ROBERT COSTA: Hello. I'm Robert Costa. And this is the Washington Week Extra.
The Supreme Court wrapped up its term this week, issuing decisions on cases ranging from
trademarks and profanity to a Census question on citizenship to partisan gerrymandering.
The makeup of the bench plays an important role on how cases are decided, and a new book
goes deep inside the confirmation process.
Joining me tonight, Carl Hulse, chief Washington correspondent for The New York Times
and author of Confirmation Bias: Inside Washington's War Over the Supreme Court from
Scalia's Death to Justice Kavanaugh; Kimberly Atkins, senior Washington news
correspondent for WBUR, Boston's NPR station, and also an attorney; Susan Page,
Washington bureau chief for USA Today; and Dan Balz, chief correspondent for The
Washington Post. The Court saved some of the most controversial decisions to the end.
In a 5-4 ruling Thursday on partisan gerrymandering, Chief Justice John Roberts wrote,
"it is beyond the reach of federal courts," so now state courts must handle cases that
deal with partisan redistricting.
The Trump administration had also planned to add a citizenship question to the 2020
Census, but Chief Justice Roberts rejected its reason for adding that question, writing
it, quote, "appears to be contrived." Carl, your book, right here.
CARL HULSE: Thank you. Thank you, Bob. (Laughs.)
ROBERT COSTA: Congratulations on Confirmation Bias.
Partisan gerrymandering, the Court is still going to - federal courts will still have an
eye on racial gerrymandering and also to make sure districts are proportional - one
person, one vote - but not partisan gerrymandering.
What does that tell you as a reporter on politics and the courts?
CARL HULSE: About the courts. So the book just in some ways is about how one decision
can have incredible ramifications. Mitch McConnell decides to block Obama on nominating
someone when Justice Scalia dies, and it just rolls and rolls, helps elect Trump.
But what it also did was lead to Donald Trump being able to appoint Brett Kavanaugh to
replace Anthony Kennedy, who quit. Brett Kavanaugh was - Justice Kennedy didn't want
to get the Court out of this issue; Brett Kavanaugh was happy to do it.
And I just think that this - you know, when people look at the Court now and they hold
these decisions to the end because they now they're very problematic, and they look at
the Court and go, wow, that was quite a political decision there. Now, Justice - Chief
Justice Roberts is a canny guy, right? He gets the politics of the Court.
He's worried about the image of the court, so he sort of maneuvers a decision on the
Census question that's so he kind of kicks that back so they didn't have two really
Republican-favorable decisions come out at one time.
But I think the problem for the Court right now is that it's at a dangerous point.
People are starting to wonder if the Court can make an objective decision.
And when you see these big headlines - Court allows, you know, partisan gerrymandering -
I think that it's going to be reflected in public confidence in the Court.
ROBERT COSTA: But what about partisan gerrymandering?
We've seen it in places that are Republican states like North Carolina.
We've also seen it in Democratic states like Maryland. Does it mean it just continues
now in states like that - if you have a red legislature the districts are drawn by
Republicans, if it's a blue state districts drawn by Democrats?
KIMBERLY ATKINS: Yes, and to an extent that's always been the way, right, to the victors
go the spoils. If your party is in control of the statehouse, those are the things that
you get to do. These cases involved really extreme partisan gerrymandering to a point
that was - raised these constitutional questions. And to be sure, right now it's mostly
Republican districts across the country that are doing it because the - more
statehouses are controlled by them and they've sort of forged that plan.
But a lot of issues - you brought up racial gerrymandering, which is unconstitutional.
If you do a Venn diagram of partisan and racial gerrymandering, they overlap a lot. And so
one fear is that when racial gerrymandering claims are brought the lawmakers are just going
to come back and say, oh, no, it's not racial gerrymandering, it's just partisan gerrymandering.
ROBERT COSTA: Many civil rights groups have expressed that thought -
KIMBERLY ATKINS: Yes.
ROBERT COSTA: - this week, that partisan gerrymandering really in effect could be racial
gerrymandering. And you mentioned that Republicans control most of the state legislatures
in this country. Does this decision - partisan gerrymandering - raise the stakes
for 2020 for Democrats to try to come back in the states?
DAN BALZ: Absolutely. I mean, it raised the stakes in 2018 in the gubernatorial races,
and Democrats were able to take back a number of state governorships that they had lost
in 2010 and didn't win back in 2014. In those states, particularly where governors have
power over it, they now have a way to check a Republican legislature.
But the Republicans at this point hold many, many more. So Republicans have been much
more effective over the last 10 to 12 years in focusing on state legislative races,
and Democrats are trying to get back in the game but they've been slow to do it.
SUSAN PAGE: You know, it's not just a matter, though, of electing some more Republicans
or Democrats; it skews our politics to have this level of gerrymandering because it - in
both parties it means that the members being elected from a congressional district are
more worried about somebody from the left challenging a Democrat, from the right
challenging a Republican. It encourages extreme views, extreme partisan views.
It penalizes candidates that might be in the middle of these districts, where they're -
where effectively you're deciding who serves in Congress in the primary, not in the general election.
DAN BALZ: One aspect of this debate because of the controversy over partisan
gerrymandering is that in a number of states and perhaps growing are moves to turn
redistricting over to independent organizations, to take it out of the hands of
politicians in order to make it more fair.
That's moved slowly, but there is some momentum behind that.
CARL HULSE: Yeah, people want to do that.
You know, it's funny, though, Mitch McConnell, who was so instrumental in all of this,
you know, in blocking Merrick Garland and getting these justices confirmed, the day after
he said this is pretty much exactly what I wanted.
This is a strict constructionist interpretation of the law.
The justices looked at that and said it's in the Constitution, we should stay out of it.
But by staying out of it they've really opened the door to this new extreme
gerrymandering which is computer-driven, right?
You're going - you're not just going, you know, street by street; you're block by block,
house by house. You really can tell what's going on here. And they admit in their opinion
that this is a threat to democracy, it skews democracy, but we're just going to keep hands off.
ROBERT COSTA: What about the Census?
Kim, you wrote this week about the Census decision that, quote, "Challengers argue the
government wants to suppress the count of immigrants to diminish the strength of
Democratic districts." Several state attorney generals challenged the question in court.
What do states have to lose in particular if noncitizens are not counted?
KIMBERLY ATKINS: A lot. Federal funding is based on the Census count. Congressional
districts are decided by the Census count. And there is this concern that this was a
purposeful plan. There was evidence that came out that backed that up.
And in this case, I mean, I agree with you about the chief justice really being an
institutionalist when it comes to the court.
But in his opinion he basically said come on, guys, this doesn't even pass the giggle
test, that you set - you did this for the purpose of enforcing the Voting Rights Act?
No. You have to go back and try again. I think that -
CARL HULSE: Come up with a better -
KIMBERLY ATKINS: Come up with a better reason. That was the - that was the compromise.
CARL HULSE: Do you think they could sort of get this on the Census?
KIMBERLY ATKINS: That's the question. I mean, the government said that they needed to
print these forms by the end of June, I have heard even before that there's a couple
of months to play with. It depends on how quickly the lower courts move to do this.
But states are already pushing very hard to get these forms printed.
It's hard enough to administer them and there's a real concern that already with all of
the publicity around it there's going to be a lot of suppression of participation in the
Census because immigration is such a hot-button issue and immigrants are really nervous.
CARL HULSE: I mean, things are so partisan right now, do we really need more polarization?
And that seems where it's heading. The efforts are to make it even more strident.
And, you know, it's going to just contribute to the -
DAN BALZ: But the chief justice's ruling on this still certainly leaves open the
possibility that if they come back with something -
ROBERT COSTA: What do you mean by that?
DAN BALZ: I mean basically said what they presented with contrived, but they - but they
have every right to make this decision.
CARL HULSE: It was a punt. And the White House - the president has said, you know,
we're going to try and get this on still. This issue isn't over.
DAN BALZ: Yeah, no.
SUSAN PAGE: But if Justice Roberts is concerned about the integrity of the court and the
respect that Americans traditionally have had for this - remember when that disputed
election was decided by a divided Supreme Court in 2000 and Americans accepted it almost
immediately? How can we have confirmation battles like this that are so pitched and so
partisan for a justice and then expect Americans to think that someone who gets
confirmed on the court for the rest of their life will suddenly not be a partisan figure?
CARL HULSE: Yeah. I think - well, I addressed this in my book. (Laughter.)
But I think it's a real problem because the Supreme Court relies on other
government institutions to enforce its rulings and to go along with them.
And it's not just that, but, you know, the country demographically is going one way, the
court seems to be going another way.
You know, 20, 30 years from now, if there's a big divide, I think that is a real problem
and people may just say, you know, treat the court as irrelevant. Where does that leave us?
ROBERT COSTA: What do you make of some of the Democratic presidential candidates like
Pete Buttigieg who say the court should be expanded?
Is that a rising talking point, a rising suggestion on the left?
KIMBERLY ATKINS: No. And more candidates actually should be talking about the Supreme
Court because the stakes are so high. You know, whatever you think about Mayor Buttigieg's
plan, at least he's talking about it. I was really surprised at how little the issue of
the Supreme Court came up during the debates.
CARL HULSE: Bernie Sanders talked about rotating -
KIMBERLY ATKINS: Bernie Sanders did answer, but de Blasio was asked a direct question
about it and he started talking about something completely different.
The Republicans have made the Supreme Court and the federal judiciary a cornerstone of
their message and it's worked. The Democrats have not found a way to do the same.
ROBERT COSTA: And it's not only the -
CARL HULSE: You're seeing groups, though, spring up, you know, Demand Justice, the Brian
Fallon group. You're seeing the Democrats trying to make a bigger effort, which, by
the way, is now spurring more Republican groups to spring up to fight the effort.
And, you know, the court - I do think that - I agree with you that it wasn't talked
about as much in the debates as I had expected. But I do think during the campaign
you're going to see Democrats talk a lot more about the court than they have in the past.
ROBERT COSTA: When I was reading your book, Carl, I kept wondering why. Why are the
Republicans so driven to really focus on the federal courts? Is it the issue of abortion?
CARL HULSE: I think it's abortion.
DAN BALZ: Well, I think abortion is one of the issues, but I also think that in the view
of Republicans the federal government is the real problem and that whether it's president
or Congress it is all about more power for the federal government. And in that way, they
believe that that is against the basic principles of conservatism. You know, they're a
small-government party. And what they see is the government apparatus, other than the
court, aligned against them.
SUSAN PAGE: You know, that's true. But Roe v. Wade really spurred Republicans to take
on the court as a fundamental issue and as a voting issue. And you know what could make
Democrats feel that way? Overturning Roe v. Wade and that's a possibility.
CARL HULSE: Roe v. Wade - if that - if that - you know, there's a lot going on at the
state level. If that got to the court at that point - but I make this point in the book, Bob.
Gorsuch and Kavanaugh were put on the court by Don McGahn, the chief counsel of the White
House, and other conservatives. They get them on abortion.
But to deconstruct the administrative state, they want to -
ROBERT COSTA: Your book reveals that's really why those two people were chosen.
CARL HULSE: That's why they were there.
ROBERT COSTA: It wasn't because they were - of their position on abortion.
That was part of the checklist.
CARL HULSE: It's about - yeah. It's rolling back the agency power. There were a couple
of decisions this week that came up to the edge, didn't quite get there because of Justice
Roberts again. But Justice Alito and others and Justice Gorsuch writing this is coming,
so we're going to make this change.
KIMBERLY ATKINS: Yeah, that's absolutely right. I mean, it didn't get any - talking
about administrative law doesn't get headlines. Nobody knows what "our deference" means.
But there are crucial, crucial issues when it comes to this issue.
It's a big issue that Republicans are pushing.
ROBERT COSTA: That's it for this edition of The Washington Week Extra.
You can listen wherever you get your podcasts or watch on our Washington Week website.
While you're online, check out the Washington Week-ly News Quiz.
I'm Robert Costa, thanks for joining us. See you next time.