Transcript: Unwritten, Episode 11

Delaney Henson: Hello everyone and thank you for joining us today. Welcome to today’s episode of Unwritten, where expert authors join student hosts for discussions on the most important current events of our day. Today, we’ll explore the Supreme Court and the U.S. judiciary in the wake of the 2020 Presidential Election. I’m Delaney Henson, a junior at the University of Global, majoring in Communications with minors in Marketing and Creative Writing. I am also a Campus Ambassador for Pearson. I’ll be moderating today’s conversation. I’m also joined by Scott Overland, Director of Media Relations at Pearson. We’re glad to have Scott here to moderate our audience questions.

Get your questions ready and go ahead and put them in the Q&A at the bottom of your screen, because we’ll get to them in about 20 minutes. And please join me in welcoming Dr. Christine Nemacheck, an Associate Professor of Government and Director of the Center for the Liberal Arts at William & Mary. Her research focuses on judicial selection, judicial federalism and the role of the courts in a separation of power system. She was named a Dean’s distinguished lecturer in 2010, was an alumni Memorial term distinguished Associate Professor from 2010 to 2013, and was the Wilson and Martha Claiborne Stephens’ term Associate Professor from 2015 to 2018. She is also the co-author along with David Magley and Paul Light of Pearson’s Government by the People. With that being said, Chris, could you start this off by explaining why you think today’s conversation is so important?

Christine Nemacheck: Sure. First of all, thanks Delaney for joining in this and for taking the time out of your schedule for. I know this is a busy time of the year for our students. So, thank you for that and of course, to Scott and Amanda Pearson for having me for this. So, I think that… specifically thinking about sort of the role of the judiciary in our federal government and the implications for our state governments is really important. It oftentimes doesn’t get a lot of attention during the election process. This year is a little bit different because of Justice Ginsburg’s death in September and then the question about the appointment process, and whether or not President Trump should appoint someone or not, or wait until after the election. And I think it really highlights sort of how important the administration, the Presidential Administration as well as Congress how important they all see the courts as. And oftentimes we’ll have members of Congress and/or the president actually highlighting the role of the courts, when they are running. And President Trump has said several… actually many times throughout his four years.

He has made statements about how important he thinks the courts are and how particularly appointing Supreme Court Justices he really feels like are some of the most important decisions he’s made in office. I think one of the reasons that the federal judiciary should be getting a lot of attention right now is because of the impact that President Trump has had on the judiciary and I’ll talk a little bit more about that later and I’m happy to answer questions. But the administration while it’s had problems in a number of other areas in terms of getting policies enacted or getting various action shot down through the court system has been really effective in terms of changing the judiciary, changing the makeup with the judiciary. And of course, this actually makes some of the debate right now about recounts and vote counting and so forth. It’s happening in a number of the states. A little more potentially at least problematic and that the president was quite clear during the run-up to Amy Coney Barrett, who’s our newest Supreme Court Justice. He was quite clear about the fact that he wanted nine justices on the U.S. Supreme Court, because the election could go there.

And that actually I think makes the Supreme Court’s job more difficult than it would have been had the president not said that. And this is actually also something that you know… that he’s done with in respect to several other issues. You might remember the court this last term reach a decision that ending DACA, the Deferred Action for Childhood Arrivals. The Dreamers case that went before the court in the way that the administration did was problematic, and part of that was because the administration made pretty clear that they wanted to end DACA before they did any analysis to determine whether or not the program was effective.

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So, in the same way, as you’re seeing some of the themes that come through the administration more generally, sort of playing themselves out with respect to the courts, and then of course, you have the… just the incredible lasting impact that these court appointments have. President Trump will… if the vote count continues in the way it’s going eventually, he will leave office and his administration will leave, and you’ll see changes in terms of their policies. But the justices and the judges, federal judges that he’s put on the courts and the Senate has really easily confirmed during his time in office will be around with us for a long time, so.

Delaney Henson: That’s great. Thank you so much for sharing your perspective and we really appreciate you being here today to kind of widen the conversation to, you know, include the courts and the judiciary as it relates to everything that’s been occurring with the election. So, I’d like to go ahead and start with where we are today. Can you set the landscape for us of the federal judiciary? Where do we stand after four years of the Trump Administration, which I know you’ve touched briefly on?

Christine Nemacheck: Sure, sure. So, as I mentioned the president has been really successful in terms of changing the makeup of the federal judiciary, just in terms of the number of appointments that he’s been able to make and having a Republican Legislature and Republican Senate in particular, right, that has been has been eager to approve the candidates that the president has chosen. The president’s job in making nominations and to the federal courts in getting them confirmed just much more difficult when we are looking at a senate that’s controlled by the opposite party. But that’s not a problem that the President Trump has had. And beyond that, he has had the very, very willing partnership and with Senator McConnell, the senate majority leader, who really has seen the ability to reshape the judiciary as being paramount I think in terms of the senate’s activities. And it’s something that Republican administrations tend to focus on more heavily than Democrat administrations.

And I think, I mean there’s a number of reasons for that and I’m happy to chat about it, but it has a lot to do with just the kinds of change or policy, goals of Republican presidents versus Democratic presidents, which Democrats tend to be more focused on legislation. So, their priorities aren’t necessarily is at least just singularly focused on the courts. But the Republicans tend to be focused and you can think about that with respect to the DACA that I mentioned, and the current case today that the Supreme Court is hearing on the Affordable Care Act, Obamacare, right? And this question about whether or not without an individual mandate the case can stand. The way in which the administration is approaching these questions is one that can be dealt with through the courts, in terms of trying to sort of remove some of those regulations and those policies. And so, it tends to be very important. So, the president has been super-successful, by the time he leaves office he will have appointed almost fully one quarter of the sitting judiciary in the United States. So, that Federal District Court judges, Appeals Court judges and Supreme Court justices. So, we’re probably most familiar with Supreme Court justices, the three justices that he’s been able to appoint while in office.

And of course, you know, particularly Justice Gorsuch’s appointment, which came. He filled Justice Scalia’s seat, and of course, that seat became vacant while President Obama was still in office and there was great controversy over whether he should make that nomination or whether that should be saved for the next president. And of course, President Trump end up being able to make that nomination. Again, Mitch McConnell being crucial in that calculation of saying to Obama, “We’re not going to even meet with your nominee. We’re going to wait and this has to be done by the next administration.” And then, of course, Justice Kavanaugh, and most recently Justice Coney Barrett. So, those three nominations are big nominations. I think probably most prominent among them just in terms of the change we’re likely to see on the court is the most recent one. In that changing the seat for example from Justice Scalia to Justice Gorsuch, I mean different people but very similar views on the law.

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That is not true of Justice Ginsburg and Justice Coney Barrett. So there’s where we’re likely to see some real change in terms of outcomes, but even perhaps more consequential than or at least as consequential as the Supreme Court appointments has been the administration success in replacing filling vacancies on the circuit Courts of Appeals. So I think I’m just going to look at my notes so I get the numbers right, but basically there are 53 confirmed judgeships on Courts of Appeals judgeships that the president has been able to make. There are two more that are in the queue out of… so we’re likely to end up with 55 confirmed Courts of Appeals Judges. During the Trump Administration there are only 179 total judges on the Circuit Courts of Appeals in the United States.

So we’re looking at almost a-third really, I think actually probably a-third when you do the math there that that’s a huge change so you can imagine and in some circuits, those changes have actually come about through… or as a result of those changes, you’ve seen flip in terms of which party’s judges dominate the Circuit Courts of Appeals because the circuit courts make decision in three-judge panel, so what that means is you’re much more likely to get a panel of two more conservative judges and one more liberal judge or all three conservative than you are for example to see a panel with all three more liberal judges. And for the most part that means the Supreme Court gets a lot of attention. It should, it’s important, but for most cases, more than 99% of the cases in the Federal Courts. The final court that those cases are reviewed in is the Circuit Court of Appeals. They never go to the Supreme Court. Most of them are not appealed.

The decisions are not appealed to the Supreme Court and then out of those that are appealed the Supreme Court is only accepting somewhere around 80 or so, and that’s probably the high-end these days, 70 to 80 cases a term. So out of the maybe be 8,000 or so that are appealed to the U.S. Supreme Court each year. So very, very prominent changes at the Circuit Court of Appeals level as well as at the Federal District Court. Now those tend to be cases where at the Federal District Courts you’ve got judges who are making decisions on the facts of given cases and applying a law to the facts of those cases and they don’t tend to have as much sort of long-term impact on the state of the law, but because of the kinds of decisions Courts of Appeals judges reach as well as Supreme Court justices we end up with some really important changes. So obviously, I could go on and on about that, but I’m sure you --

Delaney Henson: No, I think that’s fantastic. Thank you so much for giving us insight into the different courts and into the way that the Trump Administration has affected the judiciary and the potential implications that we see as a result of that for our future. So moving forward how might the makeup of the judiciary impact lawsuits we’re seeing right now issued against states contesting the vote counts in this election? I think this is a question that might be on some people’s minds.

Christine Nemacheck: Getting a little bit of attention at the moment. So, yeah, I mean the number of cases that have been filed at this point before… before most states have even done what is called certified their results, which means they are actually taking the vote counts and so forth to their… whether it’s their chief election official or a secretary of state to actually certify the official vote of the state. There’s just a tremendous number of lawsuits and a number of different varieties of cases that are making their way through both the state and the federal courts. Of course, as I mentioned earlier, President Trump was talking about the likely lawsuits that would come out of the election even before the election and his focus even back to 2016 on what he has alleged is fraudulent behavior or fraudulent ballots and fraudulent voting efforts made in the elections has pretty much meant that we were going to see these kinds of cases. I want to be clear that over time and in the current election with these cases, there has not been any sustained evidence of voter fraud and there have not… that evidence has not been presented to the courts.

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In some ways, I think that actually makes it difficult when the… particularly when the media is covering these cases because of their cases when they are not actually presenting evidence, it’s tough to rebut them, right? There’s no sort of evidence to shoot down, but in terms of how the courts are dealing with those, they are largely dismissing those cases if they lack just the basic evidence of fraud and that’s happening with an awful lot of the cases that have been filed.

The one case that has certainly gotten the most attention by the Supreme Court so far and could be a case that would proceed forward is one of the cases of Pennsylvania and there have been a number of different cases filed by different parties in Pennsylvania as well as in Nevada and Arizona and Georgia and so forth, but so I’ll just sort of focus on the issue that’s in play in Pennsylvania that I think… that has gotten some traction at the court, and that was the question about whether or not Pennsylvania’s State Supreme Court’s decision to allow an extension of time to actually receive ballots whether that extension that the state Supreme Court allowed is constitutional under the U.S. Constitution.

So our federal system oftentimes make these cases a little bit dicey to understand, but essentially under Pennsylvania State Constitution, the Pennsylvania Supreme Court said that because of COVID the pandemic and the concern with so many people voting by mail and whether or not all those ballots would arrive by 8:00 p.m. on Election Day what the state Supreme Court did was extended the time for which ballots could be accepted for three days after 8:00 p.m. on Election Day. So essentially until 5:00 p.m. on November 6th, those ballots had to be postmarked by election date. There was also a different case dealing with ballots that were not postmarked, but we’re talking about these ballots that are postmarked by the election date came in after 8:00 p.m. on Election Day on the third and whether or not those ballots that continue to come in until November 6th at 5:00 p.m. whether they should be counted. The state Supreme Court said they should and that this was a reasonable accommodation under their own State Law and State Constitution.

The challenges came because Republican representatives basically within… so we have some State Republican Party efforts here as well as different folks involved in the county election boards and so forth but basically the response was that this essentially changed Pennsylvania Law and that the U.S. Constitution requires that the State Legislature set the rules for the election not the state court system. And so the real question is about whether or not this was appropriate under the U.S. Constitution for the Pennsylvania State Supreme Court to get involved. The questions here are quite different than you may have heard of, sort of some analogies being made to Bush versus Gore in 2000, really different questions. This is not a question about whether those ballots sort of how to read those ballots or how to determine whether they’re for Biden or for Trump, it’s a question basically about whether or not those ballots should be counted.

And right now, there is basically… the court said just keep the ballot separate for now and they’ll decide whether or not to take the case up after the ballots have been counted and they are going to know sort of what chunk of those ballots came in after 8:00 p.m. on Election Day and be able to determine. I suspect they may not take the full case and reach a decision on it if the amount by which Biden ends up ahead in Pennsylvania is greater than the number of those ballots.

There’s also the possibility that if Biden has secured the Electoral College votes with the other states that are in play in terms of recounts and so forth, which I think is entirely likely, that the court would also refuse to get involved in the case.

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So it’s very complicated... it’s important and that now you have where the court initially let that ballot... let those ballots be counted initially. There was a 4-4 tie on the court about whether or not to enjoin the even collection and ability to count those ballots and the court tie on that question, means they did not issue an injunction and so counting... they were able to continue to collect those ballots and just keep them segregated from the other ballots with Justice Amy Coney Barrett deciding the decision on the merits it could go the other way. So, that’s a really important question there.

Delaney Henson: Yeah, that’s so great. Thanks so much for sharing that information with us and kind of breaking some of that down as I know that kind of the idea of contesting these vote counts can sometimes be difficult to comprehend and fully understand especially with a lot of the information that’s being thrown around. So, thank you so much and we do want to take some questions from the viewers who have joined us. So, I’m going to go ahead and turn it over to you Scott whenever you’re ready.

Scott Overland: Thank you Delaney. Yes, please. Do put any questions into the Q&A box and while we’re kind of waiting for something to come in. I’ll just start with one you’d mentioned Bush v. Gore as the most recent sort of presidential election Supreme Court case. I guess people have asked a lot this presidency if there are any historical parallels for things that have gone on, but specifically as we look at the courts, have there been any other cases that we would want to look to or a periods or elections where we might find some sort of... some sort of guidance or indication of what a court may do?

Christine Nemacheck: Yeah, the court has generally been very, very reluctant to get involved in elections and even in a case that actually came out of Pennsylvania after Bush versus Gore, it was a senate race. The court refused to get involved in the case that would have... could have had implications for the winner of a senatorial race, and I think it was in 2002, but it could have been in 2004 after Bush versus Gore. And the court... when it issued Bush versus Gore, issued as what’s known as a per curiam opinion. And a per curiam opinion is one that is an unsigned opinion of the court, and the court typically issues them when it has to issue decision very quickly, it hasn’t had full arguments and sufficient time at least that the justices think is sufficient to really deliberate on the case and write up the opinions. And per curiam opinions by their very nature tend to have less precedential value, that is if you’ve got a per curiam opinion on one topic and you’ve also got signed opinion on that topic. The signed opinion is going to carry more weight with the court.

In addition to it, being a per curiam opinion and that being the norm with per curiam opinions, the court actually said that in the opinion don’t cite Bush versus Gore. This is an incredibly unusual set of... set of facts and we don’t anticipate that this should be... that we’re setting any guiding principles with respect to election law and it’s been cited very, very rarely as a result. But I think where the question in Bush versus Gore was one about actually recounting ballots and making a determination as to whether a particular ballot showed indications that it was a vote for then Vice President Gore, or then Governor Bush. There was an actual examination of the ballots that was taking place. That’s not an issue in the current cases. The current cases are really a question of... you know under these COVID conditions, was this a reasonable accommodation that the supreme state... supreme court made in Pennsylvania, or did they really change the election law.

And so that’s a substantially different case and I think this is also different and another really important way, and that is that in 2000, Bush versus Gore was a case about an election outcome in Florida that would have determined the outcome of the election. So, it was sort of a worst-case scenario where everyone knew that whatever the court decided in that case was going to... was going to determine essentially the outcome. And now continued recounts after the court decided actually confirmed the court’s... that President George W. Bush would have won had counting continued, but the court did stop the counting and the effect of that was clear that it was going to mean that President Bush would have... would become president in that case.

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So that’s quite different than in this current scenario where the court could say, “We’re not going to count these ballots in Pennsylvania,” and even they could say, “Well that changes the outcome of the Pennsylvania election.” But as long as President... or Vice President Biden continued to maintain his lead in Georgia and Nevada and Arizona this wouldn’t be an issue, and actually he can go with this lead in two of those States and doesn’t... it doesn’t change the outcome.

So, I think the stakes in that respect are lower for what the court might do. I think that the stakes in terms of sort of public perceptions of our... of our voting system are much higher in terms of just the way in which our election... President Trump has you know been emphasizing for four years that the election system can be rigged and that voter fraud exists prominently throughout the system. And again, there’s just... there’s just as an evidence to show that.

Scott Overland: So, we have some questions have come in. So, assuming that Vice President Biden is discontinued on, and is sworn in as the next president. What do you think the chances are that Merrick Garland would be re-nominated to the Supreme Court should there be a vacancy?

Christine Nemacheck: Interesting, so I don’t know that I think that’s any more likely than anyone else being nominated. I think he’s... I mean, he was a person who... he’s so... he’s the Chief Judge of the DC Circuit Court of Appeals and the DC Circuit Court is one that’s often times referred to as the second highest court in the land because of the kinds of cases they deal with, and they frequently the kinds of cases that end up going before U.S. Supreme Court. And so, I think that he’s very prominent judge. He’s very highly respected and he had gotten bipartisan support when he was an appeals court... a candidate for the DC Circuit Court of Appeals. So, I think he was... probably President Obama’s best bet for getting a Justice confirmed when he was initially appointed. I think he’s somebody that President Biden would appoint whether he... I don’t think there is any... if Hillary Clinton would have won in 2000, I think there would have been a lot of pressure on her to re-nominate Garland. It was his nomination at that the time, right? That’s how a lot of people... particularly, a lot of Democrats saw that.

And also from the perspective of somebody who’s a judge, a really horrible outcome to be nominated for the U.S. Supreme Court, and not to even get a chance at hearings and so forth. This is obviously… for judges, this is a pinnacle. So, I think there would have been a lot of pressure and I would have been surprised if a President Clinton… President Hillary Clinton wouldn’t... would have chosen someone else rather than him. I don’t think Biden faces the same type of pressure. I do think that judges in that sort of fall into that more moderate range, like Merrick Garland are the kinds of judges that if Biden has the opportunity to make an appointment to the Supreme Court, which I’m not so sure he will immediately, unless I mean... obviously, that’s something could happen that’s unexpected. But in general, I think he is the kind of judge that Biden would probably be looking at. I’m also interested though to see if this is something in which… I mean Vice President-elect, Harris has... I mean she’s been on the Judiciary Committee in the Senate. She was a state attorney general in California before she was in the Senate. She’s a lawyer, a prosecutor. My bet is she’s got some thoughts on the court as well, and whether or not that might be an area in which you know, they’ve agreed to some level of cooperation, I don’t know. But it wouldn’t be… that would not be terribly surprising to me if it was.

And of course President Biden... President-elect or Vice President, sorry, it’s hard to keep all the title straight at the moment. He also, right? He served on the Senate Judiciary, chaired the committee for a while. So, it’s... this is also something he’s pretty familiar with. But I think you know, there’s... particularly, given a Republican Senate which isn’t given depending on what happens in Georgia with two runoff elections, so things just got more complicated there.

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But if he ends up with a Republican Senate, which I think is probably likely. You know, someone like Merrick Garland is probably someone that might have the best chance of getting through.

Scott Overland: Right at the top of the hour, do you we want to try and squeeze in one more question?

Christine Nemacheck: I’m happy to if you’re all taking your time, and if not, that’s okay too.

Scott Overland: It should be a quick one. You talked about President Trump sitting 25% of the current federal judiciary, which sounds like a lot. Can you put that into context or it’s just other presidents? Is that the most anyone has ever done?

Christine Nemacheck: Yeah so that is not. It’s not the most any president has ever done, but it is a record setting pace at just four years in office. Yes. And again, I think that is… so certainly President Trump saw this is very important. I think this was incredibly important to his face, particularly to the evangelical voters. But Mitch McConnell and Chuck Grassley and Lindsey Graham, are the two who has split chairing responsibilities in the Senate Judiciary Committee during President Trump’s time in office. They also saw this as an opportunity and it was something that they were all very much united on, trying... getting moving. So they moved quickly. They had folks in various positions in the administration who helped with this process to develop list of folks who could get on the court and they changed some rules. I won’t get into that in a moment, but change some rules so that they could move even more quickly with the process to get these folks on the court. And it really only could have been done this way if the Republicans controlled the Senate as they did, I think otherwise. Trump could have wanted to do this all he wanted and he wouldn’t have been able to. So I think that’s the joint effort. So maybe there’s an asterisk that gets put on that record, and since Trump-McConnell, Don McGahn and the White House, there’s a joint effort there.

Scott Overland: Yes. Great.

Delaney Henson: Well thank you so much Scott for… there’s an airplane overhead. Can you guys hear okay? Perfect. Well, thank you Scott and thank you so much for your time Chris and I would like to thank everyone who joined us today. I truly hope that this conversation was just as insightful for you all as it was for me. And I also hope that you will join me later in December when I sit down with Dr. Daron Acemoğlu of MIT to talk the post-election economy. Thank you again. Have a great day and stay safe out there everyone.

Christine Nemacheck: Thank you.

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