DAVID GREENE, HOST:
The president and Senate Republicans seem ready to move very quickly to install a new Supreme Court justice after Anthony Kennedy made his surprise announcement yesterday that he is retiring. The president said his pick is going to come from a list of conservative judges that his campaign compiled during the presidential election.
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PRESIDENT DONALD TRUMP: We have to pick a great one. We have to pick one that's going to be there for 40 years, 45 years. We need intellect.
GREENE: That was the president speaking at a rally in North Dakota yesterday. Now, Kennedy was often the court's swing vote, so the person who fills this vacancy could become one of the most influential people in American politics for decades to come. And here to discuss this is Carrie Severino. She's chief counsel and policy director at the Judicial Crisis Network, which pushes for conservative judicial appointees. Welcome back.
CARRIE SEVERINO: Great to be here.
GREENE: So I want to get right to it. A lot of people talk about Kennedy being so central in abortion cases over the years. Do you see it as a goal now with this vacancy to overturn Roe v. Wade?
SEVERINO: You know, actually, I think that's a lot of scaremongering. We've seen that claim coming back really since Justice O'Connor's confirmation in the '80s. This is something that - you know, we only have one member of the court who's even on record saying what he thinks about Roe v. Wade. And Chief Justice Roberts himself is known for being an incrementalist. I just think that that is very premature to assume that any anything like that's around the corner. However, I think what we can say with confidence is, looking at this list the president has, any of those people has the experience ready to step in and be a great justice.
GREENE: OK, because there are a lot of people in this country who would like to see Roe v. Wade overturned. You're saying that you could support a nominee who does not say explicitly that he or she would overturn Roe v. Wade.
SEVERINO: Oh, yeah. Of course. And, in fact, I think it would be inappropriate for any of them to prejudge that case themselves. And I think it's unlikely the court would ever get that square question presented to it, anyway. But I think, again, looking at this, that's one of so many issues that are coming before the court. What we're likely to see, really, is someone along the lines of Justice Gorsuch, who this past term, actually, agreed most of any justice with Justice Kennedy. That surprised me a little, but I think that that shows the kind of fair-minded, balanced judge that this president is likely to appoint again.
GREENE: Justice Kennedy often supported issues like same-sex marriage. I mean, he was very central in the case that many people in the country saw as settling that question. Is the question of legalized same-sex marriage something that you would like to see reopened again with a new justice on this court?
SEVERINO: Again, I doubt that's something that's going to come back up to the court in the immediate future. What we need is judges not that are going to stand there and say, I'm going to vote this way on a certain issue, but who have an approach to the Constitution where they say, I'm going to look at the Constitution's original understanding; I'm going to take each law as it comes to me. The judges on Trump's list, whoever he chooses, have that record of hearing both sides of the cases and taking those laws seriously and being fair and impartial. These are really legal superstars. So I think any one of them is ready to step up.
GREENE: Can I just ask you about one of the charges Democrats are making, which is of hypocrisy, that the Republican leadership and Mitch McConnell decided to hold up President Obama’s Supreme Court nomination because it was an election year, which meant Merrick Garland never came up for a vote? That brought us to having Gorsuch on the court. Now the Democrats are saying that Republicans set that standard, so why not use it now? Why not wait for this nomination till after the midterms?
SEVERINO: Yeah. They’re really trying to rewrite this - the record on that. The Biden rule was always about an election in a presidential year, and in particular, at the end of a second term…
GREENE: Now, remind us why they call it the Biden rule.
SEVERINO: Sure - because that was something that Joe Biden himself proposed. He said when we’re this close to a presidential election - when he said it, he actually meant a little farther out than that vacancy came up. He said at that point, it would be inappropriate for the president to nominate someone, and it would be inappropriate for the Senate to consider them. And that had to do with the presidential election, and it was something that the majority of the Senate agreed with at the time. I don’t think you would see that apply in a midterm election year - never would’ve contemplated that because that would mean you wouldn’t hear - have nominees 50 percent of the time.
And I think Justice Kagan’s confirmation is a clear counterexample to that. She was confirmed in the summer of 2010, exactly where we are in comparison to midterm elections, but under President Obama. I think the Democrats are trying to rewrite history and pretend that the Biden standard was something that it’s not.
GREENE: Carrie Severino is the chief counsel at the Judicial Crisis Network speaking to us this morning. Thanks for coming in. We appreciate it.
SEVERINO: Thanks. Transcript provided by NPR, Copyright NPR.