 I think we will just start. There's a few more people to come in. But my name is Mark Schmidt. I run the political reform program here at New America. And I want to just welcome you all to this event, which we're hosting with the American Constitution Society, and we're always thrilled to partner with ACS, which is an organization that was started about the same time we were, and that is we've overlapped with in many ways and a lot of really great events with. So we're really glad to have you all here. Today's event is on rethinking the Supreme Court, potentially reforming the Supreme Court. And for us in the political reform program, we were thrilled to host this because these are a set of issues that we don't work directly on, but we find that in everything we do about reforming American politics, we're constantly bumping up on and being aware of the Supreme Court and its role in, around voting rights, potentially around independent redistricting commissions, obviously around money and politics, potentially moving into an era where we will not only be looking at Citizens United, but some of the original reforms of 1974 potentially being at risk. So it's a period where I think the Supreme Court is political in a way that's not entirely new, but it is in our history, but it is different. Thinking about Justice O'Connor announcing her retirement yesterday kind of represents a different era where you couldn't necessarily label every single justice based on the party of the president who had appointed them, and instead we're moving into a situation where the Supreme Court is in many ways reinforcing for generations to come the political situation at the time at which justices were appointed, and yet at the same time which we treated as this entirely sacred and untouchable institution. So I think the, I'm really excited to have a conversation here which will not treat it as an untouchable institution and actually think about how we make it a more effective ally of both our rights and our democracy. So with that, I'm going to turn over to Cara Stein and we'll continue the introduction and get the conversation started. Thank you all for coming. Hi everyone, and thanks for joining us for this important and timely discussion on reforming the court. As Mark said, my name is Cara Stein. I'm the Vice President of Policy and Program at the American Constitution Society. And before we get started, I would like to thank our friends at New America for hosting this event. We are very grateful for their hospitality. For those of you who don't know ACS, we are a national network of over 200 student and lawyer chapters in almost every state and on most law school campuses. Our members are lawyers, law students, judges, policy experts, legislators, and legal academics who shape debate on the key legal and policy public, public policy issues of our time. And since you came here today, I'm guessing that like me, many of you have been avid Supreme Court watchers for some time. Before there was a SCOTUS blog that kept you up to date and you could refresh your screen all the time on your phone like this, and I know who you are, so don't judge. I actually had the, made please the court audio collection on cassette tape, okay, aging myself. So you could hear all the oral arguments of the greatest hits of the Supreme Court, and I don't know about you, but these last few months, and frankly the last few years, have been quite discouraging for those of us who care deeply about the court as an institution. As the nominations process has grown increasingly contentious, norm upon norm has fallen by the wayside, and I for one have not even recovered from the refusal to grant Merrick Garland even a hearing, and would never have imagined that we would see a nominee take to the editorial page of the Wall Street Journal to make his case. So we've arrived at the point where many are asking if the court is just another partisan player in our political system. To discuss that question, we have an all-star panel today. Our moderate Kimberly Atkins is the chief Washington reporter and columnist for the Boston Herald, where she covers the White House, Congress, and the U.S. Supreme Court, of course. She's also an MSNBC contributor and a recurring guest host for C-SPAN's morning call-in show Washington Journal, where she interviews lawmakers, public policy experts, and journalists about the issues of the day, and she is no stranger to ACS. We are delighted that she's here with us again today. Please welcome Kim. Thank you so much, everyone, for joining us. We're glad that there's a great turnout for this really important discussion today about the U.S. Supreme Court and asking the question, what reforms, if any, are needed to the court for all the reasons that Kara is so clearly laid out. Discussions about how and whether to change the U.S. Supreme Court are not new. They have been going on since the beginning of the court, but I think there have been three recent developments that have really brought that conversation to the fore in a way that we haven't seen before, and one was the last three nominations to the U.S. Supreme Court. President Obama's nominee of Merrick Garland, who did not get a hearing, President Trump's nomination of Neil Gorsuch, who took the spot that a lot of people think belonged to Merrick Garland, and then the most recently, the very, very contentious nomination process around Justice Brett Kavanaugh that just wrapped up recently. And so I want to get to the experts to really talk about these issues, how we got here, how they see the problems with the Supreme Court and how it affects us. So we're going to, on the end, we're going to start with Aziz Huck. He is a professor of law at the University of Chicago, where his teaching and research interests include constitutional law, criminal procedure, federal courts and legislation. Before joining the faculty, he was associate counsel and then director of the Liberty and National Security Project at the Brennan Center for Justice at NYU School of Law, including the U.S. Supreme Court. It's also a former clerk for Judge Robert D. Sack of the U.S. Court of Appeals for the Second Circuit and of Justice Ruth Bader Ginsburg on the Supreme Court. Next to him, we have Bob Bauer. He is a professor at NYU Law and co-director of the legislative and regulatory process clinic there. Bob's 40 years of practice has included providing counseling and representation on matters involving the regulation of political activity before courts and administrative agencies of national party committees, candidates, political committees, individuals, federal office holders and more. He served as White House counsel to President Obama and returned to private practice in 2011 and was also general counsel to Obama for America the President's campaign organization in 2008. Amanda Frost is a professor at American universities of Washington College of Law where she writes and teaches in the field of constitutional law, immigration, citizenship law, federal courts in jurisdiction and judicial ethics. Her writing has appeared in numerous academic and news publications and she authors the Academic Roundup column for SCOTUS blog which we all read. Before entering academia, she clerked for Judge Raymond Randolph on the U.S. Court of Appeals for the D.C. Circuit and worked as a staff attorney at Public Citizen. She's also an alum of the Senate Judiciary Committee's legal staff and that all will come to bear in our discussion today. And finally, we have last but not least, we have Ganesh Siddharaman. He's a professor at Vanderbilt Law School where his current research addresses issues in constitution, administrative and foreign relations law. He took leave from Vanderbilt from 2011 to 2013 to serve as Senator Elizabeth Warren's policy director during her campaign for the Senate and as her senior counsel in the Senate. Before joining Vanderbilt, he was a law clerk for Judge Stephen F. Williams of the D.C. Circuit and the Public Law Fellow and lecturer at Harvard Law School. I could go on all day listing all of their accolades and publications. They're in your material so I invite you to check that out as we have our discussion. But I want to get started and I'm going to start with you Aziz to give you all an idea of how we got here to this place where we are asking these existential questions about the U.S. Supreme Court and the way the justices are confirmed to the court and the makeup of the court itself and how it's governed. What do you think got us to this place? The court has always been a political entity. It has always been an object of contestation between political parties and has played over time an increasingly important role in the Republic. There are moments in time where the court has become aligned to one pole of the political spectrum and has pursued policies and the pursuit of policies is inevitable in the exercise of the Supreme Court's jurisdiction given the kind of cases that it has. It's pursued policies that are closely aligned with that pole. The sheer fact of the association of the court with one pole in the political spectrum creates a situation of tension between either the political branches and the court or the court and the general public. In my view there are two ways of thinking about reform of the court. One is to focus upon the personnel of the court. The other is to focus upon the power of the court. My own view and I differ from other people on the panel here is that a focus on the personnel of the court is a mistake and one ought to focus on the power of the court. Bob, what do you think? My focus today and it will bring me to something comment on Professor Hook's position here is that we need to adjust our understanding about the way we think about the court. We need to alter our understanding of what norms are appropriate in guiding the court's understanding of itself guiding our understanding of how nominees are selected and confirmed to the court. As said in the introduction we have this notion of the court sort of as a citadel, it's a highly protected entity there are all sorts of norms that serve to place the court at a distance if you will from I think certain principles of accountability I should mention I think one of the dangers in this discussion is one becomes aroused to discuss these matters only when something happens a decision is issued or a confirmation process yields a particular result and it anchors one side or the other but I think both sides if they think about the way in which I think the norms have become if you will unaligned over time both sides can agree that reform of the court and beginning with adjustment in our understandings our expectations the practices we expect of the court all of that is overdue and so just let me say very very briefly and because I do want to brief here and I'll come back to all of this I take the example of lifetime appointments so you have a court that is extraordinarily powerful presidents nominate justices to the court they may serve only four years they may nominate the courts with whatever level of public support they have at the time and then they are in a position to exercise influence over the constitutional law of the land for 40 years or more maybe 40 at the top but certainly for a very long time and yet we have a norm that suggests that they're entitled to their choice barring some major disqualification barring some personal disqualification that's a grotesque mistake it's absurd to argue that a president of the United States is entitled to a choice with deference essentially substantive deference to whatever ideological judgment the president has reached whatever jurisprudential preference the president has with a consequence that spans decades and so that whole deferential norm has created all sorts of distortions in the process including of course enormous pressure on the Congress to look purely to personal deficits because of fear of contravening that norm of deference and I'll have more to say about this when we talk about the advice and consent process and then the question is to what extent can you translate these concerns with what I think are outdated norms into reforms that are legal in character what does it mean to try to do that and with what consequences both intended and unintended Amanda Yes I wanted to pick up on the point that Aziz made about this being maybe a bifurcated issue do we change the court's personnel do we impose term limits do we add to the court's numbers to the court that's one set of questions and then to what degree could Congress regulate the power of the court but I may differ a little bit from Aziz I am not a fan of necessarily court packing or term limits and I think with term limits we would need a constitutional amendment that said I am not opposed to talking about it and talking about it publicly and loudly and lots of different spheres of our political and public life because the court is listening and while FDR rightly I think his plan to pack the court was rejected I think that public conversation had an effect on the court and I think it was a useful effect I think the court is never completely and nor should it be divorced from the current public views of its decisions and certainly the court evidence shows does follow the will of the people to some degree and if a very conservative court let's say in 5 or 10 years is very much out of step with what I hope to be a more progressive American society but then I think I hope it listens when people have conversations about packing the court or term limits not because I think we should institute them but because I think it should listen to the people's dissatisfaction I am a fan of smaller scale reforms and I'll talk about them in some more detail later but just to throw out the kind of things I'm talking about things like the recusal laws which right now I think are very ineffective allow each justice to decide for him or herself with zero accountability that's one small example another example of ways in which the court could have some of its decision-making change would be to have a more open or transparent certiorari process we could even change the voting rules how many justices do you need and the majority to overturn a statute as unconstitutional we could have lots of conversations about these smaller tweaks to the court's power okay Ganesh well thanks so much it's an extreme crisis in its legitimacy I think that's the case for a few reasons the first is a process set of reasons we had a Supreme Court nomination process for Judge Merrick Garland that resulted in him not receiving a vote and many people in the country one might say about half who pay significant attention to politics think that that seat is a stolen seat we have a second Supreme Court justice now Justice Kavanaugh who no one thinks is a stolen seat it was President Trump's to fill by right but the process of which was so toxic and so corrosive that again some 50% or so of the people who pay significant attention to these kinds of questions think that it is an illegitimate person to be holding that seat so that's a process problem the second problem the Supreme Court has is a partisanship problem we have a 5-4 Supreme Court in which the 5 and the 4 are more consolidated than they have been in decades Justice Kennedy is probably the last justice we can expect to in any significant number of significant cases vote in a direction that appointing president appointing president's party might suggest that he's he's contravening and this is a big shift even when FDR was facing the 4 horsemen who were striking down New Deal legislation there were Democrats there was a Democrat in that group it was not a solely partisan question Justice McReynolds was a Woodrow Wilson appointee so it was Republicans and Democrats who were striking down his work that in the case now if we see a future Democratic president and we have a 5-4 Supreme Court it will be the 4 the 5 Republican appointed justices striking down legislation from a Democratic president over the dissents of 4 Democratic appointed justices that is a partisan problem that is significant and different and the reason why I think that part is a problem is part of what it does is it makes the court look like a group of political hacks who are voting for politics not supporting what the and part of what makes our legal system and the rule of law itself work is our highly salient entity in the justice system is the Supreme Court and people believe that it is a legitimate organization that is working on the rule of law and that is trying to be neutral an important part is not seen and has generally been seen as consistently just a group of political hacks that is a big threat I think going forward for the court as well and I think this legitimacy problem for the court means that the court has to significantly change if what we want to do is save the court's legitimacy from what we can predictably expect will be a long list of kind of 5-4 decisions along partisan lines that are coming forward as we talk I'll give some criteria and suggestions for how I think we might do that and I want to remind everybody that we're going to a lot plenty of time at the end of our discussion for your questions and I really want you to be thinking of them as we speak and we will get to as many of them as we can at the end of the program so just think about that and hold tight on that and sort of diving deeper into this discussion I want to first spend some time talking about the makeup of the court itself and potential changes to that Ganesh you were talking about the idea that the court is very political I was talking to another reporter recently and we were remarking about how 10 years ago we would never refer to a justice as Democratic appointee or Republican appointee we would just say Justice Souter, Justice whomever Justice Roberts and now not only is that done more routinely but the implication of that seems to almost always be born out that we do have justices that are more or less in many cases you can predetermine what their vote is going to be before a case is even argued and so you know that brings us to the idea of the court itself what changes can be made to the court to make it less political to reinforce more trust into the process and to take the politics out of it I know just in your introductions you've talked about things like term limits I know this 18 year number is one that's very popular and it's a lot of issues around or biennial appointments or changing the numbers of justices on the court changing the way the chief is selected or how senior justices are rotated what are some of these ideas and what are their might they work might they not and why you can start Bob I'm happy to jump in with one thought which has been expressed elsewhere and that is we currently have that I think has particularly invited and maybe in some respects unfairly the suggestion that is partisan I'm not a view that all of the justices even when they cast votes that are predictable given their backgrounds and the presidents who nominated them I'm not convinced they view themselves as acting politically that I'm not at all convinced of but I think the court contrary to the view that it may have recovered from this episode really turned a certain corner in the public perception with Bush versus Gore the issue was not in many respects I know there will be significant disagreement about this that five decided they wanted a republican president and four would have held out for a democrat but because of an extraordinarily aggrandized view of its role in the middle of the situation there's a constitutional procedure for addressing these matters their state recount procedures there are admittedly messy potentially very volatile constitutional processes for accepting the electoral vote count for the states and sorting out contests sorting out unresolved outcomes and the court and this is the strongest argument that's been made on its behalf saw itself as the guardian of constitutional order and sept in a way that I think really raised significant issues of legitimacy the thought was well their approval ratings bounce back afterwards you know we're a very public opinion focus I'm not certain that that didn't have a dramatic effect over the long term on how the court was viewed but I see that again partisanship stemming from the absence of robust norms that govern how the court itself views the exercise of its own power and I'll just close by saying this I wouldn't mind to see a court with more membership drawn from if you will categories of lawyers but the experience is definitely different from the ones who currently sit on the court we don't need necessarily elite educated experienced appellate judges from Harvard or Yale packing the court having spent their time going to if you will ideologically sort of reinforcing conferences and discussions among themselves I think some of the you go blacks and the Earl Warrens wouldn't be bad additions to the court to address some of the concerns I'm expressing in other words in some sense a more political court more sensitive to the role of the court of democratic society and in the past we have judges who have come from different places O'Connor was a politician before she was on the court but I think you had a point and I was just going to say a related point about the fact that while the nine maybe split along the partisan lines of who appointed them they are remarkably alike in a very problematic way and in particular that many of them have worked for the executive branch and that's been a significant part of their background I have a lot of concern about abusive executive power and the courts playing a role in checking that I'm concerned whether it's Elena Kagan or the Chief Justice Roberts to see that when you are a lawyer and you occupy a role you take on some of the values of that role that's without any question it's just human psychology and I would love to see a court that was more diverse in its background including people who'd seen law at the trial level and I hear trial courts say they'd like that as well and people who just bring a more diverse life experience so would some of these proposals I mean whether it's changing the amount of time ending lifetime appointments or changing the number or the way the court is arranged get to those issues so I think the place we need to start in thinking about court reform proposals at least the big structural ones is to have some criteria of what we're trying to accomplish I think there's at least four things that we want to accomplish one is we want to tamp down the politics we have a political process that is highly partisan and highly toxic around this it is political hardball we want to lower the temperature of the political stakes of every one of these court fights a second category is that we want to address the fact that effectively the constitutional law of the country is being determined by a set of random occurrences which is retirements or deaths of justices that happen in unpredictable times and no one would think that the right way to design a system is based on the longevity of individual octogenarians that is just not how you would think this is a sensible way to design a system of finality in constitutional law a third criteria is that any proposal has to be constitutionally plausible though not necessarily constitutionally bulletproof and what I mean by that is it needs to be plausible that you could enact it by a statute and the reason why is it's highly implausible that given our polarized system you're going to get a constitutional amendment so it needs to be constitutionally plausible now I say not constitutionally bulletproof because there's room and it's probably unlikely that the kind of big reforms you might think of are bulletproof or in a very conservative constitutional sense but there are plausible arguments and there are some that are more and less plausible and then the final criteria is it needs to be something that is possibly stable so even if in order to pass it it would be a highly political and partisan thing once it is passed whatever the reform is you would ideally want something that both sides could then agree on is reasonably stable going forward so you don't have massive institutional swings every four to eight years so with that criteria in mind here's how I see a couple of things not to filibuster too long though I did work in the senate so it is one of those things that seeps into yourself especially if you're an academic but let's take 18 years for example the 18 year plan solves some of these things but it actually does not solve the political problem if you have 18 year terms for justices it is highly likely to make the political problem of the court worse not better because at the end of 18 year when you appoint justices it still will be a highly contested political process every single election will be about the future of the supreme court because each president will get two judicial appointments on the supreme court every campaign will be about it every time every presidential campaign will be about this question then you're going to have the judges on the court they'll be on the court for 18 years and I suspect they might want to become more political not less political and the reason why is at the end of 18 years excellent things for justices to do might be run for senate or the presidency become a commentator for Fox News or MSNBC and rake in lots of money become a lobbyist on K Street this might make the justices actually worse in this direction rather than better something that people don't really talk much about who are the advocates to the 18 year plan so I think the 18 year plan is not a good one does not meet this core criteria a second one, packing the courts has some complicated effects not entirely certain what that one would do on the one hand it seems very problematic in stability terms if you imagine that democrats coming in in say 2021 would try to pack the court add some additional democrats well it's possible republicans then in the next republican administration will pack the court again and we will have a tit for tat constant expanding court so that fails the stability criteria now this may or may not be the case and the reason why is throughout our history as some people have pointed out Bruce Ackerman Jack Balkan there have been these big moments where politics including constitutional law gets fundamentally realigned so in the event that there was some sort of realignment moment it is possible that there would then be stability around a new supreme court that is composed of a kind of packed democratic court or a packed republican court in the future but it's very unpredictable for us to know if that kind of realignment moment is going to happen in advance those are only really identifiable after they've already happened so it's sort of hard to tell if that one will be stable so there's some pros and cons there one of the positives on the packing the court that is a negative of the 18 year plan is packing the court most commentators think is constitutional because the size of the court has changed over our history whereas most people think the I think most people think it's fair to say the 18 year plan is on much more dubious constitutional grounds because people have generally understood the constitution's requirement of good behavior to mean lifetime tenure I'll say one last thing I've proposed a couple of additional ideas that I think satisfy these criteria with the professor at Wash U named Dan Epps and what we propose is first that a system of a lottery where instead of having nine justices as we currently do we appoint all of the federal court of appeals judges as associate justices of the Supreme Court and then the way the Supreme Court would hear cases is in panels of nine randomly selected from the full set of federal court of appeals judges we could talk about the details if people are interested there's a lot of details to that the second idea is that we switch the court to having 15 justices five partisan Republicans five partisan Democrats we have a lot of commissions for example that have partisan balance requirements and then five additional judges taken from the court of appeals that the other ten have to by consensus agree to so it would force the ten to pick five that they can all agree with and those would just serve for a year and you would have much greater rotation in who's on the court it would significantly decrease the impact of any particular nomination and again doesn't have life tenure problem so happy to talk more about each of those in the Q&A I have a lot of questions for that first I want to give Aziz a chance to jump in so you can imagine a well in which Merrick Garland had been appointed to the court and there was a discussion of precisely this kind that was happening but at the Heritage Foundation and there was a Ganesh Citra Arman Cruz making exactly the same arguments about legitimacy and making proposals about how to restore the court right and the discussion that would be occurring in New America and in ACS would have a completely different tenor and it would be a ginning up of reasons why the kind of personnel based proposals that I think Ganesh was really smartly and sharply articulating and exploring in these really innovative ways were wrong that ought to be a clue that we're not talking about the right thing my view is that the reason that we are having this conversation is that the court is a powerful political actor with preferences over policy that it has the power to enact that are predictably different from ours and predictably regressive extremely regressive and this is not just a function of President Trump's appointments it's been true certainly since the early 1970s to the extent that liberals believe that the court the supreme court and I think one ought to distinguish between the function of a constitutional court at the apex of the judiciary and the function of lower courts that deal with retail adjudication to the extent that liberals believe that apex courts are important to the achievement of the substantive moral and normative goals that they believe are important they are wrong it is just not the case that the US supreme court has as a historical matter pursue progressive policies there has been a period from 1955 1954 perhaps up to 1972 where that was somewhat the case but to say that the supreme court is somehow necessary for the maintenance of our democracy to say that it is necessary to defend the individual rights of citizens or non-citizens in an era in which most of the court's jurisprudence of remedies has been making it easier to take those rights away I think it's just it's just false my own academic background includes a comparative constitutional perspective if one looks around the world most constitutional courts are created not because the founders of a constitution want to somehow protect the vulnerable or advance progressive agendas constitutional courts are predictably methods of entrenching powerful elites that existed before a constitution was ratified that was true in the United States the court was predominantly federalist it was identified with a political party for the first 15 years of its life and then the first big political battle over the courts was an effort by the Jeffersonians to destroy the federalist lock on the judiciary so this notion that somehow courts have ever been apolitical that they've ever been progressive except in peculiar moments where being progressive advanced a cold war agenda which is what explains Brown it's just wrong so my view is that if one wants to address the problem that's on the table you need to depower the court and there is a long history of congress enacting statutes that limit substantially the authority of the court two examples of that first we all take for granted or at least the lawyers take for granted I think that the function of the supreme court is to decide questions of federal law well that wasn't true for 100 years the federal courts didn't have what's called federal question jurisdiction they were given it in 1801 by Adams in a Hail Mary pass in the last days of his administration and the Jeffersonians promptly took it away and it wasn't restored until 1875 so the idea that it's the job of the federal courts to resolve federal questions is a latecomer it is a post civil war idea second point the idea that the court has some sort of free ranging mandate to pick and choose the questions of federal law or constitutional law that it decides is again a very very late idea for 100 and depending on how you count 130 years when a question of federal law arose usually it would arise in the state courts the supreme court by statute was only allowed to hear that question of federal law if the state court had decided against a federal right it was not permitted to hear the case if the state court had decided in favor of the federal right the general point is that congress over time has exercised an enormous amount of discretionary control over what the court does there is nothing necessary in our constitutional scheme in a court that has the degree of power that the court today has changes to the court, reform proposals to the court that focus upon personnel rather than power fail to address the core question that animates liberals and progressives they are disingenuous in the way that FDR's court packing proposal was disingenuous and was criticized as being disingenuous everyone understood what that was really about and that was a limitation of failing on FDR's part so they don't get to the real issue and they stumble I think further over the fact that they preserve the key role of the senate a body that because of the demography of the states will predictably tilt to the right for the near term indeed it's tilt to the right will increase over time so for those reasons my own view is that a progressive agenda particularly on the supreme court and I'm distinguishing the supreme court from the lower federal courts has to be one that's focused upon power not personnel and has to be focused on taking power away and I want to bounce off of that particularly the idea of the role of the senate but I want to give everybody a chance to respond to Aziz before we move on to talk about confirmation so can I make a couple of specific responses so first I think you press a good case and you know I wish I I wish I had the accent because I feel like my case would be better if I did I got mine from a breakfast cereal box Captain Crump maybe I can get one there I used to say Captain Crump but even with that with that arm tied behind my back here's what I'll say a couple of things Aziz one problem with the power approach as you define it is it does not solve the problem of what happens when the shoe is on the other foot you can jurisdiction strip the court today and then the next administration and the next congress can give it back its jurisdiction these are done by statute and they do not lead to a stable system over time because all the ways to strip power as you said the Jeffersonians took it out the Reconstruction Republicans put it in these were partisan things happening as administrations changed that will not shift there is a big difference though I think between personnel as you framed it which I do think the court packing plans fall into that category more cleanly and structural reforms to how the court operates so the lottery proposal for example that I've put forward as a structural reform would also significantly shift the power of the court it would do so because you would not have cults of personality around justices they would be randomly selected on our proposal that would be around for two weeks at a time in which they would hear cases they would largely be court of appeals judges their entire term changing the culture of how they operate how they think about precedent what their role is how they can change the power but also potentially are stable in a way that power shifting moves that are statutory are equally subject to political change so I'm not convinced that we can get around that problem and it may be that the answer is for someone who believes the courts should be less powerful in our constitutional system and I think Aziz is right that progressives and liberals have been too quick to think that the court is the entity to save us from politics we don't prefer or to advance the cause of justice he is right that that has rarely been the case in American history it may be that both is some sort of an answer but the idea that it's just the power side I'm not convinced of in a world where you have to think that both parties at some point will have unified control over government and whatever system needs to be stable across that kind of shift I wanted to give anybody else a chance to quickly going to say Aziz I have a lot of sympathy for some of the points you made but here's my I just want to get this on the table we did see a personnel change to the court by congress it was when Merrick Gardlin was not confirmed they by that action took the court down to 8 which had major effect in a couple major cases so they controlled the size of the court and then the republicans got the person they wanted on the court so I feel like we just watched over a course of two years a personnel shift in the court by one political party and I'm a little reticent to be like well the democrats shouldn't take their turn if they get it now I agree that's sort of tit for tat has not gotten us very far but I'll just say we've seen a personnel shift in the court and the republicans accomplished it so for my part either or in some sense you can't worry about the power of the court at the same time worry about the process of personnel selection I think you can do both but I have to go back again to this issue of norms I don't know that we can ever escape them so I happen to agree with Ganesh that it is a problem to rely on say jurisdiction stripping practices that are just going to invite a cycle of fuel of constitutional violence about what the court's jurisdiction is so the question has to be what's inside and what's outside the bounds of the way we think about the court and the way we deal with questions of the court's authority how it's cabined two quick points one about Garland and the other one on the subject of lifetime appointments to me the fundamental norm violation in the Garland case was not that republicans were compelled to vote for Barack Obama's nominee to the court I happen to think that the president Obama made the decision to put forward somebody they had unanimously supported before who hardly represented a Bolshevik threat to the republic and might have potentially drawn some republican support but McConnell completely foreclosed that possibility the norm violation in my judgment was shutting the process down completely if at the end of the day a republican wanted to make the argument I'm not going to support any nominee of Barack Obama's and even Merrick Garland is frankly just too liberal from my taste that's the argument they're going to make and the constituents they answered their consciences that's the way in which they chose to exercise their advice and consent authority the obliteration of the process was a massive norm violation because what you want is argument you want nominations to be put forward the congress to advise and consent hearings to be held floor statements to be made people to take positions something that we saw play out quite dramatically in the Kavanaugh case whether even though that's a depressing case in many respects and we can talk about that later so the norm violation there was to say we're just going to shut the process down completely and suspend our responsibility to advise and consent by the way that's not the first time in the constitutional history of the United States that a majority party has threatened to do that it is the most striking instance in which it has done it just it's sort of a matter of majority leader announced principle the second point I want to make about norms is lifetime appointments a reason completely without regard to how partisan we think the court is or whatever not to have justice is served you know into their late 80s and particularly to have no transparency whatsoever into their continuing capacity to serve several years ago in Lee Druthman somewhere around here he picked it up in one of his columns there's Lee I had made the suggestion that when John Roberts was before the court and John Roberts has expressed concern about how long justice is served he might have been asked by the Congress as part of his advisement and authority will you commit to us that you will only serve on the court for X number of years or in whatever range we identify could have been asked could be a routine question that justices are put to justices Roberts is not the only justice who has expressed sympathy for the idea that justice shouldn't serve forever justice suitor did as well that question is not even asked it's sort of an act of actuarial violence you know but it should have been asked and it wasn't asked and so again I have to come back to the idea that some of these problems are a function of outdated ways of thinking about the court and interacting with the court that I think have reinforced some of the court's worst practices and expectations of itself and so bouncing off of that idea and talking a little bit briefly about the process of how justices are chosen and confirmed is that where the change mechanism is put in place I mean how would any of the proposals bringing back and constitutionalizing the filibuster giving congress more power essentially to regulate the process about how justices are selected and confirmed how will that change things particularly given the fact that the senate or the congress just like the executive are political bodies there's going to be politics involved in this no matter what the rules are anyone want to start Bob since you were talking about it I'll be very brief about this I think that what we saw in the Kavanaugh case was the complete absence of any kind of credible process for considering publicly supporting examination of the qualifications of Supreme Court justice and the committee rules for example there's nothing there essentially these matters are left to the determination of the majority and so you saw this that one day Thursday hearing was really quite extraordinary I mean you know a lawyer brought in by the majority who was essentially dismissed mid hearing and five minute rounds of questioning and no other witnesses permitted that sets up a precedent that I think congress could talk of with the public sort of general constitutional concerns in mind the majority majority could agree on a set of robust procedures that would frankly serve both sides that would prevent the senate from so seriously embarrassing itself and would greatly aid both its advice and consent function and the perception that it was just charging that function responsibly and how would you do that what would those rules look like well so a number of how do you ask me that question a number of things first of all there needs to be a process by which when complaints come into the senate or tips or information there needs to be a process for logging them and circulating the information within the committee with robust protections for anonymity at least in the first instance there are none there needs to be an understanding of when a special counsel would be appointed particularly on contested issues of qualification and if a special counsel cannot be agreed to by the majority of the minority there could be a default requirement that the FBI on an independent basis is called upon to conduct the investigation and the independent FBI investigation is the one that determines the scope not the majority I think there could be rules around the hearings and precisely how they're conducted to provide at least some guarantees of appropriate airing of these particular issues there needs to be some understanding of what the so-called burden of proof is it's not beyond a reasonable doubter for ponderance of evidence these are not trial court procedures these informations are for the use of the senators in judging the fitness of someone to serve and I think that needs to be clarified because the public was badly confused on that point and last but not least there needs to be some means for understanding the record on which the senate relied in making its judgment this notion that there's a room somewhere that people go in and out of and as they come out they sigh or they smile and you're supposed to understand what their mayor may not have been of consequence in that record it doesn't reflect well on the institution at all and it's certainly a blow to the transparency of the process and raises questions about how the public in turn can judge whether the senate properly discharged its advice and consent function can I just build on something that Bob said that goes to the plausibility of these reforms but also builds on his point about norms among legal scholars there's a mystery about why we have norms why we have practices that are not attended by any punishment or sanction for their violation in the context of political life and it turns out that we have many of these norms and the standard explanation for why norms exist it's not the only one it's a pretty standard one is that participants in the process perceive of themselves or perceive themselves as a group say a party that is engaged in a iterative, repeated process of interaction and they know that as others have pointed out the shoe might be on the other foot downstream and so norms persist on the assumption that we are in an iterative game where there's going to be movement back and forth and the reason that norms break down or one of the reasons that norms break down but one side of that iterative game thinks, oh I can actually change the rules of the game and I can move out a set of options that were on the table I can slice them off in a way that benefits me or I can stop playing because I know that I'm not really at risk of being pushed out in later rounds then there's various reasons why that might happen but that does appear to be what has happened today and you can call it partisan polarization or the sort of politicization of the general culture wars or what have you but the idea of this iterative expectation of repeat play appears to have become much more fragile where with people, if you'll pardon the pun being more willing to play a trump card in a way that sends the game off the rails in one round and this is I think what happened with Garland it's what happened with the Thursday Kavanaugh hearing also and in a world in which people don't have those long term expectations in which the key players don't seem to have those long term expectations I think that there's something mysterious about thinking that we're going to get back to a place where it's not just that people will have long term expectations about how this game will be played but they'll be willing to write those down in the form of rules that actually have bells and whistles and sanctions attached to them so I'm very sympathetic with a lot of these ideas I actually don't think though that my proposals are any less unstable than any others but I think that there's a deep problem of motivation across everything that we're talking about because it is the very conditions that have created the problem that make the kind of solutions that we're talking about feasible I just want to point out that we're obviously focused on the Supreme Court today and here and so we'll keep it there but to the degree that we're talking about taking away power from the Supreme Court I think then we're talking about giving it to the lower federal courts or the state courts and I have seen that same partisanship and politicization of the courts happening at the lower levels as well and we're already a country quite divided by regions and red states and blue states but even you look at the map and it's regional as well and of course our courts are regional courts the state courts obviously have the jurisdiction over the state and then we have the circuit courts controlling the law for various regions so I'm sort of even though I'm also a fan of thinking of maybe smaller ways to regulate the court including this idea of changing jurisdictional control the scope of their jurisdiction over various issues you know you have to think what will happen next and what will happen next is then we've got maybe battle over the composition of the fourth circuit and the ninth circuit and the attorney generals in each district rushing to bring their cases to the favorable court which we see some of already now I want to and I'm just a reminder in about 5-10 minutes we're going to get to questions so be thinking about that but I want to get to that issue including the jurisdictional changes that you brought up but first I want to drill down a little more on this issue because watching this writing about this it just seemed very clear that the senate had control over these nomination processes in a way that we didn't really think about before there wasn't increasingly a growing division in the votes for example confirmation votes of justices where we went from Scalia who was confirmed unanimously and Justice Ginsburg who was confirmed nearly unanimously through justices Roberts and Alito where it became more you know a lot less lopsided to now we have Kavanaugh as the closest vote in modern history but along the way there was the erosion of the filibuster and then the outright end of the filibuster and then these new rules that came in you know the Biden rule and the other thing whatever leader McConnell would think of that day and then you know and this idea that well advise and consent means we're going to allow outside groups to create a list and the president just picks that and we know that the members of the Republican run senate it's going to love it and so there we go talk a little bit more about that the senate and how they're in the position to make or change the rules at any time and is there a solution to that because the same will happen if we have a democratic president and a democratic control senate right so this isn't just a partisan issue this is a process, it's a structure issue my own view is and these things don't occur immediately you know politician everybody winds up in the aftermath of an experience like the Kavanaugh experience sorting out what it means and drawing their own conclusions about the institutional costs consequences and the like and that story has yet to be told in the first iteration of the story is not likely to be accurate or long standing but I do think we can expect that senate practice will change under political pressure in the light of how those institutional actors determine the significance of this experience for them and for the institution I do there's no other way to deal with it I mean the senate clearly can do all sorts of things in the guise of its advice consent responsibility including what Mitch McConnell did on to Merrick Garland right, could do it nobody could stop him from doing it and the same holds for the change in the filibuster rule the question again is what people can tolerate and even in this last round with Kavanaugh and I cannot imagine a case made for the integrity of the fact finding process in this case nonetheless the reason there was a one day hearing and the reason eventually there was even any kind of an FBI inquiry is inadequate in many respects as it was is because there was a body of senators who didn't think it was plausible to have the hearing conclude on any other basis now we can argue whether it was a sham or not so forth but there's something there that I think over time could influence the way the senate looks at these issues but do I think it's going to happen overnight, no the senate over time has played a very different role and it's changed from period to period so there's been about a hundred and fifty five or fifty six nominations of justices by presidents since the beginning of the republic and overall about one quarter of those nominations have failed but the rate of failure has changed dramatically over time it was somewhere south of seventy percent for the first hundred years of the republic and then went up to about eighty five, eighty six percent for the 20th century so we actually have a tradition where the senate is a much more aggressive gatekeeper on presidential choice with respect to the supreme court what appears to be driving that if you look at the patterns is the fact that we had the same party in the senate and in the white house through much of the early 20th century and that party tended not to be ideologically singular in the way that parties are today they were cross cutting ideological issues with respect to economic issues and particular racial issues and so that those conditions appear to have made it created a situation in the 20th century a political constellation across the 20th century where what you described at the beginning, Kim, of this much more laissez-passe approach to the confirmation process and Bob also talked about set in, but there's nothing historically inevitable about it it depends upon the existence of united versus divided government with respect to the senate and it also depends to an extent, unless I'm going back to something I already said it also depends upon the ideological homogeneity or variation within the party the more ideologically homogenous the party is the more you're going to get the kind of process you've seen in the last few decades so let's backtrack to this issue of rules that govern the way the justices operate and I wanted to kick that off with Amanda's suggestion about maybe there are ways to change the jurisdiction the jurisdictional power of the court there's everything from the way the justices recuse themselves or don't recuse themselves to transparency issues with respect to the certiorari process or the people who come before the court talk a little bit about that first of all there's a long history of threatening jurisdiction stripping without actually doing it there's been some examples of actually doing it as well but I think that goes to a point I made really early on which is sometimes I think these are great conversations to have even if I personally where I'd have a vote wouldn't vote for it because I think the conversation kind of perks the ears up of the nine people on the court and makes them think twice my limited experience in my limited experience with judges they are very very aware of the public opinion of their court and of them so they are paying attention and so they would listen to this debate and it might affect them so a couple of the the non-personnel changes would be jurisdiction stripping examples in the past are worry me so things like take away school desegregation cases from the federal courts take away prayer and school cases these were threatened never actually done the obvious goal to get a result they wanted I'm not a fan of that at all but there is an argument for I think a point of these was making just give them less power overall maybe less power to control their docket more mandatory cases they have to take and cases they can't take there's no reason that they should have the ultimate power they have now in every case that comes through a state high court or federal court of appeals to decide if there's a federal question whether they want to take it or not so that's one example of restricting their power or changing their power another would be voting rules to what degree do you what's the size of the court needed we can talk about the size of the court as nine members but we could also say maybe to strike down on constitutional legislation they need to get two extra votes not one and in fact that used to be the way it was the court used to be an even number six members so to strike any piece of legislation down they would need to have four in favor of doing that against the two opposed that's another thought we could change the ways in which they sit the rules in which there this is Ganesha's point the ways in which they sit currently some people have said there should be panels of justices not the full court every time justice is served on the lower courts anyone who thinks this is constitutionally questionable should remember that the first congress and for quite a while the justices were forced to ride circuit so they actually served on the lower courts and had to get on a horse and sleep in ins and share beds with the lay people who had to open their homes for them so they could hear cases in the courts in various regions they hated it and it was not a fun part of being a justice but it reminds you that congress has a lot of authority to regulate the work of the supreme court anyone else have thoughts on that I mean on the issue of riding circuit I find it fascinating that a lot of the recent supreme court retirees are doing that for fun after they left the court so it's obviously something that is feasible in that way but any other ideas about ways to reign in the power of the justices what about this idea of recusal or applying ethics rules to the supreme court that apply to other appellate court justices but not them well since I've written on that I'll just keep talking for a little bit longer and then hopefully others will jump in I mean I think and I talked to a bunch of judiciary committee staffers about this at one point and they were and I respected this very reluctant to appear to be interfering with the supreme court but I honestly thought too reluctant because first of all we do have a recusal statute that applies to the supreme court 28 USC section 455 but the way it operates I think is really problematic each justice decides for him or herself whether to recuse there is no reason given which is I understand why it might be tricky to actually articulate the reason it could be embarrassing publicly to say it in some cases on the other hand it means that there's absolutely no norms or baseline standard for recusal and there's absolutely no accountability or right none of the other justices are ever involved in that decision and I think that's problematic the code of conduct which applies to all the other lower federal court judges does not apply to the justices they claim to follow it but if you look at what they do and this applies to you know both the folks appointed by republicans and democrats they don't so I think that's another area in which the court has a little too much leeway and congress could reign it in I completely agree with all of that I think it goes to the question of the various ways in which we communicate an expectation of the court about what kind of an institution it is I'm reminded that when the late justice rehnquist was approached by a reporter who asked him questions well founded questions about his health and whether he was going to resign his answer was is none of your business and there's a little bit of this is none of your business that shapes the way the court looks at these kinds of outside inquiries I happen to support I recognize all of the all of the arguments against it but I happen to support the idea of having supreme court arguments that are televised maybe some supreme court justices will be motivated to become show people we've had examples of that but so that's what they'll do and maybe they'll be lawyers who I think by the way for a variety of reasons would be disinclined to do this who will be show people but it doesn't seem to me that there's a reason why the public which is certainly not going to spend a lot of time reading through your average dense deeply footnoted largely obscured mostly incomprehensible constitutional adjudications might benefit from just hearing the matter discussed in the courtroom why should that not be generally available and the court's response quite strikingly to this argument has been including one former justice who said that the argument that congress should impose this requirement on this courts was an attack on his independence it's an attack on judicial independence and that the attitude encapsulated in that objection I think is one that we ought to significantly resist and I would just add you know for people out there thinking in the judicial independence set of arguments that this is a grave separation of powers problem for congress to be involved in anything related to the supreme court there's actually we can be very very strict textualists about this but the constitution itself in article three gives congress the power to set regulations for the judicial branch and to set up the judicial branch the necessary and proper clause specifically by text gives congress the power to do anything necessary and proper to implement any of the other powers vested anywhere else in the constitution the judicial power is vested elsewhere in the constitution so therefore the congress has power to implement that through the necessary and proper so very specific textual arguments that congress has the power to do a variety of things here that you know it's a pretty high bar I would say to presume that some unspecified sense of judicial independence around television watching or any number of these other things that we've discussed is obviously unconstitutional in fact it's a pretty strong argument that congress has significant power to do this it is right there in the text I want to get to your questions I just ask we have a couple of folks with microphones that are going to be walking around just for the sake of those who may be watching remotely I want to ask you all to wait until you get the microphone before you begin asking your question and briefly tell us your name and where you're from so we'll start right here yes hang on wait for the microphone hi my name is Steven Spitz and for organizational purposes for this question Merrick Garland went to my high school my question is why in the world and this is particularly addressed to those who were involved in the senate at the time didn't the democrats actually do something like refuse unanimous consent until Merrick Garland got a hearing as Bob was pointing out what McConnell did was absolutely outrageous and unprecedented to say that I get to unilaterally decide to hold up a supreme court nomination for a whole year just because I feel like it why wasn't there pushback by the democrats on this so I don't think any of us were in the senate at the time or working there or otherwise involved in the process if someone was they should feel free to pretend they weren't and ignore the question but I'll answer by saying this there's a big literature in both political science and law now about and this is not a direct this is a hypothesis answer because I don't have direct knowledge as to answer your question but there's a big literature in both political science and now public law showing that there is an asymmetric exercise of what people call hard ball in this context so it tends to be the case in an asymmetric fashion that at least in recent years democrats have been less willing to play political hard ball or constitutional hard ball than republicans the particular reasons for that I'm not entirely certain but this has been a kind of documented thing but pretty consistently there's been an asymmetry on the use of these kind of tactics over here thank you my name is Jim McCormick and my profession is human cognition so I was really excited to hear Aziz talk about how the Nash Equilibrium establishes itself or dominates and really we understand the science of how to prevent that from happening and go towards a more winner win-win solution my question is really going in the other direction a couple of times we brought up the idea of a balanced court an even number of justices so I'd like to hear the opinion of the panel on the idea of gridlock as a way to leave those issues on the table for citizens and states when the justices or even the congress can't get the will to come together and overcome their differences so one way of thinking about the growth of traditional power particularly in the 20th century and if you're really focused upon the judicial power to reach constitutional rulings the evidence suggests that that power is only exercised in a numerically significant fashion after the civil war starting in the 1880s onward that's when it takes off if you're interested in why the courts exercised that power it's not necessarily because the courts themselves initially wanted that power what happens is there are powerful national forces in the post reconstruction era principally new national corporations that find themselves hindered by by local laws that constrain them laws that are produced by populist movements by the Granger movement rate setting laws and they see in the national courts a vehicle for resisting those courts and that's how we get judicial review this is in some fashion the criticisms of citizens united are inapposite because judicial review in a numerically significant form comes from corporate mobilization at the national level after that what we see is a variety of national political actors seeing in the court a useful instrument for achieving policy ends that they don't want to do directly I think this is true in the liberty of contract era it's true in the era of the war in court with desegregation and the advancement to the extent that they were in advance of African-American civil liberties it's true today with respect to the Republican right agenda with respect to deregulation the stripping away of constraints upon certain kinds of administrative power and the incumbrance of other forms of regulatory authority so I'm not sure that focusing upon the justices incentives is necessarily the right way to think about this because over time what has driven what has driven the exacerbation of judicial authority which I think everyone has said as being has described in some way shape or form in negative terms is the incentives of political branch actors and the thing that I think we all sort of struggle with and argue with is how do you find a stable way of locking it down that arms race and I think that the disagreements on the panel in some fashion are about we're just not sure how to defan that contest but I don't think it's a matter of trying to do it at the level internally to the court but I want to ask a fellow question of that because that makes me the question makes me think of things again as a reporter as a follower of the court in a different way we tend to say oh it's an even number of justices they're not going to pick any big cases it's going to be a slow term look at how few certs have been granted is that a bad thing sounds awesome my I have heard scholars who are very close watchers of the court across the whole range of opinions they issue say that the 4-4, the 8 member court functioning in the wake of the garland debacle actually looked like it was working extremely hard to make that function I would rather see an even numbered court than see a lot of 5-4 decisions so if you're not going to come to a super majority requirement we're probably better off with an even court but together you need politics you need the political branches to add one seat or you need them to block the next appointment the real problem is happening off stage it's not happening in the court right here in the middle yep hi John Nader data society the final is how would you have predicted the hypothetical Supreme Court case that some envisioned had Obama installed Merrick Garland suggesting that under the legal concept of waiver the senate had waived its duty or its right for advice and consent had that happened and had that been advanced to the Supreme Court how do you think the merits of that would have played out there was one op-ed that suggested I would rather say 90 days or 100 days or 120 days is the time within which you can advise and consent senate waiver issue I'll just say that I did not think that the senate behaved what they did was unconstitutional but I thought it was pure power politics and it opens the door to if democrats control the senate not confirming any judge or justice from here on in while there's a republican president this is the tit for tat problem I'll just say it's essentially a joke although I didn't know that she was trying to joke when she wrote it Dolly Lithwick who I respect a lot said Garland should put on a robe and go sit in the ninth seat on the court and start judging cases we say we can't get around what McConnell did well nothing stopped him from entering the building but we're not there yet nor would I want us to be but does that bring up another question because what I would think of is if that were to happen there would be a challenge to it and then who would decide the U.S. Supreme Court is this a circular problem this goes to Bob's point so Will Merrick Garland recused himself and there's no rules about whether or not yesterday they don't fall so maybe he can decide his own case right okay we're gonna go to this side here in the way way back Jeff Hauser revolving door project I'm curious that the Russia investigation and Mueller has not come up at all when I think about the legitimacy of the Kavanaugh and Gorsuch appointments I think much more about the possibility that the election which put Trump into the White House had crimes committed and thus the appointments were illegitimate because they are the forbidden fruit of crimes seems to me a much better argument than saying constitutional hardball on Merrick Garland is so aberrant and to me the consequence would be that you would suggest to Kavanaugh in Gorsuch that after a criminal conspiracy is proven if that were to occur that they need to step down or else they will be packed into obsolescence and give them the choice so you're not packing as a first option you're not saying we want to go to 11 because we disliked the Supreme Court you say we would like to return to nine justices appointed by presidents who won it's the term in which they made the appointment because I also wear some bushy gore issues but Roberts and Alito were in 2005 and 6 but anyway does anyone want to comment on the significance of the Russia investigation so so look I mean you know I think this at least in my opening comments I think you know the way you've framed it feeds into into that in part which is part of the courts legitimacy problem is about half of the people in the country who pay attention to politics will think the court is legitimate on a variety of grounds if the Mueller investigation moves in a direction along the lines that you suggest those people will probably think that they have an additional ground to object people who disagree with them on a variety of issues will not think that and this is the problem that the court has in part is about half the people who pay attention to this stuff are going to think that the institution is not legitimate and that's a serious problem for for all of the members of the court and I think for our society as a whole I think that the kind of argument that you've just articulated is unlikely to prevail for a number of reasons but it's it's the kind of argument just building on something a Mamba said that once it's in the public sphere it's part of the repertoire of arguments that make other kinds of reform easier it's one of the arguments that makes say expanding the court to 10 or 11 or stripping jurisdiction or I've written in the post about having a different mechanism for testing misconduct allegations it's one of the rhetorical devices through which the domain of the politically possible gets advanced and and that is so even if what you've just said I think in my view is probably unlikely to happen it's outside the bounds of what we now think of as political although maybe that that view on my part is the pathological failure of a left wing academic to play hardball I want to get to as many questions as possible so let's lightning round this right here sure Todd Tucker Roosevelt Institute Lee Epstein and co-authors have done some studies recently that say show that the Roberts Court is not only the most pro-business conservative majority but indeed the sort of the liberal minority is also more pro-business, more anti-worker more pro-arbitration etc etc than we've seen liberal justices be in the past are we doing a good enough job ideologically vetting the justices that Democrats put forward and if not what would be some things that we should be vetting for more aggressively in the future well I went through during the nomination confirmation of Elena Kagan I'm not sure the reason I'm pausing and having trouble addressing your question I'm not quite sure those labels are very broad so I'm not quite sure what lies behind them I think it's right now if you would ask somebody say tell me if I'm wrong in the academic community what kind of justice is Elena Kagan somebody would say she's a progressive justice what kind of justice is Sotomayor well she's a progressive justice your suggestion is yes maybe in some respects but not in others but without knowing exactly what you're talking about I think every president obviously and this goes again to the question of should presidents be able to influence the course of the court for 40 years with the number of Supreme Court appointments and the vagaries of the vacancies being what they are set that aside for a moment all presidents look to nominate justices who they believe capture in some way and reflect a constitutional vision that that president perhaps is even campaigned on but believes it's appropriate for the Supreme Court of the United States and I think that's taken very seriously and the prior records of these nominees are vetted very very closely so if the assessment was say in the Obama administration for Sotomayor and Kagan the vetting wound up resulting in the nomination confirmation of justices who have positions on constitutional issues that seem inconsistent with what you would expect from nominees of Barack Obama I'm not quite sure what lies behind that but I would only tell you I think the vetting process is for the purposes that I described a very serious one obviously by the way does not include and there's again another norm another norm does not include a norm by the way that I believe is for a lot of reasons being circumvented now and I think predictably goes to your question about the list the Federalist Society saying trust these people or imagine in the future a progressive organization shall remain nameless saying what about these people right that you would not say to a justice as part of the vetting process I would never anywhere never heard such a conversation if you had to vote on this issue how would you vote if you had had to vote on x y case in the past how would you have voted the norm suggest that's an inappropriate inquiry but I do think by the way that is falling by the way side through the circumvention tactics that I think given the role the court plays in society are inevitable so let me broaden the question in a way out of the Supreme Court and just say something about the federal courts in general you know one of the issues about judges on the federal courts is what backgrounds they come with and you know as Amanda said earlier it's just psychology that you take on some of where you come from and what you do and who you represent and where your values are especially if this has been going on in a certain profession or sector for years or decades even more so and there have been a variety of studies for example that show that a lot of different aspects of the legal profession are severely underrepresented on the courts public defenders labor lawyers, plane of side consumer lawyers there are a lot of prosecutors a lot of corporate lawyers on the courts there are a lot less fewer of these other kinds of backgrounds so there's an element of experiential diversity that is helpful that's also not necessarily ideological in the way that you mentioned but is just that the legal profession is extremely broad and covers quite a variety of things and the idea that only corporate lawyers are prosecutors and especially only corporate lawyers and prosecutors who worked in the executive branch in the case of the Supreme Court or went to Harvard and Yale or clerked on the Supreme Court or something like that are all that the legal profession has to offer to the legal system is a very myopic way of seeing it there's just a lot more out there and I think diversity in a lot of these different ways could significantly help the courts as a broad matter as a state school undergrad alum I agree with that assessment right here Hi, Brianna Gray from the Intercept and a former lawyer I am interested in this ideological question because it seems like the right when you look at the Federalist Society for example their framing device and the emphasis on textualism and originalism not only serves their political interest it also serves or rather and not only serves their kind of legal pro-corporate interest it serves their broader political interest and so far it's a really easy sell to the public it seems natural and foundational to say we're just looking to see what the Constitution says we're not inventing law out of whole cloth and people who don't necessarily understand the law and who aren't tuning into conferences like these are able to say hey I'm not sure what the agenda is but it makes sense that I would just want to read the law from what it says in the Constitution from the we all understand that's pretextual but it seems to me that the left when I ask questions about what's our project, what's the ACS's messaging when they try to push back against the Fed Sox agenda is we want laws to protect and benefit everyone and marginalize people and things like that I think we could just we're about to run out of time so I just want to give everybody a chance to respond to it what about that divergence and messaging on from the left and the right well conservative justices are not consistently originalist or textualist indeed in the most important constitutional domains they abandon those principles particularly in the first amendment and legal protection domain so it's not clear to me that the labeling or the kind of the war over how to market constitutional adjudication is all that important because even the in cases like Janus or in cases like Fisher the union speech and the affirmative action cases there's no pretense at doing originalism there's no pretense of doing textualism so I'm not convinced that that kind of public relations game really matters in the end okay well we've reached the point that I'm going to ask you all to join me in thinking not only ACS in New America but also Aziz, Bob, Amanda and Geneve for this discussion thank you all so much