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Heritage Foundation's John Malcolm: 'Circumstances Are Different' With RBG Vacancy

MICHEL MARTIN, HOST:

As we've noted, this new vacancy on the high court is the subject of intense focus by people on both sides of the political divide. And that means there's intense interest in the choice of conservative think tanks. In recent years, President Trump has made it clear that conservative groups have been key in his decision-making about whom to nominate.

One of those groups is the Heritage Foundation, a think tank based here in Washington, D.C. Here to talk more about possible nominees and what the process might look like is John Malcolm. He is the vice president for the Institute for Constitutional Government at the Heritage Foundation. And he's been actually writing a lot about potential choices for the next vacancy. And he's with us now.

John Malcolm, welcome. Thank you for joining us.

JOHN MALCOLM: It's a pleasure to be with you.

MARTIN: We have to begin with the obvious question of timing. In 2016, after the death of Justice Antonin Scalia, the Senate Majority Leader, Mitch McConnell, refused to even hold hearings for President Obama's nominee, Judge Merrick Garland. And Mr. McConnell's justification was that the process shouldn't move forward so close to an election. That was months before an election.

But here we are a few weeks before our presidential election, and Senator McConnell says he does intend to move forward. Critics say this is obviously hypocritical. What do you say?

MALCOLM: Well, at the time, Senator McConnell also made clear that there was divided government, and that you had a president who is completing his second term of one party, and the Senate was controlled by the other party. The last time there had been a confirmation under those circumstances in an election year was all the way back in 1888.

Here, of course, the president is only completing his first term, and the Republicans do have, at least at the moment, control of the Senate. The circumstances are different. But, of course, the Republicans will have to decide whether they're going to proceed or not, although I assume they will.

MARTIN: Explain to me what - the difference between the first term and the second term. What's the relevance of that to this question? And the fact is, when there is divided government in the sense that the House is controlled by the opposition party, by the Democratic Party - so in that sense, there is divided government also - what's the relevance of first term versus second term?

MALCOLM: Well, everybody knew that Barack Obama was not going to be president, so the Supreme Court was very much on the ballot. And Barack Obama was not going to be around for a second term. We cannot say that about Donald Trump. And it is true that the Democrats control the House of Representatives. But the Constitution provides that the House has no say in the confirmation process whatsoever. It's the president who makes nomination and - nominations, and it's the Senate that gives advice and consent, not the House.

MARTIN: So the argument here is that - is this a political judgment? Or is there an intellectual argument here? Is this purely a political matter of the president and the Senate are both members of the same party, therefore if they have the will, and they have the votes, then they should proceed. Is that it?

MALCOLM: Well, to some extent, it's a matter of an ability to exercise power. However, the last time there was an election a couple of years ago - you know, four years ago, obviously, Donald Trump won. And both four years ago and two years ago, the American people chose to keep a Republican majority in the Senate. That was not the case when Barack Obama was president. He was elected in 2012, but in 2014, the American public opted to have a Republican-controlled Senate.

So you could say it's an intellectual argument. You can say it's a matter of history. You can say to a certain extent it's a matter of the ability to get something done. And probably there's a little bit of truth in all three.

MARTIN: But the reality of it is that the president may or may not be elected. He is on the ballot, but his reelection is not assured, as are a number of senators. So if the question is that the Supreme Court is - that this is a referendum on the public's judgment about what should happen going forward, how is the fact of President Obama's being a lame duck president relevant here? The Constitution doesn't speak to that at all.

MALCOLM: No, that's true. But the vacancy, of course, is now. It's important to have a full complement of justices whenever possible. And look. You know, the Republicans are going to be having this discussion over the next several days. Senator McConnell has made it quite clear that when you have a president of one party and the Senate is controlled by the same party that they should proceed. I think that will be his intention. And we'll see what the Republicans end up doing and how the American public reacts to that.

MARTIN: So we know that the president released a long list of potential Supreme Court nominees earlier this month. Today we learned that there are a few people who seem to be at the top, including Amy Coney Barrett, who's a judge on the 7th Circuit Court of Appeals. The reporting today indicates that she's kind of favorite to get the nomination. What do we know about her? And is there something that the president's shortlist signals to you?

MALCOLM: Look. Judge Barrett on the 7th Circuit Court of Appeals is obviously a - you know, a brilliant person. She's - in her short time on the bench has issued several notable opinions. She had a long and distinguished career in the academy before that, teaching largely at Notre Dame, where she wrote and spoke on a whole variety of subjects. She clerked on the D.C. Circuit for Larry Silberman and Justice Scalia on the Supreme Court.

And she is, you know, by all accounts a very intelligent person and distinguished jurist who, by the way, had a contentious confirmation hearing and held up quite well under what I thought were unfair attacks against her. So if she ends up getting the nod and she were to be confirmed, I think she'd be an outstanding Supreme Court justice.

MARTIN: Before we let you go, do you have any memories of Justice Ginsburg that you'd like to share with us. I know that you share a love of opera. Anything else?

MALCOLM: Yeah. Well, I would see her around town once in a while, and I certainly did see her at the opera. One thing that was always amazing is that she would always come in with her security team just before the performance began. But the moment she walked through the door, everybody in the audience - and I mean everybody - gave her a rousing - a standing ovation.

And I used to go and still go to after parties after the performance, and the singers were giddy at the prospect of getting their picture taken with Justice Ginsburg. And she always very kindly obliged.

MARTIN: And why do you think that is?

MALCOLM: I think she was - in addition to loving the opera, she's just a very, very gracious person - and look - you know, clearly a brilliant mind. And if Antonin Scalia was a lion in the law, Ruth Bader Ginsburg was a lioness. And her place in terms of advancing women's rights is, you know, indisputable and every bit as great as Thurgood Marshall's was in terms of advancing the rights of African Americans.

MARTIN: That was John Malcolm of The Heritage Foundation.

John Malcolm, thank you so much for your time.

MALCOLM: Thank you. Transcript provided by NPR, Copyright NPR.