What steps are involved in a Supreme Court confirmation process and are any optional? What do we know about Amy Coney Barrett and Barbara Lagoa, reportedly two of the top contenders to be nominated? Can Democrats pack the Supreme Court? And what lessons did the left and right learn from the Kavanaugh hearings? John Malcolm, who heads the Meese Legal Center at The Heritage Foundation, joins the podcast to discuss all this and more.

We also cover these stories: 

  • President Donald Trump pledges to announce a Supreme Court nominee Friday or Saturday.
  • Democrats won’t rule out impeaching Trump as a way to slow down Supreme Court confirmation process.
  • Archbishop Salvatore Cordileone of San Francisco says the city’s rules on religious services during COVID-19 are discriminatory.

Kate Trinko: Joining me is John Malcolm, vice president of the Institute for Constitutional Government and head of the Meese Legal Center at The Heritage Foundation. John, thanks for joining us.

John Malcolm: No, it’s my pleasure, Kate. Good to be with you.

Trinko: So, I do want to discuss the legacy of Justice Ruth Bader Ginsburg, but this being Washington, D.C., people did move very quickly away from mourning the late justice to discussing what’s next.

First off, we’re obviously close to the next election. Is there anything in the Constitution or in precedent that makes it problematic for the president and the Senate to confirm a new Supreme Court justice before the election?

Malcolm: No, there’s nothing in the Constitution about that. The Constitution basically says that the president nominates, the Senate gives its advice and consent, although they can decide to withhold their advice and consent. And then once somebody is confirmed, the president appoints them. It’s a three-step process and that’s all it says.

Now, people are citing precedent of what we did in 2016 and what we’re doing now and in other confirmation fights.

And there are an awful lot of senators on both sides of the political aisle that I believe are eating the words that they said in 2016, but there was certainly no constitutional impediment or Senate rule or precedent that would prevent the president from getting his nominee confirmed if the Senate decides to conform that nominee.

Trinko: OK. So, on a practical level, you’ve watched a lot of Supreme Court confirmations. What actually needs to be part of the process and how short could this process actually be?

Malcolm: Well, the process has lengthened over time in part because there are courtesy calls that the nominees make on senators and the FBI does more extensive background checks and provides reports to the senators, but the process can go very quickly.

Ruth Bader Ginsburg, when she was confirmed, I think it was something like 96 to 3. These were very different times. Antonin Scalia was confirmed, I think it was 98 or 99 to nothing.

Ruth Bader Ginsburg was confirmed in six weeks. Sandra Day O’Connor, I looked this up, was confirmed in 33 days. Franklin Delano Roosevelt nominated one justice, James Byrne, who was confirmed the day he was nominated. His next nominee, Harold Burton, he struggled. I mean, it took a whole day from the time he was nominated until he was confirmed. So that was a different time and things are more contentious, but it can happen very quickly.

Trinko: So really it sounds like the only thing that’s absolutely essential is the Senate vote. It sounds like the courtesy calls and all that maybe it would be unwise to skip them, but it sounds like that could be done.

Malcolm: Yes, that’s right. I mean, the president could nominate somebody this week and the Senate Judiciary Committee could hold the hearing next week.

I think the only procedural rule that I am aware of is, and I suppose this could even be waived, the Senate Judiciary Committee typically schedules a meeting for a vote a weekend after having its hearing.

As a matter of course, if the minority party requests an additional week before a vote, that is just granted. So there should be a vote within two weeks after the hearing concludes for the nominee. And then it goes to the Senate floor where it could be fast-tracked.

Trinko: President [Donald] Trump has said he intends to pick a female justice. He’s mentioned two women contenders by name, Amy Coney Barrett and Barbara Lagoa. So let’s start with Barrett. What do we know about her? What do we know about her judicial philosophy?

Malcolm: Well, we know a lot more about Amy Coney Barrett than we know about Barbara Lagoa. So Amy Coney Barrett, an exceptionally bright woman, not that Barbara Lagoa isn’t, graduated from Notre Dame Law School, clerk for Judge Laurence Silberman of the D.C. Circuit, and then Antonin Scalia on the Supreme Court.

[She] spent a brief time in private practice, worked for the Republicans in the Bush v. Gore dispute, and then spent most of her time in academia and most of that time at University of Notre Dame Law School.

I mentioned that because she wrote, she published in many prestigious law reviews around the country on a whole host of issues that judges deal with and that the conservative legal community cares about.

She wrote a lot about originalism. She wrote about a lot about textualism. She wrote a lot about how judges ought to approach precedent and when they should adhere or depart from precedent. She was quizzed on all of those things and of course her Catholic faith during her confirmation hearing.

Most memorably, Sen. Dianne Feinstein from California, talking to her about Roe v. Wade, said that the dogma lived loudly in her. And she held up with tremendous grace and poise under fire. I think that Sen. Feinstein probably regretted at the end of that hearing having asked her that question.

And since she’s been on the court, which was in 2017, she’s written over a hundred opinions, both majority opinions, dissents, and concurrences, and has shown that she is a committed textualist and a committed originalist.

She said during her confirmation hearings, for instance, that she would set aside her personal beliefs and her faith to rule according to the law.

Certainly as a devout Catholic, which I believe she is, I don’t know this for a fact, but I would suspect that maybe she does not like the death penalty on a personal basis, yet she has joined opinions that have upheld capital sentences.

As far as I know, she hasn’t ruled in any cases involving abortion. And my guess is the nominee, whoever she is, since we know it’s going to be a she, will follow what Ruth Bader Ginsburg did during her confirmation hearing and just say that it would be inappropriate for her to offer any hints or suggestions about how she might rule in a case that would be likely to come before the court.

As to Barbara Lagoa, people I know who know her like her a lot. She’s Cuban American. She went to Columbia, Columbia Law School, in private practice for a little while. She did pro bono work for the Miami family of Elian Gonzalez. She was an assistant US attorney, federal prosecutor in Miami for a few years.

She has been a judge for quite a long period of time. She was appointed to an intermediate appellate court in Florida by Gov. Jeb Bush in 2006. She served on that intermediate appellate court until January 2019 when Gov. Ron DeSantis named her as the first Cuban American to the Florida Supreme Court.

She did not stay long on the Florida Supreme Court because President Trump plucked her off of that court and nominated her to the 11th Circuit where she actually was confirmed quite handily. I think the vote was 82 to 15, but she’s only been on that court since December of 2019.

She hasn’t issued rulings in these significant number of cases. Although recently she did join an en banc majority. It was a 6 to 4 ruling upholding Florida’s felon voting law, which required felons to serve their entire sentence, including paying all fines and restitution before they’re eligible to have their voting rights restored.

She joined the majority opinion that was written by Chief Judge Bill Pryor of the 11th Circuit and one thing, which I took great part in—so, Judge Pryor not only wrote the majority opinion, he wrote a one-page concurring opinion that was quite bold in which he said:

The role of the judge is not to be on the right side of history. The role of the judge is to follow the law, be a good judge—whether it is popular or not—and stand on adherence to the law and the strength of one’s convictions and not bend to the popular whims of the day.

One other judge joined that concurrence, Judge Barbara Lagoa.

Trinko: Interesting. So of course the most recent confirmation hearing was Brett Kavanaugh’s and that was, to put it mildly, very ugly and divisive.

Do you think conservatives learned lessons from the confirmation of Kavanaugh? Do you think the left learned lessons? And how do you think that the Kavanaugh hearing or its shadow could affect this upcoming confirmation process?

Malcolm: I have a variety of answers to that. I’m not sure the right learned much because these were lessons they had already learned through the Robert Bork and Clarence Thomas confirmation hearings, which also involved, certainly in the case of Thomas and Kavanaugh, the politics of character destruction.

So, these vacancies don’t come up very often. There were only nine of these justices. The Supreme Court considers all sorts of issues, statutory cases, important constitutional cases that define our rights, separation of powers, etc.

Indeed, the court takes on a lot of issues that I personally think they shouldn’t take on and should leave to the democratic process, but because they take on these hot-button issues, senators want to know the personal beliefs of these.

They want to get guarantees as to how these judges or nominees are going to rule in individual cases and they get frustrated when they don’t get answers that they want to hear. And sometimes they reach out for more personal attacks in order to try to damage or defeat a nominee.

This is going to be tough. I don’t think that it will be very credible to accuse either Barbara Lagoa or Amy Coney Barrett if one of them is the nominee of having attempted to rape somebody in college, which was the allegation against Brett Kavanaugh.

I think that both of these women, they’re charming and quite poised, who have been through a confirmation process recently. I think the Democrats are going to have to think very long and hard about how they attack these nominees because if they’re viewed as having overplayed their hand, that could have an effect on how the electorate and how undecided voters view them.

It will be particularly interesting, I believe, to watch how vice presidential candidate Kamala Harris, who is on the Senate Judiciary Committee, approaches this hearing.

Trinko: You brought up the nine justices, which in most of our lifetimes that’s been the status quo, but what is the history of how many justices there have been in the Supreme Court? Have there been court-packing attempts?

The reason I asked this, of course, is because Reps. Joe Kennedy and Jerry Nadler, who’s chairman of the House Judiciary Committee, both tweeted over the weekend comments that indicated that they think the Democrats should add more Supreme Court justices if a Trump nominee gets through.

So is this a viable proposition and how does it fit into the larger picture?

Malcolm: [Let] me go over the history of that and then I’ll tell you whether I think it’s a viable proposition. There is nothing in the Constitution. It just says that there shall be a Supreme Court and such inferior courts as Congress may establish.

The number of Supreme Court justices is established by statute and it has changed over time. Although there have been nine justices for a long time, there was one serious attempt in our nation’s history to try to pack the court.

President Franklin Delano Roosevelt was very frustrated that a majority on the Supreme Court were issuing rulings striking down large portions of his New Deal. He didn’t like this. So he proposed a plan to basically pack the court—a number of the justices were elderly—that basically said that he would get to name another justice for every justice who was over 70.

That did not happen. It did not happen for a couple of reasons. One is he could not get enough democratic support. They controlled the Senate at that time, fairly substantial majority. He couldn’t get enough of the democratic senators to go along with that plan.

One of the reasons why he couldn’t garner that kind of support—and this has been referred to historically as “the switch in time that saved nine”—is that after Franklin Delano Roosevelt put forth his court-packing plan, one of the justices, I think it was Justice Owen Roberts, started changing his votes and started voting with what had been the four dissenters to uphold large portions of the New Deal.

And once Justice Roberts changed his vote and the New Deal was being upheld and not being struck down, I think some of the air went out of that balloon in terms of that effort to pack the court.

Now, I think it is likely that if the Democrats keep the House and take control of the Senate and win the presidency, that they will pack court, not just the Supreme Court, by the way. They’ll probably add additional slots to the lower federal courts of appeals and additional district court judges too.

The last time that happened on any kind of a broad basis, not the Supreme Court, but lower courts, was under Jimmy Carter. So I think it’s highly likely that they may do it anyway.

But certainly if President Trump pushes through a nominee and he loses and the Senate is retaken by the Democrats, I think it’s a virtual certainty that they will pack the court.

The biggest impediment to them at the moment is that while the filibuster has been done away with—nuke is the phrase that was used, the nuclear option was used to do away with the filibuster or nominations—the filibuster still lives for legislation.

And again, you’d have to pass a statute to change the number of justices on the court. But I think the Senate has Democrats that have already made it quite clear that they are fully prepared to go nuclear on the legislative filibuster, too. And if they do that, all they need is for the House to pass something, 51 senators to pass it, and for a president to sign it.

Trinko: To change tack, many conservatives have been frustrated with the recent decisions by Chief Justice John Roberts. Justice Neil Gorsuch also disappointed some conservatives with his decision in a recent ruling on Title VII and gender identity. We also have Republican Sen. Josh Hawley proposing that it’s time for a litmus test on abortion for judicial candidates.

So, do you think conservatives need to vet Supreme Court nominees any differently than they did in the past or how should conservatives approach this?

Malcolm: Well, it is certainly true that there have been rulings, obviously, the Bostock case, which you alluded to that was written by Neil Gorsuch, several cases, the two Obamacare cases, the DACA case, the citizenship question on the census, the June Medical, the abortion where Chief Justice Roberts—

Trinko: John, you’re just putting me in a bad mood at this point.

Malcolm: Well, I’ll say this, look, even your friends, even people who you like and admire who will rule the way you like 90-plus percent of the time are occasionally going to disappoint you.

I mean, even Antonin Scalia—and no conservative would say that Antonin Scalia was anything other than a fantastic justice—joined in an opinion that held that burning an American flag was protected speech under the First Amendment. And he wrote an opinion called Employment Division v. Smith that people of faith believed really watered down the Free Exercise Clause of the Constitution.

So, even great justices whom you like and admire will occasionally disappoint you. These are independent-minded men and women, and you look to see whether they are issuing opinions with fidelity, even if you think they got it wrong, or whether they are really tacking to the left, which many Republican appointees—John Paul Stevens, David Souter, certainly Earl Warren and William Brennan—have done.

Now, I understand that frustration. And I understand the desire of some to say, “The vetting process has not worked well. We need to have a litmus test.”

I am not a fan of litmus tests for a variety of reasons. One is I think that judges take an oath that they are not going to pre-judge cases until they are presented with a case and consider the arguments of the lawyers in any amicus curiae that weigh in on an issue. And I think that that is something that judges should take very, very seriously.

The other thing is that Josh Hawley said, “Well, I want to have a litmus test on Roe v. Wade. And … anybody has to have said before they were nominated what their views were.”

Well, if you went with that, then there are some justices like David Souter who probably get through. And there are other justices like Clarence Thomas—who was asked about this in his confirmation hearing, he said, “Look, I focused on other issues. I haven’t spent a lot of time thinking about Roe v. Wade”—who do not get through. And far as I’m concerned, any rule that would keep Clarence Thomas off of the Supreme Court is a bad rule.

Trinko: Let’s switch to Ruth Bader Ginsburg’s legacy. She served nearly 30 years on the Supreme Court and before that obviously had a long career as a lawyer. How will she be remembered in the legal world?

Malcolm: Well, she was a giant in the legal world in a way that actually very, very few lawyers can reach. She is the equivalent for women’s rights that Thurgood Marshall was in terms of the rights for African Americans.

She graduated from Columbia Law School. She was at Harvard for three years and then she transferred to Columbia because her husband had gotten a job in New York, finished, tied for first in her class when she was at Harvard. I think she was the first woman on the Harvard Law Review. She struggled to get a job because she was a woman. Then she became a professor.

And then she started in 1972 the American Civil Liberties Union’s Women’s Rights Project. And she mapped out a strategy, a very successful one, to advance women’s rights. She argued six seminal cases, winning five of them before the U.S. Supreme Court and lots of cases in the lower court. So in terms of advancing women’s rights, she is clearly a legend and deservedly.

She then served with distinction for a number of years in the D.C. Circuit Court of Appeals and 27 years on the Supreme Court where she was certainly a liberal icon.

So while she certainly left her mark as a judge on the D.C. Circuit and a justice on the Supreme Court, where she really left her mark was as the lawyer.

To show how much respect she had in the legal community and how different times were, even though she had started this ACLU women’s project where a lot of Republicans did not like the positions that she advocated for, I think she was confirmed something like 96 to 3. And on the flip side, Antonin Scalia was confirmed … either 98 or 99 to nothing. But those times are long gone now.

Trinko: Speaking of those times in your op-ed for The Daily Signal with Elizabeth Slattery, you guys talked a lot about what great friends she and Scalia were. And it really does seem to be the sort of friendship that is a little baffling in 2020. And also, sadly, it seems to be going out of vogue in Washington, D.C. So why were these two such pals?

Malcolm: I think they knew … the importance and impact that they had had on the law. They served together on the D.C. Circuit before they were justices on the Supreme Court. I think they admired each other’s writing abilities and legal acumen, and they shared a lot of common interests.

Most prominently, I suppose, that everyone knows about is they both loved the opera. And actually I love the opera too. And I would see them at the opera together. They were in operas, the Washington National Opera, on occasions. And they obviously enjoyed each other’s time.

I remember speaking and not with Justice Scalia, but with Mrs. Scalia, Maureen Scalia, and she would just wax rhapsodic about what wonderful people Ruth and Marty Ginsburg were.

At one point I remember the two of them were being interviewed and were asked about the friendship—which many, many people consider very bizarre—and Justice Scalia looked at her and said, “Other than her legal opinions, what’s not to like?” And they fortunately were able to have respect and admiration for each other.

Clearly they disagree without being disagreeable and could put aside their political and legal differences to forge this great friendship. And you are right, those sorts of relationships are now going the way of the dinosaur.

Trinko: Last question. We are seeing a ton of interest in the Supreme Court nomination. And in recent years, interest seems to have only grown. A lot of donations flow into both sides. And while that’s great for you, you’re head of the Legal Center, do you think it’s good for America that we care this much about who’s on the Supreme Court? Is this what the Founders had in mind?

Malcolm: Well, I think the reason it’s not great for America is also the reason why the Founders would have been befuddled, which is the Supreme Court, by expanding areas of the Constitution—so just in my opinion—finding a right of privacy, expanding the Commerce Clause so that they not only consider commerce that happens in-between states, but they get into a lot of issues about things that happen totally within one state that had the most minor of economic impact.

They’ve expanded things like the General Welfare Clause. Instead of saying that a law has to apply to the general welfare, it now applies to bridges to nowhere in Alaska. That’s good enough to pass the general welfare test.

Because the Supreme Court has expanded the Constitution in this sort of way through living constitutionalism, the Supreme Court now gets involved in so many issues that the Founders would have believed should have been left to the democratic process.

And because the court gets involved in all of those issues, the public comes to view them as super legislators. And if you view them as super legislators, then they kind of care about how they vote on the issue that you care about. And that’s why these things become blood feuds.

Trinko: Well, John, thank you so much for making the time to talk to us today.

Malcolm: Good to be with you.