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Talking With The New York Times’ Bret Stephens About President Trump and SCOTUS

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The audio:

06-28hhs-stephens

The transcript:

HH: Joined now by Bret Stephens, one of the very best columnists in the United States, columnist for the New York Times, longtime guest, and very vociferous critic of Donald Trump, and so just the best person to talk to this morning. All right, Bret. You know the question that’s coming. Given what we know now, are you glad that he won?

BS: No, but look, there are, there were always aspects of the Trump presidency that I liked. And when I agree with him, I say so. So one of the things that I liked was his pick of Neil Gorsuch, and I hope I’m going to like his pick of the next associate, presumptive associate justice. I’m assuming that’s your question.

HH: It is, and this comes down to my estimate of what people know or don’t know about the Supreme Court. I think he’s going to pick either Judge Kavanaugh, Barrett, Larson, Ryan, Tharpar, Kethledge, Stras, Willett. That’s my short list. Assume a good justice. What would the difference have been if Secretary Clinton had become President Clinton and filled not just the Scalia vacancy, but the [Kennedy] retirement? What do you think the difference in the country would be over the next 15, 20, 25, 30 years?

BS: Look, obviously it’s significant. And Court was something that weighed on my mind when I was thinking through the issues of the Trump presidency. We would have had another figure in the mold of Judge Kagan or Judge Sotomayor, and my own view of jurisprudence is considerably to the right of that. So you know, right now, in this particular instance, I’d rather have a Republican as president. And I’m glad that Trump has chosen I don’t want to say conventional conservatives, but sort of conservatives who stick to the original meaning of the Constitution. And so I’ve given him full marks for that, and I’ll continue to do so. There are just a whole range of issues where I feel differently.

HH: Well, I, look, I disagreed with him on family separation. I disagree with him on trade. I disagree with him on a lot of things. But I think that the Constitution is the most important thing. And I believe that two appointments by a President Clinton would have significantly disfigured the Constitution as we understand it because of the rulings not just this week, for example, in Janus, which is $65 million dollars every cycle in union dues that are looted from people’s wallets, but on especially redistricting. Justice Breyer sat in this studio and said to me his biggest regret was the redistricting cases. If a majority of living Constitution enthusiasts get ahold of redistricting, Bret, that’s the end of politics as we know it.

BS: Yeah, I don’t, that’s where I guess you and I disagree, because at any point in the past, I’ve heard this line “This is the end of politics as we know it” from, on account of one liberal policy or another. The Constitution is more than strong enough to endure justices with whom I disagree. We survived the Warren and the Burger Courts quite well and went on to win the Cold War and remained the world’s greatest superpower. We could survive one or two liberal justices as well. Oh, by the way, it’s not entirely clear to me that Judge Kennedy would have stepped down if Hillary Clinton had been president. It’s often the case, you’ll remember, with Byron White, for instance, that judges want to retire when the party that nominated them in the first place returns to power.

HH: You know, that’s a very fair point. That’s a very important point, in fact. We’re dealing with a counterfactual, which is that Justice Kennedy may very well have not retired, and may very have survived four years of Hillary Clinton and would have made that available for the next president. But if I can press a little bit on redistricting, and the Gill decision which came down, how do you understand the stakes there, Bret, because I really, this is a Con Law professor. I don’t want to sound arrogant or condescending. I just don’t think non-Con Law professors get the importance of Gill and judicial restraint when it comes to redistricting. All the other stuff, keep it. It doesn’t matter. It can go back and forth. Redistricting is the crown jewel of Constitutional restraint.

BS: Listen, you’re the Con Law professor in this conversation, not I. So you tell us why.

HH: Well, because if judges begin to engage in line drawing like they have increasingly done, Republicans will lose every one of those cases, and Democrats will win every one of those cases, and we’ll have the Pennsylvania situation where the rules of the last 240 years are out the door, and the Republican Party will be redistricted into ruin. It won’t exist anymore.

BS: Well, maybe. I agree that we should not have judges interfering in executive decisions or legislative decisions. And that’s why my view of the Constitution has typically leaned, well, I guess I should say, I don’t want to say has leaned right, but has leaned towards a proper view of what the founders intended.

HH: It’s original intent. So just to be clear, you would still not vote for Donald Trump knowing what we know now?

BS: Of course, not. I think he’s a terrible president who daily does damage to the fabric of American society. And you know, I’ve tried to call things as I see them, and I’ve applauded his decision to get out of the Iran deal. I’ve applauded other decisions that he’s made, just as, by the way, I, you know, I would have applauded, I did applaud some of the decisions Obama made to kill Osama bin Laden, not least. But the presidency is more than just a Supreme Court appointment.

HH: All right, Bret, you and I are going to have to continue the conversation another day. Follow him on Twitter, @BretStephensNYT.

End of interview.

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