alternet--2020-10-11--'Railroading of the American people': Inside right-wing activists' effort to install Trump's Supreme

'Railroading of the American people': Inside right-wing activists' effort to install Trump's Supreme Court pick

Welcome to Moyers on Democracy .
Lisa Graves returns to discuss President Trump 's nomination of Amy Coney Barrett to succeed the late Ruth Bader Ginsburg on the Supreme Court .
A trained lawyer , Ms. Graves is one of the nation 's foremost experts on judicial appointments .
She served as chief counsel for nominations for the U.S. Senate Judiciary Committee and as a career deputy to two attorneys general , one a Democrat , the other a Republican .
She has spent the past ten years investigating the impact of dark money on judicial selection , public policy @ @ @ @ @ @ @ Executive Director of True North Research , a nonprofit watchdog group focused on legal policy and ethics in federal and state government .
Here to talk with Lisa Graves is Bill Moyers .
BILL MOYERS : Thank you , Lisa , for taking my call .
LISA GRAVES : My pleasure , Bill .
Thank you so much for calling me .
BILL MOYERS : What exactly does it mean to be the chief counsel to the U.S. Senate Judiciary Committee for nominations of federal judges ?
LISA GRAVES : My job was @ @ @ @ @ @ @ U.S. Attorney nominees that were being put forward by President George W. Bush in his first term in office .
My job was to review their background , review any information available about them , and make recommendations about whether they were people who had the demeanor and the temperament and the record of fairness to become a federal judge for a lifetime position on our federal courts .
BILL MOYERS : And you also served as deputy assistant attorney general under two attorneys general , one a Republican , the other a @ @ @ @ @ @ @ correct .
I was a career deputy assistant attorney general at the U.S. Department of Justice under both Ms. Reno and Mr. Ashcroft .
And for the first part of 2001 , my job was to aid in the orderly transition of government and to advise Mr. Ashcroft in particular on judicial nominations on a relationship with the federal judiciary and the state judiciary .
BILL MOYERS : You know the nominating process inside and out , right ?
`` I personally think it 's important to talk to the American people about @ @ @ @ @ @ @ I think that that case needs to be made not just to not fight about the courts but to basically tell the American people quite plainly how important the courts are . ''
LISA GRAVES : I do .
I both worked in it for several years and have been a student of it for many years before that .
BILL MOYERS : What do you think of how President Trump and the Republican leader of the Senate , Mitch McConnell , are doing in rushing Amy Coney Barrett 's nomination through the @ @ @ @ @ @ @ if not days ?
LISA GRAVES : I think what 's happening with the Senate and with this White House in terms of the Supreme Court is profoundly illegitimate for a number of reasons .
First , the election is literally weeks away and this president has said expressly that he wants someone confirmed so that he can have a vote on that court to win the litigation that he and his team are planning to bring to that court .
That 's just profoundly illegitimate .
It 's also the case that @ @ @ @ @ @ @ doing enormous fundraising to try to use this nomination to an independent branch of our government in order to advance his own partisan political interests and try to push Amy Barrett onto the court really for the next 30 or 40 years .
So , no matter what happens in terms of his election , Trump 's election , if they 're successful , he will have placed three people on the Supreme Court , two of them basically due to vacancies during election years .
And as you know , the other @ @ @ @ @ @ @ extraordinary hypocrisy of Mitch McConnell , of Senator Lindsey Graham , of other senators who stalled a nomination by President Obama for months .
Justice Scalia passed away in February of 2016 .
And the Republicans refused to allow Judge Merrick Garland a hearing , for months , even though Judge Garland had been on the bench in the D.C. circuit for many years and was well-regarded as a fair judge .
Here you have a nomination that 's only been vacant for a week or so , and a rush to push @ @ @ @ @ @ @ to put someone on the court who I think does have a troubling record .
BILL MOYERS : But the Constitution is silent on the issue of when a president who has the power and responsibility of appointing Supreme Court justices should make that appointment .
I mean , the fact that it 's near an election is a coincidence .
So , what makes this illegitimate ?
LISA GRAVES : Well , it 's certainly the case that the Constitution provides for the power of the president to propose a nomination .
@ @ @ @ @ @ @ on it .
But the fact is that historically , it has been the case that the Congress has been reluctant to approve nominations in election years , in part because the notion is that the American people are about to decide the course of the nation .
Back in 2016 that Supreme Court seat of Justice Scalia 's sat vacant for basically almost an entire year .
There was no crisis on the court as a result of that vacancy .
And the Republicans expressed no urgency to move a nomination forward @ @ @ @ @ @ @ , you have a case where , unlike back in 2016 where you had a president who was elected twice to the presidency , here you have someone who won the election in 2016 without the popular vote .
You have a president who 's been impeached by the House of Representatives .
I understand that this Senate did not vote to actually remove him from office .
But you have serious allegations that face this president on both foreign and domestic issues about his fitness to be the president of the United @ @ @ @ @ @ @ people will be facing in these coming weeks .
And this is no time to rush through an irrevocable decision on the part of this president to put someone on the Supreme Court who is in her late 40s .
And she 's been a judge for a very short period of time .
I think that there are a lot of troubling components to the nominations process as it 's unfolded over these many years .
At the beginning of our nation 's history , people served on the court only ten @ @ @ @ @ @ @ span of people back then .
And also , the notion that people needed to have a really long and established career to have that role .
Now you have people who are being appointed and they 're serving not just for a decade or two but for generations .
In my lifetime , for the last 52 years , there have been 19 people appointed to the United States Supreme Court .
Fifteen of those nominations have been made by Republican presidents and confirmed .
Only four of the confirmed justices who @ @ @ @ @ @ @ appointed by Democrats .
And so , at one point last week , Senator Mitt Romney said , you 've got to get over the idea of there being a liberal Supreme Court .
And I thought , `` What liberal Supreme Court ? ''
We have a court that 's been dominated by one party through these appointments .
The Republicans have chosen very young people for those positions .
And , in fact , that was the plan of the Republican appointment of Justice Thomas , who was in his early @ @ @ @ @ @ @ .
He 's now in his early 70s .
BILL MOYERS : The Republicans have long treated control of the Supreme Court as a very important political issue .
Electoral issue .
Election issue .
The Democrats have not .
The Republicans have outsmarted the Democrats on the evaluation they place on the political aspects of the Supreme Court .
LISA GRAVES : It is the case that the Republicans have really politicized the courts in that way , while they claim that the Democrats have .
The court that they complained so @ @ @ @ @ @ @ about , was the Warren court .
That was led by Chief Justice Earl Warren .
And that court in my view , really did a tremendously valuable job for the country , because what it actually did was to read the Constitution to apply its terms to ordinary people .
So equal protection of the law— BILL MOYERS : What do you mean ?
LISA GRAVES : Using that phrase in our 14th Amendment that people will not be denied equal protection to ensure that Americans could not be segregated in our @ @ @ @ @ @ @ attacked vociferously on the right as an inappropriate and outrageous decision .
It was following the plain language of the Constitution .
The Warren Court ruled that when the Constitution says you have a right to counsel in the case of Gideon v. Wainwright , that you actually have a right to counsel .
And so , there were a number of decisions in the '50s and '60s that the right wing , they called themselves conservatives or libertarians , opposed .
And in the aftermath of those decisions the Republicans really began @ @ @ @ @ @ @ of supposed law and order .
Part of that law and order campaign was about the courts and trying to pack the courts with people who he thought would reverse those rulings that gave meaning to people 's rights that were listed and written in the Constitution .
And then Ronald Reagan went a measure further .
He decided to say that he , through his attorney general Edwin Meese , at the time , was going to have a litmus test about abortion , that he would only appoint someone to the @ @ @ @ @ @ @ Wade .
With Reagan , there was a specific determination , to appoint people basically pretty far to the right at the time .
They did manage to get Justice Scalia on the court , and they did manage to put William Rehnquist [ as Chief Justice ] on the court , who 'd been an advisor to President Nixon .
And then it was 12 years of real court packing by Ronald Reagan and George Herbert Walker Bush .
And when Clinton came into office in the early 1990s the path he @ @ @ @ @ @ @ test was wrong and that we needed fair judges .
And so , the effort was articulated as trying to put people of moderation on the court .
I personally think it 's important to talk to the American people about the courts and what 's at stake .
And talk about how people are being put on the courts by the right , by the Republicans , in order to overturn precedent .
In order to overturn our rights .
I think that that case needs to be made not just to @ @ @ @ @ @ @ basically tell the American people quite plainly how important the courts are .
And this movement that 's underway to overturn those rights .
I would say to you one of the things that came out in an investigation by THE WASHINGTON POST last May by Robert O'Harrow and Shawn Boburg was that Leonard Leo , who 's been working on helping to pack the courts for , almost two decades or more now— BILL MOYERS : Leonard Leo , tell me who he is .
LISA GRAVES : Leonard Leo , for @ @ @ @ @ @ @ of the Federalist Society .
And he is still an advisor to the Federalist Society .
He has been the architect for the last few decades of this long-term effort to put far right judges on the Supreme Court and the federal courts and other courts in order to change the law by changing what decisions are being issued by those very judges .
And he has created basically a big dark money operation that THE WASHINGTON POST tallied at more than $ 250 million to influence who gets installed on the Supreme @ @ @ @ @ @ @ chosen from his own lists .
And they are having an utterly disproportionate influence on who gets confirmed to the U.S. Supreme Court .
Leonard Leo gave a speech last year to a group called the Council for National Policy , which is made up of fundraisers on the far right .
People who are funding this effort to capture our courts , as Sheldon Whitehouse has described it .
And in that speech , he said that we , America , and the people in that room , were standing on the @ @ @ @ @ @ @ of what he described as the quote , `` Structural Constitution , '' that would roll back 100 years of precedents in America .
And that the appointments that Trump was making were in design to do just that , to remove the rights of people to organize in labor unions .
The rights of people to petition their government for social security and programs that help protect us from the extremes of our economy .
To protect our lives .
Efforts to protect our environment and protect us from pollution from corporations @ @ @ @ @ @ @ That was really a shocking speech about the level of judicial activism that the right wing is pushing .
And this new nomination by President Trump of Amy Coney Barrett is in that mold to try to use the courts to reverse Americans ' rights .
BILL MOYERS : We learned after Brett Kavanaugh 's confirmation that some very rich people had put up millions of dollars to quote , `` Sell '' his nomination to the public .
Will those people do the same thing for the Barrett nomination ?
LISA GRAVES @ @ @ @ @ @ @ One of the main groups that Leonard Leo has helped to orchestrate is called the Judicial Crisis Network , JCN .
And it 's already running ads in swing states , states where senators are facing close election to try to promote this judge .
And Leonard Leo is the one who 's helping to orchestrate for the campaign to use dark money to put these judges in position to rule on our rights and to remove our rights .
I know there are groups on the right and left who spend money @ @ @ @ @ @ @ really extraordinary , because you have unknown billionaires or multi-millionaires who are secretly giving to a group that gives to a group .
During Kavanaugh , it was the Wellspring Committee giving to Judicial Crisis Network .
BILL MOYERS : Who 's in this Judicial Network you 're talking about ?
Can you name some names ?
Organizations ?
Individuals ?
And where 's the money coming from ?
`` If this court rules that our federal government can not pass measures to regulate carbon , it 's an existential consequence of who @ @ @ @ @ @ @ And we know that people like Charles Koch have been spending big money to try to capture the courts because he wants to have people on the court who will limit our ability to regulate corporations . ''
LISA GRAVES : Yes .
So , the Judicial Crisis Network is formally led by Carrie Severino , along with the assistance of Gary Marx , a longtime political ally , of Leonard Leo .
Leonard Leo is the former vice president of the Federalist Society .
And he now leads a dark money network @ @ @ @ @ @ @ Mueller .
He and Leo have a group called CRC Advisors that is devoted to capturing both the U.S. Supreme Court and federal courts , as well as state Supreme Courts .
Carrie Severino 's a former clerk of Justice Thomas .
And Gary Marx is someone who has been working on judicial nominations with Leo really for the last two decades through all the fights to try to pack the courts .
Their funders are unknown .
We do know that there was one huge donation to the Wellspring Committee .
That @ @ @ @ @ @ @ Judicial Crisis Network .
Judicial Crisis Network spent some of that money and then gave some money to other groups in the network , like the so-called Independent Women 's Forum that was created back around the Clarence Thomas nomination .
That 's where they got their start was in judicial nominations .
But who is that original donor ?
We do n't know .
There 's no disclosure of who that one donor was who spent these millions and millions of dollars to capture the court .
Who was that ?
Who @ @ @ @ @ @ @ people ?
And they were boasting about how successful their efforts were in trying to rally their base , the base of Republicans , to try to come out in the 2018 election .
That fight over Brett Kavanaugh actually had the effect of bringing a lot of people out who were progressives and moderates who thought we should n't have someone like Brett Kavanaugh on the Supreme Court .
But to JCN and the Independent Women 's Forum and their network , they believe judicial nominations help motivate the base because even @ @ @ @ @ @ @ the public that this person is a rule of law judge or a law and order judge or a judge who 's going to follow precedent– now they 're calling Amy Coney Barrett a so-called Constitutionalist , or original interpretivist in the mold of Justice Scalia .
These are all just catchphrases that they try to use .
They 're not appointing her because they think she 'll be fair .
She 's been chosen because they are convinced she will be unfair .
They are convinced that she will decide in their @ @ @ @ @ @ @ a host of issues .
That 's why they 're investing .
They 're not investing to get a fair judge .
If you are trying to appoint a fair judiciary you may not put a lot of political capital in that because it 's not seen as a political appointment .
Instead , if one party is trying the pack the courts and seize the courts as pawns in their political war .
And so , they 're willing to invest enormous funds in order to get those people in place so @ @ @ @ @ @ @ advance the agenda of those people who are funding it .
On the left or in the middle what you have is a subset of people who believe courts should be fair and they should n't be political partisans .
And so , you 're not going to spend political capital to talk about that very much or to make your case .
Because they 're not seen as partisan .
And then you have some progressives who have said , `` No . ''
You 've got to stand up to what @ @ @ @ @ @ @ capture and takeover and it 's going to undermine our ability to do almost anything a modern society would do .
For example , undermine our ability to have rules that try to mitigate climate change .
If this court rules that our federal government can not pass measures to regulate carbon , it 's an existential consequence of who 's being put on the court .
And we know that people like Charles Koch have been spending big money to try to capture the courts because he wants to have people on @ @ @ @ @ @ @ to regulate corporations .
And we know that Leonard Leo and Carrie Severino and their team are trying to put people on the court for that reason , as well as to limit women 's reproductive rights , and more .
And so , you have this confluence on the right where they are choosing people and trying to put them in place because they do n't think they 'll be fair .
Because they 're convinced that they will rule in their favor , which is the opposite of what you expect @ @ @ @ @ @ @ and impartial .
`` They 're not appointing her because they think she 'll be fair .
She 's been chosen because they are convinced she will be unfair .
They are convinced that she will decide in their favor to overturn people 's rights on a host of issues . ''
BILL MOYERS : Let me read you what Josh Marshall wrote about this .
He 's founder and editor in chief of TalkingPointsMemo.com and a terrific journalistic watchdog when it comes to the judiciary .
He says , and I 'm @ @ @ @ @ @ @ a lot about Amy Coney Barrett .
But I know she 's accepting the nomination from a president actively trying to subvert a national election and threatening to hold onto power by force , an attack on the Constitution unparalleled in American history .
Do I need to know more ? ''
LISA GRAVES : I think he 's exactly right .
It would be an honor to be nominated to be a Supreme Court justice , but under these circumstances , I think it reveals a lack of devotion to the Constitution @ @ @ @ @ @ @ 's unfolding .
Where you have a president who has said expressly that he wants you on the court in order to rule in his favor in this election to keep him in power , a president who has said expressly that if they can stop the ballots , there we be will be no transition .
It will just be a continuation of his power .
When you have a president that has made lie after lie about some sort of massive voter fraud in America , when in fact , the @ @ @ @ @ @ @ not the case .
So , you have someone who 's willing to take that nomination , take that baton from this president , I think that is damning in its own way .
BILL MOYERS : Is it possible , Lisa , that she does n't know that the fix is in and that she 's the fix ?
LISA GRAVES : Anything is possible .
I do n't think it 's probable .
And the reason I do n't think it 's probable is because if you look at her decisions @ @ @ @ @ @ @ time that she 's been a judge , as well as her actions before then , you can see someone who has a very agenda-driven view of the law .
One in which she has expressly articulated that she does n't feel bound by precedent .
She does n't believe the Constitution requires judges to follow precedent .
In fact , she thinks it does not require judges to follow precedent , which is the definition of being an activist , that you 're someone who wants to impose your own views of @ @ @ @ @ @ @ that people are relying on in this country .
I do n't think that she is unwitting .
In this circumstance , you have this election that is happening as we speak , and litigation around that election that is happening as we speak , and a president who has said quite clearly , he 's going to use the courts to try to win a victory in this election no matter what the ballots say , and to try to stop them from being counted .
And you have an attorney general @ @ @ @ @ @ @ time and again that he 's more the president 's lawyer than acting in the office of the attorney general , though he 's using the office of the attorney general of the United States , advancing the partisan interests of this president and the lies of this president around voting .
And has indicated that he 's going to aid in those claims by this president .
And now you have a judicial nominee who has willingly stepped into this role of potentially being a deciding vote on the Supreme Court in @ @ @ @ @ @ @ this election .
And I certainly hope , if she has a hearing , which is slated this month , that she will commit unequivocally to recuse from any such litigation .
I do n't believe she will , though .
I do n't believe she 'll commit to recuse to anything .
BILL MOYERS : Are you suggesting that she is fully aware that she is also a political operative and a political force in this scenario you just outlined ?
LISA GRAVES : I believe that she is .
There 's @ @ @ @ @ @ @ There are a lot of smart people out there .
They 're not all fair .
There 're a lot of people who are more advocates than judges .
I think when you look at Amy Coney Barrett 's record , what you see is someone who has been groomed for this position .
She clerked for one of the very sort of activist right-wing judges on the D.C. circuit .
She then clerked for Justice Scalia , who often wrote his opinions more like he was writing an op-ed column than writing @ @ @ @ @ @ @ Court .
He was determined to move the law , to change the law , to advance his original point of view , although he cloaked it in originalism but it really managed to be miraculously aligned , for the most part , with his personal views .
And she 's also been someone who 's been an activist in attacking the Affordable Care Act .
She has written and spoken about a lot of these issues in ways that show that she has a very specific point of view .
And I @ @ @ @ @ @ @ the bench long enough to know that she can actually set aside her personal views .
In fact , I think it seems pretty clear from her decisions , in the brief time she 's been a judge , that she has tried to impose her personal point of view on the law .
I do n't think she 's unwitting in this effort .
I think she is embraced by the Judicial Crisis Network , by the Leonard Leo operation , by the president as someone who they think is a sure @ @ @ @ @ @ @ and for their right-wing agenda .
BILL MOYERS : There 's been a lotta talk about her hardline ideology in the last few days , that she will be opposed to women 's reproductive freedom , to affirmative action , to voting rights for minorities , to environmental regulations .
Even worker safety rules .
What I 've seen of her record suggests also a very strong bias on behalf of corporate power .
The last decision or rule she issued was that workers , gig workers , ca n't file for a @ @ @ @ @ @ @ 's going to be a real blow to workers in what is an expanding gig economy .
LISA GRAVES : I think that decision is very troubling .
Jeffrey Toobin pointed out in his piece about the impact of the Federalist Society on our courts and on our law , that she is straight from that mold set forth by Lewis Powell before he became a Justice of the Supreme Court .
Lewis Powell had been a tobacco lawyer .
Before he really was known widely as a tobacco lawyer , he was @ @ @ @ @ @ @ schools , as it was fighting the efforts of Brown v. Board of Education to get those schools integrated .
So , you have this tobacco lawyer who represents a segregated school district , who is asked by the United States Chamber of Commerce to write a memo about where the law could go .
And he wrote a memo which is known now as the Powell Memo .
And that memo basically said that in his view , no one in America had less influence on policy than business people .
And @ @ @ @ @ @ @ changing the courts and changing the way businesses fund think tanks at the federal and state level .
As well as the way businesses support universities .
And so that Powell blueprint from the early 1970s to really push for courts that were going to be pro-corporation and I think she very clearly represents that perspective .
Her decisions show that she does , but regardless of her background , I think this would be an illegitimate nomination , and illegitimate to proceed .
It 's fundamentally unjust for anyone , no matter @ @ @ @ @ @ @ the court under these circumstances with this election pending .
I think it 's really a disaster for our country , for this nomination to be proceeding .
BILL MOYERS : Do you really think , Lisa , that a Democrat as president would pass up this opportunity to name a Supreme Court justice if he were in the place or she were in the place that Trump is right now ?
LISA GRAVES : Well , I do n't know that a president would not nominate someone under these circumstances .
Although @ @ @ @ @ @ @ usually , like , 30-40 days between a vacancy and a nomination to do an F.B.I .
background investigation , to do a thorough vetting of a candidate before someone is even named .
In this case , it 's super accelerated .
As you said , there 's no Constitutional restriction by time from doing so .
But I do think that the president 's prerogative in naming someone is not the same as that person that getting confirmed , as we 've seen .
The Senate 's role is to thoroughly @ @ @ @ @ @ @ to allow for there to be time for the American people to understand the record of a person who 's being chosen for a lifetime job on the court .
Is this the best person ?
Is this the right person ?
Is this someone who we trust , who we would entrust with our lives , who we believe absolutely without reservation will be fair ?
This process , where the president 's named someone this weekend , the nomination will have arrived in the Senate at the very end of September @ @ @ @ @ @ @ a hearing in two weeks .
That has n't happened in the modern era , someone has received a hearing that quickly .
And that Mitch McConnell has vowed to use the rules of the Senate to try to get a vote before the end of October .
It 's extraordinary .
And it 's a real railroading of not just this nomination but of the American people .
BILL MOYERS : Trump obviously believes that she will be a wedge to help him win a second term .
And that 's the @ @ @ @ @ @ @ never seen a president in my lifetime that has disavowed the results of the election before they 've even happened .
That has basically vowed to try to stop people from voting .
Who 's vowed to unleash tens of thousands of people to go to polling places to try to , in my view , intimidate them .
Is now doing fundraising to enlist a quote army to defend his results in this election .
We 've never been in a circumstance where we have had a president so unmoored from the @ @ @ @ @ @ @ of the Constitution .
And to have that person choosing his own jury in a case that he 's determined to bring to this court is outlandish and outrageous .
BILL MOYERS : Tell me what 's right and what 's wrong about this scenario .
Trump keeps repeating that vote by mail is rife with fraud .
So Republican lawyers will try to get a large number of mailed ballots thrown out after the election as Trump declares himself the winner on the basis of the ballots that had been cast and @ @ @ @ @ @ @ He has refused to commit to leaving office if he loses .
And he will challenge those ballots that have not been counted to try to get them thrown out .
It 's there and on other procedural points that he will need the Supreme Court majority to take his side , including the justice he is putting on the court .
So , is n't he sending a message to the world that he expects the court and its new nominee to rule for him and nail down a second term ?
@ @ @ @ @ @ @ : I believe that 's precisely the strategy .
This president is trying to secure for himself an illegitimate victory in this election .
He has said he is going to win on in-person voting .
And that any ballots that come in or that are counted afterward are somehow illegitimate , that they have to be thrown out .
And he has said , quite clearly , he 's going to take this to the Supreme Court .
The court is actually problematic in a number of ways .
First of all @ @ @ @ @ @ @ who has expressed personal antipathy toward Joe Biden from his time as the chairman of the Senate Judiciary Committee presiding over Thomas ' nomination .
Justice Thomas ' wife has been very active in electoral politics and was active during Bush v. Gore and was on the transition team for George W. Bush .
As that case was coming through the court , she then became part of the transition team for the victor .
You have a Justice of the Supreme Court in John Roberts who advised on the Bush v. Gore @ @ @ @ @ @ @ justice in Justice Kavanaugh who was an attorney on one of the original cases that resulted in the decision in Bush v. Gore .
And now you have a nominee who also worked on the Bush v. Gore case in Amy Coney Barrett .
BILL MOYERS : So if she 's confirmed three members of the nine-member court will have worked to get the Supreme Court to deliver the presidency to George W. Bush .
LISA GRAVES : That 's correct .
One third .
And you would have a court that has @ @ @ @ @ @ @ 's voting rights .
Justice Roberts was part of the decision to really restrict the power of the Voting Rights Act .
So , you already have a court that a reasonable person would question whether that court could or would fairly rule in this election , or whether it would again put its thumb on the scale of justice in favor of the party of the president that nominated them , put them on the bench .
And this president saying that he 's choosing someone specifically to help him win that @ @ @ @ @ @ @ and someone who also participated in the litigation that resulted in that extraordinary decision that installed George W. Bush as president by stopping the counting of ballots .
And once the ballots were counted , the actual count showed that Al Gore would have won the electoral college .
And would have been president but for that intervention by the U.S. Supreme Court .
BILL MOYERS : We 've had two of the last four presidents elected by minority vote .
They got the electoral college , but they lost the popular vote @ @ @ @ @ @ @ Supreme Court justices who perpetuate the pattern .
LISA GRAVES : Yes , it 's very troubling .
John Roberts and Justice Alito arguably might not have been confirmed had Bush not been the incumbent , by virtue of this decision in Bush v. Gore .
Justice Sandra Day O'Connor disavowed and regretted enormously that she had participated in that five/four decision in which the only justices who ruled in favor of Bush were justices appointed by presidents of his political party .
Then you had President Obama who had three vacancies , @ @ @ @ @ @ @ could 've been filled anytime during that entire year .
And there would 've been plenty of time for people to weigh in and express any reservations they had about Merrick Garland .
Almost none were expressed because he 'd been a judge for a long time and had a reputation for being a fair judge .
And that third nomination of President Obama was blocked .
That meant that the Supreme Court was able to have a five/four majority of Republican appointees , rather than a five/four majority of Democratic appointees .
@ @ @ @ @ @ @ justices .
And that 's why , right now , you have a court that is five Republican appointees and three Democratic appointees .
And they 're trying to make it six Republican appointees and three Democratic appointees .
The Republicans have certainly gamed the system and they 're going to come out with a bunch of ads saying how nice Amy Coney Barrett is or how good of a neighbor she is or how nice she is as a colleague or as a teacher .
There are a lot of nice people @ @ @ @ @ @ @ fair people .
That does n't mean they 're people that you would trust to decide impartially in a case involving your rights .
And in fact , everything we know about this process , from President Trump , from Leonard Leo , from the Federalist Society , from the Judicial Crisis Network that 's backing them , is that she 's been chosen with the very hope and belief that she wo n't be fair , that she will rule in their favor .
BILL MOYERS : Her very nomination under these @ @ @ @ @ @ @ shadow on the court 's integrity and on Amy Coney Barrett 's , quite frankly .
You wonder why someone who 's on the record for being a person of faith and a moral person would n't say thank you , Mr. President , but let 's wait a week or two or three and then we 'll both come out better in the judgment of history .
LISA GRAVES : If you are a person who believes in the integrity of the judiciary , in the independence of the judiciary , if @ @ @ @ @ @ @ court 's core power stems from the public esteem and regard for it as an independent and fair institution , I really ca n't see how you could be a willing participant in this sort of railroading of a nomination through the court on the eve of an election .
I think a person who had such high value of the court and the importance of the courts as an independent tribunal in our country would call herself for this nomination to be delayed until after the people have a chance to say @ @ @ @ @ @ @ me interrupt there if I can .
I 'm not sure that waiting for the people to speak , so to speak , in an election is an appropriate way to measure the worthiness of a Supreme Court nominee .
LISA GRAVES : Well , it 's a complicated issue .
I do n't think that we should be in this position in the first place because I think with an election so close that a nomination should probably not have been put forward , because of the very way in which it @ @ @ @ @ @ @ .
LISA GRAVES : –and could affect the outcome of the election , one way or the other .
BILL MOYERS : Let 's take an example .
The court is scheduled to hear a big health care case a week after the election .
And conservatives are openly counting on Barrett to help throw out the entire Affordable Care Act , once and for all .
Pandemic or no pandemic , they want to get rid of the Affordable Care Act .
Should the senators interrogating her at the hearings come right @ @ @ @ @ @ @ vote ?
LISA GRAVES : I do n't think she 'll give an answer .
But the issue of the Affordable Care Act is one in which this president has campaigned on trying to destroy it , has attempted to stop it legislatively and through a number of machinations , through executive orders , to make it harder for the health care exchanges to work .
And while some are now trying to claim that that decision from the 5th Circuit that 's coming up to the Supreme Court , people should n't @ @ @ @ @ @ @ that 's what the right-wing is trying to say to try to minimize that case .
The reality is that it 's been teed up for this moment , for the ACA to be overruled , and with it , the provisions that protect people with preexisting conditions .
And now , we have millions more Americans who have preexisting conditions due to this pandemic .
And you also have some serious deceptiveness by this president on this point in particular , where after Justice Ginsberg died and he made the decision to @ @ @ @ @ @ @ that the Affordable Care Act was going to be an issue , he suddenly issued an executive order claiming that it 's the policy of the federal government to protect people with preexisting conditions .
That executive order does not replace the actual statute if it 's overturned .
It 's a talking point , that he and his advisors have cooked up to try to use in this Supreme Court battle and in this election to claim that even though he 's determined to overturn the Affordable Care Act , that suddenly @ @ @ @ @ @ @ 're going to be using that talking point to try to defend this nominee about her determination to overrule the Affordable Care Act .
And she , both as a judge and before she was a judge , has attacked the Affordable Care Act .
And so , I think that , as they say , when people tell you who they are , you should believe them , we should believe very much that she 's someone who 's hostile to the Affordable Care Act , and that this president 's hostile @ @ @ @ @ @ @ that could affect the lives and health of millions and millions of Americans .
And it will .
BILL MOYERS : What will you be watching for during the confirmation hearings ?
BILL MOYERS : I mean , I , myself , am sick and tired of these hearings that really are charades .
The senator asks a question and , on the pretext of not revealing a position or prejudging— BILL MOYERS : –the nominee says bull .
Pleasantly , elegantly , sometimes , but it 's bull .
BILL MOYERS : @ @ @ @ @ @ @ GRAVES : It can be very frustrating watching those hearings because these nominees of this president have been so prepared to try to avoid answering any meaningful questions for the American people under this guise that they ca n't answer or they would be prejudging when , in fact , they 've been chosen on some of these issues because they have , in fact , prejudged them .
What 's been happening with this president 's nominees on these questions is so deeply troubling because they have refused to commit to the @ @ @ @ @ @ @ v. Board of Education , a precedent that 's been on the books for nearly 70 years in this country , they will not agree that that 's good precedent .
They will only agree that that is , quote , `` Precedent , '' which is meaningless when you have a nominee like Amy Coney Barrett who said that precedent , in her view , violates due process .
I 'm sure we 're going to see what some people call Kabuki theatre or theatrics at that hearing in which she declaims @ @ @ @ @ @ @ , therefore , she wo n't discuss any substantive issue about how she might rule , when the reality is that her record about how she favors corporations over individuals , how she favors corporations , including in cases involving discrimination– racial discrimination , LGBTQ discrimination and more how her record shows that she has an agenda and that she is desirous of using that agenda , propelling it forward with the force of law .
So , I think that , when you have someone who wants to impose their personal views @ @ @ @ @ @ @ fiat ( not through the legislative process ) , but imposed their views and disavows the value of precedent , refuses to say that core , bedrock cases like Brown are good precedent that must be followed , I think you have someone who will be behaving disingenuously in a theatrical way to try to deceive the American people .
BILL MOYERS : Would you concede that she might see this in the context of what she said to the commencement at Notre Dame when she said that there was a larger purpose @ @ @ @ @ @ @ lawyer , and I 'm paraphrasing , that it was a way to help build the kingdom of God and implying , therefore , that there are times when you do justify the means by the ends , and that she actually thinks as a sincere , faithful Christian that she is helping to build with this man who is anything but virtuous– the kingdom of God by going on that court under these questionable circumstances so that she can accomplish what some of what it takes to build the kingdom of God @ @ @ @ @ @ @ Yeah .
You know , it is the case that we 've seen , from the Falwell world and other worlds , a real willingness to turn a blind eye to the many ways in which this president has transgressed the basic moral code on a daily basis .
You know , I 'm not even going to get into THE NEW YORK TIMES report about the failing to pay taxes or potential tax fraud and what that means in terms of theft from the public treasury .
You have a president who @ @ @ @ @ @ @ moral norms than I think any president , probably since Nixon ; maybe much worse than Nixon .
And you have him embraced by the religious right .
Not all people of faith .
There are progressive and moderate evangelicals and people from the Catholic faiths who do not embrace this president as a moral leader .
But you do have people in this country like Leonard Leo and William Barr and the Judicial Crisis Network that are willing to advance this president 's agenda because it helps them win changes in Supreme @ @ @ @ @ @ @ Roe v. Wade , but also on gay rights , on the rights of LGBTQ Americans and more .
In terms of Amy Coney Barrett , all people are entitled to their faith and to make decisions about their conscience and what their faith means to them and how it enriches their lives .
I think the challenge is that the United States Constitution expressly forbids a religious test for office .
But the corollary of that is that the United States is not a theocracy .
People are not given positions of @ @ @ @ @ @ @ impose their religious views on millions and millions of Americans without their consent .
But the fact is we see already in communications by the right-wing about this nomination that they believe that she will rule in their favor on these religious issues .
They probably are not wrong , given what we 've seen of her statements in the record .
But I think the broader issue is I think if you 're going to be put on our highest court , you ought to be someone who 's not just young @ @ @ @ @ @ @ someone who has a lengthy record of a willingness to set aside personal views in order to follow the law , and to administer the law fairly for all people .
BILL MOYERS : But if you 're sitting there with the President of the United States and if you 're informed and knowledgeable and aware , you know that this is the man who told the nation that COVID-19 was a hoax , even as he was telling Robert Woodward it was deadly stuff .
And if he 's giving you the @ @ @ @ @ @ @ the court– I do n't want to be unfair to her , but because she has spoken openly and honestly , I think , about her faith she has presented us with questions like this .
What 's happening in the country is not all Donald Trump .
He 's being enabled .
Look at the people who have surrounded him at the moment to enable her nomination .
She 's enabling him by accepting it under these circumstances .
And so , it raises questions as to how do we stop such @ @ @ @ @ @ @ and benefit from them .
LISA GRAVES : I do n't know if I would call it the conundrum but it 's one of the very uncomfortable circumstances of both this administration 's approach to the law and the news cycle and public policy where it 's so transactional that these two things can coexist .
LISA GRAVES : Transactional in the sense that they have a meeting at the Rose Garden that 's all love about this nomination and its greatness that exists separate from the president 's statements in which he @ @ @ @ @ @ @ order to basically take the election by legal force , by judicial fiat , which exists in the context of a president who I think it was only two weeks ago that the story broke that he knew exactly how contagious this disease was , how deadly it was , months and months ago , and that he deliberately downplayed it to the American people and deceived them .
And so , all these things are happening as if they 're separate things .
Like , that Rose Garden ceremony of introducing her @ @ @ @ @ @ @ .
We 're in a normal presidency .
This is a normal America .
And this is all just business as usual to have this ceremonial embrace of this nominee and this nomination as being something that 's about the rule of law in America and is exalting the law .
When outside of that Rose Garden , you have a scenario in which you have a president that has thumbed his nose at the law , who has violated the law in a number of ways that have been documented , and @ @ @ @ @ @ @ very democracy , and has impugned the integrity of the Supreme Court by how he has described the judges who 've been put on it as `` his judges , '' and has described why he wants this judge confirmed to it , to rule in his favor .
And so , the people who are joining with him in these different endeavors , it 's as if they 're able to put on blinders and ignore the reality , the full record of what 's transpiring before our very eyes , which @ @ @ @ @ @ @ law , an assault on our actual Constitution , an assault on our very institutions both in the executive branch at the Justice Department and other agencies , the way they 've been so distorted ( and grotesquely distorted ) by partisan , right-wing people who Trump has put in power , who have distorted health policy that has resulted in the death of hundreds of thousands of Americans and the infection of millions of Americans , due to the fundamentally immoral actions by this president and by the people he has put @ @ @ @ @ @ @ to distort the record about a deadly disease .
It 's extraordinary to have the Senate in Mitch McConnell and these Judicial Crisis Network people supporting her , the ones that are running ads in support of her at that White House ceremony announcing her , to be acting as if this is just a normal transition of the Supreme Court when , in fact , it 's a capture of the Supreme Court and a further deployment of the Supreme Court as a weapon for the far-right to use to impose its @ @ @ @ @ @ @ , and to destroy core regulation of businesses in this country , including businesses that have harmed our climate .
It is extraordinary to me that these things all seem to happen in these silos from the standpoint of coverage when , in fact , they 're inseparable .
And the assault on the Supreme Court , this effort to capture it and move it as far to the right as possible for ten , 20 , 30 , possibly 40 years .
And to do it in defiance of the American people @ @ @ @ @ @ @ is also grotesque .
It 's another manifestation of the dysfunction of our democracy .
And it 's not just the president , it 's that he has a number of enablers in the administration , and outside the administration , that are willing to turn a blind eye to almost everything he does in order to advance a very narrow and regressive agenda .
BILL MOYERS : It 's clear that Chief Justice John Roberts wants people to think that the Supreme Court is a nonpolitical institution , that it 's not @ @ @ @ @ @ @ with this new nomination and likely confirmation , it 's going to become just the opposite .
Beholden to the Trump presidency and to the Republican party .
LISA GRAVES : I think that 's right .
If Coney Barrett is confirmed to the Supreme Court , it will cast a cloud over every decision that she makes , every decision that this court makes ; that this court has been manipulated , has been captured , is designed to be unfair , is designed to put the thumb of the far-right and @ @ @ @ @ @ @ court .
And that fundamentally undermines the idea of an independent court , what is happening to it right now .
BILL MOYERS : Lisa Graves , thank you very much .

Welcome to Moyers on Democracy. Lisa Graves returns to discuss President Trump's nomination of Amy Coney Barrett to succeed the late Ruth Bader Ginsburg on the Supreme Court. A trained lawyer, Ms. Graves is one of the nation's foremost experts on judicial appointments. She served as chief counsel for nominations for the U.S. Senate Judiciary Committee and as a career deputy to two attorneys general, one a Democrat, the other a Republican. She has spent the past ten years investigating the impact of dark money on judicial selection, public policy, and elections. She is currently Executive Director of True North Research, a nonprofit watchdog group focused on legal policy and ethics in federal and state government. Here to talk with Lisa Graves is Bill Moyers.
BILL MOYERS: Thank you, Lisa, for taking my call.
LISA GRAVES: My pleasure, Bill. Thank you so much for calling me.
BILL MOYERS: What exactly does it mean to be the chief counsel to the U.S. Senate Judiciary Committee for nominations of federal judges?
LISA GRAVES: My job was to vet the judicial nominees and the U.S. Attorney nominees that were being put forward by President George W. Bush in his first term in office. My job was to review their background, review any information available about them, and make recommendations about whether they were people who had the demeanor and the temperament and the record of fairness to become a federal judge for a lifetime position on our federal courts.
BILL MOYERS: And you also served as deputy assistant attorney general under two attorneys general, one a Republican, the other a Democrat.
LISA GRAVES: That's correct. I was a career deputy assistant attorney general at the U.S. Department of Justice under both Ms. Reno and Mr. Ashcroft. And for the first part of 2001, my job was to aid in the orderly transition of government and to advise Mr. Ashcroft in particular on judicial nominations on a relationship with the federal judiciary and the state judiciary.
BILL MOYERS: You know the nominating process inside and out, right?
"I personally think it's important to talk to the American people about the courts and what's at stake… I think that that case needs to be made not just to not fight about the courts but to basically tell the American people quite plainly how important the courts are."
LISA GRAVES: I do. I both worked in it for several years and have been a student of it for many years before that.
BILL MOYERS: What do you think of how President Trump and the Republican leader of the Senate, Mitch McConnell, are doing in rushing Amy Coney Barrett's nomination through the Senate in just a matter of weeks if not days?
LISA GRAVES: I think what's happening with the Senate and with this White House in terms of the Supreme Court is profoundly illegitimate for a number of reasons. First, the election is literally weeks away and this president has said expressly that he wants someone confirmed so that he can have a vote on that court to win the litigation that he and his team are planning to bring to that court. That's just profoundly illegitimate. It's also the case that President Trump and his campaign team are doing enormous fundraising to try to use this nomination to an independent branch of our government in order to advance his own partisan political interests and try to push Amy Barrett onto the court really for the next 30 or 40 years. So, no matter what happens in terms of his election, Trump's election, if they're successful, he will have placed three people on the Supreme Court, two of them basically due to vacancies during election years. And as you know, the other part of that story is the just extraordinary hypocrisy of Mitch McConnell, of Senator Lindsey Graham, of other senators who stalled a nomination by President Obama for months. Justice Scalia passed away in February of 2016. And the Republicans refused to allow Judge Merrick Garland a hearing, for months, even though Judge Garland had been on the bench in the D.C. circuit for many years and was well-regarded as a fair judge. Here you have a nomination that's only been vacant for a week or so, and a rush to push someone through at all costs, and to put someone on the court who I think does have a troubling record.
BILL MOYERS: But the Constitution is silent on the issue of when a president who has the power and responsibility of appointing Supreme Court justices should make that appointment. I mean, the fact that it's near an election is a coincidence. So, what makes this illegitimate?
LISA GRAVES: Well, it's certainly the case that the Constitution provides for the power of the president to propose a nomination. It doesn't put any time limit on it. But the fact is that historically, it has been the case that the Congress has been reluctant to approve nominations in election years, in part because the notion is that the American people are about to decide the course of the nation. Back in 2016 that Supreme Court seat of Justice Scalia's sat vacant for basically almost an entire year. There was no crisis on the court as a result of that vacancy. And the Republicans expressed no urgency to move a nomination forward. And so, in this situation, you have a case where, unlike back in 2016 where you had a president who was elected twice to the presidency, here you have someone who won the election in 2016 without the popular vote. You have a president who's been impeached by the House of Representatives. I understand that this Senate did not vote to actually remove him from office. But you have serious allegations that face this president on both foreign and domestic issues about his fitness to be the president of the United States, a decision that the American people will be facing in these coming weeks. And this is no time to rush through an irrevocable decision on the part of this president to put someone on the Supreme Court who is in her late 40s. And she's been a judge for a very short period of time. I think that there are a lot of troubling components to the nominations process as it's unfolded over these many years. At the beginning of our nation's history, people served on the court only ten, maybe 20 years due to life span of people back then. And also, the notion that people needed to have a really long and established career to have that role. Now you have people who are being appointed and they're serving not just for a decade or two but for generations. In my lifetime, for the last 52 years, there have been 19 people appointed to the United States Supreme Court. Fifteen of those nominations have been made by Republican presidents and confirmed. Only four of the confirmed justices who have been appointed in my lifetime were appointed by Democrats. And so, at one point last week, Senator Mitt Romney said, you've got to get over the idea of there being a liberal Supreme Court. And I thought, "What liberal Supreme Court?" We have a court that's been dominated by one party through these appointments. The Republicans have chosen very young people for those positions. And, in fact, that was the plan of the Republican appointment of Justice Thomas, who was in his early 40s at the time he was appointed. He's now in his early 70s.
BILL MOYERS: The Republicans have long treated control of the Supreme Court as a very important political issue. Electoral issue. Election issue. The Democrats have not. The Republicans have outsmarted the Democrats on the evaluation they place on the political aspects of the Supreme Court.
LISA GRAVES: It is the case that the Republicans have really politicized the courts in that way, while they claim that the Democrats have. The court that they complained so much about, the one historically complained about, was the Warren court. That was led by Chief Justice Earl Warren. And that court in my view, really did a tremendously valuable job for the country, because what it actually did was to read the Constitution to apply its terms to ordinary people. So equal protection of the law—
BILL MOYERS: What do you mean?
LISA GRAVES: Using that phrase in our 14th Amendment that people will not be denied equal protection to ensure that Americans could not be segregated in our schools through racial segregation. That was attacked vociferously on the right as an inappropriate and outrageous decision. It was following the plain language of the Constitution. The Warren Court ruled that when the Constitution says you have a right to counsel in the case of Gideon v. Wainwright, that you actually have a right to counsel. And so, there were a number of decisions in the '50s and '60s that the right wing, they called themselves conservatives or libertarians, opposed. And in the aftermath of those decisions the Republicans really began running on a claim with Richard Nixon of supposed law and order. Part of that law and order campaign was about the courts and trying to pack the courts with people who he thought would reverse those rulings that gave meaning to people's rights that were listed and written in the Constitution. And then Ronald Reagan went a measure further. He decided to say that he, through his attorney general Edwin Meese, at the time, was going to have a litmus test about abortion, that he would only appoint someone to the Supreme Court who would overturn Roe v. Wade. With Reagan, there was a specific determination, to appoint people basically pretty far to the right at the time. They did manage to get Justice Scalia on the court, and they did manage to put William Rehnquist [as Chief Justice] on the court, who'd been an advisor to President Nixon. And then it was 12 years of real court packing by Ronald Reagan and George Herbert Walker Bush. And when Clinton came into office in the early 1990s the path he chose was one to say that litmus test was wrong and that we needed fair judges. And so, the effort was articulated as trying to put people of moderation on the court. I personally think it's important to talk to the American people about the courts and what's at stake. And talk about how people are being put on the courts by the right, by the Republicans, in order to overturn precedent. In order to overturn our rights. I think that that case needs to be made not just to not fight about the courts but to basically tell the American people quite plainly how important the courts are. And this movement that's underway to overturn those rights. I would say to you one of the things that came out in an investigation by THE WASHINGTON POST last May by Robert O'Harrow and Shawn Boburg was that Leonard Leo, who's been working on helping to pack the courts for, almost two decades or more now—
BILL MOYERS: Leonard Leo, tell me who he is.
LISA GRAVES: Leonard Leo, for many years served as the vice president of the Federalist Society. And he is still an advisor to the Federalist Society. He has been the architect for the last few decades of this long-term effort to put far right judges on the Supreme Court and the federal courts and other courts in order to change the law by changing what decisions are being issued by those very judges. And he has created basically a big dark money operation that THE WASHINGTON POST tallied at more than $250 million to influence who gets installed on the Supreme Court. And those people are being chosen from his own lists. And they are having an utterly disproportionate influence on who gets confirmed to the U.S. Supreme Court. Leonard Leo gave a speech last year to a group called the Council for National Policy, which is made up of fundraisers on the far right. People who are funding this effort to capture our courts, as Sheldon Whitehouse has described it. And in that speech, he said that we, America, and the people in that room, were standing on the precipice of what he called the revival of what he described as the quote, "Structural Constitution," that would roll back 100 years of precedents in America. And that the appointments that Trump was making were in design to do just that, to remove the rights of people to organize in labor unions. The rights of people to petition their government for social security and programs that help protect us from the extremes of our economy. To protect our lives. Efforts to protect our environment and protect us from pollution from corporations that aren't restrained or regulated. That was really a shocking speech about the level of judicial activism that the right wing is pushing. And this new nomination by President Trump of Amy Coney Barrett is in that mold to try to use the courts to reverse Americans' rights.
BILL MOYERS: We learned after Brett Kavanaugh's confirmation that some very rich people had put up millions of dollars to quote, "Sell" his nomination to the public. Will those people do the same thing for the Barrett nomination?
LISA GRAVES: It's already under way. One of the main groups that Leonard Leo has helped to orchestrate is called the Judicial Crisis Network, JCN. And it's already running ads in swing states, states where senators are facing close election to try to promote this judge. And Leonard Leo is the one who's helping to orchestrate for the campaign to use dark money to put these judges in position to rule on our rights and to remove our rights. I know there are groups on the right and left who spend money on nominations. But this circumstance is really extraordinary, because you have unknown billionaires or multi-millionaires who are secretly giving to a group that gives to a group. During Kavanaugh, it was the Wellspring Committee giving to Judicial Crisis Network.
BILL MOYERS: Who's in this Judicial Network you're talking about? Can you name some names? Organizations? Individuals? And where's the money coming from?
"If this court rules that our federal government cannot pass measures to regulate carbon, it's an existential consequence of who's being put on the court. And we know that people like Charles Koch have been spending big money to try to capture the courts because he wants to have people on the court who will limit our ability to regulate corporations."
LISA GRAVES: Yes. So, the Judicial Crisis Network is formally led by Carrie Severino, along with the assistance of Gary Marx, a longtime political ally, of Leonard Leo. Leonard Leo is the former vice president of the Federalist Society. And he now leads a dark money network, along with a guy named Greg Mueller. He and Leo have a group called CRC Advisors that is devoted to capturing both the U.S. Supreme Court and federal courts, as well as state Supreme Courts. Carrie Severino's a former clerk of Justice Thomas. And Gary Marx is someone who has been working on judicial nominations with Leo really for the last two decades through all the fights to try to pack the courts. Their funders are unknown. We do know that there was one huge donation to the Wellspring Committee. That huge donation was almost entirely given to Judicial Crisis Network. Judicial Crisis Network spent some of that money and then gave some money to other groups in the network, like the so-called Independent Women's Forum that was created back around the Clarence Thomas nomination. That's where they got their start was in judicial nominations. But who is that original donor? We don't know. There's no disclosure of who that one donor was who spent these millions and millions of dollars to capture the court. Who was that? Who was that donor? Who were those people? And they were boasting about how successful their efforts were in trying to rally their base, the base of Republicans, to try to come out in the 2018 election. That fight over Brett Kavanaugh actually had the effect of bringing a lot of people out who were progressives and moderates who thought we shouldn't have someone like Brett Kavanaugh on the Supreme Court. But to JCN and the Independent Women's Forum and their network, they believe judicial nominations help motivate the base because even though they will tell the press and the public that this person is a rule of law judge or a law and order judge or a judge who's going to follow precedent– now they're calling Amy Coney Barrett a so-called Constitutionalist, or original interpretivist in the mold of Justice Scalia. These are all just catchphrases that they try to use. They're not appointing her because they think she'll be fair. She's been chosen because they are convinced she will be unfair. They are convinced that she will decide in their favor to overturn people's rights on a host of issues. That's why they're investing. They're not investing to get a fair judge. If you are trying to appoint a fair judiciary you may not put a lot of political capital in that because it's not seen as a political appointment. Instead, if one party is trying the pack the courts and seize the courts as pawns in their political war. And so, they're willing to invest enormous funds in order to get those people in place so that they can change the law to advance the agenda of those people who are funding it. On the left or in the middle what you have is a subset of people who believe courts should be fair and they shouldn't be political partisans. And so, you're not going to spend political capital to talk about that very much or to make your case. Because they're not seen as partisan. And then you have some progressives who have said, "No." You've got to stand up to what's happening. This is a total capture and takeover and it's going to undermine our ability to do almost anything a modern society would do. For example, undermine our ability to have rules that try to mitigate climate change. If this court rules that our federal government cannot pass measures to regulate carbon, it's an existential consequence of who's being put on the court. And we know that people like Charles Koch have been spending big money to try to capture the courts because he wants to have people on the court who will limit our ability to regulate corporations. And we know that Leonard Leo and Carrie Severino and their team are trying to put people on the court for that reason, as well as to limit women's reproductive rights, and more. And so, you have this confluence on the right where they are choosing people and trying to put them in place because they don't think they'll be fair. Because they're convinced that they will rule in their favor, which is the opposite of what you expect from a judge, to be fair and impartial.
"They're not appointing her because they think she'll be fair. She's been chosen because they are convinced she will be unfair. They are convinced that she will decide in their favor to overturn people's rights on a host of issues."
BILL MOYERS: Let me read you what Josh Marshall wrote about this. He's founder and editor in chief of TalkingPointsMemo.com and a terrific journalistic watchdog when it comes to the judiciary. He says, and I'm quoting, "I don't know a lot about Amy Coney Barrett. But I know she's accepting the nomination from a president actively trying to subvert a national election and threatening to hold onto power by force, an attack on the Constitution unparalleled in American history. Do I need to know more?"
LISA GRAVES: I think he's exactly right. It would be an honor to be nominated to be a Supreme Court justice, but under these circumstances, I think it reveals a lack of devotion to the Constitution to be a willing party to what's unfolding. Where you have a president who has said expressly that he wants you on the court in order to rule in his favor in this election to keep him in power, a president who has said expressly that if they can stop the ballots, there we be will be no transition. It will just be a continuation of his power. When you have a president that has made lie after lie about some sort of massive voter fraud in America, when in fact, the statistics and evidence show that that's not the case. So, you have someone who's willing to take that nomination, take that baton from this president, I think that is damning in its own way.
BILL MOYERS: Is it possible, Lisa, that she doesn't know that the fix is in and that she's the fix?
LISA GRAVES: Anything is possible. I don't think it's probable. And the reason I don't think it's probable is because if you look at her decisions as a judge in the very brief time that she's been a judge, as well as her actions before then, you can see someone who has a very agenda-driven view of the law. One in which she has expressly articulated that she doesn't feel bound by precedent. She doesn't believe the Constitution requires judges to follow precedent. In fact, she thinks it does not require judges to follow precedent, which is the definition of being an activist, that you're someone who wants to impose your own views of the law, regardless of the precedent that people are relying on in this country. I don't think that she is unwitting. In this circumstance, you have this election that is happening as we speak, and litigation around that election that is happening as we speak, and a president who has said quite clearly, he's going to use the courts to try to win a victory in this election no matter what the ballots say, and to try to stop them from being counted. And you have an attorney general in Bill Barr, who has shown time and again that he's more the president's lawyer than acting in the office of the attorney general, though he's using the office of the attorney general of the United States, advancing the partisan interests of this president and the lies of this president around voting. And has indicated that he's going to aid in those claims by this president. And now you have a judicial nominee who has willingly stepped into this role of potentially being a deciding vote on the Supreme Court in cases that will affect the outcome of this election. And I certainly hope, if she has a hearing, which is slated this month, that she will commit unequivocally to recuse from any such litigation. I don't believe she will, though. I don't believe she'll commit to recuse to anything.
BILL MOYERS: Are you suggesting that she is fully aware that she is also a political operative and a political force in this scenario you just outlined?
LISA GRAVES: I believe that she is. There's no doubt that she's smart. There are a lot of smart people out there. They're not all fair. There're a lot of people who are more advocates than judges. I think when you look at Amy Coney Barrett's record, what you see is someone who has been groomed for this position. She clerked for one of the very sort of activist right-wing judges on the D.C. circuit. She then clerked for Justice Scalia, who often wrote his opinions more like he was writing an op-ed column than writing an opinion of the United States Supreme Court. He was determined to move the law, to change the law, to advance his original point of view, although he cloaked it in originalism but it really managed to be miraculously aligned, for the most part, with his personal views. And she's also been someone who's been an activist in attacking the Affordable Care Act. She has written and spoken about a lot of these issues in ways that show that she has a very specific point of view. And I don't think she's been on the bench long enough to know that she can actually set aside her personal views. In fact, I think it seems pretty clear from her decisions, in the brief time she's been a judge, that she has tried to impose her personal point of view on the law. I don't think she's unwitting in this effort. I think she is embraced by the Judicial Crisis Network, by the Leonard Leo operation, by the president as someone who they think is a sure thing. A sure vote for them and for their right-wing agenda.
BILL MOYERS: There's been a lotta talk about her hardline ideology in the last few days, that she will be opposed to women's reproductive freedom, to affirmative action, to voting rights for minorities, to environmental regulations. Even worker safety rules. What I've seen of her record suggests also a very strong bias on behalf of corporate power. The last decision or rule she issued was that workers, gig workers, can't file for a class-action lawsuit against their employer. That's going to be a real blow to workers in what is an expanding gig economy.
LISA GRAVES: I think that decision is very troubling. Jeffrey Toobin pointed out in his piece about the impact of the Federalist Society on our courts and on our law, that she is straight from that mold set forth by Lewis Powell before he became a Justice of the Supreme Court. Lewis Powell had been a tobacco lawyer. Before he really was known widely as a tobacco lawyer, he was the main person involved in the Richmond schools, as it was fighting the efforts of Brown v. Board of Education to get those schools integrated. So, you have this tobacco lawyer who represents a segregated school district, who is asked by the United States Chamber of Commerce to write a memo about where the law could go. And he wrote a memo which is known now as the Powell Memo. And that memo basically said that in his view, no one in America had less influence on policy than business people. And they needed to dramatically change that through changing the courts and changing the way businesses fund think tanks at the federal and state level. As well as the way businesses support universities. And so that Powell blueprint from the early 1970s to really push for courts that were going to be pro-corporation and I think she very clearly represents that perspective. Her decisions show that she does, but regardless of her background, I think this would be an illegitimate nomination, and illegitimate to proceed. It's fundamentally unjust for anyone, no matter their background, to be put on the court under these circumstances with this election pending. I think it's really a disaster for our country, for this nomination to be proceeding.
BILL MOYERS: Do you really think, Lisa, that a Democrat as president would pass up this opportunity to name a Supreme Court justice if he were in the place or she were in the place that Trump is right now?
LISA GRAVES: Well, I don't know that a president would not nominate someone under these circumstances. Although typically, you know, there's usually, like, 30-40 days between a vacancy and a nomination to do an F.B.I. background investigation, to do a thorough vetting of a candidate before someone is even named. In this case, it's super accelerated. As you said, there's no Constitutional restriction by time from doing so. But I do think that the president's prerogative in naming someone is not the same as that person that getting confirmed, as we've seen. The Senate's role is to thoroughly examine a nominee's record. And to allow for there to be time for the American people to understand the record of a person who's being chosen for a lifetime job on the court. Is this the best person? Is this the right person? Is this someone who we trust, who we would entrust with our lives, who we believe absolutely without reservation will be fair? This process, where the president's named someone this weekend, the nomination will have arrived in the Senate at the very end of September. The Senate is racing to have a hearing in two weeks. That hasn't happened in the modern era, someone has received a hearing that quickly. And that Mitch McConnell has vowed to use the rules of the Senate to try to get a vote before the end of October. It's extraordinary. And it's a real railroading of not just this nomination but of the American people.
BILL MOYERS: Trump obviously believes that she will be a wedge to help him win a second term. And that's the issue.
LISA GRAVES: I have never seen a president in my lifetime that has disavowed the results of the election before they've even happened. That has basically vowed to try to stop people from voting. Who's vowed to unleash tens of thousands of people to go to polling places to try to, in my view, intimidate them. Is now doing fundraising to enlist a quote army to defend his results in this election. We've never been in a circumstance where we have had a president so unmoored from the law, so reckless in his disregard of the Constitution. And to have that person choosing his own jury in a case that he's determined to bring to this court is outlandish and outrageous.
BILL MOYERS: Tell me what's right and what's wrong about this scenario. Trump keeps repeating that vote by mail is rife with fraud. So Republican lawyers will try to get a large number of mailed ballots thrown out after the election as Trump declares himself the winner on the basis of the ballots that had been cast and counted before and on Election Day. He has refused to commit to leaving office if he loses. And he will challenge those ballots that have not been counted to try to get them thrown out. It's there and on other procedural points that he will need the Supreme Court majority to take his side, including the justice he is putting on the court. So, isn't he sending a message to the world that he expects the court and its new nominee to rule for him and nail down a second term? Is that the strategy?
LISA GRAVES: I believe that's precisely the strategy. This president is trying to secure for himself an illegitimate victory in this election. He has said he is going to win on in-person voting. And that any ballots that come in or that are counted afterward are somehow illegitimate, that they have to be thrown out. And he has said, quite clearly, he's going to take this to the Supreme Court. The court is actually problematic in a number of ways. First of all, you have someone like Justice Thomas who has expressed personal antipathy toward Joe Biden from his time as the chairman of the Senate Judiciary Committee presiding over Thomas' nomination. Justice Thomas' wife has been very active in electoral politics and was active during Bush v. Gore and was on the transition team for George W. Bush. As that case was coming through the court, she then became part of the transition team for the victor. You have a Justice of the Supreme Court in John Roberts who advised on the Bush v. Gore case. You have another recently confirmed justice in Justice Kavanaugh who was an attorney on one of the original cases that resulted in the decision in Bush v. Gore. And now you have a nominee who also worked on the Bush v. Gore case in Amy Coney Barrett.
BILL MOYERS: So if she's confirmed three members of the nine-member court will have worked to get the Supreme Court to deliver the presidency to George W. Bush.
LISA GRAVES: That's correct. One third. And you would have a court that has also demonstrably been trying to limit people's voting rights. Justice Roberts was part of the decision to really restrict the power of the Voting Rights Act. So, you already have a court that a reasonable person would question whether that court could or would fairly rule in this election, or whether it would again put its thumb on the scale of justice in favor of the party of the president that nominated them, put them on the bench. And this president saying that he's choosing someone specifically to help him win that ninth vote on that Supreme Court, and someone who also participated in the litigation that resulted in that extraordinary decision that installed George W. Bush as president by stopping the counting of ballots. And once the ballots were counted, the actual count showed that Al Gore would have won the electoral college. And would have been president but for that intervention by the U.S. Supreme Court.
BILL MOYERS: We've had two of the last four presidents elected by minority vote. They got the electoral college, but they lost the popular vote. And they turn around and appoint Supreme Court justices who perpetuate the pattern.
LISA GRAVES: Yes, it's very troubling. John Roberts and Justice Alito arguably might not have been confirmed had Bush not been the incumbent, by virtue of this decision in Bush v. Gore. Justice Sandra Day O'Connor disavowed and regretted enormously that she had participated in that five/four decision in which the only justices who ruled in favor of Bush were justices appointed by presidents of his political party. Then you had President Obama who had three vacancies, including one in February of 2016 that could've been filled anytime during that entire year. And there would've been plenty of time for people to weigh in and express any reservations they had about Merrick Garland. Almost none were expressed because he'd been a judge for a long time and had a reputation for being a fair judge. And that third nomination of President Obama was blocked. That meant that the Supreme Court was able to have a five/four majority of Republican appointees, rather than a five/four majority of Democratic appointees. President Trump, who has appointed two justices. And that's why, right now, you have a court that is five Republican appointees and three Democratic appointees. And they're trying to make it six Republican appointees and three Democratic appointees. The Republicans have certainly gamed the system and they're going to come out with a bunch of ads saying how nice Amy Coney Barrett is or how good of a neighbor she is or how nice she is as a colleague or as a teacher. There are a lot of nice people. That doesn't mean they're fair people. That doesn't mean they're people that you would trust to decide impartially in a case involving your rights. And in fact, everything we know about this process, from President Trump, from Leonard Leo, from the Federalist Society, from the Judicial Crisis Network that's backing them, is that she's been chosen with the very hope and belief that she won't be fair, that she will rule in their favor.
BILL MOYERS: Her very nomination under these circumstances is going to cast another long shadow on the court's integrity and on Amy Coney Barrett's, quite frankly. You wonder why someone who's on the record for being a person of faith and a moral person wouldn't say thank you, Mr. President, but let's wait a week or two or three and then we'll both come out better in the judgment of history.
LISA GRAVES: If you are a person who believes in the integrity of the judiciary, in the independence of the judiciary, if you're someone who believes that the court's core power stems from the public esteem and regard for it as an independent and fair institution, I really can't see how you could be a willing participant in this sort of railroading of a nomination through the court on the eve of an election. I think a person who had such high value of the court and the importance of the courts as an independent tribunal in our country would call herself for this nomination to be delayed until after the people have a chance to say.
BILL MOYERS: Let me– let me interrupt there if I can. I'm not sure that waiting for the people to speak, so to speak, in an election is an appropriate way to measure the worthiness of a Supreme Court nominee.
LISA GRAVES: Well, it's a complicated issue. I don't think that we should be in this position in the first place because I think with an election so close that a nomination should probably not have been put forward, because of the very way in which it is being politicized and will be politicized.
BILL MOYERS: I agree with that.
LISA GRAVES: –and could affect the outcome of the election, one way or the other.
BILL MOYERS: Let's take an example. The court is scheduled to hear a big health care case a week after the election. And conservatives are openly counting on Barrett to help throw out the entire Affordable Care Act, once and for all. Pandemic or no pandemic, they want to get rid of the Affordable Care Act. Should the senators interrogating her at the hearings come right out and ask her stance on that vote?
LISA GRAVES: I don't think she'll give an answer. But the issue of the Affordable Care Act is one in which this president has campaigned on trying to destroy it, has attempted to stop it legislatively and through a number of machinations, through executive orders, to make it harder for the health care exchanges to work. And while some are now trying to claim that that decision from the 5th Circuit that's coming up to the Supreme Court, people shouldn't worry about it, I would say that's what the right-wing is trying to say to try to minimize that case. The reality is that it's been teed up for this moment, for the ACA to be overruled, and with it, the provisions that protect people with preexisting conditions. And now, we have millions more Americans who have preexisting conditions due to this pandemic. And you also have some serious deceptiveness by this president on this point in particular, where after Justice Ginsberg died and he made the decision to move forward with a nomination immediately knowing that the Affordable Care Act was going to be an issue, he suddenly issued an executive order claiming that it's the policy of the federal government to protect people with preexisting conditions. That executive order does not replace the actual statute if it's overturned. It's a talking point, that he and his advisors have cooked up to try to use in this Supreme Court battle and in this election to claim that even though he's determined to overturn the Affordable Care Act, that suddenly he now cares about this. They're going to be using that talking point to try to defend this nominee about her determination to overrule the Affordable Care Act. And she, both as a judge and before she was a judge, has attacked the Affordable Care Act. And so, I think that, as they say, when people tell you who they are, you should believe them, we should believe very much that she's someone who's hostile to the Affordable Care Act, and that this president's hostile to the Affordable Care Act, and that could affect the lives and health of millions and millions of Americans. And it will.
BILL MOYERS: What will you be watching for during the confirmation hearings?
LISA GRAVES: That's a great question.
BILL MOYERS: I mean, I, myself, am sick and tired of these hearings that really are charades. The senator asks a question and, on the pretext of not revealing a position or prejudging—
LISA GRAVES: Yeah.
BILL MOYERS: –the nominee says bull. Pleasantly, elegantly, sometimes, but it's bull.
LISA GRAVES: Yeah.
BILL MOYERS: And the public moves on.
LISA GRAVES: It can be very frustrating watching those hearings because these nominees of this president have been so prepared to try to avoid answering any meaningful questions for the American people under this guise that they can't answer or they would be prejudging when, in fact, they've been chosen on some of these issues because they have, in fact, prejudged them. What's been happening with this president's nominees on these questions is so deeply troubling because they have refused to commit to the importance of longstanding precedents, including Brown v. Board of Education, a precedent that's been on the books for nearly 70 years in this country, they will not agree that that's good precedent. They will only agree that that is, quote, "Precedent," which is meaningless when you have a nominee like Amy Coney Barrett who said that precedent, in her view, violates due process. I'm sure we're going to see what some people call Kabuki theatre or theatrics at that hearing in which she declaims about her fairness and her impartiality and, therefore, she won't discuss any substantive issue about how she might rule, when the reality is that her record about how she favors corporations over individuals, how she favors corporations, including in cases involving discrimination– racial discrimination, LGBTQ discrimination and more how her record shows that she has an agenda and that she is desirous of using that agenda, propelling it forward with the force of law. So, I think that, when you have someone who wants to impose their personal views as law, in essence by judicial fiat (not through the legislative process), but imposed their views and disavows the value of precedent, refuses to say that core, bedrock cases like Brown are good precedent that must be followed, I think you have someone who will be behaving disingenuously in a theatrical way to try to deceive the American people.
BILL MOYERS: Would you concede that she might see this in the context of what she said to the commencement at Notre Dame when she said that there was a larger purpose to being a lawyer than being a lawyer, and I'm paraphrasing, that it was a way to help build the kingdom of God and implying, therefore, that there are times when you do justify the means by the ends, and that she actually thinks as a sincere, faithful Christian that she is helping to build with this man who is anything but virtuous– the kingdom of God by going on that court under these questionable circumstances so that she can accomplish what some of what it takes to build the kingdom of God here on earth?
LISA GRAVES: Yeah. You know, it is the case that we've seen, from the Falwell world and other worlds, a real willingness to turn a blind eye to the many ways in which this president has transgressed the basic moral code on a daily basis. You know, I'm not even going to get into THE NEW YORK TIMES report about the failing to pay taxes or potential tax fraud and what that means in terms of theft from the public treasury. You have a president who has been more aggressive in violating those moral norms than I think any president, probably since Nixon; maybe much worse than Nixon. And you have him embraced by the religious right. Not all people of faith. There are progressive and moderate evangelicals and people from the Catholic faiths who do not embrace this president as a moral leader. But you do have people in this country like Leonard Leo and William Barr and the Judicial Crisis Network that are willing to advance this president's agenda because it helps them win changes in Supreme Court doctrine, including in particular on Roe v. Wade, but also on gay rights, on the rights of LGBTQ Americans and more. In terms of Amy Coney Barrett, all people are entitled to their faith and to make decisions about their conscience and what their faith means to them and how it enriches their lives. I think the challenge is that the United States Constitution expressly forbids a religious test for office. But the corollary of that is that the United States is not a theocracy. People are not given positions of trust in our government in order to impose their religious views on millions and millions of Americans without their consent. But the fact is we see already in communications by the right-wing about this nomination that they believe that she will rule in their favor on these religious issues. They probably are not wrong, given what we've seen of her statements in the record. But I think the broader issue is I think if you're going to be put on our highest court, you ought to be someone who's not just young and smart and a right-wing advocate but someone who has a lengthy record of a willingness to set aside personal views in order to follow the law, and to administer the law fairly for all people.
BILL MOYERS: But if you're sitting there with the President of the United States and if you're informed and knowledgeable and aware, you know that this is the man who told the nation that COVID-19 was a hoax, even as he was telling Robert Woodward it was deadly stuff. And if he's giving you the bull about why you should be on the court– I don't want to be unfair to her, but because she has spoken openly and honestly, I think, about her faith she has presented us with questions like this. What's happening in the country is not all Donald Trump. He's being enabled. Look at the people who have surrounded him at the moment to enable her nomination. She's enabling him by accepting it under these circumstances. And so, it raises questions as to how do we stop such things if so many participate in them and benefit from them.
LISA GRAVES: I don't know if I would call it the conundrum but it's one of the very uncomfortable circumstances of both this administration's approach to the law and the news cycle and public policy where it's so transactional that these two things can coexist.
BILL MOYERS: By transactional, you mean–
LISA GRAVES: Transactional in the sense that they have a meeting at the Rose Garden that's all love about this nomination and its greatness that exists separate from the president's statements in which he said that he wants this nomination in order to basically take the election by legal force, by judicial fiat, which exists in the context of a president who I think it was only two weeks ago that the story broke that he knew exactly how contagious this disease was, how deadly it was, months and months ago, and that he deliberately downplayed it to the American people and deceived them. And so, all these things are happening as if they're separate things. Like, that Rose Garden ceremony of introducing her happens as if there's this normalcy. We're in a normal presidency. This is a normal America. And this is all just business as usual to have this ceremonial embrace of this nominee and this nomination as being something that's about the rule of law in America and is exalting the law. When outside of that Rose Garden, you have a scenario in which you have a president that has thumbed his nose at the law, who has violated the law in a number of ways that have been documented, and who has attacked the integrity of our very democracy, and has impugned the integrity of the Supreme Court by how he has described the judges who've been put on it as "his judges," and has described why he wants this judge confirmed to it, to rule in his favor. And so, the people who are joining with him in these different endeavors, it's as if they're able to put on blinders and ignore the reality, the full record of what's transpiring before our very eyes, which is an assault on the rule of law, an assault on our actual Constitution, an assault on our very institutions both in the executive branch at the Justice Department and other agencies, the way they've been so distorted (and grotesquely distorted) by partisan, right-wing people who Trump has put in power, who have distorted health policy that has resulted in the death of hundreds of thousands of Americans and the infection of millions of Americans, due to the fundamentally immoral actions by this president and by the people he has put in place to distort public opinion, to distort the record about a deadly disease. It's extraordinary to have the Senate in Mitch McConnell and these Judicial Crisis Network people supporting her, the ones that are running ads in support of her at that White House ceremony announcing her, to be acting as if this is just a normal transition of the Supreme Court when, in fact, it's a capture of the Supreme Court and a further deployment of the Supreme Court as a weapon for the far-right to use to impose its narrow views on the rest of America, and to destroy core regulation of businesses in this country, including businesses that have harmed our climate. It is extraordinary to me that these things all seem to happen in these silos from the standpoint of coverage when, in fact, they're inseparable. And the assault on the Supreme Court, this effort to capture it and move it as far to the right as possible for ten, 20, 30, possibly 40 years. And to do it in defiance of the American people's desire to have a fair say is also grotesque. It's another manifestation of the dysfunction of our democracy. And it's not just the president, it's that he has a number of enablers in the administration, and outside the administration, that are willing to turn a blind eye to almost everything he does in order to advance a very narrow and regressive agenda.
BILL MOYERS: It's clear that Chief Justice John Roberts wants people to think that the Supreme Court is a nonpolitical institution, that it's not beholden to the Republican party. But with this new nomination and likely confirmation, it's going to become just the opposite. Beholden to the Trump presidency and to the Republican party.
LISA GRAVES: I think that's right. If Coney Barrett is confirmed to the Supreme Court, it will cast a cloud over every decision that she makes, every decision that this court makes; that this court has been manipulated, has been captured, is designed to be unfair, is designed to put the thumb of the far-right and the corporate right-wing on decisions of this court. And that fundamentally undermines the idea of an independent court, what is happening to it right now.
BILL MOYERS: Lisa Graves, thank you very much.
LISA GRAVES: Thank you.