Please welcome Dahlia Lithwick.
-♪ -(cheering, applause)
-Great to have you back, Dahlia.-Thank you for having me back.
And what a timeto have you back.
This is, like, your Super Bowl.
(laughs)Except so depressing.
It's, like,the world's saddest Super Bowl.
So it's like your AtlantaFalcon-supporting Super Bowl.
Yeah, yeah, yeah. It's like...
it's like sitting in a room,trapped in a room
with the oldest peoplein the world, on the senate.
Somebody,I think Jeff Toobin tweeted
that the combined ageof the first four questioners
this morning in the senatewas 2,000 years old.
-That's funny.-Like, really old. -(laughter)
Let's, uh, let-let's, uh--for those who don't you,
you are really an expertwho's dedicated your time
to the Supreme Court.
We haven't seen a more excitingtime in the Supreme Court,
and Neil Gorsuch hasreally upped the stakes,
because he is Trump's pick.
On the surface he's qualified,
and yet the Democratsdon't know what to do.
Do they block him... and lose?
Or do they not block himand lose?
Right. I mean, I think it's...
it's, like,do we get rolled today?
-Yes. -Or do we get rolledin a couple of years
when we get rolled againwhen Justice Kennedy
or Justice Ginsburg steps down?
Or do we get rolled both times?
Uh, and so there'sthis real tension
about, you know, is thisthe hill that we want to die on,
filibuster, cloture,words I don't understand,
you know...three-dimensional chess.
And meanwhile,as you've probably seen,
-he is sailing through.-He is having a great time.
I-I wondered thiswhen watching it today.
Do the questionsactually matter,
and does the hearing itselfactually...
Like, is there evera senator who goes,
"You know what,you just changed my mind"?
(laughs)Lindsey Graham likes--
Lindsey Graham isa force of nature--
and he likes to talkabout how he one time voted
-for Sonia Sotomayor, eventhough he's a Republican, -Yes.
and that everybodyshould be like him.
So that's generally his...his posture is
everybody here is terrible,
I am outstanding,
because one time...one time I voted
for "Sotomary," he calls her.
That's-that's, like, the linethat he keeps going back to.
But it doesn't seem like peopleare gonna change their minds.
Gorsuch, a lot of peoplehave said, is sailing through.
What does "sailing through"mean, though?
Does it meanhe doesn't have skeletons?
Does it mean he knowswhat he's talking about?
So I think that one of myfavorite moments today, Trevor,
was when Chuck Grassley,
who's the chairmanof the Judiciary Committee
from the Republican side,
said "I don't want youto talk about anything
"you've ever decided, oranything you're gonna decide,
"anything that's political, oranything that's not political.
"Don't let them drag you intotalking about your record,
"or other people's records.
"Don't talk about anything,
because they're goingto try to trick you."
And then Neil Gorsuch
has absolutely followedthose instructions.
And so what he talks about,you know,
when they ask him a questionabout precedent,
he's like,"I can't describe it."
When they say, you know,
is Roe binding precedenton the court?
He says "It was decidedone time."
You know, I think it's just--
He's really just sayingover and over--
And they say to him, you know,it's so funny,
you've written articlesabout this,
you wrote a whole bookabout this issue.
You know, he's done a lot of,sort of,
-extracurricular chitchatabout things, -Yes.
and he can't talk aboutthose either.
I like that he calls thatas well,
as my extracurricular chitchat.
-I wrote some...-Chitchat.
Let's talk real quickabout that.
People talk about Neil Gorsuchand they say,
he is very right-leaning.
The argument from manyconservatives is yes,
but he's a constitutionalist
and so he will stickto the constitution.
He cannot undo, you know,Roe v. Wade,
or will not undo, you know,gay marriage laws.
But that's not true, is it?
Well, I mean, two things.
One, there's a differencebetween what you can do
-on the federal appeals courts,-Yes.
and what you can do when you are
a justice of the Supreme Court.
So to say "I've never overturnedany cases"
has almost no meaning untilyou've been on a court
and in a positionto overturn cases.
So it's already a sortof strange thing.
Nothing he's done in the past
suggests that he's going todo X or Y, but we don't know.
It's a whole differentball game.
The rules are differentat the Supreme Court.
Do you think he'd want to?
Well, I think-- I mean,certainly he has written
in some-- he's writtenconcurrences and dissents,
and he's written things thatsuggest that there are cases.
There's one case called Chevron,
that has nothing to dowith filling stations,
but it has to do with deferenceto federal agencies,
and he's called it the"elephant in the room."
We need to get rid of it.
So he's certainly been very open
about the factin his judicial writing,
that there are some cases thathe really thinks sucks,
and that the court shouldreexamine them.
-But when he's asked evenabout that, -Yes.
when he's asked, well, soclearly you've got a marker
for what kinds of cases
you think maybeneed to be revisited,
and he can't talk about that.
Wh... If he...If he is someone...
That's a good impression of himthat you do, actually.
That's really nice.
-Golly. Golly. -You've spenta lot of time in that room.
I can't talk about that.
The elephant in the roomis the fact
that Merrick Garlandwas meant to be in that seat.
Merrick Garland was someonewho was picked by a president.
He's a judge that waspicked by a president
who had every right to pick him.
Republicans came out and said,
"We can't pick himbecause Obama is a lame duck,"
which was insane.
But Gorsuch taking this job--what does that mean
for the Supreme Court asan institution, going forward?
Well, I-I wanted to startby telling you
that Senator Al Frankentoday directly asked him
how he feels aboutthe politicization of Garland
and whether he thinksthat Garland was mistreated.
And it will surprise younot at all
to hear that Gorsuchcould not talk about that.
Um... so, uh, I...
-We don't know exactlywhat he thinks. -Yes.
We know that...Look, this is unprecedented.
We've now had a vacancy atthe court for more than a year.
Um, Justice Scalia diedon February 13,
in March Obama tapped someoneto replace him.
And, you know, I feel like
-we even talked about iton this show-- -We did.
that the Republicansin the Senate said,
"No hearing with no vote.We're not even gonna
have courtesy meetingswith Garland,
because Obama doesn't get topick someone in his third year"
by some metric that...
We still don't knowwhat that rule is,
-but it's, like, a thing now.-Yeah.
And, um, so thatbecame the rule.
And, you know, when there wereonly eight people on the court,
which there havenow been for a year,
and things get deadlockedand we have four-four ties
and the court refusesto take any interesting cases
-Yeah. -becausethey can't decide things.
It's really hamperingthe work of the court
and politicizing the court.
And yesterday, uh, Republicanson the judiciary committee,
having blocked Merrick Garlandfor a year,
turned around and were like,"We got to hurry this thing up.
"It is unseemly that the court
"is not being treatedas a judicial enterprise
"that has its integrityand we have to revere that
and depoliticize thisright now!"
And it was really crazy,because just the complete...
you know, they've completelychanged the rules.
And now that it's their turn
to have their guy up,they're like,
"We should reallygo to those old rules
where people get fastand respectful hearings."
Can I ask you a question?You are-you are in the room
when this is happening.How are you quiet?
Like, do you not, at any point,just want to be like,
You're a professional.I'm gonna give you that.
You're super professional.We're loving your writing,
we're following everythingthat you're talking about.
Thank you so much for joining usagain on the show and, uh,
good luck with Gorsuch and, uh,
-I'm glad that you can talk about it. -Thank you
-for having me. -Thank youso much for being here again.
Dahlia Lithwick, everybody.