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tv   Former Federal Judge on Supreme Court Expansion  CSPAN  January 24, 2022 7:28pm-8:01pm EST

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automation will change the future of work and could spur an economic boom. campaign legal centers delaying moscow. watch at seven eastern tuesday morning on c-span or on c-span now, our new local -- mobile app. >> a new mobile video app from c-span. c-span now, download today. >> next, a look at the future of this beam court. from the washington post, this runs one half-hour. robert: i am robert barnes and i
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covered the supreme court for the post. former federal judge -- christine rodriguez who was the chair. welcome to washington post life. robert: old friends getting back together again, i see. tessa rodriguez, would you start us off, please, and tell us the impetus for this committee and sort of the unusual mandate that you had, which was not really to make recommendations to the president. >> the committee was effectively making good on a campaign
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promise that then 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 candace 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 presidents benefit to better inform his understanding and the public debate over whether discipline court needed reform in the first place and over which types of reforms are the ones best suited to whatever problems one might identify with the weight of court currently operates. robert: judge griffith, let's go to one of those right away. the idea of adding new members, more members to the supreme court. the court's membership has varied over the years, but for more than 100 years it has been set at nine.
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can you tell us about the discussion at the commission had on this issue? >> we had public hearings and then we invited experts from around the country to speak to the issue. as christina pointed out, her mandate was not to solve the issue which is not to come up with a recommendation whether the court should be expanded, it was to describe the nature of the debate. so that the president be better informed. we are not so much the pros and cons of expansion or keeping the court of this size that it has
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been for so long, but how do you describe that debate? have to say this, i am one of the political conservatives who made this a bipartisan commission. the final report is not exactly how i would have written it. it was the work of 34 people working together. there is always compromise. what i think is the most striking feature of the report and i don't think it's got enough attention, is that in a day of bitter partisan divide, 34 people got together and a civil means of discussing what the issues of the day and produced a report that was supported by every member of the commission. quite a part from the substance
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of their report. i think the process of the report is something that should get attention. i get 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. even though there were only a few of us would be labeled as clinical conservatives, our views were solicited, were described accurately, and i think for each one of us, can't speak for the others, but at least for me, it was a remarkable process that i think produced a report that is worth studying. robert: professor rodriguez, could you give us the pros on this idea of adding more members, whether or not it is something you personally
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endorse? you are a good reporter, you are able to present objectively the arguments on both sides. can you give us the pros? prof. rodriguez is a lawyer, too, i am capable about. 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. 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 current composition is the product of communication during the processes.
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chief among them, president obama last nomination, a hearing. 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 jurisprudential worldviews that changed opening on whether they are a or put that up appointed by republican or by democrat. over the last several years, before the controversy over merrick garland's nomination, discipline court has been making decisions that proponents argue undermine the processes of democratic decision-making.
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cheaply by interpreting the voting rights act in ways that narrow its reach in the declare certain key parts of it unconstitutional. this allowed states to engage and regulation that restricts the franchise. the concern that the proponents had and articulated in the report is that that means that the normal ebv -- ebb that you would have in the appointment to the court across ideological divisions might be in danger of being stopped altogether. a single party is seeking to entrench itself and the decisions of the supreme court are facilitating that. i should say and i'm sure judge griffith will be able to articulate the argument against, those feelings were deeply held, the feelings that that was a mischaracterization of the recent practice of the supreme court was also deeply held. taking that approach to then justify expanding the court to
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counter or pack the court would be significantly damaging to the institution as a whole and only spohn 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 you thought adding members was a bad idea. part of it is, as you know, all of the conservatives on the supreme court now were nominated by republican presidents. all of the liberals were nominated by democratic presidents. probably sounds to most people like it makes sense, but it was not 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 add
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justices. judge griffiths: professor rodriguez did a good job explaining the opposition to it. let me take one step back and maybe frame this in a larger view. i think there is a fundamental disagreement among some commissioners about the role of the supreme court under the constitution. those of us who 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 is 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 -- anecdote told by walter dollinger, who was the active -- acting solicitor general in the clinton administration. walter told the story how he argued, thought for the side of the government in the clinton versus 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 projected 9-0. walter told the story that he was in beijing eating chinese law students at the time the
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decision was handed down. he spoke 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 yard states. and that the supreme court upheld that nine. it was astonishing to them. i tell the story because i'm one who thinks the supreme court is playing very well its part in our constitutional system. i worry about efforts to change that. the unintended consequent as that would come from that. we know from many of the proponents of expansion that there are in intended next bash intended consequences. the confidences are to affect the decisions of that is discipline court anyway more to their liking. i don't agree with all the decisions of this up in court. i think the supreme court got
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that decision wrong. but i reject the idea that this supreme court is part of a plan to restrict the ability of the american citizens with a partisan preference one over the other. that is simply not true. 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, i think they play into something that is quite toxic in our culture today. this sense of distrust or mistrust. jonathan hite said recently, he predicted a cataclysmic failure of american democracy because he said we just do not know what happens when you train 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 is to fill that with more partisan actors. that was not my experience in the federal judiciary. it is not filled with partisan actors. it's filled with men and women doing their level best to follow their own to be impartial. they have different views about how to read the constitution, how to read the text of statute or regulation, but they are not being driven partisan concerns. i worry that too much of the argument in favor of expanded me court buys into that fiction. it leads to distrust. and we need to have, we should have and 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: leads into a question that i would like to read to you from jean and the basket. and professor rodriguez, i will ask you to take it on first. jean says, how to be get back to testing but the supreme court is a political? prof. rodriguez a think that is 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 with those things mean as opposed to what the right outcome is for whatever party affiliation they hold. but this sipping court decisions in particular are highly political and that they are
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often questions of first impression. the ones that generate controversy and lead to formation and raise the interest of the public are 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. i think that one way to improve the perception that the court is not engaged in partisan decision-making and is not a legitimate and that it is 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 the report.
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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, each president would have the opportunity to appoint to justices to the court. in the justification that proponents of term limits give that we underscore in the report is that would make the court and its bylaw -- i'd logical composition responsive to the outcome of democratic elections over time. not that it would be partisan or responsive to the vertical closely reflect the way the country is evolving. i think it is easier to accept losses at supreme court issues you care about and to have faith but the court will stay in line
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with public views about what the constitution means and what it should protect it we have a system of nomination and confirmation that more closely tracks the ebb and flow of politics. i think that is an example. it might have something to say and do about the polarized state of our politics that is now infecting the court in people's perceptions of it. robert: that's griffith, when i think about this issue, i think about something justice kagan said when she was confirmed by the senate. the first call she got was from the chief justice 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? i don't think the rest of the world looks to us on this about. we're the only country that doesn't have either term limits or specified retirement age. judge griffiths: the lifetime appointment is in the constitution. if you are going to change that, you were 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. 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 am not certain that would be desirable. i actually came into the commission thinking maybe this is a good idea. as i heard the testimony and ready problems with it, i was persuaded it is not a good idea. it might have unintended consequences that would weaken the strength the current supreme court has. i can go on to something professor rodriguez said, and she said very well, but i have a fundamentally different view about the role of the court. the role of the judiciary.
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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 is important to understand that perhaps the most fundamental decisions the framers made increasing the constitution, was who decides the law. that seemed to be in some cases even more important to them then what is decided. who decides the law? we call it the separation of powers in our constitution is based on a radically different idea than has ever has been presented before. that is under our system, we, the people, make the laws politically accountable presented. through people they vote for. the judges are not voted for by the people. the judges occupy a very tenuous
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role in a democratic republic. i believe the view of the judge is to be faithful agent of those who make the laws. and that the judge is 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 represent a, through law. when you have that view, the question is not whether judges and justices are following social trends and changing norms, it is whether they are following the law as enacted by we the people in the constitution in the acts of congress. that is i think a very different view of the role of a judge than some of the proponents of term limit -- term limits and expanding the court. i think is a fundamental disagreement.
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robert: let me ask you about reactions to this and 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 has been asked to do that. that was a decision made 50 years ago. if it is overturned, i think it would likely be along the lines of the republican nominated justices on one side nominated justices on the other. if something like that was to happen, do you think that would add new momentum to either of these proposals? professor rodriguez, would you start with that? prof. rodriguez i think that if
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and when the sipping court in june curtails the right to terminate her pregnancy and, and defending on how it goes about doing that, but it will cause significant political reverberations. i think that will strengthen the bailment of the calls that some people are making for expanding the court, but the bottom line is that the democrats do not have the power in congress to do that at the moment. i do not think that it is 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 would not 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 is possible that we will look back to this moment, not just to whatever the court does with
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respect to roe v. wade, but also what the court is likely to do and already done with respect to congress's power to regulate and federal agencies to use their statutory authorities to do things like address the pandemic vaccine regulation. those changes and shifts in the courts doctrine will be identified as a moment in which people begin 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 do not see the need on court reform moving the way in 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 towards the end of the report that seemed to have a lot of support. things such a specific and written code of ethics for supreme court justices. or the proposal that judges just 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? prof. rodriguez: i will 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 asked -- ethics or other transparency tight reforms. there is some analysis in the report about congress having the authority to do so, but i think it is fair to say that it would be preferable for the court to act to bind itself, but do so in a way to clear -- is clear to the republic 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 prudent for the court, but for congress to regulate the court in that fashion, even if it is within its power, is something that people would be cautious about. judge griffiths: i agree.
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as a former member of the judiciary, i'm a little bit anxious about congress overreaching. robert: i am much in favor of the court super sizing itself. we have a chief justice who is keen fully aware of the role of the court in the public eye. i have confidence that they will respond appropriately as necessary. 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 back in? prof. rodriguez: i think over time i became more some pathetic
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to recall in the report the disempowerment reform. the 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 as teacher and scholar of constitutional law for almost two decades. i think that that reinforced my views. term limits are an important long-term solution to the problem and will help the concentrate the power on particular justices. also think that reforms that are addressed to ensuring the court is different -- differential to political actors are ones worth considering. the challenge 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 a minute. those things that the congress can do on its own, such as
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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, is that the reform debate as a way of letting congress off the hook. that a lot of what we are debating today through the lens of supreme court reform is actually a consequence of congress not doing its job the institution that is in most need of invigoration as our system is the congress. part of the reason that it is not as effective as it maybe once was in enacting legislation is the same polarization that is 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 idle logical 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 address the problems that people often cite reform as necessary to address, i think necessitates this bigger picture 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 our time is up. i want to thank you for tuning in to washington post
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live. i'm robert barnes. for upcoming events, please go to the website, washington post live dot com. thank you again. ♪ announcer: c-span is your unfiltered view of government. funded by these television companies and more, including buckeye broadband. ♪ buckeye broadband supports c-span as a public service, along with these other television providers, giving you a front row seat to democracy. ♪ announcer: tonight on c

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