mccain is absent, it is a 50-49 senate. one republican senator can decide the fate of any supreme court nominee. >> president trump will announce his nominee for the supreme court, filling the vacancy left by retiring justice anthony kennedy. what's the announcement live monday night at 9:00 p.m. eastern on c-span and c-span.org , for listen on the free c-span radio app. steve: joining us on "newsmakers" is carrie severino. chief counsel and policy director for the judicial crisis network. thank you for being with us. carrie: great to be here. steve: joining us today is niels lesniewski for cq roll call and greg stohr, bloomberg news supreme court reporter. let me begin on roe v. wade. if that is the litmus test for at least two republican senators and the majority of democrats, are there any names mentioned that are red flags? carrie: i don't think we know

how any of them would necessarily vote. this issue comes back. it is a scare tactic going back to the 1980's. justice o'connor was the vote they were worried would overturn roe v. wade, justice kennedy, justice souter. all those ironically for the same three devoted to uphold roe v. wade, so speculating what anyone would do is very difficult. even i know judge barrett is one people think has more out there than others. i was watching a recent video. she said this is not the way to look at a judge at all. judges are not saying here is a case i want to overturn. here is how i'm going to do this. they are supposed to be looking at the law, look at the facts of the case, and decide based on the text of the law and text of the constitution says. any of these top three we are looking at is going to do that. at the end of the day, senators

have said it is the number one thing. yes, they are concerned about roe v. wade as a precedent, but the biggest concern is someone faithful to the law, abide by the constitution and that is what we have seen and all of these candidates. steve: we heard from senator collins that roe v. wade will be a decisive factor for her? carrie: share. -- oh sure. that is totally understandable. it is difficult to predict what any of them would do. this is not something the president can or should ask. it is not something that perhaps they will ask it during the confirmation hearing. it is not something they should or could answer. in accordance with a long tradition, justice ginsburg being the most orifices event they can't answer questions , about what they would do on a specific case. that is important because it may be one thing to say i have read this decision, i think this is how it should fall. but when you look at an individual case and when they are deciding a case, they aren't just going based on the reading

of that one original case. they will have thousands of pages of briefing on both sides going into arguments they may not have considered, precedent might not have considered, historical arguments they might not have been aware of. this is the reason it is improper for them to prejudge what they would do if they were in that position. you don't know the facts of the specific case are. it is also important to remember after justice kennedy's retirement, the swing vote is chief justice roberts. whatever this next nominee would do, it is premature to decide -- assume it would be the deciding vote. chief justice roberts is not someone who wants to move in major steps. he is an incrementalist and would rather avoid the issue altogether will have seen of his jurisprudence. just a follow-up on that. agree over the past 45 years if there is one legal , issue that has tied together

legal conservatives, it is that roe v. wade was wrongly decided. would it be a huge disappointment if this nominee did not support overturning roe v. wade? carrie: criticism is not limited to pro-life circles. you have people like laurence tribe say there is no law there in this opinion. even people who agree orbit like a result whether there is widespread abortion access or think there is elsewhere in the constitution you can find it, they are in the ballpark of saying roe v. wade is poorly reasoned. i think a lot of it goes back to the question of what is your approach and how does one move going forward with the decision with that question? i think it is something that maybe the president has certainly said this is something he is hoping for, but every president is entitled to have the things they hope the judge does. at the end of the day, a judge is not a fairy godmother who will give you your wish list. it is not santa claus who says

here are the top 10 cases and you want this or that down. what you are looking at is someone with a traditional philosophy they will be applying the cases. that may turn out very differently from what you predict. and a cases, yes, that might be the case. there are so many other huge issues that we cannot predict. the commerce clause challenge to obamacare was a gigantic supreme court issue. is that commerce clause something being asked of people or thought about when these justices, including chief justice roberts, was being vetted for the court? not really. we can't predict what the next big question is going to be. i think that is why it is important to focus on their philosophy. at the end of the day judges are not supposed to be for a specific result. they need to be there and it is something americans across the board would like. they are there to interpret the law as written. that puts the ball in the court

of the legislature and allows the american people to elect them to determine the policy direction of the country, not the courts. greg: i was not necessarily going to go here but following up on that, what did you think of the decision in the quill ane, which was kind of coverl divide -- i the senate regularly, an unusual divide for justices. does that tell us anything about where the chief justice may be going in the future? carrie: the way fair case? again, it underlines that the chief justice frequently was the harder to predict swing vote. maybe some of that is flowing from his own judicial philosophy. in his confirmation hearings, he said i'm not an originalist. i don't have a specific philosophy. that makes it much more

difficult to predict because you don't know what analysis he is necessarily going to use in a specific case. so it is not surprising that may case we couldis not -- he doesn't follow along with the traditional line. he is not going with an originalist philosophy exclusively. it is harder to predict him. that is again why it think it is a distraction to focus on one case because we can't predict the case anyway. i think chief justice roberts, whatever approach he is doing, it is an incrementalist approach and he does not want to make these big, overwhelming decisions if he can help it. niels: conservatives used to talk a lot about judicial restraint. which in at least one definition means letting the people's elected representatives make decisions rather than have judges make those decisions. are the candidates that the president might nominate people who exercise judicial restraint?

carrie: yes, but i don't think the definition is the definition i would embrace of judicial restraint. our constitutional system does not say in all things people's representatives make the law. it is all things are in the constitution stops. they have limited authority. it is only the authority the constitution gives them. that was one of the questions in the obamacare case. but also they have limits on the bill of rights and limits on government power. where there is something in the constitution, then the courts do need to step in to validate laws that violate that because they exceed the government's authority or violate those limits on government. however, apart from that, i think the idea is it is not for a judge to bring his or her view of politics into it. we should try to avoid wherever possible coming up with judicial tests in general.

it is dangerous because if the test is not in the law or constitution, then you have a case where a judge is bringing in his or her own view of how do i think this major , question should come out? it is something power system -- our system leaves to the people and their a elected representatives. that should leave a wide berth for the legislature, but not an unlimited one. niels: wouldn't liberals say a lot of the same thing? it's just that they look at different limits in the constitution. they would say lawmakers are limited to the extent they violate the due process clause the equal protection clause, and , that is the philosophy behind the gay marriage decision, roe v. wade, other decisions i suspect you disagree with? carrie: there are different interpretations of where those constitutional boundaries are. i think that is really rubber

hits the road in many of those cases. historically if you look back at thee war in court, -- warren court, there was not this idea that we are bound strictly by constitutional limits. it is how can we find an area in the constitution to hang our hook and then we can cast a wide scope for moving things in the direction we think the constitution should go. the question is, do you try to understand those terms as they were understood by the people who ratified them? that could be the framers. it depends on when it was ratified of course, when that relevant question is. the idea that is what we are looking at, not today will i read this and think -- when i think due process, i think something expansive and broad. that is one interpretation. when we are reading laws, we have to look at the words as they were actually passed. we have to be careful not to redefine the terms.

that is the question that would ignite debates. i know justice scalia and justice breyer had a debate team going around. that is one of the things they would talk about, how broadly you can look at some of these things. at a certain if it gets too point broad, then it is just an empty vessel that supreme court justices can import their own view of the world. we don't elect them. we don't elect them at all. that is not why they are there. they are there to interpret and bring into effect the laws that are passed by the elected representatives. if there are people putting content into the law, it has to be the legislature, not the bench. that is something everyone ought to be able to agree with. because i don't think liberals would like justice thomas to be importing his view of how policies should be done into the

court any more than conservatives might want justice ginsburg putting her views in there. if we could have everyone agreeing on how to limit the courts that way, i think that is a recipe for taking some of the politics out of the system. unfortunately in a world where that does still happen a lot, if -- this is what justice scalia talked about, if judges are behaving more like legislatures if the words are placeholders , for whatever content the justices want to import, then we do have a political race. that is not what we ought to have. greg: can you speak to the extent the three finalists we seem to be having right now for filling the kennedy seat come the extent to which they are on a sliding scale of originalism? if there is anyone that is more of a strict constructionist on that final scale and your view? carrie: the great news from my perspective is we have an embarrassment of riches.

you have people like judge amy coney barrett, while she has not had as many opportunities on the bench to show mercy applies originalism, she happens to be a leading scholar for originalism. there is not a lot of question of what would she really did given this opportunity. she has written extensively on this and understand steeply at a theoretical level what is going on with originalism. but other judges have a real pattern -- when you're deciding a case on appellate courts, you are bound by precedent. supreme court precedent is not a -- always something the judge might agree with. or may think this is a test or rule that was a grounded in original understanding. but then in an opinion, and in a particularly judge kavanagh does this going back to first , principles and discussing here is what the original understanding is. but he isn't able to affect that

if there is contrary supreme court precedent, but even just remembering to get that out there. as a matter of principle it is here, but precedent is here, so we will apply the precedent we have. for me, it would be a difficult decision. i'm glad i don't have to make a choice among these three. it is a good problem to have. steve: if democrats remain united with the razor thin republican majority and john mccain is unable to vote, do you think he should resign his senate seat? carrie: that is senator mccain's call. it is a significant time for him and his family. that should be his call to make. there is a big if on if the democrats are united, because as we saw with justice gorsuch, three democrats even last year voted to confirm justice gorsuch. i think when you have a nominee who is so well qualified, likable, evenhanded, has a history of listening to both sides of the argument and well

respected, not necessarily well respected by democratic senators, but from people he had worked with closely and had argued a case before him. they recognized that. each of these potential nominees has that. i think it would be hard for the democrats, particularly the three who voted for gorsuch, but really many others up for reelection and states who went for trump, to vote against the nominee like that when their alternate choice is an extreme party line that is something that will be very popular in their state. it might play well in california, massachusetts, new york. i'm not sure how that plays in missouri, west virginia, indiana, florida. all of the states. i think that will be a more difficult question. it is not like last year where they can say my constituents will forget what happened. it will be very difficult to forget a vote in september for the november election. it is a time for choosing, and they have to make that choice.

steve: is this different because the seat is different? replacing justice scalia versus justice kennedy? his role as a key swing vote with the majority weather 90% of the cases. carrie: he was a swing vote that was still more conservative than not. particularly in this last term i think he voted almost 100% of the time when he was that swing vote with the conservative members of the court, and of the justices on the court, justice gorsuch was the one with whom he agreed the most, and vice a versa. it is interesting to me that for someone who everyone thought would be decidedly to the right nominated when he was it did not turn out to be the , case. i think people overestimate the distinctions here. there are major issues. any subsequent justice will different. gorsuch is different than scalia in certain's has taken. the supreme court, 40% of the cases are unanimous.

i predict this next justice like gorsuch would actually vote similarly to how justice kennedy would have voted. there is always a change anytime there is a new justice. it is a new court but the shift has been dramatically overstated. greg: i want to ask about judge kavanaugh. back during the fight on obamacare, he wrote an opinion that said we should throw out this challenge to obamacare on narrow grounds. is that opinion going to be a concern for conservatives? carrie: i don't think it should be. some people have looked at that and said is this the same thing we were afraid we saw and chief justice roberts? i don't know the inside story. i think a lot of people their conclusion was he looked to have the potential that was legally correct but had major real-world implications he did not want, overturning obamacare, and he blinked and found a sneaky way out with the tax penalty distinction there.

with kavanaugh's opinion, he did clearly write about the problems underlying the law and the major issues. his question had to do with the anti-injunction act, an argument the supreme court -- i think 9-0 they said the injunction did not apply there, but that is a question he has faced elsewhere in his time of the d.c. circuit and it fits with his understanding of the anti-injunction act in general. he may have it atypical or idiosyncratic view, but i don't think the look is whole record he is not the kind of person who , is looking at a case in trying to dodge the important decisions. that narrative, i don't think that is what is going on. you look at his decision recently saying the form of the consumer finance protection board was unconstitutional. this is a similar kind of thing. when he sees the legal result is one that even has a major real-world effect saying this

whole branch is unconstitutionally constituent constitated he is , willing to go there and has done that time and time again. steve: a few minutes remaining, niels lesniewski. niels: assuming monday evening that president trump does not come out with someone who was not on the list of 25. assuming there isn't a reality television program surprise coming at us monday night, what are you prepared to do, and what is your group prepared to do in terms of ad spending? have you made reservations? are you ready to back which of the nominee is, assuming it is not, like i say, some out in left field choice that we aren't familiar with monday night? carrie: i am confident he would choose someone from the list. the president has gone back to that and reinforced that. which gives me the confidence to say we will be able to fully support these nominees. it is an amazing group of people

that are under consideration. when justice gorsuch was prepared withwere websites and ads on various candidates. we are in the same position now. it is an embarrassment of riches. i am so pleased to have this choice before us. whoever it is we are ready to , defend his or her record. they will be attacks. there will be character assassinations, distortions of their record and outright lies and deception, but that is why i am happy to be where i am. i know that person will be -- will need defending and we will be happy to stand up for them. niels: is your focus on swing states where there are democrats? or is it more on alaska, maine? how do you break down the divide where you focus your efforts? carrie: our focus would be those swing states. i would love to expand the three democrat margin we had last time. especially given the choice

clearly in front of 70 senators up for reelection. when these senators will be accountable to their voters in their state, who mostly supported trump on this issue more than anything else. there is a lot of variety about his immigration policy, trade, but the supreme court will more than a fifth of voters said that was the number one reason for going to the polls. this is an absolute winning issue for president trump. people of justice gorsuch. that is a difficult issue for those democratic senators saying this is where i will put down my marker on the resist trump thing. other issues may be, but we will have to see a lot of democrats who feel they have to vote for someone who will be a nominee. niels: how much are you prepared to spend in support, and will you disclose your donors to tell the public who is behind the ads? carrie: we spent $10 million during the gorsuch campaign. i don't want them to spend another $10 million, but we are ready to do that and ordered we see the need. i see this heating up.

we do not have to legally disclose our donors. we have an obligation to them. in a world of red hens and maxine waters all of the attacks , we have seen, particularly on conservatives and members of the administration, i feel like i have a duty to my donors to give them confidentiality. we have seen the demand from the other side to attack these people. same position, they don't disclose their donors either. it is a common position. greg: -- steve: when you talk about attacks, doesn't the president bear some of that responsibility? he has been forceful and critical going against senator warren about the issue of her genes and heredity? doesn't he bear some responsibility? carrie: i think the president said she should have a love to sit down with her family and eat in a restaurant. that is what an talking about. the personal harassment. that has no place in our political system. we should debate each other on the issues.

a political candidate, we can address them. in this case, we are talking about her own honesty, and that is a reasonable campaign topic. it is the civility of being able to go home and have a dinner with your family without having to suffer harassment. steve: when he attacks reporters and the rest? carrie: it is one thing saying to a reporter i don't think you are doing your job well. i don't think he is saying reporters should be hounded out of polite society, and those are some of the attacks we have seen from the left. that is really inappropriate. greg: what about his rallies? people are shouting things about various news networks and so-called fake news. he is clearly encouraging that, right? carrie: the president's view of the news media is to some extent certainly understandable. i think there is a lot of bias there. i have children at home. it all fees doing each other. that the didn't to each other. if one kid hits the other, they

start escalating. however, i do think it is a different situation that we see when you are actually encouraging personal attacks on someone. that aside, this is one of those points of there are people who agree or disagree with the president's approach to how do we talk about and be concerned about liberal bias in the media. i think it is something many more are concerned about than those who agree with the president's approach to it. however, going back to the supreme court, that is something that is not a controversial thing. it is something that unites people across the board. many who consider themselves never trump grudgingly have to admit, wow, judge gorsuch, what an amazing pick. i think they will say the same thing again now. you can be personally opposed to the president, but in this case he has done a great job for america. steve: final question. niels: you mention the group on the liberal side of this fence. i am curious what you think of

what they are doing in terms of organizing, and if the democrats in the progressive interests related to this gain -- were later to this game than your site was? i don't feel necessarily in past years that there was as much fervor on the liberal side over the supreme court as there was on the conservative side, and if that will be different this time and if you expect that to be different. carrie: certainly. our organization was founded to defend nominees because we saw what was happening to judge to justice thomas. in 1980, it took people by surprise because typically there had been much more civil campaigns around a nominee. it was much more let's ask some questions and they all get unanimously confirmed. i think it took several cycles to recognize what was going on. i think the left was affected

-- very effective doing it first within the senate. you had ads being run against robert bork that predates our work. our organization was one of the first ones that was out there defending them and has maintained that as our focus of supreme court nominations. to that extent, we are playing catch-up by trying to replicate the efforts we have done, so we will see how they do. it will be an exciting nomination process either way. steve: as you look at the list culture should diversity, either a female or minority if you were , to advise the president, should that be a factor in his decision? carrie: the factor he should be looking at is their judicial philosophy and the way they approach the law. that doesn't mean you're not diversity on the list. we have an extremely wide range of different backgrounds. we have people like amy coney barrett, a mother of seven, too -- two adopted from haiti, one with special needs. she lives diversity in her life.

we also have a a judge on the six circuit, the first of asian descent. people coming from a wide range of backgrounds, a judge who grew up in a trailer park. there is a huge range of people who this president is looking at, but at the end of the day, they will not be chosen to fill a specific quota spot. they can stand on their own with their own resumes and that is something we should all be celebrating. steve: carrie severino from the judicial crisis network, thank you for joining us on the "newsmakers" program. carrie: great to be here. steve: we continue the conversation with neil and greg. let me go with you on the opening round of abortion questions, is this going to be the driving issue moving ahead? niels: it will be. certainly if amy barrett is the nominee.

she has been so outspoken and her personal views on abortion. regardless, this vote could well be the one that overturns roe v. wade, or at least scales it back significantly. she mentioned the robert bork nomination. had he been confirmed to the supreme court, roe v. wade what have been overturned, or at least that's what he said. liberals remember that they know how important it is, they may not have the power to stop it but it will be front and center. steve: what the nomination of amy barrett make it more difficult for democrats because of her life story? niels: it would in some sense. her life story helps. the fact she is a woman probably helps. she is also younger, had less experience, can be gone after in that way. and some of the things she has said as an academic make it clear that she is morally opposed to abortion and strongly suggest that she views roe v.

wade as wrongly decided. may feel that; there's not as much public evidence of how the you about the issue. steve: we talked about the two republican senators from maine and alaska. on the democratic side, who are you keeping an ion. niels: the three i would keep the closest i her unwanted voted for judge gorsuch. all who have party met with president trump. joe manchin of west virginia heidi heitkamp, north dakota. , joe donnelly, indiana. donnelly may be the most interesting, particularly if barrett is the nominee because she is from indiana. you have an additional wrinkle there with a home state selection. the other thing we need to look at on the opposite side is there may be some complications with kavanagh if he is the nominee

from his work in the bush administration white house that could raise the ire of some civil libertarians. there may be a sort of separate if i were guessing what has been this will bee of trying to sort that out. >> with the senate in session much of august, what are we looking at? hearings as soon as the end of august or early september. the confirmation vote could move earlyin late september, october. the question would be whether or not this gets complicated by the

government funding deadline at the end of september and if they tried to get ahead of that or point for the spending bills. bills. ofor the spending judge kavanagh is not as as sheed about obamacare is clinical of chief justice obamacare.te on the differences between the two are not enough that people would say it's a problem. >> thank you for being with us on newsmakers. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] dunkel onrtom

"locked and loaded for the lord," his washington post magazine article. what is going on up in ofnsylvania is a co-mingling a lot of undercurrents of religion, politics, and guns, to a degree we haven't seen before. sean has a worldwide following. be, ass would congregational total in pennsylvania and 500,000 worldwide. co-mingling of

and what itmerica says about us as a culture. is this any precursor of what we might see down the road? you look at almost any society, it has usually been problematic. >> monday, a review of wayfair rulesth dakota, which that states can require online retailers to collect sales taxes even if they don't have a physical presence in that state. watch live at 12 p.m. eastern on c-span. that, a forum on civil liberties and human rights. us is holding its annual

conference in washington. that event starts at 1 p.m. eastern on c-span. >> next, remarks from meghan father,n behalf of her senator john mccain, diagnosed with brain cancer last year. the ceremony was held at the lbj presidential library. it is one hour and 15 minutes. [captions copyright national cable satellite corp. 2018] lyndon johnson's basic creed was epitomized in the following simple that insightful statement from his 1965 voting rights speech in which he said our mission is at once the oldest