The Supreme Court Justice Confirmation Process As President Trump prepares to announce his nomination to replace Justice Anthony Kennedy, we take a look into how the confirmation process has changed, and what to expect in the weeks ahead.
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The Supreme Court Justice Confirmation Process

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The Supreme Court Justice Confirmation Process

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The Supreme Court Justice Confirmation Process

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MICHEL MARTIN, HOST:

Let's start by talking about this very important announcement that is supposed to come on Monday - President Trump's choice to replace Justice Anthony Kennedy on the Supreme Court. The president spent the weekend at his resort in Bedminster, N.J., where he reportedly spent time on the final decision. As he boarded Air Force One, the president said he's close to making a final decision and that he's narrowed the list down to four candidates.

President Trump has said previously that he is unlikely to ask potential nominees whether they support Roe v. Wade, the landmark case that legalized abortion in 1973. But it is clear that that decision looms very large in the coming debate over who will fill this seat. Many Democrats and some Republicans say it is critical to know where a potential justice stands on the question of whether legal precedents governing abortion rights will be affirmed by the next justice. But this comes at a time when nominees have been revealing less and less about themselves before they are confirmed.

We wanted to talk about this, so we called legal affairs correspondent Nina Totenberg, who's with us now. Welcome.

NINA TOTENBERG, BYLINE: Thank you for having me.

MARTIN: So, Nina, first, you know, from the outside, this process seems disingenuous. The president said repeatedly during the campaign that he wants to see Roe overturned, and that's a goal that is shared by many social conservatives. And, obviously, progressives want somebody who will not overturn Roe. Now, you're closer than the rest of us to this process. Is it true that the focus of this selection really is what will happen to Roe v. Wade?

TOTENBERG: Well, I'm sure there'll be a lot of other focuses or foci or whatever (laughter) the word is. But, in the end, this is a rallying cry for both liberals and conservatives. It raises money for both bases. I see no way that this isn't one of the central points. But there is a great many other areas of the law that could change dramatically because of this appointment.

MARTIN: What about this broader question of trying to predict where someone will land on certain issues? I mean, is it just understood that that's part of the process? And was it always this way?

TOTENBERG: Not really. You know, people get nominated to the court because they are a racial minority, a woman. You know, in the old days, it was often by region that was most important. So now the focus has been on predictability, especially on the right. And Republican administrations have more and more honed systems for predicting what kind of judicial record their nominee will compile. They've been surprised a couple of times. They viewed Kennedy as a surprise. Kennedy's a very - was a very conservative justice except on a couple of issues that really ring the chimes of social conservatives - namely, gay rights and gay marriage and abortion.

The conservatives don't like those surprises, so they look at every aspect of nominee's potential record. And that's why they like having people with judicial records - so they can see how they ruled on specific questions. Whatever it is, they want to know where their guy or gal is.

MARTIN: Talk, if you would, about the role that the confirmation hearings themselves actually play in determining who will eventually make it to the court. I mean, a number of people noted that the most recent justice to be confirmed, Neil Gorsuch, didn't really seem to say a lot about himself over the course of those hearings. Is that a change from the past?

TOTENBERG: That's definitely a change. Of course, you have to understand that we didn't even have these kinds of confirmation hearings really until the '30s, '40s, '50s. So, in bygone eras, there was, I think, a hesitation by both Democrats and Republicans to really hold a nominee's feet to the fire. And when there was a huge controversy, it was most often about the nominee's allegedly unethical behavior or something like that. In more modern times, what really changed things was the Bork hearings.

Now, President Reagan nominated the standard bearer for the most conservative legal theory of the time, and it has become more embraced and more embraced by the Republican Party - Robert Bork. And he was a brilliant scholar, a judge and also pretty arrogant. And he refused to do what are called murder boards - to get grilled, pretend hearings. And he went out there, and he answered everything pretty forthrightly. Now, he had a very long paper trail, and, in some sense, he may have had to answer that. But the hearings - he was on the witness stand for five days. That's a long time. And, when he was done, he had lost the fight, essentially. And there were a handful of Republicans who were going to vote against him and conservative Democrats who were going to vote against him who had not been pledged to vote against him before.

And, from that, presidents of both parties learned - we're going to prep our people, and they are going to say as little as possible. And the amount has gone down and down and down and down. And Gorsuch said the least. It took pulling teeth to get him to say that Brown v. the Board of Education was rightly decided because they've all been prepped that if you answer one question, it might lead you down a trail where you have to answer many.

MARTIN: Is this something that people who watch the process closely are concerned about?

TOTENBERG: Everybody's concerned about it, but nobody really knows how to fix it. Nobody wants the president to have unilateral power. And, at the same time, the Supreme Court - you know, it's lost some faith from the public, but it's still by far - of the three branches, it's the one held in the highest regard.

And the members of the court to a person do not believe themselves to be political partisans. I think they would all admit that they have their ideologies, but I don't think they view themselves as Republicans and Democrats. They view themselves as at the top of the third branch of government, which is supposed to act as a check on the other two. They know that this whole process is not good for the court. We all ought to like it even less now, but nobody knows how to fix it.

MARTIN: Nina Totenberg is NPR's legal affairs correspondent.

Nina, thank you so much.

TOTENBERG: You're welcome.

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