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announcer: "washington joirnl" continues. host: we are joined by james zirin the author of "supremely partisan, how raw politics tips the scales in the u.s. supreme court." he is here to discuss his book which argues that the supreme court has become increasingly partisan in the cases he says were politicized and threatened to undermine public confidence in the court. thanks for joining us this morning. guest: i'm delighted to be here. host: so what inspired you to write this book? guest: i was a practicing lawyer. i of course followed the supreme court for many years. and i became alarmed in recent years reading the cases at the 5-4 decisions and the 6-3 decisions, which seemed to be decided along partisan lines. so that you had the liberal wing of the court, all justices appointed by democratic presidents, and the conservative wing all appointed by republican presidents. and they were taking political positions, which could easily

be identified with the ideas of the respective parties that appointed them. and doesn't apply across the board, of course, but it does apply to many issues and many social issues we care about, voting rights, affirmative action, reproductive rights, on and on. host: okay. let's take a look at one of the excerpts from your book. in your book you say, "the court's dramatic polarization in recent years is a recipe for uncertainty. governmental dysfunction and declining confidence in what, in my view, is the greatest of our institutions. and this has not been fully appreciated by most otherwise well-informed americans." what did you mean by that? guest: i meant by that, polls show that when the court is seen as partisan, when the justices are seen as voting along political lines, rather than applying the law, that

there's less confidence in their decisions. and that the public at large doesn't accept their decisions. and, after all, the supreme court as alexander hamilton pointed out, doesn't have an army. it doesn't have any money. so its power comes from public acceptance of its decisions. and not that we have to agree with them, but we have to agree that, and accept that there is a rule of law and they are the final word on the constitution. host: we are talking with james zirin, the author of "supremely partisan, how raw politics tips the scales in the u.s. supreme court." he is also a former assistant u.s. attorney for the southern district of new york, where he served in a criminal division under robert morganthal. so the supreme court, hasn't it always been partisan? is this something new? guest: it has never been so partisan in my view as it has been lately.

it, of course, has always been partisan because as the late justice scalia pointed out, justices can be partisan. what was interesting is, i mean, you go back to some of the great justices, oliver wendall holmes and holmes was appointed by theodore roosevelt , a republican. brand ayes was appointed by woodrow wilson, a democrat. yet they often joined together at first in dissent and later their views became the law and it was not polarized along partisan lines, along party lines, but, rather, based on heir shared view of the law. host: our viewers can join this conversation. democrats can call 202-748-8000. republicans 202-748-8001. ndependents, 202-748-8002.

the gallup poll recently took a look at what americans think, how americans think the supreme court is doing, whether they approve or disapprove. currently 52% of americans disapprove of the job the supreme court is doing. compared to only 42% that approve. the approval rating has been down since about 2010. since then we know the court has issued some big, controversial rulings. how have those rulings affected the public's confidence in the court? guest: well, i think it all depends on whose ox is being gored. you take the gay marriage case, with which i happen to agree, and many such as the four dissenters believe the court was not applying the constitution, since neither marriage no gay marriage is mentioned in the constitution and probably would have been unthinkable in 1791 or 1868 to

any of the people that drafted the constitution. as chief justice roberts said it was a great victory for gay rights if you support gay rights but hardly a victory for the constitution. host: okay. we have oscar calling in on our democratic line from vienna, virginia. oscar, you are on with james zirin. caller: hi. good morning, everyone. guest: good morning, oscar. how are you? caller: fine. i called because i wanted your thoughts on the mandatory minimums president clinton -- i am a clinton fanatic and i follow clinton and even voted for hillary in the primaries when obama was running. i finally voted for president obama in the general election. i wanted to know, clinton's mandatory minimums, what are your thoughts being an attorney? just a comment on ms. macguineas earlier, i find it intriguing the deficit is 600 billion and yet the defense budget congress wants to push it up to 600 billion.

host: okay. oscar, let's keep this discussion on the supreme court. and the law. guest: well, as a general matter i don't approve of mandatory minimums. i think it should be left to the discretion of the judges. and because of mandatory minimums, sentences, i think, our prisons are over crowded and we've become as many argued an incarcerated society. doesn't necessarily have to do with the supreme court because they haven't really passed on whether mandatory minimums are cruel and unusual punishments, but the -- it is something for congress to consider. and i would support an effort to leave sentencing to the discretion of our trial judges. host: okay. on the front of today's "usa today" there is a piece by richard wolf titled "court at brink of transformation" talking about how the next president could shape the u.s. supreme court. it says a victory by hillary clinton not only would break the glass ceiling at the white

house but shake the foundations of court's marble palace, leading to its first liberal majority since the vietnam era. donald trump's election would continue to perhaps, or perhaps even advance the conservative control for decades to come. though the change in personnel could happen fast, beyond the late justice scalia's seat, three other justices are 78 to 83 years old. the ideological shift may take years to play out, particularly in areas of law that have been relatively stable for decades. supreme court experts predict repercussions from the 2016 election will grow in significance over time. do you agree this is a monumental election for the supreme court? guest: oh, absolutely. i think the supreme court is ideologically at the crossroads. we know we have one vacancy. it's been filled with a moderate. extraordinary

capability and experience. he's been blocked in the senate really on partisan political grounds, which further contributes in my view to the politicization of the judiciary. and i agree with mike pence. whoever is elected president is going to influence the direction of the court for at least three decades to come. host: okay. up next we have darren calling in from washington, d.c. in our independent line. darren, you're on with james zirin. caller: good morning, everybody. good morning, mr. zirin. guest: good morning, darren. caller: i always say, i am a regular caller. i call probably every 45 days or so. because i love c-span. i love the forum. i love being able to express my views and hear regular views from people around the country, unfiltered. i just really appreciate the program. but with that said, i think that the view nah the supreme court is becoming more

partisan, i think it's a reflection on politicians. democrat and republican. especially in the last, you know -- really since 2000. that contested election with bush ii and gore. since then partisanship has racked up with the house of representatives and the senate. think, you know, i think the justices have been relatively the same as they've been forever. because of the partisanship, because of the arguing, unconstructive dialogue between the two parties, over the last 15, 20 years, it's, you know, it shows with the supreme court. host: okay. let's let jim zirin respond. do you think the politics have

affected the court? guest: without question. i think it was will rogers or some other wag who said the supreme court follows the election returns. but the fact of the matter is we are seeing now a deeply polarized nation. our people are polarized on a number of issues. our media is polarized. our think tanks are polarized. congress is certainly polarized. it should not come as a great surprise that the supreme court is polarized. and it's not that ruth bader ginsburg every time she votes thinks how would bill clinton like me to vote on this issue. t's just that she has shared a certain ideology with bill clinton and she was appointed as someone who shared that ideology, and she expresses it through her opinions. and you could say the same thing of scalia, who was appointed in 1986, confirmed by unanimous senate, and yet was perhaps the most partisan of

the justices and the leered of the conservative wing. his death was a dagger to the heart of the conservative wing and that is why his successor is so controversial. host: let's look at another excerpt from your book. you say modern presidents have flavored their appointments as part of the political president's perceived need to accomplish, "balance." the result is that the court has become more rather than less polarized, more rather than less deeply divided, and more, rather than less, conservative. how does -- explain how the desire to seek balance has made the court more partisan in your view. guest: well, i think the appointments in recent years have been flavored with what i call, what others call identity politics. and what is so interesting is we've had 112 justices of the supreme court in our history, 89 have been white anglo saxon protestant males.

prior to scalia's death we had six catholics on the court, ree jews, three women, one african-american, and the the ntments really reflect torra difingts ethnically flavored -- the tradition of ethnically flavored and gender flavored identity politics. for a time in the court's catholic seat. for a time we certainly know this we had a jewish seat. and we find that as of the time scalia died there is not a single white anglo saxon protestant, not a single evangelical on the court, even though white anglo saxon protestant males gave us brown vs. board of education, gave us row v. wade with the exception

of brennan who was a catholic and still voted with the majority. host: up next, george calling from pittsburgh on our republican line. good morning, george. caller: hey. i want to get right to it. i, for the past several elections have been voting democrat. my heart is republican. because the bipartisanship in the supreme court, you know, is based on transformation. everything changes based on the contracts between the individual races or individual stuff where true partisanship is based on transforming america into what it is supposed to be. you know. and somehow we have lost that. we don't see it in our supreme court.

there are private deals between everybody. i think if we want to be to be an or our courts bipartisan, as america we have back in america doing what it does and transforming itself and transform the things we need or the people need to be able to survive, like health care. host: okay. let's let jim zirin respond. guest: i don't know quite what the question was but i do agree that we have to make an effort in all our institutions and among our people to be more bipartisan, to be more moderate, and to reach some consensus as the way forward. i think otherwise it's hurting us around the world. you know, we talked about iran, for example. how difficult it is to deal with iran because they're -- there are two irans, the moderates and the hard liners. iran must look at us and say

how difficult is it to deal with america because we have the moderates with whom we concluded a nuclear treaty and we have the hard liners in congress and some of the presidential candidates want to tear up the treaty. host: in today's "new york times" there is a piece that talks about how hillary clinton and donald trump's nominees could shape the court. it says a new study estimates where president obama's pick merritt garland and the candidates' potential nominees, all federal appellate court judges, would fit in the ideological spectrum compared with the current justices. it shows the current justices ideologically from clarence thomas, the most conservative, all the way down to ruth bader ginsburg ansonia sotomayor, the most liberal. most of the nominees put forth by donald trump appear toward the more conservative to more sent rift areas of the court.

by contrast hillary clinton's potential picks are all steam to be at or more on the liberal and than elena kagan stephen breyer. do you think that does or should make a difference to voters where it seems donald trump's picks have a broader, ideological split whereas those considered by clinton seem to be largely probably liberal? guest: frankly, i was very much surprised that in the debates neither lester holt nor any of the candidates brought up the supreme court. i assume it'll be discussed in the second debate and the third debate to come if they take place. trump's list of 21 candidates, all conservatives. interestingly enough, ignored judge kavanagh, judge brad kavanagh from the d.c. circuit, because, and there is only one explanation for that, because he is a highly qualified and

competent conservative judge, and i think the reason he wasn't mentioned is that the district of columbia is undoubtedly going to go democratic from every poll that has come out. while the judges that he did pick, as possible nominees to the supreme court, come from the swing states that he thinks he needs to get elected. further contributing to the politicization of the judiciary. so we have judges from ohio, judges from utah, we have judges from florida all on his select list from which he says he might appoint the next justice. hillary clinton has been a little bit cagey, because she hasn't said she would support merritt garland in the event she is elected and in the event he is not confirmed in the lake dumb session, and so whether she would go to someone more liberal than garland, whether if there are three more

vacancies, occasioned by the long service of ruth bader insburg and stephen briar -- breyer and anthony kennedy, whether she would fill with people of a liberal stripe or look for people of competence and experience irrespective of what she thinks her political ideology would be. host: you were talking about geography a little bit. five of the current eight justices hail from either new york state or new jersey as did the late justice scalia. do you think geographic diversity is important and might that help the partisanship by bringing in different views? guest: well, i think it's desirable, because all of them come from either the east coast or the west coast of the united states, with the exception of chief justice roberts, who was born in indiana but spent his professional life really in washington. host: born in buffalo, new york but grew up in indiana. guest: grew up in indiana. but the -- when scalia was

around, four of the five buroughs of manhattan were represented in, of new york city, four of five buroughs of new york city were represented on the court. so, yes. i think geographical diversity is desirable. i think all kinds of diversity is desirable. host: okay. guest: and i think we have to consider that and not try to have -- continue the kind of identity politics we've seen in the past. host: up next on our independent line we have john calling in from lakeland, florida. you're on with james zirin. caller: yes, good morning. guest: good morning, john. caller: this is what i think should be done. there should be constitutional scholars that come up with a test about the constitution. you take a judge from every state. put them in a room. they take the test. they pass it. you got eight supreme court judges for eight years. you do it again after eight years. instead of being political.

because a good example of political is affordable health care act, which is unconstitutional, if that's legal, then why isn't the supreme court saying or the government saying everybody has to have a driver's license even though you don't drive? you know, i think it would be better and should be based on the constitution not on passing laws because of favoritism. host: okay, john. guest: the problem is it is based on the constitution because the constitution says that the president apoipts -- appoints the justices. it does not say what criteria the president should use. it does not even require that a justice of the supreme court be lawyer, let alone a judge of an inferior court. some of our greatest appointees like louis powell have been appointed directly from the bar. they weren't judges.

so the president can use any criteria he or she wants to use. and you and i might agree on what the criteria should be but that's not what the constitution says. host: up next we have charles calling in from richmond, virginia on our republican line. good morning, charles. caller: good morning. i'm so glad to get a chance to talk to mr. zirin, because this is a subject that has interested me for the last few years. i have a question at the end i will ask after i make my statement. the forefathers came here and they came from england. and these guys of course came in with bibles and the koran. the system was i don't even want to talk about hillary clinton and donald trump because if our country

lasts it's going to change and change and change. but when they came here, they set up this constitution. they put the bill of rights in front of it. people get the bill of rights mixed up with the constitution. host: charles, what is your question? caller: my question is, if you look at the amendments to the constitution, and you think about they left religious oppression, when they brought the koran and the bible, was their intention to set up a religious society based on shaharya law? thank you. guest: i don't think they considered whether society would be based on shaharya law. i think society was to be based on the constitution and the bill of rights as part of the constitution. the amendments to the constitution become part of the constitution. you start with the first amendment which guarantees the

free exercise of religion so that muslims are entitled to exercise their religion the ame way anybody else is. also the state, the government cannot prefer one religion to the other. that is the establishment clause which has been properly interpreted to prohibit the, or to establish a division between church and state so we're not like england where there is a church of england. host: a lot has been said about judicial activism on the supreme court lately. here is another excerpt from your book. it says "it has become fashionable tongue of liberals on the court as judicial activists, conservatives as practitioners of judicial restraint. the justices on both sides of the debate, however, are often inconsistent in approach and result." can you explain what you mean by that? guest: well, you take the controversy over the right to bear arms.

the second amendment. gun rights. the scalia approach and the conservative approach to the constitution is to look at the tax and give effect to every word of the text. and the second amendment has a preamble, which is an introduction to the guarantee of the right to bear arms, which says, give the right to bear arms within the context of the state militia. the conservatives completely ignore that clause and gave it no effect at all and said there is a personal right to bear arms so you can have a gun in your home. that's an example of a strict cruxist being activist. -- a strict constructionist being activist. there are many examples of the liberal wing being strict constructionists as they were in the citizens united case where they saw no first amendment free speech barrier to the congress regulating

campaign contributions by corporations and both an amount and with other --. host: up next we have mary calling in from west haven, connecticut on our democratic line. you're on with james zirin. caller: thank you for taking my call. guest: hi, mary. caller: hi. my concern, and i hope you will speak to both of these decisions, has to do with our free elections in this country. i think the citizens united has opened up a vast amount of money that we don't know where the money is coming from and yet it is impacting, influencing people's vote in our country. and the other decision was a shelby decision which sort of dismantled the election laws of 1965. i wondered if you would speak to those. guest: i think they are both

examples of conservatives being activists and liberals being strict construcksists, if you take the shelby county case, in which they dismantled the voting rights act, they completely road roughshod over findings painstakingly made by congress that there were bad actor states which were denying mainly african-americans the suffrage in certain states and that the justice department had to scrutinize those states very carefully to make sure there was no discrimination. the liberals said they would adhere to what congress had found and decided. the conservatives said they would make their own findings and overturn what congress had decided. citizens united quite similarly, the conservatives felt that the contribution of money is a form of speech. that requires something of a stretch because i don't think

the founding fathers ever would have thought of political contributions as being a form of speech. since it was a form of speech it was protected and therefore it was unconstitutional for congress to try to regulate campaign contributions. i think the results in both cases are undesirable. they were both 5-4 decisions and both decided along partisan line. host: do you think that the increase in 5-4 decisions or the increase and focus on the 5-4 decisions most supreme court cases come out close to if not unanimous, do you think that has driven the partisanship you see on the court? guest: i think chief justice roberts, who i think has been a marvelous chief justice, although don't always agree with him, has been quite correct to point out that 5-4 and 6-3 decisions are undesirable because of the impact on public

confidence. and he said he would like to see narrower decisions that everyone could buy into. he hasn't really achieved his purpose in most cases. host: our republican line. next is bill calling in from pittsburgh. good morning, bill. caller: good morning. mr. zirin, how are you? guest: how are you, bill? caller: doing very well but listening to c-span, listening to the program, i'm a little more upset than i usually am. we're lly impressed by dealing with your view which is clearly extremely partisan about the persons of the supreme court. and i'm calling to object seriously to the characterization of division between -- the divisions within

the court as quotes liberal and quotes conservative, unquote. you just touched on that a bit. the question has always been at the stages, at what points supreme court should speak. and where it should exercise restraint and allow the political system to continue. he quotes, liberal approach, has been to expand the equal protection clause. the commerce clause. and several others to the point where there is nothing the supreme court can't deal with. and i find that is the basis of the argument. on the court. what has become scandalously

politicized is the choice, selection of supreme court justices. host: let's give our guest a chance to respond. guest: first place, liberal and conservative are labels, i use them for convenience because the popular are used by media and scholars of the supreme court in the discussions. i think generally speaking liberals are justices appointed by democratic presidents. conservatives by republican presidents. there are surprises because there have been justices in the past mainly appointed by republican presidents who have taken a moderate or liberal position. and sided with the liberal wing of the court. and we have had certainly earl warren and william brennan appointed by eisenhower was the two worst mistakes became very liberal justices and found new

rights in the constitution. we had people like potter stewart and louis powell, appointed by republicans who took moderate positions. surprised d souter george h.w. bush. so these are not hard and fast distinctions and what is so interesting is that someone gets on the court and they completely change their ideology and stance. i think the most notable example is hugo black who was a member of the ku klux klan because he was a senator from alabama he said he did it because it was the only way he could get elected became one of the most liberal justices on the court. he was appointed by franklin d. ruse vell because roosevelt wanted to reward the diction yea contracts for -- dixiecrats for their support. host: we're talking with james zirin the author of asks supremely partisan." he's also host of a show called

conversations why the digital age which can be seen weekly throughout the new york metropolitan area. next is david from mount sterling, kentucky on our democratic line. good morning. caller: good morning. appreciate you being on there. the comment i'm wanting to make, i'm a dedicated christian, democrat. i'm a hillary supporter 100%. but what i'm calling about, a lot of my family is republicans, sir. they don't remember there back in 1935 and 1965 when the democrats got social security and medicare in. the question -- i want him to comment on is you go to church, the preacher to get up and say, well, they took god out of the schools and all that. i do know that a lady down south

filed a court decision. it went to the supreme court and i do agree that the supreme court have got the say so all over, all other courts. i would like to comment. i agree with the supreme court on taking the -- when the lady filed a suit against taking prayer out of school. where it says we all created equal. that's what the bible says. host: let's give jim a chance to response to that. the issue of religion in schools. guest: well, we don't necessarily have to agree with supreme court decisions. they are the last word on the constitution. as justice jackson said, we're not final because we're infallible, we're infallible because we're final. it's believed by many that the supreme court is anti-christian, or they want to take god out of

the schools, or they don't like it if there's a compulsory pledge of allegiance. but these are all recent decision that is they have arrived at and we entrust these nine individuals to decide these questions correctly. i don't always agree with the court's religion decisions. there's one recent one called count of greece which i strongly disagreed with where christian said at re said -- public meetings and they divided sharply on that one. but nonetheless i accept their decisions. i also recognize that the process by which they arrive at it is a judicial process with a respect precedent, with an analyzed precedent. and judges do make the law, but they make it in a very different way from the way congress makes the law. host: next we have joe calling

in on our republican line. from dundalk, maryland. good morning. caller: good morning. i'd just like to say that i think the constitution was written to be upheld the way it is written. i have a very big problem with roe vs. wade and the fact that a portion has now become a means of birth control. which is ridiculous. 10, 12 pregnancies over a lifetime that are terminated. i just don't get it. thank you. guest: i agree with you that the constitution was made to be interpreted as it's written. i think one of the great contributions of the late justice scalia was he reminded his colleagues that they muse be lawyers and start with the text. -- they must be lawyers and start with the text, because that's where lawyers must start. often because the constitution is written in such glittering generallyities, the text does not give you the answer.

where the constitution talks about due process of law or equal protection of the law, those words as lofty as they might be don't really provide the answer. so you have to look from there to what the original understanding was. i agree with you. then i think you have to look beyond that and -- because a lot of things have happened since 1789. we have g.p.s. we have d.n.a. testing. we have the internet. we have video games. it's a very different technology -- technological society. and we have to trust the judges to analyze how values that are expressed in the constitution are to be translated into a contemporary technological society. host: richard from germantown, maryland, on our democratic line. caller: i was very pleasantly surprised when i turned on the tv today and saw the title of

your book. i am really shocked at how little criticism the court gets for so many outrageous things. and i'll give you two examples and then i'll love to hear your comment. justice thomas, his wife was paid hundreds of thousands of dollars to run around the country talking against obamacare. yet he sits on the decision and votes exactly the way his wife wants him to. a perfect example of a judge's vote being bought and paid for. secondly, bloody bush v. gore. but for bush v. gore, there would have been no iraq war. every penny spent in iraq, every drop of blood of americans, our allies and on the iraqis, is on the heads of those incredibly

corrupt justices that gave us that decision. host: let's let mr. zirin respond. guest: i don't know quite where to begin. i agree with you that bush v. gore was a partisan decision. it was a 5-4 decision. but later on "the new york times" recounted the vote throughout the state of florida and bush would have won the state of florida if the court had allowed the counting to continue. i don't think it would have hanged the outcome as scalia argued later if they had decided the other way. i don't think that the justices should pick the president. that's not what was intended. that's what madison wrote. i think that was an unfortunate decision for the court. as to the ethics of justice thomas, whom i have a great deal of respect for, the supreme

court, unfortunately, is not bound by the cannons of judicial ethics. that's why ginsberg really didn't do anything wrong when she was critical of trump. and all the other federal judges are bound by those cannons, but the supreme court is not. but the appearance of impropriety is great and i think the activities of thomas' wife are unfortunate because they give ground to the very criticism you have made of him. host: next we have dave calling in from jacksonville, florida, on our independent line. you're on with jim zirin. caller: high, it's great to see somebody -- hi, it's great to see somebody with your intelligence and nonbias or poe laret-- poe layerity on there to on uss this -- polarity there to discuss this. the fathers of our constitution meant for it to be indoor in

that it just wasn't a static document. it was meant to be interpreted to fit the times. along those lines are we still having the madison-jefferson push and pull with states rights between the conservatives and liberals? guest: i think that's right. remember jefferson was not involved in the drafting of the constitution. he was over in france at the time. so it was mainly madison and hamilton, although washington and john jay, the first chief justice, put the oar in the water. i think the problem that they faced was they had to get a government. and in drafting a written constitution. and they realized there were many issues, notably the issue of race, which would have to be left for later day if they were going to get a constitution at all. and that is why we had to wait

until 1868. the equal protection clause. and we probably had to wait until 1954 for brown v. board of education to see the full exposition of what equal protection of the laws would mean. host: next, connie on our democratic line from new jersey. good morning. caller: good morning. came here and i i became a citizen i had to study to get citizenship. but i understood from the constitution is whatever we put in is to interpret the constitution. i'm a liberal. i'm a conservative. they were there to read the papers and interpret them. no matter who he favors for. another thing is, you know, when

i go to thomas and alito, think they are for the republicans. and why we have this fight about -- people going to be to interpret the constitution. not in favor of one party or in favor of the other. host: we only have a few second left. i want to give our guest a chance to respond. guest: i agree with you that we have to interpret the constitution as it's written. i think it's inevitable that the justices breathe their life experience and ideology into their interpretation of the constitution. you look at capital punishment, for example. at the time of the constitution we hanged people for horse stealing. at the time of the constitution if you kissed your wife in public on sunday they put you in the stocks for 30 days. is that a cruel and unusual

punishment? certainly wasn't then. it is now. you would think can't imagine a judge who would uphold it except scalia said it was stupid but constitutional. but i think that while as much as scalia hated it, the constitution as a living document and to some degree justices have to breathe into it he experience of modern life and contemporary society which is what oliver wendell holmes said a judge should do in interpreting the law. host: author of "supremely partisan" how raw politics tips the scales in the u.s. supreme court. an be found on his website