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Author David Kaplan On The Political Fight For RBG's Seat

MICHEL MARTIN, HOST:

As the country mourns the death of Justice Ruth Bader Ginsburg, Washington is preparing for an epic battle to fill her now-vacant seat. So we're going to spend the next part of our program thinking about what that might look like. And we're going to begin with David Kaplan. He spent years covering the Supreme Court as a legal affairs editor for Newsweek. His most recent book is "The Most Dangerous Branch: Inside The Supreme Court In The Age Of Trump." And David Kaplan is with us now. Thank you so much for joining us once again.

DAVID KAPLAN: Good to be with you again.

MARTIN: So one of the revelations of your book, frankly, is that justices are not immune from political calculations about their seats. You said that that was true of the first woman on the court, Sandra Day O'Connor, who thought a lot about that. So we've reported that one of Justice Ginsburg's final wishes is that her replacement not be named until there is a new president. Now, the late justice could have stepped down when Obama was president and the Democrats controlled the Senate. Should she have? Do you think she considered doing so? And why do you think she didn't?

KAPLAN: She says she did not consider doing so. And I think she didn't for two reasons. One, as she's pointed out, there was no guarantee that a replacement ever would've been confirmed. God knows we certainly saw that play out with Merrick Garland in 2016. The second reason is it's a great gig. Most justices don't want to give it up. And the average tenure of recent justices has been close to 30 years.

MARTIN: So let's turn to the political fight ahead. And as, of course, you certainly know, in 2016, after the death of Justice Antonin Scalia, Senator Mitch McConnell made it a point to stall the nomination process until after the presidential election. Now he's reversed course, saying the process will move forward. We've heard from two senators so far, saying that they don't think that that's fair and that they will follow the precedent and not vote to move ahead. That's Lisa Murkowski and Susan Collins. But what about the rest of the Senate? What about the rest of the Republicans in the Senate, I should say?

KAPLAN: Well, they're going to need four opponents. Democrats are going to need four Republicans to come forward and stick with that idea that not only will we not have a vote before Election Day, we won't have one until a new president's inaugurated in January. Obviously, Mitt Romney is going to be key. And then you've got to look to someone like Cory Gardner in Colorado. He has to make the calculation. I'm in a close race. Am I going to do better by tacking toward the Senate or appealing to the hard right? But I think Romney will be very important. If you get to three votes, then there's a certain amount of hydraulic pressure on potential fourths. But if I were in the prediction business, I would think the desire to get another conservative on the bench and put Roe v. Wade and perhaps Obamacare in real jeopardy is just too tempting.

MARTIN: And, of course, Republicans have been successful at making the Supreme Court a voting issue during presidential elections. According to The Washington Post, about a quarter of Trump voters in 2016 said that the Supreme Court was the most important factor in voting for him. And that compares to 18% of Democrats who said it was the most important factor. So, clearly, there sort of was a gap there. Do you think that there will be a similar dynamic this year, or is it different? I mean, could it potentially work both ways? Could it galvanize Democrats as well this year?

KAPLAN: It could, but Republicans have surely demonstrated they're galvanizable on this issue. And every day spent over the next six weeks discussing the Supreme Court appointment is a boon for Trump 'cause that means it's a day not spent discussing COVID.

MARTIN: And, of course, President Trump released a long list of nominees for the Supreme Court as part of this campaign like he did last election. And he recently sort of amplified that list. Now, you've covered the federal courts for years. Do any names in the list stick out to you? And does - do you see the list, and does the list tell you anything about the direction he may go in in picking a nominee?

KAPLAN: I - predictions are always risky. I got Brett Kavanaugh right. I got prior ones not right. But Amy Coney Barrett, a former Notre Dame professor now on the 7th Circuit in the Midwest, sure looks like the obvious candidate. She was one of the finalists for the seat that Kavanaugh got, maybe Joan Larsen, also on the federal appellate bench. But if I had five bucks to place on a nominee, it would be Amy Coney Barrett, 48, a darling of the right wing, former Scalia clerk. You could come up with cases for other names, including some of the men, but that's where I'd be putting my money.

MARTIN: And you made a point of emphasizing she's 48. Why does that matter?

KAPLAN: Younger is better. I mean, if Trump thought he had - if Trump thought he could put someone on the court who was 38, if there was a viable nominee, he would. But 48's pretty young. It would be younger than Kavanaugh was and younger than Gorsuch. It would be the youngest nominee on the court since Clarence Thomas was nominated 30 years ago, when he was in his early 40s. Justices stick around a long time.

MARTIN: Because the impact is longer. Yeah, they stick around a long time, and the impact is that much greater and longer. So before we let you go, a new term - a new Supreme Court term begins on October 5. And, as always, it's expected that there will be, you know, hot-button polarizing issues that come before the justices. Since it's an election, there's a number of last-minute election law matters that the justice will have to hear. How will the fact that there are only eight justices affect how the court conducts its business in such a delicate time?

KAPLAN: Well, there aren't likely to be any big-time rulings coming out before Election Day. But there will be - potentially, in a close election - the worst case, a repeat of Bush v. Gore and not in one state but in many states. And a 4-4 court presents a potential problem because if they tie 4-4, there is no decision. Whatever decision was reached by a lower court stands. And that is an idea. Now, listen, I argue in my book that Bush v. Gore was the worst decision of the court since Dred Scott, and the Supreme Court shouldn't have gotten involved. And I'd still make the case that the Supreme Court should not get involved in most issues in a presidential election. But if they do get involved and it's a 4-4 outcome, it's going to be very unappealing, no pun intended, for everybody.

MARTIN: That is David Kaplan, former legal affairs editor for Newsweek and the author of "The Most Dangerous Branch: Inside The Supreme Court In The Age Of Trump." David Kaplan, thank you so much for joining us once again.

KAPLAN: Pleasure, thank you. Transcript provided by NPR, Copyright NPR.