>> Trace: JACKIE HEINRICH LIVE
ON CAPITOL HILL.
>> Dana: LET’S BRING IN KARL
ROVE AND ANDY MCCARTHY.
WANT TO LISTEN TO PRESIDENT
BIDEN.
YOU MIGHT REMEMBER AS A
CANDIDATE SAID THIS.
>> PRESIDENT ROOSEVELT CLEARLY
HAD THE RIGHT TO SEND TO THE
UNITED STATES SENATE AND UNITED
STATES CONGRESS A PROPOSAL TO
PACK THE COURT.
IT WAS TOTALLY WITHIN HIS RIGHT
TO DO THAT.
HE VIOLATED NO LAW.
HE WAS LEGALISTICALLY
ABSOLUTELY CORRECT.
BUT IT WAS A BONE HEAD IDEA.
>> Dana: THAT’S HOW HE USED TO
THINK.
AS A CANDIDATE YOU REMEMBER HE
DODGED ANSWERING THE QUESTION
ABOUT COURT PACKING FOR A LONG
TIME AND FINALLY AT A DEBATE
SAID NO AND THEN HE WOULD DO
THIS COMMISSION.
NOW WE KNOW.
THIS IS ACTUALLY A REAL IDEA
PUT FORWARD BY THE DEMOCRATS.
IS IT POSSIBLE THAT IT COULD
PASS?
>> WELL, IT IS POSSIBLE.
THEY WOULD HAVE TO BLOW UP THE
FILIBUSTER IN THE SENATE BUT
SENATOR BIDEN WAS ACCURATE.
THIS IS A BONE HEADED IDEA.
THIS WOULD BE SEEN AS A PURE
POWER GRAB.
REMEMBER, FRANKLIN ROOSEVELT IN
1937 WAS AT THE HEIGHT OF HIS
POPULARITY AND TRIED TO PACK
THE COURT.
WHAT HAPPENED IN THE NEXT
ELECTION?
THE NEXT ELECTION OF 1938 THE
DEMOCRATS LOST 72 SEATS IN THE
U.S. HOUSE OF REPRESENTATIVES
AND EIGHT SEATS IN THE SENATE.
SO MY POINT IS THAT THINK ABOUT
IT.
EVERY SENATE DEMOCRAT CANDIDATE
WHETHER IT’S AN INCUMBENT IN
THE ONE OF FOUR STATES WITH
REAL PROBLEMS OR TIGHT
REPUBLICAN SEATS IS NOW GOING
TO BE ASKED DO YOU AGREE WITH
PACKING THE COURT?
FOR THEM THERE IS NO GOOD
ANSWER.
IF THEY SAY YES, THEY WILL
UPSET THE INDEPENDENTS AND RILE
UP THE REPUBLICANS.
IF THEY SAY NO I’M NOT IN FAVOR
OF IT, IT WILL DISSPIRIT SOME
OF THE PEOPLE IN THE LEFT WING
OF THE DEMOCRATIC PARTY.
>> Trace: WHY HAVE A COMMISSION
IF YOU HAVE ALREADY MADE UP
YOUR MIND, ONE?
TWO, IF THE ODDS OF THIS
PASSING ARE VERY SLIM, WHAT IS
THE GOAL HERE?
>> WELL, THE COMMISSION EXISTS
FOR ONE OF TWO REASONS.
WE DON’T KNOW.
IS IT TO SORT OF KILL THIS IDEA
OR TO GIVE A FOUNDATION OF
EXPERTISE BEHIND IT?
I WOULD SAY THIS.
I’M DUBIOUS ABOUT THIS
COMMISSION.
FIRST OF ALL IT IS HEADED BY
TWO CO-CHAIRS ONE WHO SIGNED AN
INFLAMMATORY LETTER CALLING FOR
THE DEFEAT OF JUSTICE KAVANAUGH
AND THE OTHER WHO HAS BEEN THE
DEMOCRATIC NATIONAL COMMITTEE
GENERAL COUNSEL TWICE, GENERAL
COUNSEL FOR THE OBAMA CAMPAIGN
TWICE AND PLAYED THE ROLE OF
DONALD TRUMP IN BIDEN’S DEBATE
PREP.
I HAD TOO MUCH TIME OVER THE
WEEKEND.
I CHECKED OUT THE 32 MEMBERS OF
THE COMMISSION ON OPEN SECRETS.
28 DEMOCRATS, FOUR
CONSERVATIVES AND LIBERTARIANS.
16 DEMOCRATIC COMMISSIONERS IN
THE 2020 ELECTION CYCLES GAVE
110 POLITICAL CONTRIBUTIONS
TOTALING $112,000 TO DEMOCRATS.
TWO CONSERVATIVE COMMISSIONERS
WHO EACH GAVE DURING THOSE FOUR
YEARS ONE GIFT EACH, ONE TO A
REPUBLICAN IN A PRIMARY IN NEW
MEXICO CONGRESSIONAL DISTRICT
AND ANOTHER ONE WHO GAVE A
CONTRIBUTION FOR A LIBERTARIAN
FOR A TOTAL OF $4200?
IS THIS A BALANCED COMMISSION?
I DON’T THIS SO.
DEMOCRATS ARE A BUNCH OF
CAMPAIGN CONTRIBUTION GIVING
ACTIVISTS.
>> Dana: YOU WROTE IN THE HILL
NEWSPAPER BIDEN’S COURT PACKING
THEATER -- YOU SAY THE COURT
PACKING THREAT FAILED ONLY AS
AN BISCHOUS ART FILES.
IT SUCCEEDED IN INTIMIDATED THE
SUPREME COURT INTO A RETREAT
FROM ITS PROTECTION OF ECONOMIC
LIBERTY AGAINST ASPIRATIONS TO
REGULATE AMERICAN INDUSTRY.
WHAT NOW?
>> YEAH.
I AGREE WITH KARL ABOUT THE
CONGRESSIONAL POLITICS OF ALL
THIS.
THERE IS A SEEMY SIDE TO THIS
HISTORY WE HAVE TO TAKE INTO
ACCOUNT.
THE COURT PACKING PLAN BY FDR
LOOKED AT JUST AS LEGISLATION
AND A REBUKE OF THE PRESIDENT
WAS A SPECTACULAR FLOP.
BUT IN TERMS OF WHAT ITS BOTTOM
LINE WAS IT MANAGED TO
INTIMIDATE THE SUPREME COURT
INTO CHANGING ITS JURISPRUDENCE
NOT JUST ON SOMETHING THAT IT
WAS OF IDLE IMPORTANCE, WE
BASICALLY HAD, BECAUSE OF THE
GREEN LIGHT THAT THE SUPREME
COURT GAVE THE NEW DEAL, NEARLY
A CENTURY OF PROGRESSIVE
GOVERNANCE THAT WOULD HAVE BEEN
UNRECOGNIZABLE TO THE FRAMERS.
I THINK THIS IS ALL THEATER BUT
I WOULDN’T DISMISS IT BECAUSE
IT’S THEATER WITH A PURPOSE.
THEY THINK THEY CAN INTIMIDATE
THE SUPREME COURT INTO THE WAY
THEY CHOOSE WHICH CASES TO
DECIDE AND IN THE WAY THEY
DECIDE THE CASES THAT ARE
BEFORE THEM, WHETHER THEY
UNEXPECTEDLY GIVE THE LEFT
WINDS THAT YOU WOULDN’T FIGURE
THEY WOULD GET OR IN CASES
WHERE CONSERVATIVES WIN, THE
DECISIONS BECOME SO NARROW THAT
THEY ARE OF LITTLE PRECEDENT
USE.
THERE IS A LOT OF MISCHIEF HERE.
>> Trace: YOU TALK ABOUT
INTIMIDATION AND I FIND IT
IRONIC THE WHOLE IDEA OF THE
PROGRESSIVE GROUPS CALLING FOR
STEVEN BREYER, A LIBERAL, TO
RESIGN BECAUSE HE IS AGAINST
PACKING THE COURT.
I WANT TO PLAY THE SOUND BITE
FROM RUTH BADER GINSBURG, WHAT
SHE SAID ABOUT PACKING THE
COURT.
WATCH.
>> NINE SEEMS TO BE A GOOD
NUMBER.
IT’S BEEN THAT WAY FOR A LONG
TIME.
IT WAS A BAD IDEA WHEN FDR
TRIED TO PACK THE COURT.
>> Trace: IF SHE WERE STILL
AROUND TODAY, AN ICON ON THE
LEFT, DO YOU THINK ANYBODY
WOULD HAVE CALLED FOR HER TO
RESIGN BECAUSE OF HER OPINION?
>> WELL, THE LEFT IS KIND OF
UNPREDICTABLE NOW.
I WILL SAY THIS MUCH, TRACE.
GINSBERG WAS VERY SMART, BREYER
IS SMART.
I THINK THEY UNDERSTAND AND
UNDERSTOOD THAT THE COURT’S
VIABILITY IN THE ROLE THAT IT
HAS IN OUR SYSTEM, WHICH IS A
KIND OF AN APOLITICAL INSULATED
FROM POLITICS PUSHBACK AGAINST
THE POLITICAL BRANCHES, THAT IS
DEPENDENT ON ITS BEING
LEGITIMATE AS A JUDICIAL
INSTITUTION.
IF YOU START PLAYING AROUND
LIKE THE DEMOCRATS ARE NOW
TALKING ABOUT DOING IN ORDER TO
ACHIEVE PROGRESSIVE RESULTS, IT
JUST BECOMES A HYPER
LEGISLATURE.
NO LONGER A JUDICIAL
INSTITUTION AND IT LOSES ITS
IMPORTANT POSITION IN OUR
FRAMEWORK.
>> Dana: IT IS BEING PROPOSED
BY THE HOUSE JUDICIARY
COMMITTEE CHAIRMAN.
THAT’S REMARKABLE.
KARL ROVE, YOU HAVE A COLUMN IN
THE "WALL STREET JOURNAL" TODAY
EVERYONE SHOULD CHECK OUT.
WHY BIDEN WON’T BUILD BRIDGES
TO THE G.O.P. AND I’M SURE
THERE WILL BE MORE TO COME ON
THAT TOPIC.
I’M CURIOUS.
I WILL CALL YOU LATER AND FIND