Preet Bharara:

From CAFE and the Vox Media Podcast Network, welcome to Stay Tuned. I’m Preet Bharara.

Jeffrey Rosen:

Look, it’s an understandable talking point if you’re going to try to score some cheap political points, but it’s impossible to paint her as a sympathizer for terrorism, and it’s not fair to paint her as approving of the clients that she rightly represented with zeal.

Preet Bharara:

That’s Jeffrey Rosen, he’s the President and CEO of the National Constitution Center, a nonpartisan organization, with the mission to increase awareness and understanding of our founding document. He’s also an expert on the Supreme Court, the justices who have shaped its jurisprudence, and the court’s evolving role in today’s world. The court is set to make history, as the Senate judiciary committee holds confirmation hearings for Judge Ketanji Brown Jackson, who had become the first Black woman to serve as a justice.

Ketanji Brown Jackson:

I stand on the shoulders of generations past, who never had anything close to this opportunity.

Preet Bharara:

Rosen joins me to discuss the historic nominee, assess the hearing, and look ahead to the important issues facing the Supreme Court this term. That’s coming up, stay tuned.

Preet Bharara:

Folks, before I get to your questions, a reminder. As you may have heard, we’re bringing Stay Tuned to New York’s Town Hall Theater, for our first live show in over two years. I’ll be in conversation with Garry Kasparov, the chess grand master, and one of our most powerful voices on Russia and Ukraine. And with Ben Stiller, the hilarious and brilliant actor, director, producer, and Goodwill Ambassador for the UN Refugee Agency. And in the latest development, guess who else will be joining us on stage as a special guest? Alexander Vindman, he’s the retired US Army Lieutenant Colonel, and former Director for European Affairs at the National Security Council. He’s also the author of Here, Right Matters, an American story.

Preet Bharara:

It will be a night that will make you think and laugh and reflect. You’ll also learn a whole lot about the challenges facing our democracy and the rest of the world. The show is next Thursday, March 31st, at 7:00 PM. You can get tickets at cafe.com/events. And if you purchase low seats, you’ll also receive three free months of the CAFE Insider subscription, which gives you access to my weekly podcast with Joyce Vance, and a wide variety of exclusive written content at the intersection of law and politics. So join Garry, Ben, Alex and a huge number of other CAFE fans, at New York’s Town Hall Theater next Thursday. Again, you can get tickets at cafe.com/events. I can’t wait to see you there. Now let’s get to your questions.

Preet Bharara:

This question comes in a tweet from Jason G, who asks, what is your prediction for the number of Republican votes that Judge Jackson garners for her confirmation? So that’s a great question. Let me just say at the outset that I have caught not all, but pretty substantial portions of the confirmation hearings that have gone on, I’m recording this at five o’clock on Wednesday, day three of the confirmation hearing. And I think overall, there’ve been some flashes of controversy and some battles that Republican senators are trying to get into with the nominee, but overall, I think there has been nothing that’s game changing. In other words, nothing that is going to ruin the momentum that she has to actually become confirmed as the first Black woman to be in the United States Supreme Court. I tweeted last night, very simply without much analysis, she’s getting confirmed.

Preet Bharara:

Now, I also think the Senator Durbin, who’s the current chair of the Judiciary Committee, has been doing a great job moving it along and also, and probably to the irritation of some Republican senators, but I think to the satisfaction of many others who want a good process, has been doing some commentary after Republican senators are doing their rounds, and correcting the record and putting things into the record. So I think overall, this is one of the smoother confirmation hearings that we’ve seen in recent times. And by the way, one thing that I think we know for sure, separate and apart from Judge Ketanji Brown Jackson’s intelligence and qualifications, is we know something about her temperament. And I know that all nominees are asked to keep cool as a cucumber, that doesn’t always happen, it certainly did not happen with Justice Kavanaugh. But I think we can tell from just her sitting at the table for three days, what kind of poise and temperament she has, and is one befitting a Supreme Court Justice.

Preet Bharara:

Now I speculated about number of Republican votes with Joyce Vance, on The Insider Podcast this week, as people may recall, when she was confirmed to be a US Appellate Court Judge in the DC Circuit, there were three Republican votes, Susan Collins, Lisa Murkowski and Lindsey Graham, I don’t think that all the Republicans have voted against her, I don’t think there’ll be someone who flips back in favor of her. Joyce was more optimistic, I’m not. So I think the maximum number we’re working with is three Republicans. I think she definitely gets Collins and Rakowski, just based on reading the tea leaves. Now, Graham is a wild card. My view before the hearings began, and even as late as yesterday when Joyce Vance and I were debating it, that he would, at the end of the day, do the thing that he takes pride in doing, which is voting for very qualified and credential nominees, even from the other party’s president.

Preet Bharara:

You may have seen that there was a very, very aggressive round of questioning that Graham did, with respect to Judge Jackson, that has raised some eyebrows. That’s maybe a sign that he’s trying to lay a record, given his prior anger over the Kavanaugh hearings apparently, that he’s trying to lay a foundation for flipping his vote, and saying DC Circuit was okay, but in light of other circumstances, because the Supreme Court is different in scope and in stature, and I guess in some bank shot argument because of the way Brett Kavanaugh was treated, he’s setting the stage for voting against this nominee. I still think there’s a shot, so I’m going to hedge and say anywhere from two to three Republican votes for Judge Jackson.

Preet Bharara:

This question comes in an email from Susan, who writes, I saw Steve Bannon was in court last week, do you think he’ll get off the hook for contempt of Congress? Well, Susan, I’m sure he hopes so, and he’s being aggressive in his defense, and as not completely unexpected, he and his lawyers are making the argument that Steve Bannon essentially has immunity from having to appear before Congress. And that’s the basis of the contempt of Congress, the January 6th committee issued a subpoena for documents and testimony to Steve Bannon, and he basically just ignored them and showed not necessarily in the official term just yet, but he showed contempt of Congress by ignoring the subpoena, literally. Now my view is that the argument for broad immunity for somebody like Steve Bannon is ill placed, has no merit, and would be rejected by a reasonable judge.

Preet Bharara:

I think there’s a reason why the Justice Department, who has not been super quick to take action on certain kinds of things, why they only took a couple of weeks after the referral from Congress to actually indict Steve Bannon out of the US Attorney’s Office for the District of Columbia. And now you’re seeing the same kinds of fights that we’ve seen before, with respect to over broad and sweeping claims of privilege and immunity. The one reason there’s maybe some doubt about how this will turn out is that the District Court Judge, in the case, Carl Nichols looks like he’s taking a little bit more seriously than people would’ve expected, this idea of immunity. And in an ironic move in the last week, has said to the Department of Justice, that they need to disclose internal deliberative documents about how they made the decision to indict Steve Bannon, in light of the fact that there are memos at the department talking about broad immunity and privilege for advisors to the president.

Preet Bharara:

The reason why I think it doesn’t make any sense, and Joyce and I talked about this, this week also, is that unlike some other folks, like Mark Meadows, Steve Bannon had not been a government employee for years at the time of the conduct question, and certainly at the time that the subpoena was issued. To me, that settles the issue. So maybe there’ll be some back and forth in litigation, and the judge is trying to make a full record for the public, but if there is justice and right in the world, Steve Bannon will not get off the hook.

Preet Bharara:

This question comes in a tweet from Twitter user @TheKidKinso. The question is a bit of a fun one, how do you feel about the tradition of political figures appearing as themselves on TV, corny, earnest fun or unbecoming of their stature? Would you ever do a cameo as yourself? If so, what show would you want to guest on? I think you’d be great on Curb Your Enthusiasm. I think that’s a good question, and my initial reaction is, yeah, I like seeing political figures appearing as themselves. I think, yes, it’s good, earnest fun. It’s not even always corny. It shows people to be human, it shows people to have a sense of humor. It’s especially fun and interesting when the political figure gets made fun of a little bit on the program. So I think it’s all in good fun, and I think it’s fine.

Preet Bharara:

And there have been people who have done it over time somewhat famously, Patrick Leahy, still serving in the United States Senate, has famously appeared in multiple Batman movies as himself, as Senator Leahy. Other people you know of, like Hillary Clinton and others, have appeared on TV shows, which I think is all good fun. But then I remember there’s some people that, at least at the moment, before they were in politics, I do not like seeing on TV shows or in movies, namely the former president of the United States, Donald Trump, who’s been in a number of films, including Home Alone 2.

Preet Bharara:

And then as I recently watched, for doing research for my upcoming live show, that includes Ben Stiller and Gary Kasparov, and Alex Vindman, I watched Zoolander, and was mortified to see gracing the television screen, none other than Donald Trump himself. Look, Curb would be a great show to be on, but there’s a terrific example of someone who’s not quite a political figure, but a very significant figure, and I just mentioned him a moment ago, Lieutenant Colonel Alexander Vindman, appeared on the final episode of the most recent season of Curb Your Enthusiasm, and he was great. So I don’t think I can top him. And come to the show, maybe I’ll ask him about it. Stay tuned, there’s more coming up after this.

Preet Bharara:

Judge Ketanji Brown Jackson is President Biden’s first nominee to the Supreme Court. If confirmed, she will also be the first Black woman and first former public defender on the court. Jeffrey Rosen is the President and CEO of the National Constitution Center, and host of the center’s We, The People podcast. He’s also one of the nation’s foremost experts on the history of the court and its justices. Jeffrey Rosen, welcome to the show.

Jeffrey Rosen:

Great to be here.

Preet Bharara:

It’s such a treat to have you. As people know, from the introduction, you are the President and CEO of the National Constitution Center. And if I might say a couple words about that, we’re a nerdy family, and some years ago, when we were planning a family vacation, didn’t have a lot of money to spend, we took a very exotic family vacation with our three kids, to Philadelphia, the great city of Philadelphia. And one of the highlights of the trip, I will say, and you have not paid me to say this, was our visit to the National Constitution Center. A, because it’s just a wonderful museum and the kids were able to learn a lot, I was able to learn even more myself, but then the other thing that was going on, and I’m sure you recall this, there was a special exhibit. Do you recall the exhibit I’m speaking of?

Jeffrey Rosen:

I don’t. Which one was it?

Preet Bharara:

I won’t make you guess, the Bruce Springsteen exhibit. Now the genius of having both the constitution on display and Bruce Springsteen artifacts and pictures and magazine covers, was genius. So I want to thank you for that.

Jeffrey Rosen:

Well thank you for that. Thank you for the great plug. That was not my idea, that was my predecessor. But since then, we’ve been privileged to have you back at the Constitution Center, it was so great to host you on your book talk a few years ago. And we just installed a few weeks ago, Preet, I can’t wait for you to see it and for your listeners to see it, the words of the First Amendment, 50 feet high and 75 tons of marble. They used to be at the museum in Washington, we’ve just installed them at the Constitution Center, overlooking Independence Hall, and it is overwhelmingly moving and powerful. When I saw it for the first time in person, I got choked up just to see the words of the First Amendment shining over Independence Hall, it’s an amazing experience.

Preet Bharara:

Even though maybe the First Amendment is much misunderstood these days, would you agree with that?

Jeffrey Rosen:

Yeah, I would, and that’s why all of our phenomenal educational programs on the First Amendment are so great. We were mentioning right before the show, that during COVID, the National Constitution Center really went digital and the digital platform is to educate people about the First Amendment and the rest of Constitution, have just gone through the roof. We had this incredible platform called the Interactive Constitution, which has now gotten 55 million hits since we launched, and we’re now the third most visited museum website in America.

Preet Bharara:

Can you tell folks what the website is?

Jeffrey Rosen:

It’s constitutioncenter.org, and you’ll find the Interactive Constitution and all this other great stuff we’re talking about, it’s so exciting.

Preet Bharara:

Can we clear something else up, Mr. Jeffrey Rosen, if that is your name?

Jeffrey Rosen:

Yes, sir.

Preet Bharara:

You were not the acting Attorney General of the the United States.

Jeffrey Rosen:

I like to say, when people were calling on me to invoke the 25th Amendment, I was the wrong Jeffrey Rosen.

Preet Bharara:

Did that cause some confusion in your life?

Jeffrey Rosen:

It caused a great deal of confusion. I was getting Twitter bombed, and my family was trying to insist that I was not trying to overturn the election. And I’m glad that my doppelganger filled the Rosen name with honor, by refusing to participate in the coop. So he did quite well, but he’s Jeffrey A. Rosen and I’m Jeffrey-

Preet Bharara:

Jeffrey, the Rosen. Are you Jeffrey the Rosen? No.

Jeffrey Rosen:

No, no, no, there’s no Jeffrey the Rosen. Everyone went to summer camp with a Jeffrey Rosen too, but now there are a bunch of us who are doing legal stuff. So that’s the confusion.

Preet Bharara:

It’s a byproduct of, I guess, the social media digital age, there’s a guy on Twitter whose name is not Matt Gaetz like the Congressman, but his name is, I think it’s Matt Gertz, and he’s constantly getting bombarded. And I think his Twitter bio says, not Matt Gaetz, he’s a different guy. So as we’re speaking on Wednesday morning, March 23rd, I have in the background on mute, the confirmation hearing for Ketanji Brown Jackson, I think Senator Grassley is in the process of his second round. And I’ve been watching a bunch of it, a lot of Americans have been watching it, and that’s why we thought it would be a great moment to have you on the show. Can I ask you a broad question? how do you think, before I ask you how the nominee is doing, how do you think the committee is doing? How do you think first, the Chair, Senator Durbin is doing?

Jeffrey Rosen:

If I could say more broadly that, and then I’ll answer the question, in the spirit of Justice Jackson, who’s answering the questions or Judge Jackson, the standard line on these hearings is just Kabuki theater, it’s politics, we can’t learn anything, the senators ask scripted questions and the nominees evade them. I don’t think that’s right. I think we can learn a, this is our last chance, our only chance for a justice who’s likely to serve for 30 years, to hear her in her own words, to hear her heart and her approach to the Constitution and her background and her family and what she cares about. And we’re learning an awful lot from her, just in the interstices by listening to all that. In terms of the committee, it’s a painful partisan spectacle, and it’s been conventional wisdom to lament the polarization of the confirmation process, which has been a long decline ever since the Bork hearings in 1987, with each side getting worse.

Jeffrey Rosen:

And then we’re now at a state age where basically a nominee can’t get any votes from the senators on the other side, so the questions are pat and scripted, but the degree of demagoguery and partisanship is painful. I think that Dick Durbin is doing a fine job, he’s maintaining he’s cool in the face of harangues by Ted Cruz, about the question of whether both sides are getting access to the same information or not. And just since you ask, I have to say that I thought Senator Graham’s asking the nominee about her faith, to rank her faith on a scale of one to 10, was among the most McCarthyied and demagogic moments. I’ve heard in the Senate.

Ted Cruz:

I’m just asking this question because, how important is your faith to you?

Ketanji Brown Jackson:

Senator, personally, my faith is very important, but as you know, there’s no religious test in the constitution under article six and-

Ted Cruz:

There will be none with me.

Ketanji Brown Jackson:

And it’s very important to set aside one’s personal views about things, in the role of a judge.

Ted Cruz:

I couldn’t agree with you more and I believe you can. So on a scale of one to 10, how faithful would you say you are?

Jeffrey Rosen:

It was just chilling to hear that, and I know he was trying to make a point about Justice Barrett.

Preet Bharara:

What do you think was going on there?

Jeffrey Rosen:

Well, he was saying that, look the Democrat … the Republicans are bitter. they think, look at what happened to Justice Kavanaugh, it just wasn’t fair he was subjected to all of these questions. And then for Senator Graham, he said, Justice Barrett was asked about her faith and Senator Feinstein said, “The dogma burns bright within you. So how do you feel? I’m going to show you. But it’s just completely contrary to the foundational values of America, to interrogate someone about their conscience, their unalienable right to conscience. That’s why we fought the American Revolution, is to avoid those religious testos, and it was creepy to hear it, in my book.

Preet Bharara:

Is it odd that the shadow of the Kavanaugh hearing loom so large, even though that was two Supreme Court nominations ago?

Jeffrey Rosen:

I don’t know, it’s striking certainly, and I know that, because they say so, Republicans feel that the nominee was very ill treated and that it was a smear and it had huge political implications and the wounds are very bitter. And of course, the Democrats feel equally bitter about the treatment of Merrick Garland and the rush to fill Justice Ginsburg’s seat. So it is what it is, as they say in the movies, if you’re a president, you can’t get anyone confirmed to the court unless you hold the Senate and even then, you got to have 51 votes or you can’t get through.

Preet Bharara:

Do you think the days of, I think you alluded to this, the days of a strong bipartisan vote in favor of a Supreme Court nominee of either party, are over, that that’s never coming back?

Jeffrey Rosen:

Yes, they seem to be over. I mean, without some structural change in our politics or in the court, it’s hard to imagine them coming back.

Preet Bharara:

And so part of that is the new feeling that merely being superbly qualified, having great credentials, having clerked on the Supreme Court, having experiences, an Appellate Court judge, in this nominees case also, a District Court judgeship, that both parties have now firmly established that they will look beyond qualifications to things like ideology and other issues. That’s a permanent feature as well?

Jeffrey Rosen:

Yes. Although looking to ideology or judicial philosophy is not new. In a Zelig like moment, as a young, I guess, I was just out of college, I was an intern for Joe Biden during the Bork hearings, and he was chairing the Bork hearings. And he made a speech saying that it was legitimate to consider the judicial philosophy of nominees. And that was a unusual position at the time, and because in 1987-

Preet Bharara:

It was a new thing.

Jeffrey Rosen:

It was a new thing, before it was just if the American Bar Association says you’re qualified, the presumption is you go right through with a grateful bipartisan vote. The Senate says, “Congratulations, welcome to the Supreme Court. And Senator Biden, and I was just doing the footnotes here, made the case that there was a, ever since the founding, there had been a consideration of judicial philosophy.

Jeffrey Rosen:

He remains very proud of that speech because he thought it was important to focus the hearings, and in particular, the Bork hearings, on the philosophy of the nominees. So that was the beginning of all this. There’s nothing wrong with focusing on the philosophy of a nominee, in fact it’s appropriate for a Senator to vote yes or no based on whether you broadly agree with a nominee. But what’s happened now is it’s really, there’s no actual consideration of philosophy or the balance of the court, it’s just Republicans won’t vote for Democrats and vice versa. I mean, that’s what we’ve got to. This seat has no consequences for the ideological balance of the court, it’s three to six court, this is about as moderate a Democrat as you could ask for, so maybe she’ll pick up one or two Republican votes. If not, that just shows how it’s literally impossible to get any bipartisan support at all.

Preet Bharara:

As you say, she’s about as moderate as you could ask for, how do you compare her on the ideological spectrum to Justice Sotomayor, and Justice Kagan?

Jeffrey Rosen:

Well, that’s an important question, of course, and that is what we’re learning from the hearings, to compare Justices Kagan and Sotomayor, of course broadly, they vote together much more often than not, and in the five to four, six to three cases, they tend to stick together. But at least when there was a five to four Roberts Court, before Justice Ginsburg’s passing, there were some cases where Justices Kagan and Breyer would join Chief Justice Roberts, to carve out a pragmatic compromise, and Justices Sotomayor and Ginsburg would be in dissent. An example is the affordable care act case, where in a part of the decision that got less attention, Kagan and Breyer agreed to strike down the mandatory Medicaid expansion, basically in exchange for Roberts agreeing to uphold the mandate. And that kind of pragmatic compromise marked the middle of the Court, and Justice Kagan was also more willing to compromise with the Conservatives in religious freedom cases, where sometimes Justices Sotomayor and Ginsburg were in lone dissent.

Jeffrey Rosen:

So I guess what we want to know in terms of the dynamic of the liberal block, is whether Justice Jackson would be more like Justice Kagan or Justice Sotomayor, and we can’t know that yet, and she may not even know that yet until she gets on the court. But we have seen, in the course of her hearings, how incredibly judicious she is, that’s the word that keeps coming to mind. She’s a judge’s judge. She described her judicial methodology to Dick Durbin and said that there were three components of her judicial philosophy, she followed three steps. First, she makes sure she’s proceeding from a position of neutrality and clearing her mind of preconceived notions and setting aside personal views. Second, she says she receives the inputs for the case, including the briefs and the parties and the factual records. And the third step she says, is the interpretation and application of the law to the facts.

Jeffrey Rosen:

And this is where I’m observing the constraints on my judicial authority, there are many constraints in our system and importantly, judges have limited authority. That’s a very judicious, moderate judges judge approach. And it suggests someone who, as we’ve heard throughout the hearings, is not an ideolog within an agenda. Constantly is saying in response to every question, “I’m doing what Congress required me to do. In establishing these sentences, I was balancing the congressional requirements or in interpreting statutes, I’m just doing what Congress said.” So her temperament, in any event and her and her general approach seems to be more of the pragmatic, moderate approach, which is why she embraced Justice Breyer’s emphasis on bringing all sides together and harmonizing and conciliation and said that he was a model. So just based on two days of really interesting exchanges, she appears to be more in the Kagan than Sotomayor mold, but I’m sure she’ll establish her own voice and her own approach.

Preet Bharara:

I wonder if you note another trend, and that is there’s been a history, going back a century on the court, of justices who evolve while they’re on the bench and they change their views and they come to new conclusions about the law and the nature of the constitution, how to interpret it. Seems much less so these days, that justices arrive fully formed and then adhere to the same principles and ideology and judicial philosophy for their entire 30 or 40 years. It doesn’t seem to me, unless I’m missing something, that Justice Thomas has changed in any particular way. Do you think that there is less evolution on the part of justices of late?

Jeffrey Rosen:

Great question and broadly, yes. Justice Thomas famously says, “I’m not evolving,” because the idea was David Souter evolved, and he said he won’t. He also has a sign in his chambers that says, please don’t emanate in my penumbras, making a reference to the Griswold versus Connecticut contraceptive case, talking about penumbras formed by emanations from the constitution. And broadly, the originalist or textualist justices, Justices Gorsuch, Thomas Alito, and to a lesser extent, but still in the same camp, Kavanaugh and Barrett, are not going to evolve because their very methodology prohibits that, the text and history are clear and let the heavens fall. It’s a pretty rigid approach to the constitution. The liberal justices had evolved, Justice Ginsburg evolved, the great RBG began her career as a judge’s judge, as a judicial minimalist, who was questioned by some liberals for not being progressive enough and for questioning Roe V. Wade for being too broad, but she changed because her role changed.

Jeffrey Rosen:

When she became Senior Associate Justice, she told me in a series of interviews I was lucky enough to have with her, that she thought that it was important for the liberals to speak in one voice and that she should write the leading dissent. And that was around 2011, she became Senior Associate Justice, when Justice Stevens retired, 2013, her Shelby County dissent went viral and turned her into the notorious RBG, and suddenly she began speaking in a much more passionate, fervent, crusading, visionary voice, than she had before. So what changed for her was partly her role, but also the polarization on the court. She just was appalled by the majority opinions in Shelby county and Citizens United, in the Sternberg partial birth abortion case, which she told me were among the worst cases that the court had ever decided. And because she thought the Conservatives were not compromising, she said so clearly.

Jeffrey Rosen:

That dynamic is what’s going on now, more broadly in the court, and if the court narrows or overturns Roe, as seems likely in a couple months, and in the Second Amendment cases and cases like affirmative action, it polarizes and Chief Justice Roberts’ goal, I’ll call it a noble goal, because I share it, of trying to avoid these five to four splits and finding common ground. If that basically fails in all these big cases, there’s not going to be much evolving on either side. The liberals are … you won’t even see … Justice Breyer famously broke ranks with the liberals in some cases involving free speech and criminal procedure, where he was a little more conservative than some of the liberals, but he was with all the cases involving race and involving abortion and stuff. So basically once the court polarizes, then both sides dig in their heels and there’s not much evolving at all.

Preet Bharara:

You used an interesting word a minute ago, typically we think of judges and justices as appropriately not having an agenda, and if someone is a crusader, you think of them as having an agenda, and you mentioned that term crusading, with respect to Ruth Bader Ginsburg. Is it appropriate for justices to be crusaders?

Jeffrey Rosen:

It’s appropriate for them to be crusaders for a constitutional vision. Think of the greatest justices in history, I think of one of my heroes, Justice Louis Brandeis, he was a crusader for free speech and for privacy, he wrote the greatest decisions on free speech and privacy in the 20th century. And I just can’t help but quote his inspiring words on free speech, “Those who won our revolution, believe that the final end of the state was to make men free to develop their faculties, and that in its processes, the deliberative forces should prevail over the arbitrary.” I can keep going, because I’ve memorized it as a party trick. But those are the words of a visionary, of a crusader for free speech. At the same time, Brandeis had a very constrained sense of the judicial role. He thought of the states as laboratories of democracy, he thought that only in small scale communities, because he denounced the curse of bigness, could people govern themselves and develop the habits of virtue that were necessary for self-actualization. So he didn’t think the judges had all the answers.

Jeffrey Rosen:

It’s a tough line and people will disagree about where to draw it, based on how they evaluate the results really, but being a crusader for a political agenda, is not appropriate for any judge. Everyone agrees on that. But even being a crusader for an inflexible methodology, which always leads to the same place, I think is not appropriate. And that’s why I’ve just come increasingly to think that Learned Hand line that Justice Ginsburg used to quote, “The spirit of liberty is the spirit that’s not too sure is right.” Some sense of judicial humility. Or Holmes, “A constitution is made for people of fundamentally differing points of view.” Basically not my way or the highway and believing that the answers are simple. When in the eyes of the other side, they’re so much more complicated.

Preet Bharara:

Do you quote frequently and fabulously from Supreme Court opinions on your podcast?

Jeffrey Rosen:

I have a limited number of party tricks, which I play, I tout out. So there aren’t too many left.

Preet Bharara:

Because I enjoyed that very much and I think people should tune in for that. If you don’t do it much, you should do it more frequently, I think, and learn some more fabulous quotes.

Jeffrey Rosen:

Can I just share my excitement for this cool new research?

Preet Bharara:

Yeah, go ahead. Yeah.

Jeffrey Rosen:

We’re calling it the Founder’s Library, but we’re putting online primary sources from American constitutional history, selected by America’s top liberal and conservative historians, and we’ve been doing special podcasts around the documents in the Founder’s Library. So we did a First Amendment podcast with Robert Post and Keith Whitington, where I did read Brandeis, Holmes, Warren, 10 of the greatest Supreme Court, free speech opinions that they selected. We do other things on what to a slave is the 4th of July, from Douglas. And I’ve become such a fan of primary sources, just reading these sacred words aloud is so exciting and learning from them is wonderful.

Preet Bharara:

By the way, you’ve mentioned a few times now that you showcase both liberals and conservatives or progressives and conservatives, and it makes me wonder, are there centrists and moderates on these issues these days?

Jeffrey Rosen:

When liberals and conservatives talk together, I’m blown away and surprised by how often they find common ground. Not that the point is to do some sort of mushy compromise, but when you bring together people, thoughtful people and debate issues in constitutional rather than political terms, which is our mission, which comes from Congress, because the National Constitution Center is a private nonprofit, but we have this amazingly inspiring mission that Congress wrote into law at the bicentennial of the Constitution, when it created center. And I read the mission statement allowed at the beginning of the podcast every time, “The National Constitution Center is the only institution in America chartered by Congress to increase awareness and understanding of the Constitution, among the American people, on a nonpartisan basis.” It’s a very sacred, inspiring mission. So we’re very mindful about bringing together people of different points of view, conservative, libertarian, and progressive.

Jeffrey Rosen:

And yes, you never cease to be surprised. So for example, just last week, the podcast was about a very wonky topic that maybe will be as exciting to your listeners as it was to ours, the independent state legislature doctrine. Can a state legislature, after you have an election, like the election of 2020, basically either reject the ballots certified by a Federal Court or prevent a Federal Court from extending deadlines to read mail in ballots. And a bunch of conservative Supreme Court justices have said, the state legislatures, according to the text of the constitution, get to appoint electors and they could do anything, maybe even not have a popular election after the vote is held.

Jeffrey Rosen:

So we had on Vik Amar and Evan Bernick, a progressive and a libertarian, both of them originalists, and they both agreed unequivocally that the doctrine is totally made up. It’s based on a really simplistic reading of one word and one constitutional clause that’s counteracted by the use of the legislature in a different clause, and then the history and precedent are overwhelmingly against it. That was an example of how just taking the time to debate a rather complicated issue, shows that there are good and bad arguments and there really wasn’t a great argument for it. And I find that again and again, that when you take the time in good faith to just let people have their say and reason together, there’s another great Brandeis line, “Come let us reason together,” often you find unexpected areas of constitutional agreement.

Preet Bharara:

And is that particularly true when the people who are participating are unelected, are not elected officials?

Jeffrey Rosen:

That’s so crucial, absolutely.

Preet Bharara:

Who are not trying to run for president. I mean, look, the specter of running for the presidency, to me, has always loomed large on these matters and you can almost predict, and this is on both sides a little bit, there is showboating because to make a splash at a Supreme Court conformation hearing, I think particularly on the right, because the right historically and the polls show this too, have cared more about the makeup of the court and getting justices of their persuasion on than the liberals have. how distorting an effect is future presidential aspiration.

Jeffrey Rosen:

Well, you made a really important point about how the right has really cared about the courts. To their credit, I mean, this is the major accomplishment of the right over the past 30 years, has been the transformation of the court, it was a very mindful vision and they achieved it. And President Obama was said to have lamented in private, that he didn’t pay more attention to the courts, and Democrats should have. And yes, if you’re running for president, you’re going to show boat and in the hearings, it’s not just the president, but it’s the midterm elections, all of those demagogic themes trying to paint Justice Jackson or Judge Jackson as soft on child pornography, is silly, she’s obviously not, but that’s just for the midterms.

Jeffrey Rosen:

I do think it goes on both sides and in the nonpartisan National Constitution Center spirit, there was plenty of distortion of the records of some of the conservatives as well. But it’s running for president, it’s trying to get reelected to Congress, and it’s also just the Twitter sphere and our media environment, where you have to play to your base. And these are really complicated issues, most of them, constitutionally, and they take a while to explain, and there’s not a big audience for more than 10 seconds on the independent state legislature doctrine, so you need an hour long podcast to play it out, and there’s not a big market for centrism.

Preet Bharara:

We’ll be right back with more of my conversation with Jeffrey Rosen after this. So let’s talk about the nominee again, and you mentioned some of the criticism she’s getting and I want to get to the child pornography discussion in a moment. But before we do that, what do you make of this criticism of her, that she was a public defender and among other things, represented people accused of terrorism, and not only did that, but as the RNC put out a statement saying that she did so in a zealous manner, how fair or unfair is that criticism?

Jeffrey Rosen:

I thought one of her most effective responses in the hearings yesterday was that it’s the essence of a lawyer’s job to represent clients as zealously as possible.

Ketanji Brown Jackson:

Respectfully Senator, when you are an attorney and you have clients who come to you, whether they pay or not, you represent their positions before the court.

Jeffrey Rosen:

I think one of the democratic senators read from a statement by a Republican Senator who said precisely the same thing in a previous hearing. And it’s so very important in this time when Twitter mobs on both sides are hammering lawyers for just representing unpopular clients, for her to make this point and not to equate her representation with approval of the views in question. In addition to all that, she also argued pretty persuasively that in a lot of these cases, she was chosen by her law firm, because she previously represented some of the folks as a public defender, so she wasn’t seeking out these cases. She was joined by conservative and libertarian groups in many cases. So broadly, look, it’s a understandable talking point if you’re going to try to score some cheap political points, but it’s impossible to paint her as a sympathizer for terrorism, and is not fair to paint her as approving of the clients that she rightly represented with zeal.

Preet Bharara:

On the child pornography issue, which has gotten some life, Josh Hawley points to a number of cases in which Judge Jackson meted out sentences well below the guidelines. And I know that in some of those cases, the Probation Department and also the government, sought below guideline sentences. But there’s there’s one or maybe more in which she departed even further down from what probation recommended, and certainly from what the guidelines were. Does Josh Hawley, not withstanding all the history [inaudible 00:39:41], does he have at least some point?

Jeffrey Rosen:

No, he doesn’t. I think it’s impossible to listen to Judge Jackson’s extraordinarily meticulous account of the factors that she herself weighed in these sentences, without being struck by how diligently she was attempting to follow the factors that she thought that Congress imposed. The most dramatic example of this, I thought yesterday, I guess was not a child pornography case, but it was another sentencing case. She was talking to Senator Cotton about a defendant called Young, who had made a compassionate release request during COVID. And she had previously, it’s complicated, but the fact that I can reconstruct it shows how clearly she gave us a sense of what she was thinking, initially, she would’ve sentenced him for 10 years, but then because of a very minor crime they committed 10 years before, she was required by the then existing law, to bump up his sentence for 20 years.

Jeffrey Rosen:

He petitions for compassionate release during COVID, on the grounds that he has asthma and so forth. She doesn’t buy that, she rejects that. But because Congress, in the interim, has eliminated the underlying law that required her to bump up the sentence, and if he’d been sentenced today, he couldn’t have been penalized for those extra 10 years, she agreed to release him. It was just a really moving and powerful account of how she’s not doing this out of some sympathy for the defendant, in fact, she resisted the claim of pure sympathy, but she is really trying to do what she said, over and over again she said, “You, Congress, have required this.” And no one listening to her and also listening to her very moving account of her brothers experience in law enforcement and her own family’s personal encounters with crime, would ever think that she was either pro crime or pro child pornographers.

Jeffrey Rosen:

Her sentences are well within the range of the many other judges, as other senators pointed out, appointed by Trump, as well as Democrats who departed in certain cases, and basically she just seemed to be doing what a really thoughtful diligent district judge is supposed to do.

Preet Bharara:

One of the things, and I assume she was prepared heavily for this, and as she keeps saying again and again, it doesn’t come into play in her work as a judge, but it’s something of a firestorm on the right, the whole business of critical race theory and whether it’s being taught in the schools and anything else.

Ted Cruz:

When you just testified a minute ago that you didn’t know if critical race theory was taught in K through 12, I will confess, I find that statement a little hard to reconcile with the public record, because if you look at the Georgetown Day School’s curriculum, it is filled and overflowing with critical race theory.

Preet Bharara:

What did you think of that Q&A? And there are some people who thought that Ted Cruz was effective in asking about it, even though as you and I know, and as the nominee kept saying again and again, it is not a part of her work as a judge. But I guess Ted Cruz among others, brought in the fact that she serves on the board of a private school in the DC area where there’s some question about that issue and whether and how it’s taught.

Jeffrey Rosen:

Out of all of the Republican talking points, I think that that was the most effective, because I mean, for what it’s worth, I have friends who go to that school and have had lots of diversity training with Ibram Kendi, for example, who Ted Cruz was citing as an example of critical race theory, and Judge Jackson certainly knows what’s being taught there, because her kids are learning it. And while on the board, it may be true that she doesn’t technically select the curriculum, she’s well aware of what’s going on at the school. So it’s certainly true, as she said, none of this has influenced her work as a judge, and she’s never endorsed it and it’s not likely to affect her Supreme Court opinions, but to claim that she’s not aware of it or has no connection to it as both a parent and a board member of the school, may not be entirely convincing.

Preet Bharara:

Do you think that there is some argument for the relevance of that issue to the justices future tenure as a member of the court?

Jeffrey Rosen:

This is a very tough question, it’s one of the most divisive questions in our culture wars. And it’s so hard to talk about because it’s so easy to caricature in even defining what the terms are. But if the question is should Ibram Kendi be appointed to the Supreme Court, that might be a relevant question because his view, particular view of the relevance of race, both historically and in society today, that people strongly disagree about. I don’t think that it is fair to use Justice Jackson’s nomination as a stand in for the broader debate about what to teach in schools or critical race theory, because both personally and professionally, she’s never really engaged with it. But it’s an interesting line of questions for that reason, and then that’s why I felt the exchange was revealing.

Preet Bharara:

There’s one more thing that I noted in the hearing, that I thought was interesting, where I think it was Senator Grassley asking the nominee about the role, if any, that international law should play in considerations before the US Supreme Court. And I was a little bit struck by how she, and then this is an issue for which Justice Breyer has been known and criticized in some quarters, that she took some pains to disassociate herself from Beyer on that point, did that strike you also?

Jeffrey Rosen:

It did. Justice Breyer, it was an interest of him, he had this road show with Justice Scalia, as he called it, and he loved to talk about the relevance of international law, but even he always stressed that there’s no harm in looking, he would say. He wasn’t saying international law should govern, but you could look at many sources, and he was a pragmatist and you might as well inform yourself about what other people were doing so that you can make a decision. It’s not her specialty, it’s not her thing, and the fact that she emphasized that in the end, she thinks it’s domestic authorities that rule, was a sign of her independence of mind.

Preet Bharara:

So one of the other cool things that you get to do, and you mentioned this earlier, is you have interviewed a number of Supreme Court justices. Two questions I have, one, do you prepare extra hard when your interview subject is a member of the Supreme Court and two, if and when you have the opportunity to question Judge Jackson, when she becomes a justice, if and when she becomes a justice, what would you want to ask her?

Jeffrey Rosen:

I used to, of course, prepare very hard. I started, I just fell out of law school and got this dream job as the legal editor of the New Republic. And at the age of 28, had the chance to interview justices and would prepare like a 28 year old who percent law school graduate. As I’ve gotten older, as you know too, the best interviews are just where you ask people what they want to talk about. So one of the most revealing interviews I had with Justice Ginsberg, when she agreed to let me collect our interviews into this book, was totally unexpected. We’d seen an opera, Glimmer Glass, and then she said, “Well, you can interview me now.” So I was like, “Okay,” and just pulled out my iPhone and asked her questions over dinner.

Jeffrey Rosen:

And she talked about how her … I said, “The question I really wanted to know,” and this gets to what I asked Justice Jackson, “Always has to do with what’s your character? What did you learn from your parents?” And Justice Ginsburg’s advice from her mother that she always quoted, was that her mother had told her always to overcome unproductive emotions like anger, jealousy, and remorse, they’re not productive and they’ll distract you from productive work. I said, “That’s just such remarkable advice. It’s the advice of the ancient wisdom traditions of the Talmud and the Bhagavad Gita and the Buddha and the ancient Stoics. Where did your mother learn it and how did you absorb it?” And she said, she wasn’t sure where her mother got it, but she made it real when she saw the grief that her young sister death had on her parents, when she was something like two years old and her sister died of meningitis.

Jeffrey Rosen:

And just seeing her parents deal with that grief had made her realize how important it was to stay focused so that she could use her talents to help others. It was just remarkable, and that it just came out because I was curious. So I was very struck by, I thought Senator Booker asked a great question of Justice Jackson yesterday, or Judge Jackson. He said, “I want to know your character. Tell me more about what values your parents taught you.” And they all got choked up when she talked, not only about her faith, but the incredible values they instilled of hard work, that despite the discrimination they faced in a segregated America, they allowed her to believe that with hard work … For some reason, I get choked up about it every time I think about it too, because it is so inspiring.

Jeffrey Rosen:

You think about how far this value that RBG had too, her mom, a book, she said, “What’s the difference between a Supreme Court justice and a bookkeeper?” One generation, her mom, just off the boat from fleeing Pogrom’s in Eastern Europe, a different kind of discrimination, but equally virulent that Judge Jackson’s parents experienced, and just they instilled in their kids, this importance of the value with hard work, you can do anything, and also, you have an obligation to give back and to help society. At this level of abstraction, it sounds a little broad, but you really want to delve in.

Preet Bharara:

Those would be my answers, those would be my answers also as an immigrant.

Jeffrey Rosen:

Yeah, absolutely Preet, absolutely, and in mine too. My grandparents fled Ukraine Pogrom’s, and that’s the same to thing. And it’s such a inspiring lesson to all of us about what’s possible in America, for individuals and also to inspire other kids who are starting off with the same thing. So it’s very moving to see someone of extraordinary accomplishment like Judge Jackson, holding that lesson at every stage in her career. And that’s what I want to know about these hearings, all this stuff about child pornography is going to be, and the midterms will be forgotten in a few months, but she’ll be on the court for 30 years. And at some point after she’s been on for a while, maybe she’ll talk more about her childhood or values, we’ll see them in her opinions. But that’s what matters, you just study Supreme Court history, people’s character is hugely important, their mothers and their fathers are terribly important and it just affects their whole approach to law and to life.

Preet Bharara:

Jeff, as you’re talking, I was thinking about what I was going to ask you next, and one of the things I want to talk to you about was the reputation of the court and whether it’s deemed as too political. And then you also think about the reputation of Congress and how people are cynical about that representative body, and also the White House, and all of our government institutions are in some state of disrepute. At the same time, as a personal matter, my daughter just got an internship in Washington DC for the summer, for a great organization that does advocacy work, and we’ve been talking about where she might live. And it occurred to me, a wonderful place to live as a young idealistic citizen, which she is, would be near the Capitol, because it is still a source of great inspiration, for me, at my cynical old age, to see the Supreme Court building, to see the Capitol from all the different angles around Union Station and the area of the Capitol.

Preet Bharara:

Can you comment on that, the disassociation between how we feel specifically about some of these institutions and how one can still be awestruck by the buildings in which they sit?

Jeffrey Rosen:

Yes. What inspires awe is our shared history and our shared commitment to the Constitution. I think that’s it, just the American Constitution and our system of government, with a separation of power, so beautifully embodied with those majestic buildings, the marble temple of the Supreme Court across the street from the astonishing Capitol Dome, down the avenue from the White House, is a miracle of world history. And we’re seeing in Ukraine today, that the separation of powers is not an abstraction, it is what distinguishes a liberal democracy from an illiberal autocracy, a president from a wicked dictator. Independent judges and separation of powers, it turns out, are what makes us free and others, the victims of tyranny. And America, for its terrible polarization, for the sins of our history for its mistakes, for all the noise today, still remains the last best hope on earth, in terms of a constitutional structure that can meaningfully protect freedom.

Jeffrey Rosen:

I was in Ukraine just a few years ago, after their revolution of 2014, when they were drafting a new constitution. And I asked the people who were drafting it, “What’s the most important feature, a bill of rights?” They said, “No.” Russia has a bill of rights, but it’s not worth the paper it’s printed on. Russia has a constitution also, that’s empty words and empty promises. What matters is independent judges, that really is necessary to prevent the president from becoming a king, to prevent one man from having all the power, a government of laws, but not of one man.

Jeffrey Rosen:

And I had to teach the separation of powers yesterday, we’re doing a video for our constitution 101 classes, and first I thought, gosh, that’s just a dry topic, separation of powers is boring. But then you think, no, it’s what distinguishes us from Russia. And then you look at those buildings and they’re so inspiring. So that’s why it’s so meaningful to do what you and I both have the privilege of doing, which is debating and thinking about it and trying to inspire others to learn about the Constitution. Because we’ve had terrible polarized times before, the election of 1800, the civil war, the bloodiest war in American history, and America’s gotten through it. And learning about those previous times is so empowering too, because you see that even despite the polarization then, we still got the post civil war amendments to the Constitution, or after the election of 1800, learning that John Adams accepted the election results, Hamilton dies in a dual, partly because of the [inaudible 00:54:47] that comes from that-

Preet Bharara:

How quaint.

Jeffrey Rosen:

Yeah, exactly. But Adams, who had been great friends with Jefferson and was very upset, accepted the results, rode off on a horse, and then of course they famously reconciled, in their old age they wrote the most beautiful letters of friendship and American history. So history is very empowering and it gives you hope, and that is what we’re going to maintain.

Preet Bharara:

On a maybe less inspiring note, want to ask you to opine on the future, and some of the things that are on the Supreme Court docket in the coming term and the following term. And I don’t know if it’s your practice to predict or not, there’s some peril in prediction, but is Roe V Wade, basically a dead letter in the future?

Jeffrey Rosen:

On my podcast, I have the great pleasure of never having to predict and never being allowed to have any opinions at all, because I just ask the other folks what they think.

Preet Bharara:

The tables are turned, my friend.

Jeffrey Rosen:

They are indeed. My predictions are worth what you’re paying for them, the only, and I don’t have any crystal ball at all, obviously it may be greatly rolled back, if not overturned. But one thing that I wouldn’t be surprised by is a surprise. Casey versus Planned Parenthood was a surprise. Everyone was sure that Roe was going to fall then, and they came up with a compromise no one could have anticipated. We do know that the Chief Justice Roberts wants to avoid a six to three clean overturning of Roe. We don’t know whether or not anyone is up for joining him. But whatever the result is, I would not be surprised if it’s something that no one has thought of yet.

Preet Bharara:

What about affirmative action? There are a couple of cases that I don’t make any predictions or I try not to make full predictions either, but it doesn’t look great for the continuation of affirmative action in connection with college admissions. Do you agree with that?

Jeffrey Rosen:

I do. There’s an area where Chief Justice Roberts has been clear that he’s less willing to compromise than on other areas. One of the great privileges I had was an interview with Chief Justice Roberts at the end of his first term, I was doing a book on the Supreme Court for a PBS series. It had the brilliant and memorable title, The Supreme Court, and Roberts was a PBS fan-

Preet Bharara:

Very well done.

Jeffrey Rosen:

It was just incredibly creative. He agreed to talk to me, and he set forth his vision at the beginning of his term about how he wanted to be a chief who avoided five to four splits, to preserve the legitimacy of the court. He thought the court was best unanimous and that he would try to decide things narrowly, rather than broadly. But he also said, “There’s some things that I feel strongly about and I’m not going to compromise about.” And it’s obvious from his jurisprudence, although not from that interview, that a colorblind constitution is one of them, as his decisions in the voting rights cases, for example, show. So it appears, as you say, that there are five or maybe six votes fir a strong version of color blindness, and for that reason, affirmative action’s future does not look bright at the Supreme Court.

Preet Bharara:

No, I think that’s correct. Do you have a view or do you express a view on either the question of expansion of the Supreme Court or the ending of life tenure and having finite lengthy terms?

Jeffrey Rosen:

So generally I’m not aloud to have views at the NCC, but I can describe, I can answer the question. On lifetime terms, we had a really neat project inviting three teams of conservatives, liberals, and libertarians, to draft a constitution from a scratch, very distinguished legal thinkers. And they went off in a state of nature or state of Zoom or wherever it was, and they all drafted their constitutions separately. And they just blew us away with surprise because the progressives and the conservatives both proposed a term limits for Supreme Court justice amendment.

Preet Bharara:

Interesting. How long a term, do you remember?

Jeffrey Rosen:

18 years. And it’s a complicated mechanism for how you scale it in, but we’re summoning them to Philadelphia for a real or virtual convention, to actually try to hammer out language. And the hope is that they’ll be able to actually propose a term limits amendment, because there is bipartisan support for term limits.

Preet Bharara:

And what’s the rationale from both sides? Is it the same rationale? Because sometimes conservatives and liberals agree on the same thing, like overpopulation in prisons, but from different perspectives.

Jeffrey Rosen:

I didn’t ask for their reasons, but I think it’s that justices are living a lot longer than they did last than at the time [inaudible 00:59:17] no one’s supposed to serve for 40 years, that’s crazy. And the goal is to allow each president to appoint one or two justices, so there’s a fair representation of the election results, rather than quirks of the appointments process, that skew things. So I think that was the goal.

Preet Bharara:

Did those two groups specify a number of justices on the court?

Jeffrey Rosen:

Specify, how many?

Preet Bharara:

Yes. How many?

Jeffrey Rosen:

No, and they didn’t take up the question of court expansion. But I think I’m going to take my cue from Justices Breyer and Ginsburg and Kagan here, that’s good enough back up for me, along with Justices Barrett and Roberts, and say that court expansion would not be a good idea because it really would be a endless escalation, each side would do it, and that would be …

Preet Bharara:

435 Supreme Court justices, right?

Jeffrey Rosen:

Exactly. I think the Chinese legislature is like 5,000 people. So it just doesn’t seem like a very effective long term strategy for retaining balance.

Preet Bharara:

Jeffrey Rosen, President and CEO of the National Constitution Center and also host of the podcast where he fabulously quotes from Supreme Court opinions, the, We, The People podcast, thanks for being on the show, thanks for spending the time and thank you for all that you do, it’s very important.

Jeffrey Rosen:

Thank you so much, Preet, it’s so great to talk.

Preet Bharara:

My conversation with Jeffrey Rosen continues for members of the CAFE Insider community. To try out the membership for just $1 for a month, head to cafe.com/insider. Again, that’s cafe.com/insider. Well, that’s it for this episode of Stay Tuned, thanks again to my guest, Jeffrey Rosen.

Preet Bharara:

If you like what we, do rate and review the show on Apple podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics and justice. Tweet them to me @PreetBharara, with the hashtag ask Preet. Or you can call and leave me a message at 669-247-7338. That’s 669-24-PREET. Or you can send an email to letters@cafe.com. Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The senior producers are Adam Waller and Matthew Billy. And the CAFE team is David Kurlander, Sam Ozer-Staton, Noah Azulai, Nat Wiener, Jake Kaplan, Chris Boylan, Sean Walsh and Namita Shah. Our music is by Andrew Dost. I’m your host Preet Bharara, stay tuned.