join the discussion. thursday we will hear from the fbi's former senior official for the counterintelligence division. he will testify on department of justice actions surrounding the 2016 presidential election and the clinton email investigation. online coverage begins at 10:00 eastern on c-span3. at can tune in online c-span.org or use the free radio app. steve: are there any names that have been mentioned that are red

flags for the senate republicans and democrats? carrie: we don't know how any of them would vote, but we see this issue comes back. it is kind of a scare tactic. justice o'connor was the vote they were worried would overturn roe v. wade, justice kennedy, justice souter. all of those actually were the same three who voted to uphold roe v. wade and planned parenthood v. casey, so speculating what anyone would do is very difficult. judge barrett is one people seem to think has more out there than others. when i have looked at it, watching a recent video i saw of the talk she had given she said , this is not the way to look at a judge at all. judges are not going in there saying, here is a case i want to overturn. 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.

and i think that, at the end of the day, senators have said that is their number thing. one yes, they are concerned about roe v. wade as a precedent, but their biggest concern is someone faithful to the law, by by the constitution. -- abide by the constitution. that is what we have seen from all of these. steve: we heard from senator collins that roe v. wade will be a decisive factor for her? carrie: sure. that is totally understandable. however i think it is very difficult to predict what any of them would do. this is not something the president can or should ask. it is not something -- perhaps they will ask it during the confirmation hearings. it is not something they can or should answer. in accordance with a long tradition, justice ginsburg being the most storied participant, they can't answer questions about what they would do on a specific case. and that is important. because going in it may be one , thing for you or i to say, i have read this decision, but this is what i would say.

but when you look at an individual case and when they are deciding a case, they aren't going based on the reading of that one original case. they are going to have literally 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. so 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 what the facts of a specific case are. it is also important to remember after justice kennedy's retirement, the swing vote is chief justice roberts. so whatever this next nominee would do, it is premature to decide that would be the deciding vote. i think chief justice roberts is the big wildcard, and he is not someone obviously who wants to move in major steps. he is an incrementalist and would rather avoid the issue altogether from what we have seen of his jurisprudence. stohr let me turn to greg of bloomberg news. greg: 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 to you and other conservatives if it turns out this nominee did not support overturning roe v. wade? carrie: criticism is not conservative circles only. you have people like laurence tribe say there is no law there in this opinion. even people who agree with -- would like a result weather is -- where there is widespread abortion access or think there is elsewhere in the constitution you can find it, they are in the ballpark of saying, you know what roe v. wade is poorly , reasoned. i think a lot of it goes back to the question is what is your , approach and how does one move going forward with the decision with a decision with that question? i think it is something may be the president has certainly said this is something he is hoping for, but every president has the things they hope a judge does. at the end of the day, a judge is not a fairy godmother who

is going to come down and give you your little wish list. it is not santa claus who says here are the top 10 cases and you want this thing or that thing done with them. that they are going to be applying judicial philosophy to be applying to cases, and that may be different from what you predict. the big cases, that is that, but there are so many other huge issues that oftentimes we cannot predict. the commerce clause challenge to obamacare was a gigantic supreme court issue. is that commerce clause something that was being asked of people or thought about when these justices, including chief justice roberts, was being vetted for the court? not really. and we can't predict what the next big question is going to be. 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 this is something americans across

the board would like. they are there to interpret the law as it is written. that puts the ball in the court of the legislature. that allows the american people to elect them to determine the policy direction of the country, not the courts. greg: i wasn't necessarily going to go here, but following up on that, does that match -- what did you think of the decision in quill case this past term, which was kind of an unusual divide me, iators -- excuse talked to senators regularly. unusual divide for justices. does that tell us anything about where the chief justice may be going in the future? or was there anything -- [speaking simultaneously] carrie: you know again, this just underlines that the chief justice frequently, even with justice kennedy was the harder , to predict swing vote. maybe some of that is flowing from his own judicial philosophy. when he was in his confirmation hearings, he said i'm not an originalist. i don't really have a specific

philosophy. that makes it more difficult to predict because you don't know what analysis he would use in a specific case. so it is not surprising that may be in this case, we couldn't -- he doesn't follow along with the traditional lines because he is not going with an originalist philosophy exclusively. it is harder to predict him. that is again why i think it is really a distraction to focus on one case. we can't predict the case anyway. and i think chief justice roberts, at the end of the day 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. greg: in terms of the overall philosophy, conservatives used to talk a lot about judicial restraint, which, at least in one definition, it means letting the people's elected representatives make decisions rather than have others make those decisions. are the candidates people who

would exercise judicial restraint? carrie: yes, but i think the definition isn't really the definition i would embrace or they would. it is not -- our constitutional system does not say in all things people's representatives make the law. in all things barring where the constitution stops, so 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 do have limits like the bill of rights, the limits on government power. so where there is something in the constitution, then the courts duty to step in, and they often have to to validate laws that violate that because they exceed the government's authority or because they violate some of those limits on government. apart from that i think the idea of residual state is 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, first of all, coming up with judicial

tests in general is very dangerous. 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. what do i think how do i think , this major question should come out? and that is something that, if it is not something required to the constitution, it is our system leaves to the people and their representatives. that should leave a wide berth for the legislature, but not an unlimited one. carrie: you want to follow? greg: in the first half of what you are saying 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 and the equal protection clause, and that is the philosophy behind for example the gay marriage decision, roe v. wade, other decisions that i suspect you disagree with? carrie: there certainly are different interpretations of where those constitutional boundaries are.

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

we have to be very careful not to redefine the terms. i think that would be the question that would ignite debates. i know justice scalia and justice breyer used to have a famous almost touring 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. and that is not what we -- we don't elect them. the only what we not elect them for, 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. they are people putting content into the law, it has to be the legislature, not from the bench. i think that is something everyone ought to be able to agree with. i don't think liberals would like for example justice thomas to be importing his view of how policies should be done into the court anymore than conservatives

might want justice ginsburg putting her views in there. i think that might be a way 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 -- and this is what justice scalia talked about, if judges are doing this if the words are , placeholders for whatever content the justices want to import, then we do have a political race going on here in effect. that is really not what we ought to have. steve: can you speak a little bit to the extent the three finalists we seem to be having right now for filling the kennedy's seat, the extent to which they are on a sliding scale of originalism? if there is anyone that is more of a strict constructionist on in youralist scale view.

carrie: the great news from my perspective is that we really have an embarrassment of riches. you have people like judge amy coney barrett, while she has not had many opportunities on the bench to show how she applies originalism, she happens to be a leading scholar for originalism. there is not a lot of question, what would she really do given this opportunity? she has written extensively on this. she understands at a deep theoretical level what is going on with originalism. but i think the other two also have a real pattern of when you , are citing a case on appellate courts, you are bound by precedent. and the supreme court precedent as we indicated before, it is not something the judge might even agree with or think this isn't really a test or rule that was a grounded in original understanding. but then in an opinion, and i know particularly judge kavanaugh, going back to first principles and discussing, here is what the original understanding is. but he and his current position

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 this year precedent is here, so we , are going to apply the precedent we have. for me it would be a very difficult decision. i'm glad i don't have to make a choice among these three. but it is a really good problem to have. steve: if democrats remain united with the razor thin republican majority, 51-49, and john mccain is unable to vote, do you think he should resign his senate seat? carrie: that is senator mccain's call. that is a very significant time for him and his family. that should be his call to make. but i do think 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 clearly well qualified, likable, evenhanded, has a history of listening to both sides of the argument and

well-respected, at least -- certainly not in our partisan environment, but from people he had worked with closely and had argued a case before him. recognized that. each of these potential nominees really has that. i think it would be hard for the democrats, particularly the three who voted for gorsuch, but really many others who are up for reelection in states who went for trump, to vote against a nominee like that when their ultimate choice is an extreme party line that is something that will not be popular. it might play well in california, massachusetts, new york. i'm not sure how that plays in missouri or west virginia, indiana, florida. all of these states, i think that is going to be a much more difficult question. it is not like last year where they can think, well, my constituents are going to forget about what happened between now and the election. it will be difficult to forget a vote in september for the november election.

they are going to have to. it is a time for choosing, and they have to make that choice. steve: very quickly is this , different because the seat is different, replacing justice scalia versus justice kennedy? his role as you know was a swing the vote with the majority in more than 90% of the cases. carrie: he was a swing vote that still was more conservative than not. particularly this last term, 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 supreme court, justice gorsuch was the one with whom he agreed the most and vice a versa. so it is interesting for me that someone who everyone thought , would be decidedly to the right of kennedy, maybe when he was nominated it did not turn , out to be the case. i think people overestimate the distinctions here. certainly there are major issues. any subsequent justice is going to differ. gorsuch is different than scalia in decisions he has taken. the supreme court, 40% of the

cases are unanimous. and of those remainder, i predict that this next justice like gorsuch would actually vote similarly to how justice kennedy would have voted. so there is going to be always a change anytime there is a new justice. it is in your court, but i think the shift has been dramatically overstated. greg: i want to ask a specific question about judge kavanaugh. back during the big fight on obamacare, he wrote an opinion that said we should throw out i'llchallenge to obamacare never grounds, didn't reach the big issues in the case. 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 , oh my goodness. we were afraid we saw in chief justice roberts? i don't know the inside story. a lot of people, their conclusion was he looked to have the potential that he knew was legally correct but there were implications he did not think and he blinked and found a sneaky way out with the tax

penalty distinction there. with kavanaugh's opinion, it is different. he did clearly right about the problems underlying the law and the major issues. his question had to do with the anti-injunction act. it is an argument that the supreme court didn't and up -- i think 9-0 they said the injunction act did not apply their. -- there. but that is a question he has faced elsewhere and it fits with his understanding of the anti-injunction act in general. he may have an atypical view, but when you look at his whole record, he is not the kind of person who is looking at a case in trying to dodge the important decisions. so that narrative while people thought superficially similar to roberts i don't think that is , what is going on. his decision recently saying the d, the consumer finance protection board, was unconstitutional. this is a similar thing. when he sees the legal result is

one even that has a major real-world effect saying this agency isch of this unconstitutionally constituent -- constituent it, -- constituated 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 that there isn't sort of 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 already made reservations? whicheverady to back 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: yeah, well i am , confident he would choose someone from the list. the president has repeatedly 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 confirmed, we were prepared with ads on websites. we are in the same position now. whoever he chooses it is an , embarrassment of riches. i am so pleased to have this choice before us. whoever it is, we are absolutely ready to defend his or her record. we are seeing it reviewed already. there will be character assassinations, distortions of their record, and even i think outright lies and deception, but that is why i am happy to be where i am. because i know that that person is going to be needing defending, and we will be happy to stand up for them. niels: and is your focus on, say, swing states where there are democrats? or is it more alaska, maine? how do you sort of break down the divide where you focus your efforts? carrie: our focus would be those swing states. had threeiew that we

democratic votes last time. i would like to expand that margin. given the choice in front of the senators for reelection, when they are going to be accountable to their voters in their state, the mostly supported trump, and this is a key issue. there is a lot of variety about his immigration policy, trade, or whatever, but the supreme court, 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 love justice gorsuch, so i think that is a particularly difficult issue for those senators saying this is where i am going to put down my marker on the resist trump thing. other issues maybe, but we will see a lot of democrats who feel they have to vote for someone who will be an excellent 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 the ads you are going to run? carrie: we spent $10 million during the gorsuch campaign. i don't want to have to spend

another $10 million, but we are ready to do that and more if we see the need. i see this heating up. we do not have to legally disclose our donors. we have an obligation to them. and theld of red hands kinds of attacks we have seen, particularly on conservative members of the administration, i feel like i have a duty to my donors to give them confidentiality. we have seen the same group on the left that just started up to attack these nominees. same position, they don't disclose their donors either. position. a common c4 steve: but 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 of the responsibility? carrie: i don't think he said she should not be allowed to eat with her family in a restaurant. that is what i am talking about. personal harassment, that

deserves no place in our political system. we should debate each other on the issues. and we can a political , candidate, we can address them. in this case he is talking about her own honesty, and that is a reasonable campaign topic. it is the stability of being able to then go home and have a dinner with your family without having to suffer harassment. steve: when these reporters, fake news and the rest -- carrie: it is one thing if you are 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. steve: what about his rallies? in the rallies when people are shouting things about various news networks and so-called fake news, he is clearly encouraging that, right? carrie: you know 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 feeds into each other.

if one kid hits the other, they start escalating. however that is not -- i do think it is a different situation that we see when you are actually encouraging personal attacks on someone. that aside i think this is another one of those points. there are people who agree or disagree with the president's approach to, you know how do we , talk about and be concerned about liberal bias in the media. i think it is something many more people are concerned about than those who agree with the president's approach to it. i think we will go back to the supreme court, that is something that is not at all that kind of a controversial thing. it unites people across the board. many who consider themselves never trump nevertheless have to grudgingly have to admit, wow, judge gorsuch, what an amazing pick. i think they will be saying the same thing again now. you can be personally opposed to the president on all sorts of levels, but acknowledge you know what, in this case he has done a , great job for america. steve: final question. the demandentioned

justice group on the liberal side of this fence. i am curious what you think of what they are doing in terms of organizing, and the democrats and progressive interest were later to this game than your side was? because 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 what, and if that will be different this time and you expect that to be different? carrie: certainly. our organization was founded really to help defend nominees because we saw what was happening from judge bork to justice thomas on. in the it took people by 1980's surprise because typically there had been much more civil campaigns around the nominee. it was much more let's ask some , questions and they all get unanimously confirmed. people by surprise. i think it took the right several cycles to recognize what

was going on. so i think the left was very effective at doing it first within the senate and those attacks. you had ads being run against robert bork. that work 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 demand justice is playing catch-up by trying to replicate the efforts that we have done, so we will see how they do. it will be an exciting nomination process either way. steve: and as you look at the list, should diversity, either a female or minority come 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. now that doesn't mean you don't have diversity in the list area we have an extremely wide range of different types of backgrounds. we have people like amy coney barrett, who is a mother of

seven, two adopted from haiti, one with special needs. she lives diversity in her life. we have a judge on the sixth circuit, also the first free judge of south asia defend. 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 are not going to be chosen to fill a specific quota spot. they can stand on their own with their own resumes, and i think that is something we should all be celebrating. steve: carrie severino from the judicial crisis network, thank you for joining us here on c-span's "newsmakers" program. carrie: great to be here. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2018] now, is thistinue going to be the driving issue moving ahead? barrettertainly if amy

is the nominee. regardless, this vote could well be the one that returns roe v. about robert talks bork. had robert bork been confirmed to the supreme court, roe v. wade would have been overturned. that and knowber how important this is. they may not have the power to stop it, but it will be front and center. steve: with the nomination of every barrett -- any barrett make it more difficult? it would in some sense. each of these have interesting back stories. the fact she is a woman, has less experience, she could be gone after in that way. 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 is

-- as wrongly decided. the other potential nominee is , theykavanagh, the other feel the same but there is not public evidence. steve: we talked about the two republican senators from maine and alaska. on the democratic side who are , you keeping an eye on? niels: the three would be the ones that voted for judge gorsuch. all of whom have already met with president trump. joe manchin of west virginia, heidi heitkamp of north dakota. joe donnelly, indiana. donnelly may be the most interesting, particularly if barrett is the nominee, because she is from indiana. so you have an additional wrinkle there with a home state selection. the other thing i think we need to look at too and this is sort of 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. it could raise the ire of some civil libertarians. so there may be a sort of separate issue with him, and i think these are also the balancing act questions and if i were guessing what will be going on in bedminster, new jersey, some of this will be trying to sort that out. steve: either one of you in , terms of the timeline with the senate in session to much of august, what are we looking at in terms of hearings and then a final vote? niels: i would say we are looking probably at hearings as soon as what is the end of the august work period or early september. the confirmation vote could move ahead i would imagine, late in , september, early october. the question would really be whether or not this gets complicated by the government funding deadline at the end of

september and if they try and get ahead of that, or if they have to wait through and deal with spending bills first. steve: final question, what did you learn from carrie severino? greg: i thought her answer about judge kavanaugh was very interesting, that she's not certain about him on obamacare the way she has been critical of chief justice roberts for his vote to uphold obamacare. judge kavanagh can be attacked from the right. he might disappoint conservatives in some respects, but they are not enough that she and probably some others are willing to say it's an actual problem. steve: greg stohr, he covers the supreme court for bloomberg news. neil laszewski cq roll call, , thank you to both of you for being here on "newsmakers." announcer 1: president donald

trump will announce his nominee for the supreme court, filling the vacancy left by justice anthony kennedy. watch the announcement live at 9:00 p.m. eastern on c-span and c-span.org or listen on the free c-span radio app. ♪ announcer 1: c-span's "washington journal" everyday life with news and policy issues that impact you. significantiscusses policy decisions of the obama administration. and then the supreme court nominee and pro-life advocate agenda. be sure to watch "washington journal live at 7:00 eastern. join the discussion. steve: our monday roundtable with stephen dinan. he covers politics in congress --