CNN’s Jeffrey Toobin joined me this morning:
HH: And welcoming back Jeffrey Toobin from CNN. He is the author of The Nine: Inside the Secret World of the Supreme Court, one of the best books ever on the United States Supreme Court. You see him on CNN most nights. Jeffrey, welcome back, good to have you on the Hugh Hewitt Show.
JT: Hi, Hugh.
HH: What is your reaction to Brett Kavanaugh’s nomination?
JT: Well, I think he was probably the frontrunner all along. I think he is a highly intelligent, ethical, competent judge who will advance the conservative agenda at the Supreme Court. And if you are a supporter of the conservative agenda at the Supreme Court, I think you should be a very happy person today.
HH: I wrote in the Washington Post last night, and it’s still up there this morning, that this will be, for the first time in my adult life, I graduated from the University of Michigan Law School in ’83, that there will be five originalists and textualists on the Supreme Court. Do you agree with that, Jeffrey Toobin?
JT: You know, I don’t agree exactly. I don’t think Roberts and Alito are originalist textualists. I think they are conservative, and I think they vote almost identically to conservatives and textualists particularly in controversial Constitutional cases. But the motive analysis that they use is really pretty different from what Justice Scalia, and certainly what Justice Thomas do. I think that’s, you know, perhaps somewhat of a distinction without a difference, but I would not call Roberts and Alito originalists.
HH: Okay, we’ll disagree on that. But let me ask it this way.
HH: I believe that Justice Kavanaugh, should he be confirmed, will vote with the Chief Justice, or the Chief Justice will vote with Justice Kavanaugh more than 95% of the time for the foreseeable future. Do you agree with that?
JT: I certainly agree with that. And I think he will vote with Justice Thomas over 90% of the time. I mean, I think we are in for a very different Supreme Court than you and I have known in our conscious lifetime.
HH: But I want to assure people I do not believe for a moment that Obergefell will be reversed. Do you, Jeffrey Toobin?
JT: You know, I think it’s unlikely, but not out of the question. Remember, all it takes for a test of Obergefell is for a state to ban same sex marriage and say, you know, challenge it. I think, you know, I think that is probably the least likely gay rights decision to be overturned. But you know, if you think that the Supreme Court of the United States is going to protect gay people now, I think you are sadly mistaken. I think it’s much more likely to accommodate religious objections to serving gay people. I think if you are a shopkeeper who has religious objections to serving, you know, someone in your restaurant, to refuse to letting a gay person stay in your hotel because it’s a very creative task to run a hotel and you have a 1st Amendment right not to serve a gay person, I think that, I think those cases are going to be coming fast and furious to the Court, and I think gay people are going to be out of luck.
HH: Well, we disagree on that, but we do agree that the Chief Justice, Justices Alito and Gorsuch, joined in Masterpiece Cakeshop written by Justice Kennedy, and therefore that upheld Obergefell. I just don’t see them ever reversing Obergefell, Jeff.
JT: Look, I would say it’s unlikely.
HH: How about the California Constitution and other constitutions protect abortion rights. I do not ever see this Court or any originalist Court, textualist Court or conservative Court as you phrased it, attempting to remove from state constitutions their protection of reproductive rights. Agree or disagree?
JT: Probably agree, but you know, I think you’re sort of, you know, as you say in journalism, burying the lead. Yes, I, I mean, for the foreseeable future, abortion is going to be legal in New York and California. I don’t see any change in that for even the next few years. But you know, abortion is going to be illegal in big parts of the country relatively soon. I think Roe V. Wade is gone. I think Texas, I think Alabama, I think Mississippi, I think South Dakota are all going to ban abortion. And the states, the Supreme Court will uphold it. I think we will see huge battles in states like Missouri and Ohio and Pennsylvania about whether abortion will remain legal there, but I mean, that is a big change in American life and American jurisprudence. And I think you’re going to see doctors prosecuted in Mississippi and Alabama for performing abortions, and that’s going to be, you know, a major change in American life, which Donald Trump promised in his campaign. And I think he’s delivered.
HH: I think some states will pass 20 week limits to abortion, and maybe even 16 week limits to abortion. They will be upheld as Casey, not Roe, as rewritten. But we’ll come back to that. Let me ask you about the report this morning, denied vociferously by Leonard Leo, that there was a deal between Anthony Kennedy and the President’s team that he would step down if Brett Kavanaugh were his replacement. That was, Leonard just went out of his way to say no, not now, never ever, never. But it is widespread on the web by reliable sources. What do you think, if such a deal had been struck, it’s been denied, but what would you think of such a deal, Jeffrey Toobin?
JT: I think, first of all, I know and respect Anthony Kennedy, and I cannot believe he would ever say and ever agree to anything like that. I would not be surprised if the President said to him you know, or through intermediaries, who do you think would be a good justice, and he came back with some names that included Brett Kavanaugh. That, I think, is likely, and I don’t think there’s anything inappropriate about that. A straight up deal, I think, would be seedy. I don’t think it would be illegal. But I just don’t believe that Anthony Kennedy would be party to anything like that. But you know, with his input on a possible nominee, you know, I’m sure. I don’t think that’s out of the question or unlikely.
HH: Neither do I, but I don’t, I believe Leonard who was involved in this from day one, completely and definitively.
JT: So do, I mean, I don’t, I believe him, too, in the sense that there was no straight up deal. That just does not seem like the Anthony Kennedy I know. And it wouldn’t even be really necessary. I mean, Anthony Kennedy was, you know, was getting pretty darn old. He was tired. He wasn’t, he didn’t look or sound like he had previously. And he’s a Republican. And when Chuck Grassley, the chairman of the Judiciary Committee said hey, if anybody’s going to leave, you’d better leave, I think he took that seriously. I mean, there is the possibility, unlikely but not out of the question, that the Democrats retake the Senate in November. And I think if Chuck Schumer is the majority leader, he will shut down Supreme Court nominations as payback for Merrick Garland. So you know, it was sort of now or never for Kennedy.
HH: Let me ask you about the other judges who are over 80 – Justice Ginsberg and soon-to-be Justice Breyer and Justice Ginsburg. Do you expect either of them to retire?
JT: No, I think…
HH: Neither do I.
JT: This is politics. I mean, they are, they will wait for a Democratic president if they can. I mean, they will certainly have to reevaluate after 2020 if they make it that long, but, and I just think their retirements, you know, barring health crises, are virtually out of the question.
HH: So the key change in the Court’s jurisprudence that I’m looking for, Jeffrey Toobin, is with regard to Chevron deference, that the administrative agencies of the administrative state are going to be under a great deal more scrutiny than before. Agree or disagree?
JT: I certainly agree that Chevron deference is on the outs, although I think Chevron deference when a Democratic administration is in power will in a lot more trouble than deference through Republican bureaucrats. But I also think, you know, the social issues will return to the fore. I think affirmative action, the consideration of diversity in admissions, is on its way out. I think an expansion of 2nd Amendment rights so that states have much less limits, many fewer limits on gun control laws, are, that’s coming. Chevron deference in a Republican administration, I think, the changes will be subtle rather than large.
HH: And I also believe redistricting is off the table, that there will not be any sort of effort to plunge into the redistricting jurisprudence that exists today, and they punted last term. I think that’s great. But let me ask you finally, Brett Kavanaugh was part of a White House staff. When the Chief Justice was nominated, I got a call telling me that all of my files from my Reagan White House Counsel years would be released because of the confirmation. Do you expect that to happen with Brett Kavanaugh, and ought the White House to get ahead of that and get those papers up to a SCIF if they’re classified, to the Judiciary Committee if they’re not?
JT: Probably. Some of them will go. I think the great advantage they have, that Chuck Grassley is going to put this on a rapid schedule to get the hearings done by, you know, underway by just after Labor Day. Mitch McConnell will keep the Senate in session 24 hours a day if he has to, to get a vote before the first Monday in October. So you know, yes, I think there will be some fights over documents, but the judges here in the sense of the judges of the confirmation, are all very big supporters of the President, very big supporters of Kavanaugh, so I don’t think those document disputes are likely to amount to much.
HH: Do you expect Judge Kavanaugh to be confirmed as Justice Kavanaugh before the first Monday in October?
JT: Likely, but not certain.
HH: Do you expect Democratic votes for him?
JT: You know, I think they, particularly the three who voted for Gorsuch, Manchin from West Virginia, Heitkamp from North Dakota, Donnelly from Indiana, I think they’re going to watch which way the wind is blowing. I think if there is a realistic chance to defeat Kavanaugh, they might actually vote against him. But if he’s going to get confirmed anyway, it becomes sort of a free vote for them, and I think politically, it’s easier for them to vote for Kavanaugh than against. But I think they’re going to keep their powder dry for some time and see which way the wind is blowing.
HH: I agree with all that except, although I expect hearings in August. Jeffrey, last question, what would it take for Justice Kavanaugh to stumble? Would it require a personal peccadillo to surface, because I don’t think jurisprudentially, there is anything going to surprise us here?
JT: You know, some sort of personal matter obviously would be the biggest problem, and I certainly don’t expect that. Everything I know about Judge Kavanaugh is that he’s an honorable person and a deeply boring personal life.
JT: It’s all for the good.
JT: But you know, I do think abortion is potentially a problem for him. I mean, you know, I think, you know, there is a reason why your fellow conservatives don’t talk that much about reversing Roe V. Wade and how important that is, because most of the country doesn’t want Roe V. Wade reversed. And I think the only way to get around that problem is frankly to mislead the Senate. And you know, not all the senators want to be misled. I think Susan Collins likes being misled on this. But you know, I think it’s important to remember that most of the country, and a fairly substantial majority of the country, does not want Roe V. Wade overturned, does not want no abortion clinics in much of the country. And so I think that issue, depending on how it percolates through the system, may, may be the only sort of substantive issue that gets Kavanaugh in some trouble.
HH: Jeffrey Toobin from CNN, thank you very much.
End of interview.