This week, Ted Frank joins the podcast. Frank is the director of litigation at the conservative public-interest law firm he founded, Hamilton Lincoln Law Institute, and has argued and won cases in front of the Supreme Court as well as several federal courts of appeals.
Stepman and Frank talk through the legal and public opinion contours of the Jordan Neely case in New York, and set it in context of the rising crime and disorder in American cities and the ideological commitment against enforcing the law in many DAs’ offices. They also discuss the recent series of stories on the ethics of the Supreme Court and how they’re being used to delegitimize the judicial branch and pave the way for court packing and even refusing to obey court decisions.
TRANSCRIPT
Inez Stepman:
Welcome to High Noon, where we talk about controversial subjects with interesting people. And this week, my interesting person is Ted Frank. Ted is the director of litigation at the conservative public interest law firm Hamilton Lincoln Law Institute, which he actually co-founded in 2019. He successfully argued landmark cases in the Supreme Court and in several federal courts of appeals. He’s previously been a fellow at the Manhattan Institute, AEI. He’s been profiled in the New York Times, Wall Street Journal, Forbes, and GQ. So he’s been everywhere. He’s been a great legal thinker for a long time. Welcome, Ted, to High Noon.
Ted Frank:
Thanks for having me.
Inez Stepman:
Well, I really wanted to get you on here to talk about two things… Well, two-and-a-half, but one is in context. So I want to start out with the Jordan Neely case in New York and about the general problem that it reflects. And I want to tie into that topic something you tweeted out that was really interesting to me, interesting and sad. It’s the resignation letter of a Chicago prosecutor, and I want to read a part of that before we get our conversation started.
So this is in Chicago, and this is the prosecutor resigning. He said, “The current people in charge of the state, including the state attorney’s office, suffer from a fundamental misunderstanding. We live in a society with adversarial court and criminal justice processes. Defense attorneys, legal aid clinics, public defenders, defendant advocate groups, they fight like hell to protect the rights of criminal defendants and they should. Their work is as noble as ours, but we have an obligation to fight like hell on the behalf of the people. It should go without saying that this must be done ethically and even-handedly. When both sides vigorously defend their positions, a balance is reached between protecting rights while preserving some sort of order and safety. Once we start doing too much of the defense’s job, once we pull our punches, once we decide that it’s worth taking citizens’ lives or risking citizens’ lives to have a little social experiment, that balance is lost. An unavoidable consequence is what we’re witnessing in real time, an increase in crime of all kinds, businesses and families pulling up stakes, and the bodies piling up.”
So I wanted to ask you about this background. So we have, in a number of these cities, basically DAs that have very little… Seem to ideologically not want to prosecute crime. We have laws in states like New York, like around the bail reform in New York, that put a revolving door on a lot of criminal behavior. And then on top of all… In this entire background, now we have this subway case, where we have a Marine in between tours, who puts a guy who’s violently flailing around and threatening the whole car in a headlock in concert with… I guess there’s a difference between a headlock and a choke hold. I don’t know, I’m not an MMA expert, but he restrains him by putting his arm around his neck in concert with two other people in the subway car.
So given all that background, what’s going on in these DAs’ offices? How are people who work in these offices dealing with it, and do you foresee anything that is going to change the ideological direction, essentially not to deal with increasing crime and disorder in the cities?
Ted Frank:
Yeah, it’s interesting. This was a very conscious policy decision made in the ‘50s and ‘60s, and we very quickly learned in the ‘70s that it did not work and was very counterproductive and led to the anarchy that was in New York and several other cities throughout the ‘70s. And as bad as things are now, they aren’t as bad as they were in the ‘70s, but you could very easily see things getting to that stage. And things started to turn around in the ‘80s and ‘90s as just people got fed up with these problems, past laws to incarcerate career criminals.
And you had people like Police Commissioner William Bratton in New York who got the free rein he needed from Giuliani and then Bloomberg after him. I don’t know if Bratton was with Bloomberg, but to take the steps needed, the broken windows policies needed, to restore order to the streets and reduce crime, and that involves putting bad people in prison. And we have this movement now that thinks that people shouldn’t be in prison and have recognized that district attorneys in many cities and states are elected positions that don’t get a lot of attention from voters. And with very relatively little money, you can move the needle a lot in these areas by putting into office people who don’t believe in incarceration, and they will refuse to prosecute fairly serious crimes or charge them down, or otherwise take steps that put a lot of bad people on the streets who are now committing a lot of crime.
Inez Stepman:
What are the boundaries of prosecutorial discretion here? Because it seems that, in a lot of places, this is bordering on just basically reversing what the legislature has made crimes. But on the other hand, of course, not every crime could ever be prosecuted. By necessity, there is a judgment call to be made in prosecuting any particular crime. So what are the limits of that? Because it almost seems like the discretion that is obvious and granted in good faith is being wielded to such a degree that the legislature has criminalized, let’s say, knocking over a bodega, and that’s not getting prosecuted and no one’s going to jail for it. Has the legislature really been usurped here? At what point is there some kind of balance of power problem?
Ted Frank:
Well, that’s an interesting question and there’s always been just laws on the books that prosecutors aren’t prosecuting, either because they don’t believe in their constitutionality or there just wasn’t cause for it. So for example, the anti-sodomy laws that Lawrence v. Texas overturned a decade or so ago, those were not laws that were being enforced. They were on the books in several states. And in fact, even in Texas with Lawrence, it was prosecuted because they wanted the test case, and they called up the police and say, “Come arrest us for this.” And without that, there wouldn’t have been a prosecution.
So there’ve always been laws that prosecutors aren’t pushing or prosecuting for, and those are judgment calls. They have limited resources, and you want to put the bodies on the things that make the most difference. What we have here, what’s new here, is just the fundamental de-policing, decarceration, decriminalization of things that we used to consider fairly serious crimes. And when you say, “Okay, we’re not going to treat shoplifting as more than a civil offense until it gets to $1,000,” suddenly you have hundreds of people who make a living from shoplifting, and they’ll take $500 of stuff from one store and they’ll go onto the next store, but they’re always under the limits, so even if they’re getting arrested, they’re not getting charged or not getting jailed.
And these prosecutor offices, I don’t think, have thought through the dynamic effects of refusing to prosecute these things, and it’s a problem when it’s a decision to charge down on some fairly violent crimes. But on the other hand, in some jurisdictions, these are elected positions, and they are very straightforward. We come to office to make these, “reforms,” and the people are getting what they voted for, good and hard, and there can be a backlash.
So in San Francisco, they’ve removed Chesa Boudin, and his replacement is unwinding some of these problems. But a lot of good prosecutors left the office while he was there, and there’s still just a general view in San Francisco on tolerating a certain degree of public disorder, having sites where people can overdose on fentanyl for free. So you need a Giuliani, you need a Bloomberg, you need a city government in place that says, “We don’t want this. We don’t want this level of crime, we don’t want these policies that result in this level of crime.”
Inez Stepman:
Yeah. When we’re talking about the attitudes of people towards this kind of acceptance of higher crime rates and more general feeling of disorder, I’ve been positively surprised because, for sure, the Jordan Neely case, all the usual suspects are trying to make this into summer of Floyd round two. The New York Times has written about it, all of the Squad members. Actually, I have to say the New York Times wrote a profile that really was a profile and the failures to lock up or commit this guy Jordan Neely, but I’m sure they don’t see it that way, but they did a pretty good profile.
We have the Squad members, I think, saying that this is a lynching and trying to make it into a racial case. We have a few subway protestors where there were arrests made at the protests for stopping the subway, but it doesn’t feel, even in this city, it doesn’t feel like they’re really getting purchase with ordinary people, and that leads me to think that maybe ordinary people don’t need to go all the way back to 1984 levels of crime before they get fed up with the fact that riding the subway comes with it. The duty to guess as to whether one particular schizophrenic screaming person or heavily drugged out person, this one is actually violent or not in any given day.
Ted Frank:
Yeah, I think that’s right. And I think it’s fascinating that this guy left such a digital paper trail of Reddit users who said, “Hey, I ran into this guy on the subway, and boy, stay away from him. He almost pushed me onto the tracks” or “he started shouting in my face.” People have known about this guy for years and years and years, and the New York Social Services were there for him. They said, “Okay, you need to dry out. You need the drug rehab. Here’s the place you can stay. Here’s the food you can eat.” And he lasted 13 days there and fled because he preferred the drugs.
And we as a society have just decided that we’re going to let people live on the streets under the influence of some really bad drugs, under the influence of a really bad mental illness, and we’re just going to shrug our shoulders about it rather than involuntarily commit them for their own good. And that was also another policy decision made in the ‘50s or ‘60s, and that one still hasn’t… We haven’t come back around the idea of bringing back asylums.
Bernard Harcourt has written about this, and several people of the Manhattan Institute have also. It’s something we need to think about, but I don’t see a political movement to do that. And it’s hard to see the political movement to do that when an AOC is treating this as not a failure of our mental health systems, not of our under-incarceration problem, but of, “Oh, we need more social services and more social spending, and we need to punish the people who bravely stepped forward and protected people in the subway who had, I think, a reasonable fear of being victims of violence.”
Inez Stepman:
We’ll get to that reasonable fear in a moment, but you said an under-incarceration problem, and I think that might be foreign-sounding to a lot of people. They’ve been hearing for the last 20 years that we have an over-incarceration problem. So what do you mean by that?
Ted Frank:
Well, you look at who’s committing murders, and you find out that they’ve been arrested dozens of times and they’ve been charged many, many times with violent crimes and then got very light sentences for those things, even after they’ve repeatedly proved that they could not participate in society. And the people in our prisons are generally there for violent reasons. We have a larger prison population than most old-world countries in Europe and Asia. But in the new world, for whatever reason, the murder rate, the homicide rate is much, much higher.
We have a lot more violence and that requires incapacitation to take the people who are violent, who will not participate in society and live by societal norms and won’t act without hurting people and say, “Okay, you don’t get to participate in society and we’re going to lock you in a box.” And there’s this legend out there that we have lots and lots of people in prison for non-violent crimes or for drug possession, and the reality is that that’s not the case. The people who go to jail for possession go for very short times. There are not that many of them. The people who are in prison are there for violent crimes.
And to say that we need to reduce… To get these people out of prison is to say we need to loose them onto society when they haven’t been rehabilitated, they haven’t learned how to function in society, they haven’t stopped being violent felons. And when we let them out after a few years and they go right back to committing crimes, why did we let them out in the first place? Why weren’t we giving them the incapacitation that they demonstrated that they needed?
Inez Stepman:
So apparently a grand jury is going to decide, potentially this week or next week, whether or not to charge the Marine with the death of Jordan Neely. I actually have my doubts about whether or not he’ll even be charged because I really feel like even in liberal New York, there just isn’t the sentiment around here that this was an inappropriate action that this Marine took. I don’t know how to describe it, but it just hasn’t taken off. It really does seem like a handful of screeching activists with very little backing in a way that 2020 very much did not feel that way.
But let’s say he gets charged, what would this case turn on? And I feel a little bit sadly prophetic because I had Heather McDonald on last week, and we were talking on Monday. This incident happened, I think, on Wednesday, and I asked her what happened to the Bernie Goetz of 2023 because we’re going to have one if this continues. And we talked about that, and she had a pretty dark prediction about it, and I did as well. And I’m maybe, like I said, a little bit revising my opinion towards optimism, but what would this case hinge on? What would he have to show in order… What’s his case for not being guilty of murder in this case because Jordan Neely died as a result, the coroner says, as a result of his actions?
Ted Frank:
Well, it probably wouldn’t be a murder case. It would probably be involuntary manslaughter case, but the charges are going to be political charges. It’s going to be a political decision whether or not to charge him. The fact that it’s going to a grand jury: the reality is that grand juries do what prosecutors want them to do. They don’t rebel against the prosecutor. The prosecutor controls what evidence the grand jury sees. They control what the grand jury hears, and the joke is that a prosecutor can get an indictment of a ham sandwich.
And so you have a politically ambitious prosecutor here who’s been assigned to this case, and is he going to see his future in making the Squad happy with him and bringing the charges, or is he anticipating, “Boy, it’s going to be hard to convince a jury that this upstanding Marine did something wrong”? Especially now that we’ve seen more recent video of the aftermath of it, where the Marine, rather than “great, this guy’s dead now” is putting Neely on his side and in the appropriate position and trying to help him. And while the hold may have contributed to his death, there may have been other causes. We don’t have the toxicology reports yet.
I don’t think anybody there was trying to kill him, but whether that was an application of deadly force that was unreasonable under the circumstances, it’s hard to see why there wouldn’t be reasonable doubt there. But if a prosecutor wants to make AOC happy with him and thinks that that’s where the trend is, you could see charges being brought.
Inez Stepman:
How do you think this is going to play out, then, in the court of public opinion? At this point, I almost would think the more that we talk about this, the more the left is on their heels to a certain extent about this. It seems to be bringing to a head lot of the conversations that we were having earlier about the general disorder that had been happening, maybe some in the context of San Francisco especially and drug use and homeless on the streets, but had just quietly… Look at how Biden has reversed himself or a lot of mainstream Democrats have backed away from the defund the police. They pretend that that never happened.
This is really all about, it seems to me, two different trend lines and which one gets out ahead of the other one by what time? How bad does the crime have to get and the general disorder have to get before the backlash even among Democrats becomes high enough that these kinds of policies become politically toxic? And maybe we return to a ‘90s era where even Democrats, even Hillary and Biden were talking about super predators and passing the 1994 crime bill. Right? So where do you think we are in that cycle? Obviously, a lot has changed since the ‘90s in terms of our underlying cultural divisions and our underlying conflict of how we see the United States, how we see race relations in the United States. But this conversation seems to me to have gone suspiciously silent until the Squad and types have brought this case, the Jordan Neely case, to the nation, really, to the front pages to the nation. I’m not sure this conversation is going to go how the left wants it to go.
Ted Frank:
It’s interesting because we have a generation of college-educated generation Zers who seem to think that of course somebody can get up there and rant and rave in a subway car and threaten people. It’s fascinating, the intersectionality of this is, because you have people on the left saying, “We need to criminalize catcalling and other harassment of women on the street.” But at the same time, people on the left saying, “But it’s perfectly okay to have women in fear of getting pushed onto subway tracks.” And so you have that internal conflict and who wins out on that and whether the racial dynamics of this, that it’s always bad to call the police on a black man, still has some currency.
And I’m not sure that it won’t get worse before it gets better. The decision was made in Chicago to elect the guy who was more pro-crime. Krasner got himself reelected in Philadelphia, and I don’t see… While Adams won in New York, he hasn’t moved in the way that you might expect. And one reason that Neely was on the streets is because New York City got sued by the Legal Aid Society and some large law firms acting, “pro bono,” to prohibit them from running warrant checks on people that are stopped.
And so Neely had a warrant out for him, but the police aren’t bringing him in when they’re stopping him. So the warrants don’t seem to matter, and nobody said we should fight this lawsuit warrant. We need to enforce our warrants. It’s hard to imagine a Giuliani or Bloomberg rolling over and agreeing to an injunction on calling in warrants. So it’s not clear to me that the public in deep blue cities where the problems are the worst have reached the tipping point to go back. And I think also the political divisions, the polarization, is much different now than it was in the ‘80s and the ‘90s, where Biden was a fairly conservative Democrat for the first two decades of his career. So it was in his keeping to complain about super predators and to complain about busing and to complain about integration, and that’s not the Biden we have now. The Biden we have now has a DOJ proposing rules that say that there shouldn’t be enforcement based on geography. The fact that one area has more crime than another doesn’t mean that you send more police there.
So I think to me, at least, there’s a sense it’s going to get worse before it gets better. I think in red states or blue areas in red states, what we’ve seen is we’ve seen the Missouri legislature step in and say, “The St. Louis prosecutor isn’t prosecuting crime the way we want and we’re going to legislate her out of the office and basically force her resignation,” because if she hadn’t resigned, the state legislature would’ve taken over prosecuting in that area. And Texas is threatening to do the same thing in Austin and other blue areas in Texas, and I think DeSantis removed a prosecutor in Florida. So we could see some more polarization and we could have this laboratory of democracy where Philadelphia continues to not prosecute crime and other places have the backlash and turn things around.
Inez Stepman:
Yeah. I have a few questions, but first I want… Can you explain this equity policing proposal from the DOJ? Because it seems like they’re directly telling police that it’s… Is this an equal protection argument? I can’t remember what the legal hook of this is even, but the-
Ted Frank:
I’m not sure that they’ve quite yet made a legal hook. I think it’s just an equity hook and whether the civil rights division starts prosecuting it, I don’t know. I’ll have to start looking at it closely, but in other contexts, you’ve had administrations, going back to the Obama administration and their Department of Education, saying, “Wait, why are black kids being suspended at a greater rate than white kids? You need to cut back on your discipline of black kids and make it more racially equitable.” And that basically gave carte blanche in some school districts for the black kids to beat up on the Asian kids.
And if you go to any inner-city school and spend a day there, the idea that the problem of that inner-city school is that there’s too much discipline is really dumbfounding, and I can’t imagine anybody, including the teachers there, thinking that. But there’s just the sort of Kendi-ist idea that any racial disparity has to be the result of racism rather than differences in group behavior. And if one group is committing crime at a greater rate than another group, when you say, “Well, it’s bad for you to be arresting those groups at different rates,” you’re basically demanding policies that result in Soros-type prosecutors that decarcerate.
Inez Stepman:
My understanding when I briefly read over this DOJ document was they’re basically telling the police that it would be illegal for them to go where there is crime. In other words, to one of the least controversial aspects of broken-windows policing or the policing revolution in the ‘90s was getting ahead of and putting cops on the corners where there was going to be crime. And it seems like this DOJ statement order proposed regulation, I actually have to look into what the actual basis of it is, but they’re saying that it’s, basically, it’s inequitable to put the police where the crime is happening if those areas are not perfectly racially proportionate with the population.
Ted Frank:
It’s a problem, and we need to get Kendi-ism out of our discourse and out of our policy, especially out of our policymaking. But it’s a problem that it’s become coded, that polite people don’t mention that there’re just huge racial disparities in crime victimization and crime perpetration.
Inez Stepman:
So the other question I had is what’s the role of the new generation of lawyers here? We’ve all seen the law school videos from Stanford and elsewhere. You mentioned that the no-warrant-checking comes from this legal aid fund that was supported by some major law firms. We’ve seen that those major law firms are unwilling, sometimes, to work with even great conservative lawyers who have won cases in front of the Supreme Court. They’re getting pushed out. What is the role of new woke lawyers in the DOJ, in big law firms, and in prosecutors’ offices?
Ted Frank:
It’s interesting. You hear that at top law schools, the students are shunning… The people who want to be prosecutors are shunning the idea that prosecuting is a noble profession, and that’s just a huge shift from decades ago, where it was viewed as a very prestigious career stepping stone. And people who could make much, much more money would rather be a prosecutor and get that sort of experience, and to treat prosecutors as… If it’s really the case that the next generation feels that being a prosecutor is a damnable idea and people are deterred from going into it, we’re going to have lower-quality prosecutors, and that will affect how effective our prosecutorial offices are.
But also, these people are going to be judges, they’re going to get appointed to the bench. And there are conservative law students out there, but it’s always been a minority, and it’s becoming a smaller and smaller minority, and I think we need to really worry about that. We need to worry about what our next generation of lawyers is going to look like, that there are only two schools out there that can even arguably be branded as conservative, and by conservative, it just means that they’re not as liberal as the other law schools because even at a Scalia Law School, conservatives are less than half of the student body.
Inez Stepman:
Yeah, I was going to ask, what’s the second one? Notre Dame?
Ted Frank:
Right.
Inez Stepman:
Okay. So while I have you here, I want to switch gears and ask you about something that I think has been quite difficult for a lot of people to really get a handle on. And that’s all of the stories seemingly in a coordinated way, coming out in part, first against just conservative Justices, saying that they are corrupt, that they inappropriately accepted money and gifts of various kinds. Starting with the Thomas allegations from ProPublica and then moving on to Justice Roberts’ wife who’s committed the crime of also being a successful lawyer and making a lot of money.
But now we have this story by Luke Rosiak over The Daily Wire on Sotomayor and the fact that she was getting checks from a publishing company while the publishing company wanted their case to go before the Supreme Court. And there’s no record of which way she voted on those petitions, but potentially their interests were in front of her. She did not recuse herself. So one, how are ethics of this type handled in the Supreme Court and in federal courts more generally? What do you think about some of the legislative attempts to impose a new code of ethics on the legal profession? And where do you see some of these stories going, if it seems like we are going to now scrutinize judges and the court in the same way in the media as we do politicians?
Ted Frank:
Well, I think it’s important to understand that the attack on Supreme Court ethics is really just an attack on the Supreme Court, and an effort to try to find ways to undermine the legitimacy of the court and set up the dominoes for ignoring court orders in the future, or packing the court in the future or impeaching a justice… I think it’s important to recognize that, first of all, the judicial branch holds itself to a higher ethical standard than any of the other branches, and that’s a self-policing thing.
If a judge holds one share of stock in a company, the fact that they have this $37 interest in the company of which this minor lawsuit might move the share price not even a penny, that’s enough to force recusal. But where the Supreme Court differs from lower courts, if a lower court judge recuses, you just plop in the next judge. If the Supreme Court Justice recuses from a cert petition decision, and again, the Supreme Court has discretionary jurisdiction. You petition for certiorari, four Justices have to vote to hear the case. But if a Justice recuses himself or herself, that’s the same as voting no on the cert petition because you still need four votes. And if a Justice recuses herself, now you need four out of eight Justices instead of four out of nine Justices. If a Justice recuses themself from the underlying merits of the case, well, you still need five votes to reverse. You need five out of eight instead of five out of nine. So a recusal is the same as a no vote or a vote to affirm because a four-four vote will affirm the lower court decision, or three out of seven Justices vote to hear the case, the case won’t be heard.
So recusal necessarily has to work differently at the Supreme Court because you can’t really use it to manipulate things. You can’t have the same corrections that you can have in the lower courts. But there are no such limitations in Congress. If somebody owns an oil property and they’re voting on oil, or if they own oil stocks or if they own computer chip companies or Tesla stock and they’re voting for electric vehicle subsidies, people might scoff, but we treat that as a political question rather than something else.
So in general, the Supreme Court and lower courts have higher ethical standards than the other two branches of government, and been self-enforcing, and they do the best they can to recuse themselves where there’s even the question of a conflict. The Harlan Crow thing, wow, it looks bad for a Justice to get all this largess but on the other hand, Crow isn’t in front of the court, and Thomas isn’t voting to let Crow out of prison or anything like that. It’s just a really remarkably generous friendship, and Thomas was Thomas long before he ran into Crow.
And I think the interesting thing about the Thomas-Crow situation is that Thomas was disclosing the gifts he got from Crow, and he did that for years and nobody noticed. And then in 2003, somebody or the other ran a story about all the gifts Crow was giving to Thomas and used that to try to make Thomas look bad and used that to make Crow look bad. And Thomas went to people at the Supreme Court and he says, “Do I have to disclose this stuff?” And they told him, “No, you don’t have to disclose it.” So he stopped disclosing it, and now the rules have changed. As of this month or last month, there are more stringent disclosure rules, and Thomas will disclose these things going forward to the extent that they still occur or whether or not Thomas and Crow have been scared away from having a good friendship.
These sorts of relationships with billionaires are things that politicians have all the time, but we expect different behavior from our Justices. On the other hand, this week or last week, Sotomayor goes to a charitable event with Joe Biden, and nobody says boo. So nobody actually cares about the ethics of the Supreme Court or the possibility of conflicts of interest or the appearance of impropriety. It’s being used as a cajole to attack conservative Justices and a conservative court.
Inez Stepman:
You’d have to be blind not to notice that we never had this conversation before the composition of the court changed to reflect a conservative majority. You hinted at this in your answer just now, but what is this setting up in our discourse? Do you think it’s packing the court, or do you think it’s just starting to ignore if the conservative majority strikes down a law that the left really likes or vice versa, where are we going on this? The Supreme Court cannot enforce its own edicts.
Ted Frank:
Yeah, I think it’s an attempt to change the balance of power and the separation of powers with the Supreme Court. If Congress can create an independent entity that oversees Supreme Court ethics, now the Supreme Court answers to this other body, whether it’s in the judicial branch or in the executive branch or the legislative branch. And you can have weird enforcement where, aha, you didn’t dot your I or cross your T. You called an LLC a corporation, and you didn’t remember that the LLC changed identity and you wrote the wrong thing down in your disclosure report. Well, what are the consequences of that? And is that something that’s going to be used to end life tenure for Justices? Oh, you had this niggling disclosure violation, go… You lose your seat on the court.
Or it’s just again, to set things up so that if the Supreme Court has less prestige, is less respected in America, that when a future Democratic Senate says, “Okay, we want 15 Justices now,” there’s less outrage that they’re packing the court, and you see the media cooperating with this by pretending that pack the court means something different than add more Justices to the nine-Justice Supreme Court to swing the vote.
And so we’ve had this longstanding escalation of the Supreme Court nomination process and composition process where, in 1986, Scalia can be waived through a 100-nothing because, well, he was a law professor and he’s been a judge and he’s highly qualified and low book. He’s the first Italian American. Reagan wants him, of course we’re going to approve him, to… Oh, Bork is going to replace a moderate on the court. Well, that’s going to change the composition of the court and we’re going to put all of our gunpower on the left to stopping that nomination from happening. And they succeeded in doing that and getting a different moderate appointed instead of Bork and Ginsburg.
And over the years, you’ve seen Republicans try to reduce the heat. So Clinton got his two nominations with flying colors without a lot of protest, even though Ginsburg had this ACLU record, even though if you pulled a Bork on Ginsburg and held her writings against her, she never would’ve been confirmed, and she would’ve been damned by mainstream America and it would’ve been a scandal, but Orrin Hatch didn’t want to do that. And then it turned around and when Bush became president and Obama is voting to filibuster and prevent a vote on Alito, and you had other situations in the lower courts where there were fights back and forth about lower-court nominations ever since 1984. Again, the Republicans tried to reduce the heat on this. There’s a Clinton nomination that had held up. George W. Bush nominated Roger Gregory, repeated Clinton’s nomination of Roger Gregory to get him through. They agreed not to get rid of the filibuster and withdraw some nominations. Again, Democrats held up, nevertheless, several other potential nominations.
And at some point in this tit-for-tat game, you can say, “Okay, I’m going to cooperate. I’m going to cooperate.” And if the other side keeps saying, “Okay, I’m defecting,” you have to say, “Okay, my strategy now is also to defect.” And that’s what McConnell did in the second Obama term, and people are very upset about that without remembering that it was the Democrats who escalated every single time and voters voted in Republican senates who let these things go the way they have gone now, and we have a six-Republican-appointed Justice majority, many of the justices of whom are constitutional conservatives.
Inez Stepman:
Well on that both, I guess, positive and negative, both optimistic and pessimistic note, thank you, Ted Frank, so much for coming on High Noon. Once again, Ted Frank is the director of litigation at Hamilton Lincoln Law Institute, which is his public interest law firm, and he has a long… I guess I laid it out at the beginning, has a long history of arguing very important cases both in front of the Supreme Court and in courts of appeals. So go ahead and check out his law firm and his work. Ted, thank you so much for coming on High Noon again.
Ted Frank:
Thanks for having me.
Inez Stepman:
And thank you to our listeners. High Noon with Inez Stepman is a production of the Independent Women’s Forum. As always, you can send comments and questions to [email protected]. Please help us out by hitting the subscribe button and leaving us a comment or review on Apple Podcasts, Acast, Google Play, YouTube, or iwf.org. Be brave, and we’ll see you next time on High Noon.
