Trump Impact on the U.S. Supreme Court

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President-elect Donald Trump will get to make appointments to replace members of the United States Supreme Court. Arizona State University Sandra Day O’Connor College of Law professor Paul Bender and attorney Stephen Montoya of Montoya, Lucero and Pastor will discuss Trump’s possible impact on the court.

TED SIMONS: PRESIDENT-ELECT DONALD TRUMP IS IN POSITION TO REPLACE MEMBERS OF THE UNITED STATES SUPREME COURT, POSSIBLY EXTENDING HIS IMPACT ON THE COURT AND THE COUNTRY FOR DECADES TO COME. HERE TO DISCUSS THE HIGH-COURT'S FUTURE IS LAW PROFESSOR PAUL BENDER OF ASU'S SANDRA DAY O'CONNOR COLLEGE OF LAW, AND ATTORNEY STEPHEN MONTOYA OF MONTOYA, LUCERO & PASTOR. GOOD TO SEE YOU BOTH HERE. THANKS FOR JOINING US. PAUL, THE TRUMP PRESIDENCY, WHAT DOES IT MEAN FOR THE SUPREME COURT?

PAUL BENDER: IT DEPENDS ON WHETHER YOU THINKING SHORT TERM OR LONG TERM. IN THE SHORT TERM, ASSUMING HE PICKS SOMEBODY WHO IS MUCH LIKE JUSTICE SCALIA AS HE CAN, NOTHING WILL CHANGE FROM THE COURT WAS THE WAY BEFORE SCALIA DIED BECAUSE IT WILL REPLACE HIM. THE COURT HAD BEEN MOVING IN A LIBERAL DIRECTION. KENNEDY HAD MORE AND MORE SIDING WITH THE LIBERALS ON THINGS LIKE GAY MARRIAGE AND AFFIRMATIVE ACTION. YOU WILL NOT NOTICE ANY CHANGE WHEN THAT HAPPENS. THE REAL CHANGE COMES WITH THE NEXT APPOINTMENT. IF IT IS A LIBERAL APPOINTMENT, AND TRUMP POINTS AGAIN SOMEONE REALLY CONSERVATIVE, YOU WILL SEE A SUPREME COURT THAT IS CONSERVATIVE LIKE IT WAS IN THE MID-30s.

TED SIMONS: WITH THAT IN MIND, DO WE HAVE ANY IDEA WHO HE IS LOOKING AT WITH THE VACANCY?

STEPHEN MONTOYA: WE HAVE MORE THAN AN INKLING. HE HAS A LIST HE OBTAINED FROM THE FEDERAL SOCIETY AND HERITAGE FOUNDATION AND CATO INSTITUTE. HE SPECIFIED THE TYPES OF FOLKS HE IS LOOKING FOR. I THINK, HOWEVER, EVEN THE REPLACEMENT SCALIA MIGHT WORK A CHANGE ON THE COURT. SCALIA WAS A MIXED BAG. HE TENDED TO BE PRO-FREE SPEECH AND PRO-FOURTH AMENDMENT TRYING TO LIMIT SEARCH AND SEIZERS. I DON'T KNOW IF THE REPLACEMENT WILL BE SO INCLINED SO IT CAN BE WORST THAN PEOPLE IMAGINED.

TED SIMONS: THE LIST OF 21 POSSIBILITIES RUNS THE GAMUT A LITTLE BIT.

PAUL BENDER: THEY ARE ALL VERY CONSERVATIVE.

TED SIMONS: CAN WE GET A PROFILE? I WOULD IMAGINE CERTAINLY ANTI-ABORTION.

PAUL BENDER: TRUMP SAID HE WILL NOT APPOINT ANYBODY WHO IS NOT PRO-LIFE. EVEN IF HE DOES THAT, THE CHANCE OF ROE VERSUS WADE BEING OVERTURNED IS VERY SMALL. IT WOULD NOT BE OVERTURNED UNTIL A SECOND APPOINTMENT AND THAT IS DETERMINED WHO THAT IS. JUDGES LIVE A LONG TIME. THE LAST YEAR OF A PRESIDENT'S TERM YOU CANNOT APPOINT ANYBODY SO YOU HAVE PEOPLE LIKE JUSTICE CHIEF ROBERTS WHO THINK THAT ROE VERSUS WADE, WHICH WAS REAFFIRMED BY KENNEDY'S AGREEMENT, SO YOU WOULD HAVE TO GET TWO PEOPLE WHO ARE WILLING TO CHANGE THINGS DRASTICALLY. THAT'S NOT LIKELY TO HAPPEN.

TED SIMONS: YOU THINK THIS APPOINTMENT AND PERHAPS IN THE FUTURE-- GINSBERG IS 83. KENNEDY IS 80. THOSE FOLKS ARE GETTING UP THERE. THEY COULD HANG ON. WE HAVE HAD OLDER JUDGES IN THERE. BUT WHAT DO YOU SEE? I MEAN THIS COULD BE A MAJOR CHANGE HERE.

STEPHEN MONTOYA: IT COULD BE A REVOLUTIONARY CHANGE. I AGREE WITH DEAN VENDOR. SCALIA ALONE I DON'T THINK IS GOING TO WORK A MOUNTAIN OF CHANGE ON THE COURT. HOWEVER, IF ONE OTHER JUSTICE DEPARTS I THINK THAT COULD ACTUALLY WORK A SIGNIFICANT CHANGE. THE TYPES OF FOLKS THAT TRUMP IS TALKING ABOUT NOMINATING, IN MY VIEW, IT WOULD NOT SURPRISE ME IF THEY DID RULE TO THROW OUT ROE V. WADE. THAT IS SOMETHING THAT HAS LONG BEEN ON THEIR AGENDA. IT'S A BENCHMARK. I WAS SURPRISED WHEN TRUMP WAS ELECTED. IF THE COURT REVERSED ROE V. WADE I WOULD NOT BE SURPRISED.

PAUL BENDER: EVEN IF YOU ASSUME THOMAS AND OLIDO WENT FOR IT, THEY NEED A FIFTH VOTE, SO A LOT OF IT IS UP TO ROBERTS. YOU WILL SEE THAT THIS TERM. THEY HAVE CASES THAT ARE GOING TO BE DECIDED AND THEY HAVE TAKEN CASES WHERE IT LOOKS LIKE THEY PICKED THEM WITH EIGHT JUSTICES INTENDING TO OVERTURN A CONSERVATIVE DECISION. I THINK YOU WILL SEE KENNEDY MOVING MORE TO THE LEFT.

TED SIMONS: AS FAR AS ERIC GARLAND IS CONCERNED, CAN PRESIDENT OBAMA GO AHEAD AND APPOINT HIM DURING THE RECESS APPOINTMENTS? WE HAVE HEARD OF THIS POSSIBILITY. IS IT POSSIBLE HE COULD DO THIS DURING A RECESS OF CONGRESS?

STEPHEN MONTOYA: IT IS POSSIBLE. I DON'T THINK IT IS LIKELY BECAUSE A PRO-FORM SESSION. THE SENATE MASTERED THAT. NOW, IF ONE SENATOR IS IN TOWN AND SPEAKS 30 SECONDS IT IS DEEMED A PRO-FORM SESSION THAT WOULD PREVENT THE INTERIM APPOINTMENT. SO I THINK IT IS VERY UNLIKELY THAT WOULD HAPPEN.

PAUL BENDER: UNLESS THEY ARE GONE FOR TWO WEEKS OR MORE THAT WILL NOT HAPPEN. OBAMA HAD THE CHANCE TO MAKE THE APPOINTMENT WHEN SCALIA DIED. SCALIA DIED IN A RECESS OF THE SENATE SO OBAMA COULD HAVE IMMEDIATELY APPOINTED SOMEONE AND OBAMA WOULDN'T DO THAT. IT'S A VERY BAD IDEA TO HAVE A RECESS APPOINTMENT ON THE SUPREME COURT.

STEPHEN MONTOYA: JUSTICE BRENNAN WAS A RECESS APPOINTMENT.

TED SIMONS: INTERESTING. CAN TRUMP GIVE A NAME TO THE SENATE AND THEY CAN START WORKING ON THAT?

PAUL BENDER: THAT DOESN'T HAPPEN IN THE UNITED STATES CONGRESS. IT HAPPENS IN SOME STATES. EVEN IN ARIZONA. BUT HE IS GOING TO WAIT UNTIL HE IS CONFIRMED AND MAYBE THE FIRST DAY HE WILL ANNOUNCE A NAME AND THEN IT IS GOING TO TAKE TIME. IF THE DEMOCRATS PUT UP RESISTANCE, IT MAY TAKE A COUPLE MONTHS MEANING WE WILL GO THE WHOLE TERM WITH ONLY EIGHT JUSTICES.

TED SIMONS: DOES HE GO TO THE EXTREME HARD RIGHT OR TRY TO FIND -- OBVIOUSLY WE ARE PROBABLY NOT GOING TO GET A DEMOCRAT BUT FIND SOME SORT OF COMMON GROUND AT ALL?

STEPHEN MONTOYA: MY GUESS IS HE IS GOING TO GO HARD RIGHT. IF YOU LOOK AT HIS OTHER APPOINTMENTS, THEY HAVE CONFORMED TO THAT TENDENCY. HE LIKES DOING WHAT HE CLAIMED HE IS GOING TO DO. I THINK HE IS GOING TO PICK SOMEONE EXTREMELY CONSERVATIVE. I THINK HE IS GOING TO PICK SOMEONE TO THE RIGHT OF SCALIA. HE IS GOING TO HAVE TO SEARCH HARD BUT I THINK HE WILL FIND IT.

PAUL BENDER: REMEMBER, IF HE DOES THAT, THAT IS NOT AUTOMATIC. THERE IS STILL A FILIBUSTER IN THE SENATE FOR SUPREME COURT APPOINTMENTS AND THE DEMOCRATS WILL HAVE TO DECIDE IF THEY TRY TO FILIBUSTER OR LET IT GO BY AND TRY TO BE NICE ABOUT IT AND MAYBE GET SOME GOOD WILL GOING. IF THEY TRY TO FILIBUSTER THE FIRST APPOINTMENT AND THE HARD RIGHT THERE IS A GOOD CHANCE THE SENATE WILL REMOVE THE FILIBUSTER TO SUPREME COURT APPOINTMENTS AND THAT WOULD BE EARTHSHAKING AND NOT A GOOD IDEA. APPOINTMENTS ARE FOR LIFE. I DON'T THINK YOU WANT THEM CONFIRMED BY A ONE-VOTE MARGIN. YOU WANT A SOLID MAJORITY.

STEPHEN MONTOYA: I TOTALLY AGREE. I THINK THAT PRINCIPLE SHOULD HAVE BEEN EQUALLY APPLICABLE TO THE LOWER COURT JUDGES THAT THE DEMOCRATS DID AWAY WITH IN 2013. THAT IS REALLY SAD AND GOING TO COME BACK TO HAUNT US. I THINK THE COURTS OF APPEALS ARE GOING TO BECOME MUCH MORE CONSERVATIVELY INCLINED. THE DISTRICT COURTS ARE GOING TO BE CONSERVATIVELY INCLINED. THERE ARE 81 VACANCIES ON THE DISTRICT COURT. 13 VACANCIES ON THE COURT OF APPEALS. THAT IS GOING TO MAKE A BIG DIFFERENCE.

PAUL BENDER: THAT IS GOING TO TAKE SOME TIME. BUT THAT'S WHAT HAPPENS IF PRESIDENTS STAY IN OFFICE FOR A WHILE THEY GET TO REMAKE THE LOWER COURT. THE LOWER COURTS ARE NOT AS LIBERAL COMPARED TO WHEN OBAMA CAME IN AND IF TRUMP IS IN THERE FOR EIGHT YEARS THE SAME THING WILL HAPPEN.

TED SIMONS: THE THOUGHTS OF THE JUSTICE'S ON THE COURT NOW, DO THEY CHANGE OR SHIFT OR ADJUST KNOWING THAT A HARD RIGHT MEMBER IS JUST AROUND THE CORNER?

STEPHEN MONTOYA: I THINK THEY DO. BRENNAN IS A GOOD EXAMPLE. WARREN IS A GOOD EXAMPLE. BLACKMAN IS A GOOD EXAMPLE. SOMETIMES THEY SHIFT THE OTHER WAY. PERHAPS THE JUSTICE THAT DEAN BENDER CLERKED FOR- FRANKFURTER- WOULD BE A GOOD EXAMPLE OF THAT. HE WAS REALLY MORE LIBERAL BEFORE HE CAME TO THE COURT AND WHEN HE SAT ON THE COURT.

PAUL BENDER: PEOPLE CHANGE. I THINK THEIR ATTITUDE IS LET'S WAIT AND SEE. THEY HAVE A STRONG FEELING THAT AS A GROUP THEY CAN CIVILIZE ANYBODY WHO IS APPOINTED AND BRING THEM INTO THE WAY THEY USUALLY DO THINGS. I DOUBT IF THEY WILL SIT THERE AND SAY WE KNOW A REALLY HARD RIGHT PERSON TO CONFIRM AND HAVE TO DO SUCH AND SUCH. I THINK IT IS A WAIT AND SEE.

TED SIMONS: REPUBLICANS IN CONGRESS, HOW LIKELY IF HE NOMINATES HIS SISTER. I HEARD RUMORS. HIS SISTER.

PAUL BENDER: THAT WOULD BE ONE OF THE BETTER NOMINATIONS.

TED SIMONS: SHE IS A JUDGE. IS SHE PRO-LIFE JUDGE?

STEPHEN MONTOYA: SHE IS PRO-CHOICE.

TED SIMONS: OKAY. SHE IS OUT OF THERE THEN. IF HE NOMINATES, I DON'T KNOW TED DANSON OR SOMEONE OUT OF THE BLUE WITH NO EXPERIENCE, ARE THERE ENOUGH REPUBLICANS IN CONGRESS TO SAY THIS HAS TO STOP?

PAUL BENDER: THERE ARE 48 DEMOCRATS THERE. IF HE NOMINATED SOMEONE REALLY OUT OF THE MAINSTREAM IT IS POSSIBLE THAT TWO OR THREE REPUBLICANS WOULD SAY NO. REMEMBER, EVERY REPUBLICAN IN CONGRESS IS NOT AN ADVOCATE OF TRUMP. I THINK WE WILL HAVE TO WAIT AND SEE WHAT HAPPENS.

STEPHEN MONTOYA: I DON'T THINK THAT IS GOING TO HAPPEN. I THINK THE LIST THEY ARE DERIVING FROM IS RELATIVELY PREDICTABLE IN THEIR SELECTIONS. THE FEDERALIST SOCIETY AS DEAN BENDOR KNOWS ARE RELIABLE IN THEIR PICKS. THE HERITAGE FOUNDATION, VERY RELIABLE IN THEIR PICKS.

PAUL BENDER: BY RELIABLE YOU MEAN CONSERVATIVE?

STEPHEN MONTOYA: WIDELY CONSERVATIVE IN MAINSTREAM TERMS.

TED SIMONS: BIG NAME OR A NAME THAT WE DON'T KNOW OR MOST ARE NOT AWARE OF?

STEPHEN MONTOYA: I THINK IT IS GOING TO BE A NAME THAT MOST OF US ARE NOT AWARE OF BECAUSE THAT IS THE WAY TRUMP LIKES TO ROLL.

PAUL BENDER: I DIDN'T RECOGNIZE ANY OF THE NAMES ON THE LIST. I THINK IT WOULD BE SOMEBODY WHO IS NOT A HOUSEHOLD NAME.

TED SIMONS: GENTLEMEN, GOOD DISCUSSION AND GOOD TO HAVE YOU HERE. THANK YOU FOR JOINING US.

Paul Bender: Arizona State University Sandra Day O'Connor College of Law professor, Stephen Montoya: Attorney of Montoya Lucero and Pastor

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