Tune in Live, this Sunday for Bob’s discussion with Josh Blackman of the Volokh Conspiracy on what RBGs retirement means for the future of the Republic.

Will Clarence Thomas Have To Recuse Himself in a Supreme Court Election Decision?

Bob Zadek Asks Pressing Questions about the SCOTUS Vacancy in the Event of a Contested Election

Its Lifeline with Craig Roberts!

Listen to the Bob Zadek Show, Sundays on 860am The Answer

Craig Roberts: It’s very disappointing on days like today, when there’s so little going on in the news, to keep folks engaged.

I’ve got a list of chocolate chip cookie recipes I’ll share, but meanwhile, to a more pressing topic, it’s five weeks away from the election and we are facing one of the most challenging election cycles, certainly of my lifetime, not only in terms COVID-19 but with all the debate swirling about the security of the elections and whether or not the post office is capable of handling the crush of absentee ballots.

Well, if it wasn’t exciting enough for you, a week ago, we certainly ramped things up pretty significantly on Friday, with the passing of Justice Ruth Bader Ginsburg. That probably not all together was unexpected, given her many health challenges over the last two or three years, but this has added a dynamic of complexity to this election cycle that we’ve not seen, as they say, certainly in my lifetime.

We’re joined by a constitutional authority, Bob Zadek, who I’m sure has much to say about this will on his program this Sunday, as well, heard locally here in the San Francisco Bay Area on our sister station, 860 AM The Answer. He is the host of the syndicated talk show The Bob Zadek Show, heard every Sunday morning — information available on the web at BobZadek.com.

The Political Consequences of a SCOTUS Vacancy

Craig Roberts: Wow. So what a difference the passing of a Supreme Court Justice can make it’s always sort of fascinating when events of this sort take place. And there is of course, all of the discussion about who the President will pick what the process of confirmation will look like whether or not the person will be confirmed or will sort of devolve into a big major debate. And certainly this is going to turn out to be undoubtedly the debate of the season.

Part of it, of course, largely attributable to comments that were made by members of the Senate, in some cases a scant couple of years ago, that while they may not impact their ability to place their own vote in the confirmation of the next pick for the US Supreme Court, may be problematic for those who insisted a year or two ago that we not hold a vote.

First, let’s sort of work through the constitutionality of all of this. It is to the president to select members of the Supreme Court, it is to the Senate to confirm or send them packing — that much we know. The big question is whether or not it’s even appropriate for this to happen, not just in an election year, but so close to the election?

Bob Zadek: Well, first of all, I’d like to compliment you on your editorial judgment, of allowing a discussion on the future of our country to elbow out chocolate chip cookie recipes. I think that’s good news to you and to your producing staff, because I think you made the right call. I’m also relieved, because I don’t have much to add about chocolate chip cookies, except that I love them, especially with cold milk. But we have bigger fish to fry to keep the food analogy going, which is the Supreme Court. This whole issue happened very quickly with the passing of RBG. The issues are so complex, it makes 3D chess look like Chinese Checkers — or maybe even American checkers. It is so complex, with so many moving parts.

You wondered out loud whether or not the comments made by Lindsey Graham and many other elected officials will come back to haunt them, since both the Democrats and the Republicans are now required to take 180 degree different positions than they took two years ago, or four years ago, or eight years ago. There’s been a lot of ink and sound spread in the media about the utter hypocrisy at all of it all.

I find any discussion of the hypocrisy of elected officials is a total waste of time. Of course, they don’t mean what they say they are reelection machines. We are past the point regretfully in our history, that we can expect good faith out of our elected officials, especially especially those elected to the legislature, and especially those elected to the federal legislature, Congress and the Senate. They have institutionally long since passed the point that they serve as an active check or balance on the other branches of the government. They exist only to get reelected.

I used to be pretty active in supporting those candidates for a legislature that I thought represented views close to my own. I have made a decision to never, never, as long as I live, ever contribute even one penny anybody running for the legislature because they will invariably break your heart and disappoint you and to help them further their own career when there’s no benefit to me.

There’s more at stake than just yet another embarrassing statement by a federal or state elected legislator. What’s at stake is many of the political norms that appear to have served us well. Political norms such as the number of Supreme Court justices — we may be discussing court packing (kind of a scary concept). We have the norm of the filibuster. The filibuster rule exists in the United States Senate, and under the filibuster rule, basically, you need a supermajority to confirm Supreme Court Justices. That is a 60 vote majority, for many pieces of legislation. It is an un-democratic body — it is done to protect minorities. That norm of the filibuster is likely to disappear.

With that, we lose the checks and balances of the Supreme Court against the unconstitutional acts of the legislature, and we we lose the ability of the minority in the Senate to have any say whatsoever. There’s no sense of them even showing up.

These norms have served us well — and I say their norms because they’re not built into the Constitution, and in many cases, they are simply a matter of statute or just a practice. It’s not like they cannot be changed. But when norms serve us well, they ought not be changed as a way to exercise political power, but only for the good of the country. So that’s the real danger.

We’re about to go down a slope, and we can discuss whether or not that means that Trump ought to carry through on the nomination of a justice, and if he does whether or not the Senate should hold the confirmation vote before the new Senate takes office in January. If they shouldn’t hold a vote, should they vote to confirm and send it to the to the full Senate?

We may get into what (if theRepublican Senate does what it threatens) the Democrats will do if and when they take power, with a Democratic president. nSo there’s so much at stake. I think it’s an interesting discussion as to what the President should do and why, and what the consequences are, and whether those consequences are good or bad for the country as a whole. That’s what the country will be watching happen between now and January 20 of next year.

Craig Roberts: The one word that comes to mind is “consequences.” Now, certainly, as you alluded to, there really isn’t going to be any benefit to investment of our time in talking about the the myriad of contradictory statements made by members of the United States Senate. They will do what they feel they need to do for the sake of not the country, or at least of the party, and in doing so may or may not suffer the consequences at the ballot box. come November 3.

My big, pressing concern is the broader consequences of the fight that this could trigger. That may lead to everything from the question of court packing. Let’s talk about this as well. Let’s say that the President does in fact go through with the nomination, and the nominee is confirmed, and come January, we have a newly appointed member of the court.

If this is a repeat performance to any degree of what happened in 2000, there could be the need for the same United States Supreme Court to weigh in on a decision related to the outcome of the election. As we see all the talk about whether or not it’s going to be rigged — whether or not the votes are going to be counted properly, so on and so forth.

Setting aside for the moment debates over inconsistency and trust issues between Democrats and Republicans and the real or perceived inconsistency of all of this. It is, at the end of the day, constitutionally up to the president to appoint Supreme Court nominees and for the United States Senate to either confirm or deny. Whether or not there is a tradition there is consistency, there is norm in doing so, so close to one election will be perhaps a question to pose to history. But the deeper and broader one I want to pose to you is simply this — what are the potential unintended consequences?

Let’s say, for example, that part of the rush to judgment here in getting a Supreme Court nominee confirmed before the election is a fear that the President may lose his reelection. This may be at least for a season, a final opportunity to put a more conservative justice on the High Court. That part I get.

The concern, of course, is that if you have Democrats that gain any traction in the Senate, come January, and a new President, whether or not there could be retaliatory actions taking place, not least of which you alluded to the notion of court packing, and how problematic could this suddenly become if there is some contest related to the election, that places it before the High Court? Suddenly you have somebody that within the last 30 days say, had been nominated and selected by the president and now the outcome of the Presi dent’s future in the White House is going to in part be decided by a member of that Supreme Court? How problematic are these two potential scenarios in your mind?

Bob Zadek: Craig, you have just asked the mother of all compound questions, I would have to take over this nation at gunpoint and not let anybody else broadcast for the rest of the night while I answered your question. I hope you’re prepared for that bit of unpleasantness, which is the only way I can answer your question.

But to break it down, I’ll do the best that I can. To break down your question. First of all, the President does have have a duty as well as the power to nominate a justice. Second of all, you mentioned that if in the cause and effect, unintended consequences, is that likely to result in the Democrats if they get control of both the Senate and the presidency, whether that would cause them to pack the court? I think that’s an easy question. Here’s why it’s easy.

First of all, if Trump doesn’t nominate another justice, he will lose – he will profoundly disappoint his base. He will not pick up any votes and he loses a lot of votes. It means he’ll not get reelected my opinion.

Second of all, whether or not the President nominates and whether or not the senate confirms, of course the Democrats will pack the court. Why wouldn’t they? If they have the power, if they control the Senate, and they get rid of the filibuster — which they will — and they have the presidency, what in God’s name would discourage them from packing record?

They they will be looking at — if Trump’s nomination is confirmed — a 6–3 conservative majority, if that’s the right label. It probably isn’t because I don’t know that Justice Roberts Chief Justice Roberts qualifies as a conservative… probably yes, but it’s a little hard to predict. But let’s give him the benefit of the doubt. It’s 6–3, or 5–3 if Trump doesn’t nominate a justice, or a justice doesn’t get confirmed. This still a conservative majority. I dare say the democrats would pack the court because why shouldn’t they?

Packing the court is a done deal, in my opinion, if the Democrats get the Senate and the Presidency. So there’s no cause and effect. Therefore, Trump has, and the conservatives have, a very low risk in going through with the nomination and confirmation of the Supreme Court Justice. They have low risk, then it will be up to the Democrats.

If Trump does go through with it, and we have a 6–3 Supreme Court, then perhaps if you and I are conservative or libertarian, then we look forward to a pretty unpleasant two year period — at least — with the Democrats in control of three branches of Congress.

They may or may not pack the court, but the best we can hope for is that they pack the court in 2022. The reaction to packing the court is the Democrats get thrown out, and then we’re back to the status quo ante more or less.

Trump has almost no risk in nominating a justice that will satisfy us and satisfy him and his constituency. I think it’s low risk, because what the Democrats threaten to do, they will do in any event.

Also, the Supreme Court is far and away held in the highest regard of all of the three branches of the federal government. I think they enjoy lots of goodwill in the country.

I think packing the court could very well be perceived by the country as the Democrats messing with the most trusted institution and taking away its validity. Because once you pack the court, it’s stacking the deck. Now you clearly make the Supreme Court an instrument of partisan politics. I think the voting public may very well say, “Don’t mess with our court” and will punish the Democrats if they mess with the Supreme Court.

Will Thomas Clarence Have to Recuse Himself?

Bob Zadek: There’s another consideration that I have observed, that I haven’t seen anybody else write about. Let’s remember when Clarence Thomas was nominated to serve on the Supreme Court, he was pilloried by the then-Chair of the Judiciary Committee, Joe Biden.

Remember what Biden did to Clarence Thomas? Don’t you wonder if there will be a movement that if the election of the presidency is into the Supreme Court, whether there will be pressure on Clarence Thomas to recuse himself?

And remember, the decision on recusing yourself is personal to the justice. It’s not a question that can be imposed upon him. I wonder how that dynamic of Clarence Thomas, who I’m sure does not forget for one second the mistreatment that he suffered at the hands of Joe Biden. He’s sitting there participating in a discussion on whether Biden gets to be President. That is the stuff that Academy-Award movies are made of and nobody has written about that.

Craig Roberts: Well, you’ve just added a interesting little dynamic twist to the second part of my question, and that is this notion that what if this comes down to a contested election, the outcome which is then fortunately for not the High Court, it, no doubt will so on the assumption that…

Bob Zadek: The odds tell us that it’s likely to become a contested election. So let’s start with that premise. Now ask your question.

Craig Roberts: Now with the contested election, let’s say that somebody like Justice Thomas does recuse himself. As you point out legally, a justice cannot be compelled, but it would put potentially the most recent member — be it Amy Barrett or whomever — in a very awkward position where suddenly you’re being called upon to render a decision in a case involving the guy that just gave you your permanent job. How problematic could that be from a political standpoint?

Bob Zadek: Well, would you say problematic, I happen to have faith in appellate courts — not particularly in trial courts, but in appellate courts — in their wisdom, and on their adherence to the rule of law. So, actually, while the Supreme Court is made of human beings, and therefore the decision-making is, of course, far from perfect, we simply want integrity.

I am not concerned at all about the quality of the deliberation in the Supreme Court — I am concerned about how the public will perceive it. The Supreme Court may lose some of its legitimacy. It might, if the chattering media gets ahold of it, and makes a big deal about it. The public, who doesn’t understand how the court actually works, will be thrown into the debate. But in terms of the quality of the outcome, I am highly confident — even though the Supreme Court, of course, has had very bad decisions in general — I trust the institution of the Supreme Court.

Craig Roberts: The problem, of course, that will complicate this will be not necessarily any decision made by the High Court, but rather by the reaction of its citizenry, our citizenry.

Bob Zadek: Now the scary thought — we saw what happened with George Floyd. Imagine what happens when the media starts to stir up the public, unless 50 governors and thousands of mayors commit to have a massive show of force to snuff out the violence.

My greatest fear is what’s going to happen in the streets when there is to begin with a reduced level of respect for the rule of law and for the police and then something which is nationwide — whether it’s in the Supreme Court, or in the mess up with the ballots, or in the mere operation of government — we can’t take a President by the constitutional deadline of January 20. I fear for the country in that eventuality. I almost pray for a landslide one way or the other so there’s nothing to fight about. But my goodness, Craig am I afraid?

Craig Roberts: And and I think with just, because it’s been long on this program we’ve talked about the looming culture wars. Little did I expect when we first began broaching that topic almost 30 years ago that it might potentially turn into literally just that — a war. Bob Zadek will no doubt have more to say on this topic on his program Sunday. I think we’re going to be talking to Bob a lot over the coming weeks here, as we head into what is easily going to be the most hotly contested election of our lifetimes.

The Bob Zadek Show — Sunday mornings 8am, on 860 am The Answer. Check out the program, podcast other resources, including Bob’s most recent book, Essential Liberty: Finding Freedom in a Post-COVID World.

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Bob Zadek

Bob Zadek

http://bobzadek.com • host of The Bob Zadek Show on 860AM – The Answer.