Newsweek - USA (2019-11-08)

Periscope THE NEWSWEEK INTERVIEW

14 NEWSWEEK.COM

Is it a code word for court-packing?

You’d have to ask the pollsters, but I

don’t see it that way. The right wing

wanted to see it that way, but they

have a machine for pushing back on

things that trespass into delicate areas

they want to protect. [After the brief

was filed, more than 50 opinion pieces

were published attacking it as a threat

to pack the Court.]

We’ve been through this routine

before, where there’s kind of an auto-

mated response where all the usual

suspects jump in and basically say

what they’ve been told to say, and it

propagates like a little virus through

the right-wing media. They were the

ones who wanted to say that this was

about court-packing, which is some-

thing that (a) if they’d read the brief

and (b) if they’d read stuff I said before,

they’d know I’ve never supported.

What I have supported is: The

Supreme Court should have a code

of ethics. The Supreme Court should

report hospitality, travel and other

emoluments for the judges, much

more clearly than they do. [White-

house is co-sponsoring a bill to

require such reporting.] I think the

Supreme Court should steer away

from 5-to-4 decisions and try to seek

more inclusive—even if narrower—

decisions. When the 5-to-4 decision

is one that is distinguished by the

party of who appointed the judge,

that is even a greater hazard. That’s

something the Court should do on

its own account. They worked very

hard to make sure they were 9-to-

in Brown v. Board of Education.

I think there should be a lot more

transparency around the Court. I

think it’s very dangerous when the

Court is having its justices selected

through a process that the Federalist

Society has such an enormous role

in. [The Federalist Society does not

take positions in judicial selections,

So you’re still hopeful that—

We’ll see. 

In the legislative arena he seems

to have almost absolute power in

the Senate.

The Senate majority leader has the

absolute power to decide what does

and does not come to the Senate floor.

Does he have the same power in an

impeachment proceeding? Without

him, is the effort dead in the water?

He has conceded that he does not have

the power to keep articles of impeach-

ment from coming to the Senate floor.

He does [however] have the power to

craft the procedure through which

they are considered.

Nothing speciɿc has ɿltered down

to you yet about procedures?b

No, and actually I’d be surprised if

anything were filtering. Because the

mini-bombshells that emerge daily

about the Ukraine scheme suggest

that the view of this thing at the end

of the day may be very different than

what Republicans are being asked to

sell right now. And I think McCon-

nell is too wily a cat to box his mem-

bers in before they even know what

the evidence looks like and where

the public is. Mitch treads carefully

through uncertainty. 

If Senate Republicans could hold a

secret ballot, what would they do?

There is very conceivably enough hor-

ror and resentment in the Republican

Senate caucus to get us to 67 for con-

viction on the impeachment articles,

given a secret ballot. With a huge sigh

of relief, and a muttered utterance of

“good riddance.” 

Let’s turn to the Supreme Court. It

looks like it’s going to be a block-

buster term. There are cases on C

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NOVEMBER 15, 2019

abortion, LGBTQ discrimination,

gun control, DACA, executive pow-

er and public funding of religious

education. Before the term started,

you wrote a ɿrecracker friend-of-

the-Court brief in the gun case.b

I’ve written several, but this is the one

that lit up the right-wing counter-re-

sponse machine. 

The money line was: “The Supreme

Court is not well. And the people

know it. Perhaps the Court can

heal itself before the public de-

mands it be ‘restructured in order

to reduce the inʀuence of politics.’Ť

When you said “restructured,Ť

what did you mean by that?

So you know that that word was in

quotes and referred back to a poll that

was taken that used that word? That’s

what I meant. [In May, a Quinnipiac

University National Poll found that a

growing majority of Americans believed

that the Supreme Court’s rulings were

“mainly based on politics” rather than

law, and that a majority now felt the

Court should be “restructured in order

to reduce the influence of politics.”] 

But I don’t know what the poll

meant by the term “restructured.Ť

Nor do I. But it’s a fairly strong word,

and the people polled responded to it

very positively. So that’s the point.

“M cConnell is too

wily a cat to box his

members in before

they even know

what the evidence

looks like and where

the public is.Ť