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tv   Inside Story  Al Jazeera  February 17, 2016 6:30pm-7:01pm EST

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dive deep into these stories and go behind the scenes at aljazeera.com/techknow. follow us on social well. >> have you heard? there's a vacancy on the united states supreme court. the top court of appeals in the country. the constitution of the united states lays out the rules for filling that vacancy, but one of the power centers involved in that task has already declared, basically, we don't want to. make no mistake. it's a high wire act for everybody involved. the president who wants to shape the court, a senate determined to avoid just that, and it's filled with constitutional and political risk. rolling the dice, it's the
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"inside story". welcome to "inside story". i'm ray suarez. this president, barack obama, is going to be want president for 11 more months. almost a full quarter of his term. because the next president and the next congress have not yet been chosen, he's in the time honored sense of the term, lame duck. he's a president in the last year of a four--year term, one that he won by 5 million votes. he reminded people in california that article two of thing constitution, which lays out the ground rules for filling a supreme court vacancy doesn't have asterisks or time
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limit counts. the presidential appoint, with consent of the senate. but in this case, the advice he's getting is, don't bother. in this case, the law, the constitution and the delineated politics, in this congress, blocking a democrat from replacing a conservative jurist will work. rolling the diagnosis, let's begin with washington's seniorer washington correspondent, mike viqueira. >> i don't believe that the president should appoint someone. >> almost from the moment of his passing, the fight has been a political stroke that could leave the supreme court with 8 justices for at least a year. republicans want to turn the november election into a referendum for who should sit on the court. and any nominee put forward by president obama should be blocked in the senate. ted cruz has blocked a
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filibuster. >> we're one away from a majority that would effectively write the second amendment out of the constitution. >> reporter: mr. obama has ignored that call and said that he will do his constitutional duty to fill the vacancy. who will he nominate? speculation around two classes of candidates. first, a jurist already on the bench. a stepping stone to the supreme court. he was analysisly confirmed by the senate three years ago. merritt garland is the chief judge of the dc court. widely respected, his name has come up on previous lists, and paul wall ford, elected to the beverage in 2012. all three are considered moderate. and would have an outside shot of getting republican support for confirmation.
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if republicans block a moderate, democrats will call them obstructionists. they could go outside of the judiciary or pick someone with a more liberal record, knowing that republicans would block it. camelia harris is california's attorney general, and considered both a rising star and a white house favorite. she's currently running for the senate seat vacked by barbara boxer, and most daring should the president choose her, sitting attorney general, loretta lynch, who lasted six months ago as republicans fought her for backing president obama's immigration policies. justice scalia, republicans are not likely to to lament his passion. >> his heart, he loved to laugh, to bring people together, he loved to argue, but at the end, he was living a
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life as big as anybody could have. because he was dedicated to improving the entire united states of america by taking care of things one little step at a time. >> mike viqueira, al aljazeera, washington. >> some of the gop leaders who said absolutely not on saturday may be softening their approach a few days later. majority leader, mitch mcconnell, hat changed his stance, but chuck grassley indicated that he could hold hearings for an obama nominee. tillis urged republicans for avoiding upsetting the constitution applecart and play by the rules. we'll look at what's at stake for all sides in the coming months on the program. joining mow now a professor of
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law. alliance for justice, and editor-in-chief of the kato supreme court review. policprofessor, let's start with you, was it a legal error, tactical error or smart politics for mitch mcconnell coming out of the box on saturday, saying don't even bother to send us a nominee? >> i think that it was a terrible error. precedent is not on his side in many occasions over the history of the nation. presidents in their last year have made a nomination to the supreme court and the senate has acted on it. not always affirmatively. sometimes they have rented a nominee, but the president has academy. so he doesn't have precedent on his side, but more importantly, it looks like he's trying to politicize the court. i think that everybody understands that the process is a political process. the senate is and the president
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is a political architect, but what i think the public wants and fears is that the process not inbeingfect the judiciary itself. what's important is that that institution remain independent. and so to the extent that what senator mcconnell is doing is motivated by politicizing the judiciary itself, then he's running afoul of what the american people are going to want. >> and shapiro, you chuckled. is that too nakedly political for a body that people are already speak as if they understand that it is such? >> look, this is politics all the way down on both sides. the court has been politicized at least sims the robert bork confirmation hearings in 1987. and the court matters. at such a precipice, the country is polarized. if this is not a constitutional
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one. advice and consent mean that the senate gets to do whatever they want. and the american people can decide whether that's good judgment or bad judgment. but i think that if indeed the senate is not going to confirm anyone, it's better and more honest to say from the getgo, we're not going to confirm anyone rather than go through some theater fake hearings and vote someone down, knowing that we have no intention in the first place of confirming them. >> what about the professor's point that really, for a sitting senator to say we're just not going to recognize the articles of the president. >> are you talking about chuck schumer? >> no, i'm talking about this week. for mitch mcconnell to say, don't even bother to nominate nick. you dismiss the hearing process as kabuki theater, and it may be, but observing the niceties, let's say, it comes short. >> well, call it what you will.
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agree with it or not, but the strategy here is to defend the senate's institutional prerogative and say this close to the election, less than nine months after obama was reelected in 2012, and the republicans won the senate in 2014, such a pivotal point in the court's history, it's important to let the american people have their say, and that's why mcconnell wanted to get ahead of this, and it doesn't matter who the nominee is, it's not about one particular person, but we're not filling that seat. some might say that it's a poor decision, and some might like that and vote for him and some might not care one way or the other. but that's the political play, and i think that the senate is justified in making that play. but let's be clear, this is politics on both sides. the confirmation hearings have been going on for decades, both parties. >> so let's acknowledge that that's the case. >> it is the case, but we have to look back, i think as neil
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indicated, to precedent. in 1988, justice kennedy was confirmed, he was a regular appointee, confirmed by a democratic senate in the last year of the presidency. but we have a whole host of justices, cardosa, confirmed in the last year of their president's term. so this is nothing new. you know, i think that we see mitch mcconnell caught between two force. on the one hand, you have the right wing of the republican party classrooming for mitch mcconnell to ob be instruct obsr delay, delay, delay, and on the other hand, i think you have some american citizens,
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americans saying, no, not so fast. maybe we ought to play by the rules. maybe we ought to allow the process to work itself out. give the opportunity, and then let's give it a vote. then you have the two strings, one on the one hand. and the many growing numbers of americans who are saying, no, we don't like the overreaching that's happening. >> let's pick up with who that might be, and what kind of confirmation process that person might expect. we're hash being out with both parties over the expectations of filling justice scalia's place on the high court.
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>> you're watching "inside story," i'm ray suarez. the politics around filling scalia's seat on the court. andilia, you mentioned earlier, that hinge point in the court. with the departure of scalia, it's a 4-4 court or said to be so, and does that make it different than the other
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previous cases where the court was not so divided? >> that's one of the things, and knowing that scalia was not the swing vote. and justice kennedy tends to be the swing vote. where the liberals and the conservatives are split. but placing a liberal would be the transformation of the court. and kennedy would no longer be the shift. but scalia was there for 30 years, and this was his 30th year, a giant, certainly one of the most important justices in our history. and transformed the way that justices go about their business, with the intentional rigor that everyone has to bring, upping the judiciary's game, if you will, and really hard shoes to fill. >> does that matter? if he's gone, does it matter who he was, and what he did on the court? or does it just matter that the president is the president and there's a year left in his
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term? >> well, as we said, this is a political process. not just from justice scalia's place on the court, he was one of the paralle intellectual leaf not the leader. and there's a huge concern. because some of the cases on the docket are now up for grabs, and i think that's a tremendous concern. but having said that, it is the president's constitutional task, as neil has said, to name a successor. and it doesn't matter whether it's his last year, his last month, his last day. it is his constitutional task to send a name to the senate. you know, chriss and judges are
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instruments of presidential power. they always have been, they will be. they're on the bench long after presidents leave office. and they play such a critical role. the right wing is nervous. they have lost their hero and their leader. but the fact is, the constitution gives us a path forward, and it's now time for the nation to take that path. >> professor, as far as mechanics go, is it a different scenario were the president not to name anybody, and the senate not confirm anybody, versus them having somebody named. and then getting a rough ride in the hearings and turned down, even though you end up in the same place, with an 8-4 court with a political divide, is it an minimal that those two scenarios are fundamentally different?
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>> of course, and it depends on how those hearings go. if the person who was ultimately shot down comes across as moderate, as mainstream, then there would be a tremendous political price to be paid for shooting that nominee down by the republicans. if on the other hand, if the confirmation process were to, shall we say to expose the nominee, not as moderate. but as a rabid left wind warning, then the confirmation process would work to the benefit of the republicans. >> and could the republicans or the democrats gain those scenarios in a way that leaves them feeling that they got the better end of the confrontation? can you see the two ways working out? >> well, sure, and i suppose that it might depend to some extent what the president wants to do with the nomination. if the president wants to put forward someone that can actually be confirmed, then it
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would be incumbent on him to put forward someone who is truly moderate, down the middle. and it would be difficult for the republicans to oppose that person, which is why mitch mcconnell doesn't want anybody in the first place. but on the other hand, be careful what you wish for if you're a democrat, because a nominee from that mold, if we think back through history, it might be william brennan. republican president, had dwight eisenhower, nominated him as an accommodation it him to deputies, and he ended up being one of the more liberal justices in history to the supreme court. >> you can understand the passion both sides. nominated to the supreme court insurgent just for this year, but confirming for younger men and women, having an impact that lasts decades. the effect is long-term, and the risks in the election year, short-term. rolling the dice, stay with us. it's "inside story".
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i've never felt so alive. make your business phone mobile with voice mobility. comcast business. built for business. >> welcome back to "inside story," i'm ray suarez. rolling the dice, embedded
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politics around the supreme court nominations. my guests are with me, and ann, you heard the professor rolling out two halves to an outcome later this year, all involving risks for both sides of the confrontation. if the president were to send -- nobody's wild eyed liberal, does that send a different signal to the senate than from say nominating eric holder? >> that would be fun. i would love to go to that hearing. eric can be as good as it gets. i don't think anyone, and i say this with great regret -- is going to be confirmed. so frankly, i think that the president just needs to put the best possible person on. and many of the names that are out there are -- would be
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wonderful choices as far as i think most organizations and individuals are concerned. i don't think that we have to debate liberal versus moderate because i think that the republicans are going to close down the process. >> what is being said around washington and the country, the person who doesn't exist yet, whose name has not been whispered yet, is being dismissed as an extreme liberal and activist and so on. we don't know who this person is yet. so if you send a moderate, confirmable name forward, that person is going to be spoken ofs if they're a truskyite anyway. >> absolutely, look what they nide to do to sonya soto myoir. and look what they did to the lower courts to be confirmed.
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because a hearing presents this candidate as an individual, a sympathetic individual, let's remember samuel alito's hearing, in which his wife cried. i think that that drew sympathy from around the country. job roberts as his hearing performed beautifully, and i don't think that they want to go through a hearing. >> as the year wears on, could the political calculation of who becomes president in 2016 change the senate with this pick? >> absolutely, but i want to pick up on what the professor said, the republicans indeed would take a hit for turning down a nominee that was more moderate than others, but i
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don't think that hit is any different now than in terms of the changes at the beginning and it might be worse then. so it's cleaner, to say if you're not going to confirm anybody, to say it at the outset, rather than getting into the nitty gritty. >> do you have to be sure that it's a republican standing on the front of the west capital next january? >> it's a risk. who they appoint now might be better than who hilliary clinton or bernie sanders appoint. so there's a calculation there. but regardless, they wouldn't be joining the court in time to decide this term's case. so we're talking about a court session in october, the month before the election. we're not leaving the court that short-handed. most cases are not 5-4, and even if they are, a
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high-profile abortion case, presumably kennedy would have been with the liberals there, and scalia's vote wouldn't have mattered anyway. so long-term, making this argument to the american people that both sides are, and there are high-risks and high rewards for the democrats and the republicans. i don't begrudge president obama making an appointment. and the constitution says that he shall nominate someone, but the american people, you decide. and if the democrats win in november, they don't have a leg to stand on, and they will have to at that point continue with the orderly process. >> we sometimes have this conversation with 200 people involved, the senate an and, and does the public get a gesture of outside pressure? does the public care enough about the court and who is on it, when most americans can't
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even name more than two or three supreme court justices, to exert on this process? >> i think that it depends on when the process happens, and this year, the public is going to care tremendously. it's happening under the bright lights of a presidential election. and the stakes are high. you think about what's issued that should be reversed, and that's going to make for tremendous political theater, and i think that the parties each have to make calls, do they want that to be part of the presidential election. for example, if the let mic candidates, i'm going to nominate someone who would over throw citizens united. bernie sanders has said that, and i'm sure hilliary clinton would. and on the other hand, ted cruz, if i'm not elected, then the second amendment rights recognized in heller will be be
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on lit rated. but i'm not exactly sure what the politics of gun control are. there may be coble support for a basic right to bear arms, but how far does that go? it may be that the republicans don't really want that to be a front and center issue. these are very difficult political calculations, but all of these hot button supreme court issues will be very much in the presidential election, to the benefit of one party or the ooh. >> i have to stop it there. thank you, professor. i want to thank all of my guests. join us for the unfolding of the bush years. not in an academic conference, or a scholarly journal, but the rough and tumble primary season. i'm ray suarez, good night.
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