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New Book Traces How Partisanship Has Reshaped The Supreme Court


We're going to turn now to the Supreme Court, where a number of consequential decisions are expected this week. Many will likely be decided by the five-vote conservative majority that the public has come to expect. But long before any of the current term's cases were decided, achieving that majority was part of a long-term plan, a calculated political maneuver by Republicans after the death of Justice Antonin Scalia.

That battle and its aftermath are the subject of a new book by Carl Hulse, chief Washington correspondent for The New York Times. It's called "Confirmation Bias: Inside Washington's War Over The Supreme Court From Scalia's Death To Justice Kavanaugh." And here to tell us more about it is Carl Hulse.

Welcome. Thank you for joining us.

CARL HULSE: Thank you for having me. I appreciate it.

MARTIN: "Confirmation Bias" is a strong - it's - I don't know. It's a strong...

HULSE: I think it...

MARTIN: ...Strong title. What do you mean by that?

HULSE: I think it was meant as sort of a nonpartisan way of talking about what's gone on in the confirmation process on Capitol Hill and how both sides have tried to put their thumbs on the scale and try and steer these judicial nominations in the direction they wanted. And so there is bias on it, and it's been bias on both sides, honestly. I know people don't like to talk about both sider-ism these days, but, you know, both parties have had a lot to do with how mucked up the process has gotten.

MARTIN: All right. Well, we'll get to that. But let's start with where you start in the book, where you talk about the importance of a decision that the majority leader Mitch McConnell made - Republican leader - made in February of 2016. What was the decision?

HULSE: I think this was one of the most consequential decisions in American history, really, as it turned out. We didn't know it that night. But Mitch McConnell is on a - the Senate majority leader is on a vacation in the Caribbean. The news comes out that Justice Antonin Scalia had died. And Mr. McConnell that evening decided that President Obama, with 11 months left in his term, would not get an appointment to the Supreme Court.

MARTIN: So why do you think people should care about this? And...

HULSE: (Laughter).

MARTIN: ...Apologies for being trite about it. But...

HULSE: Yeah, I know.

MARTIN: But most people, a lot of people will listen to this and say, well, these cases that appear before the Supreme Court, you know, don't affect me, or that's just kind of partisans fighting it out, or that's just extremists are ideologues fighting it out. People who are listening to our conversation who may not even know who's on the Supreme Court...

HULSE: Yeah. Oh, I agree.

MARTIN: ...Although, you know, you make the point that, you know, Republicans have very much made this a voting issue in a way that Democrats have not yet succeeded in doing. But why should most people care about this?

HULSE: I know. And that's one of the main reasons I wrote this book. But this is really why it's important - because what's happened is we're in this partisan gridlock legislatively. So one side pushes its issues through, or they use executive orders. But these fights are all ending up in the courts. So the courts are now refereeing disputes about voting rights, disputes about pollution, climate change. People don't know who they are, but these are lifetime judges. And they have a big say in how you live your life.

MARTIN: So the fight over the court is - you know, you made the point in the book, and I think a lot of people who follow the issue know that the Republicans made the presidential election, in part, a referendum on the Supreme Court. So that was all happening in plain sight. So what's new here?

HULSE: Among the things that are new is how determined Don McGahn, the White House counsel, was to put not only Gorsuch on the court, but also Brett Kavanaugh - this was from the start. And in the book, there's a discussion on the night that Scalia dies that Don McGahn, who actually plays guitar in a pretty good rock 'n' roll band - he's a good guitar player - was driving down to Ocean City for a weekend gig.

And his wife notifies him that Scalia dies. And he gets on the phone with Trump because he's his campaign attorney and says, you know, be careful tonight at the debate. Ted Cruz is going to play on his own experience here. He was a Supreme Court clerk. And, you know, be careful. And Trump says to him at that time, well, let's throw out some names of potential justices which is really the beginning of the list. But the first name that Don McGahn says to him is Brett Kavanaugh.

MARTIN: I think people have become aware that this - that this country's deeply divided politically, certainly from a partisan standpoint - and also ideologically, that people are becoming more firm in their ideological perspectives - right? - that the middle is, in effect, disappearing. What role will the courts play in this? I mean, it sounds like you're saying that these ideological divides won't be overcome by the court - in fact, they are reflected and exacerbated, even. And how so?

HULSE: Well, the people that President Trump is nominating and that are being confirmed are very conservative. And the Democrats are trying to underscore how conservative they are, but they have no power to stop them. And these justices are even more conservative than, say, President Bush had appointed. So you're replacing sitting justices with younger, more conservative people.

And they're going to make conservative decisions that may be - and they're going to make these for decades - that may be out of line with the majority opinion in this country. And I think that's going to be a real big problem. And I think it's going to be a problem for the courts and for the public. They're going to say, wait, public opinion is here, the courts are here. And there used to be more of a consensus with the courts. They'd move a little slower. They try and find the middle, reasonable ground. I think some of these judges are not interested in finding the middle ground.

MARTIN: And finally, can I just ask - Carl, did you ever figure out why it is that Republicans that have been so much more successful than Democrats in making elections a referendum on the courts?

HULSE: Abortion. Abortion.

MARTIN: Really?

HULSE: Because it's such a driving issue, a lot of one-issue abortion voters. The courts are determining what's legal in abortion. We see now that the court has got these new two conservative members to the Supreme Court and the lower courts. That's why you see states now pushing ahead with their tough abortion restrictions because they think that they can get these upheld. So I do think abortion - school prayer. Ronald Reagan played on school prayer when he was running. And these were the kind of things that conservatives vote on. These are important to them.

These are these sort of moral and cultural issues that they are interested in, consumed by to some regard. And so the courts have just been more important to them. You do see Democrats reacting now. There's new groups springing up. Demand Justice is a new group that was started to kind of make Democrats more aware of the potency of the court and the importance and why Democrats should be more interested in voting on it. I do think, in this election, Democrats are going to talk a lot more about the Supreme Court than they have in the past.

MARTIN: That was Carl Hulse, chief Washington correspondent for The New York Times. He's the author of the new book "Confirmation Bias: Inside Washington's War Over The Supreme Court From Scalia's Death To Justice Kavanaugh." He was with us in our studios in Washington, D.C. Carl Hulse, thanks so much for talking to us.

HULSE: Oh, thanks for having me on. I appreciate it. Transcript provided by NPR, Copyright NPR.