HE’S THE CHIEF COUNSEL, JAY
SEKULOW.
JAY?
>> IT’S QUITE A DAY.
YOU KNOW, I THOUGHT BACK OVER
THE FACT THAT I HAD THE
PRIVILEGE AND HONOR OF
PRESENTING ORAL ARGUMENTS BEFORE
JUSTICE GINSBERG SINCE THE DAY
SHE WAS WORN IN AND CONFIRMED
AND BECAME A JUSTICE 27 YEARS
AGO.
SO I’VE HAD A LONG HISTORY WITH
JUSTICE GINSBERG.
YOU KNOW, ALL I CAN SAY IS FIRST
OF ALL, THOUGHTS AND PRAYERS FOR
HER FAMILY.
LET ME SAY THIS ABOUT JUSTICE
GINSBERG.
WHETHER YOU AGREED WITH THE
LEGAL POSITION OR NOT, SHE WAS A
VERY, VERY SMART BRILLIANT
LAWYER, ADVOCATE AND JUSTICE.
EVEN WHEN SHE DISAGREED WITH ME,
WHICH WAS FREQUENT, BUT NOT
ALWAYS, I ALWAYS REMEMBERED
FONDLY THAT MY MOTHER WENT TO
THE SAME HIGH SCHOOL AS JUSTICE
GINSBERG, JAMES MADISON IN
NEW YORK.
WHILE I MADE ORAL ARGUMENTS IN
FRONT OF THE SUPREME COURT WITH
JUSTICE GINSBERG, REMINDED ME OF
THE ARGUMENTS I HAD WITH MY
MOTHER GROWING UP, A DEGREESSIVE
BUT NOT HOSTILE.
THIS IS A DAY TO REFLECT ON THE
GOOD THINGS.
THAT IS THAT THIS IS A WOMAN
THAT MADE SOME REAL HISTORY, SHE
ALSO -- WHETHER YOU AGREED WITH
HER LEGAL POSITION OR DISAGREED
WITH IT, YOU KNEW WHERE SHE
STOOD.
AS SOMEONE THAT ARGUED IN FRONT
OF HER, YOU HAD TO BE VERY, VERY
ON YOUR GAME WHEN IT WAS TIME
FOR JUSTICE GINSBERG TO ASK
THOSE QUESTIONS.
SHE ALWAYS GOT RIGHT TO THE
HEART OF IT.
AS RECENTLY AS MAY WHEN WE WERE
ON A SERIES OF THREE CASES.
SO I WANT TO THINK ABOUT THAT
RIGHT THIS MOMENT.
BUT AGAIN, IT’S A HISTORIC
MOMENT FOR THE COUNTRY, A
HISTORIC MOMENT FOR REALLY THE
UNITED STATES SENATE NOW, OF
COURSE THE PRESIDENT AND I
THINK, SEAN, ONE OF THE THINGS
WE HAVE TO REMEMBER IS THAT THE
CONSTITUTION LAYS OUT THE FRAME
WORK OF HOW THIS WORKS.
PRESIDENT NOMINATES WITH THE
ADVICE OF THE UNITED STATES
SENATE.
THAT’S HOW IT WORKS.
THE CONSTITUTION DOESN’T CHANGE
WHEN YOU’RE FIVE MONTHS BEFORE,
TWO WEEKS OR AFTER AN ELECTION.
IT’S UP TO THE SENATE ON THE
ADVICE AND CONSENT PORTION.
THAT IS THE DEBATE THAT WILL
TAKE PLACE.
WE HAVE TO REALIZE THIS IS ALSO
A MONUMENTAL APPOINTMENT IF THE
PRESIDENT DECIDES TO GO IN THAT
DIRECTION.
THIS IS NOT SIMPLY A LIBERAL
JUSTICE FOR A LIBERAL JUSTICE
FOR A CONSERVATIVE JUSTICE.
BOTH SIDES KNOW THAT.
I THINK THAT WILL MAKE THIS ALL
THE MORE SIGNIFICANT AND OF
COURSE IT IS BEFORE AN ELECTION.
SO I SUSPECT IT WILL MOTIVATE
BOTH SIDES IN THAT SENSE.
>> Sean: HOW MANY TIMES TOTAL
DID YOU ARGUE BEFORE THE COURT
WITH JUSTICE GINSBERG AND TELL
ME ABOUT THE TYPE OF QUESTIONS
SHE WOULD THROW AT YOU?
>> I THINK 12 IF MY MEMORY IS
RIGHT.
12 OR 13 TIMES.
I’LL NEVER FORGET ONE IN
PARTICULAR.
IT WAS PART OF THE CAMPAIGN
FINANCE CASE.
I WAS REPRESENTING A GROUPED OF
MINORS THAT WERE PROHIBITED IN
PARTICIPATING IN POLITICAL
CAMPAIGNS.
WE WON IT UNANIMOUSLY.
SHE RULED IN OUR FAVOR.
WHAT IS SO INTERESTING ABOUT
THAT, WHEN I KNEW SHE WAS GOING
TO ASK THE QUESTION REGARDING
SUFFRAGE BECAUSE WOMEN DID NOT
HAVE THE RIGHT TO VOTE UNTIL A
CONSTITUTIONAL AMENDMENT.
WE HAD MINORS.
SO I BECAME AN EXPERT IN THE
SUFFRAGE MOVEMENT.
THERE WAS NOT MUCH I DIDN’T KNOW
ABOUT THAT.
SURE ENOUGH, I UTILIZED THAT.
I THINK IT OBVIOUSLY WAS
EFFECTIVE ENOUGH THAT SHE AGREED
WITH THE OTHER NINE JUSTICES ON
OUR LEGAL POSITION.
BUT THERE WERE OTHER TIMES THAT
SHE WAS DEAD SET AGAINST ME
ESPECIALLY ON RELIGION CASES.
YOU KNEW HER QUESTION, NOT THAT
YOU WERE GOING TO SWAY HER VOTE
OR NECESSARILY GET HER VOTE, BUT
YOU HAD TO GIVE AN HONEST ANSWER
WITH INTEGRITY TO A LEIGH A
POSITION THAT EVEN SHE MIGHT
DISAGREE WITH IT THAT SHE COULD
RESPECT.
THAT WAS ALWAYS -- AND MY
COLLEAGUES THAT HAVE DONE
THIS --
>> Sean: JAY?
I’LL GET BACK TO YOU IN A
SECOND.
THE PRESIDENT WAS ASKED AS HE
WAS BOARDING AIR FORCE ONE AS I
RIGHTLY REPORTED AND JOHN
ROBERTS RIGHTLY REPORTED AT THE
TOP OF THE HOUR TONIGHT, THE
PRESIDENT WAS TOLD JUST BEFORE
GETTING BACK ON AIR FORCE ONE
THAT -- HE SAID SHE JUST DIED
WHILE -- I DIDN’T KNOW THAT.
TELLING ME NOW FOR THE FIRST
TIME.
SHE LED AN AMAZING LIFE AND WHAT
ELSE CAN YOU SAY ABOUT SUCH AN
AMAZING WOMAN.
WE’LL TURN THAT TAPE AROUND IN
JUST A MINUTE.
I ALSO HAVE THE STATEMENT, JAY,
FROM SENATE MAJORITY LEADER
MITCH McCONNELL THAT THE SENATE
AND THE NATION MOURN THE SUDDEN
PASSING OF JUSTICE RUTH BADER
GINSBERG AND THE CONCLUSION OF
HER EXTRAORDINARY AMERICAN LIFE.
JUSTICE GINSBERG OVERCAME ONE
PERSONAL CHALLENGE AND
PROFESSIONAL BARRIER AFTER
ANOTHER.
SHE CLIMBED FROM A MODEST
BROOKLYN UPBRINGING TO A SEAT ON
OUR NATION’S HIGHEST COURT AND
INTO THE PAGES OF AMERICAN
HISTORY.
JUSTICE GINSBERG WAS THOROUGHLY
DEDICATED TO ALL THE LEGAL
PROFESSION AND TO HER 27 YEARS
OF SERVICE ON THE U.S. SUPREME
COURT.
HER INTELLIGENCE AND
DETERMINATION EARNED HER RESPECT
AND ADMIRATION THROUGHOUT THE
LEGAL WORLD AND INDEED
THROUGHOUT THE ENTIRE NATION,
WHICH NOW GRIEVES ALONGSIDE WITH
HER FAMILY, FRIENDS AND
COLLEAGUES.
I’D ADD THIS.
APPARENTLY HER FAMILY WAS AROUND
HER AT THE TIME OF HER DEATH.
AND THEN SENATOR McCONNELL SAID
IN THE LAST MID-TERM ELECTION,
AMERICANS ELECTED A REPUBLICAN
SENATE.
WE KEPT OUR PROMISE SINCE 1880s.
NO SENATE HAS CONFIRMED AN
OPPOSITE PARTY PRESIDENT’S
SUPREME COURT NOMINEE IN A
PRESIDENTIAL ELECTION YEAR.
BY CONTRAST, AMERICANS
RE-ELECTED OUR MAJORITY IN 2016
AND EXPANDED IT IN 2018 BECAUSE
WE PLEDGED TO WORK WITH
PRESIDENT TRUMP IN SUPPORT HIS
AGENDA, PARTICULARLY HIS
OUTSTANDING APPOINTMENTS TO THE
FEDERAL JUDICIARY.
ONCE AGAIN, WE WILL KEEP OUR
PROMISE AND THE PRESIDENT’S
NOMINEE WILL RECEIVE A VOTE ON
THE FLOOR OF THE UNITED STATES
SENATE.
WITH THIS BEING THE ELECTION
YEAR, OBVIOUSLY I WOULD ASSUME
TONIGHT PEOPLE MOURNING THE
DEATH OF JUSTICE GINSBERG BY
PROBABLY TUESDAY OF NEXT WEEK,
THE LATEST, THIS BATTLE WILL
BEGIN, JAY SEKULOW.
>> YEAH, NORMALLY, YOU KNOW,
WITHIN 24 HOURS, BUT THIS IS A
DIDN’T YEAR.
SO PROBABLY WILL BE MONDAY.
I THINK WHAT MITCH McCONNELL
SAID IS ACTUALLY WHERE THE
BATTLE WILL BE FOUGHT.
MERRICK GARLAND WAS NOMINATED BY
PRESIDENT OBAMA.
NEVER MADE IT TO THE SENATE
FLOOR.
WHY?
THAT’S WHAT MITCH McCONNELL WAS
TALKING ABOUT.
THAT WILL BE AN ISSUE FOR THE
SENATE TO DECIDE.
WHETHER OR NOT THERE HAVE VOTES
TO HAVE A NOMINEE.
THE PRESIDENT HAS A
CONSTITUTIONAL AUTHORITY OR NOT.
NOBODY QUESTIONS THAT.
IT’S WHETHER THE SENATE WILL
MOVE FORWARD.
LET ME SAY THIS.
I DON’T THINK IT GOES -- SHOULD
NOT GO WITHOUT MENTIONING THAT
JUSTICE GINSBERG THAT FOUGHT
VALIANTLY, I DON’T THINK ANYBODY
CAN DENY THAT.
SHE ASKED ME QUESTIONS ON MAY 12
FROM A HOSPITAL TO SOME OF MY
COLLEAGUES.
SHE WAS OUT OF THE HOSPITAL BY
THE TIME SHE GOT TO MY CASE.
SO SHE WAS FIGHTING UNTIL THE
END HERE.
THAT’S THE TAKE AWAY OF THIS
HISTORIC LIFE.
THE BATTLE WILL BE PITCHED ON
MONDAY.
I DON’T THINK THERE’S A DOUBT
ABOUT IT, THIS IS ONE OF THESE
MOMENTS IN U.S. HISTORY WHERE
YOU’LL BE 5 1/2 WEEKS OUT FROM
AN ELECTION, THE PRESIDENT STILL
SERVES UNTIL THE EX-PRESIDENT IS
SWORN IN.
IF HE WINS RE-ELECTION, IT’S HIS
NOMINEE.
IF HE’S CONFIRMED BEFORE THE
ELECTION, HE’S CONFIRMED AS A
JUSTICE.
THERE’S NO ROLLING THAT BACK.
THAT WILL BE THE JOB MONDAY.
YOU’LL HEAR A LOT ABOUT THAT.
OBVIOUSLY THEY’RE GOING TO DRAW
THIS, WHAT MITCH McCONNELL IS
TALKING ABOUT, THIS PARALLEL TO
MERRICK GARLAND AND WHAT
HAPPENED HERE.
DIFFERENCE IS, YOU DIDN’T HAVE
THE SAME PARTY CONTROLLING THE
PRESIDENCY AND THE SENATE.
THAT IS OF COURSE A SIGNIFICANT
ISSUE.
>> Sean: JAY, JUST AS A SIDE
NOTE, A DEAR FRIEND FOR SO LONG,
MY OWN PERSONAL ATTORNEY, HOW
MANY TIMES HAVE YOU ARGUED
BEFORE THE COURT?
>> 13 TIMES.
I WAS CALCULATING.
ALL BUT ONE SHE WAS ON.
MAYBE TWO.
>> Sean: HOW MANY CASES WERE YOU
INVOLVED?
OVER 20, RIGHT?
>> YEAH, ABOUT 23.
A LOT OF CASES GET --
>> Sean: HOW MANY DID YOU WIN,
JAY?
>> ABOUT 90%.
JUSTICE GINSBERG RULED WITH ME
60% OF THE TIME.
IF IT WAS BASEBALL, I’D BE
BADDING .600.
SHE WAS A TOUGH, TOUGH JUSTITICE
ON QUESTIONING.
SHE WAS JUST -- BY THE WAY,
THERE’S NO DOUBT WHY JUSTICE
SCALIA WERE SO CLOSE.
THAT WRITE SIMILAR
PERSONALITIES.
BOTH ASKED BRILLIANT QUESTIONS
AND NOT -- THEY DIDN’T WANT --
THERE WAS NO ANSWER IN FRONT OF
JUSTICE GINSBERG OR JUSTICE
SCALIA THAT WAS THIS -- I DON’T
KNOW.
IT WAS YES OR NO AND EXPLAIN
YOURSELF.
THERE WAS NEVER I DON’T KNOW.
THAT IS ONE THING THAT YOU
LEARNED PRACTICING IN FRONT OF
THEM.
THIS IS GOING TO BE A BIG BATTLE
COME MONDAY.
RIGHT NOW YOU HONOR THE MEMORY.
MONDAY IS WHEN THE ATTENTION
TURNS TO THE NOMINEE AND IF
THERE’S A NOMINEE AND HOW THAT
MOVES FORWARD AND THAT’S THE
PRESIDENT’S DETERMINATION UNDER
THE CONSTITUTION.
>> Sean: WE ASKED SHANNON BREAM
ABOUT THIS RELATIONSHIP.
IT WAS SUCH A JUDICIAL
PHILOSOPHICAL DIVIDE BUST
JUSTICE SCALIA AND JUSTICE
THOMAS HAD COURT YEAH
RELATIONSHIPS WITH JUSTICE
GINSBERG.
IDEALOGICAL OPPOSITES IN TERMS
OF THE COURT.
BY THE WAY, DID YOU SAY THAT SHE
RULED WITH YOU 40% OF THE TIME?
A GOOD BATTING AVERAGE.
>> IT WAS -- I DON’T THINK IT
ENDED UP 67%.
SOMEWHERE ALONG THE WAY, 67%.
I THINK --
>> I AGREE.
>> MAYBE LESS THAN THAT.
>> Sean: THOSE THAT NEVER HEARD
ORAL ARGUMENTS AND ALWAYS THE
QUESTION OF WHETHER OR NOT WE
SHOULD HAVE CAMERAS IN THE
COURT, JUST LISTENING IS
PHENOMENAL.
THE WAY THE JUSTICES HAVE THE
UNIQUE STYLE, I MEAN, JUSTICE
SCALIA, YOU GET TWO WORDS OUT,
HE’S THROWING QUESTIONS AT YOU.
VERY QUIET.
TAKES IN.
>> BECAUSE OF COVID, WE HAD THE
ARGUE THE CASES BY TELEPHONE.
I HAD A PODIUM.
I STOOD UP, WORE A SUIT.
WE CALLED THE CASE AND WE
PRESENTED THE ARGUMENT.
THEY DID IT IN A DIFFERENT WAY.
TWO MINUTES UNINTERRUPTED.
I DON’T THINK I WENT 37 SECONDS
UNDER INTERRUPTED BEFORE COVID.
EACH JUSTICE COULD ASK A COUPLE
OF QUESTIONS.
LET ME TELL YOU THIS STORY.
THEY BASICALLY GOT TWO QUESTIONS
EACH.
JUSTICE GINSBERG ASKED ME ONE.
I ANSWERED IT.
SHE ASKED ME TWO.
I ANSWERED IT.
SHE WAS STARTING ANOTHER
QUESTION.
THE CHIEF JUSTICE CAME IN, GOING
TO THE NEXT JUSTICE.
SHE TALKED OVER THEM.
YOU’RE REALLY NOT SUPPOSED TO
RESPOND UNLESS THE CHIEF JUSTICE
GIVES YOU PERMISSION.
I ANSWERED THE QUESTION ANYWAYS.
I FIGURED SHE WAS IN A HOSPITAL
BEFORE ANSWERING QUESTIONS, THIS
JUSTICE DESERVES THAT HONOR AND
RESPECT.
I WAS GOING TO ANSWER A
QUESTION.
SHE MIGHT NOT HAVE LIKED MY
ANSWER AND EVIDENTLY NOT BECAUSE