tv Key Capitol Hill Hearings CSPAN February 25, 2016 6:39am-7:01am EST
am not sure if they are doing it purely for ideological reasons or purely for political reasons, for both. but it is too radical, and it is -- tyrannical, it is misguided, and it is bad for the country. it seems like the same thinking that resulted in a government shutdown in 2013. when most people thought we had come to the precipice and would not fall into the abyss -- and we did, because you had one party in the grip of an extreme group who said, let's shut the government down. that's what happened. this may not be a shutdown of the spring court, but it is certainly -- supreme court, but it is certainly a partial shutdown, or at least something that inhibits the court from doing what must. i guess one thing i am hung up on is, and you may have already addressed this both in questions and in testimony, the impact of four to four, and what effect
that has on jurisprudence, setting aside the obvious effect it has on confidence, measurements like that, assessments. just on jurisprudence, for functioning of the court, how do you address that? for the panel, maybe peter, we can start with you? >> senator, we did talk about that some. we expect, although there are periods of time when there is a vacancy and the court functions 4-4, or somebody decides not to participate in the decision process -- but especially for the amount of time, it warps the process. it leaves us, if you are looking at it from a liberal and conservative scorecard, it depends what the lower court did, so we could name some that are on the docket right now where from a liberal point of view it's going to leave in place a lower court thing, and we say, we might have lost that.
that's not a good way to do business, but that's what it is. professor greene made it clear, what we know as lawyers, which is that sometimes -- because this is sometimes the business of the court, to resolve differences between circuits -- well, those are left in place, and you have different laws in different parts of the country. it is a very big point. >> we are potentially talking about two full terms of the court in which it is unable to decide closely contested, what would have been 5-4 decisions that become 4-4 decisions. that leaves in place divisions of authority within the lower courts, which it is the job of the supreme court to resolve.
the supreme court has multiple responsibilities. one of the main functions involves disagreements. it leaves the law in a state of uncertainty. senator casey: so the choice is to leave the law -- it is not the same calculation. there is a deliberate choice to leave the court understaffed in the circumstances. there is a cost to certainty. there is a cost to the court. the question becomes, what is the benefit? there is no grand principle at stake here, no benefit other than the partisan. senator casey: i think the dysfunction that would be created -- >> i think the dysfunction that would be created in the next years in the courts needs to be considered, but the stakes are much higher than that. we developed a tradition and process about supreme court nominees that has been quite consistent and has worked quite well. this throws that into chaos. the long-term and locations of this, i think -- implications of this, i think, are severe.
frankly, members of the senate should think about this in those terms. wendy south seceded, lincoln did not say, let them go. i think this is like that. i think this is a moment when it is important to stand up and say, these stakes are extremely high. they go to the rule of law of our constitution and our government. >> i guess there is a part of us that believes, even when the legislative branch goes in the direction a lot of people don't want it to, that somehow this branch of government would be walled off, or immune from that. it is not the branch -- it is the legislative branch that is not doing its job. the other question i had, on kind of the deadlock question, is emergency matters that come before the court. i don't know if you have already spoken on that. if anyone can assess that?
>> that is the same point. if you need five votes, and it is 4-4, then there is something that really needs to be done right then and decided, you can't. so yes, that is a key point. it may be worth reiterating, there is no exception to the senate's duty here. there is no opportunity for them to take time off. if, god for bid there were a war or something like that, we would expect our leaders to be on call. that is not a time to say, we are going to choose not to defend this country. that is not a choice. that is the duty. the same thing happens here, i think. there is not a choice to abandon your job. or if you make that choice to abandon your job, some bl should fill your slot -- somebody else should fill your slot. >> well said. >> i neglected to go through all
your credentials. we still have a lot of reporters here, and people who are watching on live stream and on c-span. i did not do it at the beginning, because we had so many senators here. to be fair to all of you, our listeners, people that are here watching, so they understand these are some experts on the court like no other. we have professor stone, who is dean of the chicago law school, has law clerks with -- clerked with supreme court justice william brennan, and served as chairman of the board of the american constitution society. peter aleman, -- edelman, who was law clerk to supreme court justice goldberg and was on the faculty at georgetown. also a legislative assistant to senator robert f kennedy. can't get better than that. michael gerhardt, who is with us from north carolina.
a distinguished professor of constitutional law, who served as special counsel assisting the white house on justice stephen breyer's confirmation hearing in 2005. he advised several senators on the nomination of john roberts as chief justice, then testified in confirmation hearings for justice samuel alito. he served as special counsel to chairman patrick lahey, and on the nominations for sonia sotomayor and elena kagan to finally, jamaal greene, in addition to being the vice dean at columbia, he teaches and writes on u.s. constitutional law and theory and the federal courts. from 2007 to 2008, he was the alexander fellow at the new york university of law and was law clerk to justice paul stevens on
the supreme court. he received a jd from yale law school in 2005, where he served as the "article" editor. these are some pretty heavy-duty professors. i have also heard from some more conservative leaning professors who believe the same thing, that the constitution is the constitution, that shall means it shall, that people have a duty to do their job. i am sure all of our colleagues were shocked when justice scalia died. that happened. but when things happen, you have your jobs to do. you have your jobs to do. that is really what this is about today, about a constitutional duty, a solemn oath that people take to do their jobs, respecting not only the history of this country, but really the basic constitution unless our country is based and our government is based. i want to thank you for taking the time to join us. there were several comments made about the need to continue standing up.
you have seen the democrats in the senate be very clear from our most liberal senator to our most conservative democrat, you believe that the constitution is clear and there is a duty here. on the republican side, you have heard a few senators say they think we should have hearings, that that is part of our duty for advice and consent. before that, the senate still advise and consent in its own way. but nobody refused to meet with nominees or said they would not move forward with the process. so i want to thank you so much. we don't think this is going to end. we are going to continue this. we have gotten millions of petitions and e-mails from people all over the country that say they want to move forward with this. the american people will not be silent, so thank you very much.
>> center report leaders of said it will be no confirmation hearing coming from the administration of. president obama talked about the supreme court vacancy and the process this is 10 minutes. obama: the constitution says that i nominate candidates for the supreme court. in senate exercises its role providing advice and consent. i am going to do my job. we are going to go through a process as we have done in two previous vacancies, to identify
an outstanding candidate that has impeccable credentials and abilitying the kind of and compassion and objectivity and legal reasoning to the court that it demands. nomination,made a leader mcconnell and the members of the senate will make a decision on how they fulfill their constitutional responsibilities. i recognize that the politics are hard for them. is giveer thing to do into the most extreme voices within their party. they do nothing. that's not our job. our job is to fulfill our
duties. and so, my hope and expectation is that once there is an actual nominee, once there is no longer an abstraction, those on the judiciary committee recognize their jobs to give this person a hearing, to show the courtesy of meeting with them. they are then free to vote whatever their conscience dictates as to whether this person is qualified or not. the american people are going to have the ability to gauge whether the person is well within the mainstream, is a good jurist, is worthy to sit on the supreme court. i think it will be very difficult for mr. mcconnell to explain how if the public concludes this person is qualified that the senate should stand in the way for political reasons.
we will see what happens. i think the situation may evolve over time. i don't expect mitch mcconnell to say that is the case today. i don't expect the public and caucus to stick their head out and say that. let's see how the public response to the nominee we put forward. the one thing that i think is important to dispel is any notion that this is a well established tradition or some constitutional principle that a president in his last year of office cannot fill a supreme court vacancy. it's not in the constitution. in readingey believe the text of the constitution and focusing on the intent of the constitution. none of the founding fathers
when it comes to the president carrying out his duties, he should do it for three years and then stop doing it on the last year. that thean argument president should not do this because he has a lame-duck. lame-duck refers after two or three months an election has taken place in which a new president is about to be sworn in. i've got a year to go. i don't think they would approve of me advocating on my duties as commander-in-chief and stop doing all the other work that i have to do. this is my job. have been arguments that for 80 years this has been the tradition. that is not the case. justice kennedy was approved
after being nominated by ronald reagan in ronald reagan's last year of office. they say that is different. in 1987, evened 86.e was confirmed in the notion that there is some two-month time that everything flips and shuts down, that's not a credible argument. what other arguments are they making? there been times where democrats said it would be advise for president not to nominate someone. we know senators say stuff all the time. were comments made where there was no actual a nomination at stake. application to the
actual situation that we have right now. i am trying to think of any things they are grasping at as to why they would not carry out their duties. i can't think of one. i recognize that this is an important issue. it's sensitive because this was justice scalia's seat is now vacant. a whole host of decisions could turn on this ninth justice. that is how our democracy is supposed to work. make, wepoint i will
ofe already seen a breakdown the judicial appointment process. it gets worse and worse each and every year, each and every congress. it gets harder to get any candidates for the judiciary confirmed. we saw senator reid have to employ the nuclear option because there was such a logjam in terms of getting judicial of its through. republicans in the senate take a posture that defies the constitution and is not supported by tradition simply because of politics, invariably what you are going to see is a deterioration in the
ability of any president to make any judicial appointments. appointments to the supreme court as well as the federal extension of our polarized politics. that, not only are you going to see more and more vacancies in the court system raking down, the credibility of the court begins to diminish because it is viewed simply as an extension of our politics. this is a can judge or this is a republican judge as opposed to this is a supreme court justice who should be above day-to-day politics. i understand the posture they are taking and i get the politics of it. i am sure they are under a norm is pressure from their base in constituencies.
i have talked to many of them and told them i am sympathetic. to defendot a lot with their position that they won't even meet with a nominee. we will see how this plays out. i am going to do my job. i am going to nominate somebody and the american people will decide if they are qualified. people can decide if there is enough time to have hearings and have a vote. the senate calendar is so full that we don't have time to get this done. >> washington journal is next.
host: good morning. we are five days away from super tuesday where 595 delegates are at stake and 12 states will be voting. donaldstion is whether trump is unstoppable at this. he has won three of the first four states and is at the top of the polls. is the new york billionaire on his way to the nomination? if you support donald trump, you can dial in.