Trump SCOTUS Nomination

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President Trump has picked federal appellate court judge Neil Gorsuch to replace the late Justice Antonin Scalia on the U.S. Supreme Court. Arizona State University law professor Paul Bender and James Goodnow of Fennemore Craig will discuss the president’s pick.

TED: GOOD EVENING AND WELCOME TO ARIZONA HORIZON, I'M TED SIMONS. PRESIDENT TRUMP PICKS U.S. APPEALS COURT JUDGE NEIL GORSUCH TO REPLACE THE LATE ANTONIN SCALIA ON THE U.S. SUPREME COURT. ARIZONA CONGRESSMEN RUBEN GALLEGO, A DEMOCRAT, AND REPUBLICAN ANDY BIGGS WEIGH IN ON THE PRESIDENT'S CHOICE.

ANDY BIGGS: IN HIS CAPACITY AS A CIRCUIT COURT JUDGE, HE'S BEEN EXCELLENT. HE'S WRITTEN EXCELLENT OPINIONS. ONE OF THE MARKS OF A GENIUS, SOMEONE BRILLIANT, YOU CAN TAKE COMPLEX ISSUES AND PRESENT THOSE TO PEOPLE IN A BROADWAY. HIS OPINIONS READ LIKE THAT. HE'S BRILLIANT ON THE LAW AND ALSO A COGENT, LITERATE WRITER. I THINK HE WILL MAKE AN EXCELLENT SUPREME COURT JUSTICE.

RUBEN GALLEGO : I'M ADVOCATING A FILIBUSTER BECAUSE OF PRESIDENT TRUMP. HE'S ACTING IN A AUTHORITARIAN WAY.

TED: HERE NOW TO TALK ABOUT THE SELECTION OF NEIL GORSUCH IS ASU LAW PROFESSOR PAUL BENDER AND ATTORNEY JAMES GOODNOW OF FENNEMORE CRAIG. GOOD TO HAVE YOU BOTH HERE. WHO IS NEIL GORSUCH?

PAUL BENDER: A COURT OF APPEAL'S JUDGE.

TED: A WESTERN GUY.

PAUL BENDER: IT'S INTERESTING. COURT USED TO BE INTO GEOGRAPHICAL DIVERSITY. THAT'S NOT BEEN TRUE, RECENTLY. ONLY ONE PERSON FROM WEST OF THE MISSISSIPPI, KENNEDY. HE ADDS GEOGRAPHICAL DIVERSITY AND RELIGIOUS DIVERSITY BECAUSE HE'S THE ONLY PROTESTANT ON THE CORE. PEOPLE HAVE TO REALIZE THAT GORSUCH NO MATTER WHAT HE'S LIKE IS NOT GOING TO MAKE FAST CHANGES IN THE COURT. HE WON'T HAVE A REAL IMPACT THIS YEAR AT ALL. BY THE TIME THE CONFIRMATION IS OVER, THEY'LL HAVE HEARD ALMOST ALL OF THE CASES. HE CAN'T VOTE UNLESS HE HEARS IT, SO HE WILL START NEXT YEAR. IT WILL GO BACK TO THE WAY IT WAS BEFORE SCALIA DIED. THE BIG CHANGE WOULD COME WITH THE NEXT ONE.

I WANT TO GET BACK TO HIM BEING SCALIA LIKE. WESTERN FROM COLORADO YET, COLUMBIA, OXFORD, HARVARD, ARE YOU SURPRISED THAT PRESIDENT TRUMP WENT IVY LEAGUE?

JAMES GOODNOW: NOT WHEN IT COMES TO GORSUCH. ON THE CAMPAIGN TRAIL HE SAID WE HAVE TO HAVE A COMMON MAN BUT WE ALSO HEARD HE WANTS TO HAVE SOMEONE IN THE MOLD OF JUSTICE SCALIA. BASED ON THE COMMENTS THAT JUDGE GORSUCH HAS MADE, HE FOLLOWS THE SAME PRINCIPLES. YOU CAN HAVE A DEBATE WHETHER THIS PLACED OUT IN HIS OPINIONS, BUT HE EMBRACED CONTEXTUALISM AND ORIGINALISM THAT WERE HALLMARKS OF SCALIA.

TED: DEFINE THAT.

JAMES GOODNOW: ORIGINALISM, YOU GO BACK TO THE TIME THE CONSTITUTION WAS ADOPTED AND WHAT WOULD PEOPLE PERCEIVE THE LAWS TO BE AT THAT TIME. TEXTUALISM, LOOKING AT THE LAW NOT LEGISLATIVE INTENT.

TED: THAT SOUNDS LIKE SCALIA, DOESN'T IT?

PAUL BENDER: WHEN YOU READ HIS OPINIONS, THEY ARE COMPLETELY DIFFERENT. HIS TONE IS MODERATE AND CALM THE OPPOSITE OF SCALIA WHO WILL TELLING THE WORLD IS COMING TO AN END. GORSUCH IS LOW KEY, ANALYTICAL AND HAS HUMAN VALUES. HE CARES ABOUT THE EFFECT HE HAS ON PEOPLE. HIS JURISPRUDENCE MAY BE LIKE SCALIA, BUT HE'S NOT THAT KIND OF PERP. HE'S "A" PERSON THAT WILL TRY TO FOLLOW A PRECEDENCE AND BE ANALYTICAL AND REASONABLE.

TED: I SAW A REASONABLE QUOTE FROM GORSUCH, CONGRESS WRITES LAW, NOT JUDGES. A JUDGE THAT LIKES EVERY OUTCOME HE REACHES IS NOT A GOOD JUDGE. WHAT DOES THAT MEAN?

JAMES GOODNOW: IT MEANS YOU ARE INTERPRETING THE LAW NOT WRITING THE LAW. HE'S OPPOSED TO ACTIVISTISM. THAT'S THE SENSE THAT JUDGES LEGISLATE FROM THE BENCH, PARTICULARLY WITH HOT-BUTTON ISSUES. HE'S MORE MODEST, ACCORDING TO SOME. OTHERS SAY IT'S A VEILED WAY OF DISGUISING YOUR OWN ACTIVISM.

TED: A JUDGE WHO LIKES EVERY OUTCOME HE REACHES IS LIKELY A BAD JUDGE.

JAMES GOODNOW: I THINK I UNDERSTAND WHAT HE'S SAYING AND IT'S THE RIGHT THING TO SAY. YOU SHOULDN'T CARE ABOUT THE OUTCOMES. YOU ARE NOT IN THE LEGISLATURE. YOU ARE A JUDGE. IT WOULD BE HARD TO THINK OF AN OUTCOME SCALIA REACHED THAT HE DIDN'T LIKE. SCALIA SEEMED TO BE 100% ON WHAT HE DID.

TED: ONCE HE GETS TO HEAR CASES AND BECOMES A FACTOR, IT MAY TAKE A WHILE AS YOU MENTIONED, BUT ONCE THIS HAPPENS, DOES HE SIT IN THE SEAT SCALIA SAT IN AND ANTHONY KENNEDY IS MORE SO THE WILD CARD?

JAMES GOODNOW: IT'S RETURNING TO WHERE WE WERE A YEAR AGO, NO DOUBT ABOUT THAT. THAT'S REALLY WHAT PUTS DEMOCRATS IN A TOUGH POSITION. NOW THE QUESTION IS, DO THEY REALLY WANT TO FIGHT. CLEARLY, IT SOUNDS FROM REPORTS, THAT THERE WILL BE FILIBUSTER ATTEMPTS ARE NECESSARY. 60 VOTES ARE NECESSARY. IF THE SENATE MAJORITY LEADER INVOKES THE NUCLEAR OPTION, A SIMPLE MAJORITY REQUIRED, THE FUTURE, THE SAME SIMPLE MAJORITY WILL APPLY, AND YOU MAY GET MORE CONSERVATIVE JUSTICES. I THINK SENATE DEMOCRATS ARE WALKING A FINE LINE IN HOW THEY PLAY THIS.

TED: AS FAR AS THE SUPREME COURT IS CONCERNED. WE TALKED ABOUT JUSTICE KENNEDY, IT'S BASICALLY HIS COURT.

PAUL BENDER: IT STILL WILL BE WITH GORSUCH. GORSUCH WOULD BE CLOSEST TO CHIEF JUSTICE ROBERTS ON THE COURT. VERY CONSERVATIVE, VERY CALM, NARROW DECISIONS WHEN POSSIBLE, OCCASIONALLY BROADER ONES, BUT NOT SOMEONE TO STIR THINGS UP. SOMEONE TO CALM THINGS DOWN.

TED: IT'S HARD TO PREDICT THINGS, BUT COULD THIS BE SOMEONE WHO CHANGES?

PAUL BENDER: JUSTICE BLACKMAN WAS LIKE HIM WHEN HE CAME ON THE COURT, VERY CONSERVATIVE, BUT HE HAD HUMAN VALUES. HE HAD BEEN COUNSEL FOR THE MAYO CLINIC. HE CHANGED A LOT. I THINK GORSUCH HAS THE CAPABILITY.

TED: DO YOU AGREE, DEMOCRATS BETTER ACCEPT GORSUCH BECAUSE THE NEXT ONE DOWN THE LINE IS GOING TO BE THE TOUGH ONE?

JAMES GOODNOW: I THINK YES. THERE IS A LOT OF EMOTION AT STAKE. THIS PARTICULAR NOMINATION WAS HIJACKED FROM BARACK OBAMA. IT'S A STOLEN NOMINATION. YOU HAVE A PRESIDENT THAT DIDN'T GET THE MAJORITY OF THE POPULAR VOTE AND EVERYTHING THAT'S HAPPENED IN THE LAST TWO WEEKS. EMOTIONS ARE HIGH AND SENATE DEMOCRATS ARE FEELING THE PRESSURE FROM THEIR BASE. WE WANT YOU TO FIGHT THIS, BUT IF YOU STEP BACK AND LOOK AT THIS OBJECTIVELY, THAT MAY NOT BE THE RIGHT PLAY.

TED: THE IDEA THAT PRESIDENT OBAMA WENT TEN MONTHS --

PAUL BENDER: IT WAS OUTRAGEOUS.

TED: DOES THAT TAINT THIS APPOINTMENT?

PAUL BENDER: IT'S NOT GORSUCH FAULT, NOT EVEN TRUMP'S FAULT. THE SENATE SHOULDN'T HAVE DONE THAT. GARLAND WAS A WONDERFUL APPOINTMENT TO THE COURT. A MODERATE THAT TRIES TO GET ALONG AND BRING PEOPLE TOGETHER AND TALKS TO THE PEOPLE. HE WOULD HAVE BEEN GREAT. THAT WAS WRONG BUT YOU DON'T TAKE THAT OUT NOW A SECOND WRONG THING BECAUSE WHAT THE SENATE DID BEFORE.

TED: DO YOU AGREE WITH THAT? MANY ON THE LEFT, THIS APPOINTMENT WILL BE FOREVER TAINTED BECAUSE OF THE BACKGROUND?

JAMES GOODNOW: I THINK FOR SOME PEOPLE, YOU CAN'T CHANGE THEIR MIND ON THAT. THEY'LL BELIEVE THAT, BUT I AGREE TWO WRONGS DON'T MAKE A RIGHT. TRUMP, FOR ALL THE PROBLEMS HE HAD, HE GOT THIS ONE RIGHT. GO BACK TO SEPTEMBER. THAT'S THE FIRST TIME HE FLOATED JUDGE GORSUCH'S NAME. THERE'S BEEN A LOT OF VETTING ON THIS. THE NAME LEAKED OUT AND PEOPLE WERE PUTTING SCRUTINY TO GORSUCH AND HE HAD A GOOD OUTPUT FROM THE SKEPTIC VIEWPOINT. I THINK EIGHT WILL MOVE OVER TO SUPPORT HIM.

TED: BE CAREFUL IF YOU THINK HE'S SCALIA LIKE.

PAUL BENDER: THAT'S NOT FAIR TO HIM. HE'S HIMSELF.

TED: GOOD TO HAVE YOU BOTH HERE.

Paul Bender: Arizona State University law professor
James Goodnow of Fennemore Craig

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