April 11, 2017 • 45 mins
Being nominated as a Supreme Court Justice is no small thing, and it doesn't always go as planned. With this week's confirmation of Justice Gorsuch, Josh and Chuck take a look at the process of getting named to America's highest court.
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Episode Transcript
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Speaker 1 (00:01):
Welcome to stuff you should know from how Stuff Works
dot com. Hey, and welcome to the podcast. I'm Josh Clark.
There's Charles W. Chuck Bryant, there's Jerry over there, and
this is who I object to what I don't know.
(00:23):
I don't think you object them from the Supreme Court.
I think they strike you down with lightning if you
talk out of turn. Yeah did they even uh geez,
I'd love to see one of those hearings. Yeah, they
even call them hearings. Uh, magic our right, I don't know.
I'm sure they do call them hearings. I'm almost positive
(00:45):
it's like shrouded in secrecy though, right, you never know.
I don't show that stuff on TV, do they like? No,
but they do have like like if you listen to
Nina Totenberg, she's a great Supreme Court reporter, and um,
it's all. It's not televised and I guess it is
just traditional reporting reporters that are allowed in there. But
(01:07):
it's not closed to the press or and he's not
like a Pasi court or it's not it's not the
Star Chamber. No, no, uh, it's interesting though, it's it
is sort of it does seem sort of secretive though,
because they like write these rulings. Sometimes they don't even
read them. I saw that Clarence Thomas went seven years
without speaking in court. What Yeah, that's what it said.
(01:29):
Where did you see that? In an article about Clarence Thomas.
It said he he's one of the quietest justices. That
said he went at one point seven years without speaking
in court. But apparently writes a lot in his uh
um rulings and you know, his briefs, his briefs, he
writes in his briefs. Yeah, I can see that because
I guess when you're in court, you're arguing in front
(01:50):
of the Supreme Court, I think basically, and we'll do
like a whole separate Supreme Court episode. Yeah right, agreed, Sure, okay, um,
somebody mark that town. But you are, you're being peppered
with questions from them and then like you're you're trying
to answer the questions to to show why your side
(02:11):
is right right and arguing the case right now here
and intimidates you. Um. But yeah, part of it is
going back thinking about it and then writing your opinion
on It's very weird job. It is. It's a pretty
neat job. Too. One of the big things about it
is it's in here in the United States. If you
(02:31):
are on the Supreme Court's the highest court in the land,
you're there for life. It's a it's a life appointment.
Is the only as far as I know, besides you know,
um working at the d M v AM. I right,
it's the only for life appointment in the United States government. Yeah,
(02:51):
which seems like kind of crazy, but it also sort
of makes sense because you want you want a stable
Supreme Court. Yeah, you want them focusing on cases, not
you know, what's going on, whether they need to elected
again or campaign. That makes it makes sense once you
kind of put your head to it. Plus, it also
kind of dovetails with the way that they're viewed here
(03:13):
in this country and I'm sure abroad to um that
they are this panel of highly learned legal scholars just
basically like um uh, I don't know. I'm sure there's
something in Star Wars that resembles this. You know, the
Jedi Council. Oh man, I'm always afraid to say, hang
(03:36):
about Star Wars. You know, the Jedi Council that John
jar Binks was on. Okay, Yeah, we won't hear anything
about that. How could we write? Uh so this was
written by our old buddy Ed Grabbynowski. Yes, should we
tell everybody? Should we reveal the big reveal? Do we
have an announcement? I think so? All right, go ahead.
Oh you're letting me do it so everybody. You may
(03:59):
not know that because we tried to stretch out Grabstar
articles as much as we could, but they were starting
to get thin. Ye, Crabster wasn't really writing for the
site any longer. While we said enough of this, we
need them, you need them bad. So we did a
little wheeling tad bitter dealing and Grabster is going to
be writing again, specifically topics that we are requesting. Yeah,
(04:21):
it's pretty great. Like you and I were both so excited, stoked,
I think is the word. Yeah. So anyway, we love
Ed and uh big shout out to him and to
Buffalo New York and their wings and their football team.
Sure why not? So anyway Ed wrote this, Um, and
you know, it's a great article. So, like you said,
(04:42):
I think we kind of duve into it really quickly.
But um, if you're not in the United States, you
might be saying, what's the Supreme Court? Although I think
you probably know. Um, like you said, they are the
highest court and um, they're the third branch of our government. Uh.
And they are specifically specifically air to kind of keep
everyone in check and to say, like, you know, you
(05:03):
may be the president, but you're not a dictator because
you still have to answer to the Supreme Court at
the end of the day. You can't run a monk.
And we're gonna we're gonna make sure that we and
this is ideally, we're going to make sure that we
review everything in a in a legal way, and we're
gonna get to ideology. You can't escape that, of course,
(05:26):
but you know, Supreme Court justices are supposed to rule
on law and specifically these days at least how it
relates to the Constitution. Yeah, and that's a It wasn't
their initial They weren't created to say, like, go defend
the Constitution. Uh. And the the Supreme Court said, well,
can we sow some patches or bedazzle our robes? And
(05:47):
the framers said sure, we don't care, so they went
out and defended the constitution. It actually is very vague.
The judicial branch or the Supreme Court is created in
the Constitution, but all it says is that they are
there to UM. They that it's power should shall quote
extend to all cases in law and equity arising under
(06:11):
this constitution. That's it. It's the only thing it mentions
about the Supreme Court and its power. So Ever since
the Constitution was written and ratified, the Supreme Court has
kind of been this evolving thing, or it was evolving
for a while. Now it's pretty well set into into
its role and what it's meant to do. What evolves
(06:31):
and changes are, like you said, the ideology and the
personality of the of the people sitting on the court. Yeah,
and their word is the final word. Um. There there
is no court that can overturn or review even their decisions.
And they review. They have about five thousand cases submitted
every year and can only review about a hundred to
(06:52):
a hundred and fifty, which I thought was kind of
a lot. Actually, yeah, I was not expecting that. UM.
And they specifically try now, like we said, and focus
on the constitution or UM usually cases that have been
appealed from lower federal courts. You know, they worked their
way up to food chain um or and I think
they probably love these uh treason cases involving treason or
(07:15):
disputes with other countries or ambassadors kind of like you know,
the high stakes stuff. Imagine being an ambassador and getting
dragged in front of the Supreme Court for something you
did being or your kid did. Yeah, probably a little
snot nosed brats ambassador kids. So like, like I was saying,
the the Constitution is pretty vague about what the Supreme
(07:35):
Court is meant to do. And it wasn't even out
of the gate that they realized that they were supposed
to really kind of examine laws in respect to the Constitution.
That started in an eighteen oh three case Marbury versus Madison,
and it was yeah, it was a landmark watershed case
both both kinds um and ironically, the court found owned
(08:00):
that it didn't have the power to satisfy the petitions
of the petitioners. I think James Madison or no, Stephan
Marberry was suing James Madison because James Madison had said, um,
we'll give you these commissions and then he was taken
(08:20):
out of office or he phased out of office and
the commissions were forfeited, and the Supreme Court said, you know,
we thought we had the power to do this, but
it turns out we don't constitutionally, so sorry. And it
was the first time that the Supreme Court had ever
examined something through the lens of the Constitution, and that
set the precedent from then on. Yeah. And they serve, well,
(08:42):
they serve kind of however long they want to or
if they die obviously, but the average about fourteen years
UM or if they retire, they average retirement age seventy
one UM. But they can serve super long. And I
know that one justice served for thirty five years UM.
And you know, if you if you nominate a young judge,
(09:04):
which is kind of more of the trend these days
when you're thinking politically, like you know, we want someone
in there for our team, so pick a young one, right, Uh.
Then they can have tremendous sway And how things going
this guy year after year after year after year. Yeah. Yeah,
because the reason why they have so much sway is
like the stuff that they're they're ruling on is constitutional
(09:28):
in nature, and here in the United States, if it's
if it's constitutional, if it's guaranteed by the Constitution, protected
by the constitution, outlawed by the Constitution, whatever. However, the
Supreme Court measures the law against the constitution, Like you said,
that's the law of the land. From that point on. Um,
(09:49):
any law similar to uh, what the Supreme Court just
ruled on, it's immediately null and void, like it's done.
Um ed used is a really good an example. And
this he said, like if if main bands anti war
signs from people's front yards and Supreme Court rules that
that law is unconstitutional, well, if Rhode Island has a
(10:12):
similar law, California is a similar law, those those laws
are immediately illegal. I guess, um. And it's not like
Rhode Island's gonna bring their case and then California is
going to try their case. Once they rule, it's done.
It's been ruled on. That's right by the sc Yeah,
and uh, there are nine justices, Um right now there
(10:33):
are eight, which we're going to get into. And uh,
obviously having an odd number means you can break a tie.
So it's um with eight you can have a tie.
And when you do have a tie, they've actually thought
about this, believe it or not, they arm wrestle. I'm kidding,
of course, they don't arm wrestle. But um, what happens
(10:54):
is the lower court decision is what's called passively upheld,
which means that for that case only, it's upheld. But
it's not like the Supreme Court didn't rule on it,
and it doesn't create that that nationwide legal precedent forever
and ever passive aggressive and someone could you know, once
I get that ninth person, they could bring up a
(11:15):
similar case, not the same one, but a similar one
if they want to like have that precedent said in
the Supreme Courek will be like, let's try it again. Yeah,
but yeah, if you for a case to be decided definitively,
all you need is a simple majority five to four.
And a lot of cases these days in the United
States are have I have like five to four decisions, um,
(11:38):
Which is the fact that that's a pattern and then
that's routine really kind of shows you how just close
to the center that that ideologically the bench is. And
um that all it would take was you know, one
or two votes that you can really rely on one
way or the other. It's going to be super liberal
or it'll be super conservative. Yeah, and these days it's um,
(12:02):
I mean sometimes you'll get surprises on ideology, like oh,
we thought this person would vote this way, that way,
But generally you got kind of the four on the
left the four on the right, or you know you
did before Scalia died. And um, I think Kennedy is
sort of the swing vote, right, yeah, generally speaking for
us right, it used to be Sandra Day O'Connor. Right.
(12:22):
But when when they say, oh, we were surprised, we
thought they were going to vote this way, that's putting
it about as mildly as you can. But surprise, yeah, outrage.
I wasn't expected that fiddle d d yeah, And I
looked up some of the I mean, we'll get to
this later, but some of the appointees, um, throughout history
have been made by like conservative points of conservative and
(12:45):
then they might grow a little more liberal over time
or the other way around. And they're always like they're
so upset, like, you know, I thought this is what
we were getting. But to me, that's how it should be,
you know, Like that means probably that that judges deciding
cases based on merit and not like I'm just dug
in and entrenched in one ideology. Yes, which is exactly
(13:07):
what you want from a Supreme Court justice. Should we
take a break, Yeah, let's take a break. All right,
we're talking about appointments, so we'll get to that right
after this. All right, how's this work appointing? Yeah, so
(13:49):
remember the constitutions when their Supreme Court do it. I'm done.
I'm out right and going to take a nap um.
So appoint appointments, it's it's all just made up. There's
no qualifications. Uh, there's no requirements. You you or I
could be nominated to be on the Supreme Court. The
(14:10):
President was like, I want to figure out the fastest
way to ruin my political career. I've got it. That's
that'd be a good way to do it. Because again,
here in this country, people treat Supreme Court nominations like
a religion. It's a big, big deal. Not even to
like get someone through the process. Just to nominate somebody
(14:32):
can bring so much blowback from your party, from the voters,
from the opposing party, from everybody that you really want
to think it through. It's not a haphazard thing. But
as as far as the starting the whole thing off,
you have a list of qualified candidates. I think every
single Supreme Court justice in history has been a lawyer
(14:53):
at least, but lately almost all of them The only
person on the Supreme Court now who isn't a judge
is Elena Kagan Um. But the trend is is most
of them are federal judges who are called up to
the bigs. Yeah. And a lot of them have even
served as clerks on the Supreme Court. Um. So what
they're looking for with all that is experience. Yeah. And
(15:15):
and for the last hundred and fifty years, not only
have they been attorneys, but they've they didn't go to
you know, the strip mall although was it O'Connor, Well,
she didn't go to a strip mall law school, but
she was a strip mall lawyer. I think yeah at first.
But they have all graduated from like an accredited legit university,
(15:35):
like not like Dr Nick graduated from the Upstairs Medical Clinic.
Is that what it was called. I think it was
Tijuana Upstairs Medical Credit. Uh. A lot of these UM
justices before their Supreme Court appointment have been involved in politics. Um.
Some of them have been governors, some of them have
been in Congress. There was even one former president, one
(15:58):
Howard Taft. Howard is actually a great story. He hated
being president, hated it, loved being a Supreme Court Justice.
I could see that, he said. On the bench, it groaned, anyway,
I'm home, this is great, the bench groaned. I know
that for a little while there were people there were
there were rumblings that Obama might be in line for
(16:21):
a Supreme Court appointment had the election gone a Diffroy,
which would have been I could see that. I could too,
But um, you know, obviously that's not gonna happen. No,
I don't see Trump, I pointing Obama. All right, So,
once this nomination goes through UM and you know, the president,
it used to be like a very I don't know
(16:42):
about solitary probably there a little close circle. But now,
like you said, they get a list and that that's
culled from a group of very smart people that are
UM trying to firmly entrench their own ideologies basically, so
they're gonna choose from that list the candidate UM and
(17:03):
nominate them officially in the Senate. Then we'll hold hearings.
And just recently, you know, we've seen this going on.
You know, this is happening right now with Gorse. Yeah,
and the whole thing would have started with Gorsets getting
a phone call from the press saying, hey, I want
you to want me on the Supreme Court, and Gorstch
(17:26):
was like, I don't, I don't know what you're saying.
He's like, you're gonna be on the Supreme Court and
hung up right. That was it, And then uh yeah,
the name gets released to the press and the Senate says,
all right, let's get busy, let's get to work, and um,
this whole high bee hive of activity just starts kicking
up around this one. Poor sap who accepted the nomination
(17:48):
and now has everyone from the Justice Department to Congressional
aids putting on latex gloves and going right up there
rectum to try to see what they can find in
this person since passed. Yeah, and not only what they
can find in their past, but really grilling them, um
on maybe where he or she might lie ideologically, like
(18:11):
how how would you rule in this case that it
has happened? How did you feel about this case? And
I was watching um A news network the other day
talking about how Gorsets did such a masterful job of
like dodging, yeah about like not going on record with
with how they lean, um and that's tradition. Well, yeah,
apparently they they like the one thing that you're supposed
(18:34):
to do up there is not give anything away. No,
because it's just a big dance. And if they say yeah,
Joe Biden back and I think the eighties called it
a kabuki dance. Um, and Elena Kagan called it a
vapid and hollow charade because the senators are trying to
pin you down one way or another on your views
on gun control, abortion, all of these hot button issues
(18:57):
that the Supreme Court has either ruled on, may rule
on in the future, may overturn at some point. Um.
That that really split the country ideologically. And the point
of these Senate hearings is basically for the nominee to
sit there and not give up anything, because if they
did do that, then they would have to recuse themselves
(19:18):
from that case for having gone on the public record
stating their position. Well yeah, And it's the opposition's party's
job to sit there and sigh and rub their temples
and say, well, it just seems like you don't want
to go on record for anything, right, And they never
get to respond. Duh. It's a Senate hearing for Supreme
(19:39):
Court justice is what always happened. It's really funny that
they play that up, that like the senators act like
they just can't believe what's going on even though this
has been happening for decades now. Yeah, it's just a
big I don't know about a charade, but I think
part of it is they part of it is to
see how well they can hold up to the grilling too.
I think that's part of it as well. But the
(20:01):
group that probably plays the biggest role in in in
kind of rooting out what the nominees politics are are
the aids in the Justice Department and whatever they leak
to the media, because, um, you're not gonna you wouldn't
find anything out about say, like Gorsets from those two
days of hearings. No one found anything out about him.
(20:23):
If that's all you know about that guy was those
two days of hearings, you didn't read anything else about it,
You have no idea what his positions where. You'd just
be like, that guy's got one of the better haircuts
I've ever seen in my life. That's all you would
get from it. But the media tends to report on
it and they kind of fulfill the role that um
that that the Senate fails at every single time and
(20:45):
it'll be things like, um, Harriet Myers was was, um
was nominated by George W. Bush, and Um, he just
got immediate blowback for it is a terrible nomination. But
one of the things somebody found was that she had
cant if you did some money back in like a
good fifteen something years before to Al Gore's presidential campaign.
(21:09):
Like they find like little stuff like that, and they
try to put it all together to create a picture
so that the Senators can ask them about stuff or whatever,
or the media can can paint a picture one way
or another, and everyone can try to divine how they're
going to rule. Now, did Harriet Myers actually go through
the Senate hearings? Well, that that's what will happen a
(21:31):
lot of times if there is a skeleton in their closet.
Sometimes they want to accept the nomination, not even for
that reason. Sometimes they want to accept the nomination because
they're like, no, man, I know it, I don't want
to go through all that. I'm fine just being on
my federal circuit here. Um. But sometimes they'll withdraw if
they know that they won't make it through that and
(21:52):
they don't want that drug out in public. And sometimes
the the President will withdraw that nomination to avoid that
kind of embarrassment too, right, Um, Like Clarence Thomas, I
don't know how they missed that, or if they did,
you know, he would famously was uh allegedly sexually harassed
Anita Hill. And I don't know if they that didn't
(22:13):
come to light until the hearings or if that's what
my guess was. I think they started the hearings and
they were still doing investigations and they got into Anita Hill.
Yet he would come I don't think in today's climate, no,
that was that was nuts, um. But the what's ironic
about it is that he wouldn't make it in today's
climate with our awareness and understanding of sexual harassment. But
(22:34):
those hearings, his his Supreme Court Um confirmation hearings were
what exposed the world to sexual harassment and concept of
it that we understand today is rooted in that moment
in those three days where Anita Hill stood up and
was like, this is messed up and I'm gonna share it. Um.
And and Clarence Thomas famously called the whole thing a
(22:56):
high tech lynching. And then after all this, so he
was about to be voted on. There was debate in
the Senate, which we'll get to this process in a second.
They sent after this came to light, they sent it
back to the committee hearings. So he took a huge
step backward in the confirmation process, had to go through
three days of Anita Hills testimony, and then after that
(23:18):
the Senate still said, all right, cool, well we'll confirm you. Yeah,
and he was so upset he said, you know, I'm
not gonna talk for seven years, right, I'll show you so. UM.
By and large, though the vast majority of appointee UM
submissions what would you call him nominations are appointed, right. Oh,
(23:43):
I think it's something like there have been a hundred
and sixty one nominations and a hundred and twenty four
have been confirmed. I think there's only been thirty six rejections,
and so the rest are withdraws, withdrawals UM or. There's
one very recent one that I think is the first
(24:03):
in history, um Obama's nomination of Merrick Garland. They just
didn't even get hurt. Yeah, um, which is very much
an unusual, uh step that was taken in the process. Yeah,
I mean, this just happened. Everyone saw it happen. Um.
Obama was in his last year of his presidency, and
(24:24):
so uh, Republican senators basically said, not only are we
not gonna vote on it, we're not gonna hold hearings.
Some of them refused to even talk to the guy.
They just basically took their ball and went home. Right,
so we're not gonna do anything, which received a lot
of blowback from people already frustrated with the um the
notion that maybe these people work for them and they
(24:48):
should do their jobs, and that is one of their
jobs is to at least have hearings and take a vote,
and um they everyone dug in and um he went
without earrings, went without a vote, And uh, I don't
know what he's doing now. I guess he just kept
his regular job. Oh yeah, I'm sure. I don't think
you like lose your job and no, no, like quit
(25:10):
and move and everything go on the trail. Um no
he uh yeah, I I but I think the more
to the point, like you're it's gotta affect your reputation,
you know what I'm saying, Like even if it had
it was no fault of his own, it's still like
a black mark on his history at least. Well, it
(25:31):
was a big deal because this was Um, it's kind
of tough to pin down someone's political ideology as a judge.
They have a few ways of doing it. There's something
called the Martin Quinn score for Supreme Court justices, and
they compare how they vote relative to one another. Uh.
And then there's something else called the Judicial common Space score,
(25:52):
which measures their ideology based on the ideology of their
appointing presidents and home state senators. And then I think
this from Washington Posts, I read an article that they're
basically trying to sus out how liberal is Garland right here?
Who was super centrist, wasn't he? Well, they said in
the end that they looked at all those scores, and
then they did one more where they basically looked at
(26:14):
the law clerks that they hired, because generally you're gonna
hire clerks that agree with you, and clerks to work
for judges who they who they agree with, um, And
they looked at what they're the clerks political donations where
they were So what's this? They said that he was
center left in the end, would have definitely swung the
court more to the left. But at the time you know,
(26:37):
it was sort of a showdown. It was like for
the Republicans are like, do we do we let Garland
go through because he's sort of center left? Where do
we take a chance that Hillary wins this election and
goes whole hog left to someone that's way more liberal.
And in the end they dug in and uh, well
everyone knows what happened. Uh yeah, And I read both
(26:58):
sides of this, likebviously the liberals and the Democrats were
just going crazy over it there like this with the
audacity of not doing this right, um that that because
the Republicans were saying, well, it's an election year, so
we don't want to put a Supreme Court nominee on
the Supreme Court for life during an election year, right,
And the Democrats said, you're crazy. There's been like eight
(27:22):
or nine Supreme Court justices who were confirmed on an
election year. That's a terrible argument. But apparently that was
when the um the I think the government wasn't split, right,
There wasn't like the executive and Congress were in the
same party. The same party was in power for like
seven or eight of those confirmations to have gone through,
(27:44):
So both sides actually had legitimate arguments, but it definitely
seemed like a dereliction of duty from the outside looking in. Well,
what it did, too, was it set up, um the
gorste situation now, which is Democrats are delaying the vote,
and I think by the time this comes out, they
will have voted. I would guess so, because usually I
(28:08):
think McConnell said by April two he'd be confirmed, was
his estimate. Yeah, well they delayed it one more week
a couple of days ago, but um, regardless, it's it's
you know, imminent if it hasn't just happened. And so
they set up the situation now where Democrats are dug
in and they're like, don't expect any votes from us
to confirm. And then the Republicans are saying, well, if
(28:28):
you do that, though, we don't need a simple we
just need a simple majority. We can use what's called
the nuclear option, which we talked about in the Filibusters episode.
I think, yeah, so they're the Democrats would filibuster, then
they would use a nuclear option, which means they can
kind of rewrite the rules and confirm with a simple majority.
And then there's a fear that if that happens, that
will just be the norm going forward. Yeah, that they'll
(28:50):
use that for everything. And and on the one hand,
it will definitely be the Democrats fault because they used
the nuclear option first. But they used it for a
bunch of Obama appointees back and I think two thousand
thirteen or fifteen, and um, they said specifically this does
not apply to Supreme Court nominees. Now the pendulum is
(29:10):
swing the other way. The Republicans are in control. If
they use the nuclear option for the Supreme Court nominees,
that'll that'll just be like there will be nothing off
limits any longer. And yeah, they'll there will be no
filibuster power in the Senate any longer. Yeah. It really
underscores just how ugly things have gotten, you know. Yeah,
it's pretty ugly these days in Washington. Uh And and
(29:33):
we should say, well, we'll take a break in a second, choke,
but we keep talking about the Senate. The House has
nothing to do with this, actually, yeah a little bit. Um,
it's strictly the president appoints, and the Senate holds committee
hearings and then debate and then votes, and then the
person is either confirmed or rejected, almost exclusively confirmed. And
(29:57):
if they are rejected. Um, they can't be submitted again.
But it usually doesn't make sense too unless something big
has happened that makes the president think that they can
get confirmed. Which happened I think with Andrew Jackson. Is
that right? Yeah? In the eighteen six Yeah, he had
a guy named Roger Taney who had never heard of before. Um,
(30:20):
who he submitted. Guy got rejected, and then there were
elections that changed the complexion of the Senate. Yeah, that
was much friendlier to Jackson. So he did it again.
I got he brought him in with a like a
baseball head on. Yeah, I said, how about this guy
big mustache? Um? And George W. Bush did the same
thing too, but he his guy John Roberts didn't get rejected,
(30:43):
but he nominated Roberts twice in the same month for
two different seats. The second time he got confirmed. So well, well, um,
there's a lot of politicking that goes on behind this,
A lot of thought goes into it, not surprisingly, and
we'll talk about all that stuff right after this. So chuck, um,
(31:33):
this is not again, This isn't taken lightly. Um. It
is a hollow and vapid sharade and a kabuki dance
and it's ridiculous in a lot of ways, but it's
the end result is really really important, and that is
that you have a Supreme Court justice who's one of
nine voices that are that create the law of the
(31:59):
land here in the United States, and that they're on
there for life. So everyone again takes it extremely seriously,
and there's a lot of things to be considered when
a president is even picking a nominee from that list
that they have. Yeah, that you know, even though we
said there are no rules for qualifications, there is a
(32:19):
long history that's kind of become accepted as qualifications, which
we've talked about an attorney generally a federal court judge. Um,
so once that is kind of sussed out. We talked
about ideology a lot, and um, you're not gonna find
his head points out the perfect fit where someone agrees
with everything that you agree with as president, But what
(32:42):
you want is someone who by and large will side
with your side. What Yeah, you know, he's like us,
But again it's not going to be a perfect fit. Yeah. Like,
but you also want someone who probably has a good
chance of getting uh confirmed. That's a big that's a
(33:05):
big point, right, So like that. There's a lot of
factors that go into that selection. Right. So obviously, if
you are a conservative president, especially like a deeply socially
conservative president, you're gonna try to find somebody who's a
pretty socially conservative ideologue, right, and that will be your
(33:26):
your pick. But you may want to stop yourself and
think about this first. Let's let's let's think about this.
Who's in control of the Senate. That's a big one.
If it's the opposition party, well, then you may want
to consider somebody who's um maybe a little closer to
the center, because your person might get rejected. And if
(33:46):
you're just an outside observer saying, well, who cares, it's
they'll they'll get rejected. Pick somebody else. You you said
you have a list, go to the next person, right.
There's a lot of political ramifications for this, right. So
if if you are a president and you're picking a
pretty radical nominee, um, it can make you look bad,
(34:09):
especially if you're not that popular of a president. Yeah,
And it can also have a lot of bearing on
mid term elections and how the public views the direction
the country is going as a whole. Yeah, Because if
the Senate goes along with your radical person and the
public is not down with that person. That's going to
be a a negation on on on the ballot, like
(34:32):
you're you're You're not going to look good at all
because of this Supreme Court nominee pick. Yeah, the the
whoever um just left whatever, whether it was a retiree
or in the case of Scalia, someone who just died.
Um suddenly, Um, the outgoing justice is gonna play a
(34:52):
large part in and again depending on what parties in office,
what party holds the Senate, because gets the replacement, can
you can you get somebody pushed through? And if you can't,
it's not gonna look very good on you as the president. Yeah.
And basically with gorsech Um, I looked him up as
far as where he might sit or is predicted to sit.
(35:15):
He's pretty right. Yeah, obviously he's pretty right. But they
said that he was right now at least you know
this is from all the studying done from those different
methodologies that I talked about earlier. They said he would
sit second to the right, next to Thomas, the silent
(35:35):
Clarence Thomas apparently is the furthest right at this point. Um.
And then you know, it goes all the way through
down to uh Sonia Soda Mayor, who's uh the furthest
to the left, and then uh Mr Kennedy in the
middle man. What a powerful dude he is. He gets
gift baskets all the time. Yeah, yeah, he has muffins
(35:58):
every morning. And you know, depending on and people forecast
this like a way in advance. I'm like, it's not
just Supreme Court justices, it's appointing appointing judges all throughout
the system in the United States. Um, Republicans have had
a tactic for years now that's really paid off for
(36:19):
them where they have really worked hard to appoint as
many judges conservative leaning judges throughout the system and staunchly
tried to oppose any liberal appointments. And um, you get
those lower courts. I mean, people don't pay a lot
of attention a lot of times to these lower court appointments,
and it's made a big difference, you know, Oh yeah
(36:41):
over time. Sure, if you've got that many more bullets
in the chamber just in as far as like conservative rulings, yeah,
just all over the country. You know, if you have
more of your people in place, and lower courts they're
going to be more clerks that work for them that
are conservative, and then eventually they rise up and you're
probably gonna have a better chance of getting a Supreme
(37:03):
Court nominee appointed who was conservative. It's an incubator. Yeah,
that's a good way to look at it. A farm system. Sure,
they probably love that terminology. But you were saying, so
do Myers farthest to the left and Thomas is farthest
to the right, right, Now, that's what they say. Yeah,
and I think you're saying earlier to that. You know,
depending on who's being replaced, and that makes a decision
(37:26):
on who's picked as well. True, right, because if you're
replacing a far right seat with a far left nominee,
you're gonna get some serious um push back from the
right or vice versa. Yeah, And that's why this election,
you know, that we just went through, was so important
because there are some aging members of the Supreme Court,
(37:49):
and um, you know, if you get to a point
like Nixon got to a point, four Supreme Court justices, Yeah,
and they turned on him like a pack of jackals,
three of them did. I'm sure that's that's what Nixon thought. Um, yeah,
that's that's and this is kind of a pretty good
demonstration of how Supreme Court nominees. They're appointed or they're
(38:11):
nominated by presidents, but they are in no way meant
to be beholden to presidents. They should not be. It's
it's they're not doing their job if they're ruling in
in line with what they think the president wants to hear. Yeah,
and I guess that goes back to why they're in
there for life. Like they probably do feel I mean,
(38:32):
they still have their ideologies, but they probably do feel like,
all right, I'm in here. They can't take me out. Um,
there's probably some mechanism to take them out. There is
something really bad. It's a it's impeachment. It's the exact
same process that you would get rid of a president
with where the House impeaches the person and then the
Senate votes to convict or not and then they're removed.
(38:55):
It's only been threatened twice. One of them was a
Nixon appointing, and thing. Uh, but I was looking, like
I said, at Garland and the kind of gut started
digging into history and um in the modern era, and uh,
Anton and Scalia is rated as the number one most
(39:16):
conservative justice in the modern era. Is that right? That's
what it said. See because I have anonymous further right
than him, and that gorstch would be even further right
than Scalia. I didn't create that. That's a well, I
didn't create this either. So well, this was Stanford University,
(39:37):
in the University of Chicago, Northwestern and Harvard. Yeah, but
it was based on um. It just depends on what
they use. Let's just say they're both super conservative. But
I mean one of the things they looked at and
they like to look at his campaign contributions, either by
like I said, clerks or by them, and they said,
based on Gorstages Gorstages campaign contry utians, they said that
(40:01):
he would be more conservative than seven percent of all
other federal judges. That's pretty conservative. When Requests was supposedly
number two and they don't have Thomas where they have
they have Thomas at number seven on my list. I
don't know by that. They have him on the furthest
(40:22):
right right now, at least in the sitting justices. Well,
and then there's people, like I said, over time that
might change a bit. John Paul Stevens was the guy
that was in there for thirty five years and apparently
he became more liberal over time. Um, and then Burton
was very conservative, but he ruled against segregation. It's like
(40:42):
you kind of never know. Uh. David Souder became he
was a Bush appointee, and I think he was one
of those that like conservatives were really mad at. They
were like, you're not nearly as conservative as we thought, Souder.
They would have never picked you. Yeah, And I mean
you just can never tell. You can't tell. And the
whole point is that makes a good just this, that's
what you want. You don't want to be able to
(41:03):
look at them and be like, oh, this is how
they're going to vote and be right every time. You
want to be surprised, because if you can just point
to a Supreme Court justice and say this is how
they're gonna vote, they're doing a terrible job. They're voting ideologically,
not on the merits of the case. Yeah, it sounds
funny to say that you want a Supreme Court justice
like you never know what they're gonna do. And I'm
(41:24):
predictable like Clarence Thomas, he didn't speak for seven years.
Who knew. I did not see that coming A Penny
farthing to work every day. He didn't know that Judge
Rehnquist had a huge heroin problem. Oh you got anything else? Uh? Yeah.
One of the things that Harriet Myers was criticized for
(41:48):
the Harriet Myers nomination by George W. Bush was that
somebody had dug up that she had called George W.
Bush cool at one point, and that was used against here. Huh. Well,
they were worried that she was she would be beholden
to him because he was so cool cool. Interesting. Um,
(42:08):
Actually we didn't cover this. I think it's pretty interesting. Um.
Arthur Goldberg appointment of John F. Kennedy. He was Jewish,
and he took his oath on the Hebrew Bible and
on the traditional Official Court Bible, which is a Christian Bible,
and he signed that because everyone has signed it. And
he said, you know, I just want to I'm not
gonna make a big deal out of this, even though
(42:30):
I'm Jewish. I'll sign the Christian Bible just to kind
of maintain that continuity. But when he was um, he
said it was really neat. When he was sitting at
his bench for the first time, he uh, he opened
up the drawer and there was a copy of the Constitution,
because he said it was a dog gear to copy
of the Constitution that actually belonged and it was signed
(42:51):
by who Oliver Wendell Holmes. Pretty neat was just in
that drawer. He calls him that old yankee from a limp.
This no idea what that means, but it meant something
to Goldberg. I'll tell you that. He said he's looking
for like a notepad. Yeah, and there was. He thought
that was pretty awesome. Well, it is pretty awesome. And
(43:13):
if you think Supreme Court nominations are awesome, you should
go look them up. There's plenty of stuff out there.
It's pretty fun to watch. Uh, if you go back
through old articles, every nomination cycle or whatever pattern it
follows um has people griping about how you can't tell
anything about this nominee and they never say, well, it's
(43:35):
like that for all nominees. Anyway, take a trip down
memory lane. You'll amuse yourself. You can also type in
the words Freme Court in the search bar. How stuff works.
And since I said Supreme Court, it's time for listening.
Now I'm gonna call this Georgia connection to Trail of Tears. Hey, guys.
I enjoyed the episodes on Trail of Tears, which I
(43:56):
literally just finished. Even Calhoun, Georgia, which is home to
the new ektoa She says yeah, she says, oh, even
it's He's serious, sir, And I think that's right historic site.
It is home to the print shop where the first
English language Cherokee newspaper was printed, the home of Samuel
(44:19):
wools Stuff, among other things. It's a beautiful and fascinating place.
I think all uh North Georgia kids have gone on
a field trip there at least once. There are also
road signs that drive past every time I drive to
and from my mother's house, indicating that I am actually
driving where the Cherokee marched from their homes, very sobering.
The home of Chief Van is also nearby. I didn't
(44:39):
know that I'm gonna have to go see that stuff. Yeah,
because it's not too far. I enjoy your history episodes
because the way you explain history in layman's terms and
make it interesting to someone like me who couldn't quite
stay awake in history class in school. I believe learning
about history is important to help prevent society from repeating big,
shameful Calcy Mistakes. Thanks for the work you do and
all the stuff we should know. Have a blessed day.
(45:00):
That is from Tiffany Waits and Tiffany if you don't
listen to stuff you miss in history class from our
colleagues Tracy and Holly, you should check that out, dude,
for sure, it's great. It sounds like you'd be right
up our alley. Who was it, Tiffany Waits? Thanks a lot, Tiffany,
we appreciate you writing in and if you want to
be like her and get in touch with us to
tell us some cool stuff, you can tweet to us
(45:20):
at s y s K podcast or josh um Clark.
You can hang out with us on Facebook, dot Com,
slash Charles W. Chuck Bryant, or Stuff you Should Know.
You can send us an email the Stuff podcast at
how Stuff Works dot com and has always joined us
at her home on the web, Stuff you Should Know
dot com For more on this and thousands of other topics.
(45:42):
Is it how Stuff Works dot com
Welcome to stuff you should know from how Stuff Works
dot com. Hey, and welcome to the podcast. I'm Josh Clark.
There's Charles W. Chuck Bryant, there's Jerry over there, and
this is who I object to what I don't know.
(00:23):
I don't think you object them from the Supreme Court.
I think they strike you down with lightning if you
talk out of turn. Yeah did they even uh geez,
I'd love to see one of those hearings. Yeah, they
even call them hearings. Uh, magic our right, I don't know.
I'm sure they do call them hearings. I'm almost positive
(00:45):
it's like shrouded in secrecy though, right, you never know.
I don't show that stuff on TV, do they like? No,
but they do have like like if you listen to
Nina Totenberg, she's a great Supreme Court reporter, and um,
it's all. It's not televised and I guess it is
just traditional reporting reporters that are allowed in there. But
(01:07):
it's not closed to the press or and he's not
like a Pasi court or it's not it's not the
Star Chamber. No, no, uh, it's interesting though, it's it
is sort of it does seem sort of secretive though,
because they like write these rulings. Sometimes they don't even
read them. I saw that Clarence Thomas went seven years
without speaking in court. What Yeah, that's what it said.
(01:29):
Where did you see that? In an article about Clarence Thomas.
It said he he's one of the quietest justices. That
said he went at one point seven years without speaking
in court. But apparently writes a lot in his uh
um rulings and you know, his briefs, his briefs, he
writes in his briefs. Yeah, I can see that because
I guess when you're in court, you're arguing in front
(01:50):
of the Supreme Court, I think basically, and we'll do
like a whole separate Supreme Court episode. Yeah right, agreed, Sure, okay, um,
somebody mark that town. But you are, you're being peppered
with questions from them and then like you're you're trying
to answer the questions to to show why your side
(02:11):
is right right and arguing the case right now here
and intimidates you. Um. But yeah, part of it is
going back thinking about it and then writing your opinion
on It's very weird job. It is. It's a pretty
neat job. Too. One of the big things about it
is it's in here in the United States. If you
(02:31):
are on the Supreme Court's the highest court in the land,
you're there for life. It's a it's a life appointment.
Is the only as far as I know, besides you know,
um working at the d M v AM. I right,
it's the only for life appointment in the United States government. Yeah,
(02:51):
which seems like kind of crazy, but it also sort
of makes sense because you want you want a stable
Supreme Court. Yeah, you want them focusing on cases, not
you know, what's going on, whether they need to elected
again or campaign. That makes it makes sense once you
kind of put your head to it. Plus, it also
kind of dovetails with the way that they're viewed here
(03:13):
in this country and I'm sure abroad to um that
they are this panel of highly learned legal scholars just
basically like um uh, I don't know. I'm sure there's
something in Star Wars that resembles this. You know, the
Jedi Council. Oh man, I'm always afraid to say, hang
(03:36):
about Star Wars. You know, the Jedi Council that John
jar Binks was on. Okay, Yeah, we won't hear anything
about that. How could we write? Uh so this was
written by our old buddy Ed Grabbynowski. Yes, should we
tell everybody? Should we reveal the big reveal? Do we
have an announcement? I think so? All right, go ahead.
Oh you're letting me do it so everybody. You may
(03:59):
not know that because we tried to stretch out Grabstar
articles as much as we could, but they were starting
to get thin. Ye, Crabster wasn't really writing for the
site any longer. While we said enough of this, we
need them, you need them bad. So we did a
little wheeling tad bitter dealing and Grabster is going to
be writing again, specifically topics that we are requesting. Yeah,
(04:21):
it's pretty great. Like you and I were both so excited, stoked,
I think is the word. Yeah. So anyway, we love
Ed and uh big shout out to him and to
Buffalo New York and their wings and their football team.
Sure why not? So anyway Ed wrote this, Um, and
you know, it's a great article. So, like you said,
(04:42):
I think we kind of duve into it really quickly.
But um, if you're not in the United States, you
might be saying, what's the Supreme Court? Although I think
you probably know. Um, like you said, they are the
highest court and um, they're the third branch of our government. Uh.
And they are specifically specifically air to kind of keep
everyone in check and to say, like, you know, you
(05:03):
may be the president, but you're not a dictator because
you still have to answer to the Supreme Court at
the end of the day. You can't run a monk.
And we're gonna we're gonna make sure that we and
this is ideally, we're going to make sure that we
review everything in a in a legal way, and we're
gonna get to ideology. You can't escape that, of course,
(05:26):
but you know, Supreme Court justices are supposed to rule
on law and specifically these days at least how it
relates to the Constitution. Yeah, and that's a It wasn't
their initial They weren't created to say, like, go defend
the Constitution. Uh. And the the Supreme Court said, well,
can we sow some patches or bedazzle our robes? And
(05:47):
the framers said sure, we don't care, so they went
out and defended the constitution. It actually is very vague.
The judicial branch or the Supreme Court is created in
the Constitution, but all it says is that they are
there to UM. They that it's power should shall quote
extend to all cases in law and equity arising under
(06:11):
this constitution. That's it. It's the only thing it mentions
about the Supreme Court and its power. So Ever since
the Constitution was written and ratified, the Supreme Court has
kind of been this evolving thing, or it was evolving
for a while. Now it's pretty well set into into
its role and what it's meant to do. What evolves
(06:31):
and changes are, like you said, the ideology and the
personality of the of the people sitting on the court. Yeah,
and their word is the final word. Um. There there
is no court that can overturn or review even their decisions.
And they review. They have about five thousand cases submitted
every year and can only review about a hundred to
(06:52):
a hundred and fifty, which I thought was kind of
a lot. Actually, yeah, I was not expecting that. UM.
And they specifically try now, like we said, and focus
on the constitution or UM usually cases that have been
appealed from lower federal courts. You know, they worked their
way up to food chain um or and I think
they probably love these uh treason cases involving treason or
(07:15):
disputes with other countries or ambassadors kind of like you know,
the high stakes stuff. Imagine being an ambassador and getting
dragged in front of the Supreme Court for something you
did being or your kid did. Yeah, probably a little
snot nosed brats ambassador kids. So like, like I was saying,
the the Constitution is pretty vague about what the Supreme
(07:35):
Court is meant to do. And it wasn't even out
of the gate that they realized that they were supposed
to really kind of examine laws in respect to the Constitution.
That started in an eighteen oh three case Marbury versus Madison,
and it was yeah, it was a landmark watershed case
both both kinds um and ironically, the court found owned
(08:00):
that it didn't have the power to satisfy the petitions
of the petitioners. I think James Madison or no, Stephan
Marberry was suing James Madison because James Madison had said, um,
we'll give you these commissions and then he was taken
(08:20):
out of office or he phased out of office and
the commissions were forfeited, and the Supreme Court said, you know,
we thought we had the power to do this, but
it turns out we don't constitutionally, so sorry. And it
was the first time that the Supreme Court had ever
examined something through the lens of the Constitution, and that
set the precedent from then on. Yeah. And they serve, well,
(08:42):
they serve kind of however long they want to or
if they die obviously, but the average about fourteen years
UM or if they retire, they average retirement age seventy
one UM. But they can serve super long. And I
know that one justice served for thirty five years UM.
And you know, if you if you nominate a young judge,
(09:04):
which is kind of more of the trend these days
when you're thinking politically, like you know, we want someone
in there for our team, so pick a young one, right, Uh.
Then they can have tremendous sway And how things going
this guy year after year after year after year. Yeah. Yeah,
because the reason why they have so much sway is
like the stuff that they're they're ruling on is constitutional
(09:28):
in nature, and here in the United States, if it's
if it's constitutional, if it's guaranteed by the Constitution, protected
by the constitution, outlawed by the Constitution, whatever. However, the
Supreme Court measures the law against the constitution, Like you said,
that's the law of the land. From that point on. Um,
(09:49):
any law similar to uh, what the Supreme Court just
ruled on, it's immediately null and void, like it's done.
Um ed used is a really good an example. And
this he said, like if if main bands anti war
signs from people's front yards and Supreme Court rules that
that law is unconstitutional, well, if Rhode Island has a
(10:12):
similar law, California is a similar law, those those laws
are immediately illegal. I guess, um. And it's not like
Rhode Island's gonna bring their case and then California is
going to try their case. Once they rule, it's done.
It's been ruled on. That's right by the sc Yeah,
and uh, there are nine justices, Um right now there
(10:33):
are eight, which we're going to get into. And uh,
obviously having an odd number means you can break a tie.
So it's um with eight you can have a tie.
And when you do have a tie, they've actually thought
about this, believe it or not, they arm wrestle. I'm kidding,
of course, they don't arm wrestle. But um, what happens
(10:54):
is the lower court decision is what's called passively upheld,
which means that for that case only, it's upheld. But
it's not like the Supreme Court didn't rule on it,
and it doesn't create that that nationwide legal precedent forever
and ever passive aggressive and someone could you know, once
I get that ninth person, they could bring up a
(11:15):
similar case, not the same one, but a similar one
if they want to like have that precedent said in
the Supreme Courek will be like, let's try it again. Yeah,
but yeah, if you for a case to be decided definitively,
all you need is a simple majority five to four.
And a lot of cases these days in the United
States are have I have like five to four decisions, um,
(11:38):
Which is the fact that that's a pattern and then
that's routine really kind of shows you how just close
to the center that that ideologically the bench is. And
um that all it would take was you know, one
or two votes that you can really rely on one
way or the other. It's going to be super liberal
or it'll be super conservative. Yeah, and these days it's um,
(12:02):
I mean sometimes you'll get surprises on ideology, like oh,
we thought this person would vote this way, that way,
But generally you got kind of the four on the
left the four on the right, or you know you
did before Scalia died. And um, I think Kennedy is
sort of the swing vote, right, yeah, generally speaking for
us right, it used to be Sandra Day O'Connor. Right.
(12:22):
But when when they say, oh, we were surprised, we
thought they were going to vote this way, that's putting
it about as mildly as you can. But surprise, yeah, outrage.
I wasn't expected that fiddle d d yeah, And I
looked up some of the I mean, we'll get to
this later, but some of the appointees, um, throughout history
have been made by like conservative points of conservative and
(12:45):
then they might grow a little more liberal over time
or the other way around. And they're always like they're
so upset, like, you know, I thought this is what
we were getting. But to me, that's how it should be,
you know, Like that means probably that that judges deciding
cases based on merit and not like I'm just dug
in and entrenched in one ideology. Yes, which is exactly
(13:07):
what you want from a Supreme Court justice. Should we
take a break, Yeah, let's take a break. All right,
we're talking about appointments, so we'll get to that right
after this. All right, how's this work appointing? Yeah, so
(13:49):
remember the constitutions when their Supreme Court do it. I'm done.
I'm out right and going to take a nap um.
So appoint appointments, it's it's all just made up. There's
no qualifications. Uh, there's no requirements. You you or I
could be nominated to be on the Supreme Court. The
(14:10):
President was like, I want to figure out the fastest
way to ruin my political career. I've got it. That's
that'd be a good way to do it. Because again,
here in this country, people treat Supreme Court nominations like
a religion. It's a big, big deal. Not even to
like get someone through the process. Just to nominate somebody
(14:32):
can bring so much blowback from your party, from the voters,
from the opposing party, from everybody that you really want
to think it through. It's not a haphazard thing. But
as as far as the starting the whole thing off,
you have a list of qualified candidates. I think every
single Supreme Court justice in history has been a lawyer
(14:53):
at least, but lately almost all of them The only
person on the Supreme Court now who isn't a judge
is Elena Kagan Um. But the trend is is most
of them are federal judges who are called up to
the bigs. Yeah. And a lot of them have even
served as clerks on the Supreme Court. Um. So what
they're looking for with all that is experience. Yeah. And
(15:15):
and for the last hundred and fifty years, not only
have they been attorneys, but they've they didn't go to
you know, the strip mall although was it O'Connor, Well,
she didn't go to a strip mall law school, but
she was a strip mall lawyer. I think yeah at first.
But they have all graduated from like an accredited legit university,
(15:35):
like not like Dr Nick graduated from the Upstairs Medical Clinic.
Is that what it was called. I think it was
Tijuana Upstairs Medical Credit. Uh. A lot of these UM
justices before their Supreme Court appointment have been involved in politics. Um.
Some of them have been governors, some of them have
been in Congress. There was even one former president, one
(15:58):
Howard Taft. Howard is actually a great story. He hated
being president, hated it, loved being a Supreme Court Justice.
I could see that, he said. On the bench, it groaned, anyway,
I'm home, this is great, the bench groaned. I know
that for a little while there were people there were
there were rumblings that Obama might be in line for
(16:21):
a Supreme Court appointment had the election gone a Diffroy,
which would have been I could see that. I could too,
But um, you know, obviously that's not gonna happen. No,
I don't see Trump, I pointing Obama. All right, So,
once this nomination goes through UM and you know, the president,
it used to be like a very I don't know
(16:42):
about solitary probably there a little close circle. But now,
like you said, they get a list and that that's
culled from a group of very smart people that are
UM trying to firmly entrench their own ideologies basically, so
they're gonna choose from that list the candidate UM and
(17:03):
nominate them officially in the Senate. Then we'll hold hearings.
And just recently, you know, we've seen this going on.
You know, this is happening right now with Gorse. Yeah,
and the whole thing would have started with Gorsets getting
a phone call from the press saying, hey, I want
you to want me on the Supreme Court, and Gorstch
(17:26):
was like, I don't, I don't know what you're saying.
He's like, you're gonna be on the Supreme Court and
hung up right. That was it, And then uh yeah,
the name gets released to the press and the Senate says,
all right, let's get busy, let's get to work, and um,
this whole high bee hive of activity just starts kicking
up around this one. Poor sap who accepted the nomination
(17:48):
and now has everyone from the Justice Department to Congressional
aids putting on latex gloves and going right up there
rectum to try to see what they can find in
this person since passed. Yeah, and not only what they
can find in their past, but really grilling them, um
on maybe where he or she might lie ideologically, like
(18:11):
how how would you rule in this case that it
has happened? How did you feel about this case? And
I was watching um A news network the other day
talking about how Gorsets did such a masterful job of
like dodging, yeah about like not going on record with
with how they lean, um and that's tradition. Well, yeah,
apparently they they like the one thing that you're supposed
(18:34):
to do up there is not give anything away. No,
because it's just a big dance. And if they say yeah,
Joe Biden back and I think the eighties called it
a kabuki dance. Um, and Elena Kagan called it a
vapid and hollow charade because the senators are trying to
pin you down one way or another on your views
on gun control, abortion, all of these hot button issues
(18:57):
that the Supreme Court has either ruled on, may rule
on in the future, may overturn at some point. Um.
That that really split the country ideologically. And the point
of these Senate hearings is basically for the nominee to
sit there and not give up anything, because if they
did do that, then they would have to recuse themselves
(19:18):
from that case for having gone on the public record
stating their position. Well yeah, And it's the opposition's party's
job to sit there and sigh and rub their temples
and say, well, it just seems like you don't want
to go on record for anything, right, And they never
get to respond. Duh. It's a Senate hearing for Supreme
(19:39):
Court justice is what always happened. It's really funny that
they play that up, that like the senators act like
they just can't believe what's going on even though this
has been happening for decades now. Yeah, it's just a
big I don't know about a charade, but I think
part of it is they part of it is to
see how well they can hold up to the grilling too.
I think that's part of it as well. But the
(20:01):
group that probably plays the biggest role in in in
kind of rooting out what the nominees politics are are
the aids in the Justice Department and whatever they leak
to the media, because, um, you're not gonna you wouldn't
find anything out about say, like Gorsets from those two
days of hearings. No one found anything out about him.
(20:23):
If that's all you know about that guy was those
two days of hearings, you didn't read anything else about it,
You have no idea what his positions where. You'd just
be like, that guy's got one of the better haircuts
I've ever seen in my life. That's all you would
get from it. But the media tends to report on
it and they kind of fulfill the role that um
that that the Senate fails at every single time and
(20:45):
it'll be things like, um, Harriet Myers was was, um
was nominated by George W. Bush, and Um, he just
got immediate blowback for it is a terrible nomination. But
one of the things somebody found was that she had
cant if you did some money back in like a
good fifteen something years before to Al Gore's presidential campaign.
(21:09):
Like they find like little stuff like that, and they
try to put it all together to create a picture
so that the Senators can ask them about stuff or whatever,
or the media can can paint a picture one way
or another, and everyone can try to divine how they're
going to rule. Now, did Harriet Myers actually go through
the Senate hearings? Well, that that's what will happen a
(21:31):
lot of times if there is a skeleton in their closet.
Sometimes they want to accept the nomination, not even for
that reason. Sometimes they want to accept the nomination because
they're like, no, man, I know it, I don't want
to go through all that. I'm fine just being on
my federal circuit here. Um. But sometimes they'll withdraw if
they know that they won't make it through that and
(21:52):
they don't want that drug out in public. And sometimes
the the President will withdraw that nomination to avoid that
kind of embarrassment too, right, Um, Like Clarence Thomas, I
don't know how they missed that, or if they did,
you know, he would famously was uh allegedly sexually harassed
Anita Hill. And I don't know if they that didn't
(22:13):
come to light until the hearings or if that's what
my guess was. I think they started the hearings and
they were still doing investigations and they got into Anita Hill.
Yet he would come I don't think in today's climate, no,
that was that was nuts, um. But the what's ironic
about it is that he wouldn't make it in today's
climate with our awareness and understanding of sexual harassment. But
(22:34):
those hearings, his his Supreme Court Um confirmation hearings were
what exposed the world to sexual harassment and concept of
it that we understand today is rooted in that moment
in those three days where Anita Hill stood up and
was like, this is messed up and I'm gonna share it. Um.
And and Clarence Thomas famously called the whole thing a
(22:56):
high tech lynching. And then after all this, so he
was about to be voted on. There was debate in
the Senate, which we'll get to this process in a second.
They sent after this came to light, they sent it
back to the committee hearings. So he took a huge
step backward in the confirmation process, had to go through
three days of Anita Hills testimony, and then after that
(23:18):
the Senate still said, all right, cool, well we'll confirm you. Yeah,
and he was so upset he said, you know, I'm
not gonna talk for seven years, right, I'll show you so. UM.
By and large, though the vast majority of appointee UM
submissions what would you call him nominations are appointed, right. Oh,
(23:43):
I think it's something like there have been a hundred
and sixty one nominations and a hundred and twenty four
have been confirmed. I think there's only been thirty six rejections,
and so the rest are withdraws, withdrawals UM or. There's
one very recent one that I think is the first
(24:03):
in history, um Obama's nomination of Merrick Garland. They just
didn't even get hurt. Yeah, um, which is very much
an unusual, uh step that was taken in the process. Yeah,
I mean, this just happened. Everyone saw it happen. Um.
Obama was in his last year of his presidency, and
(24:24):
so uh, Republican senators basically said, not only are we
not gonna vote on it, we're not gonna hold hearings.
Some of them refused to even talk to the guy.
They just basically took their ball and went home. Right,
so we're not gonna do anything, which received a lot
of blowback from people already frustrated with the um the
notion that maybe these people work for them and they
(24:48):
should do their jobs, and that is one of their
jobs is to at least have hearings and take a vote,
and um they everyone dug in and um he went
without earrings, went without a vote, And uh, I don't
know what he's doing now. I guess he just kept
his regular job. Oh yeah, I'm sure. I don't think
you like lose your job and no, no, like quit
(25:10):
and move and everything go on the trail. Um no
he uh yeah, I I but I think the more
to the point, like you're it's gotta affect your reputation,
you know what I'm saying, Like even if it had
it was no fault of his own, it's still like
a black mark on his history at least. Well, it
(25:31):
was a big deal because this was Um, it's kind
of tough to pin down someone's political ideology as a judge.
They have a few ways of doing it. There's something
called the Martin Quinn score for Supreme Court justices, and
they compare how they vote relative to one another. Uh.
And then there's something else called the Judicial common Space score,
(25:52):
which measures their ideology based on the ideology of their
appointing presidents and home state senators. And then I think
this from Washington Posts, I read an article that they're
basically trying to sus out how liberal is Garland right here?
Who was super centrist, wasn't he? Well, they said in
the end that they looked at all those scores, and
then they did one more where they basically looked at
(26:14):
the law clerks that they hired, because generally you're gonna
hire clerks that agree with you, and clerks to work
for judges who they who they agree with, um, And
they looked at what they're the clerks political donations where
they were So what's this? They said that he was
center left in the end, would have definitely swung the
court more to the left. But at the time you know,
(26:37):
it was sort of a showdown. It was like for
the Republicans are like, do we do we let Garland
go through because he's sort of center left? Where do
we take a chance that Hillary wins this election and
goes whole hog left to someone that's way more liberal.
And in the end they dug in and uh, well
everyone knows what happened. Uh yeah, And I read both
(26:58):
sides of this, likebviously the liberals and the Democrats were
just going crazy over it there like this with the
audacity of not doing this right, um that that because
the Republicans were saying, well, it's an election year, so
we don't want to put a Supreme Court nominee on
the Supreme Court for life during an election year, right,
And the Democrats said, you're crazy. There's been like eight
(27:22):
or nine Supreme Court justices who were confirmed on an
election year. That's a terrible argument. But apparently that was
when the um the I think the government wasn't split, right,
There wasn't like the executive and Congress were in the
same party. The same party was in power for like
seven or eight of those confirmations to have gone through,
(27:44):
So both sides actually had legitimate arguments, but it definitely
seemed like a dereliction of duty from the outside looking in. Well,
what it did, too, was it set up, um the
gorste situation now, which is Democrats are delaying the vote,
and I think by the time this comes out, they
will have voted. I would guess so, because usually I
(28:08):
think McConnell said by April two he'd be confirmed, was
his estimate. Yeah, well they delayed it one more week
a couple of days ago, but um, regardless, it's it's
you know, imminent if it hasn't just happened. And so
they set up the situation now where Democrats are dug
in and they're like, don't expect any votes from us
to confirm. And then the Republicans are saying, well, if
(28:28):
you do that, though, we don't need a simple we
just need a simple majority. We can use what's called
the nuclear option, which we talked about in the Filibusters episode.
I think, yeah, so they're the Democrats would filibuster, then
they would use a nuclear option, which means they can
kind of rewrite the rules and confirm with a simple majority.
And then there's a fear that if that happens, that
will just be the norm going forward. Yeah, that they'll
(28:50):
use that for everything. And and on the one hand,
it will definitely be the Democrats fault because they used
the nuclear option first. But they used it for a
bunch of Obama appointees back and I think two thousand
thirteen or fifteen, and um, they said specifically this does
not apply to Supreme Court nominees. Now the pendulum is
(29:10):
swing the other way. The Republicans are in control. If
they use the nuclear option for the Supreme Court nominees,
that'll that'll just be like there will be nothing off
limits any longer. And yeah, they'll there will be no
filibuster power in the Senate any longer. Yeah. It really
underscores just how ugly things have gotten, you know. Yeah,
it's pretty ugly these days in Washington. Uh And and
(29:33):
we should say, well, we'll take a break in a second, choke,
but we keep talking about the Senate. The House has
nothing to do with this, actually, yeah a little bit. Um,
it's strictly the president appoints, and the Senate holds committee
hearings and then debate and then votes, and then the
person is either confirmed or rejected, almost exclusively confirmed. And
(29:57):
if they are rejected. Um, they can't be submitted again.
But it usually doesn't make sense too unless something big
has happened that makes the president think that they can
get confirmed. Which happened I think with Andrew Jackson. Is
that right? Yeah? In the eighteen six Yeah, he had
a guy named Roger Taney who had never heard of before. Um,
(30:20):
who he submitted. Guy got rejected, and then there were
elections that changed the complexion of the Senate. Yeah, that
was much friendlier to Jackson. So he did it again.
I got he brought him in with a like a
baseball head on. Yeah, I said, how about this guy
big mustache? Um? And George W. Bush did the same
thing too, but he his guy John Roberts didn't get rejected,
(30:43):
but he nominated Roberts twice in the same month for
two different seats. The second time he got confirmed. So well, well, um,
there's a lot of politicking that goes on behind this,
A lot of thought goes into it, not surprisingly, and
we'll talk about all that stuff right after this. So chuck, um,
(31:33):
this is not again, This isn't taken lightly. Um. It
is a hollow and vapid sharade and a kabuki dance
and it's ridiculous in a lot of ways, but it's
the end result is really really important, and that is
that you have a Supreme Court justice who's one of
nine voices that are that create the law of the
(31:59):
land here in the United States, and that they're on
there for life. So everyone again takes it extremely seriously,
and there's a lot of things to be considered when
a president is even picking a nominee from that list
that they have. Yeah, that you know, even though we
said there are no rules for qualifications, there is a
(32:19):
long history that's kind of become accepted as qualifications, which
we've talked about an attorney generally a federal court judge. Um,
so once that is kind of sussed out. We talked
about ideology a lot, and um, you're not gonna find
his head points out the perfect fit where someone agrees
with everything that you agree with as president, But what
(32:42):
you want is someone who by and large will side
with your side. What Yeah, you know, he's like us,
But again it's not going to be a perfect fit. Yeah. Like,
but you also want someone who probably has a good
chance of getting uh confirmed. That's a big that's a
(33:05):
big point, right, So like that. There's a lot of
factors that go into that selection. Right. So obviously, if
you are a conservative president, especially like a deeply socially
conservative president, you're gonna try to find somebody who's a
pretty socially conservative ideologue, right, and that will be your
(33:26):
your pick. But you may want to stop yourself and
think about this first. Let's let's let's think about this.
Who's in control of the Senate. That's a big one.
If it's the opposition party, well, then you may want
to consider somebody who's um maybe a little closer to
the center, because your person might get rejected. And if
(33:46):
you're just an outside observer saying, well, who cares, it's
they'll they'll get rejected. Pick somebody else. You you said
you have a list, go to the next person, right.
There's a lot of political ramifications for this, right. So
if if you are a president and you're picking a
pretty radical nominee, um, it can make you look bad,
(34:09):
especially if you're not that popular of a president. Yeah,
And it can also have a lot of bearing on
mid term elections and how the public views the direction
the country is going as a whole. Yeah, Because if
the Senate goes along with your radical person and the
public is not down with that person. That's going to
be a a negation on on on the ballot, like
(34:32):
you're you're You're not going to look good at all
because of this Supreme Court nominee pick. Yeah, the the
whoever um just left whatever, whether it was a retiree
or in the case of Scalia, someone who just died.
Um suddenly, Um, the outgoing justice is gonna play a
(34:52):
large part in and again depending on what parties in office,
what party holds the Senate, because gets the replacement, can
you can you get somebody pushed through? And if you can't,
it's not gonna look very good on you as the president. Yeah.
And basically with gorsech Um, I looked him up as
far as where he might sit or is predicted to sit.
(35:15):
He's pretty right. Yeah, obviously he's pretty right. But they
said that he was right now at least you know
this is from all the studying done from those different
methodologies that I talked about earlier. They said he would
sit second to the right, next to Thomas, the silent
(35:35):
Clarence Thomas apparently is the furthest right at this point. Um.
And then you know, it goes all the way through
down to uh Sonia Soda Mayor, who's uh the furthest
to the left, and then uh Mr Kennedy in the
middle man. What a powerful dude he is. He gets
gift baskets all the time. Yeah, yeah, he has muffins
(35:58):
every morning. And you know, depending on and people forecast
this like a way in advance. I'm like, it's not
just Supreme Court justices, it's appointing appointing judges all throughout
the system in the United States. Um, Republicans have had
a tactic for years now that's really paid off for
(36:19):
them where they have really worked hard to appoint as
many judges conservative leaning judges throughout the system and staunchly
tried to oppose any liberal appointments. And um, you get
those lower courts. I mean, people don't pay a lot
of attention a lot of times to these lower court appointments,
and it's made a big difference, you know, Oh yeah
(36:41):
over time. Sure, if you've got that many more bullets
in the chamber just in as far as like conservative rulings, yeah,
just all over the country. You know, if you have
more of your people in place, and lower courts they're
going to be more clerks that work for them that
are conservative, and then eventually they rise up and you're
probably gonna have a better chance of getting a Supreme
(37:03):
Court nominee appointed who was conservative. It's an incubator. Yeah,
that's a good way to look at it. A farm system. Sure,
they probably love that terminology. But you were saying, so
do Myers farthest to the left and Thomas is farthest
to the right, right, Now, that's what they say. Yeah,
and I think you're saying earlier to that. You know,
depending on who's being replaced, and that makes a decision
(37:26):
on who's picked as well. True, right, because if you're
replacing a far right seat with a far left nominee,
you're gonna get some serious um push back from the
right or vice versa. Yeah, And that's why this election,
you know, that we just went through, was so important
because there are some aging members of the Supreme Court,
(37:49):
and um, you know, if you get to a point
like Nixon got to a point, four Supreme Court justices, Yeah,
and they turned on him like a pack of jackals,
three of them did. I'm sure that's that's what Nixon thought. Um, yeah,
that's that's and this is kind of a pretty good
demonstration of how Supreme Court nominees. They're appointed or they're
(38:11):
nominated by presidents, but they are in no way meant
to be beholden to presidents. They should not be. It's
it's they're not doing their job if they're ruling in
in line with what they think the president wants to hear. Yeah,
and I guess that goes back to why they're in
there for life. Like they probably do feel I mean,
(38:32):
they still have their ideologies, but they probably do feel like,
all right, I'm in here. They can't take me out. Um,
there's probably some mechanism to take them out. There is
something really bad. It's a it's impeachment. It's the exact
same process that you would get rid of a president
with where the House impeaches the person and then the
Senate votes to convict or not and then they're removed.
(38:55):
It's only been threatened twice. One of them was a
Nixon appointing, and thing. Uh, but I was looking, like
I said, at Garland and the kind of gut started
digging into history and um in the modern era, and uh,
Anton and Scalia is rated as the number one most
(39:16):
conservative justice in the modern era. Is that right? That's
what it said. See because I have anonymous further right
than him, and that gorstch would be even further right
than Scalia. I didn't create that. That's a well, I
didn't create this either. So well, this was Stanford University,
(39:37):
in the University of Chicago, Northwestern and Harvard. Yeah, but
it was based on um. It just depends on what
they use. Let's just say they're both super conservative. But
I mean one of the things they looked at and
they like to look at his campaign contributions, either by
like I said, clerks or by them, and they said,
based on Gorstages Gorstages campaign contry utians, they said that
(40:01):
he would be more conservative than seven percent of all
other federal judges. That's pretty conservative. When Requests was supposedly
number two and they don't have Thomas where they have
they have Thomas at number seven on my list. I
don't know by that. They have him on the furthest
(40:22):
right right now, at least in the sitting justices. Well,
and then there's people, like I said, over time that
might change a bit. John Paul Stevens was the guy
that was in there for thirty five years and apparently
he became more liberal over time. Um, and then Burton
was very conservative, but he ruled against segregation. It's like
(40:42):
you kind of never know. Uh. David Souder became he
was a Bush appointee, and I think he was one
of those that like conservatives were really mad at. They
were like, you're not nearly as conservative as we thought, Souder.
They would have never picked you. Yeah, And I mean
you just can never tell. You can't tell. And the
whole point is that makes a good just this, that's
what you want. You don't want to be able to
(41:03):
look at them and be like, oh, this is how
they're going to vote and be right every time. You
want to be surprised, because if you can just point
to a Supreme Court justice and say this is how
they're gonna vote, they're doing a terrible job. They're voting ideologically,
not on the merits of the case. Yeah, it sounds
funny to say that you want a Supreme Court justice
like you never know what they're gonna do. And I'm
(41:24):
predictable like Clarence Thomas, he didn't speak for seven years.
Who knew. I did not see that coming A Penny
farthing to work every day. He didn't know that Judge
Rehnquist had a huge heroin problem. Oh you got anything else? Uh? Yeah.
One of the things that Harriet Myers was criticized for
(41:48):
the Harriet Myers nomination by George W. Bush was that
somebody had dug up that she had called George W.
Bush cool at one point, and that was used against here. Huh. Well,
they were worried that she was she would be beholden
to him because he was so cool cool. Interesting. Um,
(42:08):
Actually we didn't cover this. I think it's pretty interesting. Um.
Arthur Goldberg appointment of John F. Kennedy. He was Jewish,
and he took his oath on the Hebrew Bible and
on the traditional Official Court Bible, which is a Christian Bible,
and he signed that because everyone has signed it. And
he said, you know, I just want to I'm not
gonna make a big deal out of this, even though
(42:30):
I'm Jewish. I'll sign the Christian Bible just to kind
of maintain that continuity. But when he was um, he
said it was really neat. When he was sitting at
his bench for the first time, he uh, he opened
up the drawer and there was a copy of the Constitution,
because he said it was a dog gear to copy
of the Constitution that actually belonged and it was signed
(42:51):
by who Oliver Wendell Holmes. Pretty neat was just in
that drawer. He calls him that old yankee from a limp.
This no idea what that means, but it meant something
to Goldberg. I'll tell you that. He said he's looking
for like a notepad. Yeah, and there was. He thought
that was pretty awesome. Well, it is pretty awesome. And
(43:13):
if you think Supreme Court nominations are awesome, you should
go look them up. There's plenty of stuff out there.
It's pretty fun to watch. Uh, if you go back
through old articles, every nomination cycle or whatever pattern it
follows um has people griping about how you can't tell
anything about this nominee and they never say, well, it's
(43:35):
like that for all nominees. Anyway, take a trip down
memory lane. You'll amuse yourself. You can also type in
the words Freme Court in the search bar. How stuff works.
And since I said Supreme Court, it's time for listening.
Now I'm gonna call this Georgia connection to Trail of Tears. Hey, guys.
I enjoyed the episodes on Trail of Tears, which I
(43:56):
literally just finished. Even Calhoun, Georgia, which is home to
the new ektoa She says yeah, she says, oh, even
it's He's serious, sir, And I think that's right historic site.
It is home to the print shop where the first
English language Cherokee newspaper was printed, the home of Samuel
(44:19):
wools Stuff, among other things. It's a beautiful and fascinating place.
I think all uh North Georgia kids have gone on
a field trip there at least once. There are also
road signs that drive past every time I drive to
and from my mother's house, indicating that I am actually
driving where the Cherokee marched from their homes, very sobering.
The home of Chief Van is also nearby. I didn't
(44:39):
know that I'm gonna have to go see that stuff. Yeah,
because it's not too far. I enjoy your history episodes
because the way you explain history in layman's terms and
make it interesting to someone like me who couldn't quite
stay awake in history class in school. I believe learning
about history is important to help prevent society from repeating big,
shameful Calcy Mistakes. Thanks for the work you do and
all the stuff we should know. Have a blessed day.
(45:00):
That is from Tiffany Waits and Tiffany if you don't
listen to stuff you miss in history class from our
colleagues Tracy and Holly, you should check that out, dude,
for sure, it's great. It sounds like you'd be right
up our alley. Who was it, Tiffany Waits? Thanks a lot, Tiffany,
we appreciate you writing in and if you want to
be like her and get in touch with us to
tell us some cool stuff, you can tweet to us
(45:20):
at s y s K podcast or josh um Clark.
You can hang out with us on Facebook, dot Com,
slash Charles W. Chuck Bryant, or Stuff you Should Know.
You can send us an email the Stuff podcast at
how Stuff Works dot com and has always joined us
at her home on the web, Stuff you Should Know
dot com For more on this and thousands of other topics.
(45:42):
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