What to watch for in Trump’s Supreme Court nomination

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JUDY WOODRUFF: We return now to the Supreme Court and President Trump’s much-anticipated choice to be announced tonight.

For that, we are joined by Elizabeth Wydra, president of the progressive Constitutional Accountability Center, Michael Carvin, former deputy assistant attorney general in the Office of Legal Counsel during the Reagan administration. He’s now in private practice. Marcia Coyle, chief Washington correspondent for The National Law Journal and our NewsHour regular. And we hope to be joined shortly by Tom Goldstein, founder of SCOTUSblog.com.

And we welcome all of you to the program.

So, Marcia, I’m going to start with you.

We keep hearing that it’s down to two individuals. This is after 21 names that President Trump gave us back during the campaign last May. What are we to make of the finalists, if that’s what they are? How are they different from the long list we originally saw?

MARCIA COYLE, The National Law Journal: Well, I think the original list really did contain very solid conservative judges on it, either on federal appellate courts and even on some state Supreme Courts.

The two now that we’re focused on, Judge Gorsuch, who is in Colorado, and Judge Hardiman, who is from Pennsylvania — he sits in Pittsburgh — Gorsuch sits in Denver, I believe.

They are — they have risen to the top, I think, especially because they seem closest to Justice Scalia’s jurisprudence. Judy, if you recall, President Trump said during the campaign that he wanted to appoint someone who was like Justice Scalia, the late Justice Scalia.

I think that Judge Gorsuch really is closest to Justice Scalia in his approach to judging. I think all of the finalists would have considered themselves close to Justice Scalia as originalists and textualists. But Judge Gorsuch is really probably the most — has been the most vocal and most passionate about using originalism and textualism to interpret the Constitution and statutes.

JUDY WOODRUFF: Michael Carvin, how would you separate these two, if that’s who they are, the finalists, from that long list that we originally saw?

MICHAEL CARVIN, Former Deputy Assistant Attorney General: Well, to echo what Marcia said, they’d both be worthy successors to Scalia.

They share the same approach tot law, which is to interpret the law according to its text and structure, and not impose your own personal values, to act as an umpire, not as a legislator.

I think Judge Gorsuch probably digs a little deeper into the law and is more vocal, if you will, about the virtues of originalism.

JUDY WOODRUFF: Deeper than?

MICHAEL CARVIN: Judge Hardiman, the other candidate from Pittsburgh, which is no way to suggest that Judge Hardiman is not an excellent lawyer, which he certainly is.

It’s just that I think Judge Gorsuch perhaps has stood out among the current federal judiciary, because he takes a very intellectual, very deep-seated approach to why originalism is correct and how you get to the correct answers.

JUDY WOODRUFF: Elizabeth Wydra, what would you add to looking at these two who appear to be the finalists?

ELIZABETH WYDRA, Constitutional Accountability Center: Yes, I think whichever one is the nominee, we’re going to be look very closely to see whether he is someone who will apply the Constitution and its guarantees of equality and justice for all, indeed, to all people, not just those who look like him or have the same amount of money in their bank account or who pray like him.

President Trump made a statement that he thought his nominee would represent Christians fairly, which, obviously, is a little bit concerning, given that Supreme Court justices, first of all, are not supposed to anyway, and certainly not one religion over another.

And I think, also, we will be looking, especially in this moment where we have seen just over the past few days how important the courts are as a check upon unconstitutional violations from the elected branches, we will be looking to see whether the nominee is someone who can serve as that check, even against policies of the president who is going to be putting him on that bench.

JUDY WOODRUFF: Tom Goldstein is joining us now from Los Angeles.

Tom, welcome.

So, what do you look for tonight? We have been talking about what it is that characterizes these two apparent finalists, Judge Gorsuch and Judge Hardiman. What do you see? What are you looking for?

TOM GOLDSTEIN, Founder, SCOTUSblog.com: Well, I think that the president really is going to get a lot of credit from conservatives.

I think that probably the big difference is just the cases that they have heard. Judge Gorsuch has heard more cases about religious liberty, whereas Judge Hardiman has heard more cases related to guns. And both those issues appeal to conservatives who are very concerned about the Supreme Court.

I think we’re going to see more drama from President Trump than we usually see in rollouts related to the Supreme Court. And then we’re going to hear a lot of sound and fury that will ultimately probably amount to nothing, because Republicans simply have the power, between the presidency and the Senate, to get through essentially anyone.

JUDY WOODRUFF: So, Marcia Coyle, is that how you see it, that a lot of drama, but in the end the president and his allies, Republican allies, are pretty much going to get what they want?

MARCIA COYLE: I think it’s probably true.

I’m not quite sure really what the Democrats’ thinking will be at this point. I know that there are some Democrats who would like to block any nomination at this point, because they’re very angry about the way President Obama’s nominee, Judge Merrick Garland, was treated in the Senate. He had — the Senate Republicans refused to hold hearings or a vote on that nomination.

So they see it as sort of payback: Maybe we should block this one.

On the other hand, Senate Republicans — sorry — Senate Democratic Leader Chuck Schumer has said, we’re going to look and see if the nominee is within the mainstream. If he’s not within the mainstream, then we will block or try to block.

And I guess it will depend on how he defines mainstream, mainstream of what. So, I think it’s going to be interesting.

JUDY WOODRUFF: Michael Carvin, how does one define mainstream when it comes down to individuals like these judges?

MICHAEL CARVIN: Well, Chuck Schumer defines it as a judge who will impose Democratic policies on the country and twist the law to accomplish that.

So, I think — I guarantee you that he won’t think anybody on Trump’s list is within the mainstream. I think they will engage in the sort of massive resistance that they have already been engaging in during the Trump presidency. And, unfortunately, you’re going to see a lot of this personal demagoguery, attacking fine people as not being sufficiently committed to civil rights and the like.

It doesn’t make a lot of sense objectively, because, remember, this is replacing Scalia. So, it’s not as if this replacement can move the court more to the right than it is. The court right now is quite liberal in terms of gay marriage and affirmative action and other issues.

So, all you’re doing is preserving the status quo of a relatively liberal court. Nonetheless, I think, partially because of the Garland issue, the Democrats are going to make this a lot of sound and fury.

JUDY WOODRUFF: The Garland issue being Merrick — again, as Marcia Coyle said, Merrick Garland, who President Obama picked almost a year ago, and the Republicans said they weren’t going to hold hearings for him.

Elizabeth Wydra, do you see the court, as Michael Carvin just described it, as pretty much on the liberal end of the spectrum?

ELIZABETH WYDRA: Well, I think it would have been if Merrick Garland, perhaps, had been confirmed, as he should have been.

But it’s a conservative court. The Roberts court is led by conservative justices, which is not to say that they don’t sometimes rule in liberal ways, in more progressive ways that conform with the Constitution’s text and history.

But I think there’s going to be a focus on this nominee no matter what, because every justice on the court is important. And, in fact, the integrity of the court as an independent arbiter of what the Constitution is, and the pinnacle of our independent judiciary, which will make sure that the Constitution’s structural provisions are respected, so this justice is important.

And I think there is a chance that we are going to have a real fight to make sure that this nominee doesn’t share the, frankly, authoritarian views that the president has exhibited.

JUDY WOODRUFF: Michael — I’m sorry, Tom Goldstein, how do you see the court? Whether it is Judge Gorsuch or Judge Hardiman or someone else, if it’s all been — because we don’t know for sure. The White House hasn’t confirmed that they’re the finalists.

But if it’s one of these, how does the court shift? What do you see?

TOM GOLDSTEIN: Well, I don’t think the court ask does shift very much. I think the court’s considerably more conservative than Michael Carvin describes.

But he’s quite right to say, in the main, you’re probably looking at somebody who is a lot like Justice Scalia. But what does happen is, you extend that for a generation. You’re talking about someone who is likely to be on the court for a quarter-century or more.

And so it locks in whatever the ideology of the court is now in a really important way and it avoids a shift to the court on the left that Elizabeth Wydra described.

The other thing is, you just — it changes when you’re a judge and you become a justice. You get freed from a lot of the constraints of existing precedent. So nobody ought to say with great confidence what any of these judges will do when they’re a Supreme Court justice. Conservative Republicans have gotten a lot better about not putting on somebody who is squishy, who might move a lot. But it’s still unpredictable.

JUDY WOODRUFF: I just quickly want to go around the table before we wrap up and ask each of you about the process that these names have come out, that you had a candidate for president putting out almost two dozen names, and now we’re down to two. It’s a prime-time news conference.

Marcia, is this different from the way it’s normally done?

MARCIA COYLE: Well, I think every president looks to certain individuals and certain groups for input in terms of who may most reflect that president’s own ideology, philosophy.

And that was no different, I think, in this case. President Trump reportedly was assisted by the conservative Federalist Society and the conservative Heritage Foundation.

In terms of the rollout, having, we’re told, both judges at the White House right now, that is puzzling, different, and I guess we have to wait and see.

JUDY WOODRUFF: OK, 45 seconds.

Michael Carvin, is this unusual to do it like this?

MICHAEL CARVIN: Well, I think President Trump was much more specific than most presidents have been. I agree with — that normally you’re going to give a general sense of who you’re going to appoint, but this was a very important issue because of Justice Scalia’s passing, and President Trump was very clear about the kind of justice he was going to appoint.

So I think he probably has a more specific mandate than most of his predecessors in terms of who he’s going to name.

JUDY WOODRUFF: Just a few seconds. Your thought on the process.

ELIZABETH WYDRA: Yes, I think one of the unusual parts of this process was that Trump was very clear about his litmus test. He had three, abortion, religious liberty, and guns.

And normally you don’t do that because it suggests you’re guaranteeing a vote. So that was very unusual.

JUDY WOODRUFF: Tom Goldstein, five seconds.

TOM GOLDSTEIN: It’s usually less of a circus than this.

JUDY WOODRUFF: All right, Tom Goldstein joining us from Los Angeles, we’re glad you made it through the traffic.

TOM GOLDSTEIN: Thanks so much.

JUDY WOODRUFF: Elizabeth Wydra, Marcia Coyle, and Michael Carvin, thank you all.

MARCIA COYLE: Thanks.

ELIZABETH WYDRA: Great to be with you.

JUDY WOODRUFF: And we hope you will join us tomorrow night, when I sit down with Vice President Mike Pence at the White House. It will be his first television interview since taking office.

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