Ascending Justice: Where Judge Ketanji Brown Jackson Will Fit in New Court

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Hubwonk host Joe Selvaggi talks with constitutional scholar Ilya Shapiro about Judge Ketanji Brown Jackson’s nomination hearings and what her background and responses reveal about her views on the Constitution, the role of the Supreme Court, and her likely judicial positions relative to her fellow justices.

Guest:

Ilya Shapiro is the Executive Director and lecturer of the Georgetown Center for the Constitution. Before coming to Georgetown, he was a vice president of the Cato Institute, director of the Robert A. Levy Center for Constitutional Studies, and publisher of the Cato Supreme Court Review. Before joining Cato, he was a special assistant/?adviser to the Multi??National Force in Iraq on rule??of??law issues and practiced at Patton Boggs and Cleary Gottlieb.

Shapiro is the author of Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court (2020), coauthor of Religious Liberties for Corporations? Hobby Lobby, the Affordable Care Act, and the Constitution (2014), and editor of 11 volumes of the Cato Supreme Court Review (2008–18). He has contributed to a variety of academic, popular, and professional publications, including the Wall Street Journal, the Harvard Journal of Law & Public Policy, the Washington Post, the Los Angeles Times, USA Today, National Review, and Newsweek. He also regularly provides commentary for various media outlets, is a legal consultant to CBS News, and once appeared on the Colbert Report.

Shapiro has testified before Congress and state legislatures and has filed more than 400 amicus curiae “friend of the court” briefs in the Supreme Court, including one that The Green Bag selected for its “Exemplary Legal Writing” collection. He lectures regularly on behalf of the Federalist Society, was an inaugural Washington Fellow at the National Review Institute, and has been an adjunct law professor at the George Washington University and University of Mississippi. He is also the chairman of the board of advisers of the Mississippi Justice Institute, a barrister in the Edward Coke Appellate Inn of Court, and a member of the Virginia Advisory Committee to the U.S. Commission on Civil Rights. In 2015, National Law Journal named him to its 40 under 40 list of “rising stars.”

Before entering private practice, Shapiro clerked for Judge E. Grady Jolly of the U.S. Court of Appeals for the Fifth Circuit. He holds an AB from Princeton University, an MSc from the London School of Economics, and a JD from the University of Chicago Law School (where he became a Tony Patiño Fellow).

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Joe Selvaggi:

This is Hubwonk I’m Joe Selvaggi

Joe Selvaggi:

Welcome to Hubwonk, a podcast of Pioneer Institute, a think tank in Boston. With the January 27th retirement announcement of Steven Breyer, President Biden, consistent with his campaign pledge to choose a black woman to the Supreme Court nominated US Court of Appeals for the DC circuit judge Ketanji Brown Jackson. Last week, Judge Brown Jackson sat before the Senate confirmation hearings where viewers could observe Democratic senators celebrating the historic nature of her nomination, Republicans probing for vulnerabilities and both sides, grand standing for campaign clips. Nevertheless, Judge Brown Jackson deftly navigated the hearings offering even those who study the court only small glimpses of her view of the constitution and the role of the court. Interestingly, in her answers, she included a nod to an originalist view that quote, “the constitution is fixed in its meaning and that original public meaning is a limitation on my authority to import my own policy.”

Joe Selvaggi:

Could this nominate disappoint her Democrat supporters by becoming an independent or less progressive jurist on the Supreme Court or were the hearings a carefully crafted rhetorical exercise designed to facilitate the consent of an activist judge? My guest today is legal scholar and executive director for Georgetown’s center for the constitution Ilya Shapiro. Mr. Shapiro’s research and writing, including his recent book “Supreme Disorder: Judicial Nominations, and the Politics of America’s Highest Court,” have established him as among the foremost scholars on the history and composition of the Supreme Court. Mr. Shapiro will share with us his view on what impact Judge Brown Jackson will have on the court as Justice Breyer’s replacement and on which constitutional questions she’s most likely to have an effect. When I return, I’ll be joined by constitutional scholar, Ilya Shapiro. Okay. We’re back. This is Hubwonk. I’m Joe Selvaggi, and I’m now pleased to be joined by legal scholar and executive director of the Georgetown center for the constitution, Ilya Shapiro. Welcome back to Hubwonk, Ilya.

Ilya Shapiro:

Good to be back with you, Joe.

Joe Selvaggi:

First things first, I think I recently read that your recent bestseller “Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court” is now coming to paperback. Congratulations.

Ilya Shapiro:

Thank you. Yes. July 5th, it’s always a Tuesday. So July 5th I just finished writing the epilogue. We’re gonna have to correct or, you know, fill in the final vote margin for judge Jackson when she’s almost certainly confirmed and maybe a couple of other, as of this writing, tidbits. But yes, you can get the hard copy cheap these days on Amazon and elsewhere, but the updated paperback will be available in a few months.

Joe Selvaggi:

Yes. If you choose your books by how much they weigh, certainly the hard cover is superior. That’s a good segue I wanted before we jump into the new nomination of Ketanji Brown Jackson. I want to acknowledge the remarkable past couple of months. You’ve had some controversy, I suppose, I guess until the slap on the award ceremony the other day,it took you out of the headlines, and now we have something else to talk about. But, want to address the controversy regarding the tweet that you made, in reference to Biden’s commitment and promise to choose a black woman as his nominee for the next Supreme Court justice, o replace Judge Breyer, you’ve made many media appearances, you’ve got a sizable Twitter following, ake us through how you went from being a very balanced media pundit to making a, let’s say, an inartful tweet.

Ilya Shapiro:

Yeah, that was a failure of my own communication that I’ve been kicking myself for, because I do pride myself on being clear and a good communicator in both writing and, and orally. That day when news of Justice Breyer’s retirement leaked in late January, I was on a trip. I was in Austin, Texas, and I’d been doing some media all day, put out a statement and a blog post. And obviously, you know, when you do what I do, this is the super bowl. Whenever there’s a vacancy, that’s you know, you’re on. And I was getting more and more upset about President Biden reiterating a commitment that he had made when he was on the campaign trail in the primaries to appoint a black woman. I thought it was offensive and inappropriate.

Ilya Shapiro:

I still do. To restrict an applicant pool for a high office or any office for that matter by race, gender, immutable characteristics. But late night in my hotel room, as I was scrolling through that hell site known as Twitter I fired off a hot take and thought about, you know, if I was a Democratic president, who would I appoint to most advance a kind of progressive legal agenda. And I thought it would be Chief Judge Sri Srinivasan of Austin of the DC circuit, a colleague of Judge Jackson’s well, and that means that anybody else in the entire universe is less qualified in my view than him. And, you know, we can debate that. But because of the narrowing of the criteria that President Biden put, he was only considering black women.

Ilya Shapiro:

And so I said that it’s unfortunate that we’ll be left with “a lesser black woman.” And those three words were what got me in hot water. The next, I then went to bed after firing that off. And when I woke up the next morning, all hell had broken loose. And eventually I was onboarded at Georgetown but immediately placed on leave, which I’m still on. They’re investigating whether my tweet violated various university policies. But here we are I stand by the sentiment that, that restricting a choice of a Supreme Court justice by race and gender is inappropriate, but I right away admitted that it was poorly phrased inartful I took it down. And here we are, all of a sudden I’ve become a poster boy for cancel culture, but I’ve tried to focus on the substance of the Supreme Court battles and other issues. And indeed there have been a number of protests, disruptions or obstructions, cancellations of events at law schools, and elsewhere this spring, one of my own at UC Hastings, but also Yale, University of Michigan, a few others. So there’s kind of this, this intersection of the larger debate about freedom of speech and the incivility of our national discourse combined with a Supreme Court confirmation battle.

Joe Selvaggi:

I live here in deep blue Massachusetts. I have many people friends who are on the other side of the progressive universe. I’m not looking for any sort of excuses or anything to mitigate your remarks or be an apologist for you. But,in my conversation with them, I think they see the world differently. Whereas you,one of the candidates you would see at the top of the pyramid of a very small group of people who you see as uniquely qualified to serve on the Supreme Court, imagine a giant pyramid of talent,in their view, there’s literally dozens, perhaps hundreds of people who are qualified to serve on the Supreme Court. And instead, you know, given that large pool of potential applicants, true, really within that group, there may be a qualified,black female. That’s their view that, you know, in a sense, one does not need to compromise when one chooses a nomination, a nominee by race or sex. What would you say to that?

Ilya Shapiro:

Well, there are plenty of people qualified to be on the Supreme Court. I don’t know whether if it’s hundreds, it’s certainly dozens. And among them are many black women or several, depending on how you count. But it’s a rather finite universe. And you know my tweet was – it’s incorrect, I think, logically, to read what I said, to say that no black woman is qualified to be on the Supreme Court. I was just making the point that I happen to think that the most qualified, the best pick is one Sri Srinivasan, of Austin who happens to be Indian American and immigrant actually would be the first Asian American, was one of the short listers for President Obama on the pick that eventually went to Merrick Garland which means that everyone else is less qualified.

Ilya Shapiro:

And again, the, the lesser formulation is, is unfortunate. But you know, I think Biden, would’ve been much better off not saying that not making that commitment and eventually still picking judge Jackson that would’ve been a, a different sort of scenario. And anyway, at this point, I’m certainly, it’s not my position that she’s not qualified to be on the Supreme court or for the exam for, for that matter. The other short listers who were mentioned, Leondra Kruger and Michelle Childs I still maintain that Sri Srinivasan of Austin would’ve been a better choice. But that doesn’t imply that no one else is qualified.

Joe Selvaggi:

Well let me just go down there a little bit further and, and we’ll shift gears to the current nominee you’re openly a libertarian minded public intellectual, and one who perhaps favors nominees who lean more towards a strict constructionist or the right leaning justices had the president taken your advice and chosen this Judge Sri Srinivasan wouldn’t that have had the effect of pulling the court further left. In other words, you would’ve, you know, given the, you know, Babe Ruth to the to the, the Yankees, or I don’t know who you root for, but you’re essentially making a stronger case for a point of view that you oppose.

Ilya Shapiro:

I think that’s probably right. I think if, if I am correct, and again, this is debatable, different people can analyze things differently, but if I’m correct that Judge Srinivasan would be the strongest choice for a democratic president, then indeed having him on the court would pull the court more to the left because of the force of his advocacy or or, or what have you. Although, you know, who knows there’s different calculus in here every time you switch out justice, it, it changes the internal dynamic, and not just because of who’s more to the left or the right than anyone else, but who is more friendly, can convince other justices or negotiate compromises, or or what have you. It’s not necessarily the case that the most left-wing pick would generate a move to the left for the court, because maybe that person would put off some of the more centrist conservative that John Roberts or Brett Kavanaugh or, or something like that. Nor would it mean that I would necessarily vote for Judge Srinivasan because I think judicial philosophy is important. And you know, if at the end of the day, I, I think a, a judge’s judicial philosophy, isn’t the isn’t my cup of tea, and I think, or any Senator should make that judgment for his or him or herself. I think that’s a valid reason for voting.

Joe Selvaggi:

We’re gonna talk a lot about judicial philosophy. And again, in conversations with those of my friends who are on the more progressive side of, of things they would characterize, let’s say more right leaning or a conservative view of, of the constitution Supreme court as being sort of a generated from a, a world view of those who have privilege and power clearly is suggesting that that’s, that’s your background. I find your background. Once I learned more about it to be extraordinary anything but coming from a universe of privilege and power, you, if you don’t mind me sharing, I know you were born in Moscow and it took a long circuitous trip here to be where you are Briefly, and only as far as you’re comfortable sharing with our listeners, the fact that yours was not an easy path.

Ilya Shapiro:

Well, first of all, I would certainly challenge the idea that you have to come from privilege or something to either be conservative politically or libertarian, or to be an originalist. You know, for that matter I was born in the Soviet Union and we left because my parents didn’t like autocratic, arbitrary rule. You know, they taught me the rule of law is what you want. You want equal treatment under the law and what the law says should go equally for everyone. And the law should be clear, and that’s what originalism, textualism is all about. It’s about the rule of law rather than you know, bending legal outcomes or policy outcomes to whatever the person in power, the people in power want on any given occasion.

Ilya Shapiro:

But yeah, my background, we were you know immigrants to Canada and my parents restarted their lives in the middle of their lives. I was four when we came over. You know, my dad’s family, my mom’s family, both due to antisemitism in general, autocracy suffered under communism. And I’ve always been I guess what you could call a striver, always trying to do really well in school and better myself and seek opportunity, and so go to the best educational institutions that I could and so forth. So, yeah. I’ve you know, I’ve been proud of the opportunities that I’ve been able to achieve and very grateful to my parents for the sacrifices they made.

Joe Selvaggi:

And indeed, well, thank you for that. So let’s focus our conversation onKetanji Brown Jackson’s nomination and her hearing in front of the Senate judiciary committee. I’m a layman. But I have great concerns about the makeup of the court. I watched it not cover to cover, but just about I’ll just say at a 10,000 feet view Judge Brown Jackson was very likable comfortable in the hearings. Her style and demeanor is very friendly, easy to like regardless of her opinions. Do you think that had an effect on the reason was that one of the reasons she may have been chosen, meaning she would’ve been the easiest nominee to generate consensus in some way?

Ilya Shapiro:

Well, she’s certainly been through confirmation hearings before and was known as being likable and gracious and poised. So certainly helped herself in those hearings by showing those characteristics somewhat akin to how Amy Coney Barrett behaved and I think sold herself well when she was on the public stage. It doesn’t seem to have changed any minds you know, no Republicans that were otherwise disposed against her, like, oh, well, it turns out that she’s a nice person. In fact, Ben Sasse said, she’s, you know, great and wonderful. And I commend her achievements, but I disagree with her judicial philosophy. So I’m gonna vote against her. That was the clearest exposition of that point. And as we’re recording this, only one Republican, Susan Collins, who has voted for every nominee by parties, by presidents of both parties that have come up other than Barrett, because she didn’t like the timing of that one.

Ilya Shapiro:

So she’s a yes, but otherwise there’s only two potential gettable Republicans left, who haven’t declared that’s Lisa Murkowski and Mitt Romney. So we were talking, and this is gonna be a 51, 52 or 53 vote to confirm. So, you know, it seems like maybe she marginally helped herself in the court of public opinion if you will. But at the end of the day you know, this is part of why I write in my book that hearings have become Kabuki theater and they are overall a net negative, I think, for the public discourse. And I think every hearing everyone who pays attention kind of has to, or participates has to kind of take a shower afterwards. We’re all lowered into the muck of you know, the mud slinging and, and a hearing a Seinfeldian hearing about nothing, if you will.

Joe Selvaggi:

Well, we, we’re gonna try to stay above the fray here. And talk about now much has been made about the fact that where she confirmed, which she is likely to be confirmed, she would be the first black woman to serve on the Supreme Court. But she also has an interesting background that adds to the diversity of the court. She’s the only current person with the experiences as a public defender. That’s rare. And, I think it’s even something Cato’s advocated for in the past. I remember reading an article where more civil rights defenders of the public ought to be on the Supreme Court. That’s a good fit for someone with a libertarian point of view. Do you see her role as a public defender as useful to the court in some way?

Ilya Shapiro:

I think experiential diversity is very useful and, and would be very helpful and, and more important and more, more telling than just, you know people with different compelled skill that all think the same or, or, or something like that. The superficial diversity she was as public defender and appellate public vendor for, for two years which is something that, that nobody else on the court had done. Also, she was a, a district judge, a trial level judge in the federal system for seven years only, justice Sotomayor had been a district judge. So yeah, it’s good to have people with, with, with different experiences. You know, we don’t, we haven’t had a politician in a very long time. We used to appoint senators and governors and Senator O’Connor had been a mid-level appellate judge in Arizona state system, but she had been a in the state legislature had been a an elected official. But since then, it’s been all, all circuit judges basically with, you know, similar backgrounds as law firm partners or prosecutors. So it’s yeah, I think it’s, it’s good. You know, all other things being equal. It’s, it’s nice to have someone with different kinds of experience.

Joe Selvaggi:

So I’m gonna continue my line of, of questioning as, as some a sort of defender of, of this nomination. I was encouraged by some of her testimony that assert it sounded very sort of conservative in its tone, a strict, strict constructionist, if you will. In fact, I, I wrote down a part of her testimony. She stated that quote, I believe that the constitution is fixed in its meeting. The original public meaning of the words is a limitation on my authority to import my own policy. To me that sounds like music to your ears. Other words, the law is written down. It says what it says in a judge’s role is to apply, you know, the facts of the case to the laws it’s written. Is this potentially a budding originalist such as Scalia?

Ilya Shapiro:

No, but that was an important moment. First of all, I have to correct you twice. Now you’ve used the term strict constructionist. That was sort of the, the proto originalism nomenclature from back in Nixon’s day when he was running against the Warren court in 60.

Joe Selvaggi:

I’m not quite that old.

Ilya Shapiro:

I know, but it’s, it’s as Scalia used to say, I’m not a strict constructionist, I’m not a loose constructionist. I want statutes to be construed for reason believe or how, you know, so that the point of the matter isn’t to you know, to, to have an overly narrow or, or technical or literalist interpretation that can sometimes lead to absurdity, but a, but a reasonable one by, by what the words mean when enacted whether, whether a statute or, or a constitutional provision him. But anyway that was an interesting point. Randy Barnett had an oped in the wall street journal the day after the hearing concluded, talking about how quote unquote, we’re all originalists now, and it’s interesting that she used that formulation, the law is fixed at one point she commended justice Scalia for having essentially won the debate that originalism is the central mode of, of judicial analysis.

Ilya Shapiro:

She didn’t have to do that. Right, right. The Democrats have the majority, she, you know, had the votes as long as she kept, you know, executing the playbook of talking a lot without saying very much. So why did she say that that’s more telling, I think about society and the nature of our political culture than about her. It means that originalism has become a norm and one has to pay lip service to it at least to you know, as part of the, the gauntlet that you run as a, as a Supreme court nominee, I think that’s important. It does track what I’ve seen in opinion, polls that the public when, when read, you know, not saying, you know, who it’s affiliated with, but read statements of describing what originalism or textualism is they prefer that to whether it’s a living constitution or a pragmatism, or as justice Briar just demonstrated this week in a case where he was a sole dissenter in a, in a otherwise very obscure, technical federal arbitration case.

Ilya Shapiro:

But he, he wanted to look at the purpose of the law and kind of its spirit, you know, rather than the plain text people for what it’s worth the public prefers the formulation of reading the law for its meeting for the text on the page, et cetera, what judge Jackson said so I don’t think she is the next coming of, of Scalia or, or Thomas or anyone else on the right. But that the, that she felt the need to say that is telling in, in a broader sense,

Joe Selvaggi:

Has that on before had there other been other, let’s say what we would call progressive candidates that talk the talk of of originalism. And then ultimately once, once they get the Rob on, they become something else entirely

Ilya Shapiro:

Well, Elena Kagan she, her hearings were in 2010, gosh, 12 years ago. Now time flies she’s said were all originalists, but she kind of cabined that by saying when there’s explicits specific rules in the constitution. So like the president has to be 35 years old, you know, things like that. Very, very clear judge Jackson her pronouncement on that were, was more sweeping and less less cabin. So I guess the, the norm has grown and Kagan, you know, is is a textualist for sure. But she’s not an originalist. And one other notable thing about Kagan is that she sticks to precedent this idea of stare decisis. That so times we let erroneous precedent lie undisturbed because getting it right would unsettle reliance interests and, and, and the social foundations upon which the rest of the law is built. She and justice Thomas are the only ones who I think are consistent from office, it sides, Kagan, never votes to overturn precedent. And Thomas almost always, if he thinks the, the decision is wrong, we’ll vote to overturn it, regardless of anything else, everyone else on the court you know, is changes their mind depending on the merits of the case.

Joe Selvaggi:

So you made the case that it’s now popular wisdom to sound like an original well on, on in the hearings, but ultimately revert back to your your original judicial philosophy have there any ever been and you’re the historian on this you go into much in your book, have there been nominees by a particular party with the expectation that the would adhere to one judicial philosophy, and then they either change that or drift left or to right. Or during their time as, as as justices?

Ilya Shapiro:

The answer is yes. And it didn’t start with, you know, modern Republican appointments, cuz there have been some disappointments you know, David Suder by George HW Bush John Paul Stevens appointed by Gerald Ford and became one of the more left wing members Dwight Eisenhower appointed Earl Warren and also bill Brennan, you know, very much on the left. He said that those are his two biggest mistakes of his presidency. Although the Brennan appointment was for political reasons on the Eve of the 1956 reelection to help with the Northeastern metropolitan and Catholic vote, which it did for Ike running for reelection. But you don’t have to look just in the last half century or there are abouts Thomas Jefferson had the opportunity to appoint a lot of justices and was really trying as a, as a remember in those parties in those days, the, a democratic Republican, he was trying to shift the court away from its capital F Federalist bearings and yet nominee after nominee fell under John Marshall’s sway.

Ilya Shapiro:

So there have been, you know, frustrated presidents for, for, for many years Abraham Lincoln appointed his treasury secretary salmon P chase as chief justice partially to get him out of his hair. That whole team of rivals thing was getting old. But also to approve the law under which the union financed the civil war, the legal tender act, which the chase as treasury secretary helped draft. But then as chief justice, he wrote the opinion holding it unconstitutional. So, you know, this is it’s hard to predict which way justices are gonna go in modern times. I will tell you that the only appointment by a democratic president that perhaps turned out more conservatively than a lot of Democrats would’ve wished is Byron white appointed by JFK in 1962. And he was sort of a a centrist you know, his, his jurisprudence couldn’t really characterize as you know, left or right. He sort of called him as he seen him, but he, but he definitely was more conservative than any other democratic appointee of the, you know, since I don’t know Truman or so,

Joe Selvaggi:

So this is precisely in your wheelhouse you know, that candidate brown Jackson is going to replace justice Breer so that’ll change the court. We, you know, let’s say those of us who don’t study it for a living have seen it as six, three, and therefore it will remain six, three right versus left. But you see these justices on many different accesses other than left, and right, as you mentioned, there’s a difference between originalist and textualist difference between those who respect precedent as sacrosanct and those who, who sort of question let’s say what they perceive to be incorrect precedence. If you can lay it for us on the map where from what you know about this new nominee, where she would fit maybe use terms left or right, or, you know, where she fits amongst the other eight justices, if you can.

Ilya Shapiro:

Well, very crudely and generally speaking, I think she’s to the left of Briar for whom she clerked and who she’s replacing, and probably at the left of Kagan as well, somewhere, somewhere alongside sort of my own. But as you said that’s, you know, only kind of general on, on average or, or something like that, to the extent that such characterizations even matter. Last year, the first full term of this new so-called hyper conservative six to three court that was not born out the justices were in all sorts of alignments. There were I think, six different, six to three alignments in the 12, six to three cases, there were five different five to four alignments. So there was not that kind of do dominance was not there. We’ll see what happens this term. There’s still, you know, the, the, the big cases, the, the second amendment case, the abortion case, some administrative law cases that could change the regulatory structure.

Ilya Shapiro:

Those are all gonna come in June. And we’ll see if, if there is that kind of alignment. But you know, some people are calling it the 3 33 court with three justices on the left generally Alito Thomas and Gorsuch on the right. And Robert’s Kavanaugh and Barrett in the middle or the center. Right. I, I don’t know, again, I think that’s overly simplistic as well. Jackson having been a public Def vendor and with some of her sentencing practices perhaps will be with on, on criminal justice perhaps will be with Somi and Neil Gorsuch. Remember that’s sort of the left and the right against the middle in, in many fourth amendment cases, for example maybe there maybe less differential to government in some of other ways as a, you know, a, a civil libertarian or a, or a classical liberal I like a soda may more than I like a me Garland, for example, even though you would think, oh, isn’t me Garland closer to the originalist.

Ilya Shapiro:

Well, it, it depends, I think on, on the kind of culture war, politically salient cases, there’s no different on any of the democratic appointees, but at least as so may is better than someone who defers to the government on law enforcement and other things like that as well, like Garland on those fourth amendment cases or other civil liberties cases. So it just depends what you’re what you’re looking at. I don’t think there’s gonna be a much difference in how, you know, Briar Kagan soor Jackson now, the late justice, Ruth Bader Ginsburg, John Paul Stevens, how they vote on, you know, the cases that make the, the front pages really, but on, on some of the lesser profile cases where it is sort of the the principled versus the pragmatic, if you will it could be, you have this horseshoe effect. And, and, and she could be in, in places that, that, that I would like

Joe Selvaggi:

Now we’re talking about the sort of likely positive characteristics of this new nominee contributing to the, the to the new makeup. There are a lot of questions and I, I, I’m not proud of what some of the Republican senators asked in many cases of, of this candidate. Did any of her answers give you concern that you didn’t have before the, the hearings, as you say, you characterize as a Kabuki dance, perhaps devoid of any substance, but there were some questions about her, her leniency when sentencing people involved in child pornography or, or you know you know, some of her, her legal rulings that may have, you know that who may have given you pause, did you see anything of substance there?

Ilya Shapiro:

So some of the questioning, the, the, the tone of it was a little over the top. I don’t think it’s inappropriate to ask a judicial nominee about her sentencing practices or her views on the equal protection clause or other that that’s where critical race theory was, was coming in. Some of it obviously was grand standing, all senators, grandstand, and bloviate, that’s, you know, part of the senatorial job. You want that video for your next reelection campaign or your presidential campaign to show that you’re, you know, what kind of person you are and stuff like R up the base and all that. I think it was a strategic error to focus on her child porn or sex offender cases where she’s not really anomalous a lot of judges you know, see there. And I don’t wanna get into the finer points, Andy McCarthy at national review.

Ilya Shapiro:

No, no raging liberal went into a fair bit of this, but if you look at her overall sentencing practices I, I think she seems a little bit more lenient, which you wouldn’t wouldn’t be surprising for someone who’s generally a judge who’s generally on the left, but you know, whether that is disqualifying, I mean, I don’t, I don’t know to me the kind of lack of demonstrated originalism textualism is, is, you know, beyond the lip service is, is more important than you know, sentencing practices. And it’s not like the Supreme court is either sentencing people or overturning too lenient or too strict sentences. That’s not it’s job. There’s a lot of discretion that Congress has given district judges, but you know, that, that’s my view on, on all that went down. I, you know, again, I don’t think anybody’s mind was changed one way or another by those lines of questioning.

Joe Selvaggi:

How about the, the question about what, what, what is a woman, is, was that just a, a cheap shot or was her answer just a stumble or did we touch on something substantive there?

Ilya Shapiro:

Well, clearly she felt political pressure because in, in, in the, the current zeitgeist on the left there’s apparently what a, what a man and a woman is, is, is an open question, but she could have answered that in a better way. And in fact, even, even if one adopts the terms of, of the, of the so-called woke left, it’s not a biologist that determines what a woman is, it’s how you identify, right? So she could have steered clear of the entire controversy by saying an adult, female human being that’s, you know, that would’ve been a perfectly good answer and not taken a position in that particular culture war

Joe Selvaggi:

Indeed, that, that that probably would be a more art response. Now we’re, as you mentioned, she’s unlikely to get 60 votes. She’s more likely to get 51 52 or 53. There’s some who point to the fact that she’s already been through a few hearings and been approved by of these Republican centers before namely someone like Lindsey Graham is voted for her in the court of appeals in the DC circuit. Is it hypocritical to say, you know, thumbs up at one level, but thumbs down at another, or is there some room for changing one’s mind?

Ilya Shapiro:

I mean, if, if someone, so if you go the other way, if you thought she was a no on the circuit court, I don’t see why you would change your mind for the Supreme court. Unless she had accomplished a lot and done something to, to, you know, substantively change someone’s mind, but of course she was only on the, the DC circuit less than a year, so that, you know, a MIT Romney actually voted no on for her DC circuit confirmation. So that’s why I think he’s in a tough spot if he, if he starts if he says that he’s gonna vote for her now going the other way, just say, well, you know, she’s qualified for that level, but not for the next, you know, not every district judge is equally qualified to be on, on the circuit court. Not every circuit court is equally qualified to be judge is qualified to be on the, on the Supreme court. So I think that’s, that’s how you explain that away.

Joe Selvaggi:

So we’re getting close to the end of our time together. I appreciate your, your valuable time. So I wanna get to what you’re up to now, as you say, you’re on on leave right now, but you’ve taken the job at Georgetown as the executive director of the center for the constitution, I guess, just a few more blocks across town from where you are or where you are. What’s your ambition there? Are you, you know, what, what, let’s fast forward a few years and you’re creating new scholars, new scholarship new events. What, what are you gonna produce there while at Georgetown?

Ilya Shapiro:

Yeah, assuming I’m eventually reinstated. And I can’t comment on, on the investigation process of course, but the idea is to build out the center, both in substance and in terms of popular awareness and academic awareness of as it being a, a, a center for original public meaning constitutional interpretation. When people think of how do you interpret the constitution? How do you be a good originalist? How do you take the law? Seriously? I want people to think of the Georgetown center for the constitution, and that means enhancing its programming and developing new programs targeted, not just at students and academics, but also practitioners, judges. There’s a, a burgeoning judicial education, project, publications, public events all of the above and hopefully I’ll get to do that sooner rather than later. And this year, the center’s actually celebrating its 10th anniversary under the leadership of Randy Barnett and hopefully you know, some years down the line at its next big anniversary, I’ll be able to point to some accomplishments in, in, in achieving all of the above.

Joe Selvaggi:

And if we all live long enough, perhaps you’ll have a few students on the Supreme Court from that fine organization. That would be exciting. Right.

Ilya Shapiro:

Your lips to some future

Joe Selvaggi:

President’s ears. All right. Good. And also, I wanna congratulate you, your law school edged out Harvard as third nowaccording to US News World Report, right?

Ilya Shapiro:

My law school alma mater, the University of Chicago. Yes. Yeah.

Joe Selvaggi:

Alma mater

Ilya Shapiro:

Things are returning to where they’re supposed to be when I was applying law school. I think university of Chicago was, was second then as well. So, you know, the world is healing, I guess we can say.

Joe Selvaggi:

That’s great. You got the bronze congratulations. So I wanted to get that in there. Well, thank you very much for joining our listeners here. You’re a font of information and uniquely qualified to opine on this particular topic. Thank you very much for your time today.

Ilya Shapiro:

My pleasure, Joe, take care.

Joe Selvaggi:

This has been another episode of Hubwonk, a podcast of Pioneer Institute, a think tank in Boston. If you enjoyed today’s show, there are several ways to support the podcast and pioneer Institute. It would be easier for you and better for us. If you subscribe to Alan on your iTunes podcast, catcher, it would make it easier for others to find hub long. If you offer a five star rating or a favorable review, we’re always grateful. If you share Hubwonk with friends, if you have ideas for me, or suggestions or comments about future episode topics, you’re welcome to email me at Hubwonk@atpioneerinstitute.org. Please join me next week for a new episode of Hubwonk.

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