JUDY WOODRUFF: It feels like a world away since we last heard the analysis of Shields
and Brooks. A lot has happened.
But that is syndicated columnist Mark Shields and New York Times columnist David Brooks.
Hello to both of you on this Friday night.
Not much to ask you about, Mark.
But why don't we start with not only Ruth Bader Ginsburg, who I had planned to begin
with, but now we have learned in the last hour or so, our colleague Yamiche Alcindor
confirmed that the president does plan to name the appellate Judge Amy Coney Barrett
to be the next nominee to the court.
I guess I'm asking you to wrap it together. Early reaction to Barrett, but also final
thoughts about Justice Ginsburg, whom we have seen honored this week.
MARK SHIELDS: Honored, indeed, in a wonderful send-off.
I was just, quite frankly, amazed and touched by how much she had touched women in this
country. I mean, I knew she was a folk hero and a rock star, but the real emotion that
her passing generated.
In a marvelous way, she probably meant more as a litigator than she did as a jurist, not
to offend anybody. But she was the person who pleaded those cases before -- and won
them before the Supreme Court, especially on expanding the 14th Amendment, which was
written after the Civil War, to extend not simply the -- against racial discrimination,
but gender discrimination.
And she won five of the six cases. She changed America in the process. And she gave us a
marvelous example of how to reach across partisan divide. Her friendship with Justice Antonin
Scalia should be an example for all of us in Washington.
JUDY WOODRUFF: And, David, she did come to the court with a legacy already.
DAVID BROOKS: Yes, it's amazing to me first that she's the first woman to lie in state.
That is mind-boggling in 2022, that this is the first time that has happened.
She -- judges, when they go and go to before their confirmation hearings, they all say
their personal feelings won't affect how they judge; it's the legal automatons. I think
that's never true. It was certainly not true with Ruth Bader Ginsburg.
She comes from a neighborhood and a culture I know very well, the Flatbush in Brooklyn,
the Jewish immigrant culture there. And when you grew up in that culture, A, you have a
strong preference for the underdog. You have a strong love of America. She said one of
her heroines was Emma Lazarus, the author of the poem on the Statue of Liberty.
You have a reverential respect for law. And I think she carried those values, not being
unfaithful to being a judge, to the judicial system, but carry those values. And I think
she's admired because of those values.
Amy Coney Barrett also has values. She's a conservative. She is well-regarded. When she
was Supreme Court clerk to Antonin Scalia, all of the clerks, regardless of party affiliation,
admired her. When she was on the Notre Dame Law faculty, all of the faculty members, regardless
of party ideology, admired her, that, personally, she seems -- I have never met her.
She seems reputed to be a wonderful person. But she has a conservative record. She was
a law professor for a long time and wrote a lot of articles, some of which were controversial
and, in her 2017 confirmation hearings, were brought up.
I think it'll be hard to mount personal attacks, given what we know now. But there will be
some conservative attacks.
JUDY WOODRUFF: And, Mark, she does come with a record, as David say. It's a conservative
record.
MARK SHIELDS: She does, Judy.
She -- you could say, if you're a conservative, she's probably not going to be John Roberts.
She is a true-blue and committed conservative.
But I would point out, as David laid out sort of the political land mines for Democrats,
she has admirable personal credentials, the mother of seven, two adopted children. She
brought a Down syndrome pregnancy to birth, a child, is raising it, and was endorsed by
both, not only the conservative members of the law faculty at Notre Dame, but all the
liberals as well.
I think it's a potential land mine for both sides. To the degree that abortion becomes
the centerpiece issue, it's going to be a problem for Republicans among suburban women.
To the degree that it becomes an issue and the Democrats go on the offensive against
Amy Coney Barrett, then Joe Biden's hopes of reaching out across to blue-collar white
voters who had flirted with Trump in the past, maybe former Democrats, becomes a problem.
And I think if, in fact, there is any sort of a mean personal attack mounted against
her, it will only -- it will only hurt the Democrats.
So, I think it's very, very delicate politically for both sides.
JUDY WOODRUFF: Let's talk about that and the process.
David, we look back. There's never been, in an election year, someone nominated to the
Supreme Court in 230 years of the republic this close to an election. The closest we
could find was, what, 1892. It was four months before the election.
We're now within weeks, even days, by the time there'd be a vote. What does that say
about where we are, Republicans and Democrats, and what we should look forward to in the
next several weeks?
DAVID BROOKS: Well, in a platonic, ideal world, I think presidents should be able to nominate
justices until Inauguration Day. You're elected to a four-year term, not a three-and-a-half-year
term.
So I think, in an ideal world, Trump is right. You should be able to nominate somebody.
The problem is with Merrick Garland. Once the Republicans set a standard, to then shred
the standard so quickly shows a complete sign of opportunism, a complete sign that we're
not a nation of laws and precedents, that we're just a ruthless power grab.
And so, in this case, I think it's an error.
As for the process, I think it favors the Democrats, frankly. I think it would not favor
the Democrats if they go after, as Mark said, Barrett personally, or if they go after her
faith, that she's a member of a Christian community people have praised. And some people
have said that's a kind of cult.
I have been reading their magazine, "Vine & Branches." It's a very good magazine, very
intelligent magazine. They seem to be a completely mainstream, charismatic Christian community.
And I don't find anything creepy about it at all.
But I think it's going to be an advantage for a Democrat, because I don't think it's
going to be abortion as the main issue, as it normally is in the Supreme Court. I think
it's going to be health care.
I think the Democrats are smart enough not to go after her faith. They're smart enough
to say, health care is a real issue. People are concerned about losing Obamacare. And
this could tip the balance in the court, so that Obamacare comes under threat.
And I think that's a very strong argument that Democrats can make, and it puts one of
their best issues at the top of the agenda.
JUDY WOODRUFF: Mark, it does look like Democrats are focusing on health care.
How does that shift what's going on? And just, if you would, address the speed of this.
MARK SHIELDS: Well, health, health care, Judy, workers' rights, immigrant rights, women's
rights, consumer rights, I think they have to expand it, no question about it. And it
is legitimate.
I mean, the Affordable Care Act faces extinction in the Supreme Court on the 10th of November.
There were 20 million people added under the Affordable Care Act who got health insurance
during Barack Obama's last six years in office, while that -- while it was in effect.
During Donald Trump's time in office, 2.8 million Americans have lost their health insurance.
And that number will be increased dramatically with the repeal of the Affordable Care Act
that goes with it, and all the empty promises that Republicans have made about a health
care act.
I would simply point out that, since Richard Nixon in 1969, there has never been a Republican
health care plan offered by any president or any Congress.
John Boehner, the speaker of the House said: In 25 years, I have never seen a Republican
health care plan. I have worked on health care, and there has never been one.
And that is the reality. And I think it has to be central to the debate. So I think -- and
Democrats would do well on that issue.
And what you -- we saw today was that a Washington Post/ABC poll, by a margin of 3-2, over -- close
to 60 percent believe that the decision, naming of Supreme Court justice to replace Justice
Ginsburg ought to be done by the next president, the one who is elected in November.
And so I think the Democrats have that on their side.
The only thing worse than a liar, said Tennessee Williams, is a liar who's a hypocrite. And
that's exactly where Lindsey Graham, the chairman of the Republican -- the chairman of the Senate
Judiciary Committee, and too many of his colleagues stand tonight.
JUDY WOODRUFF: David, I do want to ask you both about what President Trump has been saying,
raising questions about the legitimacy of the results if he's not the winner, casting
doubt about mail-in ballots, virtually every day talking about that.
And you just heard the interview that William Brangham did with Bart Gellman.
Are we -- should Americans be worried, as we are almost -- we're just, what, a little
more than five weeks from this Election Day?
DAVID BROOKS: Yes, I was in a call, a conference call, with a bunch of scholars and political
observers yesterday, and we all said, how scared are you, from one to five? And we were
pretty much at 4.5. Some people were at nine and 10.
I have never been more pessimistic about where this country is than I am right now, I mean,
in my whole life. We have had a bad few years with the social fabric fraying. We have had
a president ripping us to top from the -- ripping us apart from the top
The Supreme Court fight maximizes the sense that people have on both sides of the other
side is completely illegitimate and not playing by the rules. And then we walk into an election
night, as Barton Gellman said, where all sorts of bad things could happen.
And I think he makes the core point. I mean, the two moments that I think I'm most afraid
about is, one, election night, when we're sitting there and it looks like Trump is ahead,
and what that psychology does to the country, and then the crucial distinction that he makes,
which is, it's not that Trump is going to lose and refuse to go.
It's that the results could be genuinely unclear, and then we start monkeying with the electors,
especially in states like Arizona and Florida, where you have a Republican governor, Republican
state legislator. A lot of key states, Pennsylvania, Michigan, you have got a Republican legislator,
Democratic governor.
There's all sorts of mayhem.
And one of the things we have learned is that our system depends on the goodwill of the
players involved. And if that goodwill isn't there, then the spiral of accusation and animosity
and enmity -- I don't think we're going to see physical violence, but we will see a level
of psychological violence that we just haven't seen since 1865.
JUDY WOODRUFF: Mark, less than a minute.
Words of reassurance for the American people or not?
MARK SHIELDS: Reassurance, Judy, I mean, let's just hope the example of Al Gore in 2000,
who won the popular vote and said, this is a time when partisanship must yield for patriotism.
Donald Trump, this is not a new song for him. He lost by 2,868,686 votes to Hillary Clinton
in 2016. And what was his explanation? Three to five million illegal undocumented immigrants
voted. That's the only reason he didn't win the popular vote.
So he appointed a commission to examine all those. There were no examples, Judy. There
were no examples of fraud. They came up with nothing.
This is a total fraud. And we will find out, I mean, what this man is made of. Is there
a scintilla of patriotism in his soul? Will he abide by the judgment, as John McCain did
so gallantly in 2008, in saying, I called Senator Obama, who was my opponent, and is
now my president?
That's the example. And I stand with David. I'm concerned deeply. And I just hope an aroused
country and citizenry will not tolerate that kind of behavior, as well as Republicans.
I'm looking, they are -- hoping not that they're an invertebrate, that there is some beat of
a soul still left in the party of Abraham Lincoln.
JUDY WOODRUFF: Well, time for reflection for all of us and for as much transparency as
possible in covering this election.
Mark Shields, David Brooks, we thank you.