March 2022 Virtual DC Lunch with Ed Whelan

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Reginald Brown:  Good afternoon. Thanks to everyone for participating in today's Zoom D.C. Chapter Federalist Society Lunch. I'm pleased that so many of you are joining virtually, and I look forward to upcoming events where we will again be in person at our traditional not-so-secret location. My name is Reg Brown, and I am the President of the D.C. Federalist Society chapter. And we are really honored today to have a spectacular program set up. We have a lot to talk about, so we're going to jump right in.

 

We're honored today to have as our moderator the Honorable Steven A. Engel, former Assistant Attorney General for the Office of Legal Counsel at the Justice Department and now currently a partner at the Dechert Law Firm, which offers high quality services if you've been injured, harmed in any way through no fault of your own.

 

      Steven is a graduate of Harvard and Cambridge and Yale. And he managed to escape from all three institutions without any harm. He also clerked for Justice Kennedy on the U.S. Supreme Court. And I can think of no more terrific guide for today's conversations.

 

      So, without further ado, I'm going to turn things over to Steven to introduce our honored speaker today.

 

Steven A. Engel:  Thanks Reg. I'm happy to be here. I'd be happier to be in person, dining with you. And I'm definitely looking forward to a return to normalcy and in-person lunches in the future. Also, very excited to hear from our featured speaker today.

 

Ed Whelan is one of the leading commentators on the judicial nominations process, as well, frankly, at the federal courts. And he has been on the front lines of judicial nominations for over three decades at this point. Ed was the leading republican staffer on the nominations of Justice Ginsburg and Justice Breyer during the Clinton administration. And he has closely followed and extensively commented on all of the nominations on the Supreme Court since then.

 

      As many of you know, Ed regularly writes on judicial nominations through National Review's "Bench Memos" blog, as well as in many other media publications. His posts are -- they reflect not only a clear understanding of the work of the Court, but really extraordinary diligence when it comes to reviewing and describing the records of the nominees, both at the Supreme Court and, frankly, at the Courts of Appeals as well. And his insights are always informative and, frankly, they often drive the debate on Capitol Hill and in other media outlets.

 

      I could go on longer about Ed's service and his career. He ran the Office of Legal Counsel as Principal Deputy Assistant Attorney General and Acting Assistant Attorney General at a critical time in American history.

 

But let me just flag one additional contribution before we get to talking about this. Ed is the coeditor of three volumes of Justice Scalia's legal writings and his public speeches. And, to my mind, frankly, there is no better way to become a better writer or a better thinker about the law than just sitting down and reading those volumes and reading the work of Justice Scalia.

 

      So, if Ed had done nothing else other than compile those volumes, I think, standing alone, that would have been a tremendous contribution to the law, an extraordinary public service. So I urge everybody to take a look at them if they don't already have the books.

 

      Anyway, let's turn to the discussion today, which, of course, centers on Justice Breyer's impending retirement and President Biden's nomination of Judge Katanji Brown Jackson to replace Justice Breyer at the Supreme Court.

 

      I'm going to start by asking Ed a number of questions that I hope will drive the discussion. And then we'll open it up. And, by opening it up in the Zoom format, I would ask that folks use the Q&A function. As I understand it, as you ask these questions, I can see them. And, then, at the appropriate time, I can ask them for Ed. So I think if we do that, folks in the audience will have an opportunity to participate.

 

So let me start, Ed. Before we get to the present day, why don't we go back to talking about your early experiences on the Judiciary Committee for a little bit, because we've obviously seen some fairly divisive and partisan nominations in recent years, particularly during the Trump years. But I'm not sure that that's always been the case. So it will be interesting to get your perspective on how things were at the Judiciary Committee during the Clinton administration, and the nomination, specifically, of Justice Ginsburg and Justice Breyer.

 

Edward Whelan:  Well thanks very much, Steve. Let me first thank you for taking part in this. It's not often that a moderator is more qualified than the speaker, but grateful to have you here.

 

      I was privileged to be the lead republican staffer on the Ginsburg and Breyer nominations back in 1993 and 1994. And, it was, indeed, a different era. Republican senators — for reasons we can discuss more fully — were, even after the Bork and Thomas hearings, embracing the model of senatorial deference to a president, basically saying that the Senate -- the opposite part of Senators ought to confirm someone who is objectively qualified, independent of issues of judicial philosophy.

 

Now, you can have a debate over whether that's even a coherent notion: that is, how you could be objectively qualified if you have an unsound judicial philosophy. But that was the approach. And, of course, Justice Ginsburg was confirmed overwhelmingly, 96-3; Steven Breyer, 87-9. In both instances, President Clinton consulted very closely, almost on a daily basis, with my boss, Orrin Hatch — who, in turn, consulted very closely with me — and was very interested in Senator Hatch's assistance in picking a nominee who would not trigger a fight.

 

This is despite the fact that Democrats had a 53-47 majority in the Senate. There was no prospect of a filibuster. But Bill Clinton was really looking for a way to avoid a fight. And Senator Hatch was very eager to help him do so. On Breyer, in particular, I ran across, the other day, an account from back then of what happened. It struck me as very true. And I will just read a couple passages from it.

 

      "When Clinton began looking for a new Supreme Court justice six weeks ago, he made no secret he wanted a nationally known politician who could give the Court a down-to-earth, populist touch. He wanted a future giant in the liberal footsteps of William Brennan and Thurgood Marshall. He could look a mile away at the Department of the Interior to find such a potential paragon in Bruce Babbitt," who of course had been a former Governor of  Arizona.

 

"But picking Babbitt would have meant a nasty spat with Orrin Hatch and other western senators". So we ended up with Steven Breyer, someone very different in so many ways from what Clinton said he was looking for. Howard Metzenbaum — some of you remember as a very liberal senator from Ohio — according to this article, "grumped, 'backing off someone because of Orrin Hatch's opposition is embarrassing.'"

 

And I'm grateful that my colleagues back then actually give me credit, in a but/for way, for stoking some of the opposition, including from Democratic senators that lead Clinton to back off Bruce Babbitt and go with Steven Breyer.

 

So what you saw back then was a very different model on the Republican side, again, this deference model. Things have shifted in the intervening decades to a battle over judicial philosophy. We can have a discussion over just how that happened, why it happened, whether it's good or not. I generally think it is good.

 

You could also see what happened back then: the very short-term focus that White Houses under any president are tempted to have when it comes to Supreme Court nominations. Clinton had run as a centrist and governed as a liberal and was in hot water politically, and didn't want a fight. He wanted an easy battle on both Ginsburg and Breyer. He got those, but to the consternation of folks on the left.

 

So, with that, it sure seems like the decades have flown by. It seems like yesterday that I was reviewing Steven Breyer's record. Now I'm reviewing Katanji Brown Jackson's. And a lot has happened in the interim.

 

Steven A. Engel:  And speaking about what's happened in the interim, it really seems as though over the last 30 years we've seen it's become more and more difficult and more and more partisan in filling the Court.

 

      To what do you attribute that? We had significant Democratic opposition during President Bush's administration. And we had discussion of, at least, of an effort to filibuster Justice Alito. Obviously, then, maybe with Kagan, Sotomayor, still a lot of opposition, albeit maybe not quite the same. And so what do you see, as someone who's been looking at this for decades, of these trend lines?

 

Edward Whelan:  Well, what's happened is that the political parties have polarized more and more over issues of judicial philosophy. The political bases of each party have driven senators — I think, against their preferences — to oppose nominees on the grounds of judicial philosophy. You see the escalation. Again, what was remarkable about Ginsburg and Breyer is that this wasn't long after Bork and Thomas. The deference model was not going to be reciprocated. No one could have thought that then.

 

      But Republican senators, I think, actually found it in their self-interest to invoke this deference model, show how reasonable they were. And a very easy way to win a reelection campaign is to not give the other side any issues. But, by 2005, when the two vacancies opened up that Roberts and Alito have filled, things have changed a lot. You had had, in particular, the unprecedented campaign of partisan filibusters against  George W. Bush's appellate nominees. And there could be no illusion that Democrats were going to back down.

 

      You had an actual filibuster effort against Alito, led by John Kerry from the ski slopes of Davos, Switzerland. It failed. But, again, it marked the fact that these fights were going to get very ardent. And what you saw then is, as the focus shifted to judicial philosophy, the filibuster first became viewed as an available weapon. Republicans did not turn to that in 2009, 2010. Instead, they voted, in large numbers — in the 30s, I believe — against both Sotomayor and Kagan, but did not make any efforts to obstruct, did not engage in the politics of personal destruction.

 

      I really fought those nominations on the grounds of judicial philosophy, ridiculing President Obama's notorious empathy standard, for example, in which he said that the critical ingredient is what's in a nominee's heart, not in that nominee's legal abilities.

 

      So then what we saw — to fast-forward a little bit to the vacancy that arose after Justice Scalia's death — first you had the keeping the seat open for a year, which, frankly, was something that had been baked in the cake in the process for a long time. Joe Biden had threatened that way back in 1992. Chuck Schumer threatened the same thing in July of 2007, more than a year before the election. What you had in 2016, upon Justice Scalia's death, for the first time since Justice Thomas's nomination, you had a president of one party making a nomination to a Senate controlled by the opposite party. That's exactly the configuration that's most likely to produce conflict, stalemate.

 

      And when you add to that that this was, in the view of many, myself included, the iconic Scalia seat, and that threatened to transform the Court, what happened in 2016, as I say, was baked into the cake. And President Obama's former White House counsel acknowledged as much afterwards, when she said that if the political polarities had been reversed, she would have recommended that Democratic senators do exactly what Republican senators did.

 

      So then you had President Trump's nomination of Neil Gorsuch in January of 2017. And, for context, it's important to have in mind that back in November 2013, Harry Reid and Senate Democrats abolished the filibuster for lower court nominees, while leaving it in place, for the time being, for Supreme Court nominees.

 

      If you look back, they did that explicitly because abortion groups were afraid that a Republican president with a Republican majority in the Senate might be able to confirm anti-Roe nominees. And there's no way they wanted that to be made available. So, even in October of 2016, a week or two before the election, Harry Reid was crowing that if Republicans were to stand in the way of or try to filibuster any of Hillary's Supreme Court nominees, Democrats would abolish the remaining filibuster for a Supreme Court nominee just like that.  

 

      Well, to everyone's -- well, to the surprise of many, Donald Trump was elected in November 2016. And Democrats made the historically idiotic decision to filibuster the Gorsuch nomination. Lots of folks seem to think that Mitch McConnell has this extraordinary power on his own and that he could have abolished the Supreme Court filibuster, irrespective of any other considerations, whether or not Reid had laid the groundwork by doing what he did in 2013. I think there's lots of compelling evidence to show the contrary.

 

      And I think you see that folks like John McCain, others who were critical of the abolition of the filibuster for the Supreme Court in 2017, made clear that it was only the fact that here you have a nominee, Neil Gorsuch, who had received lots of praise from both sides, and if they were going to filibuster Neil Gorsuch, no one would ever get through.

 

      So I think it was a wonderful thing that they chose to do this blunder, which Chuck Schumer knew was a blunder, but he couldn't stand up to his face. And if you look forward from there, there's no way that Brett Kavanaugh would have been confirmed. He probably never would have been nominated if the filibuster had remained in place. There's no way that Amy Coney Barrett would have had her confirmation take place in such a short time.

 

So that really was a transformational event. But what you had then -- so you had this push on judicial philosophy, each side -- with the Democrats trying to maximize it by filibustering. And then, we're back now to a situation in which majority controls. And that's the essential fact going forward, and why, even with their very narrow margin, Democrats are likely to have the votes to confirm Katanji Brown Jackson.

 

Steven A. Engel:  Yeah. It shows, of course, the slippery slope on the filibuster. Obviously, the decision to get rid of the filibuster for circuit court nominees made it fairly difficult to sort of argue that somehow there's a line of principle that needs to be maintained. And, you're right, in the but/for world where the Democrats didn't insist on that in 2017, it's at least an open question whether or not the next two nominees would have been in a position to overrule the filibuster.

 

      So let's talk about -- oh, sorry. Go ahead if you want to --

 

Edward Whelan:  No.

 

Steven A. Engel:  Yeah. Let's talk about where we are now. After, I think, some fairly divisive, if not brutal nominations in the Trump administration, it's not clear to me, at least from what we've seen in the early going, that we're going to have such a process. Obviously, you've seen prominent Republicans or former Republican judges, like Judge Griffith or Judge Luttig, come out in support of the nominee.

 

I don't know that the music, so to speak, suggests that there are a lot of people gearing up, at least in the same terms. Obviously, judicial philosophy is fair game, and will be asked.  But are we at a return to normalcy? Is it something in which the civility is only one-way? How would you explain this?

 

Edward Whelan:  Well, I think we're going to see something similar to what we saw in 2009 and 2010 with the Sotomayor and Kagan nominations, where I think Republican senators were respectful, waged the battle on the ground of judicial philosophy, voted in large numbers against the nominee. I don't see any reason for Republican senators to think that they can reestablish a norm of deference by voting in large numbers for Katanji Brown Jackson, nor do I see why they would find anything in her record that would justify those votes, if, again, judicial philosophy remains front and center.

 

      Look, she has -- Katanji Brown Jackson has lots of admirable personal qualities. I know folks who know her who think very highly of her and like her a lot. I would say she's objectively amply qualified for the position, even though I think some of the assessments of her are just way over the top from people who feel the need to not simply support her but exaggerate her qualifications.

 

Look, it is a historic first nomination of an African American female. That's, of course, a commitment that Joe Biden made as a political commitment on the campaign trail. Arguably, it helped him win the primary, and thus, later, the presidency. That commitment seems not to have been received very well, at least if the one poll I saw of the American public was accurate. And it's striking that last Friday, when President Biden announced his nomination with Katanji Brown Jackson present, there was really no mention at all, except very obliquely, of the historic significance of his nomination.

 

      Look, I think we can all recognize that African Americans, African American women in particular, have suffered lots of indignities and racism over the years and can take pleasure and a certain joy in this landmark nomination, even as we see Judge Jackson as a nominee whom Republicans should oppose.

 

So I expect this to be a very civil process. The other side has shown itself way too ready to screech racism or sexism at any scrutiny of the nominee's record. Obviously, it would be foolish of Republican senators to say things that would actually warrant those sorts of attacks. 

 

Let me mention, though, that Joe Biden — back in 2005, when Justice O'Connor had announced that she was stepping down — threatened on national TV to filibuster the possible nomination of Janice Rogers Brown, a distinguished African American judge who had just joined the D.C. Circuit, but had a long career before as a California Supreme Court justice.

 

I mention this, in part, because it illustrates that Biden himself recognized that concerns of judicial philosophy provide ample reason to oppose a nominee, in his case, even to threaten to filibuster, notwithstanding the fact that the nominee is an African American female. So, likewise, I think Republican senators now, focusing on judicial philosophy, have plenty of basis to oppose her.

 

 Steven A. Engel:  You're suggesting that the senators should decide whether or not to oppose a nominee based upon their judicial record, rather than their race or sex?

 

Edward Whelan:  A daring thought, I know. Something that Martin Luther King, Jr. might say.

 

Steven A. Engel:  Before we go away from the demographics question, let me just ask one of the questions that we've heard. And one of the arguments that we've heard is that President Biden's commitment to appoint a black woman was not that different from President Reagan's suggestion he would appoint the first woman to the Supreme Court, perhaps President Bush's decision to replace the retiring Justice Thurgood Marshall with Justice Thomas.

 

Do you believe that it is appropriate to take demographics into account when it comes to the Court? Are these legitimate considerations? And do you think that some of these past historical models are apposite precedents?

 

Edward Whelan:  Well, demographic considerations have often played a role in judicial selections, including Supreme Court selections. And I would be hard-pressed to see how you could make a case that they absolutely can't. I do think that there are issues, both political, and perhaps, even constitutional, about declaring in advance that you are going to nominate someone only of a particular race.

 

And here I'd emphasize that, of course, for constitutional purposes, race and sex are distinct. That is, racial discrimination is generally understood to be subjected to higher scrutiny than sex discrimination. I don't particularly want to defend Ronald Reagan's selection of Sandra Day O'Connor in 1981, nor the promise that he made on the campaign trail.

 

      Look, some folks say that Donald Trump made a similar promise, immediately after Ruth Bader Ginsburg's death. It's hard to know with Donald Trump. But I think he may have been giving you a peek or a preview more than some sort of abstract commitment. He had already nominated two justices by then. The process was moving very fast.

 

I think it was three days later they nominated Amy Coney Barrett, who had apparently been the runner-up to the previous nomination. And, of course, he wasn't campaigning at the time. So that particular episode does not seem to me analogous. The Reagan one is closer, though, again, there was the distinction of sex, rather than race.

 

Steven A. Engel:  Let's talk a little bit about Judge Jackson. Let me ask you first a question. I think there are a lot of people who are following the Court. And, particularly after President Biden's commitment to nominate a black woman, it was assumed that Judge Jackson was going to be the pick. She had been elevated soon after he took, he came to the bench to fill Attorney General Garland's seat at the time.

 

And, obviously, there are many people who are in the, say, the progressive, or on the left side of the nominations process who think very highly of her and were pushing her from the beginning. Did you ever think -- do you think that this was an open process, or had President Biden kind of made the choice? Was it baked in at the beginning?

 

Edward Whelan:  Well, I think she was a frontrunner all along. I predicted very early on that she would be the nominee. I don't know that he actually decided. If he had decided, I don't know why he took a month to announce his decision. I don't see how that process served his interests or the nominee's.

 

      You know, it's interesting -- a few years ago, when Demand Justice first put out its list of candidates for the next Democratic president to appoint, to nominate to the Supreme Court, Katanji Brown Jackson was conspicuously not on that list. It's a long list, 25 or so names. And Katanji Brown Jackson had been in the news back in 2016 as a possible short-lister for the Scalia vacancy. So this is not an inadvertent omission.

 

My speculation is that she was not on the list because folks on the left were very concerned that she had served on the advisory board of a Baptist school that boldly proclaimed orthodox Christian moral beliefs on matters of sexuality, marriage, life, and that, I think, at some point, one way or another, she managed to convince Demand Justice, when it issued its amended list, that they didn't have to worry. She didn't really believe those things.

 

      Now, I'm not sure that failing to believe in the charter that governs the body you're operating on is the best qualification for a Supreme Court justice. But it was enough to get her added to the list. Look, there were two other contenders prominently mentioned. My own assessment, and I think that of many on the left, is that the candidate who was the highest quality and who would plausibly have been on any Democratic president's shortlist without any litmus test at the outset, was Leondra Kruger, a California Supreme Court justice. Now, she had turned down an opportunity to be Solicitor General for Biden.

 

I think she was viewed as a moderate on a very liberal California Supreme Court. I think that translates in to a liberal anywhere else. But I think that casting did not help her. And I think there were other reasons. There was a prominent African American civil rights lawyer who — a day before Katanji Brown Jackson's nomination — basically said that Katanji Brown Jackson is representative of blacks in her life experiences in a way he suggested implicitly, without naming Leondra Kruger, that Kruger was not. So, a sort of an interesting playing of the race card against her.

 

      I explained, two or three weeks before the nomination, why I did not think she would be nominated. And I also never saw Michelle Childs, the third candidate, as a very plausible choice. She, as many of you know, is a district judge in South Carolina, a protégée of Jim Clyburn, who is the congressman who extracted from Joe Biden during the campaign the promise that his first Supreme Court justice would be an African American woman.

 

      Just before Christmas, in a surprise to many of us, Biden nominated Michelle Childs to a D.C. Circuit seat that had been open for 10 months, while, evidently, some sort of real battle had been going on behind the scenes. I think that was quite a victory for Jim Clyburn. And I never really believed that he could leverage it into a Supreme Court nomination, especially when folks came out from the left with objections to Michelle Childs, concerned that she might be -- not be with them on labor issues.

 

And, more broadly, Michelle Childs is unknown to legal liberals in D.C. And people in this process distrust what they don't know, which is understandable.

 

Steven A. Engel:  Yeah. Now, I thought, looking at the tea leaves, obviously, Judge Jackson was elevated. I thought that when Judge Childs was put toward the D.C. Circuit, that suggested that at least she had some supporters in the administration who were setting her up for, potentially, for her future.

 

      I actually thought -- I know no info on this, but I thought it was interesting that Leondra Kruger hasn't actually been put on an open Ninth Circuit seat yet. And I don't know if that could be her choice. Or that could also reflect the fact that maybe the White House isn't all on board, so to speak, with her. But there will be other Ninth Circuit seats for her, I would imagine, if this is something that they want.

 

Edward Whelan:  Well, and it's a good question. I'd need to look at what the comparative salaries are. But it's a good question, whether you'd rather be a California Supreme Court justice or be one of 29 judges in regular active service on the zoo that we call the Ninth Circuit. A sane person might well decide to stay where she is.

 

Steven A. Engel:  Fair enough. So, speaking actually about these— President Biden's potential choices — and what we see as sort of the objective qualifications for Judge Jackson, what we see in her is something we've increasingly seen in the nominees to the Court. And some people have commented on this. Obviously, she's got the Harvard background, the Ivy League pedigree. She has clerked on the Supreme Court, which is increasingly becoming a qualification.

 

And, of course, where she actually differed from most of the others was, had a very short record as an appellate judge. She is, in fact, coming from the D.C. Circuit, which, that court and other courts of appeals have been the landing ground. Are we reaching a position in which Ivy League, Supreme Court clerkship, and circuit court judgeship are requirements to be on the Supreme Court?

 

Edward Whelan:  Well, it's worth pondering why that's been happening. And I think one can see several different factors in play. One is that, rightly or wrongly — and I would be inclined to emphasize the wrongly — folks see Ivy League branding as some sort of sign of quality. In some cases, it might be that. In other cases, not at all. And the whole experience of a modern legal miseducation anywhere is enough to give one pause.

 

      I think there's also, though, a networking effect. That is, I think when you go to a place like Harvard and Yale, you make -- you have classmates and colleagues, especially if you're in D.C., who are in all sorts of powerful positions. You get to know them. You can help advance your cause through them.

 

Look, there's also a meritocratic element — maybe it's not really merit, but perceived merit — where I think what you've seen in recent decades — much more so than, say, 60 years ago — is Harvard and Yale and other schools too, attracting the best students, based on the criteria they use, from around the nation.

 

So I think if you look at justices who were nominated decades ago — I don't have clearly in mind good examples — but you may have had some brilliant legal minds who went to schools that weren't as well-known as, say, Harvard and Yale are these days.

 

Steven A. Engel:  Fair enough. And it certainly seems to have been the pattern here. So I know that you have read a good deal of Judge Jackson's record, particularly on the district court. She, obviously, had only a couple of recent opinions on her time from the D.C. Circuit. What can we draw from her body of work? What is -- do you have a sense of where her -- what is her judicial philosophy?

 

Edward Whelan:  Well, I think in her D.C. Circuit hearings she's basically said she doesn't have a judicial philosophy and hasn't had an opportunity to develop one. And, in fairness to her, as a district court judge for eight, I believe eight years, constrained by precedent, deciding lots of -- I don't mean to say unimportant cases, but lots of routine cases day in day out, you're not really going to have much of an opportunity to show your colors.

 

      Now, she did have a few high-profile cases during the Trump years in which she wrote opinions of more than a hundred pages. And some of them seem to be attention-grabbing. I know, Steve, you might be familiar with at least a couple of those that may have rejected your handiwork. Though, in turn, she based reversals in either all three or two of those cases. I don't have the details clearly in mind right now.

 

      I will say -- so, look, I think you look through her record, these three cases aside, and you don't see much that's particularly ideological. One thing that I pointed out when the selection process was still going on is I think that Leondra Kruger is a much better writer. Now, this is not a reason to oppose Katanji Brown Jackson's nomination. At this point, it might even be a reason to welcome it. But her writing can often be very clunky and it's not especially fluid. She's -- look, she's a perfectly competent writer. I'm just saying, by the high standards of really elegant legal writing, she doesn't meet that. And I've done a couple posts illustrating that.

 

There also was a post put out by legal writing guru Ross Guberman, expressing very much the same thoughts. He faced some sort of immediate backlash and took the post down, while never retracting his assessment. I've summarized what he had to say in one long post. Look, she's a very, by all counts, a very congenial person. Colleagues enjoy her. I think she'll be someone who gets along with her colleagues. And which way that cuts, whether that means that she's less likely to dissent, or whether she brings them along in some things, who knows.

 

      The comparison has often been made on Kruger versus Jackson as similar to Kagan versus Sotomayor. That is, many of us — and I think this includes some legal liberals, although they may have been more reluctant to say so publicly — view Kruger as the more savvy liberal, someone who has greater legal acumen in the way that many of us think that Elena Kagan does, versus Sonia Sotomayor, and who might be more effective in forging coalitions, being strategic. And it seems Sotomayor, and, perhaps, Jackson, is someone who's more ready to go her own way.

 

I actually don't see -- I'm looking at the district court record. I don't -- these three opinions aside, I don't see much bombast in Jackson's legal writing. So I'm not ready to put her in the Sotomayor category. Look, she'll be -- there's every reason to think she'll be a solid progressive on everything that matters to them. And I don't expect that she'll be coming over to join conservatives and won't be doing so any time that Elena Kagan isn't already doing so.

 

Steven A. Engel:  One of the things that President Biden emphasized and that at least the media suggests was important was that she actually comes from having been a public defender, which actually is -- does cut against the grain of a lot of judicial nominees prior to the Biden administration. Very par for the course with President Biden's nominees, but President Obama often picked prosecutors and the like.

 

      To what extent do you think that background either shows up in her district court record that you've read or is likely to be a factor when she's on the Court?

 

Edward Whelan:  I don't think it's going to show much at all. Indeed I think it's one aspect of her record that's been greatly exaggerated. There's a criminal defense lawyer who blogs a lot called Scott Greenfield. He wrote an excellent post over the weekend. I wrote a little bit about it today. He points out that she spent two years doing appellate work as a public defender. She wasn't the one there with the defendant at trial. I'm not disparaging her role. I'm just saying it's not what you typically think of, in terms of public defender work.

 

      Interestingly, this is also part of what she, I think, lightly called a decade of being a "professional vagabond." And it's -- I'm actually impressed. And I wrote about this today, that right after her Breyer clerkship she had a series of jobs that one could easily read as downward mobility and might wonder if this is signaling some sort of problem on her part. But she instead explained in her tenure class notes for the Harvard Law Review, Class of 1996 — in other words, notes that came out in the spring 2006 — that she was really working on, as she put it, the -- I'm sorry -- the mommy, the working mom, the working mom thing, I think is how she put it.

 

      And I think it's a real credit to her that she was making sacrifices, figuring out how to balance work and life, and that that led her to take jobs that would not ordinarily be on the horizon. I think that desire — that commendable desire, I should add — explains her job choices in that decade more than any particular commitment to the public defense world. Now, again, I'm sure she respects that role. And I don't mean to suggest otherwise. And maybe it will have some value.

 

But Scott Greenfield makes a point. He doesn't -- he just doesn't think that -- he says she barely put a spot on the seat before she left. And he doesn't think it would really shape her much. He even said it might shape -- it might misshape her, in the way that Harry Blackmun thought that he understood medicine by virtue of being down at Mayo clinic's doctor. So maybe a bit of a low-shot on his part, but interesting, nonetheless.

 

Steven A. Engel:  Yeah. Fair enough. And then another kind of differentiator for her is she actually will have been a district court judge for, I think, really much longer than anyone. I don't think Judge Sotomayor was on the district court, but, I think, maybe only for a few years, if my math is not off.

 

Edward Whelan:  Just a year or two less. I think that about what it is.

 

Steven A. Engel:  Yeah. Okay.

 

Edward Whelan:  I think it was six or seven years.

 

Steven A. Engel:  Do you think that that is likely to matter to her ability or how she will do her work on the Supreme Court?

 

Edward Whelan:  Sure. Well, look, I think every justice brings to the job a mix of that justice's past experience. And that's obviously going to shape how the justice views and understands things. And I think someone who has been a district judge is going to understand a lot more about, perhaps, the importance of summary judgment in some contexts, whether or not, how much weight to give to certain claims. Obviously, the role of an appellate judge is very different from that of a trial judge. I will emphasize that she actually had very little trial experience, which -- this may be emblematic of what's happening in the D.C. federal courts.

 

I don't mean to suggest -- I haven't looked -- whether there's anything unusual. But I think -- I believe, over the course of her eight years, she had a grand total of twelve trials; nine jury, three judge trials. Michelle Childs, by contrast, over a slightly longer period, had 60 trials. And she also had had a --I think, countless trials as a state judge. So, yeah, look, I think her experience as a district judge will inform and enrich her role as a Supreme Court justice, if she's confirmed. I wouldn't want to overstate its effect.

 

Again, Sotomayor has nearly as much. I don't know whether Justice Alito's experience as running a U.S. Attorney's office -- you'd think that would give some insights too into what happens at the trial level, although he was primarily running that office, not doing -- not doing trials.

 

Steven A. Engel:  Fair enough. I think probably the reason she had only a relatively few number of trials is because she was mostly doing FOIA cases. It appears to be the principal purpose for the federal district court for D.C, that and striking down Trump Administration regulations. But they're not doing that these days.

 

      So, just opening up to some of the questions that we've received. And I encourage other folks listening to use the Q&A function if they want to have their questions heard. One question is asked -- one questioner has asked, "She has -- it's been reported that, as a federal district judge, she was reversed a couple of times with her decisions. Does that suggest in your mind -- should that be embarrassing? Or was she wrong? Does the fact -- do those cases tell us something about her judicial philosophy?"

 

Edward Whelan:  Well, look, every district judge who's sat for any length of time is probably going to be reversed. I don't put any particular weight in numbers of reversals or statistical numbers. Believe it or not, two appellate judges can often get things wrong. So, that said --

 

Steven A. Engel:  -- I do believe that, by the way.

 

Edward Whelan:  Reversals are occasions for looking more closely. Something would draw your attention to let's look at what she had to say in this ruling. Let's look at what the appellate panel had to say. And I think you see in two or three of her reversals that there were liberal members of the D.C. Circuit who were part of the panels reversing her. And, look, I do not see anything necessarily ideological in the cases in which she was reversed. I do have some concerns about whether her opinions were of the highest quality, in terms of legal analysis. But again, that's something that is primarily for the White House to assess when it's deciding among candidates.

 

I'm not going to suggest that it provides a ground for Republican senators to oppose the nomination. I do think that it's, again, worth looking at reversals to see, okay, was this something where the law was unclear? Is this something where the judge just made a mistake? Or was the judge right, and the higher court wrong? And it warrants careful assessment, and not just of so-and-so got reversed 'X' times. Therefore, that's a problem.

 

Steven A. Engel:  Fair enough. One of our questioners points out, by the way, that Chief Justice Burger attended the Mitchell Hamline School of Law in Minneapolis, outside of the Harvard/Yale belt. Albeit, it was one of the -- yeah, go ahead.

 

Edward Whelan:  Not sure which way that cuts, but maybe it [inaudible 00:44:53].Maybe not.

 

Steven A. Engel:  It was also -- it was 1931, so I think we've got to go back 90 years. But she also asks, "Has Bryan Garner commented?" You had talked about the writing style of Judge Jackson. Has Bryan Garner weighed in, or dared to weigh in on this question?

 

Edward Whelan:  To my knowledge, he has not. And after seeing what happened when Ross Guberman put his toes in the water, my guess is that he's not going to. I just think if you're running a -- if you're running a business selling illegal writing services to lots of folks, you don't want to piss off your customers. And it's understandable. It is curious to me that some people claim, "Oh, Ross Guberman de-published what he wrote, therefore," supposedly, "he doesn't believe it." Well, he's never said he doesn't believe it. Look at his careful analysis. There's no reason to imagine that he doesn't believe it.

 

Steven A. Engel:  Yeah. I think that may speak more of the climate, the public climate on the internet and social media these days than anything else. But that's a different topic from our current one.

 

      Another questioner asks, "Is it uncommon for the nomination process to be done before the sitting justice actually retires? Are there precedents for that?

 

Edward Whelan:  Well, there have been lots of justices who retire upon confirmation of their successor. So, in those cases, the confirmation process always concludes before the vacancy actually arises. So, that, for example, was the case with Justice O'Connor in 2005. That's frequently been the case. I think there may be a concern that, if something happens, you don't want to leave the Court short-handed.

 

What we do have here is unusual. Justice Breyer informed the White House very early, much earlier than happened, say, with Ginsburg and Breyer in '93, '94, much earlier than happened with Sotomayor and Kagan, or, more precisely, with Souter and Stevens in 2009 and 2010.

 

      And I think it's pretty clear that he was expecting the White House to have the sense to keep it quiet, and to get their act together. And then to have some sort of ceremony later, in which they could avoid this month-long spectacle in which folks can publicly debate the merits of the candidates.

 

      But here you have a situation in which, look, it's likely that Katanji Brown Jackson will be confirmed sometime in April. The Senate has a two-week recess right in the middle of April. Senate Democrats may push to get her confirmed beforehand. I think, with the delay, it may be more likely that it happens afterwards. Either way, you're going to have a period of two-plus months before Breyer's resignation, in which Katanji Brown Jackson will, presumably, remain a D.C. Circuit judge, but will not be doing — as I understand it, under D.C. Circuit practice — any work. So have a nice vacation, which, perhaps well-deserved after all these years.

 

I think Merrick Garland had a similar vacation of sorts in 2016, because I believe the practice has been -- and this wasn't the case back, say, when Justice Scalia was nominated in 1986. The practice has been, once you're nominated, you don't do any more work. Indeed, we saw a few orders and decisions seemingly rush out last week in the D.C. Circuit on Thursday. Not the usual day for these things. And lots of us read this, perhaps mistakenly, as a hint that Jackson would be the nominee.

 

But, yeah, there's going to be this sort of strange period of two months or so in which she has been confirmed but not appointed. I want to emphasize these discreet steps. I think perhaps everyone already knows some of these terms are often used sloppily, including by folks who you think would know better. But nomination is, of course, the step that takes place at the beginning. Traditionally, it's been understood not -- it doesn't require an actual vacancy to exist. Traditionally it's been understood to require the announcement of an intention to resign.

 

Now, there's an interesting constitutional question whether you could -- whether Biden today could nominate someone for all eight of the other Supreme Court seats. And then you have the submission of the nomination to the Senate, the Senate acting upon that nomination by a confirmation. Confirmation is a condition precedent to the act of appointment. And the president — perhaps you can correct me, Steve, but I think this flows from Marbury v. Madison — the president, post-confirmation, has the freedom not to appoint the individual. So there's a discretionary act afterwards, in which he makes the appointment.

 

And so those are the three steps. And the appointment itself, in this case, assuming confirmation, occurs before then, would take place sometime right after the end of the term, probably immediately upon Justice Breyer's confirmation -- I'm sorry, resignation taking effect. He has not actually resigned or stated a firm intention to resign. He has just announced that he thinks he's going to.

 

One of my fears, frankly, back when Justice O'Connor's vacancy was pending, was that she might decide, especially after the Chief's death, said, oh, she wasn't going to resign after all and try to retract that, which would have been -- created quite a mess. And, in theory, Justice Breyer could decide any time between now and the end of June that, actually, he really likes his job and he'd rather stay on, in which case, no vacancy would arise. And the Senate's confirmation would, I guess you might say, be a moot act.

 

Steven A. Engel:  That is certainly theoretically possible. Whether we can expect that or not, that's right. And you're bringing back to the various OLC questions about the distinctions between nominations, consent, and appointment. But, yeah, obviously, it would require a vacancy. But there's no reason to think that Justice Breyer will not follow through on his intent.

 

      But it looks like, on the timing, that, assuming Judge Jackson is confirmed, that there will be this gap in which, basically, the president will be waiting for an actual vacancy in which he can assign the commission and appoint her.

 

Edward Whelan:  Let me just say, that happened for a -- I believe, an Eleventh Circuit judge. I'm forgetting now whether it was in the Trump administration. I believe it may have been Corey or Cody Wilson. I perhaps have the name wrong. And I may even have the state wrong. But there was a -- I believe it was the Eleventh Circuit Chief Judge, Ed Carnes, who announced that he would be taking senior status on a date certain nine months hence. And his -- President Trump nominated, and the Senate fairly promptly confirmed a sitting district judge who continued in that capacity for quite a while until the vacancy actually arose.

 

Steven A. Engel:  Yeah. No, it's always -- and that happens with all kinds of appointments. The appointment has to be made. So there's nothing -- it may be somewhat unusual on the Supreme Court, given the timing. But, it's certainly not -- it's not a hard legal question in terms of whether it could happen.

 

      Let me ask another question we have here. And this is something that we talked about earlier on. But is there anything that Republicans should do here to respond to the burgeoning asymmetry between Democratic and GOP nominee treatment? The questioner says, "Dem appointees get coronated. GOP nominees have their yearbooks scrutinized for various sophomoric references."

 

Edward Whelan:  Well, look, I think the asymmetry, which obviously exists, is something that, in many ways, cuts in our favor. Look what happened in the 2018 Senate elections. I think you saw the people respond to a lot of the ugliness that resulted on the Kavanaugh confirmation. I think we should fight this on a high ground. I think nothing comes from descending into the sewer.

 

Among other things, the left has the media behind it. So any mistake made on our side is going to be highlighted forever. And the most grotesque behavior on their side, including, for example, now-majority leader Schumer standing on the steps of the Supreme Court and saying -- I hope this is close -- "Gorsuch, Kavanaugh, if you continue --

 

Steven A. Engel:   -- We're coming for you.

 

Edward Whelan:  Yeah. "You're not going to know what hit you." That was his exact phrase. He called them "Gorsuch, Kavanaugh," not Justice Gorsuch, not Justice Kavanaugh. "You're not going to know what hit you." And what a thuggish comment. Yet how many people in the American public have in mind that Schumer made that comment? I will add, he apologized, I think, after the Chief Justice complained about it. He offered a sort of apology. But no one saw it as not in character.

 

Steven A. Engel:  The decline of civil discourse is also, likewise, another theme that affects the judicial nomination process and, frankly, much of the result of our politics. Any doubt that there will be unanimity on the Democrat side when it comes to supporting Judge Jackson?

 

Edward Whelan:  No. I can't imagine that there won't be unanimity. Look, the easiest vote for a same-party senator is to support a same-party president's Supreme Court nomination. You've had, I believe, universal support from the Democratic side for all of the lower court nominees. I believe Lindsay Graham, from the Republican side, has also supported all of them.

 

      One footnote here is that the -- a senator from New Mexico, Lujan -- I'm forgetting now. I'm sorry. I'm forgetting his first name. But, poor guy, only 49 years old, suffered a stroke some weeks ago. And he has said he intends to be back in D.C. And, God willing, he will be. But you never know what might happen with health crises like that to prevent someone from voting.

 

      But I can't imagine that anyone would, anyone on the Democrat side, would show up to vote no. 

 

     Which does remind me, though, that my former Con Law professor, Larry Tribe, opined during the Amy Coney Barrett process that the vice president's tie-breaking vote somehow doesn't kick in on nominations. I think it's a baseless, kooky theory. But, I suppose, to his credit, he continues to adhere to it now. But I think it's -- I've made clear that I believe Kamala Harris does have the tie-breaking vote. I think virtually everyone agrees. And if, somehow, you end up with a 50-50 tie, which I don't particularly expect, Kamala Harris will cast the tie-breaking vote.

 

 Steven A. Engel:  Fair. That sounds right to me, frankly, from the standpoint of the Constitution.

 

Edward Whelan:  Hard question there.

 

Steven A. Engel:  And what do you think -- actually, let me ask -- I'll ask one of the questions here before I -- is there any extent to which the nomination, moving forward while Justice Breyer continues to serve, has some kind of lame duck effect on his influence within the Court -- actually, with regards to the more contentious cases currently on the docket?

 

Edward Whelan:  Well that's interesting. I need to look. I believe that the Ginsburg hearing back in '93 occurred in June towards the end of the term. I think that Breyer's lame duck status, so to speak, might have been illustrated in oral argument yesterday when a counsel responded to one of his interesting hypotheticals by saying, "Oh, that actually helps." And Justice Kagan interjected that it's rare that a counsel ever has responded to one of Justice Breyer's hypotheticals by saying, "That helps."

 

      I don't think that his lame duck status is going to affect how he decides things. This isn't like a politician who has -- who won't be in office again. I don't think that it will have an impact. But we'll see. If he decides to show his colors in some wild way, or, perhaps join -- invoke foreign law to explain why Mississippi's ban on 15 weeks is constitutionally permissible, well, that would be interesting.

 

Steven A. Engel:  Fair enough. Well, we're almost out of time. Let me just do two quick questions. One is Judge Jackson is apparently on the board of overseers of Harvard University. To your mind, does that affect whether she is in a position to participate and hear in the affirmative action case for Harvard that the Court will hear next term?

 

Edward Whelan:  Well, on it's face it sure seems to me to make a compelling case that she cannot take part in the case. She has been on the Board of Overseers throughout the period of time in which this case has been filed. Perhaps she will step down as soon as she's confirmed. But that doesn't change where she's been.

 

Now, it's possible that she has made clear that she recuses herself entirely from an issue like this. I have seen that when she ran for the Board of Overseers and was asked to fill out some sort of issues sheet, she declined, based on her judicial service to answer some question concerning racial preferences in admissions.

 

      I am not inclined to think that would be a sufficient basis for her not to recuse. But perhaps that would warrant greater discussion. There's also a highlight -- perhaps an issue about the -- what authority the Board of Overseers has, versus a separate board, apparently called the Board of Fellows. And, apparently, these are two boards that both have some operating authority. It's not the case that one is advisory and the other is not. And the actual defendant in the case is this other board. And I believe it's called the Board of Fellows. I may have the name off a little bit.

 

Steven A. Engel:  And Ed, I know you're a Harvard graduate. Would you be interested in filling the vacancy on the Board of Overseers if Judge Jackson steps down?

 

Edward Whelan:  No. I've gotten so tired of these invitations from them. I just don't know.

 

Steven A. Engel:  It's tough. All right, last question, I think, since we're actually a little bit over time. We talked about the likelihood of unanimity in the Democrat caucus. What do you expect in the Republican caucus? What do we expect to see, going forward?

 

Edward Whelan:  Well, I would expect -- if I were betting, I would expect a non-zero number of Republican senators to support the nomination. I would guess probably between one and five. Is it far-fetched the number could be higher? No. Is it possible the number could be one or two, or even zero? Yes. But, again, I think we're going to see a very quiet process unfold.

 

I hope very much that Republican senators use this occasion to remind the American people of the stark difference between the originalism/textualism/conservative judicial principles on the one hand, and the make-it-up-as-you-go-along approach that sometimes is called pragmatism. Sometimes it's called progressivism. But it's just license for a justice to read the constitutional provisions in legal text however she wants to.

 

Steven A. Engel:  Well, it will be interesting. Thank you, Ed, for doing this. And I certainly look forward to continuing to read your comments and writings on this as the process unfolds.

 

Edward Whelan:  Thank you.

 

Steven A. Engel:  Thanks. I remind everybody to take a look at their emails for future Federalist Society events, and thank everybody for participating here.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.