Chris Wallace was off preparing for Tuesday's debate, so Brit Hume sat in to lead the conversations. Among his guests were former appellate judge and Clinton independent counsel Ken Starr and Harvard emeritus professor Laurence Tribe, both of whom are considered experts on constitutional law. Hume wanted to talk Roe v. Wade with the experts.
Tribe went first and said the nomination should have waited until we had the results of the election, and that "we've never, never jumped the gun this quickly" and that people are already voting. And he compared that to the 400 days with an open seat after the nomination of Merrick Garland.
The idea that we need to rush ahead with a lifetime appointment, that as Judge Barrett herself would readily acknowledge will make a huge difference in the tilt of the court on health care, on women's reproductive rights, on voting rights, the idea that we can't wait a few days is ludicrous. There's no reason for it.
And, although he said he thinks quite well of Amy Coney Barrett, "the issue is not the nominee, it's the nomination." The Rs aren't willing to wait, Tribe said, because "they really are nervous about what the American people believe the Constitution means and what they believe should be represented on the Supreme Court."
When Hume asked, Tribe admitted it wasn't unconstitutional to move forward, "but a lot of things that are constitutional are stupid. This is not a good idea."
What is it that they're afraid of? That the American people don't want to re-elect this president? If they think he'll be re-elected, and that they will have a Republican Senate, then they can confirm Amy Coney Barrett then. But the idea that it has to happen now, one of the reasons the president has given is, he wants to have a majority on the court to uphold his decision not to count all the ballots. He's said, if we don't count the ballots, if we toss some of them aside, we won't have to worry about a transition, it will just be a continuation of my presidency. That's not the way democracy works. That's the way dictatorship works.
Hume turned to Starr, who confessed his respect and affection for Tribe, but said he views the nomination as the president doing his duty.
There is a vacancy and it's tragic that we lost Justice Ginsburg, but, exactly, you ask the right question, what does the Constitution say? I don't think that the president, whoever the president is, should dillydally. And, in fact, Justice Sotomayor said in 2016, we really don't do well -- I'm paraphrasing, with eight members of the court. And Justice Ruth Ginsburg herself said at that same time.
He said that "the president doesn't stop being the president during an election year." (unless his name is Barack Obama, it would seem), and
...now, of course, it is up to the Senate to determine, are these considerations that Professor Tribe is articulating, are those weighty enough to say we're not going to go forward or we're going to wait until after the election and so forth.
He also said that Coney Barrett was a "superb nominee" and that no one questions "her abilities, her integrity, her temperament and the like" so the issues Tribe and others are raising should be addressed in the confirmation hearing. And, in response to Hume's question about the issues Tribe raised - abortion among others - where he said it was clear how Coney Barrett would vote, Starr said that thinking was "absolutely premature and wrong," and to predict what a judge would do is "folly." About Coney Barrett, he said
Does she have a judicial philosophy? Absolutely. She has said she is of the school of Antonin Scalia. And so that's a great insight. And that is a -- what I would call a traditionalist who treats the Constitution not as simply an aspirational document, but as law. And so I would say, hold off, let's hear the confirmation hearings and see if she says, as I think she will, I solemnly promise that I will go about my duties with an open mind, I will listen to all the arguments and I will assess them with great, great respect for both sides as well as the views of my colleagues.
Tribe responded that he's read her writings, many of her opinions, and "it's clear how she approaches the law."
It's a perfectly respectable view. It was the view Justice Scalia held. And, of course, he said he thought Roe v. Wade was wrongly decided. She's written that Roe v. Wade is not entitled to determinative weight as a precedent. She has also been explicit in saying she thought that Chief Justice Roberts was wrong in stretching what he understood the Affordable Care Act meant in order to uphold it. She's been admirably candid about her views --
And what did he think, from a constitutional lawyer's perspective, about how Chief Justice John Roberts ruled on the ACA?
I made clear at the time that I thought that's what he would rule and that that's what he ought to rule in order to avoid a constitutional conflict. That is, interpret the law as a tax in order to use the broad taxing power in order to uphold it. And I think the lower court, which said that when the tax goes away, it's no longer possible to uphold the law and even the protection for people with pre-existing conditions goes away. I think, and most scholars think, that that went way too far.
Now, I'm not going to predict exactly what Judge Barrett will do on that, but what is clear is she is being rushed through in a confirmation process that will be faster than any in recent memory because they want to have six conservatives on the court - that will determine whether he is remaining president.
And, the last word is from Judge Starr.
Predictions are fallacious. Let's have a confirmation hearing. The history of confirmation shows that the Senate can move forward very, very quickly, especially when you have someone with a very good and solid record and a person of such great ability. So let's move the process forward and have a good, robust debate, which I think will be good for the country.
I'm sure the confirmation hearing will be robust, and there'll be a debate on any number of things, but good for the country? Not so sure about that, if recent history of hearings is any indication. I'm not sure how much we benefit from a bunch of partisans scowling and barking at each other, but we'll see.
Wear your mask, please, and continue practicing good social distancing habits. It might not be mentioned in the Constitution, but it's the smart thing to do.
See you around the virtual campus.
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