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The Supreme Court Nomination Should Come Soon

John Malcolm, The Heritage Foundation

The Annie Frey Show
June 29, 2018 - 2:26 pm

AF: To find out what we actually could expect or expect anticipate at least joining us now is John Malcolm from the Heritage Foundation John, thanks for coming on the show today. We appreciate it.

JM: Good to be with Anne. I was amazed listening to that opening segment. Okay, throwing mud on the wall and seeing whatever sticks.

AF: I'm not, I am not an expert when it comes to the Supreme Court. I read as much as I can read and soak it all in in like kind of source everything and figure I'm going to triangulate myself around the truth, but, as far as I understand it, we need a majority in the senate in order to approve an appointment from the president and that's 51 votes, right?

JM: Yeah, that's right you could get by with 50, if it was a 50/50 tie and the vice president could break the tie. So, that's what you need is you need 50 votes plus the vice president. But yeah, there will be a confirmation hearing all of this talk about all we're going to put this off until after the midterm election cuz it's an election year and haven't heard that was a conflict of interest because some justice the new one two,three weeks could even be sooner than that. They will then be a month or so of courtesy visits. There will be a confirmation hearing scheduled for mid to late August or perhaps right after Labor Day with an eye towards getting that Justice confirmed by the time the court begins its next session the first Monday in October. That is going to happen. Now whether that Justice will be confirmed that is of course a different story the Republicans have a majority in the Senate but it is the slimmest of majority's protect me when you consider that senator McCain is not back in Washington DC and unfortunately is unlikely to be back in Washington DC. So the reality is it's at the Republicans have a 50/49 majority. It doesn't get any simpler than that.

AF: I'm watching from afar I'm afraid to get too close to it. But the reaction from the left on Twitter is apocalyptic and they're saying burn the building down do anything you can possibly do because they feel as though I've heard we will no longer have clean water, they say women are no longer going to be able to reproduce or they'll go to jail. They're going to have dirty air among many other very scary frightening things. They are in meltdown mode. What can the left do to stop this president from getting his nominee?

JM: Well the best probably the biggest thing that they could do is to spook moderate Republicans into voting against the Nominee, that's about all that they can they can do. You know there will be a nominee. There will be a hearing weather that nominee will be confirmed or not that is an open question? I mean this confirmation hearings going to make the Gorsuch hearing look like a tea party, a minor dust up. This is going to be quite the battle. I mean when you were there was all the theatrics about You know what the Republicans it in terms of not considering the Merrick Garland nomination that will of course come up again. That was a part of the Gorsuch hearing but they ultimately you had a conservative president naming a replacement for a conservative Justice. Anthony Kennedy on the other hand has been the quintessential swing vote in while he is voted with the conservative Justices on a number of occasions there are several prominent examples in which he has not ended over the last 5 years in every 5-4 decision. Anthony Kennedy was in the majority 90% of the time which is a lot higher than any other Justic He's been referred to as king Kennedy I have often said that Anthony Kennedy's world and we just live in it. The apolcalyptic we're going to be all be drinking polluted water in your dog to lie down with cats and there are no questions that social issues come up to the court from time to time. But these are our thoughtful independent fair-minded people and you know, most of these decisions will remain where they should remain which is with the people.

AF: We're speaking with John Malcolm from the Heritage Foundation about the announcement of Justice Kennedy and his retirement president Trump's ability to replace him. So what I hear you saying there is the best thing that the Democrats can do to stop this nominee is rely on the help from Republicans

JM: Yeah, I know. I think that's right. I mean that so they're going to be a few Democrats. Of course, we're running for reelection in Trump Country Joe Manchin, Joe Donnelly Heidi Heidkamp Claire McCaskill. They may conceivably be tempted to vote to confirm a Trump nominee. That will be tremendous pressure from the left and the base of the base large  on the Democratic side for all the Republicans to I'm sorry,  all the Democrats in march in lockstep and vote against the nominee Chuck Schumer has already said that no Democrat is going to vote for anyone on the Trump list of 25 that would include by the way their fellow Senator Mike Lee night, and I don't expect that to change. So the Republicans have got to come up with somebody who is acceptable to literally every Republican. And if and if they can do that unless I can persuade a couple of these crossover Democrats to also vote to confirm. You know, they they will get their nominee through.

AF: Would Mike Lee get to vote if Mike Lee were the nominee.

JM: No, now that would be a conflict of interest that one, Cory Booker if you said that's a conflict of interest. He might actually have something

AF: Would that take it down to 49/ 49 then?

JM:Yeah, pretty much.

AF: Wow. That's interesting. I was just saying be interesting to watch Republicans not vote for their Republican colleague in in the Senate certainly. Are there of the other folks on that list that President Trump has put out there. Can you tell us anything about any of the them individually, or maybe the sum total?

JM: Well, there are 25 of them. So that's an awful lot of people to talk about individually. I don't know them all but I know what number of them. So the people I consider probably be in the early favorites, if you will would be Brett Kavanaugh the DC circuit. He somebody I recommended is being on a short to list. He was recently added by the president very distinguished judge whip smart. Amul Thapar of the sixth circuit former district court judge a favor to Mitch McConnell a whip smart guy very well-qualified. Tom Hardiman, I've got to know him a little bit. He was the runner-up to Neil Gorsuch. He's a third Circuit Judge who sat on that court for many years and served with distinction. Raymond Kethledge on the 6th circuit. whip-smart super brighter on has also serve with distinction. If the President is looking for woman, he might take a look at Amy Coney Barrett new judge on the 7th circuit, but certainly very smart and and boy held up talk about Grace Under Fire her confirmation hearing was so is really tough with Senator Feinstein saying that the Dogma lives strongly in her and she channelled Star Wars  and Amy Barrett it was as calm cool and collected in poisonous want to possibly be. And Joan Larsen a new judge on the 6th circuit, but sat before that is a Justice on the Michigan Supreme Court, but there are other people on the list Allison I Kevin Newsome, David try it I could go down with these are all highly qualified men and women. As Leonard Leo said in a recent interview, you could throw a dart at this listing and wherever would win you would you would find somebody who would like to make an outstanding associate Justice of the Supreme Court

AF: An interesting point that I saw last night on Fox news with a Ben Shapiro. He said when you look at the judges that have been nominated by Democrats, they almost always go with the liberal side of whatever the decision is when you look at the Republican nominees that the ones that are had been put up their appointed by Republican presidents, it's not as as you know, carbon copy Republican conservative every time every once in awhile the Constitution kind of gets in the way and says, this is the way that should be an even though it's not how you would favorite. They interpret the Constitution differently. Would you consider this list to be a conservative list of judges a a constitutionalist list of judges? Is there a way to characterize them?

JM: Yeah, the ones that I know when you can I don't know them all individually, they are all independent. They are all fair-minded and they will all apply the law whether that is statutes or the Constitution as those laws were written. They will not attempt to import their own personal or political preferences into the law. They are what I would refer to as committed textualist and originalist and that is a Judicial philosophy that I admire the Clarence Thomas has it Antonin Scalia has it on Neil Gorsuch as other judges have it to varying degrees. I think it is the right kind a person to have an end at least the judges that I know who are on this list and certainly Senator Lee have a certain amount of intestinal fortitude. So when the the onslaught of criticism comes from the door down cocktail Circuit of the New York Times editorial board, their traditional philosophy will remain solid.

AF: Definitely we will continue to watch this is it unfolds real quickly here. You said that a nominee named could be out there in the next 2 or 3 weeks.

JM: Yeah, I think that's right. This is not the President's first time at the rodeo. He's been through this once before he knows all the people on this list and I think they want to get these hearing schedule. So I think we'll get a nominee in fairly short order 

Sure didn't do you think that the confirmation hearings will be in then like August or September.

JM: I think any time for me to August till just after Labor Day, you know, it depends on scheduling on whether they stick with with canceling the August recess. So I predict, you know late August, but it could be right after Labor Day but no later than that

AF: John Malcolm with the Heritage Foundation. You can go to heritage.org for all of this wealth of knowledge that is share their thank you so much for letting us your expertise.

JM: Thank you, Annie