Adam J. White, who authored this terrific piece on the aftermath of the retirement of Justice Kennedy, joined me this morning to discuss the article and some of the potential nominees like 6th Circuit Judge Raymond Kethledge (who I think of as Gorsuch 2.0) and D.C. Circuit Judge Brett Kavanaugh:
HH: I wanted to get a few words in about the elite 8 of the Supreme Court nominees led by, I believe, Judge Raymond Kethledge. And I wanted to do it with Adam J. White. It’s a little spooky to read you Adam’s resume. He’s a research fellow at the Hoover Institution. I’ve been a media fellow there. He probably has to deal with Marlon Bateman, our old non-producer. He’s the executive director at C. Boyden Gray center for the study for administrative law. I’ve known Boyden since 1980. He teaches at the Antonin Scalia Law School at George Mason. Judge Scalia was very nice to me when I was a D.C. Circuit clerk. He’s a member of the Administrative Conference of the United States. I used to be a member of the Administrative Conference of the United States. He clerked on the D.C. Circuit as I did, and he began with Baker Botts as I did. So this is like talking to myself 30 years ago. Adam White, welcome.
AW: Well, this is great, Hugh. Am I talking to myself 30 years from now?
HH: Your hair’s going to be white. I’ve got to tell you, you’ve got glasses, your hair’s going to be white. So tell me, where did you go to law school? I can’t find that.
AW: Oh, well, please don’t hold it against me. I went to Harvard Law School.
HH: Oh, one of those. You know, one of my arguments for Kethledge is that we’ve got 8 Harvard-Yale law products, even though Justice Ginsburg graduated from Columbia. She did her first two years at Harvard. Don’t you think we need a little diversity on the Court when it comes to schooling?
AW: Yeah, I think so. I mean, Kethledge looks great. A lot of the candidates look great. But in general, I think that’s right. A little bit more diversity in their education would definitely not hurt.
HH: Well, let me go to your magnificent piece in the Weekly Standard. It’s the reason I called you up and asked you to come on today. Adam White, by the way, can be followed at Twitter, @AdamJWhiteDC, and I recommend it highly. In the Weekly Standard, you write, “It’s hard to think of a better way to galvanize Trump skeptical Republicans for 2020 vote than to preemptively announce a Democrat Court packing agenda for 2021. If law professors hadn’t started vowing that the next Democratic president would pack the Court, then a pro-MAGA superPAC would have made it up.” More prophetic words could not have been written, Adam White. Why are lefties always intent on going a bridge too far or over the cliff?
AW: Well, they really, a lot of folks are losing their minds since last Wednesday, and what I was referring to there was a couple of law professors were on Twitter calling for the next Democratic president to pack the Court, add six new seats to the current nine, and fill them all with judges just in a fit of pique over President Trump nominating this new justice to replace Kennedy. That’s not their only sort of goofy hair-brained scheme that’s popping up on Twitter and elsewhere. There’s one law professor who wrote in the New York Times that a president under a cloud of investigation should not be allowed to pick the judges who might someday hear his cases, which if you have any passing familiarity with the last three decades, you’ll know that Reagan, Clinton, George W. Bush all appointed justices while they were under some sort of investigation, and on and on. I saw a proposal last night to investigate Justice Kennedy before the Senate Judiciary Committee votes. They’ve all really gone overboard, and I think it’s because they realize what they’ve lost with Kennedy’s retirement, and that was the point of the Weekly Standard article. The fact is that Roe, and I have my doubts that Roe or Obergefell will be overturned anytime soon or maybe ever at all, but I don’t think that’s the point. I think the reason why so many on the left are losing their minds right now is that they assumed that the Court would continue to expand those rights over time and roll back religious liberty and other things when they run up against the rights to abortion and same sex marriage and so on. And it’s the loss of that future, the loss of that protection that really has them all aflame. I compared it to JFK’s Camelot. This was Anthony Kennedy’s Camelot. And it’s gone now.
HH: The prospect of Secretary Clinton replacing Justice Scalia and Justice Kennedy with two hard left jurists such as dominate the California Supreme Court, and I think she would have gotten at least one of her picks from there, was indeed the prospect of rule by the philosopher kings of Plato’s Republic. It was going to be nine robes deciding everything. And I think it would have gone far beyond upholding the most liberal laws and striking down the conservatives. I think every redistricting scheme that came before the Court would have been upheld if it favored Democrats and struck down if it favored Republicans. Justice Breyer told me, Adam White, in my California studio sitting five feet from me, his biggest regret was the redistricting cases. I held my breath until Gill came down. And if they pick Kethledge or Kavanaugh or one of the very solid nominees, that door is shut for a while. Would you agree?
AW: Well, I don’t know where those individual justices will come down on the redistricting issues, but I think that’s right that just two years ago, Democrats, folks on the left were looking ahead to a much different Court. I mean, right now, folks are saying Trump should nominate Merrick Garland. Democrats themselves would not commit to re-nominating Merrick Garland after Hillary Clinton’s election. Hillary Clinton wouldn’t commit to it, because they were looking for something much more aggressively progressive, and that’s gone.
HH: I remember President Obama telling the Republicans I won, you lost, and that’s what the President’s going to do with this nomination. But I want to go to the administrative state, because you study it at the Boyden Gray Center. Having practiced, after I left DOJ and the Reagan administration and the White House, etc, I went and practiced for 30 years on the West Coast with the regulatory agencies. And the administrative state is so vast and so many people don’t know about it unless and until they run into it, and it’s so destructive of individual liberty that it seems to me the market is going to factor in what will happen with certainty, with reliability, with skepticism towards Chevron. What do you think the broader market will think of a reliable Supreme Court that isn’t sending down thunderbolts, but is very much on the side of the applicant to an agency and their liberties?
AW: Well, I was just thinking if I had, if I were better at betting on the market, I’d be doing other things, I suppose. I’ll say this that one of the real virtues in a lot of the names we’re seeing so far like Judge Kavanaugh especially, who really is the leading judge of his generation on this particular issue, is this increasing skepticism among conservative judges towards some of the balances that were struck over the years, especially the balance that was struck by Justice, well, eventually by Justice Scalia and others, in Chevron deference, this idea that the courts are there to interpret the law, but most laws are ambiguous enough to leave room for agencies to take the lead in interpreting them and making policy decisions. There is a conservative case to be made for that. It was made over and over again, especially by Justice Scalia, and for your legally minded readers, I really encourage you to read Scalia’s 1989 Duke Law Journal article on Chevron deference. It’s really eloquent. But the fact is what we’ve seen now three decades later is much more arbitrary government power, much less judicial interest, and actually thinking seriously about what statutes mean. And seeing Kavanaugh and others point out the fact that the pendulum has swung too far in the other direction and it’s time for a correction, I think, would improve the rule of law, which in turn improves the markets and everybody’s abilities to have confidence in what the law will be tomorrow based on how the law’s written today.
HH: And I believe that’s one of the reasons why Judge Kavanaugh is a very attractive candidate. But I’d encourage everyone, and I’ve tweeted it enough that they can find it. The article is called Ambiguities and Agency Cases: Reflections After Almost 10 Years on the Bench by Judge Kethledge. That’s what made me a convert…
HH: …is because he talks about Chevron. He talks about wading into the thicket of a statute not because it’s particularly easy to do, but because you just don’t want to automatically find ambiguity where none exists. So let me to go the politics of this. Assume for the moment that Kethledge and Kavanaugh, and even Judge Barrett, though we don’t have a paper trail, or someone like Judge Willett or Judge Stras or Judge Larson or Judge Tharpar, all of them, they’re great judges, and I’ve skipped over. I don’t mean to intend to skip over any of the 8.
AW: Of course.
HH: When they go to the Senate, it seems to me Democrats are banking on a meltdown. That’s the only thing that saves them, right, because they’re not going to break the Ginsburg precedent and say anything bad about any particular area.
HH: Who is least likely to meltdown is actually a big consideration for me. And what do you think, Adam White?
AW: Well, you just said a second ago, you pick a few names, you don’t mean to slight the others. I don’t mean to slight the other candidates, but it, just looking in terms of poise and ability to sustain the fire that he or she is going to receive from Senate Democrats, on that point alone, I quite like Judge Barrett, Judge Amy Coney Barrett, because she’s been through the fire before. She was, she faced astonishing assaults from Senator Feinstein and others when President Trump nominated her to the 7th Circuit simply because of her religious beliefs. This was the hearing where Senator Feinstein infamously said that the dogma, the Catholic dogma was too strong within Judge Barrett.
HH: Lives deeply within you, I know, an infamous comment.
AW: It was incredible to watch Judge Barrett go through that with such poise, such bravery, and with such spine, that if we’re just talking about a potential nominee’s ability to hold up through a confirmation, then on that point, I’d have to say Judge Barrett would be a great pick.
HH: Well said. If I can get you, Adam White, to stay for another segment, I would like that.
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HH: Adam, you and Jonathan Adler, to a lesser extent, Ilya Shapiro and me, have been out there battling some myths. One myth is that Mitch McConnell set up a rule that governs elections of all sort, the nominations before elections. He didn’t. Another is that cloture existed for nominees forever. It didn’t. It began in 1949, according to Adler. A third is that you can’t nominate if you’re under a cloud. You blew that up. This serial manufacture of falsehood, does it help or hurt the left over a period of time?
AW: Well, you know, the left, for all that they say that they oppose gerrymandering, they keep gerrymandering all these arguments around the facts to try to somehow arrive at this location where this particular president is prohibited from filling this particular vacancy. And it’s transparent, and I think it discredits the people who are trying to advance these arguments right now. Everybody understands what’s happening. I mean, here’s a basic norm for when a president can fill a Supreme Court vacancy. When there’s a vacancy, the president nominates somebody, and the president convinces the Senate to come along and approve the nomination. It’s pretty straightforward. The Senate doesn’t have to do anything if it doesn’t want to. I’ve been arguing that since I was in law school. I wrote a law school note during the George W. Bush administration when Bush was the one trying to nominate judges saying that the Senate does not have to vote on these things. And that’s true. So for folks who are now saying that this Senate, which obviously will want to vote on a nomination from the president, is somehow barred because there’s an investigation, or investigations around this president, investigations which I do take very seriously, but to say that those investigations now prohibit this president from making, from filling the seat, it’s transparent. Everybody knows what’s going on.
HH: I agree, and I have to read your note. I have not yet read your note, Adam, but I’ve argued for a very long time that any textualist, any originalist who looks at Article II, Section 2, comes away with the conclusion that the Senate intended a majority of the Senate to decide nominations. Cloture was laid over that. And it’s gone now thanks to Harry Reid and McConnell extending the Reid Rule.
HH: But it was never there to begin with, because they used supermajority in other places. It’s impossible really to come to the conclusion that they intended other than a simple majority of the Senate. Now they do have control over their own rules, but did you talk about that in your note?
AW: No, I was pretty agnostic about it in the note. I mean, this was a long time ago. This was 2004 or thereabouts. I think I said basically, it’s up to the Senate to do what it wants to do. If the Senate wants to establish its own rules for processing these things, whether it’s the requirement of a committee vote or you know, the blue slip process, or cloture, or any of those things, those are all within the Senate’s power to make, and then make anew.
AW: Harry Reid obviously knew that.
AW: And yeah.
HH: And so a majority is always lurking there.
HH: It’s always been a majoritarian institution except as to treaties and removal. So let’s go to the next step. What happens to the Court after any of these nominees, whether it’s Kethledge or Kavanaugh or Barrett? What happens to them? I think it becomes a quieter place, a more predictable place. I also think, though, the left has yet to grasp how the cert power is going to change and how activist a Court could be in bringing forward and settling key issues. What do you think, Adam White?
AW: Well, that’s right. The arrival of a new justice always changes a lot of dynamics in the Court, you know, the interpersonal dynamics of the judges. You know, I think there are some who said, I think Jan Crawford Greenberg wrote in her great book, Supreme Conflict, that the arrival of Justice Thomas actually wound up moving Justice O’Connor further to the center as conservatives had ascendency on the Court. Justice O’Connor decided to recalibrate towards the middle a little bit. We don’t know. We don’t know how the Chief Justice is going to be in this. But you put your finger on one important dynamic, the cert dynamic, and the Court’s, the availability of more judges now to reach out and grant cert on key issues. But here’s another dynamic I would keep in mind. And it’s the interplay between the federal courts and the state courts. As now that this Court will be seen as a less reliable, especially on issues like abortion and the collision of same sex marriage with other Constitutional rights, liberal groups looking to challenge state laws will probably not want to go first to federal court when possible. What they’ll want to do is sue in state court under the state constitution in the hopes that the state supreme court will invalidate the law they’re challenging. And those decisions by a state supreme court aren’t appealed to the U.S. Supreme Court.
HH: Excellent, excellent point. You’ll see a lot more Golden State litigation, more Pennsylvania resdistricting sorts of cases out of the Pennsylvania Supreme Court. Adam White, keep coming back. Remember I was the first one to call you, because you’re going to get, all of a sudden, everyone’s going to want to talk to Adam White. Just remember who brought you to the dance first, Adam.
End of interview.