Jennifer C. Braceras talks with Mike Davis, president and founder of the Article III Project (AP3) and former counsel to Senator Chuck Grassley, about the Barrett nomination and the future of the United States Supreme Court.
Transcript
Jennifer:
Hi, everyone. I’m Jennifer Braceras from Independent Women’s Law Center. Today, we’re talking about what is, in my view, the single most important issue of the day. Certainly, it’s the only thing lawyers are talking about right now, and that’s the battle for the Supreme Court.
As everyone knows, the president on Saturday nominated federal appeals court judge Amy Coney Barrett to fill the Supreme Court vacancy created by the death of Justice Ruth Bader Ginsburg. Not surprisingly, before the president even named Barrett, progressives were gearing up to smear the eventual nominee. No surprise there. Anyone who followed the Bork, Thomas, or Kavanaugh hearings knows that this is their standard operating procedure.
Here to break down the Barrett nomination and all of its implications is Mike Davis, founder and president of the Article III Project, otherwise known as A3P, and the former chief nominations counsel for Senator Chuck Grassley.
Welcome, Mike. Thanks for joining us on SheThinks.
Mike:
Thank you for having me.
Jennifer:
No problem. So you and I, and perhaps most of the people listening to this podcast, are already pretty familiar with Judge Barrett’s sterling credentials. First in her class at Notre Dame, two prestigious clerkships, a lawyer at one of the country’s top firms, a much loved and respected scholar and teacher at Notre Dame, and a federal appeals court judge. There’s no question that she is qualified for this appointment, the Republicans control the White House and the Senate, why isn’t that the end of the inquiry?
Mike:
Well, it should be. There is no doubt in my mind that President Trump, Senate Majority Leader Mitch McConnell, Senate Judiciary Committee Chairman Lindsey Graham, and the Senate Republicans will get Judge Amy Coney Barrett confirmed by the end of October. I think the issue is going to be the scorched earth tactics of the left.
You have Democrat operatives out there already attacking Judge Barrett and her family. Judge Barrett and her husband have seven children, five biological children, including one with Down syndrome, and two kids adopted from Haiti. You have top Democrat operatives out there on Twitter attacking Judge Barrett and her husband for being racist because they adopted two Haitian children.
Jennifer:
It’s ridiculous.
Mike:
It’s so ridiculous. Then you have other operatives, like Elie Mystal, just tweeted today that the Democrats need do anything they can, fair or unfair, to delay this confirmation beyond the election so they can claim that this confirmation is illegitimate and then they can turn around and pack the Supreme Court if there’s a President Biden and a Vice President Harris. That is a radical plan to add new justices to the Supreme Court from 9 to 11, or more.
We have not changed the number of justices on the Supreme Court, nine, since 1869, more than 150 years ago, right after the civil war. The late Justice Ruth Bader Ginsburg made the unusual move of coming out and publicly denouncing this radical scheme. It was too radical even for the lioness of the left, one of the most liberal justices on the Supreme Court.
This is what the Democrats are going to do if Biden is elected president and they win back the Senate, and those two things will go hand in hand.
Jennifer:
All right, let me ask you a little bit about court packing. I’ve done some work on this myself, and I, obviously, stand where you stand on the issue, which is against. But a lot of people say, well, look, it’s up to the Congress to decide how many justices are on the Supreme Court. The number is not in the Constitution. They make the argument that the president is packing the courts now, that he’s been ramming through all these lower court nominations. By ramming through this nomination now, right before a presidential election, he is essentially packing the court. Explain to our listeners why that’s not the same thing and why that argument doesn’t fly.
Mike:
It is a preposterous argument. There is a difference between doing your job well, which is what President Trump and the Senate Republicans have done for the last nearly four years in prioritizing and filling existing vacancies on the Supreme Court, versus a radical plan to add new justices. Again, it hasn’t been done for over 150 years.
As to the second point about ramming through judges and justices, they have followed the Senate rules and Senate procedures. I was the Chief Counsel for Nominations last Congress to then Chairman Chuck Grassley on the Senate Judiciary Committee. I ran this process last Congress, and we followed all the Senate rules, all the Senate procedures, we followed the historical norms. It’s just President Trump prioritized judges. The problem was is that the Obama-Biden administration was just bad at it. They did not prioritize judges like they should have. So President Trump inherited a bunch of vacancies.
As for Judge Barrett’s confirmation now, there is plenty of time and plenty of historical precedent to get this done. There have been 29 Supreme Court nominees in a presidential election year. This is the 90% rule. 90% of the time when the president and the Senate are of the same party, the nominee gets confirmed. 90% of the time when the president and the Senate are of different parties, the nominee does not get confirmed.
It’s how elections have consequences. The president said this at the debate last night. He is the president for the full four years of his presidency, and does anyone in their right mind think that the Democrats would not fill this vacancy if they were in the same place as President Trump and Senate Republicans?
Jennifer:
No, of course they would. Indeed, President Obama did just that. When he had an opportunity to appoint somebody to replace Justice Scalia during an election year, he filled the seat. Frankly, I didn’t object to that at the time. That was his constitutional prerogative. It was the Senate’s constitutional prerogative to decide what they wanted to do with that nomination, vote up, vote down, or hold it. All of those choices are legitimate and within the rules and within the norms of how it’s supposed to work. So this is really no different than that.
But, of course, you hear all the time on mainstream media people talk about how Lindsay Graham and Mitch McConnell are hypocrites because they said you couldn’t do this in an election year and they’re just eating their words. I want to ask you, why didn’t they say at the time — because I think they had every right to hold up Garland’s nomination. But why didn’t they simply say, “We have the votes to hold it, so we’re going to hold it?” Why did they make a big hoopla about the election? Which, I understand what you’re saying, that it’s a little bit different now because the White House and Senate are controlled by the same party, and you can make all those arguments. But just knowing that somebody with a microphone and a tape recorder was going to try to twist that framing, that messaging, and bring it back to haunt them, why didn’t they just say, “You know what? Exercising political power, that’s the way it works. There’s nothing illegitimate about that.”
Mike:
Well, it’s again, they’re following the 90% rule. The 90% rule would say that you wouldn’t move forward with Judge Garland’s nomination because 90% of the time they wouldn’t because it’s opposite party. This time, 90% of the time you would, because they’re the same party.
I would say that Democrats who are crying about norms, crying about the traditions and norms and broken glass, that’s very rich considering that they nuked the filibuster in 2013 to stack the DC circuit with Obama-appointed liberals, meaning they lowered the vote threshold from 60 to 51. They went after Clarence Thomas, they went after Judge Bork, they accused Justice Kavanaugh of serial gang rape this last time, and now they are threatening, and this was long before Justice Ginsburg passed away, in the 2020 Democrat platform they have explicitly in their platform that they’re going to do court packing. They call it court restructuring, which is swamp speak for court packing.
Joe Biden, last night at the debate, said that it is his platform, it’s his policies, and it’s his party. He is advocating for this. He is advocating for court packing. So they are going to pack the Supreme Court if Joe Biden wins the presidency, and now they’re going to complain about norms?
Remember Joe Biden, Chuck Schumer, and many leading Democrats back in 2016 said it was the president’s constitutional duty to nominate someone and the Senate’s constitutional duty to consider that nominee. So if it’s your constitutional duty four years ago, there’s not a Trump derangement syndrome clause in the Constitution, it’s still that same constitutional duty now.
Jennifer:
Indeed. I mean, court packing wasn’t the only thing that Ruth Bader Ginsburg spoke out against. She also spoke out at the time when Merrick Garland was appointed. She spoke out saying that the president was elected for four years and that the president has every right to appoint up until the time he leaves office. She said that pretty clearly. Shouldn’t we honor her wishes?
Mike:
Yeah. I mean, I think it’s very clear that Vice President Biden, Senator Chuck Schumer, many Democrats now who can defend their words, are very clearly on the record saying that they should move forward with a Supreme Court nomination even in a presidential election year, and it’s happened. There have been 29 Supreme Court nominations in presidential election years in the past. This is far from unprecedented.
The Democrats are just worried about this. President Trump is going to transform the five to four John Roberts court to the six to three Clarence Thomas court, and that terrifies them.
Jennifer:
Right, and so they’re not willing to make their arguments on the merits, their M.O. is that they try to dig up dirt on people. We saw that with Judge Bork, we saw it with Clarence Thomas, we saw it with Brett Kavanaugh, and as you pointed out, we’re already seeing some pretty ugly things about Judge Barrett. Do you think it’ll work?
Mike:
No, it’s going to backfire spectacularly, just like it did three years ago when the Democrats attacked Judge Barrett for her Catholic faith. I was there. I was the staff leader at the time, and I was stunned. We had Senator Dianne Feinstein, the top Democrat on the Senate Judiciary Committee, questioning Judge Amy Coney Barrett, a practicing Catholic, a Notre Dame law professor, a mother of seven. Senator Feinstein said, “The dogma lives loudly within you and that’s of concern to me.”
We had Dick Durbin, the number two Democrat in the Senate who also sits on the Judiciary Committee, ask Judge Barrett whether she was Orthodox Catholic, whatever the hell that means.
Jennifer:
Yeah, whatever that means.
Mike:
You look at Senator Mazie Hirono, you look at Senator Kamala Harris, the vice presidential candidate, the most junior member on the Judiciary Committee comes in for Judge Buescher in Nebraska, and both Mazie Hirono and Kamala Harris are grilling Judge Buescher, a federal judicial nominee from Nebraska, now a judge, about his membership in the Knights of Columbus, which is a Catholic men’s charity organization. Apparently they think that the Antifa terrorists are good and they want to bail them out of jail, but Knights of Columbus, dads who give to charity, are bad people who are suspect, or even worse.
I mean, it’s just the anti-Catholic bigotry, the explicit bigotry or the dog whistles, that we hear from the left are only going to, I think, the Democrats-
Jennifer:
I wouldn’t be so nice as to call them dog-whistles. I think it’s pretty explicit.
Mike:
Yeah, there’s definitely the outright bigotry. I think they’re going to go from the outright bigotry from last time, because they backfired so badly on them when even the Washington Post and other liberal rags are putting out editorials condemning them for this. So this time I think what the senators are going to do is they’re going to shy away from the anti-Catholic bigotry, the outright bigotry.
Other than maybe Mazie Hirono, the dumbest Senator ever elected, she might do it again. Or at least she says that these questions are still fair game. But I think that most Democrats will do the dog whistles now and let their outside groups do the explicit anti-Catholic bigotry, and you’re going to see it badly with Judge Barrett.
They’re already starting to do it. They’re already starting to rifle through her church bulletins and look at the religious groups that she belongs to. It’s disgusting.
Article VI of the Constitution is very clear. You can not have a religious test for officers of the United States. These senators violate their constitutional duties, they violate their oaths, when they start grilling Supreme Court nominees, or any nominee, about their faith.
Think about this. You think that they would ever question a Muslim nominee about their faith and the details of their faith. Heck, no, they wouldn’t, and they shouldn’t. So why are they doing it to Catholics?
Jennifer:
Yeah, no, they certainly shouldn’t. Let’s talk a minute, you mentioned Senator Harris and her role on the Judiciary Committee last time in the last Senate. Of course, she’s now the vice presidential nominee. What kind of theatrics should we expect to see from her? I mean, I can only imagine she’s going to try to dominate the entire proceeding and use it as an advertisement for the quote-unquote Harris administration, as she’s been known to call it.
Mike:
Well, I welcome that. I was just on Martha MacCallum’s show last night on Fox, and we talked about this very issue. Kamala Harris is a gift to Republicans and Conservatives. First of all, she doesn’t show up to work. Look at her attendance record. She has horrific attendance because she’s been running for president since about day one that she walked in the door of the Senate. So I’m surprised if she could even find the committee hearing room. But if she does find it, she’s amazing for us when she shows up.
Remember at the first Kavanaugh hearing, before Michael Avenatti’s serial gang rape allegations, Kamala Harris interrupted Chairman Chuck Grassley, my former boss, within eight seconds of the opening of his remarks. Eight seconds. He is the nicest man in the Senate, and I think Democrats and Republicans would agree with that. She’s interrupting him within eight seconds with a wild screaming, ranting, and raving about documents. Then she continued during that hearing, she grilled then-Judge Kavanaugh about Russia collusion garbage, asking him if he was colluding with some New Jersey lawyer at some New Jersey law firm about the Mueller Report. Just utter baseless nonsense.
Then again, like I said, she attacked Judge Buescher from Nebraska on his involvement with, gasp, the Knights of Columbus. You know, that domestic terrorist organization that those Catholic men who give gifts to children and provide mentorship and love for people who-
Jennifer:
They give out Tootsie Rolls at the end of Mass!
Mike:
Yeah. They are generous with people who need their generosity, and that is suspect in Kamala Harris’ eyes. So I hope she shows up. I hope they make her front and center. I don’t know who would be a bigger asset to Conservatives, AOC or Kamala Harris. I’m still trying to decide.
Jennifer:
Okay. Well, one thing I think is interesting is I know you’ve talked about how the issue of the Supreme Court, the judicial nominations, generally has helped conservatives in the past, has helped the Republican Party in the past. It certainly helped in the 2018 midterm election after Kavanaugh. But I saw a poll that just came out the other day that showed the majority of Americans this time around think that we should wait until after the election to fill the seat. What do you make of that, because usually the polls favor Republicans on nominations?
Mike:
So then-candidate Donald Trump won an upset victory in 2016 in large part over a Supreme Court fight. In that case, it was the vacancy created by the passing of the late, great Justice Scalia. In 2018, when it should have been a great year for Democrats, the Democrats won the House of Representatives, the Senate Republicans had four incumbents booted out of office by their voters over a Supreme Court fight. In that case, it was Justice Kavanaugh’s confirmation. So I welcome a Supreme Court fight over this election. I think it should be front and center.
Jennifer:
Okay, but how do you explain the polls? This is a Monmouth poll from September 28th that found 51% of voters disapprove of efforts to fill the seat before November 3rd, and 53% say the Senate should hold off on confirmation hearings until after the election. What do you think is driving that?
Mike:
Yeah, I mean, that’s a poll largely before you have a nominee out there. That’s an abstract poll. If you have a nominee out there like Judge Amy Coney Barrett, this 48-year-old very accomplished judge on the Seventh Circuit, the ABA, last last time, the liberal American Bar Association, last time, said that she was well-qualified to serve, which the Democrats pretend is their gold standard, or at least they claim is their gold standard. She’s been a Notre Dame law professor for 18 years. We talked about her credentials at the beginning. She clerked for the late great Justice Scalia, who schooled her in the judicial philosophies of textualism and originalism. She’s going to be a very popular nominee. People are going to like her. They’re going to like the fact that she is an every day American.
Jennifer:
So, you think it’s just the matter of people getting to know her. That in theory, they might oppose the idea, but once they get to know Judge Barrett they’ll see that she’s so eminently qualified, how could the Senate not confirm her? I mean, I hope that’s what happens.
Mike:
Correct. Correct. Frankly, you have to look at the races where it matters, the states where it matters, the swing states. This nomination is going to play very well for Conservatives in swing states. Places like my home state of Iowa.
Jennifer:
Yes, that’s exactly what I was going to ask you next. I wanted to talk to you about certain races where Republicans are vulnerable. I know you’re not a political organization, but I’d just be interested in your view, having worked in the Senate. Joni Ernst, Martha McSally, Susan Collins, three important Republican women in the Senate, important voices for the rule of law, you think this nomination will help them? I know they’re all in tight races.
Mike:
Yeah. I mean, I think this nomination definitely helps Joni Ernst in Iowa, my home state. We even saw last time during the Kavanaugh fight that there was a Kavanaugh effect that helped Kim Reynolds, our governor in Iowa. It helped put her over the top against the very well-funded, very wealthy challenger for that race. So Kim Reynolds was able to win election over this. I think it’s going to help Joni Ernst a lot. Joni Ernst is a star. This is going to excite conservatives all over the state of Iowa.
What’s great about Judge Barrett is that she will excite conservatives, but she’s not going to scare off independents. She’ll actually win over independents and win over some right-thinking Democrats who aren’t insane and not tearing down statues right now. So the Democrats who aren’t breaking windows and tearing down statues should generally like what they see with Judge Amy Coney Barrett.
Thom Tillis in North Carolina, this is going to help him down there. Senator David Perdue. There’s a Montana race with Senator Steve Daines. What’s great about Supreme Court nominations is it unifies and focuses conservatives on what really matters, and the Supreme Court is the most important thing that we do. Everything else right now is just noise. So conservatives who may be leery about President Trump, and I love President Trump, but there are a lot of country club Republican types who may not like his style, they may just say, “You know what? This is too important. We’re not going to let Joe Biden and Kamala Harris and Chuck Schumer pack the Supreme Court with left-wing radicals.”
Jennifer:
Right? Look, I hear ya. I mean, I went to college a conservative Democrat who didn’t particularly care much about politics, essentially became a Republican over what happened to Judge Bork, I was so enraged by it. I’m now an independent because I live in a state where it’s advantageous to be an independent, because they’ve opened primaries and sometimes it’s just as important who you vote against as who you vote for in primaries.
Frankly, I didn’t vote for Donald Trump last time. I wrote someone in, a conservative, because I wasn’t pleased with the President’s character and other such things. But I can tell you that I have a lot of Never-Trump conservative friends, who this is the most important issue to them. So it’ll be interesting to see how it plays in November.
I think you’re right. I think it’s going to help the President. But we’ll have you back hopefully after November and we’ll see if your prediction was right. Hopefully there will be a new Supreme Court justice, Justice Barrett, on the United States Supreme Court at that time.
I guess that’s all the time we have for now, but thank you so much for coming on and talking to us about this nomination.
Mike:
Thank you, very much. Your listeners can go to article3project.org.
Jennifer:
Yes, definitely. After you’ve checked out Mike’s work over there on the article3project.org website, please check out the work of the Independent Women’s Law Center at iwf.org.
From all of us here at Independent Women’s Forum, you’re in control. I think. You think. She thinks.