The Executive Branch, the Supreme Court, and More

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Join us as John Malcolm and John Yoo discuss recent Supreme Court news, the 25th amendment, what happens if the Electoral College deadlocks (or fails), as well as the latest on the confirmation hearings for Judge Amy Coney Barrett.

Featuring: 

John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation

Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley School of Law

 

 

This call is open to the public - please dial 888-752-3232 to access the call.

 

Event Transcript

[Music]

 

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.

 

 

Dean Reuter:  Welcome to The Federalist Society's Practice Group Teleforum conference call as today, October 19, 2020, we discuss "The Executive Branch, the Supreme Court, and More."

 

      I'm Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's call, and this call is being recorded for use as a podcast and will likely be transcribed as well.

 

      I'm very pleased to welcome back in an ongoing, recurring, even perhaps never-ending, series two guests to Teleforum:  John G. Malcolm is the Vice President, Institute for Constitutional Government, and Director of the Meese Center for Legal & Judicial Studies and a Senior Legal fellow at The Heritage Foundation.

 

      We're joined also by Professor John Yoo. He's the Emmanuel S. Heller Professor of Law at the University of California at Berkeley School of Law. He's also the author of the just-out book Defender in Chief, which I noticed today, I think I noticed this on Prime Day, that it's gone down to half price, and it's still at half price.

 

Prof. John C. Yoo:. What?

 

Dean Reuter:  It is. Well, that's a good thing, John. You want to sell those books. I assume your royalties are not cut in half because the price is cut in half on Amazon. But it's available right now. I'm looking at it. $14.99 on Amazon.

 

Prof. John C. Yoo:  Well, I'm going to buy 1,000 copies. Gosh. Darn, that's a good price.

 

Dean Reuter:  In any event, go out and buy it. You don't even have to go out and buy it. Just go to Amazon and buy it. With that, we're going to have a discussion on a few issues, but as always, we'll be looking to the audience for questions, so have those in mind for when we get to that portion of the program.

 

      With that, John Yoo, the floor is yours.

 

Prof. John C. Yoo:  Thanks, Dean, and thanks to everybody for joining the podcast. It's great to be back with my partner, John Malcolm. We're the John Squared, John and John's podcast on executive power. I think we started these -- it seems like a lifetime ago, but I think we started these just before the Mueller report came out, which was not that much longer -- just a little over a year ago, right? It wasn't that long ago that we started this.

 

John G. Malcolm:  Yeah.

 

Prof. John C. Yoo:  The hits never seem to stop, so. We're going to talk about three issues today. Obviously, the most important one, I think, the Amy Coney Barrett confirmation, [inaudible 00:02:47] court packing. Then, we're going to discuss the 25th Amendment, COVID, and the Pelosi committee. And then, we're going to talk about disputed elections and the electoral college and what happens, maybe, after that.

 

      We've got a jam-packed meeting, but we're going to try to finish the main discussion by halfway through so we have plenty of time for questions and answers. I know a lot of the people participating on the call probably watched the hearings and have thought about these issues. There's a lot of great things to talk about today.

 

      So John, should President Trump be happy with the way the hearings went for Judge Amy Coney Barrett? What was, in your mind, the highlight and the lowlight of the hearings?

 

John G. Malcolm:  Well, she was phenomenal. She was poised, articulate. She had real human moments, like when she talked about crying with her children after George Floyd and her life brimming with people who view things differently than her.

 

I suppose if anyone were looking for highlights, probably, as Senator Cornyn provided, the one that will be the meme that will live forever when he asked, he said, "We all have notebooks in front of us, reams of notebooks. What do you have in front of you?" And she held up the blank Senate notepad.

 

      She was just unbelievably poised. She kept saying, "Look, I am here to enforce the laws, or interpret the law"—not enforcing—"interpret the laws that you pass. This is not the law of Amy," which I thought was a great line. She was rigorous in terms of sticking with—sometimes she called it the Kagan Rule, sometimes she called it the Ginsburg Rule.

 

It's actually a rule that Supreme Court justices have followed, with the exception of Bork, since Felix Frankfurter, but calling it the Kagan and Ginsburg Rule was great about offering no hints, no forecasts, so thumbs up or thumbs down grading of precedents.

 

      The Democrats, actually, for them it was not all bad. They avoided the disastrous -- they did not repeat the disastrous confirmation hearing that they had with her in 2017 when Diane Feinstein said that the dogma lived loudly in her and that was of great concern, and Dick Durbin kept asking her if she was an orthodox Catholic. They didn't mention anything about her religion.

 

      The only time anything about being Catholic came up is when the Republicans were hearkening back to the 2017 hearing, and when the Democrats will periodically remind people that Joe Biden is also Catholic. They couldn't attack her character, they couldn't attack her legal acumen, so frankly, they didn't even try. They picked their themes.

 

      The three biggest ones, really, were the Affordable Care Act, Roe v. Wade, and the upcoming election. They said, "Well, the President has said he wants the ACA to be invalidated and he wants to overturn Roe v. Wade, and we need to have a full complement of justices in case there's another Bush v. Gore scenario."

 

      Even though Amy Coney Barrett kept saying, "Look, I didn't discuss any cases with anybody. I haven't given any guarantees, and if anyone had asked me for a guarantee, it would've been a short conversation; I'd have gotten up and walked out," the Democrats simply tried to suggest that the fix was in and that Amy Coney Barrett is exactly what Trump wants because of—winks, winks, nod, nod—what she'll do in these areas.

 

      They had other themes, too. When she was on the Seventh Circuit, she wrote a dissent in a Second Amendment case that was somewhat controversial, Kanter v. Barr. She had people like Senator Blumenthal from Connecticut suggesting that if Amy Coney Barrett is on the Court, she is going to be in favor of giving AK-47s to convicted murderers and rapists.

 

      You had people like Senator Whitehouse mentioning The Federalist Society and all of the dark money that's involved. So there were other themes.

 

Prof. John C. Yoo:  Yeah, where was the Heritage Foundation? I didn't see the Heritage Foundation on any of those charts. You're slacking off on your job there, Malcolm.

 

John G. Malcolm:  So much to do, so little time. Cory Booker mentioned us once, but in a rather non-descript way. But they were not playing to the audience. They were playing to the electorate. We're going to get to court packing.

 

That came up a lot during these hearings, and particularly at the very end when they were making closing speeches and Sheldon Whitehouse from Rhode Island said, "Look, just because you can do something"—you being Republicans for doing this confirmation—"doesn't mean you should. But if you do this, your credibility will have died in this room. And so, when we are in a position here we can do something, don't be telling us about how yes, you can do it, but you shouldn't be doing it."

 

That was a direct reference to what the Democrats might do with court packing if they keep the House and win the Senate and take the White House.

 

Prof. John C. Yoo:  Well, let's talk about that in a second, John. Just two things I thought were interesting. I agree with you in terms of how the hearings went for ACB, and I love the video moment of holding up the memo pad. I wouldn't be surprised if most circuit judges would be able to do that these days in the hearing with the likes of the United States Senate Judiciary Committee.

 

      The other thing I thought was interesting was it was really -- I think the Democrats had decided on the first day to throw in the towel. When they turned the hearings into a seminar on the virtues on the Obamacare, Affordable Care Act, which has very, very little, in reality, to do with the kind of cases that Judge Barrett's going to decide if she's confirmed.

 

      It just showed that they want to win the election, and they had decided they weren't going to be able to stop Barrett. To me, it's like, every minute they're not talking about Roe v. Wade is a minute of victory for confirming Amy Coney Barrett.

 

      The second thing is I felt like -- to me, the most interesting part of it was a discussion of stare decisis because Barrett, I think, is probably the most openly avowedly originalist nominee to have come up before the Senate in this time of televised hearings, contentious hearings, to the Court.

 

The most important question, to me, that I think the people might've asked more about was, "Well, how far would you go in obeying stare decisis when it conflicts with what your view of the original understanding might be?"

 

      She classified cases -- she said "people called them this," right? Super precedents and non-precedents.

 

John G. Malcolm:  Right. Super precedents.

 

Prof. John C. Yoo:  And everything else.

 

John G. Malcolm:  Right.

 

Prof. John C. Yoo:  As far as [inaudible 00:10:00] the only super precedents were Marbury v. Madison and Brown v. Board of Education. Maybe there was one other I missed, but it sounded like there were only two. And she definitely said Roe v. Wade was not a super precedent.

 

      Now, of course, the Court itself has never called anything a super precedent, and I personally would -- the definition of super precedent that scholars have come up with, it doesn't seem to be of any basis in the constitutional text or serves as more like a political judgement almost.

 

      I thought that was also very interesting.

 

John G. Malcolm:  Nah, that’s right --

 

[CROSSTALK]

 

John G. Malcolm:  Go ahead.

 

Prof. John C. Yoo:  Go ahead.

 

John G. Malcolm:  Yes, the Democrats always want to get Roe v. Wade declared as a super-duper precedent, and Citizens United as discredited or whatnot. But the definition, which she said, of course, was not her own, which is to say, even if you were to go back and decide that this was just wrong, it's just too much water under the bridge, too many reliance interests. Nobody wants to return. Today's a separate but equal. Nobody wants to undo the judiciary's ability to review laws, and particularly as those laws were applied to particular facts to determine their constitutionality. It's just not going to happen.

 

But if there are still cases being filed that are testing the limits of a particular doctrine, if it's people are still protesting on the March for Life Day or whatever, that that is clearly an issue. It's been upheld several times. It's metamorphosed somewhat from Roe to Casey, but it is clearly not settled in the public's mind and wouldn't qualify, but the Democrats were not happy, of course, with that definition.

 

Prof. John C. Yoo:  Yeah, I agree. They didn't follow up, thought. I think, compared to the Kavanaugh hearings -- I think even the Kavanaugh hearings, before the accusations of sexual harassment came out, were more contentious than what I was, which I think was entirely a good thing. I wish the hearings as a whole followed more of the tenor of the Ginsburg and Kagan hearings or even the Sotomayor hearings than what they've become.

 

Maybe if Barrett succeeds in withdrawing the Court from some of these heavily controversial issues and they return to the political process, maybe people won't care so much who's on the Court.

 

John, you mentioned, in the course of it is the threat the Democrats made of court packing. Why don't you sort of describe what you've heard in the hearings about this or surrounding her nomination and what you think might happen. Do you think this is a serious threat or is it just Democrats are pulling this out of their arsenal to just try to persuade maybe a few moderate Republican senators to stop any kind of vote on Barrett?

 

John G. Malcolm:  No, I think it's a serious [inaudible 00:12:58]. One thing I would add before we leave is I wouldn't also underestimate the fact that there were no protestors in the room shouting and having to be let out every two seconds as helping to restore the calm of the proceedings. That, of course, will not be the case in the future.

 

      Look, the Constitution just says, "There shall be a Supreme Court, and in such [lower] courts as Congress may provide." The number of Supreme Court justices is established by statute. The Judiciary Act of 1789 originally set the number at six. It actually, at one point, John Adams, because he didn't want Jefferson to fill any seats, lowered it to five, but it was for a very, very brief time and there were actually six justices on the Court at the time so it never got down to five, and it's moved around.

 

      At one point, actually -- so it was nine when Lincoln was there, and, then, it got reduced. Actually, under Lincoln's administration, it rose to ten, which was the high-water mark. Then, it got reduced to seven so Andrew Johnson couldn't fill any seats, and then they brought it back up to nine in 1869 during Grant's administration, and it stayed there since then.

 

      Everybody knows about FDR's attempt to pack the Court in '37, and even though he had substantial majorities in both the House and Senate, they balked at that. Then, there was the switch in time that saved nine when Owen Roberts started voting to uphold portions of the New Deal rather than strike them down. That would've increased the Court to 15, and no one has seriously talked about this since then.

 

      Back in 1983, then-Senator Joe Biden said that this was a bonehead idea, but the progressive base, they're mad as hornets and they have a whole series of agenda items that they want to enact that will require nuking the legislative filibuster, and I think court packing is just one of them.

 

      They're already talking about the "two stolen seats," the "illegitimate seats" on the Supreme Court that went to Neil Gorsuch and now to Amy Coney Barrett, and so they need to restore the legitimacy of the Court.

 

      I think, if they get 51 senators and they get the White House, the Senate will go nuclear, change its rules. They can then push through a progressive agenda and there isn't going to be much that the Republicans can do to stop it other than to say, "Sauce for the goose is sauce for the gander. You regretted when you blew up the nominations filibuster to pack the D.C. Circuit. Our time will come." Whether it will or not, I don't know.

 

      If they end up making Puerto Rico a state or D.C. a state and you get two more representatives and four more Democratic senators, that may be it. But I think that -- even Joe Biden, who has now come out and said, because he was pressured, "I will say something about this before the election" has said, "Well, I want to wait and see what the Republicans do."

 

      So, yes, I suppose he's holding out the possibility that some Republicans would balk and that she doesn't end up getting confirmed, but that's not going to happen. She's going to get confirmed. And then, I think he's going to say he's in favor of court packing. I don't know if that'll affect the presidential race or not. I think it may have an effect in some of these Senate races, but we'll see.

 

Prof. John C. Yoo:  Thanks. I share your view about the craziness of it; that it's just a direct assault on the independence and neutrality of the judiciary, and it seems so out of proportion to the idea that a president might, with a Senate of the same party, fill a Supreme Court seat vacancy in the last year of the term.

 

It would set us on a spiral. I agree, John, that if the Democrats really did pack the Court—say they added six new justices like some have suggested—well, then, Republicans will add six more; maybe even more than that.

 

      Although, John, this means that you and I are finally going to get on the Supreme Court. There's going to be so many seats, we're all going to get a shot. I only want to be on there if you're there anyway, right?

 

John G. Malcolm:  They'll be getting to the bottom of the barrel time.

 

Prof. John C. Yoo:  These other proposals about term limits and guaranteed [inaudible 00:17:45] Supreme Court appointments that are efforts to head this court packing thing up. I still got to hope that there are some moderates in the Senate who would stand against repealing the filibuster because even if the elections go poorly for Republicans, it would still be just a one or two seat majority in the Senate for Democrats if they ran the table on all the close elections and they don't lose any seats.

 

      So, the legislative filibuster, it's not in the Constitution, but it's been an important sort of guardrail for democracy. But I agree with you, if the legislative filibuster goes, then you could see all kinds of efforts to change the structure of our politics, like the size of the Supreme Court, like adding states, and so on.

 

      So let's turn to another fun topic, a fun related topic, which was -- since we had our last podcast, President Trump got COVID. People started talking about the Twenty-Fifth Amendment again. President Trump, interestingly, did not invoke the Twenty-Fifth Amendment and did not transfer power, temporarily, to Vice President Pence, as he is able to do.

 

      But it got people talking. What would've happened if President Trump had fallen unconscious during his recuperation from COVID? Luckily, as far as we know, he didn't, but then you might've seen worries or efforts about whether the other part of the Twenty-Fifth Amendment, which allows for the involuntary, temporary replacement of the president by Michael Pence which requires the vice president and a majority of, basically, the cabinet to agree that the president is no longer -- well, the phrase is "unable to discharge the powers and duties of the office."

 

      And then, followed by news that Nancy Pelosi wants to set up a committee because the Twenty-Fifth Amendment actually says, "The vice president, when joined by a majority of the principal officers of an executive department or of such other body as Congress may, by law, provide," can determine the president is unable to discharge the duties of the office and can be temporarily replaced by the vice president.

 

      What did you make of all this, John? Some people have suggested that maybe Nancy Pelosi is really creating the mechanism for replacing Joe Biden rather than Donald Trump. Do you think this is serious? What do you make of -- should President Trump have invoked the Twenty-Fifth Amendment when he went into Walter Reed, at least on the voluntary transferal of power? What did you make of all --

 

John G. Malcolm:  I don't think Nancy Pelosi or anyone else is particularly concerned about Section 3 of the Twenty-Fifth Amendment. That's the temporary, voluntary transfer of power. Again, Twenty-Fifth Amendment was introduced in '65 and ratified in '67, and it was really, I think, because people started thinking about this after John Kennedy got shot. They were thinking, "Well, if he dies we know what happens, but what if he doesn't die? What if he's in a vegetative state and it's just sort of unclear?"

 

Everyone was reminded that Woodrow Wilson had had a serious stroke and that really people believed that we had our first female president because Edith Wilson was, in fact, running the country. She was the only one who claimed that she could understand what Woodrow Wilson was saying.

 

      So Section 3, the temporary transfer, has been invoked three times, actually. Once by Ronald Reagan and twice by George W. Bush. They temporarily transferred the reins of power to George H. W. Bush and to Dick Cheney because they were undergoing minor medical procedures and they were going to be out for a while because of a general anesthesia.

 

      Section 4 is the big one. We last heard about this when Andrew McCabe said that Rod Rosenstein had talked about wearing a wire in with conversations with the president because maybe Rod Rosenstein would try to convince the vice president and the majority of the cabinet members to invoke the Twenty-Fifth Amendment and that was -- look, I think this was just a crass political ploy. I think that Nancy Pelosi raised this just to say, "Gee, you're going in to vote. Keep in mind that we Democrats think that the president is completely off his rocker. We couldn't impeach him, but we have this other mechanism by which we could get to him, too."

 

      There was no way this bill that she introduced was ever going to become law, and I think she suggested it just to plant in the electorate's mind that the president is off his rocker. And I thought, actually, that the president was kind of clever when he said, "Oh, no, no. That's not why she's suggesting it. She's suggesting it so that if Biden wins and Harris is there, Kamala Harris can push Biden aside invoking Section 4 of the Twenty-Fifth Amendment." It wasn't a serious effort, it was just a political ploy.

 

Prof. John C. Yoo:  One thing -- personally, I would have advised Trump to use the voluntary transferal when he went into Walter Reed just because what if he had really taken a turn for the worse and had to go on a ventilator? Nobody knew when he first entered, so I would've thought -- part of the problem, and that's what the Section 4 part is. What if the president falls unconscious and there's no way to -- there was no preparation?

 

John G. Malcolm:  But then they could invoke Section 4 pretty quickly.

 

Prof. John C. Yoo:  Yeah, they could've.

 

John G. Malcolm:  And they could've just call a meeting in the cabinet, or if they send a letter to the House and the Senate and it's invoked. So, that's true. Maybe he could've, maybe he should've. The big criticism was after Reagan got shot, he did not invoke Section 3 and there was a lot of [inaudible 00:23:58].

 

Prof. John C. Yoo:  I find that surprising, too, actually, yeah. I don't really understand why President Reagan did not invoke it at that point.

 

      The other interesting thing I was just going to add about Section 4 is that even if you're the president and it's been used against you, the Constitution makes it extremely easy to get your power back.

 

      So suppose Pelosi creates this committee, suppose it got through, and suppose Kamala Harris and the majority of the cabinet have Biden declared unable. Then, under Section 4, if Biden sends a letter to Congress saying that "No, no. I'm back and better than ever," it takes not just the majority of the cabinet and the vice president.

 

Again, they have to repeat their view that he is unable, but they need to get two-thirds of the House and the Senate to agree with them. If they can't, then Biden becomes president again regardless of whatever committee that Pelosi can create.

 

      It's also important to point out that the provision is extremely clear and heavily biased in favor of the sitting -- the reluctant president to reclaim his power.

 

John G. Malcolm:  I was just going to say [inaudible 00:25:13] he was just nakedly political about this is that they were going to set up -- Nancy Pelosi's bill was going to set up, a commission. Congress was going to establish the commission. It was really, I think, just a way of saying, "Well, okay, we can't impeach you, but we'll get people to say that you are non compos mentis and we'll throw you out that way." It would never work.

 

Prof. John C. Yoo:  Yeah. One last issue that came up, and then it actually ties into the next issue before we turn to questions, is the line of succession.

 

      What if Trump and Pence had both gotten COVID and had to go to Walter Reed? What happens next? That was something that we had to think about. This is actually handled by a separate part of the original Constitution in which it said that in case that the president and the vice president can't carry out their duties because of resignation, death, so on, that it's up to Congress to establish who becomes president next.

 

The congressional act of succession, which I think was last updated in 1947 or '48, places, after the president and vice president, Nancy Pelosi. The speaker of the House is third in line, and then Chuck Grassley, president pro tempore of the Senate, number four. And, then, the rest of the cabinet in order of the creation of their agency. So, Mike Pompeo.

 

      I took the view that that part of the act of succession that included officers of the Congress was unconstitutional and that you would have to skip Pelosi and Grassley and go to Pompeo. But anyway, so that was just my last little [inaudible 00:27:11].

 

John G. Malcolm:  I actually thought, when we raised this topic, that what you wanted to talk about—I'm happy to talk about the presidential succession plan—is what happens if neither one of these guys gets a majority in the electoral college?

 

Prof. John C. Yoo:  Yeah, no, that's where we're going to set up to next.

 

[CROSSTALK]

 

John G. Malcolm:  Well, look, I think you have a very plausible argument. I read your op ed on that recently. There's the incompatibility clause that says you can't hold an office of the United States and be a member of either House.

 

      The one thing I was just unclear about—and it's never happened, of course—is that you say, "Well, once they resign, then they are no longer in the line of succession because they resigned." And I just don't know. If Nancy Pelosi said, "I am resigning, and I am resigning for the express purpose of becoming acting president," I don't know whether that would be valid or not. I don't think we're ever going to get to that.

 

Prof. John C. Yoo:  It would be a metaphysical moment in between the two jobs, just like the metaphysical moment between the two sessions of Congress when a president can appoint [inaudible 00:28:24] recess appointees.

 

John G. Malcolm:  That's our best shot, by the way.

 

Prof. John C. Yoo:  Let's go to the next issue because we only have a few more minutes left. Let's go to that next issue about what happens. The line of succession is directly tied into what happens if the electoral college fails?

 

      This is another [inaudible 00:28:45]. Whatever goes. But the polls show -- you could see a situation where, because of the electoral college, this election could come down to the vote in a handful of battleground states, say, four, five, or six states. Plus, you have the disruption caused by massive mail-in voting on a scale we just haven't had before because of COVID. Plus, these battleground states are close.

 

      Even if polling today that seems to favor Joe Biden, several of these battleground states are close to or within the margin of error. You could see litigation over what's a valid ballot, how to count the ballot, how to recount the ballot. You could see multiple versions of Florida 2000 going on at the same time.

 

      So suppose that goes on and drags on and starts to threaten the ability for a state to report its electoral votes. What do you think happens, and do you think that it favors Biden or Trump if we get to that stage?

 

John G. Malcolm:  Oh, gosh. That, I have no idea about. It's just going to be a mess. This has the potential to be Bush v. Gore on steroids particularly because you now have, in all these battleground states, not only all of these mail-in ballots but they now have all these different rules about when they can count them. And can they count them up to a week after the November 3 election? Do they have to be postmarked or not postmarked?

 

You can envision just reams of lawyers in every state except for the reddest of red and the bluest of blue states -- November 3 is the election. The electorates are supposed to vote on the 14th, and the vote is supposed to be certified on January 6.

 

      The Constitution says, under the Twelfth Amendment, that if neither candidate gets a majority of the electoral college votes, that it gets thrown to the House and that each state delegation gets one vote.

 

In the current Congress, the Republicans have a slight edge. They have majorities, I think it's in 26 state houses. The Democrats hold a majority in 23, and there's one state that's evenly split. But there is the very distinct possibility that it is not the current Congress that would decide the issue; it is the next Congress, and they get sworn in on January 3, and the vote's finalized on January 6, and it is -- your doomsday scenario is that the states are split 25-25. I don't know, maybe they set up a cage match and bring out Vince McMahon in a professional wrestling. I don't know what they would do.

 

Prof. John C. Yoo:  Actually, the Constitution prepares us, so let's run through, well, our work up just to now.

 

      Say states can't get their votes in. So, suppose nobody gets a majority of the electoral college votes. There is an interesting constitutional question about what happens if states send multiple votes, which didn't happen in Florida, but it could've if the Supreme Court hadn't intervened.

 

      There's a really interesting set of issues about who gets to count the disputes. Is it the vice president? Is it the House? Is it the Senate? Is it the Congress? But put that aside. As you said, the Twelfth Amendment then triggers the system that comes into effect if the electoral college fails. This is the back up to the electoral college, which is the house votes but by state delegation.

 

      Under the new Congress elected in November, as you said, you could easily see a 25-25 split instead of the 26, 3, and 1 split we have now. What happens? Well, if the House deadlocks, that's when the succession line comes in. It seems to me then the vice president becomes president, and the vice president, under this situation, assuming that there is no majority winner for the vice presidency, goes to the Senate, but they vote as individual senators.

 

      But, you're right, John. Suppose it's maybe even more likely than it is with the House that the Senate could be evenly divided. As I understand it, the Republicans currently have a 53-47 majority. There are at least, it sounds like, four races where the Democrats could pick off vulnerable Republican incumbents.

 

John G. Malcolm:  Oh, more than that. Yeah.

 

Prof. John C. Yoo:  Yeah, more than that. And there's only one seat, I guess Alabama, where a Republican looks likely to pick up. Although, they're close in Michigan.

 

      So suppose it gets to be 50/50 in the Senate. Or even, interestingly -- suppose it's 50/50 in the Senate. One interesting question is does Vice President Michael Pence get to break the tie in his own favor, making himself president? That's never come up before, but the Constitution does say that the president of the Senate has a vote whenever the Senate is tied. It doesn't say limited to legislation, appointments, or treaties. It just says whenever the Senate is tied.

 

      On the other hand, people say that would be so unfair to allow someone to be in the position of benefitting them—being the judge in their own case. We'll have [CROSSTALK 00:34:22] four years.

 

Given this crazy 2020, would it really surprise you, John, if we were back in January going through all of these possible outcomes given the way this year has already been?

 

John G. Malcolm:  Yeah, no. We'll have another zombie teleforum of you and me—the things that won't die. The rest of the country will become Berkley. I don't know what would happen.

 

Dean Reuter:  John, this is Dean. Isn't that when the panel of psychiatric and psychological experts comes into play?

 

Prof. John C. Yoo:  Yeah, that's when Nancy Pelosi's committee is going to get [inaudible 00:35:03].

 

John G. Malcolm:  Dean, I thought you were suggesting for the two of us. I wasn't…

 

Prof. John C. Yoo:  Well, Dean that's a great -- we are ready to hand it over to you for Q&A.

 

Dean Reuter:  Terrific. Well, thank you. You, as always, the two of you have covered a lot of ground, so very impressive. It looks like we've got just two questions so far.

 

John Vecchione:  Hi, it's John Vecchione. John Malcolm said that if they have 51 votes, they can get rid of the filibuster and maybe pack the court. Are we all in that the entire Democratic Senate will go and do this, or are there enough hold outs that we can still lose the Senate and not have all these dire consequences? In other words, if it was 48-52, 47-43, are they going to get everything they need?

 

      I'm just throwing it out there. Is the whole party and the Senate that intent on this, is my question.

 

John G. Malcolm:  That's a great question, John. It's great to hear from you. No, it's not a done deal. At the moment, you have Senate candidates like Mark Kelly and whatnot are being asked whether they're going to be in favor of court packing. They're not going down and saying, "Well, what about" -- there's the two questions. One is "Would you blow up the legislative filibuster?" And two, "If you blow up the legislative filibuster, would you pass the statute that engaged in court packing?"

 

      So, no, it's not a done deal, but there's blood in the water and the sharks are circling in terms of the Democratic base. The reaction to Diane Feinstein at the end of the hearing when she said that she was impressed at the way that Lindsey Graham conducted the hearings and they had a hug was just vitriolic. They said they need to throw her out of her position as the minority leader on the Senate Judiciary Committee. They were practically burning her in effigy. So it's tough to resist that kind of pressure but one can always hope.

 

Prof. John C. Yoo:  And Diane Feinstein, who may be considered a moderate nowadays -- I just saw a board at the City of San Francisco has just recommended stripping her name off an elementary school in San Francisco because she's connected to -- either is or connected to those who have oppressed others. I mean, she was the mayor out here and a sitting Senator. Now, the left wants to strip her name off of -- oh, and let me add with people like Abraham Lincoln, George Washington, and Thomas Jefferson, too, of course.

 

Dean Reuter:  Sick company. John Malcolm, can I ask you, with regard to the legislative filibuster, the process for that. Is it just a straight 51 vote? Does it have to occur at the beginning of the session when the Senate's considering its rules? Or how does that work?

 

John G. Malcolm:  Well, if you wanted to do it legitimately without going nuclear, you could bring it up at the changeover. I forget what the number is, but it's a supermajority to change the rules. It's something like 67 votes to change the rules. The way they got rid of -- it's a sham. It's what they did for the nominations filibuster is that somebody made a motion—I forget exactly how it went—but somebody made a motion to nuke the filibuster. The parliamentarian said that it was out of order.

 

It was then called for a vote by everybody on the Senate, and they basically -- they didn't change the wording of the rule; they changed the interpretation of the rule to basically say 67 now means 51, and it only takes 51 senators to interpret the rule in this way.

 

It's a sham, and it does a huge disservice to the English language, but that is the way they did it. It's the way the Republicans did it when they extended the nuclear option to Supreme Court nominees, and they would use exactly the same process for the legislative filibuster.

 

Dean Reuter:. Very good. Thank you, John. We've got three questions pending. If you'd like to join the queue --

 

Rob Henneke:  Gentlemen, good afternoon. This is Rob Henneke with the Texas Public Policy Foundation. Dean, I think we ought to syndicate this and have John and John do this every week. This is terrific. It's good to hear both y'all's voices.

 

John G. Malcolm:  Thanks, Rob.

 

Prof. John C. Yoo:  You're going to be sorry you suggested that, but thanks.

 

Dean Reuter:  They've already asked for Hollywood treatment, Rob, so.

 

Rob Henneke:  Oh, good. The West Coast/East Coast meets right here. My question is a thousand angels on the head of a pin question involves my understanding of the Twelfth Amendment is that it discusses a majority of the electors, and that one of the bases with which the Supreme Court resolved Bush v. Gore was that basically Florida was out of time, and that if the vote wasn't stopped, if Florida didn't certify its electors, then Florida was just going to be left out.

 

      My question, asking y'all, if that's true, then is there a scenario where a state gets left out because they're not able to complete their vote either because they don't count the ballots because the election's a disaster or the state legislature gridlocks?

 

And if that happens, does that decrease the threshold to win or is the 270 vote codified somewhere or the threshold regardless of the number of states that participate in the actual electoral college?

 

John G. Malcolm:  So Bush had over 270, but it was being contested in Florida, and there were all of these -- we had hanging chads and dimple chads. Everyone remembers what a mess that was. Most of the people remember it because it was going on while we were all sitting in the Mayflower for The Federalist Society convention.

 

      So what they basically did, the Court, actually by a 7-2 vote, said that Florida's standards for the recount violated equal protection because they weren't using the same standards. Where it became 5-4 was that Breyer and I think it was Kagan said, "All right, we agree with you, but we would let Florida keep counting and see whether they could get it done in time."

 

The five conservatives said, "Nope, they don't have enough time," because—I actually just wrote this down—"Bush v. Gore was decided on December 12 and the electorates were voting on December 18." I don't know whether that would happen again or not.

 

Although, I must say, Rob, your asking a question reminded me of one more highlight from the Amy Coney Barrett hearing because you're involved in the California v. Texas case or Texas v. California, the Affordable Care Act case. Amy Coney Barrett's describing severability as a Jenga game was a really great analogy that all the senators and everybody could understand. I thought that was another good moment to show why she's both a good teacher and a good judge.

 

Prof. John C. Yoo:  I was down there. Malcolm's there, [inaudible 00:42:55] enjoying himself at the Bar at the Mayflower Hotel. I was dispatched to Tallahassee. That's where I spent those dates. You fat cats in Washington all living it up while I go down there. [inaudible 00:43:11] for the Florida legislature. Oh my God.

 

      Anyway. I had to sleep on some guy's couch the day before.

 

      But there's some interesting things, I think, that are different between what could happen this time in Florida 2000. One is, if you remember, Florida 2000 there was an initial count which awarded the electoral votes to George Bush. And, then, if you remember, the Court's holding was that it was a violation of the individual right to vote for the state courts to keep ordering and allowing recounts and use the different standards throughout the state from county to county.

 

      What could be different here is that what if there's no initial count? What if a state just never even gets to the point of saying, "We have actually counted all votes" because of all the mail-ins, because of litigation, which might even start before there is a final count in that state.

 

Then, it's interesting to ask whether a federal court would intervene, as the Supreme Court did in Bush v. Gore, because then you would say, "What's the individual right to vote that's being violated here?" Because there's no recount even going on because you never got to the stage of having one full count.

 

      That might actually make it easier, in a way, to get to the Twelfth Amendment issue because you might just have -- if the federal courts won't intervene and just the rules sort of take their own course, then all this disruption that could happen at the initial vote counting stage just might lead to a state not hitting any of those deadlines. So that's one interesting issue.

 

      The second interesting issue is the deadlines are set by the Electoral Count Act, which is a law passed in, I think, it's 1880s. It's not clear to me the Electoral Count Act is constitutional. The Electoral Count Act sets out the deadline of when a state has to get its electoral votes in. If it doesn't hit those deadlines, then the legislature can try to cast the votes itself. If it doesn't hit the deadline, then the governor can try to certify the votes.

 

      A lot of the Electoral Count Act's deadlines have to do with what's a valid electoral slate, slate of electors that comes out of a state in case of a dispute. Or, like happened in 1876, competing slates come out of the state.

 

      But the thing about the Electoral Count Act which I have problems with, constitutionally, is why can the House and the Senate and the president agree in a statute how a different body is supposed to decide? And if you look at the Twelfth Amendment, it doesn't actually tell you who gets to decide the question of disputed electoral votes.

 

      The Twelfth Amendment says the vice president opens the certified votes in the presence of the House and the Senate. And then, unfortunately, the Twelfth Amendment switches to the passive tense and it says something like "and then the votes shall be counted." So we don't know who counts, who decides disputes.

 

      I tend to think it's the vice president because it says the vice president opens the votes and then it says the votes shall be counted. But it doesn't seem to me that it's Congress as a whole—the House, Senate, and the president—who are deciding the votes.

 

      So, if that's the case—if it's either the vice president alone, the House alone, which is the next natural thing, it seems to me, because they're the one that gets to pick the president if the system fails. Maybe the House and Senate together, but none of those is the Congress.

 

I think it's the same constitutional problem that would arise if, say, Congress passed a law saying the Senate shall conduct an impeachment trial this way. They can't do that because it's a different body within the federal government that actually has that constitutional function.

 

      So I'm not sure if a state blows by all these deadlines and doesn't get its votes in, I think it's really going to be a political decision either by the vice president or maybe by the House and Senate as to whether to count those electoral votes anyway.

 

      But the other question about the majority is an interesting one. I think, just by practice, we've long accepted that you still have to have a majority of all the potential electoral votes rather than the actual electoral votes cast. Although, the text does not seem to suggest that that seems to have been the practice, but I could see that coming up, too.

 

Dean Reuter:  We have two questions pending. Let's head in the direction of a new caller.

 

Joe Hooper:  Yeah, gentlemen. Joe Hooper from Pasadena. Watching the Barrett hearing sort of brings to mind for me -- what are your thoughts on what is the proper level of inquiry into these justices in terms of their judicial philosophy and how they would apply it?

 

      It seems to me that, I think it was Durbin that made the comment, that over the last probably 20 or 30 years it seems to be less and less that we get to know these judges' philosophy through these hearings, and I'm just curious what you think is the proper limit for inquiring of a prospective justice?

 

John G. Malcolm:  Well, the one exception to all of this was Robert Bork, and it didn't end too well for him. You've got people out there, like Rich Lowry, who are saying, "Ah, to heck with it. Let it all fly and ask the questions, and they should be forced to answer the questions or you should vote them down." And then there are others who will say, "Well, we should go back to the way it was in the 1800s and the early 1900s," like don't even bother having a hearing.

 

      I actually found the hearings interesting. I think you learned a lot about originalism, textualism, severability, stare decisis. You learned, because she was willing to comment on articles that she had written and opinions that she had written, about her views on the Second Amendment. I thought you learned a pretty fair amount. There's no question that it can be very frustrating.

 

      I noticed that the Democrats did not complain when either Elena Kagan or Sonia Sotomayor were invoking these rules and not commenting. In fact, they were out there saying that was exactly the right thing to do. But I understand their frustration, in which case they either have to try to score political points, as they did this time around, or engage in character assassination, which is what they did during the Kavanaugh hearings.

 

Prof. John C. Yoo:  I agree with John. Actually, I thought Judge Barrett probably revealed more about the way she thinks about cases and her commitment to interpretive method than any nominee in a long time.

 

      If I remember correctly, Justice Kagan, for example, said, "We're all originalists now," or something along those lines. But I think what Justice Kagan means by originalism is not really originalism given her opinions I've read since she joined the Court.

 

      But Barrett made pretty clear that she's an originalist really in the mold of a Scalia or a Thomas. Of course, she has an extensive body of law review writing. I think she probably -- I'm almost certain she wrote more about these issues than Justice Scalia did when he came up for his nomination hearings. And she didn't try to step away from those writings or deny that she still agreed with them.

 

So I do think she's been the most openly originalist nominee since Bork. And since Bork failed, she might be the most originalist nominee we have had on the Court in our, at least at the time of nomination, in our lifetimes.

 

John G. Malcolm:  She made it very clear even in her opening statement that she was not there to right every wrong and cure every injustice. So she clearly talked about both the statutory cases, and certainly the constitutional cases, reliance interests. But she also made it quite clear that if those reliance interests aren't extreme that she is not going to interpret some law in a way to effectively amend it. If it's a bad law, it reaches an unjust result, she looked right back at whatever senator was asking the question saying, "Not my job. Your job."

 

Dean Reuter:  We have time for at least one final question.

 

Caller 4:  Fascinating as always. I'm just curious to what extent you gentlemen might think there's a significant wave one way or the other, blue or red, the extent to which it might be considered an endorsement or a rejection of political violence.

 

I'm curious because it seems like this has been an issue much more in this electoral season than it's been with many recent ones, and I have my opinions about which side most of it's been on, but I'm wondering if it seems to bear fruit. If that ends up kind of like the nuclear options you were talking about with the Senate, if that becomes a validated political tool outside the parameters of proper law?

 

Dean Reuter:  Either of our guests want to take a -- go ahead.

 

John G. Malcolm:  I thought you were going to ask about whether it was a validation of this nomination or how the Senate treated them because, in 2018, certainly the Senate results were a disapproval of the way the Democrats had treated Brett Kavanaugh.

 

      But political violence -- look, I think the political violence is, you would hate to say it's ever validated, but I think it's a reality, and it's here. So I would have a hard time -- if there is a "blue tsunami," I would have a hard time seeing it as a validation of political violence so much as an extreme rejection of President Trump.

 

      If, on the other hand, there is a red tsunami, every poll—although, as John pointed out, a lot of them are within the margin of error in the swing states—every poll has got him behind. Just like every poll had him behind when he beat Hillary Clinton.

 

What you suspect might—I'm not saying is out there out there, but might be out there—are a whole bunch of Trump voters who are seeing what's happening in places like Kenosha, Wisconsin or Seattle or Portland or Chicago and are not talking to pollsters. So if there ends up being a red tsunami, I think you could say that that is a rejection of political violence, which does not mean that political violence is not going to continue to occur. Antifa is not going anywhere. Black Lives Matter isn't going anywhere. Groups on the left and a few groups on the right that use violence for political messaging are here to stay.

 

Dean Reuter:  John Yoo, anything on this point?

 

Prof. John C. Yoo:  I agree. I don't think the Black Lives Matter/some Antifa protestor is going to go away if Trump wins. In fact, they'll get worse.

 

Maybe if Biden wins, maybe people will calm down a little bit who've been so outraged by President Trump and have been attacking the legitimacy of his election for the last four years.

 

You could see something like a Tea Party movement arise if you saw things like some things people are worried about like end of the filibuster and packing the court. But remember, the Tea Party was not particularly violent compared to those protests on the left. I can remember the Occupy protests and then Black Lives Matter and now Antifa. They have been the ones who have really drawn out a lot of people.

 

      The Tea Party ones weren't particularly disruptive, and so I -- maybe you could see political violence get reduced. You could also see maybe Trump wins. You're not going to have these continuing attacks on his legitimacy as you did four years ago. Probably I'm wrong about that.

 

      Maybe President Trump himself will change and maybe be less disruptive than he has been now that he's proven that his win four years ago itself wasn't a fluke, and so maybe people on both sides might step away from the precipice and this kind of harsh political combat we've been seeing.

 

      But I think I'm the optimist here and Malcolm is always, as always, the pessimist.

 

John G. Malcolm:  On your last point on the president changing, I'll take a bet on that.

 

Dean Reuter:  Let me ask a final question and give each of you, in the process of answering this question, if you want to express a final thought. We'll start with John Malcolm.

 

      You both have talked about norms of behavior, and I'm wondering -- final year confirmations, nominations and confirmations, court packing, and then the number of justices on the court, and legislative filibuster. These are all norms. I'm wondering if they ever become constitutional values? What has to happen for that to happen? And is there any sort of relationship between those norms and stare decisis and the way we view established practices versus black-letter law and constitutional requirements?

 

John G. Malcolm:  You lump together court packing and election-year nominations. I think the norm -- court packing we're going to see, whether they do it or not. It is certainly radical. Anytime you are changing a procedure that has more or less been accepted for over 150 years, that will be pretty radical, and it will, of course, will have repercussions beyond court packing.

 

      In terms of election year nominations, I think the norm is just going to be can you do it. Prior to this, there's been 45 vacancies? No, I forget how many. No, no, no. There were 29 vacancies in an election year and 22 presidents were in charge, and every single time there was a nomination made.

 

In 19 of them, the president controlled the White House and the majority of the Senate; 17 of them we got confirmed. Ten times—this is now the 20th time—ten times they were of opposite parties; only two of them got confirmed.

 

      So I think that "the norm"—and there's certainly nothing unconstitutional about it—is going to be these vacancies come up very rarely. They're all really important. If you got the ability to fill it, you're going to fill it.

 

Prof. John C. Yoo:  What worries me about what we've seen the last four years is that President Trump's political disruptiveness—and this is an argument I made in my book, Defender in Chief—President Trump's political disruptiveness has caused his opponents to consider what I think of radical constitutional change, like court packing, but also like getting rid of the electoral college, like adding several states to the union and getting rid of the filibuster, independent councils, and the Green New Deal.

 

Some of them are, I think, prohibited by the Constitution, like getting rid of the electoral college. Some of them are, just as you said, Dean, norms, like admitting states in pairs so that there's no partisan change in the Senate or not changing the size of the Supreme Court to manipulate its outcomes.

 

      But I think that some radical constitutional changes that are threatened by the other side are, I think, much more dangerous than President Trump's disruptiveness to politics because that's just politics. Politics can change, and it does, back and forth. But when you start tampering with the constitutional norms that have governed our society so successfully for so many centuries -- you have no idea when you pull out one straw whether the rest of the structure is going to collapse or not or what unforeseen consequences it will have on the other parts of the Constitution.

 

      I think it's best to leave it alone unless something is serious wrong, and I don't think anything is seriously wrong with the number of nine on the Supreme Court or using this electoral college to pick presidents.

 

      I think people sometimes forget the Constitution does not create a democracy; it creates a republic, and these efforts to continuously push it into being a simple majoritarian democracy are dangerous.

 

Dean Reuter:  Well, John Yoo, I thought you were going to borrow the Jenga [inaudible 01:00:36].

 

Prof. John C. Yoo:  I actually don't know what the hell Jenga is. Is that like [inaudible 01:00:40] kids to play that? I don't know what that is. Is it a game [inaudible 01:00:44]?

 

Dean Reuter:  Just Google Jenga. Look up the image, and you'll know. But with that, we are concluded. My thanks, as always, to John Malcolm from the Heritage Foundation, John Yoo, author of Defender in Chief—now half price on Amazon. Go get it.

 

      Thanks as well to the audience for dialing in and for your thoughtful questions. We will have a Teleforum conference call next week on election law update on all things being litigated, but other Teleforum calls between now and then, check your emails and monitor the website for those. But until that next call, we are adjourned. Thank you very much, everyone.

 

[Music]

 

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.