My guest tonight is the SupremeCourt Correspondent for Slate.
Please welcome Dahlia Lithwick!
-♪ -(cheering and applause)
Thank you so muchfor being here, Dahlia.
Thank you so much for having me,Trevor.
Big fan of your writing,big fan of your work.
And, uh, what an exciting timeto be writing
-about the Supreme Court.-You would think.
And yet it's like tryingto bring the magic
of watching grass growto your readers.
-Do-do you really...-It'll be like, "Look it,
nothing happened again today."
Do you really thinkthat it is that boring
-with Merrick Garland?-Yes.
I think that-that, you know,the visual of him walking
through the Senate,hoping for courtesy meetings,
and Republican senatorshiding under their desks
or in their closets,trying to avoid him,
was funny for the first weekor two.
And now it's just...tragic and boring.
So what do you think could havemade it more exciting then?
Well, I think if President Obamahad nominated any Kardashian,
she would...she would have a hearing,
and we would be watching itlike crazy people.
So I thinkif he had picked anyone
but the 62-year-old Harvard guy,we might be more excited.
The safe choice, obviously.But, I mean, President Obama
came out and said the reasonhe went with a reasonable choice
was to almost, uh, demonstrate
that he's willingto be a reasonable person.
And now the Republicansare showing
that they are unreasonableby not even hearing him out.
That's exactly right.He picked someone
that a lot of the senatorson the Judiciary Committee
-had voted for, had saidlovely things about, -Yeah.
had said, "Look, if this is, youknow, the best we're gonna get,
this is a really,really good pick for us."
And now they're saying...(gruffly): "No. No hearings.
-No vote." And it's like he...-That's a great impersonation.
-Thank you, thank you.-That's exactly how they do it.
-Thank you. -That's very good.That was really good.
That's-that's Chuck Grassley.
Um, if we... if we're lookingat the people that may get into,
uh, the Supreme Court--let's say people that might be
on the Supreme Court--you have the Republicans,
who are hoping for a win.The problem is now
that their win is tiedto Donald Trump.
Uh, Donald Trump has suggesteda few interesting things.
For one, he said he may nominatehis sister, were he to win,
-which is... which is int...And she is... -That's true.
-she's liberal. Yes. -She's a-awell-respected sitting judge.
Uh, you know,she-she is liberal.
She is pro-choice.
Uh, I don't thinkthat the pro-life base
-is excited about her.-But that's assuming
that he actually goeswith his sister and not, like,
an imaginary sister,
-like a John Miller-typesituation, -Right. I-I...
where it's just Trump in a wigand a dress.
I-I like...I like to tell people,
"Welcome JusticeMiss Tennessee,"
because there's likea high probability
you're gonna get a, you know,a "Miss"... a "Miss" contestant.
And he's gonna be like,"But, look, she's smokin' hot."
-(laughter) -And that's gonna bethe confirmation right there.
Right, right, right, but he alsosuggested Ted Cruz, as well,
which-which isan interesting choice. Ted Cruz.
And even more interesting,I think, for me is the fact
that you wereon the debate circuit
with Ted Cruz at Yale.
-It's true.-You know Ted Cruz as a human.
-(laughter) -Like, you'rethe human is what I'm saying.
-And you know Ted Cruz.-Yes.
We were the twoCanadian infiltrators
of the American ParliamentaryDebate Association,
and I've know himsince I was 19.
-Is he... is he as...?-People are saying, "Oh."
-(laughter)-Yeah, they felt sorry for you.
-That was so sad.-People felt sorry for you.
They're like, "Oh, that'sa long time to know Ted Cruz."
There's a lot of sympathyin this audience.
In college, though,
Ted Cruz must have beena lot more loose and fun, yeah?
-Oh, no, no. No, no.-(laughter and applause)
No, he was... he was trapped
in his 40-something body,even in his early twenties.
-(laughter)-And he was very competitive
and very loud, as I recall.
You know that wayhe has, that voice
that he's yelling at you,even if he's...?
-Yeah. -(as Cruz):When he says a thing,
and he shouts it out,and he shakes his head.
Did he do that, as well,in school?
Every single round,you'd be, like, "Crap,"
you know, up... pushing upagainst the door of the room,
like, "Stop yelling, Ted Cruz.Stop yelling at me!"
So, Ted Cruz--out of the question.
Merrick Garland is a namethat is floated around.
A lot of people are torn because
some people are going,the Supreme Court,
especiallywith the most recent ruling,
is not doing their job.
Why would you come backwith an undecided?
Why would they not justcome back
with a four-fourif that's gonna be the case?
You know, they have two choices,
and they're both horriblechoices, for optics purposes.
One is the four-four,
where the four liberalsdo one thing,
and the four conservativesdo another.
And certainly,in this week's case
about the contraceptive mandate,
it looked like, after argument,it was gonna be four-four.
-Yeah. -Well that,A: decides nothing.
You would have had the lawin some circuits
not be the lawin other circuits,
and the court's rulingmeans nothing.
It's like, never happened.
And that's a terrible messageto send.
And it's very partisan.
The alternative isto do what they did yesterday
in Zubikand the contraception case,
which is to say,"Y'all work it out yourselves.
"You don't needa Supreme Court.
You take it back to lowercourts, and best of luck."
And that's really,kind of three-page opinion,
saying, "I think you guys canfix this on your own."
How does this help, though?
I mean, you'rein a situation now where...
there are more casesthat need to be heard.
-Mm.-For instance, in these cases,
uh, there are a few caseswhere Republicans
have lost outessentially because...
assuming that maybe MerrickGarland would have been there,
or even Scalia-- and the rulingsobviously can't be
part of it-- but these rulingsmay have gone in their favor.
No question. I thinkif you had asked me in September
what this termwas gonna look like,
it was going to be,really, the apocalypse
for the left wing of the court.
Because the issues onthe docket, you know, abortion,
-contraception, Obama'simmigration reform, -Yeah.
huge issues-- affirmativeaction is on the chopping block.
You know, this is a big term.
And almost every case thatwe thought was gonna be a gimme
for the five-justiceRepublican block has not been.
And some of them have fizzled,and some of them
have been sort ofkick-the-can'd down the road.
This was a really devastatingyear for the Republicans.
Would it be a gimme ifMerrick Garland was on, though?
Some people would assume, they'djust go, "Well, Merrick Garland
is obviously gonna ruleagainst the Republicans."
That's not clear. I thinkthat if you look at his record--
and one thing you can sayabout Merrick Garland
is that in addition to beinga really outstanding
and beloved jurist, he's been onthe federal bench for decades.
We know what he would do,
and we know thatwhile he's center-left
on a lot of issues,on things like criminal justice,
for instance,he's a former prosecutor--
he's very, very, uh,tough on criminal defendants,
-Yeah.-and that worries progressives.
So you can never predictwhat a justice is gonna do.
We've seen justicesthat seem left drift right,
seem right, drift left,but we can predict
that if he never getsa confirmation hearing
and never gets a vote,we're never gonna find out
what he was gonna do.
How long can wenever find out for?
That's-that's somethingthat's fascinated me.
I-I read up about this,and I... I...
Please correct me if I'm wrong,
but there is no time stipulation
as to how longthey can block this for.
So Republicans now say:
We will not nominatethis person
based on Obama and the factthat he is, quote, unquote,
a "lame duck," which he isn't.
But if Hillary were to come in,there's nothing that says
they couldn't block her nominations endlessly?
That's exactly right, andI'll tell you something else.
If the Democrats take controlof the senate
and Donald Trump puts upJustice Miss Tennessee,
they're gonna block herfor four years.
You're onJustice Miss Tennessee.
You're really... I like that...I feel like you've got
the inside scoopon Justice Miss Tennessee
-that no one knows about.-I'm gonna get...
And we're gonna see it happenand be like,
"Dahlia told us about this!"
I'm gonna get angry lettersfrom Miss Tennessee tomorrow.
But yeah, that's-that's...that's an interesting case.
So, you can stall this forever.
Why does nobody change that law?
That seems like a-a gaping void.
Well, it's a not a law.It's, uh, it's a... a custom.
There's an awful lot of things
that are not writtenin the Constitution,
they're not written in statutes,we just have a custom
that advise and consentmeans advise and consent,
and that it's donein a timely manner.
-What we're seeing now has neverhappened before. -Yes.
Where somebody has beenobstructed possibly one term,
possibly two.And we don't have a norm
for how we deal with that,which is a little bit
why the norm that you're seeingfrom the White House
and the Democrats is, "Aah!"Like, they don't know
what to do, becausethere's no legislative response,
there's no Constitutionalresponse, there's just
freaking out,which is also hard to cover up.
Because that's alsonot a law. Um...
if we're going forward--you're an expert in this--
you're looking at itfrom the Republican side--
they made this decisionbefore Donald Trump
was the presumptiveRepublican nominee.
Uh, the Democrats made thisdecision when they didn't know
what they would be up against.I think, in hindsight,
if they knew Donald Trumpwould have won,
they may not havegone with Merrick Garland,
or Obama may not havegone with, uh, Merrick Garland.
Looking at it now,is there a way
for the Republicansto walk this back
and say, "Okay, okay,we'll take Merrick"?
-Yeah. -"'Cause wedon't want Miss Tennessee"?
We're... You have to stopsaying that. Um...
I've said it once.
We've already heard fromseveral, uh, Republicans
on the SenateJudiciary Committee saying,
"You know, we mightbe up for lame duck hearings"
for Merrick Garlandafter the November election,
when Justice...when Hillary Clinton comes in
and picks some crazy, you know,
hairy-legged, pot-smoking lefty
and it's gonna makeMerrick Garland look like,
you know, Scalia's progeny.
And then we really aregonna want Garland.
And the hilarity of saying we'regonna wait till the elections
-and let the people decide...-Yes.
...unless it's Hillary,and then we're gonna decide,
and we're gonna do itin a lame duck session--
we've heard several peoplemake that overt claim.
Well, you know what,I think this is
a-a lot more excitingthan you make it seem.
-Oh, thank you. -Thank youso much for being here, Dahlia.
Thank you very much.Dahlia Lithwick, everyone.
-We'll be right back.-(cheering, applause)
-Thank you very much. This...-♪