Hugh Hewitt hosts a nationally syndicated radio show and is author of “The Fourth Way: The Conservative Playbook for a Lasting GOP Majority.” Ronald A. Klain served as assistant to President Obama and as an adviser to Hillary Clinton in the 2016 campaign.
Editor’s note: On Tuesday, President Trump announced Neil Gorsuch as his choice for the Supreme Court. Shortly after the announcement, Hugh Hewitt and Ronald Klain exchanged views and predictions about the nomination. The email discussion was moderated by Post deputy editorial page editor Ruth Marcus and has been edited for style and clarity.
Ron Klain: A few opening thoughts. First, the fact that President Trump chose to do something that Presidents Clinton, Bush and Obama did not — announce his Supreme Court pick during prime time — is a reflection of how important this choice was to binding conservatives to the president; his pledge to them to name a very conservative nominee was critical to their rallying behind him given other doubts. And second, that’s just what President Trump did: He nominated the more conservative of the two finalists, and one who is a self-avowed Scalia-style jurist. That will surely cheer conservatives and just as surely rile Democratic opposition.
Hugh Hewitt: Ron is exactly right. The first two weeks have been about the president keeping campaign commitments, and this was the most important commitment of all. Crucially, though, he chose an originalist’s originalist, and there will be few if any dissenters on the right, making this indeed a choice that binds. It is a political masterstroke for President Trump and a huge win for conservatives.
Klain: I agree it was a huge win for conservatives, but it was also the pick (of the final two) that does the most to fire up Democrats in opposition and create a more fierce confirmation battle. Having been inside those battles, it will consume time, capital and attention: It may feel great for conservatives tonight, but there will be some trade-offs — administrations cannot win all fights all the time and be battling on all fronts. Again, I think most conservatives will be just fine with that. There’s nothing they want from President Trump as much as they want their preferred choice on the Supreme Court. But the real question is: What fight that may matter more to President Trump does he lose because he and his team become consumed on this? I don’t know; too early to say.
Hewitt: I am agreeing with Ron too much. The left edge of the Senate Democratic caucus will force a fight, but cooler heads within that caucus will speak to the need to keep the possible repair of the filibuster alive. If the Sanders-Warren wing of the party forces [Senate Majority] Leader [Mitch] McConnell to invoke the Reid Rule, the repair of the 60-vote “guardrail” will grow even more remote. Senate Democrats are looking at a steady stream of very conservative judges made possible by Sen. Reid’s rush to pack the D.C. Circuit and may see merit in beginning truce talks now, leading perhaps to a rebuilt power of the minority to block some appointments in the future.
Klain: Hugh raises an interesting point — and what will probably be the most dramatic point — about the filibuster and this nomination. In a few days, or a few hours, this nomination will be drained of suspense, except for that issue: Republicans will quickly issue statements of support; Democrats will make plain their opposition, and so, we are down to: Will there be a filibuster, and how will that filibuster end?
I think it is inevitable that there will be a filibuster. After all, it takes only one senator to launch a filibuster and a handful to keep it going — and I will be shocked if many Senate Democrats don’t choose that path. So once that happens, there are only four possible outcomes: enough Democrats defect to break the filibuster, Republicans allow the nomination to die due to the filibuster, Republicans vote to terminate the filibuster, or Republicans don’t have enough votes in their own caucus to eliminate the right to filibuster. That drama — that question — is what is going to be front and center, very soon.
Hewitt: I am sure we will all be reading at least selections from his decade on the bench and his book, and my guess is that opponents will home in on his votes for religious freedom over reproductive rights in the Hobby Lobby and Little Sisters cases. But I agree with Ron that this is already a mostly played-out drama. There are six Democrats I have seen declare they believe in hearings and an up-or-down vote. Two more and it’s academic, as all Republicans will support him. I think when it comes down to it, the Democrats play the longer game and allow him to take the seat and try to patch the filibuster back together by punting now and dealing with a more-than-willing Leader McConnell to get 60 back into the Senate rules . . . or at least some revised but enduring set of minority-party rights when it comes to nominees. The backroom story will be fascinating, and I don’t doubt we will find out about it in due time.
Klain: I agree with Hugh that the backroom story here — how this goes down in the Senate — will be fascinating. We really could be in Allen Drury territory.
I disagree that the Republicans have the votes, and I really don’t think it matters if two, four or six Democrats have already called for an up-or-down vote. Our party, our activist base, is getting more angry, more determined every day. We are seeing this in Cabinet confirmations hour-by-hour. Senate Democrats who were considering voting for Trump nominees are defecting. I lived through Bush v. Gore (to say the least), and the call from Democratic voters to Democratic leaders to wage a fierce fight against the new president is 10 times more intense than that was. And again, the president throws new logs on that fire every day. I think the dynamic is changing here, right before our eyes.
Ruth Marcus: Hugh, do you have any doubts about McConnell’s willingness to deploy the nuclear option?
Hewitt: No. Both Sens. [John] Cornyn and [John] Thune — the GOP whip and conference chair — have already told me on air that “the nominee will be confirmed.” Allowing a filibuster to succeed after Sen. Reid’s destruction of the filibuster would doom the GOP Senate majority, even in a year like 2018 when the Democrats are defending 25 seats and the GOP eight. [McConnell] will wait upon events, but he will do what he has to do when he has to do it. I think he likes being leader and the Senate GOP likes him being leader and they all like being in the majority. There isn’t any way Democrats stop this, but if they try, they make the next court nominee even easier to confirm. So there is a side of me — suspicious of the extra-constitutional filibuster for decades — that hopes [Sen. Chuck] Schumer will try.
Klain: As for Hugh’s report on what Sens. Cornyn and Thune said, well, what else would they say? The best play in this situation would be to declare victory, and then see what happens. What is true is that, unfortunately from my perspective, the Republicans have many more paths to victory than the Democrats: They may draw away enough Democrats to break a filibuster; they may change the rules to eliminate it. But — and I think this is a bigger but than Hugh suggests — there are a lot of Republican senators who are not going to be blasé about ending the filibuster in Supreme Court nominations. Someday, there will be a Democratic president and a Democratic Senate again; perhaps even in 2021. And if it takes only 51 votes to put someone on the Supreme Court? Well, that would be very interesting.
Marcus: So Ron, to you again, if you were still working for Democrats on the Judiciary Committee, what would you be advising or doing?
Klain: First, I think it is in their interest to approach the Gorsuch nomination on the merits — and not look like they are seeking revenge for Judge [Merrick] Garland. They are understandably angry about what happened to Judge Garland, but I think their strongest case is by taking on this nomination on its own merits. And in that regard, I think the case begins with making it clear that Judge Gorsuch is much more like Justice [Antonin] Scalia, whom he lauded tonight, and not like Justice [Anthony] Kennedy, for whom he clerked. That’s important for two reasons: First, it places Gorsuch in a clear place on the ideological spectrum. And second, the real battle-for-the-future-of-the-court comes with the NEXT nomination, which will shift the court’s balance: and it is in Justice Kennedy’s hands to decide if that nomination is given to President Trump. So putting distance between Gorsuch and Kennedy is key.
Marcus: Both of you think the critical question is the impact of this nomination and fight on Justice Kennedy. So what will the impact of this choice be on him?
Hewitt: Justice Kennedy must be extremely proud that the president has selected one of his own clerks to take the seat previously held by his longtime colleague. It must be reassuring. Justice Kennedy’s decisions on marriage and sexual orientation are secure if one reads the chief justice’s concurrence in Citizens United, but Justice Kennedy’s grand legacy on federalism is not unless a Republican president picks his replacement. Unless he wants to work for another eight to 12 or 16 years, his retirement this summer would be timely, and the selection of Judge Gorsuch makes it more likely than it was yesterday.
Klain: I disagree with Hugh on Justice Kennedy’s reaction to this — or at least, I’m not sure he is right. I’m sure Justice Kennedy is proud to have a former clerk nominated, but it is a former clerk who has styled his jurisprudence after Justice Scalia (someone who was brutal to Kennedy in opinions), not Justice Kennedy. And I don’t think Justice Kennedy is going to be comfortable with the most critical aspect of his judicial philosophy — the dignity of persons in cases like reproductive rights, marriage equality and other personal liberty matters — being left with John Roberts as the deciding vote. Finally, I do think that if the Senate Republicans strip the filibuster right, that will deter Kennedy from retiring, because he will see how the decks are being cleared for an even more conservative pick next time: After [Sandra Day] O’Connor came Scalia, after [David] Souter came [Clarence] Thomas. After Gorsuch?
Marcus: You know it’s interesting. I speed-read some parts of Gorsuch’s book, and he doesn’t seem like too big a fan of Kennedy’s loosey-goosey “dignity” jurisprudence. I wonder how that will play. Alternatively, can opponents make something of Gorsuch’s views on Chevron deference and willingness to overrule agency interpretations? Argue this makes him even more conservative than Scalia?
Hewitt: I don’t think Judge Gorsuch can be “more conservative” than Scalia to the grass-roots on the right, but in fact Judge Gorsuch may be more inclined to protect religious liberty than Justice Scalia was in Employment Division v. Smith (1990). And you can’t be “more free speech” than Justice Kennedy, or “more 10th Amendment” than Justice Kennedy. Justice Kennedy’s legacy on marriage is quite secure — I don’t think there are many who would disagree with the conclusion that Obergefell is not a candidate for reversal, but Justice Kennedy’s opinions on the importance of structural federalism are very much at risk if one of the five seats supporting, say, Printz or Lopez or Morrison flips to Justice [Stephen] Breyer’s view of the world. Justice Kennedy’s jurisprudence becomes the defining measure of the last 30 years if his federalism and sexual orientation case law stands up — both strands — and that only happens if the five center-right to right seats stay that way.
Klain: Two things on this. First, I’m really, really, really skeptical that a public debate on Chevron deference is going to resonate with anyone other than about 100 lawyers in Washington, D.C. And second, the politics of Chevron deference are about to change. With Trump running the agencies, liberals are going to be much less interested in having the courts defer to agency rulings, and the most conservative lawyers may discover a newfound love for deference. So, we’ll have to see how that plays out.
Marcus: Too bad. After we had a debate about the meaning of natural law for Justice Thomas, I was hoping for a big wonkfest. Because that’s the part of the Thomas hearings everybody remembers.
Hewitt: Heh. Okay, I have to get ready for a 6 a.m. show, so let me close with a salute to you both and a final agreement with Ron: No matter how much I care about Chevron deference, I am never going to open an hour of talk radio with it as the lead story! The other as-yet-undiscussed story line: What will Justice Gorsuch do with any overreaches by President Trump? My guess: Strike them down. Thank you both.