tv Washington Journal Brian Fallon CSPAN April 28, 2021 1:58pm-2:38pm EDT
>> our first guest is with -- is brian fallon. >> it is going to be with you and the c-span audience. >> what has your organization done and who financially backs it? >> we were founded in 2018 in response to donald trump and mitch mcconnell's maneuverings to confirm more than 200 judges to federal courts. we support fair and balanced
courts. we are encouraging the biden administration to nominate professionally diverse young judges that have backgrounds as public defenders and civil rights lawyers to restore balance to the courts. we are supported by an array of foundations that fund our work on the 501(c)(3) side and the 501(c) four side where we do grassroots lobbying. we have thousands of grassroots supporters on a monthly basis. >> when it comes to the topic of expanding the number of justices, where do you and your organization fall? >> since 2018 our group have supported structural room forms -- reforms including adding to the supreme court. public polls show that the
supreme court is broken. its legitimacy has been called into question. that has happened for two reasons. in the last five years we have seen republicans in the senate engage in a lot of maneuvering in order to shift the court right and ensure the six/three republican super majority. everybody will remember 2016 after antonin scalia had died and republicans refused to consider any nominee from barack obama. last year we had a supreme court nominee confirmed closer to a presidential election than has ever happened before. rulings by the supreme court have shown the body to be rather partisan. it is increasingly cannot be trusted to call balls and strikes as john rogers famously
said 15 years ago. since 20 -- 2006 the court has consistently ruled favorably on the side of commerce. everything from the shelby county decision in 2013 that gutted the voting rights act to a decision three years ago that allowed states to consent -- continue to engage in partisan gerrymandering, the court is consistently siding with republican interests. both in rulings and how people have been confirmed to the courts, public polls show anna roshan of trust that people have in the -- and -- an erosion of trust that people have in the court. >> our guest is with us to talk about expanding the supreme court.
if you want to call and give us your thoughts, republicans (202) 748-8001, democrats (202) 748-8000, independence -- independents (202) 748-8002 or text us at (202) 748-8003. the judiciary act of 2021 proposes adding four seats to the supreme court. what do you think about this proposal? guest: in the fall of 2020 when ruth bader ginsburg died democrats started talking about this proposal to add seats to the supreme court. a lot of people said that we do not want to have to pursue this path, but if republicans are going to obliterate the last remaining norms when it comes to confirmation around justices, then this will be the only appropriate response.
you had republican and independent commentators like a joe scarborough, large -- lawyers from the nixon and reagan administration coming out last fall after ruth bader ginsburg died saying democrats would be wise to pursue this. they jammed amy coney barrett through over bipartisan objections. they went through. now leaders in congress including ed markey on the senate side and mondaire jones, new york congressman jerry nadler, the chairman of the house judiciary committee, offered this proposal to add four seats to the supreme court. it is not in the constitution the number of justices on the court. it is up to congress to set that number. congress has changed the number seven times in history. it is the most constitutional
way to achieve violence and undo the lopsided super majority. i wrote that op-ed the other day to draw attention to new polling to show that the proposal is supported by a plurality of the american voters. more people support adding seats than do not. host: you mentioned the late justice bader ginsburg. you have probably seen stories that she had said that may be expanding the court was not a good idea. justice breyer is saying so in recent days. what you think about members of the court being hesitant? guest: i have been asked about a -- that a lot. i was a, what do you expect them to say? as sitting justices, they are going to say there is nothing illegitimate about the institution and that their power should not be called into question.
it is sort of similar to the recent controversy in georgia around the voting rights law. in response to this measure the republican legislator passed and ryan kemp signed, a lot of businesses have taken physicians against the law. major league baseball made the decision to pull the all-star game out of atlanta. in response to those announcements, a lot of democratic politicians in georgia are saying that we disagree with this law. we do not want the economy in georgia to suffer. people like stacey abrams and senator warnock have said they do not support businesses pulling out because they live in georgia and have to say that. but that is not to say that corporate america or outside voices are wrong for making a stand against the law in georgia.
ruth bader ginsburg and stephen breyer, it is their job to publicly keep confidence up about the court as an institution. it is the job on us on the outside to have enough common sense to know the court has become irreparably politicized. host: the president has talked about forming a commission to take a look at the issue. we heard speaker pelosi and the senate majority leader saying they will hold off on expanding the court until they hear from the commission. is that a good move? guest: the commission is something that by its very existence is a nod to the surge in interest by many members of the democratic party and a lot of independents. biden promised the commission at the fall of 2020 at the apex of attention on the death of justice ginsburg. for him, it was a big step. during the primary campaign, there were a lot of candidates that expressed openness to
adding seats and term limits for justices. biden was not one of them. for him to say he wanted a commission was, to me, a statement and a testimony to how much outrage there was in the public. it has been about six months since he promised the commission. the composition of it does not inspire confidence in times of how progressive it will be. there are about 36 members on it, including a lot of people that contributed to the politicization of the federal judiciary, members of the federal society, the right wing group that brett kavanaugh and amy coney barrett belong to. it is hard for me to imagine that these members of the commission would be open to reforms. the other feature that does not inspire tremendous confidence is that the president literally said in his instructions to the
commission that he does not want them to make formal recommendations to him. he just wants them to study the issue. a lot of observers are saying this looks more like a classic washington blue-ribbon commission where ideas go to die. i think the attention the commission will bring to the issue is to the good. we will try to leverage that. and i doubt that the commission itself and anything it issues will significantly move anything. host: john in elmo, california on the republican line. go ahead with your question or comment. caller: we were talking about expanding the size of the supreme court. i taught government at a community college for a number of years. if you look at three documents, one, the plan madison put
together before the constitution. if you look at the federal -- the general of the federal convention, the minutes to the constitutional convention, something that i did not know about through her masters program that that was available, then also the constitution. you will find that the court is able to advise on legislative matters and legislative powers to make the rules we live by. that is article one section one that the congress has all legislative power. the --. host: what would you like our guest to address? caller: the idea that the court should not be doing what it is doing. it should advise. congress has total power over making rules. they can make a road we live by or destroy it. but the court can only advise.
that is their relationship in article six. they can support. the president has a unique position. he is the only one designated to defend and protect. host: thanks. anything to that, mr. fallon? guest: the court is disproportionately powerful compared to the other two branches nowadays. this is a problem identified by a lot of scholars that have proposed other ideas to try to reduce the court's influence in addition to adding seats. an outspoken professor at yale, samuel moyne, floated the idea of passing a requirement for the court to achieve a super majority vote of six to 32
overturn legislation. there are other reposes known as jurisdiction stripping to wall off certain areas of the law from supreme court review. all of these reposes are being expressed because there is a deeply held view that the courts -- the cortopassi -- the court's influenced has far surpassed what the founders intended. you saw a congressional hearing on this so-called shadow docket, rulings that the court issues in the dark of night without oral arguments or signed opinions. that is becoming the norm. a lot of high-stakes cases involving covid safety precautions that governors are implementing and voting issues in the run-up to the 2020 election. there is a feeling that the court is acting in an
unaccountable manner. to some extent, the court's power relative to other branches looming so large is due to the failure of the legislative branch to carry out its functions. we have seen the court's power rise as congress's becomes gridlocked. some people, including myself, think that is by design. one of the republican party's strategies has been to make congress dysfunctional, to steer courts right, and achieve the outcomes they wish for their political agenda through the court while making legislature basically neutralize. host: from our democrat line. lance in fort lauderdale, florida. caller: i would like to challenge you on your basic premise. the idea that the court is out
of balance. as if the court is composed of democrats or republicans. the court is composed of judges who leave personal opinions at their gate when they put on the rope. what is a democrat law? what is a republican law. i have -- emma paralegal who was worked for offices -- i am a paralegal. if the law says pay a $25 fine for a speeding ticket, that is not a republican or democratic law. that is the law. changing the law is what the legislature is for. you are talking about credibility on the court. in four years we have a republican president and he decides we need four more. the democrat after that decides we need four more. this goes on in for an item.
ruth bader ginsburg was against it. every justice was against it. my uncle was a judge. he was an avowed republican who never let that influence his opinion. you say you want to balance it. caller: -- guest: the caller raised the example of a parking ticket. that is black and white. some statutes are pretty clear-cut. but a lot of them are not, especially when it comes to constitutional interpretation. questions around do process and the 14th amendment are questions that people on both sides of the clinical spectrum have raging debates about that have lasted for decades.
the matter of constitutional interpretation is somewhat politicized. you do not have to take my word for it. the conservative movement that has achieved this significant accomplishment of having this majority on the court is the capstone of an intentional project that the political right launched in order to swing the courts right. republicans started the federalist society, got fed up with nominees of republican presidents getting onto the court and surprising them one how they ruled on cases. some of the most liberal judges of the last 50 or 60 years were appointed by republican presidents. it bothered republicans. they said, we will not allow this anymore. if we get republicans elected to be the president and control the senate, we wanted to make sure
that they will be with us on core issues like a gun rights and abortion rights and worker issues. they did not want anymore david souter's, george h w bush's pick that surprised conservatives by ending up being a reliable liberal vote. they put in this process that imposed a budget litmus test. it rich -- reached its apex in 2016 when donald trump said i will only pick from did -- this list of individuals. i want them committed to things like overturning roe v. wade and overturning the affordable care act. he campaigned on that openly. that was celebrated and viewed as an act of political genius by many commentators because he was known -- no longer putting any guile to it. he was being open about his intentions.
i do not begrudge republicans that mitch mcconnell and donald trump have so openly stated their ambitions. i just think we ought to do something to respond. we have a six/three republican majority on the court. even though it is a little out of whack. it will be politically untenable. republicans will have a problem pretty soon. the dog that catches the bus problem. they have the prize they wanted for 60 years. but now it will start issuing rulings on all of the issues that motivated republicans. those rulings will be highly unpopular. the supreme court accepted a case this week that it will here term that could have the potential to dramatically expand gun rights and overturn restrictions on concealed carry permits in states like new york that do not want to allow people
to pack heat in times square to increase the potential for a mass shooting event. the supreme court may be poised to strike down that proposal next year. i do not think that will be greeted well by a public that has grown weary of mass shootings. [inaudible] brian -- host: our guest is brian fallon of demanded justice. lakeland, minnesota on the independent line. derek you are next. caller: this is a fun topic. brian, congratulations on your new paycheck. i do not like the word demand. it sounds immature. when you talk about balancing the court, you do not balance a court by putting four new ones on so it unbalances the other way in which you are trying to swing it towards your expectation. but i will say this. one of the proudest and happiest
things for me as somebody who doesn't believe in not politicizing the court is donald trump got a hat trick. patrick's are good. i love it. host: that is derek. mr. fallon, go ahead. guest: i don't know where ago that one. -- where to go with that one. the glowing -- growing popularity of this proposal reflects the country that is shifting. 2020 was the first election in a long time where the democratic candidate one the majority of voters that said the supreme court was the main issue for them. hillary clinton lost those voters to donald trump. a surge in support for proposals like the one that congressman jones and senator markey introduced this month is only going to increase in the months and years to come as more
rulings come down from the supreme court that show why republicans fought so hard to achieve this majority in the first place. the 1.i should respond to that the caller made was you do not balance accord by adding four seats. i would ask caller, what if the proposal was modified? amended to say we will only at two while joe biden is the president and leave the other two to be decided by the winner of the next presidential contest. what if we passed it in combination with the term limits proposal which my group also supports and would set a limit so that each president in any given window can only appoint two justices and every justice has to step down after 18 years, which would regularize the process and eliminate the ability for justices to game the system by timing their
retirements strategically. these are proposals that my group supports. i think they are perfectly fair and would restore balance. number 13 has resonance and historical precedent. the court has changed its size seven times. in every previous instance, congress did so to bring it into alignment with the number of circuit courts just below the supreme court. the number of seats on the supreme court has historically matched the number of federal circuits. every justice on the court has a sort of jurisdiction to hear last-minute appeals that emanate from that jurisdiction. you frequently hear about death penalty cases that get to the supreme court on appeal and there is a midnight decision about whether to stay the execution. the justices that issue those
opinions match up geographically with certain federal circuits they are in charge of. but because there are nine supreme court justices and 13 circuits, certain justices have multiple circuits because we have never had the size be adjusted to match the current level of federal circuit courts, 13. host: when was the last time an adjustment was made on the court? guest: after the civil war. in the 1860's, the court changed three times. tatty as stevens and the republican party supported abolition of slavery and wanted their reconstruction effort to have real teeth added a 10th justice to the court because court was being unfriendly to president abraham lincoln's civil war. when lincoln died, the radical republicans in congress did not trust president johnson to oversee and implement reconstruction in the manner they felt was necessary to heal
the country. they prevented him from feeling -- filling the seats and reduced the court's side. they re-upped the side when graham became president. the idea that the court has been immune from partisan backing belies the history. people will -- would be horrified if the senate got rid of the filibuster but they do not realize that the filibuster did not exist until 1917. getting rid of it would not go against division of the founders. likewise, if we changed the size of the court, it would be befitting our history, not running counter to our history. host: diane from ann arbor, michigan on the democrat line. guest: i've -- caller: i feel the supreme court has become a legislative body.
president trump would so many times it just throws things to the supreme court to decide and circumvent the legislative process. also, in 2010, chief justice roberts voted for citizens united. i think from that point on, it was game over. no more democracy. it was money money money. who has the most money? as far as justice barrett, you would not believe the money that was spent to get her in office by lobbying groups. so, it is not -- it takes a shine off the supreme court -- i am not test -- questioning anyone's integrity, but as a body, they have lost a lot of
trust in the american people that would have an impact on how they are voting. host: thank you for the call. caller: -- guest: the caller raised a number of points i agree with. the court is acting like the legislature. for years, we heard conservatives deride so-called judicial activist judges that would legislate from the bench. that is what the majority is doing now. just in the last 10 days or so you had a ruling from this court that inspired some very fiery defense from sotomayor and other justices because they basically removed the ability for juvenile defendants sentenced to life to ever have their sentences reduced. there have been two rulings from 2012 that set a precedent that
that counted as cruel and unusual punishment. in the ruling last week that brett kavanaugh wrote the majority opinion on they said that no matter if somebody has the ability to be reformed and can demonstrate that, it is ok for judges to impose a mandatory life sentences with no possibility of shortening them. that overturned two presidents since 2012 -- precedents since 2012. there was a major forced arbitration case in the last few years that overturned a 40 year precedent. clarence thomas, one of the leading conservatives on the court, has openly said that the notion of stare decisis to describe the deference that
supreme court justices are supposed to give to past rulings is bunk and the president should not be controlling and the court should be free to overturn rulings it disagrees with. that is a rather radical notion that deviates from the institution of the supreme court as we know it. i think that legitimates the fear the caller raises. the court is acting as a super legislature. she also referenced the amount of money spent on amy coney barrett's confirmation. we spent a lot of money opposing her. but other group spent money on the support of her. one was the coke brothers group america -- koch brothers group americans for prosperity. i had a supreme court case this week challenging a california law that requires americans for prosperity and groups like it to disclose donors to the state attorney general. there was a lot of calls including from white house -- sheldon whitehouse from amy
coney barrett to recuse herself from that case because she is the beneficiary of so much. there is the appearance that she cannot be neutral. she declined to step down. that fuels a lot of concern about the legitimacy of the court and the lack of ethics that apply to justices. host: brian fallon is the cofounder and executive director of the group demand justice. mr. fallon, thank you for your time. guest: thank you again for having me and thank you to all the callers. host: the senate judiciary subcommittee holds a hearing on the effectiveness of red flag laws in other ways to limit gun violence. live coverage begins at 2:30 p.m. eastern on c-span, online at c-span.org, or listen on the
>> go to span.org -- c-span.org /coronavirus. it is easy to find the latest re-things and he bided administrations response. use the interactive -- the biden administration's response. go to c-span.org/coronavirus. now, a hearing on stopping gun violence and red flag laws. the senate judiciary committee on the constitution is holding the committee.