tour. under halfp in just hour, president trump will speak at the international association of chiefs of police in orlando, florida. live coverage starts at 1:30 eastern time here on c-span. is the codirector of the institute on the supreme court at chicago-kent college of law, joining us to talk about a historical perspective on supreme court confirmations. thanks for joining us. guest: thanks for having me. host: you wrote about the hearing process. over the confirmation process overall, you said it is part exciting, part is appointing. guest: i mean, it is exciting. in part, it is a spectacle. it is exciting to hear this person who may become supreme court justice get a sense of who they are in terms of their public personality and intelligence. who is true, regardless of

the nominee is or the nominating president is. but it is frustrating, because the nominees do not answer a lot of the questions we would like them to answer. they do not tell us things people want to know. host: has that been a constant theme of those appearing before the senate to get confirmed? or is that a more recent thing? guest: tomorrow -- to some extent, it is a more recent thing. and to some extent, there is a historical pattern at play. historically, nominees have resisted -- talking about how they would vote in a specific matter. but they talk about more well-established precedents, talk more openly about things i have previously written about, and speak more openly about traditional theory. host: professor elena kagan wrote a view of a book taking a look at the confirmation

process. specifically highlighting the board hearings presenting to the --lic the meaning of the repetition of platitudes displays discussion of viewpoints and anecdotes have replaced legal analysis. is that something you would share? guest: i do not think it is entirely accurate. in the post bork years, there was a sophisticated discussion of additional philosophy and hearings. if you look at justice ginsburg, who is often touted as creating this "ginsburg rule" which suggests the nominees should not say anything, she actually talked about a lot of different cases and a lot of different points of law and express her opinions about them. justice thomas also talked a lot about his judicial philosophy,

the role of natural law and his understanding of the constitution. they may not have said specifically how they would vote on particular matters, if they had not previously talked about itse in their writings or beaches, but they talk a lot about how they thought about the cause how they thought about law. 2005 andw millennium, going forward, we have really seen a shift. the nominees have moved away, even from sharing their judicial philosophies, to a large extent. get as much of a sense of what motivates the different nominees' approach to the constitution. instead, we get language about neutrality. we get language like "i'm an umpire. i only call balls and strikes."

as if you can look at law hard enough and long enough to determine the right answer. in fact, the hard cases, the cases most of us care about in the supreme court, are cases that have ideological components. there is a lot of judgment. it involves weighing competing constitutional values. there is no right answer that can be deduced by looking at legal materials. host: our guest with us until 9:30, carolyn shapiro of the chicago-kent college of law, here to talk about historical perspective on the confirmation process of this up in court. if you want to ask her questions, c-span.org -- her question, (202) 748-8001 for republicans. democrats, (202) 748-8000. independents, (202) 748-8002. talk about the recent round of confirmation hearings. guest: one of the things that was interesting about --

different between judge kavanaugh and justice gorsuch is their willingness -- they talked about the case of brown v. the board of education. uniquely, wash, reluctant to come out and say he thought brown was rightly decided. he did eventually say it, but it to, while, and he -- it took him a while. the reason he wasn't comfortable about that was because he did not want to talk about other cases. judge kavanaugh was more forthright about brown and more forthright about justice gorsuch about his judicial philosophy. but all of that became eclipsed by two other things. one is the senate democrats' concerns about previous testimony that he had given in his earlier confirmation hearings and things he did in the bush white house. and of course dr. ford's

allegations and everything that happened after that. in this sense, though there was serious discussion of judicial philosophy, it was overshadowed by this other stuff. host: when it comes to judge kavanaugh himself, you were part of a letter that went out opposing the nomination? guest: that is right. after his testimony at the reopening of the hearing, after dr. ford testified, his demeanor, his temperament, his extreme partisanship struck me and, quite literally, thousands of other law professors as really inappropriate. circulated.was i believe, in the and, more than 2400 law professors signed it. i was one of them. host: what does history to just about how the court process handles scandals that come up during the commission process? guest: there are two other

examples i can think of. one is justice thomas, of course, who was accused of sexual harassment by anita hill. harassment. i think that justice thomas, in terms of the inner workings of the court, really is like any other justice. the court works hard at maintaining good relations between the justices, not just for the sake of good relations, that is being able to do the work and talk to each other about hard questions. so they would maintain at a minimum cordial, if not warm relationships among themselves. there is speculation that justice thomas's experience led him to harden his views. he does not participate in oral arguments, largely because he says he already knows what he thinks. he does not some interested in engaging with his colleagues about the law. and it is impossible to know if that has anything to do with what he found to be a pretty scarring experience in his

hearing, but it might. the other example is justice -- and in the 1960's he was an associate justice, the nominated by president johnson to be the chief justice when chief justice lauren stepped down. during his hearings, there were many questions about his ethical lapses, including advice he was giving the executive branch, whether he was trying to get people jobs while he was a justice. he was filibustered, not only because of those concerns, it had a lot to do with his views on race and on voting rights and on criminal procedure, he was filibustered by conservatives. he did shortly thereafter step down under an ethical cloud, so he did not stay on the court after what was a pretty scandal

-- that might be an overstatement, but a confirmation hearing that brought to light concerns about his ethics. host: our guest is the founder institutector of the on the supreme court of the united states. our first call for you from troy, michigan. go ahead. caller: good morning. it is interesting that she just brought up just as fortis, because i was thinking it has been several years since i read bob woodward's book "the brother and. -- brethren." i was wondering if she could go over the attempts, back in the mid-70's by the nixon administration, i think, to try to impeach -- oh gosh, i have for getting the justice now. he goes all the way back to fdr.

william o douglas. justice douglas was, i think he might be the longest-serving or close to the longest serving justice on the court, and he was extremely, famously, liberal or further left than any other justice, according to many scales. the interesting thing about justice douglas is that he was personally something of a wild man. he was known as a womanizer, among other things. and when he was confirmed he did not have a confirmation hearing at which he testified, because that did not happen in those days, but the story he told about himself and his biography turned out not to be too. has been so fascinating biographical work about the things that he said about himself that turned out not to

be true. in today's world, that could never happen. you could not create a false biography for yourself and to be nominated, then confirmed to the supreme court. host: from california, the independent line. kathleen, good morning. caller: your last comment makes me even more interested in the idea of the advising consent and respect for the confidentiality, my understanding the confidentiality of the process, because yesterday on the show the guest said, how do we know there has not been a sexual allegation since the clarence thomas hearing -- and i am thinking, we're not supposed to know because this is supposed to be handled confidentiality -- with confidentiality. so the weaponizing of the process is curious to me. what is the history of this type of evolution of this type of, you know, i do not know, national kind of this case we

have seen over the last two weeks? guest: it is not actually clear that these things have to be handled confidentially. there is a process to handle certain types of allegations or issues raised in a sort of executive session by the committee, and any more confidential way, but there is allegationt says an of sexual abuse cannot be discussed publicly. and of course, it is not unique to either justice thomas or now justice kavanaugh to have allegations related to somebody's personal life come out during their confirmation process. justice kagan had to have college friends go on tv and talk to the press about her sexual orientation, which is, you know, it should not necessarily should have mattered at all. but there were rumors circulating that she was gay and a number of the people who have

known her for many years said publicly, no. but that is certainly -- that must have been embarrassing for her. i do not think it is unique to this particular process that we have embarrassing, personal allegations or details come out. i think it would've been better for dr. ford's allegations to have been handled initially by the fbi, in an initial investigation, and then determinations could have been made on how to go forward. but i do not think it is necessarily improper for the country to know if there is a serious allegation of misconduct against a nominee. connecticut onin the independent line. caller: yes, good morning. 86-years-old. i was born the year franklin roosevelt took power. roosevelt was going to stack

the court with all democrats. that was a big worry then. well, so we got over that. i mean, i have lived through roosevelt, kennedy, nixon, reagan, um, ronald everybody. and it all comes out in the wash. ,nd i do not know another thing with this past experience with brett kavanaugh, he said he sticks with presidents. i have worked with the court and they will go with precedence. they look at their law books and to see what has happened in another case like that and they stick to that. host: thank you. course judge kavanaugh talked about prece dent, which is actually the way the senators ask him about roe

versus wade. he went on say directly whether or not he would vote to overrule roe versus wade, but that is what people want to know. so they have conversations about precedent, and he says he respect it, but the court does overrule precedent. and may have done it in". in".one it it does have the power to overrule it in cases that lower courts do not. saying that you respect it is not really tell us what you are edenceto do with pres you think is wrong. -- you talked about testifying, how did judge bork

affect this? guest: he answered questions candidly. some people would say he was unfairly defeated, some would say appropriately, because his judicial philosophy was so extreme. and since then, people do not talk about things as candidly as judge bork did. i think the impact actually is much more subtle than that, because in the years following his nomination, through 1995 the nominees did speak candidly about the judicial philosophy and what they thought. what changed after judge bork was the attitude of many about what they other side, for lack of a better word, is willing to do about nominees that they do not like. on the right, judge bork is something of a rallying cry. people believed that what happened to him was unfair and

it began a process of degrading the confirmation process, making it politicized. that is not historically accurate. if you look back at what happened to say justice fortis or marshall in their hearings, there was just as much effort to politicize and to go after them as happened with the judge bork. if you go back to the founding, the early nominees were frequently defeated by senate that did not like their judicial philosophy and ideology. so if anything, the judge bork's testimony and his hearing has affected the process in terms of people's perception, much more than in a kind of inaccurate way. host: if you go to our website, we have video judge bork's testimony before the senate judiciary committee. to show you a little bit of it, during the confirmation process he was asked about his views on the 10th amendment. power not given to the federal

government should be put to the people or the state. here is part of his answer. that that is think unfortunately part of what i was discussing when i was discussing the fact the commerce clause has expanded in ways that are too late for a judge to go back and tear up. i think that the framers and ratifiers had a rather clear idea that these powers were limited and had kind of cleared condors to them. and the government operated that way for a long while. but the fact is, beginning with the civil war through the new deal, the idea that those powers were limited and not really national in scope got lost. and now we are operating in a fashion in which the 10th amendment, i am sorry to say, has almost no practical

syndicates. and -- no practical significance. in the wayt see much that the country has grown. host: any input on the? -- on that? guest: that is an example of him saying, although he thinks it is wrong, it would be hard to turn back the clock of various prece dence. it was not clear if many of the cases he thought were wrongly decided, including the case of griswold that protects people's rights to access to contraception, it was not clear that he thought it was wrongly decided, meant he would vote to overrule them. those are two different questions. he said something that were quite remarkable and really, i think am inconsistent with what most americans felt comfortable with. for example, he talked about rights as being something of a zero-sum game.

so if one person or one type of person has rights, that necessarily - does not necessarily mean that people have fewer rights. that is not necessarily in approach to thinking about rights that americans would embrace. host: this is the republican line, madalyn. caller: thank you for taking my call. , regardlessto say felt above judge , the way that they cannotand treated him, i see how anyone could say they christian or they had a heart.

someone can talk about , they justmocrats criticized him like he was a nobody. and everybody knows he is very smart. host: ok. is there a history about the people coming out right off the bat, once the nominee is named, about whether they will support or oppose him, that we saw this time? guest: sure. southern democrats, for example, in the 50's and 60's. southern republicans, like senator thurmond, who would come out actively against any nominee that they saw as supporting brown versus education, or the criminal procedure jurisprudence. the early hearings in the 1950's

and 1960's are made up exclusively of segregationists be rating nominees who they thought might agree with brown v. board of education. so the idea of what we have seen raises, or isw or different in terms of how nominees are treated, i think that is really quite inaccurate. host: our guest served as the former illinois solicitor general, the founder and codirector of the institute on the supreme court of the united states. a little bit about the institute, please. guest: we started in 2011 and we are committed to public education about the supreme court and having some academic symposia and conferences at the law school itself. and we have had several justices visit the loss goal, justice scalia, justice hagan, and justice stevens have all visited since the institute came into

being. and we have a blog, which you can find by googling it. we have tried to teach people and you've them abreast of what is happening at the supreme court at a level that would interest the educated observer, but not any wonky, lawyer way. host: bob in wisconsin. caller: i have a question and a comment. has there ever been a member of the other party, a chair of the other party, that ever held things until the last week? and a quick,. comment. he was really calm to the way i would be acting, if accused of rape. you cannot accuse somebody of something and not expect them to fight back. guest: i think it is not true that we expect people to stay calm when they are accused of things. we expect committal defendants to observe a lot of courtroom

manners. so i am actually not all that sympathetic to the notion that the way that judge kavanaugh expressed his anger was appropriate. or even to some degree understandable. i could understand him being angry, but his anger directed at the senators, imagine criminal defendant doing that with a judge or prosecutor. it would not go well for that person. so we expect people, which is of will try to get back to her as soon as we can. diane in michigan, hello. we are on, what is your comment or question? caller: i just recently learned that the supreme court is made judges and three jewish judges. i am questioning why more people

do not talk about that heavyweight. host: why do you think it is important to consider? caller: i do not, well, i do not know. it just seems like they would all be bent in the same direction, although it does not look like it anymore. host: does religious makeup play into the supreme court and how the confirmation process goes? guest: it certainly has not been an issue in the hearings themselves for the most part. i do not think it is appropriate to say that we have to have any kind of religious quota, it would be unconstitutional to say that there is some kind of religious representation that is required or necessary on the court. but it is true that people's background into values inform their ideology and judicial philosophy, and so those things can be related to the religious backgrounds. and we have heard nominees talk about the religious backgrounds as a source of the values that

inform their lives. host: in your opinion, what was the standout feature for ruth bader ginsburg testified before the senate? guest: what everybody likes to say is she created this ginsburg give nominees will not forecasts on how they are likely to rule. but i think the standout feature was how much she did say. she talked a lot about roe versus wade. she explained she did think it was rightly decided. she thought the reason he was wrong and she explained why. and she had written about it previously, so she was not saying something new that people on the committee would not have already known about her, but she was willing to explore that. and she was likewise willing to talk about a lot of previously decided cases and indicate whether or not she thought they were rightly or wrongly decided. unfortunately, in recent years, nominees have not been willing to be that candidate.

host: if you go to art video library you can see ruth bader ginsburg talking about her thinking on roe versus wade and related issues. go ahead. >> you asked me about my thinking about equal protection versus individual autonomy. and my answer to you is it is both. this is something central to a woman's life, to her dignity. it is a decision that she must make for herself. and when government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices. you also appreciate that simply presented this not as the

only approach, but as an option that was looked at. um, with regard to the equal would the argument, equal -- since this may well confer a right to choose on the would it alsod, follows that the father would be entitled to a right to choose in this regard, or some rights in this regard? >> that was an issue left open in roe v. wade. and if i recall, it was closed court's mostthe recent decision. there where a series of regulations -- were a series of regulations that the court dealt with. upheldi remember, it most of them, but it struck down

one of them. the notice to the husband. and has something to do with a matter that the chairman raised earlier, i think there was an thatation in that opinion marriage and family life is not always all that we might wish it to be. whoseat there are women physical safety, even their lives, would be endangered if the law required them to notify their partners. host: as you said, a lengthy explanation. what was the response, do you recall? guest: i do not recall what came next after she said that, but it

was not a surprise to anybody that she thought roe v. wade was correctly decided, or she thought that women's equality depended on them being able to control their own bodies. she had written about that. one of the things that was disappointed to me about brett kavanaugh's testimony is he backed away from things he had previously written about, and is spoken about public. he said in several speeches he thought that just as request's dissent in roe v. wade was terrific, a great opinion. and in his hearing, he backed away from endorsing that opinion. and even if he thinks that that judge was right, that does not commit him to overruling it, but in my opinion he should have been willing to say yes, that is what i think. i think it was wrongly decided and i think justice rehnquist was correct. host: again, carolyn shapiro is our guest. steve, go ahead.

caller: good morning. i am curious, had the allegations been nonsexual, say about fraud or bankruptcy, with the investigation had taken a different tone as opposed to what i am understanding, is because it was sexual it was pushed under the rug, but had there been another type of allegation, would the investigation gone a different way? guest: i would say that there are two different ways of thinking about that. one is that, of course it is impossible to imagine that this wayhat the allegations, the the allegations are responded to has a lot to do with the historic moment we are in, with the me too movement, anger about things president trump has been with respect to women. so the moment