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tv   Former Federal Judge on Supreme Court Expansion  CSPAN  January 21, 2022 11:01am-11:36am EST

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that most democratic politicians implore against blacks is a show. hillary clinton being in front of a black church or biden saying if you don't vote for me, you are not black. that is bigotry. biden is one of the biggest proponents of the crime bill document in 1990's. there is another important issue that is under the radar. robert f kennedy, jr., is coming to washington, d.c. come and this brilliant man who wrote the book called "the real dr. anthony fauci," it is a bestseller that you cannot find it in barnes & noble's. amazon is playing games. this man has exposed our new joseph mangler 2.0, and our media is saying he is presenting misinformation. >> you can watch this program in
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its entirety any time if you go to our website, c-span.org. take you live to a "washington post" discussion examining the future of the supreme court. and how the current makeup might impact pending cases. you're watching live coverage here on c-span. robert: cristina rodriguez who was co-chair of the commission. judge griffith, professor rodriguez, welcome to "washington post" live. cristina: thanks for having us. judge griffith: hi, cristina. cristina: good to see you. robert: old friends getting back together again, i see. professor rodriguez, would you start us off, please, and tell us the impetus for this committee and sort of the, i guess, unusual mandate that you had, which was not really to make recommendations to the president. cristina: the committee was effectively making good on a campaign promise that then
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candidate joe biden made during an interview when asked about the prospects for the supreme court reform, he said that he would form a committee in order to study those ideas. the committee was set up not to make recommendations. but to van cass as wide a range of views as possible in order to provide an actual analysis of the proposals that are prominent in the public discussion for the president's president to better inform his understanding and the public debate over whether the supreme court needed reform in the first place and over which types of reforms are the ones best whatever problems one might identify with the way the court currently operates. robert: judge griffith, go to one of those right away which was the idea of adding new members, more members to the supreme court. the court as membership has varied over the years, but for more than 100 years it's been
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set at nine. can you tell us about the discussion that the commission had on this issue? judge griffith: we had public hearings and then we -- where we invited experts from around the country to speak to the issue. then we had public meetings where we discussed it amongst ourselves. the issue amongst ourselves. as cristina pointed out, our mandate was not to resolve the issue. was not to come up with recommendation whether the state is -- or the court should be expanded. our mandate was to describe the nature of the debate so that the president would be better informed about what was at stake in the debate. our debates, the ones i participated in, were not so much the pros and cons of expansion or keeping the court at the size it's been at for so
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long, but whether -- rather how we describe that debate for the president and the american public. i have to say this, i'm one of the political conservatives who made this a bipartisan commission. the final report isn't exactly how i would have written it. it's not exactly how professor rodriguez would have written it. it was the work of 34 people working together. there is always compromise involved. what i think is the most striking feature of the report, and i don't think it's gotten enough attention, is that in a day of bitter partisan divide, 34 people got together and created a civil means of discussioning what are the issues of the day and produced a report that was supported by
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every member of the commission. quite apart from the substance of the report, i think the process of the report is something that should get attention. for this i give full credit to the white house who made it clear to us throughout the process that they wanted civil discourse. they wanted all views to be considered. and even though there were only a few of us who would be labeled as political conservatives, our views were fully -- were solicited, were described accurately, and i think for each one of us, can't speak for the others, at lease for me and i think the others agree, it was a remarkable process that i think produced a report that's worth studying. robert: professor rodriguez, could you -- i'm going to let judge griffith get to the cons of this. could you give us the pros on this idea of adding more members, whether or not it's
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something you personally endorse or not. you are a good reporter, you are able to present objectively the arguments on both sides. can you give us the pros. cristina: as a lawyer, too, i am capable of doing that. i should say that this was the issue over which i think were the deepest disagreements. the disagreements were such that we couldn't go as far as we might otherwise have liked and analyzing the validity of the arguments in favor or against reform. instead our goal was to present the case as advocates in favor of expansion and opponents of expansion would make them. the core of the argument in favor of expansion is twofold. the first is that the current exoa contiguous of the -- composition of the court is the product of machinations during the confirmation processes over the last three nominations where republicans violated new
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orleans. norms. chief among them was their refusal to provide merrick garland, president obama's last nomination, a hearing, much less a vote. and that as a result there is a skew in the composition of the court. that's premised on what i think is a widespread belief that the decisions of the supreme court are highly consequential and even if justices themselves are not partisan actors, they do have ideological and juries prudential world views that change depending on whether they are those who would be appointed by a republican or by a democrat. but the more fundamental argument in favor of reform is that over the last several years, this dates back before the controversy over merrick garland's nomination, the supreme court has been making decisions that proponents argue undermine the processes of democratic decisionmaking.
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chiefly by interpreting the voting rights act in ways that narrow its reach and that declare certain see parts of it unconstitutional which has allowed states to engage in regulation that restricts the franchise. and the concern that these proponents had and articulated in the report is that that means that the normal ebb and flow that you would have in the appointments to the court across ideological divisions might be in danger of being stopped all together. and that single party is seeking to intrech itself and the decisions of the supreme court are facilitating that. i should say and i'm sure judge griffith will ably articulate the arguments against it that where those feelings were deeply held, the feelings that that was a mischaracterization of the recent practice of the supreme court was also deeply held. and that taking that approach to then justify expanding the court
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to counter or pack the court so to speak would be significantly damaging to the institution as a whole and would only spawn back and forth that would further politicize the court. it's already regarded as highly political in nature. robert: judge griffith, i'm going to give you a chance to talk about an op-ed you wrote afterwards in which you said that -- why you thought adding members was a bad idea. part of it is, as you know, that all of the conservatives on the supreme court now were nominated by republican presidents. all of the liberals were nominated by democratic presidents. that probably sounds to most people like it makes sense, but it wasn't that way for a very long time on the supreme court. take that into account when you talk about why you think now would be a bad idea to adjust
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tises. judge griffith: sure. first of all, professor rodriguez did a good job explaining the opposition to it. let me step -- take one step back and maybe frame this in a little larger view. i think there is a fundamental disagreement amongst some of the commissioners about the role of the supreme court under the constitution. and those of us who opposed expansion, at least i oppose expansion, start with the idea that the supreme court, although certainly not perfect, has done a remarkable job in the history of the republic. it's the crown jewel of our constitutional government. i spent a number of years deeply involved in rule of law projects in former communist countries. everywhere i go that meet with
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reformers, they look to the federal judiciary and the supreme court as the model of an independent judiciary. i thought one of the most moving moments during our public proceedings came from an antic death told by walter dell linger, he was the acting solicitor general in the clinton administration, professor of law at duke and distinguished public advocate and servant. walter told the story how he argued the -- sought for the side of the government in the clinton v. jones case, the case about whether jones would be allowed to proceed with her lawsuit against a sitting president of the united states. walter argued for the government's position in the supreme court. he lost. that position was rejected 9-0. walter told the story that he was in beijing teaching chinese law students at the time the decision was handed down.
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and he spoke, he was quite moving, i thought, about the astonishment that his law students greeted that opinion. that a low-level state employee could pursue a lawsuit against the president of the united states. and that the supreme court upheld that 9 ---it was simply astonishing to them. i tell that story because i'm one who thinks the supreme court is playing very well its part in our constitutional system. and i worry about efforts to change that. the unintended consequences that would come from that. now, we know that for many of the proponents of expansion there are intended consequences. the intended consequences are to affect the decisions of the decisions of the supreme court in a way more to their liking. i don't agree with all the decisions of the supreme court. i was on the panel that was overturned in shelby county.
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i think the supreme court got that decision wrong. but i reject the idea that this supreme court is some part of a plan to restrict the ability of american citizens -- a partisan preference for one party or the other. that's just simply not true. and i worry that people who make those claims, people who make proposals for change based on some idea that the supreme court is not legitimate, they play into something i think's quite toxic in our culture today, that's this sense of distrust or mistrust. jonathan height said recently, he predicted a cataclysmic failure of american democracy because he said we just don't know what happens when you drain all trust out of a democracy. i worry that the arguments that
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are made for expansion of the court assume that the court is still political partisan actors and that the antidote to that is fill it with more partisan actors. that's not -- that was not my experience in the federal judiciary. it's not filled with partisan actors. it's filled with men and women doing their level best to follow their oath to be impartial. they have different views about how to read the constitution, how to read a text of statute or regulation. but they are not being driven by partisan concerns. i worry that too much of the argument in favor of expanding the court buys into that fiction. it leads to distrust. and we need to have -- we should have and we need to have a confidence in the supreme court.
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particularly at a time when trust is diminishing for many of our governmental institutions. robert: that leads into a question that i would like to read you from jean in nebraska. and professor rodriguez, i'll ask you to take it on first. jean says, how do we get back to trusting that the supreme court is apolitical? cristina: i think that's a difficult question to answer because i don't think the supreme court is apolitical. i agree with judge griffith that most judges and justices are doing their best to interpret the law and the constitution, with what those things mean as opposed to what the right outcome is for whatever party affiliation they hold. but the supreme court decisions in particular are highly political in that they are often
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questions of first impression. the ones that generate controversy, that lead to formation and raise the interest of the public are puns -- ones that represent either undecided questions about constitutional values, or that reflect ways in which the country views about the nature of the constitutional values and how far government regulation can go in relation to those values are changing over time. and so i think that one way to improve the perception that the court is not engaged in partisan decisionmaking and is not illegitimate in that its favoring one side over the other is to think about reforms that would make the supreme court more aligned with democratic majorities. there are two types of reforms that would adhere to that objective that we explored in
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the report. the first is term limits for supreme court justices. this is a long-term proposition. many people, myself included, think it would require a constitutional amendment to achieve that. it means a difficult reform to achieve. if we were to adopt a system of term limits, we would, say for example, an 18-year nonrenewable term, each president would have opportunity to appoint two justices to the court. and the justification that proponents of term limits give that we underscore in the report that would make the court an its ideological composition responsive to the outcome of democratic elections over time. not that it would be partisan or responsive to the particular political debates at the moment, but that the composition would more carefully and closely reflect the way the country is evolving. i think it's easier to accept losses at the supreme court for issues you care about, and to
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have faith that the court will stay in line with public views about what the constitution means and what it should protect if we have a system of nomination and confirmation that more closely tracks the ebb and flow of politics. i think that is an example of the kind of big picture difficult and complex reform to enact that could create a better system overall that might have some -- something to say and do about the polarized state of our politics that is now infecting the court in people's perception. robert: judge griffith, when i think about this issue i think about something justice kagen said when she was confirmed by the senate, the first call she got was from the chief justice, chief justice roberts, who said, congratulations. he looked forward to working with her for the next 25 years. and she said, only 25?
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is there really a reason for us to think that the constitution intended for people to serve all of their lives on the supreme court? this is one of those things that i don't think the rest of the world does look to us about where we are the only country that doesn't have either term limits or specified retirement age. judge griffith: the lifetime appointment is -- it's there in the constitution. if you're going to change that, you are going to change something quite fundamental. the conservative in me says, be careful about that. in fact the constitution was created, the court was created, with lifetime tenure. so we have to be careful about tinkering with that. i agree with professor rodriguez, it would require a
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constitutional amendment to change that. i'm not certain it would be desirable. some of our greatest justices, justice ginsberg, just continues brennan, justice black served longer than 18 years. i actually came into the commission thinking, maybe this is a good idea. as i heard the testimony and read the problems with it, i was persuaded it's not a good idea. it might have unintended consequences that would weaken the strength the current supreme court has. if i can go on to something professor rodriguez said, she said very well, but i have a fundamentally different view about the role of the court.
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the role of the judiciary. whether they are supposed to be -- responding to evolving democratic norms. at one level you want to say they are, another level i think it's important to understand that perhaps the most fundamental decision that the framers made in creating the constitution was who decides the law. that seemed to be in some cases even more important to them than what is decided. who decides the law. we call it the separation of powers. and our constitution is based on a radically different idea that has ever been presented before. and that is that in our -- under our system, we, the people, make the laws through politically accountable representatives. through people they vote for. the judges aren't voted for by we the people.
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judges occupy a very tenuous role in a democratic republic. and i believe the view of the judge is to be the faithful agent of those who make the laws. and that the judges not to be imposing his or her own policy preferences in deciding the outcome of the case, but they are supposed to be looking to what we, the people, have decided through their elected representatives, through law. when you have that view, the question isn't whether judges and justices are following social trends and changing norms, it's whether they are following the law as enacted by we, the people, in the constitution in the acts of congress. that's i think a very different view of the role of a judge than some of the proponents of term limits and expanding the court.
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i think it's a fundamental disagreement. robert: let me ask you about reaction to this, and also whether or not you see some action coming on this report or on these subjects. as you know the supreme court right now is considering whether to overturn roe v. wade. it's been asked to do that. that was a decision made 50 years ago that said that there was a constitutional right to abortion. if it's overturned, it likely would be along these lines of the republican nominated justices on one side, the democratic nominated justices on the other. if something like that were to happen, would that, you think, provide new momentum for either of these proposals? professor rodriguez, would you start with that. cristina: do i think that if and when the supreme court in june
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curtails the right to terminate a pregnancy, and depending how it goes about doing that, that it will cause significant political reverberations. i do think that will strengthen the vehement of the calls that some people are making for expanding the court, but the bottom line is that the democrats don't have the power in congress to do that at the moment. i don't think that it's a realistic reform, especially given the prospects for the next two elections. i do think, however, that the debates that we are having now and the commission report that is advancing those debates will shape longer term debate over the court. i wouldn't rule out the possibility that sometime in the future when a political window does open, that there would be structural reforms to the court. and when that happens, it's possible that we will look back to this moment, not just to
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whatever the court does with respect to roe vs. wade, but also what the court is likely to do and already done with respect to congress' power to regulate and federal agencies power to use their statutory authorities to do things like address the pandemic through vaccine regulation. that those changes and shifts in the court's doctrine will be identified as a moment in which people began to take seriously court reform. i hope that the report that we produce because it was focused on analyzing arguments for and against reform, and thinking through implementation questions will be an invaluable resource. even though i think whatever happens with all the court cases in june, is likely to produce a lot of political debate. i don't see the need on court re-- needle on court reform moving given the way the power in congress breaks down at the moment. i do think it will contribute to a longer arc of supreme court
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reform debate. robert: let me ask you, there were some proposals toward the end of the report that seemed to have a lot of support, things such as a specific and written code of ethics for supreme court justices. the fact that -- or the proposal that justices should not individually own stocks. that the arguments should continue to be streamed. things that sort of go to transparency at the supreme court. are those things congress could and should act on on its own regardless of what the white house does on this report? either one of you. cristina: i'll start. most of those reforms are ones that the court could itself adopt. the commission did not take a
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position on whether congress should enact reforms. with respect to judicial ethics or other transparency-type reforms. there is some analysis in the report about congress, in fact, having the authority to do so, but i think it's fair to say that it would be preferable for the court to act to bind itself, but do so in a way is clear to the public and is consistently followed. there was widespread agreement that something like a judicial code of ethics and limitations on stock ownership and the like are wide and produceddent for the court -- produceddent for the -- producedden -- prudent for the court. but for congress to regulate the court in that fashion, even if it's within within its power ising that -- is something that people would be cautious about.
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judge griffith: i agree. as a former member of the federal judiciary, a little bit anxious about congress overreaching. i'm much in favor of the court super sizing -- super advising it self. we have a chief justice who is keenfully aware of the role the court in the public eye. i have confidence that they'll respond appropriately as necessary. robert: professor rodriguez, quickly, judge griffith said that he changed his mind after hearing some of the discussion at the commission. is there anything that you changed your mind about? something you thought going in that changed as a result of the study and the work that you did? cristina: i think over time i became more sympathetic to what we call in the report the
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disempowerment reform. that fundamentally the challenge is that the court has too much power in the present moment, and i came to believe that more strongly than i did before despite being a teacher and scholar of constitutional law for almost two decades. i think that that reinforced my view that term limits are an important long-term solution to the problem that will help deconcentrate the power of particular individual justices, but i also think that reforms that are addressed to ensuring that the court is, in fact, deferential to political actors are ones worth considering. the challenge, this is articulate in the report, is that the types of reforms that would go the furthest in advancing that objective are the ones that are most likely to require a constitutional amendment. those things that the congress
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can do on its own, such as stripping jurisdiction of the court to hear certain types of cases, are less effective because of their one off nature. there is an implementation challenge associated with these sorts of reforms. i think the other thing that became clear to me about the debate over supreme court reform, this relates to the debate over expansion, but also to disempowerment, is that the reform debate has a way of letting congress off the hook. that a lot of what we are debating today through the lens of the supreme court reform is actually a consequence of congress not doing its job. and that the institution that is most in need of invigoration in our system is, in fact, the congress. of course part of the reason that it is not as effective as it maybe once was in enacting legislation is the same polarization that's driving the debate over the supreme court reform. there is a deep problem in our
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political culture that makes it difficult for any of the institutions of government to function in a way that achieves consensus or respect across the ideological spectrum. that is a much larger issue than the court reform debate, but thinking really long and hard about whether proposals for court reform would, in fact, address the problems that people often cite reform as necessary to address i think necessitates this bigger peck teur consideration of the limits of our system as a whole and need for congress to take greater responsibility for addressing the problems and economic and social life. robert: professor, i think you could get nine votes for that at the supreme court. i want to thank you both for participating in this very interesting and timely conversation. our time is up. i want to thank you for tuning
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