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Dean John Eastman On The Powers Of The Senate Vis-à-vis The SCOTUS Vacancy

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Professor John Eastman, formerly Dean of the Fowler School of Law at Chapman University and now Henry Salvatori Professor of Law and Community Service and the head of the Claremont Institute’s Center for Constitutional Jurisprudence, joined me on today’s program to lay out the basics of the Senate’s and the president’s authorities when it comes to the SCOTUS vacancy.  Every network should be competing to book Dr. Eastman for their shows on the SCOTUS vacancy.  Not only was he formerly a clerk to Justice Thomas on the Court, he was a friend of the late Justice Scalia and a participant in all of the confirmation battles back to the beginning of this era when Judge Bork was slandered in the summer of 1987.




HH: Ordinarily, I replay a show that I taped a long time ago with Richard Norton Smith on the greatness of the presidents who have held that office. But this sad weekend, I flew back from Washington, D.C, from Rhode Island and New Hampshire the week before thinking that I would have to put that aside due to the passing of a legal giant, Antonin Scalia, and Judge Scalia’s passing igniting a war between the left and the originalists in the United States. And much misinformation, so much misinformation, that I spent most of yesterday’s long plane flight from D.C. back to California tweeting out basic law, and thought I would ask my friend, Dean John Eastman, dean emeritus at Chapman’s Fowler School of Law at Chapman University, my colleague teaching Constitutional Law there for many years, to join me. Dean Eastman, welcome, great to have you.

JE: Thanks very much, Hugh, and a very sad weekend for Justice Scalia and his family, of course, but also for our understanding of the appropriate role of the Court in Constitutional adjudication. This is a devastating loss.

HH: Let’s pause for just a moment. I did not know Justice Scalia except for the two weeks that he was kind enough to take me into his chambers when my judge was ill in 1983 when he was a judge in the D.C. Circuit Court of Appeals. But you knew him quite well as a Clarence Thomas law clerk, and then through the years of the Federalist Society events. I wasn’t even on campus when he visited the Fowler School of Law at Chapman University. Give people a sense of your personal recollection of the man.

JE: Well, you know, a great intellect, and jovial in his nature, even though he could sometimes be biting in his dissents. But also addressing the argument, never, never making personal aspersions. But he loved the fight. He loved the debate as well. I remember when we invited him out to Chapman, he asked me what do you want me to speak on, and I said Justice, whatever you want. And so he looked me right in the eye and said Eastman, you’re wrong about Lochner Vs. New York, so I want to talk about Lochner V. New York.

HH: (laughing)

JE: (laughing) And we had a wonderful reenactment of Lochner V. New York with him playing the role of the chief justice, our students filling out the bench with him, I, arguing on behalf of Joseph Lochner, and then-Attorney General of California, Bill Lockyer, arguing on behalf of New York. And it was a grand exchange, both fun, lighthearted, but also deeply philosophic.

HH: There’s a funny story that you told me about that, the shower the Justice Scalia used that came equipped only with paper towels. But we’ll tell that story another time. I like to also say he was a giant of the language, not just of the law, such a brilliant writer that even if you disagreed with him, you could not but marvel at his command of the language.

JE: Well, that’s right, and I think that one of the most telling tributes that has come in to him over the weekend is from his good friend, but not political ally, ideological ally on the Court, Ruth Bader Ginsberg. And you know, most people think that the justices get angry at Scalia’s biting criticism in his dissenting opinions in particular, and she said no. They’re clever, but they make a point, and in responding to his points, which always are just fundamentally sound in logic, it made her opinions stronger, even if she disagreed with the point he made. And I think that was a tremendous tribute.

HH: Now I also point to Cass Sunstein and many other members of the left who acknowledge his brilliance. I was in a green room yesterday with Bob Woodward and David Axelrod talking about the amazing man that was Antonin Scalia, and the Grand Canyon-sized gap he leaves on the Court. But that’s to what we must now turn, because I spent the day battling the left’s attempt to flood the zone with misinformation, John Eastman. So let’s begin with the Constitution, and I go to a June 26th, 2014 opinion by Justice Breyer writing for the unanimous Court, but for five justices who joined him in National Labor Relations Board V. Canning, which simply says, it begins, “Ordinarily, the president must obtain the advice and consent of the Senate before appointing an officer of the United States, U.S. Constitution, Article II, Section 2, Clause 2. But the recess appointments clause creates an exception.” It’s, and end of quote from the opinion of NLRB V. Canning. I begin there, John, because there just is no doubt the Senate ordinarily must provide the advice and consent of its collected members before anyone assumes the role of a justice of the Supreme Court.

JE: There’s no question that that’s the case. And even if there had been a statute adopted utilizing the alternative means of appointment, which the Congress can appoint, direct the appointment of some officers of the government in the president alone or in the courts of law. That only applies to inferior officers. It clearly does not apply to Supreme Court justices, which means the president clearly has Constitutional authority to send up a nomination, but that nomination cannot become an appointment until it has received the advice and consent of the Senate.

HH: Now what I want to go over with is just the law with you, about recess appointments and about appointments. And we can argue about the politics later. That’s why I’m not making this a Smart Guys segment, but rather simply just going over the law with former Supreme Court clerk John Eastman, formerly dean of the Fowler School of Law of Chapman University, 20 years in the lists of Con Law professors, and perhaps the most revered center-right specialist in America. And if any television bookers are listening or reading this transcript, they ought to call Chapman University and drop John Eastman a note. By the way, John, how do people find you if they want you to come on their shows to clarify what is becoming quickly from the left’s point of view a muddled situation?

JE: Well, they can call me at 877-855-3330, or send an email to me at our Claremont Institution address,

HH: And that is, I encourage you to do that, because I have seen so many stupid things written this weekend about this, and people trying to say that we’re hypocritical, because we complained about the filibuster of 2001-2005 executed by Senator Leahy, and about Charles Schumer’s statement in 2007 that he made at the U.S. Constitution Center, I believe. I want to play that, about when and how, the American Constitution Society, about when and how President Bush would be allowed to act in the last 18 months of his presidency. Here’s Senator Schumer.

CS: That we should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances. They must prove, they must prove by actions, not words, that they are in the mainstream, rather than we have to prove that they are not. So in conclusion, in the end, these three questions provide the foundation for thinking about how we ensure that our Court reflects what America wants.

HH: All right, enough of that. I just wanted to point out what Senator Schumer’s 2007 take on this, and John Eastman, Senator Leahy installed an embargo of all judicial appointees at the appellate level that did not meet his personal tastes from 2001-2005, which included, before he became a judge of the D.C. Circuit, the now-Chief Justice of the United States Supreme Court, John Roberts. But he 27 times interposed cloture obstruction to consideration of nominations. This is, it was frustrating to us, but it wasn’t unconstitutional.

JE: Well, you know, I argued that there’s a difference between the filibuster for judicial nominees and for ordinary legislation, and I argued that what the Democrats were doing there, which is the wholesale filibuster, may well have been unconstitutional. But my views did not prevail at the time. And the Democrats used the filibuster. And we’ve got to keep this in context. Schumer at one point, and Harry Reid at one point, claimed that they were just reacting to the failure of Republicans to approve a number of Clinton appointees during the 1990s. But of course, that was a reaction to the Democrats’ refusal to approve a number of late-term Reagan appointees, and also Bush 41 appointees in the late 80s and early 1990s. And George Bush 43, when he came into office in 2001, proposed to get rid of this tit for tat blocking of each other’s nominees by appointing two people to the 4th Circuit Court of Appeals. One had been a Clinton nominee, and the other, his dad’s nominee from 1990. The Democrats in the Senate promptly confirmed the Clinton nominee, but continued to block the Republican nominee. And then they carried that through, throughout most of President Bush’s term, focusing on only the Court of Appeals nominees, rather than the district court, so they could, you know, put out the narrative that they had approved a large number of judges. But of course, the critical points here were the court of appeals judges, and they were blocking them routinely.

HH: And the critical point is that there were no objections from the Democrats at that time. And now we have a much shorter period of time during a period of time when I want the Court to be center stage of the presidential election, Senate Majority Leader McConnell, backed now by Senators Ayotte, Johnson and Portman, all from swing states, all up for reelection, so this is just not going to happen, John. And it is well within their Constitutional authority not to give a hearing or a vote to President Obama’s nominee. And he is certainly welcome to make one, though.

JE: Well, that’s right, and it’s also in their authority to hold hearings and decide this is not somebody that we can have on the Court, because they don’t have a view that the Constitution is binding, that the judge’s role is to interpret, not to reinterpret the Constitution. And you know, somebody that has demonstrated, by their prior careers, that they think the law is intimately valuable to their political agenda is not fit to be on the Court. So even if we had a hearing, the likelihood that the kind of person that this president would send up to try and nail the lid in the coffin on advancing his radical transformative agenda is something that the Republicans ought to oppose with every bit of their power.

HH: I’ll be right back with John Eastman on his most important of questions. We will transcribe and post this interview and the audio to make it available to everyone so that they at least get the law right before they argue the politics.

— – – – – –

HH: John Eastman, what I want to make sure we cover, we may disagree on tactics. I would not offer anyone a hearing. I even tweeted out today that if they nominated John Eastman, I wouldn’t give him a hearing, because it’s not about the individual. It’s about the institution. I want the institution to be center-stage of this presidential election, because on so much hangs this next Supreme Court confirmation, so much hangs – Hobby Lobby, religious freedom, the rights of the unborn, everything – gun rights, everything hangs on this appointment. And therefore, I don’t want it to be about an individual. I don’t want to vote up or down. I don’t want to Bork anyone. I just want to make it clear it’s not about President Obama. It’s about the presidency, and it should be decided at the general election, and that person should be empowered to name not just one, but probably two or three justices. But let’s talk about recess appointments, because the decision of NLRB V. Canning, five members of the Court in a unanimous decision, but five ruled that three days is too little of a recess, but we will have a period of time, I believe, during which President Obama will be empowered to simply appoint someone, will we not?

JE: Well, you know, it depends on whether you accept the mission creep on the Recess Appointments Clause as it has occurred over the last century, or if you go back to the original understanding of that clause. The Court struck down the gamesmanship that occurred with him making an appointment when the Senate wasn’t really even in recess, utilizing the exact same pro-forma sessions that Senator Harry Reid invented in 2007 to prevent President Bush from making recess appointments. But the clause actually is much more restrictive than that. It was designed to allow the president to make emergency appointments when something happened when Congress was out of session, not, you know, away for a weekend, or even a weeklong Easter break, but for months at a time in between the legislative session so that you wouldn’t be going without Secretary of War in the middle of a war until Congress could get on their horseback to get back to Washington, D.C. to confirm your appointment. That’s what the clause is there for. And the notion that it’s just kind of a default way that the president gets to avoid the confirmation process really is a complete modern invention.

HH: It is a modern invention, but it was upheld by the Court last, two terms ago. And so we have a modern decision that says the president can act in inter and intra session recesses. But the Senate can also block him from doing so by staying in session, I believe, until the end. And I’m simply unclear on this. Will there be a gap during which time the President can appoint his nominee to a recess appointment? And when would that recess appointment then expire?

JE: Well, the recess appointment would expire at the end of the next session of the Congress. So that would mean in December when the current Congress sitting ends. And that would expire, and we would have a vacancy again beginning January 3rd when the new Congress elected in November takes office.

HH: And so let me pause on that. So you’re, that’s my understanding, but I was unclear whether or not if the president appointed after this Senate adjourns, sine die, in December, that recess appointment would end on January 4th of 2017, and the vacancy would recur. Is that your understanding?

JE: That’s absolutely correct, unless in the interim, the Senate has consented to that appointment and converted the temporary recess appointment into a permanent appointment to the Court.

HH: So in reality, the Senate Republicans can indeed block even a recess appointment if the president does not act during the current recess to appoint a justice.

JE: Well, that’s right, and you know, and given the fact that in the old Canning case, the Supreme Court said that when the Senate is in pro-forma sessions, they are not in recess, and no appointment can be made. The current Senate can do exactly what Harry Reid did in 2007, which is even when they’re gone for more than three days at a time, have a pro-forma session every third day to prevent them from being in recess, and that would prevent the president from making a recess appointment altogether.

HH: So now let’s talk about, that’s the law. The law is the Senate and will delay. The majority leader has said so. He has enough Senate support to assure that that’s going to be the case with the statements of Senators Ayotte, Portman and Johnson over the last 24 hours. It’s a done deal. There will be no Obama appointment. And if there is one, it will only be for four or five days, or maybe four weeks between December and January of next year. That’s the law. John Eastman, my political position is different from yours. You’d like to have hearings and up or down votes. I want no hearings, no votes, and started a hashtag. Why are you right and I’m wrong?

JE: Well, you know, Hugh, it’s more of the political dynamic. I think there’s going to be intense pressure brought to bear on the Senate to give the president’s nominee a hearing. And I think it’s perfectly appropriate for them to say we’re not going to do this within the final months of the president’s term in office. But it remains an open question to me whether they’re going to have the backbone to sustain that position. So I’m not disagreeing with you that that’s what they ought to do. But if they do feel pressure to hold hearings, I also think they ought to really look hard at the nominee that the president sends up. And if that nominee is not willing to fulfill the oath of office, which is to apply the Constitution as written and not make it up as they go, then they would be perfectly right in rejecting that nomination and telling the president send us back to the drawing board. And if the president sends up another like-minded individual who is not going to faithfully apply the Constitution, then they ought to reject that one as well. And at some point, we’re going to have a new president elected on a platform of putting judges on the Court who actually do the job of judging rather than do the job of legislating from the bench and altering or ignoring the Constitutional restrictions on our government.

HH: And I would instead argue that although that will work out fine, they are not going to be for turning. They won’t have round heels on this, or they’ll be wiped out at the election, because Republicans won’t support Republicans. They’ll defect in large numbers. But I would like to make it about the institution and focus everyone, Hillary Clinton is going our job for us here, and Ted Cruz has been arguing it all day as did Marco Rubio yesterday, which his everything hangs on this next appointment, and those that follow, our family rights, our religious liberty rights, our rights for the unborn, our rights to hold weapons, all of this stuff, could we have, could Justice Scalia have given us a better legacy than an election devoted to the Constitution, John Eastman?

JE: No, and I think you’re absolutely right. Look, I mean, it’s often been an issue for kind of the solid wings of each base that who the nominee, who the appointments to the Court are going to be. But that issue has rarely if ever broken through to kind of the general electioneering of a presidential campaign. Justice Scalia’s untimely demise over the weekend makes it clear that what role the Court plays in our system of government is going to be a critically important part of that presidential campaign. And so we think that the courts can decide major controversial issues without, and contrary to the input of the people as they did last year with the same sex marriage case? Or do we think the Court is bound by the terms of the Constitution that we the people enacted? And there is a fundamental difference on that question between the two political parties right now. And Hillary Clinton and Ted Cruz are the ones leading the charge articulating those fundamentally different views. Do we live in an autocratic, unelected regime run by nine black robed individuals, or are we the people the ultimate sovereigns in this country?

HH: And it was Justice Scalia that once decried the rule by a majority of nine unelected justices. I believe that was in his dissent in Planned Parenthood V. Casey. But John Eastman, thank you for joining us. I encourage all of the members of the mainstream media and beyond to avail themselves of Dean Eastman’s expertise. Hard to find people who both knew Scalia, who have taught the Constitution for as long as the dean has, and who’s in a position to articulate with great specificity the Constitutional parameters.

End of interview.


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