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serving in the u.s. senate as the democrat from wisconsin. he did that from 1993 to 2011 and is now the president of the american constitution society. senator feingold, thanks for joining us. >> tell us about the organization. what is it about and how was it funded? >> the constitution society was founded after the infamous decision of bush v gore when progressives and moderates and even conservatives realized the court is becoming very political. basically decided the presidential election and it was a feeling those on the right had come up with a plan to control the legal system especially the courts and so this organization was created to say we can't let that happen. that means challenging some of the writing is like over journalism, textualism and ways of interpreting the constitution butes also created a national network in over 200 law schools,

55 lawyer chapters and lawyers who were concerned about the legitimacy and we also are very activist on issues such as wanting to see some reform of the united states supreme court so it includes many lawyers and the purpose is to make sure we have a legitimate legal system that fits in 21st century but the constitution is applied and the reality of the country and izmultiracial democracy in the 21st century. >> since the appointment on the federal level takes place in the senate which usurped plenty of times and talk about the political process involved and the actual process of putting people in courts through the process of approving them through the senate. >> the way the founders and framers decided to set this up was the judges would be appointed by the president of the wasn't the ende of the process. the senate has the rule of advising and consenting on all nominationss so that his

ambassadors and executive appointments of a certain kind but also all federal judges and of course federal judges were basically lifetime appointments. so once the president nominates somebody there's various background checks and ultimately it goes to the senate judiciary chaired by senator richard durbin of illinois. it should go the way it should and then they vote on the committee and the nomination is sent out to the floor of the senate. when i was in the senate and the theory you could have needed 60 votes to break a filibuster if there wasta resistance. that was changed by harry lead so now in the majority vote p sufficient to confirm in other words put a person on the bench for life and it was originally to the court of appeals but also more recently applied to the supreme court so that's a big change from when i was in theth senate but that's sort of the process and once that person is

confirmed by a vote they are sworn in and a judge for life. >> the judge being approved what does that number suggest to you? >> the constitution society about the success for the first two years of the biden administration people abused the process. the biden administration having 97 judges confirmed in two years to trump cd5 and now although things got off toor a slow start this year and they've not only got into 100 with the last couple of days 104 and we think today it will be 105 that's very impressive and not just impressive because of numbers but as important as that is it's because of what they are doing. this administration is historic in the diversity of the people that are being nominated and

confirmed. seventy-five of the 100 people are women actually 76. sixty-eight are people of color. this is the opposite i think of only 25%5% of trump's nominees were women and even smaller percentages so the goal here is both of the return of the judiciary to people that are legitimate to judges who don't have a political agenda are not just partisan but also they reflect the population of the country. both in terms of personal background but also professional background. this president nominated and the senate confirmed a lot of people were public defenders. people represented plaintiffs in have been on the side of the little guy so we think that this is a proud moment but also think they have to move even faster in the next two years in order to avoid the fact president trump

got through 234ma judges in four years and that's still a pretty big mountain to climb if you want to achieve that. >> as far as getting more than the previous administration. >> that is just a measure and the point i was trying to make. to ensure that you take there opportunity to undo the damage that was done by senator mcconnell and putting as many right-wing ideologues on the court but the point is more importantly each individual judge can have a f huge impact. each one matters. it might be a federal judge in miami handling one of the cases having to do with book banning. it might be something to do with immigration so each judge matters tremendously. yes in terms of numbers but also in terms of who's nominated. in terms ofhe who is going to represent a judiciary that has been far too biased in favor of white males throughout the

history. that is something that has to be done in order for the courts to be seen legitimately. the supreme court and court system has basically taken us back. polls suggest 25% of the american people have a positive view of the supreme court and that's because they sense that there's a great deal of politicizing going on and so the goal here replacing people who are very extreme but also getting people to feel more confident again that the courts are on the level, that's the most important thing to us at the american constitution society. we believe the courts matter. >> joining us for the conversation of the constitution society served in the senate from 1993 to 2011 and if you want to ask questions about legal and judicial matters, 202-748-8001 for republicans, 202-748-8000 for democrats and 202-748-8002 for independent usl are there ways to streamline the

process that was satisfied both sides? >> not sure it was satisfied both sides but the process should be streamlined and let's talk about the lower courts and courts of appeal. we've proposed as an organization three changes be made to move the processic more quickly and that is to get rid of this thing most people haven't heard of called the blue slip. there is a procedure in the senate and i was in the senate for 18 years if there's a judge nominated for the federal court in your state they send you a blue slip of paper to your office if you were supposed to sign offes that you approve. this is the senate tradition that the idea behind it is to make sure nobody that seems bad for the state gets in but the truth is it has a very dubious member. this was used by senator james eastland of mississippi. the chairman of the judiciary and the civil rights era to make

sure only segregationist judges would be appointing. they were in charge of the senate and got rid of the bluea slips for the court of appeals. they said look we are going to ignore this tradition. now the position with many vacancies happening were the district courts across the country to decide if they are going to let the republicans use this failure to return blue slips as a way to prevent judges from being confirmed and we've taken the view that thatilth wod bere a mistake. this doesn't require a formal rule change. it's up to the chairman of the committee and we've urged the senator to consider this and i think he is. he's trying to get republicans the chance to not obstruct that we feel that may have to happen. his two other changes that we think ought to broker to speed up the court of appeals process. you just need a majority in order to get past the filibuster

were the court of appeals for the high court lifetime appointment you just need a majority but once you have shown that you have a majority they still have 30 hours of debate in the senate on the nomination which makes no sense because obviously the votes are already there and it's just wasting time. there's a career about money and politics and in the senate time is more important than money. like what gets the attention. so all the time when you would only get two hours for the ydistrict court judge that doesn't make sense and we think that you should be able to consider in a number of nominations at the same time. it would benefit both parties. russ feingold on the constitution society joining us for the conversation he serves as their president. the first call from south carolina, republican line.

you're on with our guest. go ahead. >> it's good to see you, mr. feingold. i think what happened with the supreme court was fdr.it he was in office so long that by the time he left he had a really liberal court and itio stayed tt way. that's how roe v wade got to court so it wasn't until republicans started to get the majority in the senate. probably in ten years it's going to be ruling in a way that i don't like but there is a lien in the court that says anything

that's not enumerated is up to the states and i am a republican to the core. i think that should be the guiding principle of the united states. there'ste too much federal government. it's good to see you. i miss you guys. hispanic appreciate how friendly. a lot of what you said makes sense to me. i grew up believing the court was on the level. you had a chief justice for oa r bakersfield california. justice brennan many people like me who are on the liberal side considered him one of the greatest justices and president kennedy appointed the football

story and he was very conservative. that's changed and now we have people on the court showing they have a political agenda. it's so predictable what they are going to do. it was demonstrated in the case where they actually throughout 50 years of precedent. they hadad the chance to appoint more people but here's a fact you will realize this in my lifetime, there has never been a democrat appointed and confirmed. i'm about to turn 70-years-old. so when we have a court now where it's perceived that there is a party bias going on in the court, it isn't easy to believe that it will be returned to as

situation where people can be comfortable. our goal of the constitution society the goal is to make it seem legitimate, to make people feel that the judges are actually ruling on the facts and the law not their own personal political preferences, so that's where we are at on that. >> host: wisconsin o only independent claim, this is john. >> i would like to talk about the upcoming election and the wisconsinab supreme court for te political bias one way or another and no liberal judge. she's pretty much saying in her tv ads she's going to vote to overturn the republican district

maps and is laying out her political leanings and her ads against the state constitution but it's not regarded to be. one other quick thing how joe biden has hired more judges for their sex, race or gender don't you think the best person for the job no matter what their race, color, creed or anything personal shouldn't have anything to do with it. it should be who is the most qualified for the positions. >> i of course agree with that and president biden was on the judiciary committee when i was

there for 16 years and i guarantee the people that he has appointed are the best people they happen to represent the diversity of the country which is very important for far too long. theyhe picked people that are enormously qualified starting with our new supreme court justice jackson. miles from where i grew up, beautiful place, we have had a problem in wisconsin for too many years of the court being politicized. it didn't start with this race. i know the judge you are referring to is not the only one who is being pushed to positions of how they would rule. it's a very important and she has a long record as a circuit

court judge where she has shown herself to be independent but we have a reputational problem in the supreme court not unlike what's happening in the united states. it appears very biased politically and frankly more on the conservative side during the last few years. that is very damaging. i am hoping if there's a change on the wisconsin supreme courtis it can begin an era where things don't always look like they are going to be 4-3. one of the conservative justices who has cited occasionally with some of the more liberal judges on the u.s. wisconsin supreme court, so there is some hope after this and i have no idea how it's going to turn out but i can assure the viewers it's not the only one who is being put in this position for people demanding positions.

you talk about the quality of thee biden nomination. you probably saw this story from a couple of weeks ago senator john kennedy questioning trying to help, she being nominated to the district, couldn't answer basic questions about the constitution. is that a one-off were as far as the biden nomination and who they are putting forward? >> my guess is it was more of a one-off and i've seen the senator kennedy do this sort of question. some of the things he asked maybe i could have answered, but teaching constitutional law, this is not necessarily the way that you want to do the confirmation process. i know that that has not been the problem with most of these because they've asked toughud questions and not only have they been able to answer them but on a number of cases, people got through the committee with one a or two republican votes. so i do not think by any means are the people that are being appointed are unqualified in fact we look pretty closely at

the constitution society to make recommendations. they've been nominated and confirmed. these are people we have carefully vetted and believe they are highly qualified and have every reason to think so. >> senate minority leader mcconnell took a moment on the senate floor talking about the a story. he put it in the historical context when it came to the supreme court nomination. i want to play a little bit of what he said and then get your response to it. >> they suggested now to the questions a little over two years ago. she literally dazzled the country with her force of intellect. at one point, i was sent to a hearing after being asked questions about the finer points of the constitutional law and now she was asked to hold up the

notepad she had been provided to keep everything straight and it was completely blank. she hadn't even touched it. for the judicial nominees and republican senate confirmed from a 2017 through 2020. >> what is your response? >> i think senator mcconnell must have somehow missed the most recent supreme court nominee. why doesn't he say that about ms. brown jackson who was brilliant in that hearing. i was on the judiciary committee and i thought largely justice amy coney barrett was treated with respect. i feel that ms. brown jackson was treated very harshly and people sort of auditioning for a presidential campaign they were just plain rude to her but i

never saw a point in the process where she wasn't capable of handling the question in fact she was brilliant. and reviews even from conservatives now show exactlyab who she is. why would senator mcconnell make a big deal about the nomination and not acknowledge the most recent one was a tremendous nominee but who is enormously qualified for the court, it's not fair to only talk about one thing. >> host: bill on the line for democrats, good morning. >> good morning. i'm different than the other callers. i think every judge that has been confirmed whether for the trial, appellate or supreme court if they've been qualified for the job. my problem particularly not so much that there is a liberal but

virtually every one of these appointees have an ivy league school background that they all served in the judiciary and lower positions. they are all too much the same and in spite of the differences that appear in the complaints about these differences if you look at all the cases in any term and they have difficult problems with them, 80% or decided they are too much alike whether they are too much a different, what do you think? >> i've been concerned for years that the united states supreme court is beginning to look like a priesthood where you havepi certain steps you have to go through and if you don't go through those exact steps it means going to a very good law school but also becoming a judge

at a young age and having little contact with the rest of society. i mentioned earl warren, he was a politician and i happen to be a former politician but i think that it's great to have a mixturepe of backgrounds and experiences so the people who have a real-life experience where they are not required to be so careful, which judges have to do is important for informing the thinking and the debate and deliberations so going forward n hope that there will be people that don't just fit that model. that used to be the way it was and i think it is damaging the institution because people have a hard time relating to people that seem to be almost completely from the same sort of training background and career background. it's not adequate. >> there's a viewer that suggests term limits and he's thinking 12 years is enough saying the current judge is

legitimate because they lie under oath and say roe v wade was a federal president and clarence participated in an attempt to overthrow. but when it comes to the actual changes as far as term limits for the supreme court, what do you think? >> we act the society think that's right that there needs to be term limits. this isn't something i would have said in the past. remember we felt that it was on the level but the problem is now the supreme court was stolen by mitch mcconnell you donald trump. they denied president obama's right to fill the seat and they basically stole the future an opportunity to fill in ginsburg's seed to sow the court has been basically stolen in terms of the legitimacy of who is actually on the court. so we need reform because these folks are in their early 50s mostly. they will be out here for 30 years each. something has to be done to undo this attack on the legitimacy of the court.

first thing i think we should do is add to seats. the congress and president can add to seats. it's not something you want to do but given the theft of these two seats we think other people are beginning to think that needs to happen. a second, we do support having term limits. one of the callers said the conservatives were the first toe talk about these. they propose to the federal society an 18 year term limit. we don't weigh in on the exact same time. people could continue as other federal court of appeals judges but in this limit most people think that is an amendment that is hard but there's a lot of scholars that think they could do without so we support that as well and the kind of reforms you were eluding to. we think there should be an ethics code. they don't have one. the other federal judges that have had one have to have a basis for when they failed to recuse themselves.

i made sure those rules were applied to members in congress and there ought to be some reform of the so-called shadow docket which is a kind of hidden docket that is supposed to be for emergencies but it's being used in a lot of cases for very. important decisions substantive decisions where they are not even issuing a real opinion. so we support a whole range of reforms and we think this is the moment where this has to end. the court has become highly politicized. even though they may be intellectually capable. it took protecting the women's right to choose and on the basis 'of very flimsy historical

evidence. the justices have been part of the damage and they are undoing on doingany limitations on y thd second amendment which i happen to believe there is a right to bear arms but they are taking it to an extreme. eliminating for generations to make sure there's some rules for how you can brandishhe a weapon and they are taking this to town especially on voting rights. these justices havegh done enormous damage to people in this country to have the chance to vote. it began before but we are fearful that is going to get even worse in this supreme court term with the cases before it so the most fundamental rights to be able to vote is being undercut by the justices that you mentioned. the combination of them with of the ones already there it really looks like the court is biased and has a political agenda and it doesn't respect precedent. the precedent is the whole basis

of the legitimacy. the founders didn't intend that it would replace congress but that is what they are doing if they ignore the precedent. >> joining on this conversation president of the american constitution society. here is carl in florida on the republican line. you are next up. >> you are talking about how inclusive biden is and the equitiesre -- anyway because he put 49 women judges out of 104, whatever it was. in the america i grew up in, i'm 67-years-old. i thought it was still somewhere between nine to 13% black so how

it would be 49%. >> this is 49 new judges whotu will start undoing the enormous bias, so the actual numbers are overwhelmingly white and overwhelmingly white males but with these changes it doesn't come close. the historic record is black women, latina and others have not had the same fair chance to be on the court so this is merely making up for historical discrimination. it's a very clear to the viewers this doesn't mean 49% of the people on the courts are women of color which wouldn't inherently be a bad thing but it's not the fact. >> host: democrats like new jersey. here is richard.

>> over journalism. i have a debate about the woman who didn't want to do [inaudible] i watched for about two hours and i never once heard them ask for the definition but totally ignored the text and going back to some originalist bs and therefore come up with any answer they want. is item possible to pass a law n congress that says judges have to stick to the text? now you can come up with anything you want. expressing the view i think the idea of citizens can carry guns [inaudible] it came right out of his belly button.

it's not in the text at all, period. anybody can see that is so this is a problem as far as i can tell. >> and the use of the so-called originals demand contextualism first that shouldn't be the whole an analysis. g they should say this is what we think they meantu but here is e world in the 21st century and how the constitution is going to work with the people that live in this country but you are right they use this in a completely phony way to get the result they want they pick and choose the words and began to choose the laws about abortion from a certain period and they don't look at the traditions from another so it's completely manipulative it's not a legitimate approach so that's why people have to realize when people talk about over journalism and textualism theyt are not really following the intent. the intent of the founders and the draft of the constitution was the people of the country be able to adapt the constitution to the times we are in. george washington said at the

time of the adoption of the constitution when the proposal was donene before it was sent fr ratification he said he was going to support this because under articlee five of the constitution he said at the people of his time certainly will not have more wisdom and experience or understanding than those of the future so the idea that this just gets tired to some mythical idea of what wasfo going on is usually used in a bogus way and we need a more holistic look at what the law needs to be understood as now that was flexible to adapt to a period like the 21st century it is onlyre people that are demanding this very cramped version of reality that are causing it to not be able to be adopted in that way.. >> is that adopted making changes to the constitution? >> it would be ideal if congress didn't have to weigh in but it works in two ways. one is to have two thirds of

both houses propose an amendment ande then three fourths of the state have to prove that. that's the only way it's ever succeeded. but there is another mechanism which is the calling of the constitutional convention that can be done by two thirds of the stateses applying for a conventn and i just read a book about this with a student of mine warning that the far right is trying to call on one of those conventions that would allow each state to have a vote so t that it could undo the constitution so he pictured in my book the constitution in jeopardy which does address exactly the fact that we do need to be able to amend but we have to change the way it works so it doesn't end up in a vehicle to undo the basic understanding ini philadelphia in 1787 at 1789. >> from virginia, kathleen you are on with russ feingold. go ahead. >> caller: i am old enough to remember judge amy coney barrett

not knowing the first five unamendment freedoms in her confirmation. but i'm interested in knowing whether you think related to your book whether a constitutional convention is more likely and also want to know if you think the blue slip process will make the president less likely to consult with home state senators, and finally, senator, will you run for president in 2024? >> the last one is easiest, no i will not. second we have to get rid of these blue slips and i can assure you the politics have been the center. just because there's a blue slip process, that's not going to change the fact the president is generally going to want to consult with a senator nanda say we are thinking of appointing this person because generally they want to be on the

pesticide. we are concerned in terms of the constitutional convention even though as a legitimate mechanism the so-called convention people are trying to put together a convention that would be so biased in terms of delegations that each state whether it's wyoming and california would have the same boat and so you have the problem we already have, filibuster each state is having to senators, electoral college. we don't have a majority system in this country. if you have a constitutional convention where a simple majority of the states can undo things like the power of congress, the power of the ability, that would be damaging and take us back to the articles of confederation.

we are concerned about it and fortunately in recent devotes this effort has failed in montana s and i believe this wek in nebraska to move forward but they are trying to get to those state applications that allow them to require congress to call the constitutional convention. >> as far as the supreme court cases you are interested in following that are being heard? >> guest: we are concerned about the cases that have to do with the independent state legislature theory which as you know is this idea that somehow a state legislature in this case it is north carolina can ignore concerns by the supreme court about whether or not the legislative plan is legitimate and one of the reasons we are so worried about it it's not just about reapportionment it's huge for the right to vote but it cal be applied to anything potentially. they can say we are going to decide who one in north carolina. we are not going to consider

what the majority voted or what north carolina did so it's a crazy notion that a state government whatever powers the state has in the constitution is only the legislature that are often gerrymandered to put it doesn't include the people or the supreme court so that case is of tremendous concern. we are concerned about the affirmative action case. harvard and north carolina cases where there is a strong possibility that a long commitment to affirmative action would be undercut were destroyed given the process in this country and dealing with the historicns founding failures and racism in this country to undo the work the affirmative action has done in the universities i think would be a tragic moment and they areur very concerned tt that could come out of the court. the court is not on the level and has an agendaa that has been present for many years and one of the things they've been wanting to do is to simply undo

this way of changing the fact the country was based on a very verysevere discrimination that continues to this day. >> t on the democrats line go ahead. you are on. >> first the supreme court wents after muslims been voting rights, human rights, women's rights, said religious schools could take taxpayer money. going after rights and who is handing crazyit mentally ill people assault weapons? terrorists, republicans and the supreme court. citizens united c is named after keep it classy, t robert and it converts into an escort service. where do they get their people, from the jerry springer casting? >> guest: i haven't heard a jerry springer reference for a while. i don't agree with every word of how you characterize to those but overall, yes the court looks like it has a political agenda

and it's a far right political agenda to undo many decades of congressional action and court decisions. they are trying to make this a better society, more tolerant where we can feel like one people instead of having one side dominate the other. this is an attempt to basically create multi-protection of minorities or make sure the majority doesn't impress the minority but it's trying to put in place minority domination of the political system. the court unfortunately seems to bebe reflecting it and that's wy the reputation is in the dumpster. >> host: daniel on the republican line. >> caller: thank you for taking my call. have a couple of comments for the senator. first one is i t get it that you are not in favor of the originalist interpretation. however if you have a living

constitution what you have in that case is they did constitution because you have no principles on which to go.ge you talk about politicizing the courts. the courts have been politicized by' the left for 100 years. fdr tried to back to the court. you had to the current president who did a character assassination on robert bork. these things are just, it's been going on for so long and then you talk about -- >> we will leave it to those. thanks for calling. >> i think i said earlier in the program i don't reject the idea that you want to look at what the original intent is as a part of your analysis of the constitutional case. it suggested that you have to also look at the era that we live in and whether or not then application to the current situation makes sense how does the court look at the fourth

amendment? unreasonable searches y and seizures. obviously the founders didn't know. this has to be applied to current circumstances. if you go back and look at the answers to the questions about the judicial philosophy, you see pretty much what i think is right. my job is tot look at every kid of source, original intent to the extent you can figure it out, what's been said since and to rule the best you can instead of having some kind of an unprincipled commitment to politicalan objectives so i thik it should be a combination of things and in the end judges should act like judges rather than politicians. >> one more call from bob in kansas on the democrats line. >> i'm wondering how if senator

rob johnson is able to continue to win with all of the lies he spends. >> guest: i am not a political pundit and i will leave that question two others who are more capable. >> what have you learneddg about the system outside of congress and the approach that you have? >> i knew this but i didn't know it as intent as i do now. courts matter i don't care who you are. everybody needs a doctor, people really like doctors without borders. people care about what we do at the constitution society because society becausewe believe that s affect everything in our lives whether you are on a business deal or you have a kid in school you think ought to be able to read a book about roberto clemente that they are trying to keep kids in florida from doing. where a lot of this action is and always will be. if you don't have courts that are legitimate where people feel

they get a good deal that undercuts the whole system of government. i knew that but i feel it much more intently. >> host: the website for the constitution society and the president who served in congresi on the senate from 93 to 2011, thanks for your time.

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