• Show Notes
  • Transcript

In this episode of CAFE Insider, “The Glorious RBG,” Preet and Anne reflect on the life and legacy of Justice Ruth Bader Ginsburg, the ensuing political battle over filling the vacant SCOTUS seat, and more.

We hope you’re finding CAFE Insider informative. Email us at [email protected] with your suggestions and questions for Preet and Anne. 

This podcast is produced by CAFE Studios. 

Tamara Sepper – Executive Producer; Adam Waller – Senior Editorial Producer; Matthew Billy – Audio Producer; 

Editorial Producers: Jake Kaplan, Sam Ozer-Staton, Noa Azulai, and David Kurlander 

REFERENCES & SUPPLEMENTAL MATERIALS

RUTH BADER GINSBURG

Press Release Regarding Justice Ginsburg, U.S. Supreme Court, 9/18/20

“Justice Ruth Bader Ginsburg, Champion Of Gender Equality, Dies At 87,” NPR, 9/18/20

“TRIBUTE: THE LEGACY OF RUTH BADER GINSBURG AND WRP STAFF,” ACLU

“The True Story of the Case Ruth Bader Ginsburg Argues in ‘On the Basis of Sex,’” Smithsonian Magazine, 12/24/18

“Ruth Bader Ginsburg, No Fan of Donald Trump, Critiques Latest Term,” NYT, 7/10/16

“Ginsburg Apologizes For ‘Ill-Advised’ Trump Comments,” NPR, 7/14/16

VIDEO: Stephen Colbert Works Out With Ruth Bader Ginsburg, 3/21/18

Case law: 

Burwell v. Hobby Lobby Stores, U.S. Supreme Court, opinion & dissent, 6/30/14

Shelby County v. Holder, U.S. Supreme Court, opinion & dissent, 6/25/13

Ledbetter v. Goodyear Tire & Rubber Co., U.S. Supreme Court, opinion & dissent, 5/29/07

United States v. Virginia, U.S. Supreme Court, opinion, 6/26/1996

Frontiero v. Richardson, U.S. Supreme Court, opinion, 5/14/1973

Reed v. Reed, U.S. Supreme Court, opinion, 11/22/1971

Moritz v. Commissioner of Internal Revenue, U.S. Tax Court, opinion, 10/22/1970

SUPREME COURT VACANCY

Judiciary Act of 1869 §1

“Get The Facts: What Leader McConnell Actually Said In 2016,” Senate Majority Leader Mitch McConnell, 9/19/20

“4 Reasons to Doubt Mitch McConnell’s Power,” The Atlantic, 9/20/20

“The Future Of The Affordable Care Act In A Supreme Court Without Ginsburg,” NPR, 9/21/20

“Democrats break fundraising records after Ginsburg’s death,” The Hill, 9/20/20

“It took conservatives 50 years to get a reliable majority on the Supreme Court. Here are 3 reasons why,” WaPo, 6/29/18

“Trump weighs Barrett, Lagoa for Court seat,” Politico, 9/19/20

Sen. Susan Collins statement, 9/19/20

Sen. Lisa Murkowski statement, 9/20/20

Sen. Lindsey Graham tweets, 9/19/20

VIDEO: Sen. Mitch McConnell speaking to press about SCOTUS seat vacancy, 2/23/16

VIDEO: Sen. Lindsey Graham speaking at Senate Judiciary Committee Hearing, 3/10/16

VIDEO: Sen. Lindsey Graham speaking at The Atlantic Festival, 10/3/18

VIDEO: Vice President Joe Biden speaking about RBG & Court vacancy, 9/20/20 

Preet Bharara:

From CAFE, welcome to CAFE Insider. I’m Preet Bharara.

Anne Milgram:

And I’m Anne Milgram.

Preet Bharara:

Hi, Anne, how are you?

Anne Milgram:

Good morning.

Preet Bharara:

So, there’s one topic on everyone’s mind, and it’s the passing of one of the most influential people in the country, one of the most important people in the country, and we’ll find out how important soon as we talk about the consequences of her passing. Ruth Bader Ginsburg is no longer with us.

Anne Milgram:

Yeah, it was a very sad day, I think.

Preet Bharara:

So, Anne, before we get into the life and times of Ruth Bader Ginsburg, and all the fallout, I want to make a couple of announcements at the top, one is… It’s an important story about the law and about the country, and so for that reason, there’s no paywall on this episode of the CAFE Insider, because we want as many people as possible to hear what we have to say about the story. And one more announcement, Anne, it’ll be another opportunity for us to talk about not just the Supreme Court vacancy, but also the election. We’re doing a special thing next week, aren’t we?

Anne Milgram:

Yes, we’re doing a Stay Tuned Live Happy Hour event with all the hosts from the different CAFE Insider shows.

Preet Bharara:

That includes Lisa Monaco, Ken Wainstein, John Carlin, Elie Honig. Folks should know that the event will be via Zoom, which is basically how we do everything in life these days. So, save the date. It’s Thursday, October 1, at 6:30 PM, not AM, we’re not early morning people. And that’s Eastern Time, 6:30 PM Eastern time. If you already receive CAFE emails, we send out an invite. If you don’t, and you want to join the Happy Hour, head to cafe.com/preet and sign up, and we’ll send you an invite.

Anne Milgram:

I’m looking forward to it.

Preet Bharara:

So, on Friday night, I guess it shouldn’t have come as a complete shock because everyone has known that Ruth Bader Ginsburg has been having medical issues and fighting cancer, but it kind of felt shocking. I mean, I don’t know where you were exactly, I think we were probably texting a little bit later after the news broke. I saw the news on Twitter, I didn’t immediately believe it, and then I started yelling and my daughters thought I was having a heart attack. Because it did come as a blow and a surprise.

Anne Milgram:

Yeah. I was shocked by it. I mean, I think part of it is that she has battled cancer before, one, and while I knew that she was sick, and I thought, “Oh, it sounds very serious,” I hadn’t understood it to be imminent or that she was that ill. And so, I was putting our six year old to bed, and my husband came in and I could tell someone had died, I didn’t know who, but I said, “What happened?” And he told us, and it just… I don’t know how you felt, Preet, but it hit me really hard. And it’s obviously been a tough year, she’s a hero to me, and it’s a tough time to lose a hero particularly in the political environment that we live in.

Anne Milgram:

I’ll just tell one quick story. My con law professor when I got to NYU School of Law was Burt Neuborne. And Professor Neuborne was the deputy to Ruth Bader Ginsburg when she was the head of the Women’s Rights Project at the ACLU. And we’re going to talk about it in a couple minutes. But I would argue that the most critical work that Justice Ginsburg did during her career was not actually on the court, but was the work she did in the 1970s where she argued, I think, it was six Supreme Court cases related to gender discrimination and equality. And so, he literally had a front row seat, and so, day in and day out… In the first year of law school, you don’t know what’s going on, you’re trying to learn how to read a case, and here is this professor telling us about someone later to be Justice Ginsburg, who basically used the law as a tool for fairness and equality. And it was just the most inspiring story, and it’s always stayed with me.

Anne Milgram:

And I’ll tell you one other thing, it also stayed with me because obviously, she did a lot of litigation under the Due Process and Equal Protection Clauses of the United States Constitution, the Fifth and Fourteenth Amendments, so basically… And Professor Neuborne himself had done First Amendment cases. So, in con law, I basically used the First, Fifth, and Fourteenth Amendments. Then, when I got to DOJ, I was prosecuting some civil rights cases, and people were talking about the Fourth Amendment, I was like, “Wait, what? The Eighth Amendment, what?” So, I did, of course, learn those, but I think it was really transformational for me as a law student, and I’ve really followed her closely since then.

Preet Bharara:

Yeah, obviously, she’s a huge figure in the law, and particularly, at my alma mater, Columbia Law School to which she transferred at some point during her law school career. I have a personal story that’s unrelated to the law. When we were living in Bethesda, Maryland, when I was working in the Senate, one of our neighbors and friends of ours is Ruth Bader Ginsburg’s niece. And so, about 12 or 13 years ago, my family and the Ginsburg family, including Ruth Bader Ginsburg and Marty, who was her beloved husband, who was still alive then, had a nice little intimate Seder. And I remember thinking my kids were too young to appreciate that they were dining with a Supreme Court justice. We were talking about it on Friday night after we got the news, and my oldest has some memory of the Seder, but didn’t appreciate that it was that Ruth Bader Ginsburg who was at the dinner.

Preet Bharara:

And I will tell you, and this is testimony that most people will give, she was an utterly lovely person, and the dynamic between her and Marty was just wonderful. And not everyone appreciates if you don’t hear her speak, how funny she is. She’s actually hilarious.

Anne Milgram:

Yeah. Well, she comes across as serious, of course, and very thoughtful, and so, I’ve watched a couple of her graduation speeches in the past week and sort of talks she’s given, she is very funny with sort of a wry sense of humor. But there’s some great stories also from her former clerks about playing jokes in the courthouse, in the Supreme Court. And she was both an amazing and heroic figure, and I think, a warrior for equality and changing the law in our country for the better.

Anne Milgram:

But she’s also, obviously, a cultural icon and somebody who… I mean, one of the things I’ve been struck by, Preet, and I don’t know if you’ve been struck by it, too, but she passed away at 87, and there are all these young girls doing these really beautiful tributes to her, writing letters that they’re hand delivering to the Supreme Court, putting things… Sort of giving things to their moms and dads to post about Justice Ginsburg. That includes very young girls, obviously, through young women and men, too, but it’s really inspiring to me to see how much she’s moved people, particularly the younger generation, which I think is just awesome.

Preet Bharara:

Yeah. I mean, the other reason, I guess, there was some dissonance when we learned that she had passed, so she kind of had this reputation for being indestructible. She would go to the hospital, she would come out, she would read briefs in the hospital, she would participate in conferences with her colleagues on the court, sometimes from the hospital, and every time you got news that she was ill, or that she was going to seek treatment, you worried and thought, is this going to be okay? And every single time, and it happened a lot, it was, until it wasn’t.

Anne Milgram:

Do you remember the Stephen Colbert Show where he went to the… She-

Preet Bharara:

I do. To the gymn.

Anne Milgram:

… had a personal trainer. Yeah. So, he went to the gym with her. And she was doing push ups, and he was like… I think he was on his knees, and she was like, “Why are you on your knees? Come on, do a real push up.”

Stephen Colbert:

Do you ever listen to music to get all jacked up before you work out?

Ruth Bader Ginsburg:

I listen to mostly opera recordings.

Stephen Colbert:

Oh, okay. Can I recommend a great workout song? I think you might enjoy this one. This (singing) [crosstalk 00:07:53].

Ruth Bader Ginsburg:

I would never never exercise to that noise.

Anne Milgram:

I remember being so charmed by that. And also, just a tribute to her fierceness and her tenacity to watch her rock it out with her big personal trainer in the Supreme Court gymn, so there’s some great memories.

Preet Bharara:

I echo what you said about what a profound impact she had even before she was on the court, both on the Court of Appeals for the D.C. Circuit, and on the Supreme Court, but obviously, she had a big role to play on the court itself, sometimes in the majority, but quite often in the dissent. And it’s commonplace these days to always modify a Ginsburg dissent with the word fiery, because, although she did not come across as a fiery person, just quiet and measured, and very deliberate, the language was often, I guess, appropriately described as fiery.

Anne Milgram:

And she read some of them from the bench, which is really unusual. In the Supreme Court, usually, they hear oral arguments in person, both sides will come and make arguments to the justices, but then when the opinions are issued as a rule, they’re just issued, right? They just come out as paper documents, obviously, online as well. But she took the opportunity on more than one occasion to actually take to the bench in the Supreme Court, basically go out publicly and read her dissents, and to really sort of punctuate how strongly she felt and how concerned she was that she would go out and do that.

Preet Bharara:

So, before we start talking about the controversy that follows from her passing, because there’s a lot to talk about there, I think we should take a few minutes not just to talk about her personality and her iconic status, but the impact she had on the law, as you described, starting way back in the 1970s.

Anne Milgram:

Yeah, I mean, I think, we all think about her as a Supreme Court justice and a really prominent Liberal Crusader, but it’s really important to go back to sort of, I think, the critical work of her career, which was his work in the ’70s, where she was one of the co-founders and leaders of the Women’s Rights Project at the ACLU. And one of the first cases she worked on was a case called Reed v. Reed, where a mother had sought to be the executor of her deceased son’s estate, and the Oregon law at the time said only men could be the executor of the estate. And so, she challenged this, and the court struck down the law, basically saying that women had a right to be… Under the Fourteenth Amendment Equal Protection Clause that women had a right to be executors as well.

Anne Milgram:

And it’s really important to understand that the language of the constitution is the language of equality, equal rights for all, the Fourteenth Amendment Equal Protection Clause literally says that people have to be treated equally. And yet, there were countless examples across the United States of laws that didn’t do that. And so, that’s one example where it related to being an executor. There are other examples, and it was inch by inch. And so, I think it’s important for people to understand, sometimes you don’t see the arc of the importance of decisions and work at once, it’s kind of like… There were countless cases that she brought, and then we talked about this before, but she argued these six cases before the Supreme Court, Frontiero, Hogan, there’s a ton of cases in which she basically goes to the Supreme Court and says women should be treated equally, and some of which, she says men should be treated equally, right?

Preet Bharara:

Well, that was a strategic decision she made that people have been talking about, and have obviously talked about it her whole life. She wanted to make the old school male justices understand that there was discrimination. And sometimes, to get through to them, you had to explain that there were laws that discriminated on the basis of sex against men. In fact, there’s a whole movie, which I watched… I never got around to watching it before, I watched it over the weekend. Have you ever seen On the Basis of Sex? Which is-

Anne Milgram:

I haven’t seen it yet, I’d love to see it.

Preet Bharara:

Which is premised on one of these cases that she argued, in which the victim of discrimination was a man. Because he was a man, he wasn’t allowed to take a tax deduction for the money he spent paying a caretaker for his 89 year old mother, and that person was his dependent. A single woman in the same situation would have been entitled to the tax break. So, the victim in that case of discrimination was a man, so she could make her point. But obviously, the victory in that case, then was able to spearhead other claims for women. The other interesting thing about that which I had known before, that case, Moritz, it was the first time a provision of the IRS code was declared unconstitutional. What makes it actually particularly lovely is she did the case with her husband, Marty, who was probably one of the premier tax lawyers in the country as well.

Anne Milgram:

Yeah, it’s such a great story that he argued the tax part of the case, and she argued the Equal Protection part. There’s another case also where there was a United States Military spousal benefit that only the wives of members could get a benefit. So, if the man was a member of the military, the wife could get benefits, but it wasn’t available the opposite way. So, if the woman was a member of the military, the husband, spouse, did not get the benefits. And so, it was really strategic in basically trying to make this argument that all people are equal, and she was appealing to the fact that at the time, it was an all male Supreme Court. And so, she was appealing to the fact that, it can’t be right that men don’t have the same rights as women. And so, it was a clever way of basically getting people to individually understand the perils of inequality.

Anne Milgram:

And I think, her work, when she started the Equal Protection Clause, discrimination based on sex, on gender, was seen… It was the lowest level of scrutiny that the court would give, meaning, you had to be able to give a reason for it, but it wasn’t a high hurdle to meet. So, discrimination was being allowed.

Anne Milgram:

And there are countless ways in which it impacted women, we just gave a couple of those, including unequal pay, I mean, there’s a lot of ways in which this was… It’s really hard in some ways for us to even imagine what the world was like even just 50 years ago, but you go forward to what Ginsburg did, which is, she just chipped away slowly one case at a time to get the court to a higher level of scrutiny for sex discrimination, until it became intermediate scrutiny. Meaning that when cases go before the court, there’s a higher burden to prove, you have to have a much greater reason to justify discrimination, which basically meant that a lot of the laws… Overwhelmingly, the laws got struck down, because they couldn’t make that argument that there was a strong reason to basically be doing something differently as it relates to men or women.

Anne Milgram:

And so, that is a lasting… That is a huge change in constitutional law and litigation that I think we take for granted today. But the reason that you can’t pass laws that discriminate against women based on sex overtly, is Justice Ginsburg. And it really has changed the face, I think, particularly, of work for women, and the ability of women to have equal opportunities in America.

Preet Bharara:

Yeah, people have been making the parallel to the life and career of Thurgood Marshall. Long before he came to the Supreme Court, he had a super impressive and distinguished career fighting for racial justice. And so, those are two examples. You don’t see a lot of examples of that, you see examples of people who have mostly been judges their entire careers. And here you have both Thurgood Marshall and Ruth Bader Ginsburg astonishing careers in advocacy and tremendous impact, that was then rewarded by two different presidents, and brought them to the Supreme Court so they could continue that work. And they had experience as very aggressive and smart and talented litigators before the court itself.

Anne Milgram:

Yeah. And went on, both of them, to be amazing Supreme Court justices and to have authored in a lot of critical opinions. And so, I think it’s a great point. I also personally… I really like the idea of practitioners on the Supreme Court, I think it’s much more connected to the practice of law and to the world at large than just having sort of academics who become judges, or people who work in politics who become judges right away. I mean, I like that model a lot.

Preet Bharara:

Although we haven’t had… This is maybe conversation for after there’s a Supreme Court pick. There hasn’t been a non judge selected for the Supreme Court in sometime. Once upon a time, you might see somebody who hadn’t been a judge and who had been practicing politics, I think we haven’t had in a long while. Earl Warren obviously, is a prime example of that.

Anne Milgram:

Yeah, I personally think there’s a lot to be said for it, we’re not going to see it here. Trump is going to nominate somebody who is a existing circuit judge. And part of it goes to the confirmation process, which we’ll talk about in a little bit, but I think… And to the political sort of litmus tests that I think people are being put through now to go on the court. And I really dislike it, and I don’t think it’s great for America. But I do think it’s exactly what we’re going to see here. Because remember, they’ve already been confirmed, and so arguably, all the sort of dirty laundry, if there is any, or their positions on cases and precedent, and Roe v. Wade, we’ll talk about all that, are well known, or at least known to some extent, and they’ve also issued opinions. And so, I think that’s the world that we unfortunately live in today.

Preet Bharara:

Yeah. And then, of course, when Ginsburg got on the court, these issues of racial discrimination and preferential treatment continued, because she hadn’t solved every problem in America despite doing a lot for the cause. I guess one of the most famous opinions she’s known for, is a case of United States v. Virginia, that related to the Virginia Military Institute, that at the time, did not allow women in. And she got to write the majority opinion, and sometimes sort of rare to see, a 7-to-1 decision in favor of the United States.

Anne Milgram:

Yeah, it’s a hugely important decision. VMI excluded women and had proposed setting up this sort of separate women’s college. And so, what she basically said was that having a women’s only institution would not cure the constitutional violation under the Fourteenth Amendment Equal Protection Clause, and that gender action requires, quote, exceedingly persuasive justification to basically discriminate. And so, this is one of the most important opinions, I think, written by the Supreme Court on equality and sex discrimination. I think it goes down as probably one, if not the most important opinion she wrote.

Preet Bharara:

Yeah. And it’s also nice because it follows the trajectory of her work. And so, both symbolically and substantively, I think it was an important thing that she was on the court, and she wrote the opinion.

Anne Milgram:

Yeah, another one of my favorite cases where… She wrote a lot of powerful dissents, and I think she got nicknamed Notorious RBG, which, of course, is a play on the rapper, Notorious B.I.G.. She got nickname that because of her dissents, because at some point, the court turns 5-4, five Republicans to four Democrats, and there are a number of cases that come out that she disagrees very strongly with. I mean, just to name a couple, the Lilly Ledbetter v. Goodyear Tire case where Justice Alito wrote the majority and denied the complainant’s right to equal pay under Title VII of the Civil Rights Act, arguing that she’d basically filed the complaint after the existing timeframe. And basically, Justice Ginsburg had a very, very strong dissent, she called out the fact that the majority was made up of all men and said, quote, “The court does not comprehend or is indifferent to the insidious way in which women can be victims of pay discrimination.”

Anne Milgram:

Really, really important case. She was on the losing side of that case, but that was very powerful. There was a law that was passed by Congress to address it. But again, just a hugely important statement by Justice Ginsburg as part of her dissent. And we should just say one thing, which is, dissents can be really important. They often pave the way for future court decisions, they can pave the way for congressional laws like they did in the Ledbetter case, and so the importance of her sort of fiery dissents, I think can’t be under appreciated.

Preet Bharara:

Yeah, there’s another one, Shelby County v. Holder, we’ve talked about that case on the show before, a Civil Rights case, a Voting Rights case, in which the court decided essentially, and I’m grossly simplifying here, we no longer have to require states to receive preclearance to change their voting rules, because racism is dead and discrimination is over, and we don’t have to worry anymore. And even though bipartisan majorities in Congress had voted to reauthorize these acts, Supreme Court by a narrow 5-4 margin, the majority opinion written by John Roberts said, “Nope, we don’t need to do that anymore.” And that is one of the things you’re seeing playing out in various jurisdictions in the country now, where there are obstacles to people being able to vote, there’s a suppression of the vote in communities of color. So, a very important decision that went in my view, the wrong way from 2013.

Preet Bharara:

There’s a famous quote from Ginsburg’s dissent, in which she said, quote, “Throwing up preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm, because you are not getting wet.”

Anne Milgram:

Yeah, it’s a great quote. And one last case, just to quickly note before we talk about sort of what comes next is the Hobby Lobby case from 2014. Again, Alito writing the majority, and basically said that you can’t force private companies, you can’t require them to pay for birth control and emergency contraception for their employees. And Ginsburg dissented very powerfully, and said this will disadvantage those employees, quote, who do not share their employer’s religious beliefs. And she also noted that there’s a cost barrier to birth control. And I think it’s really important because we’re going to see… And we’re going to talk about this in a minute, but the changes that will come as a result of… If there’s a 6-3 Republican majority on the Supreme Court, this is exactly where the court will come back to, and Alito has already written this case. And I would argue that we should all be braced for an extension of these types of prohibitions, and these types of restrictions.

Anne Milgram:

And so, she made her voice heard on a lot of really, really critical cases. And I think, there are a lot of themes that we’ve now talked about, voting, we’ve talked about equal pay, we’ve talked about health care access and birth control, woman’s right to choose, and I think that this is… We’ve talked about sex discrimination. And I think what this is like, just sort of foreshadowing what we’re about to see, that this is part of the debate in the country now going forward.

Preet Bharara:

So, obviously, we have to get to what comes next, and one of the most heart wrenching things to hear on Friday night was a note, a statement that Ruth Bader Ginsburg shortly before she passed dictated to her granddaughter, Clara, in which she said, quote, “My most fervent wish is that I will not be replaced until a new president is installed.” Which by the way, President Trump trashed that statement and questioned the truthfulness of Ruth Bader Ginsburg’s granddaughter in a show of utter classlessness as usual.

Anne Milgram:

Well, I’m sure, I have no question that Justice Ginsburg said it. What I find particularly sort of interesting about it is that she said, new president, right? Which basically means, not Trump being re-elected, but someone new, meaning probably, Joe Biden. And obviously, I think she was saying… I don’t think that’s exactly what she was saying, but it’s an interesting choice of words, instead of saying, “Wait until after the election is over and the president sworn in in January,” basically saying, “A new president.”

Preet Bharara:

Yeah. I mean, look, people may recall that Ginsburg got into a little bit of trouble back in 2016 during the campaign, when she said, as a sitting Supreme Court Justice, negative things about Donald Trump, for which she later apologized. So, she obviously has strong feelings about things and felt strongly about this. So, let’s talk about the context that we’re in. Everyone is still… Not everyone, but I guess people on the Democratic side, are still very raw about how Merrick Garland was treated [inaudible 00:24:18] that he was nominated, because there was a vacancy because Justice Scalia passed away in early 2016, an election year, but early in an election year. And people presumed that Merrick Garland would be not only confirmed, but at least get a vote, at least get courtesy meetings with senators, and none of those privileges were accorded to him.

Preet Bharara:

Mitch McConnell made it very clear right from the early [inaudible 00:24:43] that in his mind, when there’s an election coming, you wait till the election and see who the new president is going to be. In this case, there was definitely going to be a new president because it was Barack Obama’s second term. Now, Mitch McConnell at the time and fairness to him, although he mostly played up the president, he mostly played up the angle of, anytime there’s a presidential election, you wait, if it’s in the same year. He did say on the floor this other distinction in this sort of narrower point, that that is true in his mind when the Senate is held by a party different from the president. But that’s not what a lot of other senators said, a lot of other senators said very flatly, and Lindsey Graham is one of them, that in an election year, a nominee should not be confirmed, making no distinction between circumstances where the Senate was held by one party, or another party.

Anne Milgram:

Yeah, I mean, I think a couple of points on that. Mitch McConnell’s speech… And we should talk about this. Scalia died February 13, 2016, the very same day McConnell makes a statement. And he says, “The American people should have a voice in the next Supreme Court justice, so we should wait until there’s a new president.” And that is basically saying like, “Look, it’s the last year.” That in my view is very far out. I mean, I don’t know when the primary election started that year, but you’re talking about the primary… Hillary Clinton hadn’t been selected as a nominee yet, the election had not really begun in February. And so, his argument is, oh, we’re going to wait all these months, essentially, almost a year until the new president comes in, which is a very long time, but we’re going to wait because the American people get to decide.

Anne Milgram:

Now, the heart of the argument is, the people should understand that there’s a vacancy, they should vote in the next election how they want the Supreme Court seat to be filled. He also said in 2016-

Mitch McConnell:

This is a unique circumstance and you’d have to go back to 1888 when Grover Cleveland was president, defined the last time, a vacancy created in a presidentially elected year was approved by a senate of a different party.

Anne Milgram:

That’s not an argument on principle, in my mind, and so I think you’re right to be fair to him to say, yes, he made this distinction in 2016, and he did. But that is really just a tactical, sort of who holds the political power analysis, which is to say, look, when the president and the senate are owned by the same party, that’s one thing, but when the president and the senate are not owned by the same party, you got to go back 130 years to find somebody confirmed. But again, that’s the outcome of what happened, that’s not the principle. The principle I think that he and Graham and others argued, was, the American people should decide.

Preet Bharara:

So, I have a couple of reactions to what you said, just to be clear, I’m being fair to Mitch McConnell, which is an odd sentence. I’m being fair to Mitch McConnell in so far as, he is not being as hypocritical today as Lindsey Graham and others were in 2016, because he has made… I’m not saying that his argument is correct, I’m not saying it’s good for America, I’m not saying it’s good for the Supreme Court, I am saying he’s a more clever person than some of the rest of these folks. And so, he is on the record as making this distinction between the senate being the control of the party that’s opposite of the president. So, when he says that today, it’s not made up out of whole cloth.

Preet Bharara:

At the end of this conversation, we will likely conclude that in fact, the person who stated the principle that’s at play here the best is the president, who said, basically, if you have the votes, you can do whatever you want. Which, in some ways-

Anne Milgram:

It’s basically, what it comes down to, yes.

Preet Bharara:

He kind of said it. Meanwhile, all these other folks are trying to put the patina of constitutionality and precedent, and reasonableness, and everything else. At the end of the day, the argument is, if you’ve got the votes, you can do whatever you want. The rest of you can go to hell.

Anne Milgram:

The president is right on that. And so, that’s why when you go back, and you look at the last hundreds of years of Supreme Court nominations and confirmations, when the party in power is… The Senate and the president are aligned, the nominees generally get through. When the president and the senate are not aligned in the last year before an election, they more often than not, do not get through, and that includes Merrick Garland. And so, yes. But let’s talk about Lindsey Graham, because I think he is… There’s a reason he’s galvanized so much anger and frustration, is because… I mean, it’s completely duplicitous where he has gone from in 2016, to where he is now in 2020. Do you want to walk us through the quotes.

Preet Bharara:

Yeah. And I have some views about this, I’ve been thinking about it a lot. Because he didn’t have to say these things. So, he said in the beginning of 2016, in March of 2016, at a Judiciary Committee hearing, quote… And I’ve been tweeting this every day, because there’s no-

Anne Milgram:

I’ve seen that.

Preet Bharara:

There’s no weasel… Unlike Mitch McConnell, he can’t weasel out of this. He had to take the position in the last few days that he changed his mind. Not that, oh, he’s been consistent all along. Mitch McConnell is saying, “I’ve been consistent all along.” Lindsey Graham has to say, “I changed my mind.” Because what he said is incontrovertible back in 2016, quote-

Lindsey Graham:

I want you to use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say, “Lindsey Graham said, “Let’s let the next president, whoever it might be, make that nomination.”” And you could use my words against me, and you’d be absolutely right.

Preet Bharara:

There’s no getting out of that. And then, not only did he say it then, then we got a Republican president and Donald Trump, and then he said at the Atlantic Festival in 2018, on October 3 of 2018, quote-

Lindsey Graham:

If an opening comes in the last year of President Trump’s term, and the primary process is started, we’ll wait till the next election. And I’ve got a pretty good chance of being the [crosstalk 00:30:43].

Speaker 7:

You’re on the record.

Lindsey Graham:

Yeah.

Speaker 7:

All right.

Lindsey Graham:

Hold the tape.

Preet Bharara:

Well, the primary process not only started, it’s over.

Anne Milgram:

The election has started, people are voting.

Preet Bharara:

People have started voting I think on the day that Ginsburg passed away.

Anne Milgram:

People are voting.

Preet Bharara:

There’s no getting around that.

Anne Milgram:

I mean, I think this a really important point. Yes. People have voted and people are voting. And we are literally, in the middle of a presidential election right now. And so, I don’t see any way he can get around it. He’s tried to say things like, “Well, the Democrats started problems.” It’s-

Preet Bharara:

Well, we should go through that. What did he say? He said-

Anne Milgram:

We should go through it. Yes.

Preet Bharara:

Yeah. He said two things, he said, “There have been changes,” because he can’t say I’m consistent.

Anne Milgram:

Yeah. So, it’s always important I think, Preet… And you and I do this a lot, but I just want to sort of explain to folks. It’s always important to sort of go through… What’s his argument? Right? What is he saying? And he’s basically now saying that the two biggest changes regarding the senate and judicial confirmations that have occurred in the last decade have come from Democrats. First, he says Harry Reid, who is the senate majority leader, a Democrat, changed the rules to allow a simple majority vote for Circuit Court nominees, which was true. And quote, Chuck Schumer and his friends in the liberal media conspired to destroy the life of Brett Kavanaugh and hold that Supreme Court seat open. Now, I just will point out, Brett Kavanaugh is a Supreme Court justice.

Preet Bharara:

He is?

Anne Milgram:

He is, and he went through a difficult confirmation process because I would argue there were sufficient evidence to warrant that level of scrutiny. In fact, I would argue he should have had more scrutiny, there should have been more of an investigation into his prior actions when there were questions as to whether or not he had been truthful. But that second one just is completely… There’s no argument to make for that. Basically, it’s saying, you treated him badly-

Preet Bharara:

Yeah, how is it connected?

Anne Milgram:

Yeah, it’s like high school, like, well, you weren’t nice to me, so I’m not going to be nice to you. But it’s not about being nice, it’s about… There is a legitimate basis to have a fair and thorough process. The Supreme Court is a huge, huge lifetime appointment, it’s the most important court in the United States of America. I don’t know how you can possibly argue. And by the way, Graham has been… As a judiciary committee member, grilled Democrats in the same way that Kavanaugh was was grilled. So, that lacks all merit. The second, what do you make of this sort of circuit argument? And maybe we should explain to folks the filibuster piece of it all.

Preet Bharara:

I don’t think it’s even as complicated as that. Because he has to come up with reasons because he has to explain why he’s changed his mind. Both of those things that he says are the causes for his changing his mind. From October 3 of 2018, both of those things had already happened, right? How are we to change the rules on filibustering Circuit Court nominees years earlier, even before he made that statement. And the supposedly mistreatment of Brett Kavanaugh also happened before the October 3, 2018 statement by Lindsey Graham. In fact, Kavanaugh was set to be confirmed three days later. So, even on its face, as a matter of time sequence, Lindsey Graham is trying to put some face on it, to try to explain the sort of raw assertion of power. But he can’t do it, because those things already happened.

Preet Bharara:

And as you point out, on the substantive basis, I don’t know why they’re linked to each other. There’s this way in which you guys have done bad things with respect to the nomination process, so I am now going to undo my word now that I’m the Judiciary Committee Chairman. He’s basically saying what Donald Trump is saying, except he doesn’t have the guts to say it. And that is, when you have the votes, you can do whatever you want.

Anne Milgram:

Yeah, that’s completely right. And the filibuster piece used to be that you needed 60 votes or more in order to basically be able to get a nomination through. Because that’s what you needed to break a filibuster, which is when… We’ve all seen Mr. Smith Goes to Washington, someone just stands up and talks and talks and talks, and can go on forever. And basically, that can stop a nomination from going forward. And the idea with the Circuit Court was to have it be a simple majority vote, 51 votes and you get confirmed, and that has been used by Democrats and Republicans. I think this is a slightly separate conversation about that, but I don’t think… This nomination has nothing to do with that filibuster action on circuit courts at all.

Anne Milgram:

And we should also point out that there are a number of circuit courts throughout the United States. There’s one Supreme Court, it is the highest court in the land, it is a lifetime appointment, and it just deserves a different level of treatment and respect and analysis. But just to be clear, Graham is just… He’s what I think, people do, and frankly, are justified in hating about politicians, which is that he just literally, flip flopped in plain view. He can’t make any of these arguments with a straight face. But you’re right, it comes down to, they have the votes, and so they intend to take advantage of it.

Preet Bharara:

Can I make another observation about this, because it’s been bugging me. Because Lindsey Graham is a smart guy, right? He didn’t have to say those things. And so, I started thinking to myself, why is Lindsey Graham saying those things in 2016? Why is he saying it again in 2018? And it occurs to me, there’s two reasons. One is, he actually somewhere, either feels bad about what they did to Merrick Garland, or wants to earn chits with the reasonable middle, with independents and others, and say, “Hey, look, we did this thing, but it’s a rule of neutral application. And if this happens again, in 2020, you guys can do the same thing to us.” Right?

Preet Bharara:

It bespeaks a need to try to explain and rationalize to reasonable people who are angry about the Merrick Garland treatment, I think, “Look, the door swings both ways. And it’s good for us, it’s good for you.” And that’s what’s going to happen to sort of explain and rationalize the treatment of Merrick Garland, which is very telling to me. In some ways, it’s kind of a cheap chit to get, right? Because the likelihood of that happening is not super high, right? So, he gets to have the benefit of sounding reasonable and saying it’s a rule of mutual application that applies to Democrats and Republicans, not depending on who has the senate majority. And he doesn’t have to… His bluff doesn’t have to be called because the likelihood is not that high. What do you make of that? Why would he say these things and put himself in such a bind like he’s in now?

Anne Milgram:

Well, I think it’s an interesting question as to why he said it in 2016, and part of it, I think, is because… Look, he was a prominent lawyer before he became a senator, and I think he sort of… He’s been on the Judiciary Committee for a long time, and so I think he just stepped into it, and was probably asked frequently about it. But now, the justification piece feels to me… Look, there’s a fundamental fairness piece to this. And I think because it comes so close together in time, it’s four years apart, I think all Americans should be asking the question, which is, why does Obama not get Merrick Garland, but Donald Trump gets to put in someone for Ginsburg’s seat? And it comes down, as you’ve said, simply to power, and all the arguments that they made in 2016 were lies, right? Basically, they should have just said, you don’t have the power, we do, and we’re going to block you. And they were dishonest about it.

Anne Milgram:

And so, there are a lot of people… With Graham, I sort of feel like, Look, President Trump, he can’t win with [inaudible 00:38:07], right? He needs some of the moderates, he needs some of the independents. And Graham may be able to win his election, but they just switched it from his election from Republican to Republican-leaning. And so, I think, he has to be able to answer the question of why he’s flip flopped. I don’t understand completely why he entered the fray in 2016 except that… I think he probably couldn’t help himself and sort of has played a prominent role. But now, I think he feels like he has to explain it, because there are a lot of people who I think will just say like, “Look, fundamental fairness, this is the most obvious version of something being unfair, and there’s no legitimate argument for it.” So, that’s just my view. But you make a great point.

Preet Bharara:

It’s just weird to me, because Graham said it, and he said it in a way that he wanted to express something about his own integrity. Because he didn’t just say it, he said, “You can use my words against me.” That’s a vestige of the Lindsey Graham, that I think people used to know, and that I used to know personally in the Senate, of a person who wants to make people think he’s a person of his word, that he has principles, he has integrity.

Anne Milgram:

And we should be clear that he has none. At least in my view, at this moment in time, people of integrity and people of their word do not do what he just said.

Preet Bharara:

Arguably, not anymore, but I find it endlessly fascinating that he decided to speak that way and in that language, and challenge people to challenge him in the future as he’s doing. And I think that when he goes home at night, he thinks to himself, how did I get myself in the spot? Because raw politics, sort of trumps everything, so to speak. So, I was going to say, the election is 42 days from today, but it’s not, the election is happening now. The election ends 42 days from today. And I think a big strategic question for the president is, is he going to try to get his Supreme Court pick through and voted on by the election or during the lame duck session. And I think the odds of prevailing, I hate to say it, are pretty high, ultimately. But they’re lower if it’s after the election for various reasons, right?

Preet Bharara:

Let’s take stock of where we are. There are 53 Republican senators, 47 Democratic senators, pre-election. Only two Republicans have suggested they may have a problem with proceeding, Lisa Murkowski, Susan Collins.

Anne Milgram:

Before the election.

Preet Bharara:

Correct.

Anne Milgram:

Just to be clear on this, they’ve sort of intimated that they don’t think… I think Murkowski was more clear on this than Collins, that there shouldn’t be… That the president who’s elected… If Trump is reelected, they could move ahead, but if not, that it should be the next president. If it’s Biden, it should be Biden’s pick. But I will say this, I read at least particularly in Collin’s statement some wiggle room around-

Preet Bharara:

Oh, absolutely.

Anne Milgram:

… what happens after the election. It’s very clear, she-

Preet Bharara:

She didn’t say. Yeah, we had this conversation [crosstalk 00:41:01].

Anne Milgram:

Yeah, she could have just said, there should be… The next president, whoever gets elected, and it’s going to be sworn in January of 2021, should get to pick the Supreme Court justice. She did not say that.

Preet Bharara:

But [inaudible 00:41:15] I mean, what she did say was, I think X should happen. She didn’t say if X doesn’t happen, I will vote a certain way. She didn’t commit herself. She was just like [inaudible 00:41:27]. You have to read her words very carefully.

Anne Milgram:

And it’s a lot of words for something that is a pretty simple concept. So, where I read, those 200% certain, is that they don’t think that the vote should take place before November 3, the election. That’s as far as I would commit them-

Preet Bharara:

Yeah, but it’s not clear to me what Collins will do before… And also, she’s in a very, very tough race. I think she’s actually behind in many of the polls in her reelection campaign in Maine. But that’s only two. So, you need four… The Democrats need to pull away four to prevent a confirmation [crosstalk 00:42:01].

Anne Milgram:

And just to explain why you need four, because if you only had three, then Vice President Pence could come in, right?

Preet Bharara:

Because it’s 50/50. Right.

Anne Milgram:

Yep, exactly.

Preet Bharara:

Now, after the election, let’s just do that hypothetical for a moment, a couple of things go on. If it is very clear that Biden has won quickly, and it is very clear that the Senate will be changing hands, some people suggest… David Frum is one of these people. I don’t know how much I buy it but let’s contemplate it for a moment. David Frum and others suggest, you know what? Then the dynamic will change, and then the context changes. And then, it looks even worse as a raw, obnoxious paragraph, when in a matter of days, you’re going to have a new president, a new senate, and if the undergirding principle of the McConnell rule from 2016 is, let the people decide, well, the people will have decided that they want something different, and they didn’t want Trump to make the nomination and have his Supreme Court Justice confirmed. That principle goes out the window, and will that cause some people in the Senate to change their vote? Now, how about it?

Anne Milgram:

Okay. So, I love that David Frum is so trusting, believing in the goodness of human kind, thinking that… And I do believe in the goodness of humankind but I think there’s an exception in politics to some of the general principles of how people conduct themselves. Look, should people feel exactly the way that Frum says after the election, if Biden wins, and it’s clear, and it’s quick, completely, yes. Will they? No. And again, it comes back to… We should also say, and we sort of, I think, maybe take this for granted, but people should understand that the Republicans have been voting on the Supreme Court for years. It is part of why Donald Trump won the presidency. It is why the Republicans have won more elections than Democrats, right? In the last 53 years, there have been 34 years of Republican presidents, 20 years of Democratic presidents.

Anne Milgram:

What is really clear is that the Republicans, when they send out mailers, political fundraisers, it’s all about the Supreme Court. It’s about abortion, it’s about the right to life. It’s about all… Basically taxes. But it really comes down to the power of the court. And I cannot begin to say how much I think that it’s a brass ring for them to get the seat. It will make it a 6-3 majority Republican. It changes the dynamic. When it’s 5-4, you just have to lose one. And we’ve seen that happen in the last Supreme Court term where Roberts sometimes voted with the four liberal justices, right? Think about the prior ACA case, Roberts voted with the liberal justices. Once you get six, that doesn’t happen. You have almost bulletproof conservative majority for the next 30 to 50 years, I would argue. And so, they’re not going to be able to resist.

Preet Bharara:

I mean, the other thing, there are two other sort of little dynamics that I’ll just mention, and I tend to agree with you. One is, that in the Arizona race, Mark Kelly looks like he’s going to win, you never know, but he’s far up in the polls. And because that is a special election, I think it was from McCain seat, Mark Kelly doesn’t have to wait until January 3 of next year to get seated. He can get seated later in November, and that the Supreme Court vote has not happened yet, that changes the numbers to 52/48, and then the Democrats only need three. And then, I’ll add one other thing. Again, I tend to agree with you, but there is a universe in which Susan Collins may have lost and know that she lost, and so she’s a lame duck and her political career is over.

Anne Milgram:

Right. And then, she just does the right thing by her conscience.

Preet Bharara:

Yeah. Although, we’ve already counted her as potentially, one of the two, so either way, it probably doesn’t make the difference. So, further, what you were saying, Anne, about how sort of energized Republicans have been in the past over this issue of the court, it seems to me they don’t have an advantage there this year. If you just look at the amount of money that came into senate campaigns on the Democratic side since Ruth Bader Ginsburg passed away, it’s kind of stunning. And I think the anger of how Merrick Garland was treated, and the anger at the possibility that a second seat will be taken, based on the principle that Republicans announced back in 2016, has made Democrats really, really angry, really energized, parting with their money in the middle of a recession.

Preet Bharara:

And also, understanding that this would be a swing way to the right, taking the liberal justice and replacing her with a very conservative justice. With respect to the election, I think it probably helps the Democrats take back the Senate, and maybe helps the Democrats defeat Donald Trump, which is different from how people usually think about this issue.

Anne Milgram:

So, I want to just argue against a couple of those points, and I think… Look, I would say I’m with you on one very big piece here, which is that I have never seen the Democrats as galvanized about the court as I think we’ve seen in the past week. To your point, $91 million was brought in for Democratic candidates in the 28 hours after Justice Ginsburg passed away. That is an extraordinary amount of money. And so, I think people have finally come to understand the importance of the Supreme Court. And I can tell you, it is the environment, it is climate change, it is healthcare, it is women’s rights, it is a woman’s right to choose, it is elections, it is campaign finance, it is everything that we sort of talk about, the Supreme Court ultimately has the last say on most, if not all of those things. And so, it is essential.

Anne Milgram:

So, I think the Democrats, I agree with you, they… This sort of feels to me like the first time that they’ve really mobilized around this. But I want to say, the counter to that which I do not think we can underestimate is that, first of all, the president, in my view, has done a terrible job handling the global pandemic, right? Handling in the United States. We’re now at about almost 200,000 deaths. It is the fourth largest mass casualty event in the history of the United States of America, right? This includes the Civil War, that includes the Spanish Flu of 1918. And so, this is a distraction from the reality of the day to day of what is an absolute crisis happening in our country right now. So, that’s one point. The second point is that… I think, the timing of the vote. I think that if the vote is after the election, that will really, really rile the base to get Trump reelected, to not want to risk anything.

Anne Milgram:

I tend to agree with you that the Republicans will try to move this before the election, if they can, because you have the Mark Kelly seat. There is sort of even more of a stronger argument that they won’t care, in my view, but it sort of builds some public pressure as time goes on. But I do think, the base is going to… I guess your argument is, they already value this so much, the base already comes out on it, that it’s not going to be a net difference. But I think the power of a tangible seat will really motivate the base.

Preet Bharara:

I think there are a lot of people who speculate that Mitch McConnell wants there to be a nomination, and wants there to be a fight. And he himself, notwithstanding these other possibilities with Mark Kelly, and whatever, that he may not want to have a vote before the election. Because what’s most important to Mitch McConnell is retaining the Senate. And to the extent that a vote before, causing some of his more vulnerable members to have to take a tough vote in a purple state, on a controversial nominee, in a controversial context… I mean, Mitch McConnell will do his analysis because he’s smart about these things, but there is a good basis to think that for him, he may care more about retaining the majority of the Senate, than getting this particular nominee through. And if there’s a balance between those things, it’s not clear to me which one he would choose.

Preet Bharara:

So, one of the things people are talking about with respect to what power Democrats have, they don’t have much, and this happens… Every time there’s a nomination, Democrats are the minority people, so why don’t they do something? That’s not allowed to do. Some people are suggesting more radical moves, like threatening to… I’ll use the word that other people use, pack the court. That has bad connotations from the time of FDR. But there is a suggestion, and it’s being espoused and embraced by people who wouldn’t have done that before. And that is to make clear that if you go down this road, and Biden is elected, and the Senate goes to Democratic hands, we will expand the court by two seats, three seats, perhaps more, and will expand the general federal judiciary, also to take back the two seats that they will say were stolen from us. Now, to be clear, Joe Biden has said on the campaign trail before-

Joe Biden:

Action, and reaction, anger and more anger, sorrow and frustration of the way things are in this country now politically. That’s the cycle that Republican senators will continue to perpetuate if they go down this dangerous path that they put us on. We need to deescalate, not escalate.

Preet Bharara:

That’s an argument people have been making about the filibuster being taken away with respect to Circuit Court nominees also. It’s something that I have not been in favor of. Congress can decide how big the court should be. It’s been nine justices since 1869. It’s not a provision in the Constitution, it’s something that can just be done by Congress. In years past, before 1869, Supreme Court had different numbers of members, sometimes six, sometimes nine, sometimes 10. And so, they can change it. And they can change it with the majority, so long as they change the filibuster rules about passing legislation, which is a different point of controversy. And I don’t love it, but at some point, when you’ve been mistreated, and when people have said as the President has said, if you’ve got the votes, you can pretty much do whatever you want. Well, what goes around comes around.

Anne Milgram:

Yeah, I think that this is absolutely going to be the debate we head into. And the one sort of distinction, I think on FDR, though I’m not sure it’s a strong enough distinction, but the FDR packing of the courts, his new deal legislation, everything he was doing was getting struck down, all his programs. And so, he basically wanted to pack the court so that he could get his policies through. This feels less related specifically to one project or one policy than it does to a question about, what’s the fair thing to do? I will tell you that what I worry about is, what’s to stop the next Republican aligned Congress and President from adding more justices?

Preet Bharara:

Nothing.

Anne Milgram:

And then, it’s like, where does this end? Right?

Preet Bharara:

And that’s Joe Biden’s point. Right.

Anne Milgram:

Right. He’s not wrong about that. So, I think the question is like, are there other solutions? You’ve supported… And I find really interesting the idea of an 18 year term for supreme court justices, right? So, I want to say, yes, let’s have a conversation about what all the options are. Let’s have a conversation about, do we need a constitutional amendment? Which I know is super hard to do, that sets in place some processes. I don’t want everyone to rush to the, we have to have more justices, because look, what goes around comes around, to your point. And it can become destabilizing if every single time there’s a different election, the Republicans add, the Democrats add. I think we have to have a serious conversation about that. I’m not saying I’m… I haven’t taken a position on it, because I want to look more at what the other options are.

Anne Milgram:

But I do think, it doesn’t matter, and this just will lead into the president’s potential nominees. And it’s been reported, he’s considering five women, and that he will put a woman on the court. It doesn’t matter which one of them it is, it will have a profound and devastating, in my view, impact on a lot of things that we care about in this country. And climate change, we don’t have 30 to 50 years to wait, right? To have significant environmental regulations in place that will protect the environment. A woman’s right to choose, we’ve already seen Roberts set it up in the past term in order to sort of have states come back and put more and more restrictions on those rights. All of that will happen.

Anne Milgram:

The ACA is the argument scheduled for a week after the election, the Affordable Care Act, whether or not the whole Act has to be struck down. My view is on the law, that it should be rejected completely. The Trump administration’s claim in their attempt to strike down the ACA should be rejected completely. But once the court… Even if it’s 4-4, you get another conservative justice, 5-4, that could also be struck down. And so, I think people have to understand how-

Preet Bharara:

It’s likely to be.

Anne Milgram:

Yeah, it’s really important. This is health care for pre-existing conditions, this is healthcare for 20 million plus Americans, all of that can be taken away, literally, with the stroke of a pen by the United States Supreme Court. And so, yeah, I mean, I don’t think any option can be off the table. But I think we have to be realistic about what those options… It’s not one move, it’s a chess match, and it’s a long term… You have to think 10 steps out.

Preet Bharara:

There’s a lot of frustration with respect to how Merrick Garland was denied his seat, and how they’re going to ram someone through after Justice Ginsburg passed away. But that’s on top of sort of this historical anomaly that I talked about last time when Brett Kavanaugh was being reviewed. And that is, that there’s been a disproportionate number of opportunities based on the vagaries of who retires when, and who dies when, for Republican nominations versus Democratic nominations. By the way, we should remind folks that Ruth Bader Ginsburg’s appointment to the court, back in 1993, before that, there was a 26 year drought, where no Democratic president was able to nominate someone to the Supreme Court. You had two Republican terms, right? Nixon, and, I guess, concluded by Ford, during which there were several Supreme Court nominations that they got to make. Then Carter, four years, had zero, because nobody retired or passed away during Carter’s term.

Preet Bharara:

Then you had 12 more years, you had two terms of Reagan, and the term of Bush. So, in that multi decade period, no nominations and appointments by Democrats. So, it’s a combination of the belief that these seats have been stolen. And also, just bad luck kind of, over time, where there’s disproportionate representation on the court by Republican nominees. So, there has been no announcement yet. We understand that the president will wait until Friday or Saturday to appoint someone. But if there is one, we don’t know about it, as we record on the morning of September 22. Should we end by talking about a couple of folks? Do you want to make a prediction, or?

Anne Milgram:

Yeah.

Preet Bharara:

Do we not want to look foolish?

Anne Milgram:

I mean, here’s what I’m going to predict. Well, I’m going to make the simple prediction, which is, the president has already said it’s going to be a woman, it is going to be a woman. I think there’s a couple of reasons why, but it’s-

Preet Bharara:

Great prediction, Anne.

Anne Milgram:

Yes, I know. But basically, the president has… He’s having an issue with women, sort of moderates and independents. And so, I think, he’s already said it, but it will absolutely be a woman. I think it will absolutely be a circuit court judge. There are folks on the list. I mean, we know he’s interviewed Amy Coney Barrett, she’s 48. She is a circuit court judge. And she basically is a… She’s a religious conservative. But again, she’s already been confirmed by the Senate. She’s not my… I don’t think it’s her. I mean, I may prove to be wrong, because I think the president very much will want to do her, but I think… She said that Supreme Court precedents are not sacrosanct. I mean, basically, she will not pass. If Collins does have any test along the lines of… And it may not matter, but if Collins has any test-

Preet Bharara:

She’s much more clearly anti-choice.

Anne Milgram:

Going to vote to overturn Roe. Yes.

Preet Bharara:

[crosstalk 00:57:32].

Anne Milgram:

But then, there are others like Lagoa. I don’t know if I pronounced that right.

Preet Bharara:

Barbara Lagoa.

Anne Milgram:

Barbara Lagoa.

Preet Bharara:

Can I say that I think-

Anne Milgram:

I think it might be her.

Preet Bharara:

I tend to think it might be her. She’s 52, also very young.

Anne Milgram:

Same.

Preet Bharara:

Cuban American from Florida. Here’s how I think about it. I think about what people’s motivations are, and what thing they want to maximize. And for Donald Trump, the reason he cares about the court is because he cares about his election, and he thinks it helps him get elected. And in a universe in which you want to maximize confirmation, there may be one candidate that he could pick, versus a universe in which he wants to maximize the likelihood that his pick will help him get elected or reelected, that might be a different person. And I think the idea of this pretty young, well connected, well spoken 52 year old Cuban American in the very important state of Florida, is irresistible to him for the election.

Anne Milgram:

I think that’s right. I mean, she sort of, in my… And also, look, she is an accomplished lawyer, right? I disagree a lot with some of her views, she’s a member of the Federalist Society, she’s close to the Florida Governor, but she’s been a state court… She was put on the Florida State Court by Ron DeSantis, Governor DeSantis in Florida. She’s been a circuit court judge. She got through her confirmation, it was 80 to 15 in her senate vote. So, she got 80 votes. So, I think in some ways, she’s in a very, very strong position. I want to make one interesting question or sort of argument, which is that, also there are two very young women, Britt Grant, Eleventh Circuit, close to Kavanaugh. She clerked for him, and she was a former Georgia Supreme Court justice.

Anne Milgram:

And Allison Jones is 38. She is, again, very conservative. She’s been called… During her confirmation hearing was called the young ideological extremist. But when you think about people who are very young, it means for a lifetime appointment, there on the court for even longer. And so, I’m with you on Lagoa, I feel like that would be the general move that someone like Trump would make for a variety of reasons. But I don’t fully count out him going with somebody who’s younger just to have longevity on the court.

Preet Bharara:

It sucks. There’s likely going to-

Anne Milgram:

It’s so hard for me to… There’s so much.

Preet Bharara:

There’s going to be-

Anne Milgram:

It’s so hard for me to pick one.

Preet Bharara:

There’s a decent chance that the next Supreme Court Justice is going to be someone younger than me, which is just a mark of my age.

Anne Milgram:

Yeah, same, same. We’re not in our golden years yet, but… But look, this is part of the game. And to your point on the potential 18 year terms, and I’m not saying that’s a perfect solution, but then, the age thing, it becomes less about the game of, who do you get on that will last the next 40, or 50, 60 years, so. Preet, just as we were talking about the Supreme Court, can we just use a Ruth Bader Ginsburg quote? Which was… When she was asked about when there’ll be enough women on the United States Supreme Court, she said, quote, “When I’m sometimes asked when there will be enough, and I say, “When there are nine,” people are shocked. But there have been nine men and nobody’s ever raised a question about that.” RBG.

Preet Bharara:

Well said by Ruth Bader Ginsburg. So, I hope people will take some time to remember her life, and her contributions, and her service. I think there’re going to be some services this week. And we’ll be back with you next week, where I’m sure there will be many developments in the Supreme Court confirmation battle, we will probably have a nominee. So, we’ll keep covering the story week after week after week as it develops. If you want to hear future episodes, and you’re not already a member, you can become a member at cafe.com/insider. To all our Insiders, as always, thank you for supporting our work, and for staying engaged.

Anne Milgram:

And please continue to send us your questions to [email protected]

Preet Bharara:

That’s it for this week’s Insider Podcast. Your hosts are Preet Bharara and Anne Milgram. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The senior audio producer is David Tatasciore. And the CAFE team is Matthew Billy, Nat Weiner, Sam Ozer-Staton, David Kurlander, Noa Azulai, Jake Kaplan, Calvin Lord, Geoff Isenman, Chris Boylan, Sean Walsh, and Margot Maley. Our music is by Andrew Doss. Thank you for being a part of the CAFE Insider community.