of our democracy. In a time of fake news and echo chambers, impassioned tweets rather than reasoned arguments, and declining trust in institutions, how can we protect democratic debate, the rule of law, and the constitutional ideals that have defined America since its founding?
Watch this America's Town Hall program live at constitutioncenter.org/live.
In partnership with The Atlantic and sponsored by the John Templeton Foundation and the William and Flora Hewlett Foundation
What Is Citizenship?
Tuesday, November 13 • 6:30 – 7:30 p.m., Pearlman Building
Free for National Constitution Center and Philadelphia Museum of Art Member, $10 Non-Members
Jeffrey Rosen, President and CEO of the National Constitution Center, moderates a debate about the various ways that citizenship and nationhood are defined today with scholars Jaya Ramji-Nogales of Temple University, John Eastman of Chapman University, and Ruth Wasem of the University of Texas at Austin. Admission includes access to the Perelman Building galleries.
In partnership with the Philadelphia Museum of Art and in conjunction with Yael Bartana: And Europe Will Be Stunned
Jeffrey Rosen: [00:00:02] I'm Jeffrey Rosen, president and CEO of the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. Judge Brett Kavanaugh's confirmation hearings have come to a close and to discuss what we've learned from them and what we've learned about the judicial philosophy of the nominee, I'm so honored and excited to be joined by two of America's leading commentators about the Court and the Constitution. The great Nina Totenberg and my dear brother in law near Neal Katyal. Neal is here in studio with me. I convinced him to come to Philly because he wanted so much to have this conversation with all of you and with Nina. He is a partner at Hogan Lovells, acting solicitor general under President Obama, he's argued 37 cases before the Supreme Court and he and I hope to do a video series in the future called "Brothers in Law." Neal, welcome to the Constitution Center.
Neal Katyal: [00:01:08] Thanks, great to be here.
Rosen: [00:01:10] And Nina Totenberg is the legal affairs correspondent for NPR, one of the nation's most legendary and prominent and prolific legal commentators. You've all heard her reports on NPR's All Things Considered, Morning Edition, and she anchored NPR's Peabody Award winning coverage of Justice Thomas's confirmation hearings and has covered over 20 Supreme Court confirmation hearings over the past decades. Nina we're so honored that you are here.
Nina Totenberg: [00:01:40] Thank you Jeff.
Rosen: [00:01:40] Let us jump in. Nina you've had this extraordinary record of covering, my goodness, 20 Supreme Court confirmation hearings. What is your performance review of Judge Brett Kavanaugh and how does he compare to the previous nominees that you've seen?
Totenberg: [00:01:57] Well I think that Chief Justice John Roberts probably retired the trophy for performance in terms of saying really as little as possible but doing it incredibly charmingly and with great wit. He was actually quite funny and they were not lines that he could have planned in advance because they often came in response to things that he was asked by- often by Democrats. The second might be Elena Kagan who was similarly witty and said very little. Justice David Souter was a terrific witness, very dry but also fascinating and at one point where he talked about his own conversations about Roe vs. Wade and abortion when he was in law school was pretty riveting. Again you couldn't really tell anything from what he said. This nominee falls somewhere in the middle. Of course the nominees in the- since about 2000 have said less and less. I would say before then certainly nominees declined to talk about many subjects but they also engaged with the senators about many subjects. That seemed to end in the early 2000s and has persisted ever since.
Rosen: [00:03:26] Fascinating. Thank you so much for that. Neal you haven't quite covered 20 but you've seen a lot of Supreme Court confirmation hearings. What is your performance review of Judge Brett Kavanaugh?
Katyal: [00:03:34] Well I certainly agree with Nina that the kind of gold standard was set by the Chief Justice as well as by Elena Kagan. I did sit through both of those hearings and they were extraordinary in their sense of humour, wit and ability to evade virtually any question. And I guess the opposite of that, the polar opposite, is the Bork hearings on the other side in 1987 where you had a nominee who is undoubtedly brilliant but at the same time someone who didn't come off quite as charming and did endeavor to answer every question which ultimately led to his demise.
[00:04:12] For Judge Kavanaugh, I think that probably the thing that came off the most is something that I've seen - I've argued in front of Judge Kavanaugh - is this is one of the most hardworking judges in America. He just knows everything about your case when you're arguing. He knows every footnote, everything in the record and so on and I felt like that really came through with the hearings. I mean he just had absolute mastery of every Supreme Court precedent. No notes, nothing like that. So in that sense I think he came off incredibly well, incredibly competent and polished. But I think Nina is right. He said very little at the hearings and, you know, he kept on referring to how Justice Ginsburg didn't answer very much at her hearings. But actually Justice Ginsburg answered quite a lot at her hearings. You know, she approved of Roe in the hearings, approved of Griswold and Eisenstadt with the birth control cases. She condemned certain cases like Dred Scott and Korematsu. She said the Lemon test for religious- for establishment clause cases was correct and, you know, a whole bunch of other things. So I think measured by that standard, you know, I think Judge Kavanaugh didn't say all that much. Now in Judge Cavanaugh's I guess partial defense, you know, the whole notion of these hearings is historically at least unusual. I mean we didn't have a confirmation hearing for Supreme Court Justice until 1916, and that was of course Louis Brandeis and the only reason that that hearing took place I think was a lot of anti-Semitism at the time. And Brandeis didn't even attend his hearings and in 1925 we had the first nominee, Harlan Fiske Stone, attend his confirmation hearing.
Totenberg: [00:05:52] But not answer questions.
Katyal: [00:05:55] Correct. And then Felix Frankfurter, you know, refuses to answer questions but goes to his hearing and really the modern practice starts in 1955 with John Marshall Harlan who has the distinction of being named probably the most Supreme Court Justicey name in history with John Marshall and Harlan all in his name. But, you know, he does answer questions and of course that's because Brown vs. Board of Education was decided the year before. And that really does set the mark for how this Court, you know, for the last 75 years has been a big player in our American lives. You know, not just in schools but in religion and in all sorts of other areas. And so it is a little unusual to think that we're having this huge decision over this Justice and it's going to definitely change the Court as we're going to talk about in massive ways maybe more so than any nomination in our lifetimes. But yet you have a nominee who doesn't answer some of the basic questions.
Rosen: [00:06:53] OK so you've both said that the Judge didn't say a lot but let's parse what he did say, and I want to ask you Nina, what did we learn about his judicial philosophy? In his opening statement he said, "My judicial philosophy is straightforward. A judge must be independent and must interpret the law, not make the law, interpret statutes as written, interpret the Constitution as written, informed by history and tradition and precedent." My question is, is it fair to conclude that he is not an originalist in the line of Justices Scalia and Thomas and Gorsuch and is more of a structuralist like Chief Justice Roberts or would you parse it some other way? What is his judicial philosophy?
Totenberg: [00:07:31] Well I'm not going to put a label on it but I do think you know from his opinions and there are a great many more of his opinions that are of consequence, both majority opinions and dissenting opinions, than there were, for example, for Justice Gorsuch, and his opinions show a person who is I think pretty much in the camp of the Court's most conservative Justices, whether they want to call themselves originalist textualists or natural lawists, I don't really care. But he is definitely in that group of Justices, and I would say not in the perhaps slightly more establishment John Roberts even Sam Alito camp.
Rosen: [00:08:25] Very interesting. Neal, I've been urging the people listeners to identify the philosophy of the nominees. Do you think that Justice Kavanaugh if he's confirmed would be a structuralist rather than an originalist? Does it matter, and do you agree with Nina that he's likely to be more conservative than Chief Justice Roberts? Or not?
Katyal: [00:08:45] I think that Judge Kavanaugh's philosophy is conservative. It's not originalist or structuralist even, Jeff, the quote you read from his opening statement had such a grab bag of different methodologies in it. And I think the best way to understand the philosophy is to go back and look at the decisions he has written and the decisions he's written, I don't think, are fairly characterized as originalist or structuralist. Sometimes they borrow from those principles, but they generally do reach a quite conservative result. And, you know, I was surprised. I really think that the Democrats spent so much time trying to attack this man's character and his, you know, reputation and honesty and so on and didn't actually ask the questions about the 300 opinions which, you know, after all is kind of a good measure of what kind of Justice we're going to get. And in particular, for example, Judge Kavanaugh has basically invented a whole new legal philosophy which, you know, you could call the Anti-novelty Doctrine. This idea that if the government is doing something now that it hasn't done in the first 200 years it's presumptively unconstitutional. Now, Jeff, you read in the- from his confirmation hearing statement, his opening statement, that he would quote interpret the Constitution as written. There is no part of the Constitution which says anything like, oh the government can't do something if it hasn't done it before. And indeed if it did have such a doctrine it would paralyze the federal government from the get go and mean that things like NASA couldn't happen because after all space wasn't around at the founding, and things like that. But that is Judge Kavanaugh's view. He's written it in several different opinions and it is a very restrictive view of federal power and yet you heard zero about that at the hearings, and I don't blame Judge Kavanaugh for that but I sure blame the Senate because, you know, these are important questions that should be asked and answered.
Rosen: [00:10:41] Interesting.
Totenberg: [00:10:43] Don't you think-
Rosen: [00:10:43] I was going to just ask you whether you also thought there were questions that Democrats should have asked but didn't, in the same spirit.
Totenberg: [00:10:50] Well the only subject that I heard not discussed at all, of course, was extreme partisan gerrymandering which is out there in the ether somewhere and I don't think- I think that those of us who cover the Court do not expect it ever to be recognized, at least in our lifetimes, as an unconstitutional practice now that Justice Kennedy has left the Court. However, I think I disagree a bit with Neal. I think the Democrats did ask some of those questions. They asked very specifically about guns and that is probably the most specific case in which Kavanaugh as a dissenting judge took the position that if guns were of a type that didn't exist back at the founding and were not regulated at the time of the founding or thereabouts, they couldn't be similarly regulated today. And he said that really pretty explicitly in his dissenting opinion. Dianne Feinstein, the senator from California, asked him about that. Others asked him about it actually at the very end of the hearing when probably lots of people had tuned out, but it was in those last hours of the second day when guns came back up. So I think it's not quite a fair rap to say that the Democrats didn't ask him about some of these views. They asked him about questions of agency structure. They asked him about interpreting statutes and whether a statute could be ruled out of order if it hadn't- and his view is that unless it specifically gives the agency the power to regulate, for example, climate change, which didn't exist at the time that the Clean Air Act was adopted, that then it can't cover climate change. And that is at least a controversial viewpoint. I'm not taking a position that it's correct or incorrect. It's a very controversial viewpoint in the modern era.
Katyal: [00:13:03] So, Nina, I absolutely agree with you that the Senate did ask questions about specific cases, things like guns as you point out. I think my point was a more general one. Jeff had asked about judicial philosophy. And to me, Judge Kavanaugh has a judicial philosophy that is based on this Anti-Novelty idea, and it cuts across not just guns but all sorts of opinions like his opinion striking down parts of the Consumer Finance Protection Board because it's too novel and hadn't been done before. But it's in all sorts of areas and I would have liked to have seen a little more about that and not about a specific case which you know he's going to bob and weave about but about a more general philosophical temperament and view of the Constitution.
Rosen: [00:13:46] Well let's talk about that Consumer Financial privacy case because it says so much about his views on executive power. Nina, remember that was in the exchange with Senator Klobuchar where she asked him about his dissent from the D.C. Circuit's decision upholding the Consumer Financial Protection Bureau and Kavanaugh suggested in the exchange that he would overturn the Humphrey's Executor case, which was decided by Justice Brandeis to uphold the constitutionality of an independent Federal Trade Commission during the New Deal. What did you make about that exchange and his generally questioning the constitutionality of independent executive agencies?
Totenberg: [00:14:28] Well I thought, maybe I misunderstood, but I thought he said that he recognized Humphrey's Executor as binding precedent. Now we all know that that doesn't mean the Supreme Court can't reverse it, but that's a pretty old case and it has governed the structure of American government since the 1930s. So I don't have quite the recollection that you do.
Rosen: [00:14:53] You're absolutely right. Your recollection is perfect that Klobuchar said, "Do you think Humphreys, that was 80 years ago, was correctly decided?" I just happen- I have the transcript in front of me because of the great prep team which is sitting here. And Kavanaugh said, as you suggested Nina, it's a precedent of the Supreme Court and it's been reaffirmed many times, but I thought, he said, that the board could operate without a single member head but have made the person removable at will. And it was, not to get too wonky, but in his dissent itself where he said he reserved the question of whether Humphrey's was correctly decided and indicated that perhaps he might be open to an argument that it was not. So I guess the broader question is, whether or not he would formally overturn Humphreys, do you have the sense based on the exchange with Senator Klobuchar, that his view of the ability of the Congress to set up independent agencies is narrower than Justice Kennedy's?
Totenberg: [00:15:47] Oh I definitely think it does. But whether there are four other votes for that is not entirely clear to me. I don't know whether there are other members- four other members of the Court who are willing to go that far and say that the president can fire agency members at will in an exact contradiction of a case that has governed American government for 80 years or so and, as I recall, I think that- and I'm squinting here because I really can't remember exactly- that Chief Justice Roberts had some things to say about that, about recognizing Humphrey's Executor as at least a limiting principle in terms of what the president could do. Now, the Consumer Financial Protection Board involved a one person creation of the Congress who- a person appointed by the president for a limited term who can only be fired for cause not at the will of the president. And what, my recollection again is, that Kavanaugh said you could have a multimember commission or you can fire the single member person at will. I'm not sure whether he said you could do both together.
Rosen: [00:17:13] Interesting and you make a very interesting point that he might not find four votes for either reconsidering Humphreys or-.
Totenberg: [00:17:22] Also, also I just want to point out that he can't sit on that case.
Rosen: [00:17:25] Absolutely.
Totenberg: [00:17:26] When that case goes to the Supreme Court, he's already sat on it as a lower Court judge. In anybody's ethical list of things you can't do, he has to recuse.
Rosen: [00:17:39] Absolutely right. But Neal, broaden this out to his views of executive power. Our great We the People listeners are wonks and aficionados both of Justice Brandeis who wrote the Humphrey's Executor case and of Chief Justice Taft who wrote the Myers case which gave the president broader power to fire executive branch officials than Brandeis would have done, and Kavanaugh was questioned about Morrison v. Olson, the independent counsel case. Senator Coons said, just two years ago you were asked at a public event to name a case that deserved to be overturned and he said, well I can think of one and that was Morrison v. Olson. So what do we learn about Kavanaugh's views about the president's power to fire executive branch officials and what are the implications of that for the Mueller investigation?
Katyal: [00:18:25] So let me say a couple of things about this, one, starting with the general and then getting more specific to your questions. First you know as Nina was talking about, Judge Kavanaugh, repeatedly in this area and others, said, well, that's settled precedent. You know, whether it's Myers or whatever, that's settled precedent, Humphrey's Executor. Now I think your listeners, you know, might want to know how little that actually means in practice. You know, it's true our legal system is based on something called stari decisis, the rule of precedent, but that's really a rule for lower courts where Judge Kavanaugh's currently sitting. And so you can't overrule a Supreme Court decision obviously if you're a lower court judge or a trial judge. But when you're on the Supreme Court, it's a totally different deal. You can overrule prior precedent and indeed the Court does, you know, routinely, particularly the modern Court. And so, you know, that's why we effectively almost have two different professions. Like when I argue a Supreme Court case it's very different than when I'm arguing a Court of Appeals case, because in the Court of Appeals, I'm just saying, here's what the law has been. But in Supreme Court, it's here's what the law should be, and it's a very different skill set. And Justices, who when they get on the Court, may have been very restrained as lower court judges and applying precedent, you know, take a very different role, a very different interpretation of their job when they get to the Supreme Court. And so even some of these settled precedents that, you know, we've grown up with for 80 years are now vulnerable and certainly Judge Kavanaugh has indicated as much and called these independent agencies headless fourth branches of government and things and suggested that the president should have more power in this area. And I think that this whole question of agencies and, you know, the role of the president is one in which, again, I don't think we got that much coverage in the hearings, but this is a big, big deal. And let me just make it very concrete for all your listeners. You know, net neutrality, the idea that the Federal Communications Commission can regulate and say, you know, that Internet carriers can't discriminate on the basis of content, that's something that the FCC regulated, the Court in D.C., the D.C. Circuit, our nation's second highest court upheld those rules. Judge Kavanaugh dissented and said, nope, those kinds of major decisions can't be made by agencies. They've got to be made by the Congress or perhaps a president in certain circumstances. So these are pretty, you know, radical views. These are not, you know, these are not the views that the Supreme Court has had. And it does suggest that Judge Kavanaugh could really change the law if, as Nina said, he gets the votes and certainly he would be recused from any individual case that he's sat before. But these questions about Myers and Humphrey's Executor and net neutrality will come up in other cases too and so he's going to have many bites at the apple. I mean he's 53 years old and these cases are going to come before.
Rosen: [00:21:33] Nina, you've written an article about what Justice Kavanaugh could mean for the Mueller investigation. So I'll ask you what you took from his views on executive power and then we can have Neal's thoughts after that.
Totenberg: [00:21:44] Well I think that he's portrayed his views of executive power in the most limited way that he could with any intellectual curiosity, but anybody who has watched, for example, that interview where he said that- he was asked, is there any is there any case that you think should be overruled by the Supreme Court? And he says I could name one. And then he names the case in which the Supreme Court by a 7 to 1 vote upheld the post-Watergate independent counsel law, the law that was eventually not renewed by Congress after the Ken Starr investigation. And the Democrats and the Republican- presidents of both parties by that time had been harassed and burned enough by these special prosecutors that they got rid of the law, which is sort of the best way for something like this to happen, but he clearly thought the Court was wrong and endorsed with, in other places, with great admiration Justice Scalia's dissent which is a brilliantly written dissent, whether or not you agree with it. I wish I could write like that. But I think that his view of executive power, particularly in light of his experience in the Bush administration after 9/11, is one of great deference to keeping the president's eye on the ball and not letting him be bothered by all these gnats that are coming around to investigate him. Now as luck would have it, we face a situation with the current administration in which I suspect that personally Brett Kavanaugh does not consider these gnats. He considers them serious questions. So he clearly changed his mind somewhat once. He was a star prosecutor for Kenneth Starr and a very avid one at one point and changed his mind by his own admission, rethought the proposition after that- after his experience in the Bush White House. But I think that the evidence is that he has long harbored great doubts about even the Nixon investigation. If you listen to his answers very carefully, he always lists the Nixon case, the Supreme Court's Nixon decision, as a great example of judicial independence. It doesn't say they were right.
Rosen: [00:24:26] Fascinating. Neal, what do you make of Judge Kavanaugh's testimony about Nixon? As Nina said he had once criticized it, saying, heresy as it may be to suggest it, it's possible Nixon was wrongly decided. But in the hearings, he praised it as a great example of judicial independence. Do you think he was endorsing the case? And do you think he's changed his views about executive power? And then you can get to the question of what all this means for the Mueller investigation.
Katyal: [00:24:52] Well I think the first and most important thing to note is just how extraordinary all of these questions at the hearing were. I mean, things about the special counsel regulations where Nixon- can you indict a sitting president? Can you subpoena a sitting president? Which is a Nixon question- Nixon tapes question. You know, can a president pardon himself? I mean, that underscores how unusual this Supreme Court hearing is at this particular moment in time. You've got a president who is nominating Judge Kavanaugh to our nation's highest Court. The president himself is under some criminal suspicion even by his own former personal lawyer. You've had his national security adviser pleading guilty. You've had all sorts of surrounding information around him and the in the confirmation hearing takes place against that backdrop. And so Judge Kavanaugh was under a lot of pressure to try and suggest that his prior criticisms of Nixon weren't right. I don't think they were particularly convincing. I think, you know, he said what he said about Nixon and that of course is the important case because it does establish the idea that you can subpoena a president, at least for his tapes and records, and that of course may be incredibly important in the weeks and months to come. And so, you know, look, I don't think that the president tried to have- well, who knows whether the president tried to have a conversation with Judge Kavanaugh about his views on these issues. It wouldn't surprise me frankly given his attitude towards the norms of the law and the way he treats his Justice Department. But I of course expect Judge Kavanaugh not to have answered any such questions privately with President Trump. But I do think it's fair to say, look, of the 25 people on the list of names that the president had selected as Supreme Court finalists, Judge Kavanaugh tends to be the most suspicious when it comes to criminal investigations of a president of anyone on that list. And, you know, I suspect that that's one important reason why he was picked.
Rosen: [00:26:55] Nina, some of these Democratic senators suggested explicitly that President Trump picked Judge Kavanaugh in order to protect himself. It was an extremely explosive ascription of motive. Do you think it's fair or not?
Totenberg: [00:27:12] Well I think it may have overcome his hesitation about anybody who is from the D.C. circuit and sort of Washington life. I think he liked picking people from a list that didn't have anybody on it from Washington, D.C., from the Court of Appeals here in Washington, D.C. I think it appealed to President Trump's notion of who he is and who his supporters are to have people from other parts of the country who sort of of necessity have not actually ruled on issues like this and are less likely to have pondered them. And so therefore I think the- I don't know whether he picked him for that reason. I just think that Kavanaugh is probably the- of everybody on that list, now I don't pretend to know the others and have read everything that the others have done. I just think he is so much smarter, so much more experienced, so much more, as a human being, deft, that he will be a far more influential member of the Court very quickly than certainly Justice Gorsuch has been so far or that any of the others were likely to be.
Katyal: [00:28:33] I agree with what Nina is saying about his ability, his hardworking, his brilliance and his deafness. It's just my point is that's never someone who Donald Trump ever picks. It just happened to be in this one instance that he did so. And it does, in my mind, raise some suspicions and I frankly feel bad for Judge Kavanaugh because you know he is someone who deserves by all accounts to be on the list for exactly the right reasons. It's just that this president doesn't tend to follow the right reasons.
Rosen: [00:29:02] Let us talk about the crucial question of precedent. It's asked at every confirmation hearings and there is bobbing and weaving. Nina at a recent Federalist Society conference there was a vote. Will Roe v. Wade be overturned? And a overwhelming majority voted no. They don't think it will be overturned although it might be narrowed. When push came to shove based on what you heard at the hearings under the assumption that Chief Justice Roberts might vote not to overturn Roe because of his concern with the institutional legitimacy of the Court, do you think Judge Kavanaugh would vote with Roberts or with the Conservatives who would vote to overturn it?
Totenberg: [00:29:45] Gee, I really don't know. My guess is if you- if they don't have five votes they're not going to overturn Roe. You know, if they don't know when they take such a case they are- if there isn't an easier way to do it, you knowm for example I could easily see that they would uphold a lid of 20 weeks instead of the second two trimesters. I could easily see essentially overruling what the Court just did in the Whole Women's Health case from Texas where half the clinics in the state were shut down because they couldn't meet the very stiff and what the Court said were unreasonable regulations for these clinics. I could easily see many ways for the Court to gut Roe without explicitly overturning it and therefore preserve the facade at least, and I would have to say that I would imagine if that were to happen, this has nothing to do with law, that science would respond. We already know- that right now there are states that are barring medication abortions which are now much easier than they used to be. And I wouldn't be surprised if in a Democratic administration there would be regulations passed that would allow the medication to be sent via the U.S. mails interstate. You know these things- you can't- there are some things you just you can't ban. It becomes- it's too late. And so I would be surprised if Roe versus Wade were completely reversed but not totally surprised and I don't think it matters that much. I do think that there are the votes there to circumscribe the ability to have an abortion in many many states and that it'll make two Americas in terms of the availability of abortion.
Rosen: [00:31:52] So interesting. Neal, same question to you: would Kavanaugh vote to overturn Roe based on his statements in the hearings or not?
[00:32:00] Well I don't think he said enough one way or the other to tell us at the hearings. But I 100 percent agree with Nina. You know you don't need to overturn Roe formally in order for it to be cut back to the point of being practically not that important. And we do have actually again, you know, I keep on harping on his prior decisions because I do think that tells us something, we do have a pretty good sense of where he stands on these questions from his opinion in a case called Garza versus Haagen and that was a case in which a immigrant minor wanted to receive an abortion. Judge Kavanaugh wrote the initial panel decision- the decision by two judges on the Court ruling that the Office of Refugee Resettlement could prevent her from terminating her pregnancy for two more weeks while the agency was looking for a sponsor. And Judge Kavanaugh's opinion there was actually reversed by his colleagues sitting en banc, the full court. In the course of that- his two different opinions, his dissent from en banc and his initial panel decision, I think you really did get a sense of how narrowly or broadly he would view a right to having an abortion and you know when something would be an undue burden and his colleagues profoundly disagreed with him. I suspect we'll see a lot of things like that from a Justice Kavanaugh with respect to reproductive rights.
Totenberg: [00:33:26] That case was one in which I thought the questioning actually was pretty good and it was for Mazie Hirono.
Katyal: [00:33:32] Agree.
Totenberg: [00:33:32] Because Judge Kavanaugh said repeatedly, look, this was a 17 year old young woman, a minor. She should get counseling from a family member or a friend if they can find a suitable one or a foster family if they can find a suitable one to give her counseling before she makes this kind of a decision. And Mazie Hirono said, what you want her to talk to her family? They were the ones who beat her up. That's why she was there. And then he said, well there are other mechanisms. And she said there's a provision for a judicial bypass in Texas and she went through that. The judge agreed that she was mature enough to make this decision and had good reasons to make this decision. And I thought that that was one of the rare points where his answers really looked flabby.
Katyal: [00:34:24] I completely agree and you know what's interesting about that is you know Senator Durbin had asked about that before and so he was ready. He knew that this question had to be coming about judicial bypass and yet he didn't give, I thought, a pretty convincing answer even the second time at bat.
Rosen: [00:34:41] Why don't we run through some of the other large areas of law and try to imagine how the Constitution might be different if Justice Kavanaugh is confirmed. You know the list that liberal critics of Judge Kavanaugh give of cases that might be overturned include affirmative action, environmental protections, deference to administrative agencies more generally, possibly marriage equality although there's some disagreement about that. Among that list, which of the big cases that Justice Kennedy was with the liberals do you think will be overturned and which won't?
Totenberg: [00:35:22] Well I can't give you chapter and verse. The one that won't I think is gay marriage. I think the horses are out of the barn on that one and you can't close the barn door anymore it's just too difficult. But whether, moving on, whether you say that gay couples can't be discriminated against, that's a different question and I'm not at all sure that there are five votes on the Court with Kavanaugh to protect any sort of anti discrimination laws. We'll just have to wait and see. Everything else you mentioned, if there are four other votes and that's always a big if, I think the Kavanaugh position is you know not to regulate beyond what the statute said at the time it was passed and then we could go through all the other ones you mentioned. I think that those are all reasonable possibilities that the Court will go back to a very different Court, as far back as 60 or 70 years ago in terms of its conservatism. But I don't know for sure that there are four other votes. You know when I talk to lay groups and I try to describe two different types of conservative and two different types of liberal. And one says, look, I might not have drawn the basketball court lines this way but they've played the game this way for 50 years or more, a hundred years or more, and people have come to expect that this is the way you play basketball and I'm going to defer to that. And then there are those who say this was a crazy way to lay out the basketball court and I'm going to change it. And there are five people on the Court now who are very close to being- closer to the group who say let's change the lines than they are to let's preserve them the way they've always been. And in the 60s and 50s that group was liberals who changed the way elections are conducted, who got rid of- who gave us one person one vote which most people, Americans, I suspect think was there forever and wasn't. It's relatively new because the districts- the state legislative districts and congressional districts were so uneven in population. There are all kinds of decisions that the liberal Court made to change the lines of the way that the Court is drawn. Both the basketball court and the United States Supreme Court, and now the Conservatives are on the verge of doing the same thing.
Rosen: [00:38:10] Very provocative and interesting analogy. Neal, usually on We the People we have a conservative and a liberal voice so I'll channel the conservative response which would be to say you know will the Court under Kavanaugh and Chief Justice Roberts be returning to the original Constitution as written? Or do you agree with Nina that they'll be making up new rules and what do you make of her notion that although marriage equality may survive, affirmative action, environmental regulations, and the administrative state more generally may be on the chopping block?
Katyal: [00:38:43] Well I think that it's hard to know whether the original Constitution at written will be upheld by Judge- a Justice Kavanaugh or which view of the basketball court, to use Niños analogy, he's going to ultimately adopt. But I do think we know one important thing which is what we are losing by losing Justice Kennedy. You know I've argued in front of him 37 times and each time I would say Jeff he really merited the appellation you gave him maybe a couple decades ago as the agonizer in a piece you wrote. It was very clear to me every single time he was sitting there listening without his mind made up, you always had a shot with Justice Kennedy. It's not clear to me that's true about Judge Kavanaugh. And again you know that's not necessarily a bad thing. I think that's true about some of the other Justices as well. But it is a real change in that by losing Justice Kennedy, that swing vote, I do expect the composition of the Court to change. You know we have a very good empirical study by Lee Epstein at Washington University studying Justice Kennedy's tenure on the Court and finding that he sided with the so-called left of the Court, the four appointees by Democratic presidents, 51 times and that includes really important things like affirmative action and race, stuff on Guantanamo, terrorism, consumer regulation, greenhouse gases, and the death penalty. In each of those areas, I suspect we will see some changes in a conservative direction as we lose Justice Kennedy. And I also agree with Nina. I think marriage equality is the one place in which we're not going to see a change. I mean to pronounce these marriages which have now taken place for several years without the sky falling or you know us turning into you know the kind of laundry list of parade of horribles that the Conservatives use, I think empirically you know those arguments have been proven false and it'd be a really odd thing for the Court to kind of somehow reverse marriages that have now been the law of the land.
Totenberg: [00:40:46] The other part of this that is unknowable is what happens in the body politic and how the Court reacts to that. The one thing we do know is that Justice Kennedy, his absence will make a- not just a numerical difference, voting in certain cases, but you can see his hand as a moderating influence in terms of how far the Liberals were willing to go and how far the conservatives were willing to go even when he sided with them. So the last time we saw that was at the very end of the term where the Court upheld the third version of the travel ban and Kennedy wrote a concurrence and the concurrence, some people saw as a sort of a last- a swan song. But I saw it as classic Kennedy, saying, look, you have to treat people as human beings. Can't we try to accommodate each other better? And I think that he was always a force for that in the majority or the minority but especially when he was in the majority so that even when he was in the majority with conservatives, he was a somewhat moderating influence. And the same thing was true when he was in the majority with the liberals.
Katyal: [00:42:10] And I think Nina's point about the body politic brings up an important corollary point which is again how anomalous this nomination is, not because the president's under investigation but because of the mandate that he has. I mean he only barely won the election and lost the popular vote. He might have had some help from his friends too. But you know Judge Kavanaugh is en route to being confirmed by what looks like 51 to 55 votes at the outset, at the maximum, and historically that's a you know virtually an all time low. I mean Justice Kagan got 63. Justice Sotomayor got 68. Traditionally there has been a filibuster rule. And so you have the prospect of the Court moving in a extremely profound direction differently than it had been. And by a president who doesn't quite have that same popular mandate that you know say Reagan had or something like that.
Rosen: [00:43:02] Nina, given the 20 confirmations that you've covered, does it feel to you like-
Totenberg: [00:43:07] I think it's 20, I'm not sure.
Rosen: [00:43:08] It's really impressive. It's a remarkable achievement. Does it feel to you like something has changed about the process and as a result something will change about the Court?
Totenberg: [00:43:19] Yeah I think so. I mean obviously the Supreme Court has become much more of a political issue, a polarizing issue and for the first time in this election it actually made, I think, the issue made a difference in the election. I think after years of attention by conservative activists and a lot of money being poured in and very strong feelings by social conservatives, those folks voted, even when they didn't really like Donald Trump, thought he was a boor, wouldn't want him really in the same room with his kids, all kinds of things, they still voted for him because of what he promised in terms of the Supreme Court. And the Democrats, the liberals, have never had this as their priority issue. And Democratic presidents have frittered away opportunities to populate the lower courts that Donald Trump has capitalized on. And without the filibuster now, even for the Supreme Court, there is no need for any kind of super majority to put somebody on the Court. All you need is 51 votes. And that is very different.
Katyal: [00:44:34] I 100 percent agree with what Nina is saying there. The Democrats have never considered this a priority particularly in the lower courts. The one asterisk I'd say, an exception, is Justice Obama's two nominees to the Supreme Court-
Totenberg: [00:44:46] President.
Katyal: [00:44:47] Excuse me, President Obama's Nominees to the Supreme Court Sonia Sotomayor and Elena Kagan. I think both in their own way will prove to be maybe President Obama's greatest legacy.
Rosen: [00:45:00] Well it is time for closing arguments in this wonderfully illuminating conversation. The question is a simple but important one: Nina, if you were to project forward 10 or 20 years, how will the confirmation of Judge Kavanaugh, if he is confirmed, change the Supreme Court and the Constitution?
Totenberg: [00:45:21] Well I think it will dramatically change the Court. An already conservative Court into a very very very conservative Court, a Court that may greatly disappoint even conservatives by constricting what Congress can do and even at times what the president can do on the economy. And I think it may lead to some real battle royals. I have never thought that there was any chance of limiting the terms of Supreme Court Justices but if there is a real contretemps and a feeling in the public that the Court is striking down their will, the public will, that could happen. I'm not projecting that because I think these folks are all very smart. They do have a sense of history. They do care about their legacy. And I have no sense of how determined they are to prevail over public sentiment if it comes to that. In the end you know in President Roosevelt's Court packing plan, the famous one Justice switched his vote and became much more amenable to the New Deal's legislation. And as a result, for a couple of generations, every generation after that, Justices said and candidates for the Court said that they were simply deferring to what Congress had legislated. If there's ever a feeling that that's not happening I think the whole system could get a bit of a rattle. Whether we're really there or not I have no idea at all.
Rosen: [00:47:27] Thank you so much for that. Neal, last word to you. How will the confirmation of Judge Kavanaugh if he is confirmed change the Supreme Court and the Constitution?
Katyal: [00:47:37] Well I agree with Nina that there's a risk that if Judge Kavanaugh's confirmed that the Constitution and the Supreme Court moves in a seriously conservative direction, constitutional interpretation moves in a seriously conservative direction. I do think that will call for you know real radical reform at the Court. I don't think that reform takes the form that Nina is talking about, about term limits for Justices who after all under Article 3 have life tenure so you could only do it going forward for new Justices absent a constitutional amendment. But I do think that there will be a radical call for change and I think that call for change will be to expand the size of the Supreme Court more than nine, which historically you know we've not always had nine, we've had nine since 1867, but we've had five and six Justices in the past and different numbers. And you know I think two important facts which we haven't talked about at all yet or one name, Merrick Garland, which we haven't mentioned but you know the treatment of him which was unforgivable, and then all of this stuff surrounding the Kavanaugh documents and how the Republicans broke with every precedent and every rule including the ones that they insisted on to rush this hearing through, and if the Court moves in the type of conservative direction that Nina was suggesting might happen, I think all three of those things together coupled with the fact that the president didn't have a very strong mandate and Judge Kavanaugh may not get that many votes in his confirmation, altogether may undermine the legitimacy of the Court a bit unfortunately and call- and lead to these calls for expanding the size of the Court to 13 or 15 or whatever.
Totenberg: [00:49:19] I think- I want to be on the record as saying I think Neal is crazy.
Katyal: [00:49:24] You've been on that record many times.
Totenberg: [00:49:27] I don't think we're ever going to hear about these documents again. I think that as precedent shattering as the Garland nomination was, I don't think that will have a lasting impact. I think that packing the Court with- by expanding it has such a bad name in history that's never going to happen. And I'm not predicting that even limiting the Justices' terms will happen, but I am saying that if the Court gets as conservative as it could and if we were to have for example unpleasant economic times and have Congress somehow limited in dealing with it, I think that could have real reverberations and I don't know quite how it will play out. I think it's coocoo to think that it's going to expand the Court. The only proposition I've heard that I still don't think has legs but maybe could is limiting the terms of the Justices.
Rosen: [00:50:25] Thank you so much Nina Totenberg and Neal Katyal for a vigorous illuminating and at the end nicely contentious discussion of the future of the Supreme Court and the Kavanaugh nomination. Nina it's wonderful that you joined and it's such an honor always to have you. Neal thank you so much for coming to Philly and Nina and Neal, look forward to seeing you both again soon in Washington, D.C., which I gather is now being called crazy town. Neal, Nina thank you so much for joining.
Katyal: [00:50:56] Thank you.
Totenberg: [00:50:57] Thank you for having us.
Rosen: [00:51:00] Today's show was engineered by Greg Sheckler and produced by Jackie McDermott and Scott Bomboy. Research was provided by Lana Ulrich and Jackie McDermott.
Statement of Jeffrey Rosen, President and CEO of the National Constitution Center
All of us at the National Constitution Center are terribly sad to learn of Richard DeVos’s passing. He was a great American and a great patriot whose love of the Constitution was profound and whose belief in American values was extraordinary. For more than a decade, Rich devoted his time and treasure to advancing the National Constitution Center’s mission of constitutional education for all. Rich was also an entrepreneur, a man of faith, and a husband, father, and grandfather deeply devoted to his family. His humility and positivity inspired us all. We are grateful every day for his vision, optimism, and faith in freedom, America, and the Constitution, and send our deepest condolences to the DeVos family.
Pictured Left: Richard M. DeVos, National Constitution Center Trustee Since 2001
Lana Ulrich: [00:00:08] I'm Lana Ulrich, in-house counsel at the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. This week's episode was recorded prior to the start of Judge Kavanaugh's confirmation hearings and is the first in a two part series that will cover the confirmation process. In this episode we explore the history of Supreme Court confirmation hearings, from how the framers envisioned the process to work, notable stories throughout history, to how it works today. Next week we will recap everything we've learned from the Kavanaugh hearings with special guests Nina Totenberg legal affairs correspondent for NPR and Neal Katyal, Partner at Hogan Lovels, law professor and former acting solicitor general. Join us back here next Thursday but until then please enjoy a look back at confirmation hearings past.
Jeffrey Rosen: [00:00:58] I'm Jeffrey Rosen president and CEO of the National Constitution Center, and welcome to We The People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit institution chartered by Congress to increase awareness and understanding of the constitution among the American people. As the country prepares for the confirmation hearings of Judge Brett Kavanaugh, we're here today on We the People to discuss the history of Supreme Court confirmation hearings and their constitutional implications. What does the Constitution say about the confirmation process? What did the Framers think? What can history tell us and what can we learn from studying text history about our current situation? Joining us to tackle these crucial questions are two of America's leading experts on the Supreme Court confirmation process. Lori Ringhand is J. Alton Hosch Professor of Law at the University of Georgia where she teaches constitutional and election law. She's co-author of the book Supreme Court Confirmation Hearings and Constitutional Change with Paul Collins. And Adam White is Research Fellow at the Hoover Institution and director of the Center for the Study of the Administrative State at George Mason University's Antonin Scalia Law School. He's the author of many articles about the Supreme Court including one I recommend to We the People listeners like Professor Ringhand's book, Toward the Framers' Understanding of Advice and Consent: An Historical and Textual Inquiry. Lori, Adam thank you so much for joining.
Lori Ringhand: [00:02:28] Thank you. Pleasure to be here.
Adam White: [00:02:30] Thank you.
Rosen: [00:02:31] Adam let's begin with the title of your article. What was the framers understanding of advice and consent and what can the historical and textual inquiry teach us?
White: [00:02:43] Well I'm glad you read the title because I tried to be as careful and restrained in the title when I wrote this, and I wrote this piece a long time ago when I was still a law student. The question was what were the framers getting at, what were they intending or what they did they have in mind when they came up with the idea for the appointment, the process for appointing judges? Namely the president nominates, he gets the advice and consent of the Senate and then he makes his appointment. If you look back at the history of the Constitutional Convention in 1787 this process for appointment not just for judges but for all officers, all heads of departments as well, this was sort of a lacking indicator for the tenor of the Convention as a whole. The process for making appointments was often debated and re-debated and reconsidered in the aftermath of the bigger structural questions about the Constitution itself, the nature of our legislature, one house or two, how would representation be settled in in the houses of Congress? What were the powers of the presidency? And so on. You'd see the convention vote and then reconsider and vote again on different approaches to appointments based on what they had decided or what they were debating on the structural constitution as a whole. So for example early in the Convention when what we call the Virginia Plan was introduced by Edmund Randolph, there was going to be a single national legislature with popular appointment and they debated on whether to just have the national legislature as a whole choose not just the national executive but also judges and other officers and they debated that and then they debated- they voted overwhelmingly with minimal debate to just give the appointment power to the executive who was going to be chosen by by the legislature. They came back and reconsidered that. They thought about appointment by the Senate as the Senate, the modern Senate ended up taking shape as a higher house of Congress not necessarily directly elected by the people. They considered just vesting the appointment power there. Then finally in July of 1787 about halfway through the convention Nathaniel Gorham from the state of Massachusetts said, well here's a suggestion. Why don't we, why don't we do appointment the way it's done in Massachusetts? Namely advice and consent where the executive would appoint after making a nomination and securing the advice and consent of the Senate. Now in Massachusetts, it wasn't the Senate, it was something called the Privy Council, a council of advisers to the executive. But given that the Senate was- of the proposed constitution was- they had in mind a more elite body of statesmen, it made sense to draw an analogy between the Privy Council and the Senate. Now as they made the suggestion in 1787 this was in the immediate aftermath, just seven years after Massachusetts had reformed its own constitution and really had put the Privy Council at the center of the governance alongside the executive especially with respect to record keeping and appointments and so on and so this was an important innovation in Massachusetts. When Gorham proposed it it was significant. Now the problem is in Madison's notes for the Constitution, they say that Gorham made the suggestion based on the example of Massachusetts but nobody explained what exactly the Massachusetts program was or at least why they had arrived on this and how it operated in Massachusetts. So the origin of my paper back in 2005, 2006 since I was in Massachusetts at the time was to go back and look at the records of the Privy Council and see how if at all it handled these confirmation votes. That ended up being the focus of my paper in terms of whether or not there was an obligation of the Senate to vote or not. But just one last thing, I don't mean to filibuster but after Gorham's proposal came up, James Madison had an interesting counterproposal. He suggested that instead of advice and consent, the better approach might be for the president to make a nomination and for that nomination to go into effect if the Senate didn't veto the president's nomination. There were a couple of iterations of this proposal and he'd never specified the timeframe for the Senate to muster a vote. I think I recall correctly he might have originally proposed a majority vote or maybe a super majority vote and then that changed. But the point is that Madison's alternative to advice and consent was for the president to get his nomination unless the Senate affirmatively acted to reject that nomination which I think is interesting and in some ways telling for the modern approach. But that approach failed and ultimately as we know the constitution went with the nomination and then advice and consent model.
Rosen: [00:07:40] Fascinating. Thank you so much for that great introduction. We the People listeners you can check out Adam's paper in the Harvard Journal of Law and Public Policy and it's so interesting to learn that the Massachusetts model was the basis for Gorham's proposal. You can also go online at Treasures.constitutioncenter.org where we have the evolving first drafts of the text of the Constitution and you can see as Adam said that James Wilson originally proposed that the Senate should have the power to appoint and as late as the committee of detail report, the Senate too has both treaty making power and the power to appoint Supreme Court justices so it was something of a late breaking addition of the president. Lori what can you add to the original understanding of the appointment process and how the Framers expected that the president and the Senate would interact.
Ringhand: [00:08:32] Sure. I think Adam's history is really interesting because what it shows is that in all of these different variations the different things that were considered and rejected and then ultimately adopted by the Founders, in all of these articulations of the options, we see a consistent desire to have a type of indirect accountability to the elected branches of government baked into that cake. So all of these visions foresaw a system in which the process would in one sense be inherently political because it would be managed and undertaken by political elected officials. And that's fascinating in a couple of ways because the Founders famously were writing in a moment in time in which they believed they had designed a system of government that would be immune from the negative consequences and negative effects of the development of political parties. They thought they were going to be able to avoid that particular type of factionalism and were designing a constitution to battle different types of factions. And of course that very very quickly broke down and we, almost immediately after the enactment of the Constitution and the Washington administration, we very quickly had what became kind of traditional political parties as we know them develop. So the effect of that on the Supreme Court appointments process was that elected officials from a very, very early point in our history, they have always known that who sits on the Court matters and they've always approached the appointments process accordingly. You know President Washington had one of his nominees rejected. So did James Madison. When Jefferson finally seized power away from the Federalists as their third president, there are these letters, he was writing just with glee to his friends about how they'd be able to grab back control of the judiciary. And of course the Federalists themselves- President Adams before he tried to- before he left office, enacted the midnight judges act which the whole purpose of was to stack the federal judiciary with like minded partisans of the outgoing administration. So the political awareness that who sits on the court matters is one of the things that hasn't changed in our process that's been there from the very beginning.
Rosen: [00:11:30] Very interesting. Thanks so much for that context and for reminding us that the Framers didn't anticipate the rise of political parties and that transformed the confirmation process from the beginning.
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Rosen: [00:12:43] Adam let's jump into the history that Lori has teed up as she suggests the outgoing Federalists reduced the size of the Supreme Court to deny the incoming Republicans led by Jefferson the ability to make Supreme Court appointments. Tell us about some of the most hotly contested early Supreme Court nominations in the Washington, Madison or other administrations and how things played out.
White: [00:13:06] Well and let me just amplify a point that she made at the end about the nature of judges and the importance of the type of people being selected. That was another- that was in the design of advice and consent as Hamilton later defended the Federalist. He stressed that the advice and consent model, not just for judges but for all appointments, it was intended to ensure that men and women of high character would make it through, that the appointment process wouldn't just be sort of a crony process of a president picking his or her friends, but rather the Senate was there to be a check on that impulse. And I think it's also reflected in Federalist 78, the famous Federalist Paper on the judiciary. That's where Hamilton talks about the courts being the least dangerous branch. He talks about courts having neither force nor will but merely judgment but later in that paper a part that gets much less attention, he talks about the structure of the judiciary, their life tenure and so on being necessary to ensure that the best kind of lawyers become judges. Ones that are learned in the law, ones that consider themselves bound down by the voluminous codes of laws and precedents and so on. You had Hamilton in that aspect writing about the judiciary and writing about the appointment process and reminding us that it's not just to allow anybody in to become a judge but rather to maximize the chance that we'll get the best kind of judges. And he had- at least he had a certain kind of judge in mind then- especially avoiding like I said the crony picks and so on, so I think that's important. Jefferson's rise to the presidency gave the Republicans the first opportunity to try to relitigate the Federalist judiciary. First in terms of the structure of the court then after that, in terms of the sitting justices, famously they tried to remove Justice Samuel Chase through impeachment proceedings. I have to admit off the top of my head I'm forgetting which nominations were sunk in the 19th century. I think as we've already discussed it's true that a number of them did fail both before and after the Civil War. But I'm not sure how much insight I can lend on specifically which ones were sunk or why.
Rosen: [00:15:28] Well let's find out from Lori who has written this great book on the history and Lori you can tell us which one were sunk and why and what message we should take from this effort to reduce the size of the court by Jefferson and also similar struggles around the Civil War.
Ringhand: [00:15:49] Yeah so there was actually a higher rejection rate in the first about 150 years of the country than there has been since then of presidential appointments or nominations that were affirmatively rejected by the Senate. It was about 20 percent in our first kind of century. And since then overall we're at about 10 percent of actual rejections where the Senate held a vote and voted the nominee down. And that's about twelve of about 114 who have sat on the Supreme Court so that's not a small number. A somewhat surprising number of presidential nominations have been affirmatively rejected by the Senate. There's also another group of nominations that are either withdrawn or not acted on because it became clear that they weren't going to be confirmed. If you add those in the number's about 25 percent of presidential nominations that were not advanced or were affirmatively rejected by the Senate. And who they are, you know it's quite a cross section of issues, controversies, problems. Washington- the nominee that Washington had rejected was Rutledge and he was shot down. He was affirmatively rejected on a vote by the Senate because of his opposition to the Jay Treaty. He was seen as much too- there was a controversy about the Jay Treaty which ended the- which was our treaty with Britain at the end of the war. And there were geopolitics involved with it in the battles between Britain and France, and Rutledge was just seen as way too hostile to the goal of the Jay Treaty and Britain. He was struck down by the Senate, rejected by the Senate, on that grounds. President Jackson, he had to wait for the Senate to flip. He waited until a midterm election passed in order to get his chief justice confirmed. President Tyler was a very very weak president. He became president only- he was vice president and became president only when President Harrison died. He had just a terrible time and I think ultimately had maybe five open nominations and only managed to get one through the Senate. And then of course in more recent times just in terms of nominations that were unsuccessful, Harriet Miers, one of the second President Bush nominees, was sank or withdrawn probably because, mainly because of opposition within her own party to that nomination. And just a smidge before that we had the famous second Justice Harlan who was appointed by Eisenhower. He didn't get out of committee the first time around. He was perceived as too liberal and had to sit in committee for an election cycle to pass. So there's been a host of them.
Rosen: [00:18:59] Absolutely fascinating. Adam, you know another beat on the 19th century history, you, in arguing that the founding debates don't provide any indication of an expectation that the Senate would be required to vote on nominees, note that presidents have made 160 nominations for the Supreme Court. The Senate confirmed only 124 of them. And of the 36 failed nominations the vast majority of them, 25, received no up or down vote. Sticking with the 19th century for another beat or so just because there's so much to mine there, what should we make of the fact that nominees seem to be rejected on the basis of pure political disagreement like Rutledge's opposition to the Jay Treaty, didn't get votes and things seem pretty partisan.
White: [00:19:38] Yeah I think we should take care to stress that of that number, the nominations that didn't receive a vote, some of them did end up getting renominated and we're talking about nominations not nominees. And as was just mentioned you know Justice Harlan for example eventually got confirmed. It's an extremely small number that just disappeared altogether without a vote. But there was more than one. From the very beginning, as I said earlier, the idea was that the Senate was there to ensure that the nominees were qualified. That was the idea. But I don't want to put too rose colored glasses on this. The senators vote or don't vote for a variety of reasons. And the Senate's a political body. And so even though the judicial appointment process was shielded from direct appointment by the people themselves and by their nearest representatives like so much of our structural constitution that was intended to create a process that would turn passion into reason, the fact is that politics inheres and everything that the Senate does. And so I think you'd be wrong to suggest that the senators weren't expected to vote with an eye to politics. And I think it's hard, looking at the record, to not say that they didn't in some cases or in all cases vote with an eye to politics. That side of things never troubled me that much. I always thought it was a political body performing a political function.
Rosen: [00:21:07] Lori are there other major 19th century battles tonight to note especially around the size of the court around the time of the Civil War?
Ringhand: [00:21:15] The Civil War was not a- the Supreme Court was on the losing side of the Civil War. And that created a lot of tension around appointments. Both immediately before and immediately after that conflict. And it was not a- it was obviously a terrible time for the country and a terrible time for the Court.
Rosen: [00:21:45] And let's turn to the question of hearings. It wasn't until the late 19th century that there was any private hearing held at all for a nominee who was subsequently rejected. And the first public hearing was that of Louis Brandeis, a great hero of the We the People podcast and mine, who didn't appear in person following the custom that nominees not appear in person. The first nominee to appear in person was Felix Frankfurter in 1939 who faced allegations of disloyalty over his civil libertarian sympathies. So Adam tell us during this raucous 19th century in which all these nominees were being rejected, was it just done behind closed doors without hearings and how did the tradition of hearings evolve?
White: [00:22:35] Well that's right. None of this was public, at least none of the proceedings were in public until we get into the 20th century. Everything else back then was done through votes or through the lack of vote. As you- you mention that it was Justice Brandeis who was the first public hearing. And of course it was done as many would say for the wrong reason, right. That the concerns about Justice Brandeis were being inflamed by his critics either because of his progressive politics, his work as a progressive reformer or because of outright anti-Semitism towards the nominee. And it was that impulse that turned this from a behind the scenes political process into a public political process. And then of course Frankfurter, questions about his loyalty, we have the same thing happening. Now today, there's other complaints obviously about the confirmation process. And maybe we'll get to that later but I do think it is interesting that although the process became more public in the 20th century and I think that's a good development, it didn't happen necessarily for the right reasons. It probably happened for the wrong reasons.
Rosen: [00:23:46] Lori what more can you tell us about the early controversies in particular about the confirmation hearings for Felix Frankfurter?
Ringhand: [00:23:58] Yeah I- to pick up on a point that Adam just made about the process becoming more public, one of the- Felix Frankfurter was the first nominee to appear before the committee in an open session and take unrestricted questions. Prior nominees had either not appeared themselves or they had appeared in private session or they had appeared to only answer very particular questions about a well-defined narrow topic that the Senate had very precise questions about. So Felix Frankfurter in 1939 was the first person who came and openly testified. And there really were two reasons that that choice was made. The first was unique or specific to the Frankfurter confirmation. The first day of hearings opened. The senators were doing their thing. Professor at the time Frankfurter was not there and he was just getting beaten up on the Senate floor. The senators were calling him a Communist. They were calling him disloyal to America. Felix Frankfurter came to America as an immigrant when he was seven or eight years old. He didn't speak English. He was of course Jewish. So the anti-Semitism was also in play here as it was for Brandeis. And he was just getting shredded on the floor of the Senate and the president's people called and said, you have got to go in there and defend yourself. You've got to go in and confirm to the senators and say out loud in public that you are loyal to America and that you will you know duly interpret and apply the Constitution of the United States. So he did. He went in and he sat down and he took these really quite hostile questions and ended up basically affirming his Americanness and saying yes this is who I am and I'm loyal to this country and I will do my duty as a Supreme Court Justice. So that was the first reason that was specific to the hearings. The second reason though and this gets to Adam's point about the process becoming more public as democratic accountability grew in a variety of ways, and that second reason is this: that the hearing before Frankfurter was Hugo Black's. And Hugo Black as you may remember was- had been a sitting senator and he was confirmed without- he was confirmed very very quickly and voted on and approved by the Senate very very quickly and without public disclosure of a thing that the senators knew, which was that he apparently was a continuing member, he had not declined or refused a lifelong membership in the Ku Klux Klan. That news came out after the Senate approved his appointment to the Court. And it was incredibly controversial. The journalist who broke the story actually won a Pulitzer for it. And these senators and the chair of the Judiciary Committee at the time promised publicly and in response to this criticism that going forward they would conduct a more open process so the people could be better informed about the nominees that were being considered.
Rosen: [00:27:23] If I could just appreciatively thank Lori for noting the Black nomination and encourage our listeners, go onto YouTube and check out the movie that Black made after the story was broken that he joined the Klan. He went onto national television and he said, I did join the Klan, I never rejoined. That is the last I have to say on the matter. And everyone said Bravo, you've done it Justice Black, you've completely let all our doubts aside and they allowed him to continue to serve. It was a much more deferential time. Adam what do you make of the Black nomination? And now we're beginning to move up to a world where the confirmation process is being transformed by the media, by public scrutiny. And how did it become more polarized as a result?
White: [00:28:02] I'm so glad we discussed the Black nomination. It was an awful moment politically and to use the famous line from Justice Brandeis, sunshine being the best disinfectant. For all of our complaints about the nomination- the confirmation hearings or everything in the last several decades, I think it's important to remember that bringing this process out into the public changed not just the composition of the nominees or the ways that- the sorts of people who are nominated- it also in the long run had a profound impact on the types of questions that senators would ask. I mean who knows what Senators have in their own minds as they're voting for or against the nominee. But at least in the process of the confirmation hearing in public, bringing the process out in public from Brandeis through Black onto Frankfurter would in the long run have a profound impact on the conduct of the senators themselves. And I think that's a good thing. Again something that happened for- originally for bad reasons ultimately proved to be very good in the long run for this.
Rosen: [00:29:14] Fascinating. So we're beginning to have public hearings and first there's radio and then Lori tell us, when were the first televised hearings? And we haven't gotten up to 1987 to Bork yet but tell us about the hearings between Black and Bork. Some were controversial. Others were not. They seemed to vote more on qualifications than on judicial philosophy. How would you describe those hearings?
Ringhand: [00:29:39] Well I mean I think it's always- the nominations by the president and the votes by the Senate have always been a mix of qualifications, constitutional consequences, considerations and a more raw form of politics. All of those things have been in the mix and you see that, Adam mentioned kind of the types of questions that the senators ask. And What you see is this- when you read the transcripts over time from 1939 forward what you see is this interesting combination of similarity and difference, right. As you read through these, the commonality is the senators have always been asking nominees about issues that are relevant to their constituents in a given moment in time. So the early hearings- they weren't discourses on interpretive theory. Right. I mean they were always asking about constitutional consequences and the- how the- what different constitutional choices would mean for the important issues of the day. That's not new. What you see is that those issues themselves change. It went from being the threat of international communism which you know as we've talked about was very present in the Frankfurter hearing. It was also very present in William Brennan's hearing. Joe McCarthy kind of at the end of his career was allowed as a matter of senatorial courtesy to come and question William Brennan who had actually been sitting in a recess appointment for a while so he really didn't answer very many questions. Then McCarthy was just going at him about the threat of international communism and whether or not the first amendment offered protection to American Communists. And then we go into- we see those type of concerns kind of roll into the emerging Civil Rights movement where you see more questions about equality, racial equality, gender equality, sexual orientation rights. You see those issues start to come out more. So what has always been the same is that the senators talk the language of- they talk about the Constitution in the language of contemporary politics and what matters to their people and their constituents in that moment in time. But what those issues are themselves change. It's really- it's fascinating to see that play forward.
Rosen: [00:32:19] Absolutely fascinating. Adam tell us more about the pre Bork hearings. There was the famous rejection of Abe Fortas for financial scandals and even before that Senator Strom Thurmond famously said to Fortas, Escobedo I want that name to ring in your ears. He was referring to the defendant allegedly freed by a soft on crime Warren Court. So the Supreme Court is becoming a political football and the nominees are beginning to feel that and yet we still have a tradition of senators from one party voting for nominees from the other. So what can you tell us about those hearings?
White: [00:32:53] And using Bork as the reference point I think is important for a reason that might not be obvious. Until the Bork hearing or- and with Scalia before that, you didn't have sort of the Originalist methodology being so prominent. You didn't have any particular interpretive methodology being so prominent. You couldn't even really talk in terms of a living Constitution since talk about a living Constitution is usually you know done in contrast to another methodology like Originalism. So until that took the stage in the 80s you didn't have the same basis for asking questions about judicial decision making. So you did have broader questions about policy and precedent. Now Chief Justice Rehnquist when he was nominated to be Chief Justice, his hearings were inflamed by the questions over his role as a clerk in Brown v. Board, a clerk for Justice Robert Jackson during Brown v. Board of Education, or Rehnquist's advice to Jackson on Brown v. Board and the memo that Jackson had been critical of the idea that the Constitution prohibited segregated schools. So that was the sort of thing that inflamed Rehnquist. Before that you had just much looser questions about constitutional precedents. Again as Lori said with reference to the political hot button topics of the day. So Bork becomes a turning point not just because of what we now think of the nomination being famous for all the controversy around Bork, but also because before that you didn't have this touchstone of interpretive methodology to become itself a centerpiece of the questions.
Rosen: [00:34:45] That is a fascinating point and at a debate at the Cato Institute recently I learned from Judge Doug Ginsburg that really it wasn't until the 80s and speech about Originalism that that was put on the table as you suggested as a methodology. And now I'll just reveal and Zelig-like moment I had as a young kid before I joined the Constitution Center and lost all political opinions whatsoever, I was a summer intern for Senator Joe Biden of all people during the Bork hearings. Talk about being a fly on the wall. And had a very minor footnote role in helping do some research for the speech that Biden gave asserting the Senate's right to consider the judicial philosophy of nominees which until that point as you say Adam had been a contested point and it was an important milestone. So Lori how important was that speech of Senator Biden and how transformative was the Senate's decision to start considering judicial philosophy post Bork?
Ringhand: [00:35:42] Today we often talk about the Bork hearing as if it was kind of the moment that changed everything. But it's not really clear that that's true. Of course there- as we've talked about there were lots of rejected nominees before Bork and I think the contestedness, the hostility of the hearings and the process is really more cyclical than linear. There have always been hotly contested hearings and there's always been periods when the process has gone more smoothly. And I think what we see is that when you have a deeply divided partisan moment politically in the country as a whole or you have a seat like Bork's seat which of course became the Kennedy seat which is now again the seat that's open right now- when you have a seat that is going to change the composition of the court in ways that people perceive as affecting outcomes, those hearings are going to be much more controversial. So it's more of an ebb and a flow than a march toward hostility over time.
Rosen: [00:36:58] That is a very provocative, interesting point. Adam, Lori suggests that Bork was not a transformation but it really had more to do with the consequences of the seat than anything that changed about the process and indeed Justice Ginsburg and Breyer were confirmed with broad bipartisan majorities and so forth. So do you agree or disagree with Lori that it's more important which particular seat is being considered rather than a transformation in the post Bork process?
White: [00:37:25] Well yeah I think Lori is right for both reasons that she identified, that so much turns both on the specific seat that's being filled and on the broader politics of the day. All these nominations happen in the context of their political moment. So when we think of Bork, or when people speak of Bork's nomination as being the start of something, a modern era maybe, that's true only insofar as we're talking about a much more limited window of time. Over the arc of constitutional history, there's been so many controversial nominees, many of them rejected. Bork isn't remarkable in that sense. But I do think that Bork's nomination was more hotly contested and contested in different terms than well definitely Scalia before him, even more so than than Rehnquist before him. And that may have ushered in what we now think of as a modern moment. But as Lori says it wasn't itself in the long run of things a singular rejection.
Rosen: [00:38:31] Very interesting area of agreement and interesting insight. Lori nevertheless we seem now to be at a point where you can't get a nominee confirmed to the Supreme Court unless you hold both the White House and the Senate and nominees will not get any votes at all from the opposite party for both the seat that went to Justice Gorsuch and the Kavanaugh seat as well or at least very very few votes. Is that historically unprecedented or not?
Ringhand: [00:39:02] No it's not historically unprecedented. We've had those periods of time in the past where presidents have held back nominations, they have moderated their nominations to accommodate a senate held by the opposition party. So I think what we see is that there are- these confirmations are very embedded in their moment in time. And right now we're in a moment in time where the court is seen as a prize to be fought for and won. And that has in a moment of intense partisan disagreement in the country as a whole that's led to a situation where senators- I'm sorry presidents, presidents don't have a lot of incentives to nominate consensus candidates right now because of the way that the greater political environment is functioning or disfunctioning in the country. And I think this too will pass.
Rosen: [00:40:13] Wow a wonderful moment of optimism on this very optimistic podcast. Adam, well I guess I'll just ask whether you share Lori's optimism that this too shall pass, or do you believe that there are certain structural changes in the Senate like the elimination of the filibuster for judicial nominations that make any hope of reconstructing bipartisan comity elusive?
White: [00:40:34] Well I hate to engage in fierce agreement on a podcast but I do want to start with another great point that Lori makes: that in all- when we focus on the Senate, we don't always keep our eye on the ways in which a president might preemptively calibrate his own nominee- choice of nominee to maximize the chance of, or at least to ensure a chance of confirmation. The namesake of the institution where I work, President Hoover, famously nominated Judge Cardozo to the Supreme Court late in his own time on the Supreme Court- a nomination that was recognized at the time as one that was less about ideological alignment with the president and the nominee and rather of the president picking a strong nominee who he thought would secure the confirmation, the advice and consent of the Senate in a politically heated year. And so it is important to keep an eye- keep in mind the fact that the president's own actions might be behind the scenes shaped by the political environment. Of course then in turn the political environment does shape everything else and I think you're right to ask whether the structural changes within the Senate have changed it. I mean the nature of who is being elected to the senators has mattered immensely as the political parties in this time have become more sorted going back to the 1970s, more ideologically sorted. That's going to have an impact on it. Senators' willingness to threaten or then make changes to Senate procedure obviously has been important and it's had an iterative effect. There weren't- there were very few if any filibusters of Supreme Court nominees as I understand it, Lori might know better. But there were there were no outright filibusters in terms of cloture votes until much more recently and then as that became a possible tool, one that was threatened by various senators, there was the counter response of well then we'll change the rules to end filibusters and so on. We have this iterative effect. But just to focus briefly on I thought some interesting choice of words by Lori, she said the court's come to be seen as a prize, the spoils for the victor of a presidential election, something the president owes his base. That's true. I think it's also true that the court is seen as a prize in part because the court's made itself a prize and I think we have to keep in mind that the changing politics of Supreme Court nominations has also been a function of the work of the Supreme Court or at least a function of how the work of the Supreme Court is seen by the public. And this is a point that Justice Scalia made so eloquently in his dissent, at the end of his dissent in Planned Parenthood vs. Casey in '92. At the very end of that opinion there's this remarkable passage I'd urge your listeners to take a look at. This is in the immediate aftermath of the Thomas hearings and you have justices concerned about the political atmosphere surrounding the court and the protests and so on. And Justice Scalia goes out of his way in this dissent to say that those who are concerned that Supreme Court nominations are becoming too hotly contested, too politically venomous must keep in mind that they will remain that way so long as the court makes value judgments on behalf of the country and their constitutional decisions reflect that. Now we can- it's for another time to debate whether Justice Scalia was right in his diagnosis about what the court was doing. But I think it is fair to say that Justice Scalia was right that the more that the court is seen by the public as a political adjudicator the more that the people will demand that their elected officials make the confirmation process more political. As Scalia said, if the people think that the court is deciding things based on value judgments, well the people are perfectly capable of making value judgments of their own and they'll see to that through the confirmation process. That I think is the last ingredient or one of the last ingredients to keep in mind, that as either the court's work or the public's perception of the court's work changed in recent decades, that in turn I think is a major ingredient in the current composition of the confirmation process.
Rosen: [00:44:49] Thank you so much for calling- I can't resist taking the invitation. You called my Justice Scalia's vivid searing dissent in the Casey case. Listeners can of course check it out. And he calls to mind the portrait of Roger Taney- Chief Justice Tany who wrote the Dred Scott decision, hanging in the Harvard Law School library and Scalia says he sits facing the viewer and staring straight out. There seemed to be on his face and in his deep set eyes an expression of profound sadness and disillusionment. Perhaps he always looked that way even when dwelling on the happiest of thoughts. But those who know how the luster of his great chief justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case, its soon to be played out consequences for the nation burning on his mind. And it's also relevant Adam because by some measures we are more polarized today than at any time since the Civil War. In the 1960s there was a 50 percent overlap between the most liberal Republicans and the most conservative Democrats in the Senate. Today there is no overlap. So you're suggesting that the polarization of the country may be playing out in the Senate so that leads me to ask you, Lori, why do you remain optimistic given the extraordinary polarization of the country and the Senate that we can ever put the bipartisan genie back in the bottle?
Ringhand: [00:46:05] Well I'll tell you why I'm somewhat optimistic and then I want to circle back to a point that Adam just made. I'm somewhat optimistic because remember Bork led to Kennedy. Right. When we talk about Bork as the trigger for a new process, the thing that happened immediately after Bork was rejected was Kennedy, a consensus nominee who became a quite idiosyncratic justice was chosen as the new nominee for that seat by President Reagan. And he was confirmed by a Senate held by the Democrats with close to or a unanimous vote. So we are capable of learning things and we are capable of cycling through these processes even though they certainly extract costs as we do it. And even though I think there undoubtedly are better processes that we could get to and perhaps even agree on at some point in our future. So that's the sort of let's call it tempered optimism. Even Bork led to a different type of process in that immediate aftermath. The thing I wanted to circle back to that Adam mentioned when talking about the public's perception of the court as being much more embroiled in more issues. It's a really fascinating point and I think it's worth teasing out a couple of different phenomena that are contributing to that. The words that Adam said that struck me were the "as seen by the public" because of course the Senate- I'm sorry the Court has always been right in the middle of the most hotly contested political issues of the day. It was true- it was true- President Grant for example vowed to stack the court with justices who would overturn the then recent legal tender cases. FDR obviously wanted to stack the court to ensure that the Justices would start striking down his New Deal legislation. The example used by Scalia, Dred Scott, of course that case in the eighteen hundreds before the Civil War- they thought they were solving the problem. Right. So the Justices were always right in the thick of this. There is simply nothing new about the court taking on the most hotly contested cases of the day. What has changed is that the range of issues and the range of people who are coming and claiming kind of a piece of the constitutional pie has expanded to a broader- a wider array of constituencies with a wider array of concerns and kind of hand in hand with the democratization of the process overall, that's meant that the controversies are no longer disputes among elites behind closed doors. They're right here. They involve all of us and we all see them.
Rosen: [00:49:38] Very important point. So Adam given the fact as we've been discussing in particular this last point Lori makes about the democratization of the confirmation process and the breadth of constituents that are involved, what's the optimistic scenario? In the next 50 years, sketch out a confirmation process you could imagine where a nominee nominated by a democratic president gets Republican votes or vice versa.
White: [00:50:11] That's imponderable. First Of all I never said that I was as optimistic as she is.
Rosen: [00:50:13] You said you're sort of optimistic.
White: [00:50:17] I am sort of optimistic. I think- first of all if a trend can't continue forever it won't. Right now the trend line is for these things to become ever more hotly contested. And there is- there is at some point there has to be a breaking point in all this. I don't know what it is. I'm sure it will get worse before it gets much better. I do think that one of the things we need to keep in mind again, keeping in mind that the confirmation process tracks the structural questions that surround- the structural, constitutional questions around it, you have this parallel debate about term limits for Justices. I don't see that happening in the near future but I wouldn't say that it won't happen in the long run. As justices live longer and longer, if there is a movement to reform the Court, it would require a constitutional amendment to shorten or to limit the tenure of a Justice, that might help diffuse things That's a long range thought. I would say that one of the reasons why I'm optimistic- one of the more optimistic aspects of the current situation that I want to remind us of is that as bad and poisonous as the process now seems and often is- and I do think that given the political environment we're in right now, I think the Kavanaugh hearing although it's rather quiet as he does his Senate visits, I think it's going to be astonishingly heated and poisonous as we get through September. I think it's important to shine a light on the good things that happen right now. And I like to remind people that at the confirmation hearing the senators are going to ask questions about the court and the Constitution, about precedents. They're even going to ask sort of metaphysical questions about the nature of precedent itself. And so in the midst of all the bad things that are happening we actually do see great things happening. One moment where the country as a whole and the senators and the nominee pause to reflect upon and debate and ask questions about these first principles, issues. And as we discussed earlier in many respects what we have now in that respect what we have right now is a great improvement upon the behind the scenes process that we had a century ago where senators were free to vote for or against the nomination not just for the best of reasons but for the absolute worst of reasons. And so even if what we have right now continues to involve a lot of personal attacks from either direction, a lot of invective, a lot of political heat, at the same time we see with each passing nomination ever more sophisticated questions about precedent, about methodology, about the work of the Court. And in that respect even as things get better they also get worse- sorry even as things get worse in the most obvious respects they also get much better from nomination to nomination in subtle respects.
Rosen: [00:53:14] Wonderful note of optimism and you are- you persuasively argue that the post Bork hearings have indeed illuminated the judicial philosophy of the nominees for those who are paying attention and I want listeners as the Kavanaugh hearings begin to pay close attention to the hearings and to learn about the judicial philosophy of the nominee from the questions, cutting through the political noise and always focusing on questions of constitutional methodology and interpretation. Lori the last word is to you in this very rich and illuminating historical conversation. What notes for optimism do you see both in the current democratized process and the process over the coming decades?
Ringhand: [00:53:57] Yeah well I'll borrow a quote from Professor now Dean Heather Gerken talking about a different type of election law. She coined the term that one of the issues that we frequently face when trying to figure out how to do things better is the here to there problem. There can be agreement perhaps on something like 18 year term limits whether required or voluntary on the part of the Justices. There can be agreement about better processes and better ways of doing things. The problem is getting from where we are to where we want to be, the here to there problem. And with the current confirmations process the here to there problem manifests as neither side feels like it can unilaterally disarm. So we have kind of these no holds barred fights. And as I said earlier I think that is cyclical. I think it's a lot of things happening at this particular moment in time with this particular seat on this particular court. So it's not an inevitable trajectory toward more and more hostility. But I think what we're going to see and here is my optimist- my optimistic prediction. I think what we're going to see in the aftermath of this current fight may be some groping toward agreement about the role of the court, the possibility that term limits might be something we want to move toward to take some of the heat off the confirmation process regardless of the you know the age of the justices and whether they're living longer or not the current process just puts so much pressure on the politics of retirement, the politics of the nominations and taking some of that pressure out of the system I think would generate a better process and a more palatable court.
Rosen: [00:56:12] Thank you so much Lori Ringhand and Adam White for a illuminating deep conversation. You have provided us with historical context. You have taught us that our current vexations are not unprecedented and you have given us grounds for modified rapture, modified optimism that things might improve in future. Lori, Adam thank you so much for joining us.
Ringhand: [00:56:37] Thank you so much.
White: [00:56:38] Thanks Jeff.
Rosen: [00:56:42] Today's show was engineered by Greg Scheckler and produced by Madison Poulter and Scott Bomboy. Research was provided by Lana Ulrich and the constitutional content team of the National Constitution Center. Friends, dear We the People listeners, the Constitution Center is a private nonprofit. We rely on the generosity and passionate engagement of people across the country who are inspired by our non-partisan mission of constitutional education debate. Please consider becoming a member to support our work including this podcast. Visit Constitution Center.org/membership to learn more. On behalf of the National Constitution Center, I'm Jeffrey Rosen.
Many Americans struggle with understanding the language and subsequent interpretation of the Constitution, especially when it come to the rights encapsulated in the First Amendment. While many Americans can agree that speech should be protected, there are disagreements over when, where, and how speech should be limited or restricted. This lesson encourages students to examine their own assumptions and to deepen their understanding of current accepted interpretation of speech rights under the First Amendment including when and where speech is protected and/or limited. It should reinforce the robustness of the First Amendment protections of speech.
By Geoffrey R. Stone, Interim Dean and Edward H. Levi Distinguished Service Professor of Law, University of Chicago Law School
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Staci Garber is a 20 year veteran of the classroom. She holds a master’s degree in political science, another in economic education and entrepreneurship, and a third in international relations and global governance. Staci currently teaches global studies and psychology at a small private school in Bear, DE. and is a member of the Teachers’ Advisory Board at the National Constitution Center.
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On August 29, 2018, Alan Dershowitz and Joshua Matz join host Jeffrey Rosen for a spirited debate on when and how the Framers intended for the impeachment power to be used. You can read the full transcript of the podcast or listen to it at this link.
Jeffrey Rosen: I'm Jeffrey Rosen, President and CEO of the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit institution chartered by Congress to increase awareness and understanding of the Constitution among the American people. We've had a number of new developments in the ongoing Mueller investigation and related criminal investigations, and we have joining We the People today two of America's leading experts on the impeachment clause of the Constitution. Both of them have written important new books about impeachment, and we are so honored to have them to debate the Founders’ conception of what counted as an impeachable offense and whether or not any of the recent allegations might qualify. Alan Dershowitz is Felix Frankfurter Professor of Law Emeritus at Harvard Law School and the author of the new book The Case Against Impeaching Trump, published earlier this summer. He's been called the nation's most peripatetic civil liberties lawyer and one of its most distinguished defenders of individual rights. Alan, it is an honor to have you back on We the People.
Alan Dershowitz: Alan Dershowitz: Well I love being on and I love your center and I follow everything you do. So it's my honor. And thank you for having me. Thank you so much for that.
Rosen: And Joshua Matz is of counsel at Gupta Wessler and Kaplan Hecker & Fin where his practice includes appellate litigation and constitutional law. He is author of To End a Presidency: The Power of Impeachment which he co-wrote with Professor Laurence Tribe, publisher of the Take Care blog, and a return champion to We the People, as well. Joshua, it is wonderful to talk with you again, as well.
Joshua Matz: Thank you for having me. And I just echo Alan in saying that I think the world of the work that you do, and I'm excited to discuss the Constitution with you both today.
Rosen: Great. Well let's plunge right in. Joshua, you and Professor Tribe wrote your book first and you were here at the Constitution Center a few months ago to discuss it in The New York Times recently. In Adam Liptak's piece, "When is an offense impeachable? Look to the Framers," you said the main and possibly only form of preinaugural conduct that would properly qualify as an impeachable offense is conduct relating directly to the acquisition of the presidential office; not every impeachable offense is a crime and not every crime is an impeachable offense. Tell us more about your views about the Framers' notion of impeachable offenses.
Matz: The Framers designed the impeachment power because they recognized that in creating a new form of government, an empowered national government, an energetic singular chief executive, there was a concern that if a president went off the rails and if the president took too broad a conception of what he could do while in office, the entire experiment that they were attempting, a new form of government, would be imperiled. And so when the Framers designed the impeachment power, what they really had in mind were offenses by the president, conduct by the president, that imperiled the legitimacy of the democratic system as a whole. And when we look at how they talked about it and what kinds of things they deemed impeachable, which we know include treason and bribery as well as a bigger phrase, high crimes and misdemeanors, you know we see that these types of offenses involve corruption, betrayal, or an abuse of power that subverts core tenets of the U.S. governmental system. Generally speaking, they involve intentional evil deeds that pose a terrible threat of injury to the nation as a whole. And they are the kinds of misdeeds that are so obviously wrong that nobody could genuinely profess surprise at being impeached for committing them, or put differently, they didn't have in mind impeachment by ambush. They were they were thinking about the kinds of evil deeds that anyone would realize that you can't leave this person in power now that they've committed it. And so it's by reference to that understanding of what they were doing that I made those remarks to The New York Times. Generally speaking, before a president takes office, he can't abuse or misuse the powers of that position. At the same time, it would be most perverse to say that somebody could engage in illegal activity that results in them, or that helps them, obtain the presidential office and then when found out, keep the fruits of their own as it were fraudulent conduct or traitorous conduct. The Framers said that explicitly in reference to someone who sought to corrupt the Electoral College and in fact one of the most frequently cited examples of an impeachable offense was corruption of the Electoral College and the electoral system and it's no small – it’s no great leap from that understanding of high crimes and misdemeanors to think that if a president breaks the law and betrays the nation and corrupts the electoral process and thereby obtains power and is discovered, and if the American people come to understand that that's what has happened, that it really can't be the case that that person should be allowed to remain in office as an illegitimate leader of our democratic system.
Rosen: Thank you so much for that. Alan, in the introduction to your book you disagree with professors Tribe and Matz and you argue that only crimes are impeachable offenses and not all crimes are impeachable offenses. Tell us more about your conception of what counts as an impeachable offense according to the Framers.
Dershowitz: Well first of all I want to explain why I wrote the book. I wrote my book The Case Against Impeaching Trump because of my dear friend and long-term colleague Larry Tribe who called for President Trump's impeachment even before he took office. And then within weeks of him taking office wrote an op-ed piece saying that he must be impeached and the process of impeachment must be undertaken, and because I felt that that did not sufficiently inform the American public about what the criteria of impeachment were, I decided at that point to write a book. Having said that, I don't disagree with a single thing that my colleague has just now said. But remember that what my colleague said was that a president could be impeached if he, and I'm quoting him now, breaks the law or engages in illegal activity that corrupts the election. I agree with that. I agree, by the way, that an impeachable offense can occur in the run up to the election, that if a president breaks the law, commits bribery, treason or other high crimes and misdemeanors in an effort, successful effort, to become president, he can be impeached, so we might end the debate right here. Except that I know that my colleagues disagree ultimately with the concept that it has to be breaking the law or an illegal activity. And that's where I think the rubber meets the road and where I think the debate really takes place. I agree with your conception of what the Framers had in mind, but the Framers didn't write in the Constitution that a person can be impeached for actions that quote imperil democracy, which is what you say, or if the person goes off the rails. They could easily have written criteria for impeachment that were broader and did say anybody who imperils democracy or acts corruptly to undermine democracy should be impeached. That would be perfectly rational. But instead, they introduced much, much more rigid and rigorous criteria. They talked about treason which they defined in the Constitution, bribery which was well-defined at common law and other high crimes and misdemeanors, not or misdemeanors. And my understanding then is that a crime is a necessary but not sufficient condition for impeachment. I think all the elements that we've just discussed become sufficient conditions that is, it can't just be a crime. It can't be lying about whether you had an affair in the Oval Office or it can't be what Alexander Hamilton did: having an adulterous affair which was a felony while he was secretary of the Treasury and then paying extortion funds from his own money. But if Alexander Hamilton had paid the extortion funds from Treasury money, that might very well have been an impeachable offense. Where we disagree, it's not on the ultimate criteria are. I think you need to have all the things that have just been stated. But in addition you need to find the specific crime and that's why the criteria specify a trial in the Senate. They have procedures for the trial. The chief justice presides when it's the president, and I think you have to look at the language of the Framers and you have to look at what was intended at the time of the framing and understood at the time of the framing and my view, I think that the book that we're talking about, Larry and your book, is a brilliant - I think everybody should read it. It's states a view somewhat different from my own. I think reasonable people could honestly disagree as to whether the history shows you need or don't need to have a specified crime in addition to either treason or bribery. I think you do, you think we don't. And I think that's where the debate really should occur.
Rosen: Wonderful. Thank you so much for that. Joshua, to join the debate, can you give us examples of either attempts to undermine democracy that are not criminal that you think would be impeachable or of crimes beyond treason and bribery that you think might be impeachable to emphasize your differences with Alan.
Matz: I'd be happy to do that, and I should start by saying I think Alan's book is a great contribution, as well. You know these are not easy issues. And here as in so many other places the Framers were less clear than they might have been. You know, I do think however, I do think that the sort of decisive weight of the available evidence and argument supports the view that you don't need to have committed a specific crime in order to engage in high crimes and misdemeanors. We see that when the Framers discussed at length their concern that the president might commit great and dangerous offenses against the nation for which no remedy might be had. But I think we actually see it most clearly, and Jeff, then I will answer your question more precisely, but I think we see it most clearly in the fact that the early Congresses which were setting up the powers of the federal government didn't create and didn't even attempt to create and really never even discussed creating a body of federal criminal law that would be adequate to the task of making a crime. Most of the kinds of presidential misconduct that the Framers spoke about at the Constitutional Convention and indeed the Framers designed a federal government that lacked the ability - it lacked the delegated and enumerated powers to make criminal many of the things they talked about. And so there's this weird mismatch in Allen's view which is that the Framers said a president could be impeached and removed from office only if he or she commits a crime but then Congress was deprived of the ability to create a broad body of federal criminal law, never attempted to do so and has in fact never passed a series of criminal statutes addressing some of the kinds of misconduct the Framers themselves were most concerned about. And that's true even with respect for example to bribery where there wasn't a generally applicable bribery law outside the context of bribing judicial officials into the mid-19th century. And you really would have been thinking about bribery in a more capacious sense as something that undermines and corrupts the integrity of the federal government and we know that that has practical consequences. I mean if we take Alan's view seriously, you know in principle the president could simply refuse to defend the nation against an invasion by Russia. And as long as he wasn't committing treason within the meaning of Article III of the Constitution there'd be nothing to be done about it. The president could deliberately order U.S. citizens to massacre innocent civilians abroad. He could announce that he will pardon anyone who hatefully, you know, and intentionally murders an undocumented migrant or a gay person or anyone who unleashes weaponry at the rallies held by his political rivals. There's sort of no end to the ways in which presidents can misuse the powers vested in them by the Constitution in ways that would be extraordinarily disruptive of democracy, but that wouldn't qualify as crimes within the meaning of federal criminal law and it just seems peculiar to think that the Framers who put so much thought into this power failed so miserably at preventing the kind of renegade president that they obviously had in mind.
Dershowitz: Well that's an interesting point. Of course, you omit the fact that there were two sources of criminal law at the time of the framing. The first and most important of course were the laws of the 13 colonies which were sovereign entities. They all had extensive criminal codes. The Virginia criminal code was drafted in part by Thomas Jefferson, the Massachusetts code was hundreds of pages long. I have a copy of it in my library. They define all of these crimes. But in addition, there was the federal common law of crimes which until 1815 was regarded as governing and it was borrowed extensively from British common law. Everybody knew what bribery meant under the common law of bribery and I never suggested that the crimes that have to be committed are limited to federal crimes because you're 100 percent right. We didn't really have federal criminal laws extensively on the books until after the framing but we did have the common law. It was only in 1815 in a case called U.S. vs. Hudson that the Supreme Court held that you couldn't have a federal common law and that stimulated the enactment of federal criminal statutes. Today, of course, the federal criminal law governs much of what was even state law through RICO and conspiracy and other kind of cross border type of crimes. But to address the issue of all these terrible things the president could do in my book I give an example of the president giving Alaska back to Russia. You know Putin coming and saying look we took Crimea back and now we want Alaska back. And if a president gave Alaska back assuming he had the authority to do it much like Jefferson had the power to accept the Louisiana Purchase, I agree that would not be an impeachable offense. He would never be reelected and he would be chased from office basically by political means and political accountability. But no that's not a crime. That's a political act. Some of the other things you mentioned - ordering the shooting of aliens of course would be crimes. They'd be very serious crimes, and of course murder or accessory to murder, conspiracy to murder or inciting murder would all be the kinds crimes that could be impeachable but you know we're both right in this sense - that you can come up with hypotheticals that would persuade me that the person should be impeached and that I would have to tell you are not covered by the impeachment powers because the Constitution is incomplete. And then I can come up with examples, for example of Professor Lichtman who said the president should be impeached because getting out of the climate accord is a crime against humanity. We don't want that. We don't want the criteria for impeachment to enter into the domain of political differences no matter how wrong we think the differences are, and I think some of the policy decisions made by this administration are abominable and I've opposed them from day one. Nobody should confuse what I'm writing with support for this administration on almost any of its policies. I'm making a strictly constitutional argument and I think you're absolutely right when you say there's no perfect answer. There are gaps in my approach. There are gaps in your approach and I would finally respond by talking about the principle of lenity, and I know we'll disagree about that. But when you have a constitutional provision that imposes some kind of a punitive impact, and I know you say it's not punitive it's forward looking. I read your book very carefully, but it has a punitive effect to eliminate somebody from office. You do have to read the constitutional text narrowly; you have to read it in terms of lenity, that is by resolving reasonable differences against a broad conception of what the power entails. I know your answer. Your answer is this is - impeachment is supposed to be preventive and proactive and future looking, not past looking, but if that's what the Framers had in mind they wouldn't have used terms like treason and bribery and other high crimes and misdemeanors. They would have used future looking terms, so I take literally the words of the Constitution and I think they have to be applied literally even if they bring about results that violate my conceptions of good policy and your conceptions of good policy.
Matz: Well and of course I doubt very much that we're in disagreement about the importance of taking the words of the Constitution seriously. You know I think that the challenge is that the Framers designed this power for a reason. They were concerned that presidents would use their powers in ways that imperil the democratic project. And in thinking about how to give meaning to words whose meaning is not always self-evident it's helpful to look at the structure of the Constitution and at the original public meaning and how these terms were debated in context.
Dershowitz: I agree.
Matz: And I assume that we're on the same page about that. You know I agree with you. I think we actually have quite a bit of agreement that you have to care about lenity. That was why I emphasized that you should never have impeachment by ambush. It should be the kind of misconduct that everyone would realize could subject you to this. You know I might give it as an example along those lines: If President Trump came out tomorrow and said, as a matter of federal criminal law I will pardon anybody who engages in violence against an undocumented migrant because I don't want them in the country, that use of the pardon power, unless you had some very broad conception of conspiracy or aiding and abetting, probably would not be a crime. But it seems bizarre to think that the Framers would have anticipated a society where the president could use their power that way and we all just had to live with it and use other political checks and balances, which is what you've described, until the next election.
Dershowitz: Let me give you -
Matz: Sorry if I could just finish the thought. You know it's like I completely hear you when you say that there was a richer body of state criminal law at the time. You know, although clearly whether it makes sense for the states to define the contours of a federal power and how weird it would be that something could be impeachable if done in one state but not another, and that there was something of a broader federal criminal law in the form of the common law at the framing although that ended almost immediately. But when you think about the broad discretionary powers given to the president, you know, and I think we see this for example in Nixon's case where some of the misconduct that was alleged in the obstruction article passed by the House Committee targeted the manner in which he exercised his supervisory powers over federal intelligence agencies and law enforcement agencies. The president has the ability to use those sorts of powers in ways that just are outside the compass of the criminal law and in which it would be very difficult for Congress to try to write criminal law but in ways that can really undermine the democratic order and while it's true as you point out that, you know, my position and yours have slippage. You'll have some very uncomfortable hypotheticals. I have Allan Lichtman and his hypotheticals which I obviously, I do not agree with and think are quite poorly designed. But you know I think what that points up is that there is ultimately a political judgment to be made here. And what you're saying is you know political judgments are tricky. And so what we need to do is to put the criminal code in as a baseline and we need to at least show a violation of the Criminal Code to discipline the political judgment.
Matz: But I'm not even convinced that that works because as we point out in our book many crimes wouldn't be impeachable and the definition of what counts as a crime is itself often subject to controversy as you yourself are a master of demonstrating. You know we're in a realm where political judgments are unavoidable. And I think saying that you can only remove someone from violating the technical terms of a criminal code artificially and kind of unnaturally limits the impeachment power without much countervailing benefit.
Dershowitz: Well I think the countervailing benefit is you have a check and balance. I agree with you that political considerations do come into play, but in my view they come into play only after nonpolitical considerations have been satisfied. That is you have a prerequisite you have to first prove a high crime and misdemeanor or treason and bribery and then you can allow political considerations come into play. I think that's what happened with Nixon. If you look at the charges made against Nixon, and I think Nixon's impeachment was the only legitimate one against the president under our Constitution. I think we will agree that Andrew Johnson's was not appropriate, that what he did was constitutionally permissible though it was terrible and he helped - he undercut Reconstruction. And what Clinton did although a crime was a low crime not a high crime. I think that to counter your example, it's a very good example, about what if the president said he would pardon everybody, and he practically did that when he pardoned Joe Arpaio, I mean that wasn't quite as bad as that but it was a pretty bad example. But what if President Kennedy had said look I'm going to pardon every single civil rights demonstrator who was arrested in the south even for committing crimes that are legitimate crimes in the south. I'm simply not going to tolerate that. It's the policy of this administration to make sure that civil rights demonstrators can go forward. I think we would all agree that that should not be an impeachable offense. But I think many people south of the Mason-Dixon line would have said that undercuts the rule of law, it undercuts democratic governance, it substitutes political policies for the policies of the law. And we'd have an interesting debate about that. Look, I think we've come to some very, very substantial agreements: that neither of our positions are flawless, that we're not going to be able to find out in the end who's right because we're not going to have an impeachment probably that doesn't involve something we can agree is a criminal act. It will probably never happen and that the real question is as a matter of constitutional policy. Is it better to err on the side of having some protection, namely the requirement of a crime before the political considerations come into play, or is it better to have an open-ended political decision making that only focuses on the very good points you make about undercutting democracy? I think that's a very important and reasonable debate. And I wish we could have it civilly as we are today on this show around the country. It's an impossible debate to have on Fox, CNN, MSNBC, and many of the other stations because on those shows, they ask only one question: which side are you on? It's my grandmother's question. When the Dodgers won the World Series in 1955 and I came home and I said Grandma, the Brooklyn Dodgers won, she says yeah, but was it good or bad for the Jews? That was her only concern. Today the question is yeah, but is it good or bad for Trump? Is it good or bad for Democrats? Is it good bad for Republicans? I think you and I have had a very good debate about whether it's good or bad for the Constitution and I think in the end, any reasonable person listening to this debate should come away saying it's a complicated question and it's not completely clear. And there's one other issue I just want to touch on because it's so fascinating and that is, you take the position of course there's no judicial review of the criteria for impeachment and I pose, I think, this really interesting hypothetical of, what if Trump or anybody else were impeached for a non-crime, for you know, miscarriage of office and removed and he refused to leave? He said, no I'm not going anywhere: The Congress applied an improper constitutional criteria. Wouldn't you acknowledge that that case might well have to get before the justices? Because if you had a standstill, Congress saying he's removed and the president remaining in the White House, only one institution could resolve the issue of whether or not you need a crime for there to be an impeachable and unremovable offense.
Rosen: Josh I'm going to let you answer that and then I have a few questions of my own in this wonderful debate that doesn't require a moderator. What do you what do you think of Alan's question about whether the decision to impeach could itself be judicially reviewable before the Supreme Court?
Matz: So Alan said so many interesting things that I hope you won't mind that I wanted to just address one of them first before I answer that question, which is, he emphasized and I agree with him that there are aspects of this that are not completely clear. You know one concern, of course, is that these often are tricky issues and it's easy, you know, it is in fact the case that there are some hard political and legal and constitutional judgments here but that fact can't be and shouldn't be used as a basis for saying, well because it's all so complicated and because it's so difficult to know, the president needs to be given essentially sort of infinite latitude because how could the president ever know whether what he did was or wasn't properly impeachable? You know and there's this phenomenon that I've noticed lately which I think Alan has to some extent been a part of that I think of as the kind of incredible shrinking impeachment power where, you know, in the Clinton years there is an argument that you can't impeach the president for private conduct. Under Trump there is an argument that you can't impeach the president for conduct where they in fact use their official powers. That you can't impeach the president unless there's a crime. And as Alan would I'm sure happily talk a great deal about, there are important limits on federal criminal law, in particular relating to demonstrating corrupt or improper intent on the part of the defendant, and it can be exceptionally difficult to establish those intent requirements, or Alan might even take the position that these laws don't apply at all to the president in the exercise of certain official powers. So you sort of end up in this weird position where there's the power that appears to be a big deal, that the Framers certainly thought was a big deal, that you can really barely use anywhere because you can't use it for private conduct, you can't use it for exercises of power, you can only use it for crimes except you then define crimes and criminal law as applied to the president almost into non-existence. You know, and I should emphasize I'm no big advocate that impeachment is the answer to every problem and the book that I wrote with Larry sounds many cautionary notes. But one of the things that I do worry about is you know impeachment is meant to solve a particular problem and to the extent we're choosing among interpretations, one of which renders it almost utterly on able to solve that problem, and one of which comes with some difficult judgments to make on the margins. I do think that there is a need for a more robust conception than Alan might offer of what the impeachment power can do. And I would emphasize just as one last point on that note you know Alan has written eloquently about the dangers of criminalizing politics and of talking too much about criminal law and of criminal conduct in thinking about how our political system works. But would you insist that only a crime can be impeachable and that we can't think about presidential misconduct outside the vocabulary of the Criminal Code when we're thinking about what might be removeable? That actually contributes in a very substantial way to jamming all of our political debates in a criminal law framework. And so there's this perverse outcome that I think Allen might be comfortable with given that he and I share a concern about an over criminalization of politics. And then because I did promise I would answer your question and I'll just be very short, I am fairly skeptical that judicial review would be appropriate. The Constitution assigns this power to the Senate and to the House. It says they shall have the sole power and it doesn't by its terms contemplate any judicial review. In fact, the Framers considered and specifically rejected the involvement of the Supreme Court in impeachment for a host of reasons. And my guess is that ultimately this is a political judgment that really does stop with Congress and that the Supreme Court is likely to take that view as well.
Dershowitz: Well first of all it's no answer to say that the Framers didn't contemplate judicial review of impeachment. They didn't contemplate judicial review of anything. There's no provision in the Constitution for judicial review. Chief Justice John Marshall invented it in Marbury v. Madison and its progeny. What he said is look we have no choice. If you have a statute or an action of Congress and you have the words of the Constitution and there's a conflict either one of them has to prevail or there has to be an institution for deciding it and that's why I structured my hypothetical and I'm really proud of that hypothetical of a president who refuses to leave and then just like Bush v Gore where nobody would have imagined the Supreme Court would enter into a decision about how you count chads in Florida, and I think we all agree it was a terrible decision to enter into that case. But I think the court would inevitably without any option have to weigh in. It might weigh in by simply saying in the end that it's up to Congress and if Congress makes a mistake the president has to abide by it. But it might not do that. And as far as making the impeachment power naked, I don't agree with that. I think Nixon was the one example in our history where a president should have been and would have been properly impeached. He committed high crimes, numerous high crimes: paying hush money to witnesses, telling subordinates to lie to the FBI, destroying evidence and he also destroyed - tried to destroy democratic governance. It's the paradigmatic case and it fits your criteria perfectly because everybody knew it was impeachable including Richard Nixon who voluntarily left office because he knew otherwise he'd be impeached and removed. So I think impeachment under my conception remains a powerful tool to be used in Nixon-like situations but not in Clinton-like situations. And I have to tell you, I wish Hillary Clinton had been elected president because they would have moved to her impeachment on day one. I would have written a book called The Case against Impeaching Hillary Clinton, in fact my publisher printed an alternate cover called The Case Against Impeaching Hillary Clinton just to make the point that I would be making the same arguments for Hillary Clinton. And my question always is would other people be making the same arguments in favor of a broader use of the impeachment power? And you know, that's a fair question to ask and I think to avoid having to answer that question you need a safeguard. In my view, the Framers put in the Constitution the safeguard, the requirement of a trial by the Senate and conviction - that word is used. Conviction after trial. Those are words having to do with crime and then the Constitution says that the president can be tried, it implies, after he leaves office, which strongly suggests that it would be a crime that he would be impeached and removed for and then he could be tried again because it's not double jeopardy. But these are again great debatable issues and it's been a real thrill for me to participate with such a brilliant expert who's done such extraordinary research. My recommendation to all your listeners is read both books side by side. Make your own decision, come to your own conclusion, try to be as objective as possible and ask yourselves what is the better constitutional approach? Some of you will agree with my colleagues. Maybe some of you will agree with me. And even if not I think you'll learn something in the process.
Rosen: This is wonderful. We have you for just I think 10 more minutes, Alan. I just want to put on the table whether, under what circumstances you agree or disagree that the current allegations against President Trump might or might not be impeachable. In your book, Alan you say, imagine Trump called Vladimir Putin and said the following: Hey Vlad do I have a deal for you. I want to be elected president and you want to get rid of the Magnitsky sanctions which I don't like. You should help me get elected by giving me dirt you already have on Hillary Clinton because that would be a better chance to get rid of the sanctions which I disapprove of. Of course that didn't occur, you said, but if it had been because it is not a federal crime to collude with Russia, it should not be impeachable and he should not be impeached for the political sin of colluding with a hostile foreign power. Joshua, I want to begin with you. What do you make of Alan's hypothetical, and if completely hypothetically Trump did call Putin and say, help me in order to get me elected president, do you believe that would be an impeachable offense or not?
Matz: Yes, well and of course we are in the realm of hypotheticals. Alan has written a very strong case against impeaching the president. I am perhaps more moderate. I think the president may have potentially committed impeachable offenses although I think that the jury is still out and there are tough judgments ahead and that even if he has done so or may have done so, the question of whether it would be wise or prudent or better for the country for an impeachment to go ahead is a different and in some respects more important question. And I want to emphasize that just because I wouldn't want listeners to get the sense you know that you brought on someone pro-impeachment and anti. I think we both think that there are hard questions here, both about whether he may have committed impeachable offenses and about whether impeachment is a good idea. And I've actually written a fair bit suggesting there's a real need for caution here. But in terms of your hypothetical in particular, you know, I have to be honest. That to me sounds like a paradigmatic case for impeachment. I think the idea that the American public could go on knowing that the President of the United States had potentially come into power by virtue of deliberate and knowing conspiracy with the leader of a hostile foreign power to undermine our political system and destroy belief in the integrity of our electoral process is really hard to stomach. You know, Alan is sort of forced to that conclusion because he imposes this view that you must have a crime and because he takes an unbelievably narrow view of the applicable provisions of the federal criminal law. You know, I guess I just don't see it that way for the reasons we've already talked about. I mean think about it in some respects, think of it this way. You know imagine if Nixon had done everything that we now know he did but hadn't gotten caught. In that circumstance you know the American republic probably would have survived. But once it became known to the public, once everyone knew what Nixon had done, if he had been allowed to remain in office you know the damage would have been incalculable because it would have set a precedent in the American national understanding of what our democracy is and of how it works that would have just been unbelievably corrosive to the entire project of the Constitution. I think the exact same thing would be true if the entire American people were to know to a near certainty the facts that you hypothesized here and to say that the impeachment power can't reach that circumstance that we must continue to live with a man exercising extraordinary power who we know to have betrayed the country and to have obtained the office by corrupt means would be an unforgivable and unjustified burden to impose on the American people and would cause incalculable lasting damage to the democratic system.
Dershowitz: Well but you're not taking on my hypothetical. I wrote my hypothetical with great, great precision. Under my hypothetical what the candidate does is call the leader of another country and says to him, if you already have material that you've obtained, treat me like you would treat The New York Times, The Washington Post - give me the material you have. There's nothing criminal about that at all. It's just as constitutionally permissible for a candidate to get dirt on an opposing candidate that another country has than it would be if somebody called The Guardian and got it from The Guardian or got it from - you know, from a political point of view it's a very, very different case, but from a legal point of view, I purposely structured it so that there is no crime. I purposely wanted to pick the hardest possible hypothetical because everybody would say that this man does not deserve to be president. But what he did you know, if you take Noam Chomsky seriously he recently said on Democracy Now that, are you kidding? Russia influencing the election? Russian didn't influence the election. Israel did. It was Israel's fault that Trump got elected. Israel played more of a role in influencing the election. You'd get other people in the hard left saying other countries played a greater role. We know that we played a role in influencing elections from Chile to you name it. So many, so many other countries. That happens and it doesn't necessarily, if it's done legally, undercut the process of democracy. It would certainly cause a reasonable person to vote against that person. The reason I set the hypothetical up the way it did is to create the possibility of a slippery slope. If you say that's impeachable, what's next? And where do you stop? And when do you turn things into criminal? Look I agree with your point, you made a very, very good point and very interesting point. That I'm trying to have my cake and eat it. I'm trying to both narrow the criminal law because I don't want to see it used politically and yet I'm using the criminal law as a backstop. That is a very powerful argument against my position that it is an inevitable consequence of my position. I worry about it because I don't want to see the criminal law expanded in order to expand the impeachment power and in the end the result that I find least unsatisfactory is a narrow criminal law in which it's better that 10 guilty people go free even if that's the president of the United States than one person be wrongfully committed and an impeachment power which basically says the same. I might not use ten, I might use two instead of ten, better for two presidents who should be impeached not to be impeached than for one president who shouldn't be impeached properly to be impeached. And so yes, I'm more cautious than you are, you have a broader view than I have, and these are reasonable disagreements. The only question I would ask you, and I would ask it more to Larry than to you, is would you pass the shoe on the other foot test? Would you both have been making the same argument and written the same book if Hillary Clinton had been elected president? And the efforts were being made to impeach her because of the modem that she had, because of Benghazi, you name all the fake arguments they are making against Hillary Clinton, and I think they're primarily fake arguments, but they're taken seriously by 40 percent of Americans. Would you have written the same book? Or would you have written a book closer to my own book? That's the challenge that I put to everybody: the shoe on the other foot test. I put that challenge to Justice Scalia and his four colleagues in Bush v. Gore and they failed that test. Not a single one of those five would have voted the same way had it been Gore v. Bush not Bush v. Gore and I get very worried when people construct constitutional arguments to fit a particular person or a particular party rather than to fit eternal constitutional criteria that hopefully will bring our Constitution into the next century and the century after that. I want to make clear I'm not accusing you or your co-author of doing that. I'm just asking the question: Do you think you would both pass the shoe on the other foot test.
Rosen: Josh I want you, and I'm sorry, I'm going to jump in to say, I want you to answer the important shoe on the other foot test, but in the course of your answer, please address the campaign finance question and, you told The New York Times, if Cohen is correct and the president conspired with him or aided and abetted him in violating a campaign finance law to benefit Trump during the election, that would be an extraordinarily troubling concern that obviously merits comprehensive congressional investigation and political accountability. It's less apparent whether standing alone qualifies as a high crime or misdemeanor. My question is, what kind of bribery would you think would qualify as a high crime or misdemeanor since this is in fact a crime?
Matz: Of course. Well you know I have to, you know, I think one of the things that's tricky here is that when you say to somebody: I'm not impugning your motives, I'm just ask the question about your motives, that could be interpreted unfairly. And I'm going to give you the benefit of the doubt and trust that you're not doing that. But you know I do think, and obviously people have questioned your motives and I would hope that they would extend the same principle. I think you know I would have written this book. I stand by everything in it. The criteria that Larry and I applied, and I hope that you applied the same ones. You know we don't have the president tweeting about how our book is his best defense but you know we were trying to make the point- points that we would feel comfortable with in 10 years, in 20 years, and in 30 years and that we would have made 10, 20 and 30 years ago. And look you know as far as I can tell a significant part of Trump's base and his Twitter account are in fact actively prosecuting an impeachment against Hillary Clinton's hypothetical presidency. And so there is some measure of how that side might have thought about it. I do agree that this is a circumstance that requires a principled thinking and that you know hackery and that fashioning arguments to suit the needs of the moment is not the right way to think about the impeachment power. On the other hand, the impeachment power calls for a political judgment sensitive to current circumstances and the question of whether a particular president's conduct does in fact threaten the democratic system in a corrupt or abusive or traitorous manner. And the question of whether it is then wise to go ahead with impeachment instead of other ways of addressing presidential misconduct are questions that are inevitably answered by reference to the political circumstances that prevail at that point in time. As much as we want to emphasize the timelessness of some of these principles and the broader design within which they unfold, it's not entirely fair to say that an account of impeachment sensitive to current political dynamics is nothing but hackery because by giving this power to Congress and designing it by reference to the stability of democracy as a whole, the Framers intended that it will be exercised in part by reference to political circumstances and understandings. And in terms of the question that you've asked, Jeff, about campaign finance, the point I was making there is as follows: There's obviously a lot of debate about whether Cohen's concession in his plea bargain, his statement in his plea bargain that he knowingly made these payments and did so at the direction of the candidate, obviously President Trump, there's a question about whether that is sufficient evidence, whether it's reliable, whether it's trustworthy, whether it's enough to establish the president himself knowingly violated federal campaign finance laws. And Alan could speak about that far more eloquently than I could, and there's obviously a debate about whether the president committed crimes and whether Cohen's plea evidences that fact. What I had in mind was a sort of broader point which is, as we say in the book, not all impeachable offenses are crimes but also not all crimes are impeachable offenses. If the president had done nothing else and all we knew was that the president had done this specific thing, that the president otherwise ran a spotless campaign but that this particular campaign finance violation occurred, you know, several people were paid off in this manner and he knew about it and it did break the federal criminal laws, you know it's not apparent that that conduct poses so great a threat to the democratic system or so necessarily altered the outcome of the election or makes it so unimaginable that he could remain the president of our democratic society that it would rise to the level of an impeachable offense and it would certainly seem to me doubtful that it would be worth the national trauma of an impeachment solely to address that one concern. This is an area, and I think this is often true of impeachable offenses where you're not dealing necessarily with a single dastardly deed. Impeachable offenses are in some respects defined by a pattern of conduct that together undermines democracy and evinces a particular unwillingness to abide by the requirements of the rule of law, and so standing alone this defense I doubt would qualify as impeachable or make impeachment a wise move. I think the real question is the bigger picture for which for now remains obscure to us.
Dershowitz: Well I agree with that and I think the big picture is important. By the way, let me be very clear. Under campaign finance law and I've checked them now very carefully, I sat and I read them all and I came to the same conclusion Justice Scalia came to: I don't understand them. I don't understand what's permitted and what's not permitted. But one thing is clear: a candidate may contribute any amount of money wants to his campaign. I'm good at extreme hypotheticals so let me set one out: candidate Trump announces he's not taking any money from anybody. He's going to fund his campaign with a billion dollars of his own money and 100 million of that is going to be given as hush money to women all over the world who have accused him, truthfully of falsefully, of all kinds of conduct. No campaign violation by him. His treasurer would be obliged to list those as campaign contributions from the candidate, but by the way it couldn't have had an impact on the election because the reporting period that the payment of this hush money, which is perfectly legal, was after the election was over. So I think everybody has to take a deep breath when they look at the campaign violations that Cohen talked about. He didn't inculpate the president. He exculpated him when he said it was at the direction of the president and implied that the money was coming from the president himself. Look if the money came from corporate funds or other things. Those are all violations that can be looked into. But in the end if the president paid the money as hush money, it's simply not a crime or an offense at all. And so I agree you have to look at the big, big picture and the big picture is a disturbing one. Look I'm not here to defend President Trump. I didn't vote for him. I voted for Hillary Clinton. I don't agree with many of his policies at all and people who've challenged my motive, you know, come up with the most absurd motives: I want to be on the Supreme Court. I'm turning 80 this week. I want to be Attorney General. I'm being paid for it. I'm being paid by Fox. I'm the only guy who has never received, who's on all the TV stations, and never received a penny from anybody. I'm stating what I think is the right approach. You may disagree, you may agree, but the enmity that has been directed against me by my old liberal friends is unbelievable, for making the kinds of arguments I'm making here on the show. I have people who just have stopped talking to me after years and years of friendship. And that's just not the way conversation and democracy ought to go. So I really want to thank you for giving me an opportunity to lay out my views in a coherent way with a brilliant opponent. I don't mean to in any way imply that my opponent would not pass the shoe on the other foot test. I'm suggesting there are some out there who are making extreme arguments and would be making somewhat different arguments if the shoe were on the other foot. And that's very common in political discourse today.
Rosen: Well it is the greatest honor for We the People to have provided a platform for these two brilliant debaters to discuss their new books and to talk about the most contested constitutional question facing our republic in such an engaging and civil manner. I want to thank Alan Dershowitz and Joshua Matz and encourage listeners to read their books. The Case Against Impeaching Trump and To End a Presidency: The Power of Impeachment. Alan, Joshua thank you very much indeed for joining.
Dershowitz: Thank you for hosting. Appreciate it.
Thank you. Thank you, Joe, my old, dear friend. Thank you, Joe, my old dear friend for those mostly undeserved kind words. Vice President Biden and I have known each other for a lot of years now, more than forty, if you’re counting.
We knew each other back when we were young and handsome and smarter than everyone else but were too modest to say so.
Joe was already a Senator, and I was the Navy’s Liaison to the Senate. My duties included, as he mentioned earlier, escorting senate delegations on overseas trips, and in that capacity, I supervised the delegation’s luggage, which could require – now and again – when no one of lower rank was available for the job – that I carry someone else’s bag. Once or twice that turned out to be the young senator from Delaware. I’ve resented it ever since.
Joe has heard me joke about that before. I hope he has heard, too, my profession of gratitude for his friendship and love these many years. It’s meant a lot to me. We served in the Senate together for over twenty years, during some eventful times, as we passed from young men to the fossils who appear before you this evening.
We didn’t always agree on the issues. We often argued – sometimes passionately. But we believed in each other’s patriotism and the sincerity of each other’s convictions. We believed in the institution we were privileged to serve in.
We believed in our mutual responsibility to help make the place work and to cooperate in finding solutions to our country’s problems. We believed in our country and in our country’s indispensability to international peace and stability, and to the progress of humanity.
And through it all, whether we argued or agreed, Joe was good company. You all know he is good company. So thank you, old friend, for your company and your service to America.
Thank you, too, to the National Constitution Center, and everyone associated with it for this award.
Thank you for that video and for the all too generous compliments paid to me this evening. I’m aware of the prestigious company the Liberty Medal places me in. I’m humbled by it, and I’ll try my best not to prove too unworthy of it.
Some years ago, I was present at an event where an earlier Liberty Medal recipient spoke about America’s values and the sacrifices made for them. It was 1991, and I was attending the ceremony commemorating the 50th anniversary of the attack on Pearl Harbor.
The World War II veteran, estimable patriot and good man, President George Herbert Walker Bush, gave a moving speech at the USS Arizona memorial. I remember it very well. His voice was thick with emotion as he neared the end of his address.
I imagine he was thinking not only of the brave Americans who lost their lives on December 7, 1941, but of the friends he had served with and lost in the Pacific where he had been the Navy’s youngest aviator.
“Look at the water here, clear and quiet …” he directed, “One day, what now seems another lifetime, it wrapped its arms around the finest sons any nation could ever have, and it carried them to a better world.”
He could barely get out the last line, “May God bless them, and may God bless America, the most wondrous nation on earth.”
The most wondrous land on earth, indeed. I’ve had the good fortune to spend sixty years in service to this wondrous land. It’s not been perfect service, to be sure, and there were probably times when the country might have benefited from a little less of my help.
But I’ve tried to deserve the privilege as best I can, and I’ve been repaid a thousand times over with adventures, with good company, and with the satisfaction of serving something more important than myself, of being a bit player in the extraordinary story of America. And I am so grateful.
What a privilege it is to serve this big, boisterous, brawling, intemperate, striving, daring, beautiful, bountiful, brave, magnificent country. With all our flaws, all our mistakes, with all the frailties of human nature as much on display as our virtues, with all the rancor and anger of our politics, we are blessed.
We are living in the land of the free, the land where anything is possible. The land of the immigrant’s dream, the land with the storied past forgotten in the rush to the imagined future. The land that repairs and reinvents itself, the land where a person can escape the consequences of a self-centered youth and know the satisfaction of sacrificing for an ideal. The land where you can go from aimless rebellion to a noble cause, and from the bottom of your class to your party’s nomination for president.
We are blessed, and we have been a blessing to humanity in turn. The international order we helped build from the ashes of world war, and that we defend to this day, has liberated more people from tyranny and poverty than ever before in history.
This wondrous land has shared its treasures and ideals and shed the blood of its finest patriots to help make another better world. And as we did so, we made our own civilization more just, freer, more accomplished and prosperous than the America that existed when I watched my father go off to war on December 7, 1941.
To fear the world we have organized and led the three-quarters of a century, to abandon the ideals we have advanced around the globe, to refuse the obligations of international leadership and our duty to remain “the last best hope of earth” for the sake of some half-baked, spurious nationalism cooked up by people who would rather find scapegoats than solve problems, is as unpatriotic as an attachment to any other tired dogma of the past that Americans consigned to the ash heap of history.
We live in a land made of ideals, not blood and soil. We are the custodians of those ideals at home, and their champion abroad. We’ve done great good in the world. That leadership has had its costs, but we have become incomparably powerful and wealthy as we did.
We have a moral obligation to continue in our just cause, and we would bring more than shame on ourselves if we don’t. We will not thrive in a world where our leadership and ideals are absent. We wouldn’t deserve to.
I’m the luckiest guy on earth. I have served America’s cause – the cause of our security and the security of our friends, the cause of freedom and equal justice – all my adult life. I haven’t always served it well. I haven’t even always appreciated what I was serving.
But among the few compensations of old age is the acuity of hindsight. I see now that I was part of something important that drew me along in its wake even when I was diverted by other interests. I was, knowingly or not, along for the ride as America made the future better than the past.
And I have enjoyed it, every single day of it, the good ones and the not so good ones. I’ve been inspired by the service of better patriots than me. I’ve seen Americans make sacrifices for our country and her causes and for people who were strangers to them but for our common humanity, sacrifices that were much harder than the service asked of me.
And I’ve seen the good they’ve done, the lives they freed from tyranny and injustice, the hope they encouraged, the dreams they made achievable.
May God bless them. May God bless America, and give us the strength and wisdom, the generosity and compassion, to do our duty for this wondrous land, and for the world that counts on us.
With all its suffering and danger, the world still looks to the example and leadership of America to become another, better place. What greater cause could anyone ever serve?
Thank you again for this honor. I’ll treasure it.
Thank you very much. I’m assuming you’re standing because you’re cold and you like to stretch. Howard Schultz is going to come up and repeat his speech. Howard that was really good for real.
Ladies and gentlemen I’m deeply honored to be here tonight as a part of the night. Serving this year as the Chair of the National Constitution Center Board of Trustees has afforded me many privileges but none greater than the opportunity to recognize and celebrate the extraordinary exemplary service to our nation of my dear friend.
My mom, and I met John’s mom, and he knew my mom. My mom had an expression from the time I was a kid. She said, “Joey, look at me. Look in my eyes.” And I’m not exaggerating my word as a Biden. She said, “Look at me…” “Remember you are defined by your courage and you’re redeemed by your loyalty.” That was her code. You are defined by your courage and you’re redeemed by your loyalty.
Courage and loyalty. I can think of no better description of the man we’re honoring tonight, my friend John McCain. As I said, my mom knew John and respected him deeply. She said, which I never told John, she was one of five children from Scranton – four brothers all served in the military, all in World War II. Her number two brother, and Bobby Casey knows this because we lived only several blocks from one another in Greenwich, his dad and I.
Her number two brother is Ambrose Finnegan who still is remembered in Scranton as a leader. He was shot down and his body was never found in Papua New Guinea. And she used to talk about every time something came up about John how he reminded her of her brother Ambrose.
She thought Ambrose, and she knew John, was the embodiment of courage and loyalty. We all know John’s story. You’ve heard it tonight, we’ve seen it tonight, you know about his grandparents, his father, how he was called to duty in war time, his incredible heroism.
You know, on October 26, 1967, fifty years ago this month when his plane was shot down, and damn it’s hard to remember John, fifty years, God almighty. I was a mere child. I think I was in third grade, I don’t remember for sure.
But you know the infamous Hanoi Hilton. You know, as you know and you’ve heard time and again, and John knows and still bears the scars of the brutal beatings and the damage done to him.
After about eight months you also know about the offer of release. I have had the opportunity as Vice President to sit on the stage of the President and confer a number of Medals of Honor. I’m sure it’s occurred but I cannot think of anyone that I’m aware of, I’m sure it’s occurred, who given the opportunity after knowing, not having to guess Mister Meir...
Knowing what it meant to stay in that prison, not having to be threatened and wonder what was coming. Knowing what would happen – given the opportunity to leave no matter what the code was.
Imagine. I want you to think about it. Imagine it in real terms, again, not having to wonder what he would face by refusing to leave. Knowing the excruciating pain and isolation – and he stayed.
He stayed. That meant he spent almost five more years in that hellhole of captivity. Inhumane conditions, 1,967 days. 1,967 days. You’ve all had pain, you’ve all had suffering, we’ve all had it in our lives personally in our families.
And you know how sometimes just getting up one day at a time, just putting one foot in front of the other and facing whatever that pain, mental or physical. As I said, I’ve been privileged to meet a fair number of heroes in my life.
Like John I’ve been in and out of Afghanistan and Iraq over thirty-five times. I’ve had the honor of putting silver stars on people in the file up in the Upper Coroner Valley. I’ve seen these kids but I don’t ever remember, I don’t ever remember seeing someone who has kept his wits and senses about him.
I remember when you were released John, we all do, but I remember I was a Senator only four months. It was March 14th, 1973 and I remember getting off that plane pal. I didn’t know you but I remember that salute we saw here tonight.
I remember how you were greeted and how you greeted, and how you made no distinction between you and all the rest of your fellow POW’s at Clark Air Force Base in the Philippines. Folks seeing that handsome young flyer who pushed beyond the bounds of human endurance come out the other side still standing, still proud. As my mother would say, “Still unbowed.” I thought to myself my God.
And I remember talking with my friend Ted Koffman, who you ended up serving with, he was my chief of staff, a fine guy. I remember us sitting watching and saying someday I want to meet that guy, never expecting to be able to do it. You know we have an expression in the Senate, you have to excuse the point of personal privilege.
I realize that I’m talking about is personal but remarkably John chose to remain in the Navy. He had an awful lot of other opportunities but he chosen a life of service. And to him duty always dictated what to do – and he stayed.
You can imagine my surprise when in 1977 I did meet Captain John McCain, Senate Liaison Officer of the Naval Legislative office. I was a young, by far the youngest member of the Senate Foreign Relations Committee. And I got an opportunity to travel all over the world, and like John I’ve met every major world leader without exception since 1976.
In the beginning one of the most consequential days of my career, and we have all looked back on our careers and thing of those things and moments that had an impact on how your career moved forward.
I not only got to work with John McCain, I got to know him. I got to know an awful lot about him and he got to know an awful lot about me. We traveled hundreds of thousands of miles together. We got to know each other’s families.
Sitting on my lawn in Wilmington having a picnic with his family when he was still in the Navy. My sons, Beau Biden, Army. Purple Heart….excuse me, a bronze star, other medals he was awarded, looked at John from the time he was a high school kid with nothing but absolute raw admiration.
My son Hunter got to know John personally. They got to talk to him. They took the measure of the man and they got to learn from him. They really cared about you John, and I know you know that.
John and I would travel the world together. As I said, he jokes. He said he carried my bags. The son of a gun never carried my bags. He was supposed to carry my bags damn it, but he never carried my bags.
He was the young liaison officer, I was the young senator. Whether we were going to Germany or China whenever I went with notable exceptions I asked John to come with me. And on many of those so-called codel congressional delegations back in the days when we liked each other and talked to each other we used to travel together, Democrat and Republican and our spouses.
And many of those Jill was along with me as well. She got to know and love John as well, and I think he loves her too. Traveling together with our wives was a tradition we kept up when John was later elected to the United States Senate himself.
I never saw him just as a liaison officer. I pulled him in, I sought his advice. I’d be meeting with world leaders and I’d ask John before I went in, “What do you think John? This is what I’m going to say. You think it makes sense John? This is what I’m thinking.”
He not only became a friend he became an advisor. A little later on I think maybe I served the same role for John when he was thinking about running. We talked for hours about the state of the world, about specific assignments, about our families, about what we wanted to do with our lives.
I learned a hell of a lot about this man. And then we’d talk about what we’re going to do. How we were thinking about what we’re going to do, and John would talk about maybe he’s going to go back to Arizona - go to Arizona and get involved in politics.
And to the chagrin of some of my Democratic friends I strongly encouraged John to do it because I knew, I knew when he ran for the House it didn’t surprise me at all that he won.
It didn’t surprise me when he ran for the Senate and won, it just pleased me because we got to serve together even though that same period of time, as John said, a lot of the Khmer Rouge was elected from the House and came over. That’s another story.
But it didn’t surprise me when he became leader of his party. It didn’t surprise me when he sought out the nomination for President because I saw from the beginning he had that capacity.
I thought then in 2000 he should have been the nominee. From my perspective it all pointed in that direction from the very beginning. John will remember I called him after a couple vicious attacks on him in South Carolina, and I offered to help him.
I said, “John, were do you want me? Pick the town, the city, and the place and I’ll testify to your character.” And in classic John he said, “Joe, I think that’d hurt me more than it would help but thanks.” Remember that John?
And boy was my team angry as hell with me because I made it known I was prepared to do it. But I’ll tell you what did surprise me. I didn’t expect, I didn’t expect that, and it caused me some consternation, although I was proud to be picked as Vice President and serve with President Obama, I didn’t expect that someday John and I would be on opposing tickets in 2008.
But never once, never once did I ever say anything that wasn’t positive about John during that campaign. I never made any secret about John being my friend, although I didn’t talk about it too much, not as a joke, because it would have hurt him.
Not a joke. John do you remember? John and I used to do debates in the 90’s. We’d go over and sit with one another, literally sit next to each other on either Democratic or Republican side of the floor.
And I knew something had changed John, and so did you coincidentally, and Bobby you won’t remember this and neither you nor my colleague from Delaware would know this, but we both got in to our caucuses and were chastised by the leadership of both our caucus’s - why were we talking with one another and sitting with one another showing such friendship in the middle of debates.
This was after the Gingrich Revolution in the 90’s. They didn’t want us sitting together, that’s when things began to change, not between John and me, but things began to change. But for John it was always duty, honor, country. That’s John.
John understands what it means to sacrifice for what you believe in. To put the greater good ahead of personal feelings. President Kennedy said, “Moral courage in politics is a rare commodity than courage on the battlefield.”
John was showing the moral courage. He’s a man who was terrorized, victimized, abused for five and a half years. And then as a U.S Senator, as it’s pointed out, he joined John Kerry in normalizing relationships with Vietnam.
Always country first. Always country first. You know here’s what John said in 1995, he said, “We have looked back in anger at Vietnam for too long. I…” John saying, “I cannot allow whatever resentment I incurred during my time in Vietnam to hold me from doing what is clearly my duty.”
Everybody talks about these virtues but this is what the guy did. This is not only what he said. Duty. Duty. Duty. It’s the marrow running through that solid steel spine of this guy who it makes him such a formidable opponent and such a fierce friend.
John and I have been with one another and together, and we’ve been against one another. Now as you all observed neither one of us have a temper. Neither one of us ever lose our cool. But boy, oh boy.
But as I’ve said, and John knows even after our toughest fights, John, saying to me, call me saying, “You know Biden should be taken off the ticket.” And then he’d call me to say, “I didn’t really mean that. I don’t know what the hell made me say that.”
I’ve said this before because John and I have been given several awards together lately about bipartisanship, and we don’t understand why you should get an award for bipartisanship by the way.
But I said this publicly before, I know if I called John in the middle of the night, even after the most bitter debate we could have and said, “John I’m at 7th and Vine in St. Louis. I can’t explain why but I need you to come now for me.”
He’d get in the plane and he’d go. I guarantee you - and so would I for him. We’ve always been willing when we thought the other guy was right to cross the aisle and lock arms. It’s good for the country.
The part we didn’t talk about, and I’m not going to take your time tonight, but I want to just state it for the record, John’s a man of significant intellect, deep conviction, and unmatched character.
And if you allow me to point a personal privilege again, we used to say in the Senate, and I want to say John how much your example of service and duty, courage and loyalty inspired my Beau in his decision as an Army National Guard Captain, later Major, to give up his Attorney General seat, turned it over to Republican to get permission to be able to go to Iraq for a year because his unit was going.
John, when he received his cancer diagnosis he also found strength in the courage you’ve demonstrated throughout your whole life. And I’m sure he’d not been surprised at all that after your diagnosis you took to the Senate floor to remind us all – all of us who would choose to hold office, Democrats and Republicans alike, what our responsibility is first to the nation.
Responsibility extends beyond ourselves, our parties. You once again felt that clarion call to duty John. You extended it and turned everyone around you. You said, “What greater cause could we hope to serve then helping America be strong, aspiring, international beacon of liberty, and a defender of the dignity of all human beings, and the right to freedom and justice. What greater cause?”
You know that’s what it’s always been for four decades. What greater cause? I personally benefit from having John McCain both as a confidant, councilman, and a friend. For even longer our nation has benefitted from John’s selflessness and unwavering service.
So now John, to paraphrase Hemingway, was spoken to earlier, “We grow stronger in all our broken parts.” John, you’ve been broken many times physically and otherwise, and you’ve always grown stronger.
But what you don’t really understand, in my humble opinion, is how much courage you give the rest of us looking at you. It matters. So now John, with your powerful words ringing in our ears and your example before us, a life of tireless work to quote secure the blessings of liberty to the people the world over.
It is my great pleasure to present you with the National Constitution Center’s Liberty Medal.
On Monday, October 16, 2017 in Philadelphia, the National Constitution Center’s Liberty Medal was awarded to Senator John McCain. You can watch the complete video of the event in the player below or at the following link: https://youtu.be/m61N0T-3QA4