Dahlia Lithwick - The Politicization of Neil Gorsuch’s SCOTUS Confirmation | The Daily Show

Dahlia Lithwick - The Politicization of Neil Gorsuch’s SCOTUS Confirmation | The Daily Show
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    -Great to have you back, Dahlia. -Thank you for having me back.
    And what a time to have you back.
    This is, like, your Super Bowl.
    (laughs) Except so depressing.
    It's, like, the world's saddest Super Bowl.
    So it's like your Atlanta Falcon-supporting Super Bowl.
    Yeah, yeah, yeah. It's like...
    it's like sitting in a room, trapped in a room
    with the oldest people in the world, on the senate.
    Somebody, I think Jeff Toobin tweeted
    that the combined age of the first four questioners
    this morning in the senate was 2,000 years old.
    -That's funny. -Like, really old. -(laughter)
    Let's, uh, let-let's, uh-- for those who don't you,
    you are really an expert who's dedicated your time
    to the Supreme Court.
    We haven't seen a more exciting time in the Supreme Court,
    and Neil Gorsuch has really upped the stakes,
    because he is Trump's pick.
    On the surface he's qualified,
    and yet the Democrats don't know what to do.
    Do they block him... and lose?
    Or do they not block him and lose?
    Right. I mean, I think it's...
    it's, like, do we get rolled today?
    -Yes. -Or do we get rolled in a couple of years
    when we get rolled again when Justice Kennedy
    or Justice Ginsburg steps down?
    Or do we get rolled both times?
    Uh, and so there's this real tension
    about, you know, is this the hill that we want to die on,
    filibuster, cloture, words I don't understand,
    you know... three-dimensional chess.
    And meanwhile, as you've probably seen,
    -he is sailing through. -He is having a great time.
    I-I wondered this when watching it today.
    Do the questions actually matter,
    and does the hearing itself actually...
    Like, is there ever a senator who goes,
    "You know what, you just changed my mind"?
    (laughs) Lindsey Graham likes--
    Lindsey Graham is a force of nature--
    and he likes to talk about how he one time voted
    -for Sonia Sotomayor, even though he's a Republican, -Yes.
    and that everybody should be like him.
    So that's generally his... his posture is
    everybody here is terrible,
    I am outstanding,
    because one time... one time I voted
    for "Sotomary," he calls her.
    That's-that's, like, the line that he keeps going back to.
    But it doesn't seem like people are gonna change their minds.
    Gorsuch, a lot of people have said, is sailing through.
    What does "sailing through" mean, though?
    Does it mean he doesn't have skeletons?
    Does it mean he knows what he's talking about?
    So I think that one of my favorite moments today, Trevor,
    was when Chuck Grassley,
    who's the chairman of the Judiciary Committee
    from the Republican side,
    said "I don't want you to talk about anything
    "you've ever decided, or anything you're gonna decide,
    "anything that's political, or anything that's not political.
    "Don't let them drag you into talking about your record,
    "or other people's records.
    "Don't talk about anything,
    because they're going to try to trick you."
    And then Neil Gorsuch
    has absolutely followed those instructions.
    And so what he talks about, you know,
    when they ask him a question about precedent,
    he's like, "I can't describe it."
    When they say, you know,
    is Roe binding precedent on the court?
    He says "It was decided one time."
    You know, I think it's just--
    He's really just saying over and over--
    And they say to him, you know, it's so funny,
    you've written articles about this,
    you wrote a whole book about this issue.
    You know, he's done a lot of, sort of,
    -extracurricular chitchat about things, -Yes.
    and he can't talk about those either.
    I like that he calls that as well,
    as my extracurricular chitchat.
    -I wrote some... -Chitchat.
    Let's talk real quick about that.
    People talk about Neil Gorsuch and they say,
    he is very right-leaning.
    The argument from many conservatives is yes,
    but he's a constitutionalist
    and so he will stick to the constitution.
    He cannot undo, you know, Roe v. Wade,
    or will not undo, you know, gay marriage laws.
    But that's not true, is it?
    Well, I mean, two things.
    One, there's a difference between what you can do
    -on the federal appeals courts, -Yes.
    and what you can do when you are
    a justice of the Supreme Court.
    So to say "I've never overturned any cases"
    has almost no meaning until you've been on a court
    and in a position to overturn cases.
    So it's already a sort of strange thing.
    Nothing he's done in the past
    suggests that he's going to do X or Y, but we don't know.
    It's a whole different ball game.
    The rules are different at the Supreme Court.
    Do you think he'd want to?
    Well, I think-- I mean, certainly he has written
    in some-- he's written concurrences and dissents,
    and he's written things that suggest that there are cases.
    There's one case called Chevron,
    that has nothing to do with filling stations,
    but it has to do with deference to federal agencies,
    and he's called it the "elephant in the room."
    We need to get rid of it.
    So he's certainly been very open
    about the fact in his judicial writing,
    that there are some cases that he really thinks sucks,
    and that the court should reexamine them.
    -But when he's asked even about that, -Yes.
    when he's asked, well, so clearly you've got a marker
    for what kinds of cases
    you think maybe need to be revisited,
    and he can't talk about that.
    Wh... If he... If he is someone...
    That's a good impression of him that you do, actually.
    That's really nice.
    -Golly. Golly. -You've spent a lot of time in that room.
    I can't talk about that.
    The elephant in the room is the fact
    that Merrick Garland was meant to be in that seat.
    Merrick Garland was someone who was picked by a president.
    He's a judge that was picked by a president
    who had every right to pick him.
    Republicans came out and said,
    "We can't pick him because Obama is a lame duck,"
    which was insane.
    But Gorsuch taking this job-- what does that mean
    for the Supreme Court as an institution, going forward?
    Well, I-I wanted to start by telling you
    that Senator Al Franken today directly asked him
    how he feels about the politicization of Garland
    and whether he thinks that Garland was mistreated.
    And it will surprise you not at all
    to hear that Gorsuch could not talk about that.
    Um... so, uh, I...
    -We don't know exactly what he thinks. -Yes.
    We know that... Look, this is unprecedented.
    We've now had a vacancy at the court for more than a year.
    Um, Justice Scalia died on February 13,
    in March Obama tapped someone to replace him.
    And, you know, I feel like
    -we even talked about it on this show-- -We did.
    that the Republicans in the Senate said,
    "No hearing with no vote. We're not even gonna
    have courtesy meetings with Garland,
    because Obama doesn't get to pick someone in his third year"
    by some metric that...
    We still don't know what that rule is,
    -but it's, like, a thing now. -Yeah.
    And, um, so that became the rule.
    And, you know, when there were only eight people on the court,
    which there have now been for a year,
    and things get deadlocked and we have four-four ties
    and the court refuses to take any interesting cases
    -Yeah. -because they can't decide things.
    It's really hampering the work of the court
    and politicizing the court.
    And yesterday, uh, Republicans on the judiciary committee,
    having blocked Merrick Garland for a year,
    turned around and were like, "We got to hurry this thing up.
    "It is unseemly that the court
    "is not being treated as a judicial enterprise
    "that has its integrity and we have to revere that
    and depoliticize this right now!"
    And it was really crazy, because just the complete...
    you know, they've completely changed the rules.
    And now that it's their turn
    to have their guy up, they're like,
    "We should really go to those old rules
    where people get fast and respectful hearings."
    Can I ask you a question? You are-you are in the room
    when this is happening. How are you quiet?
    Like, do you not, at any point, just want to be like,
    "(bleep)! (bleep)!"
    (cheering, applause)
    You're a professional. I'm gonna give you that.
    You're super professional. We're loving your writing,
    we're following everything that you're talking about.
    Thank you so much for joining us again on the show and, uh,
    good luck with Gorsuch and, uh,
    -I'm glad that you can talk about it. -Thank you
    -for having me. -Thank you so much for being here again.
    Dahlia Lithwick, everybody.
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