>> thank you. take care. >> as he approaches his 100th day in office, president biden will give his first address to a joint session of congress tonight. our live coverage begins at 8:00 p.m. eastern with the president's address at 9:00 p.m. eastern on c-span, online on c-span.org or listen live with the c-span radio app. pedro: we continue our discussion taking a look at efforts to expand the supreme court with mike davis, founder of the article three project two served on the senate judiciary committee from 2017-2019.

good morning. can we talk about your group, its activities and how you are funded? mike: i wrote the article three project for a3p and we want a judiciary that follows the rule of law, we fight for judges who interpret the rule of law as written, textualism at the time the law was enacted, or originalism. we don't like traditional activism, whether on the left or the right. we believe judges are limited by a critical role of interpreting the law and not writing the law. at we are funded by small donors. you can go to article three project.org, article 3project.org. pedro: where do you fall on this idea?

mike: we see this as a power grab by democrats and an attack on judicial independence. we have had nine seats on the supreme court since 1869 when, after the civil war, we saw in 1937 during the height of president fdr's presidency, he tried to pack the supreme court. it failed. a bill lost support, even among his own party. they saw it as a power grab. we saw the late justice ginsburg come out and make the highly unusual public announcement of court packing because it is so extremist and political recently, justice breyer came out and opposed court packing because it would politicize the court. you have two of the last four democrat-appointed supreme court justice is making a highly unusual public pronouncement on court packing. that is all you need to know.

pedro: the previous guest made the case that in 1869, if i'm correct, the number of seats was expanded with the idea of federal circuit courts and made the case that that is maybe applicable this time. you see anything to that argument? mike: that argument is wrong. federal appeals courts weren't even established by congress until 1891. supreme court justices used to ride circuit, meaning they got on horses and rode around the country before 1891. the courts of appeals came along to assist the supreme court with appeals so no, that does not matter at all. if you look at the number of circuits, we have had 13 circuits for a long time. where were these democrat operatives, calling for the court packing when we had 13 circuits for a long time? this is purely a political power grab. what is happening is that we have the first true

constitutionalist majority in more than 80 years. president from appointed justices gorsuch, cavanaugh and barrett and -- kavanaugh and barrett and these judges are going to follow the law instead every right the law. , kratz don't like this. they lost their grip on the supreme white. it is the final stop. it is the final backstop to stop democrats from total control of our country. they have the white house, they have the senate, they have the house. one thing keeping them in check is an independent supreme court and judges sherry, and they don't like that, so they want to change the rules. pedro: you are probably aware of this legislative effort by senator ed markey and others to expand the court. they appeared in front of the court to make their case. i want you to listen to a little bit of what they had to say and then get your response to it. senator markey: republicans stole two seats on the supreme court and it is now up to us to

repair that damage. our democracy is in jeopardy today because the supreme court's sit standing -- court's standing is sorely damage. the way we repair it is straightforward, we undo the damage republicans have done by restoring balance and we do it by adding four seats to the court to create a 13-member supreme court. these four new seats to be filled by president biden will reconstitute the united states supreme court. the bench will then rightly reflect the values of the majority of the american people on whose behalf they serve. expanding the court is constitutional. congress has done it before and congress must do it again. we must expand the court and must abolish the filibuster to do it. the words etched above the main entrance of the supreme court

building behind us express the ultimate responsibility of the court, equal justice under the law. but how will there be equal justice when seats on the court have been stolen? how will there be equal justice when republicans have purposefully warped and weaponized the highest court of the land for their own partisan gain? pedro: mr. davis, your response to those arguments? mr. davis: i would respond that if the american people do not support this, there have been six democrat senators who have come out and voiced displeasure about this west virginia senator joe manchin, arizona senator christensen, -- arizona senator christensen,, mark kelly, senator cortez masto, senator brian schatz and senator tim kaine. we have six of the 50 democrat

senators who have come out and suggested this is a bad idea. there is not support for this in the senate. there is not popular support for this. the group demand justice was the group that brought the me too allegations against then-judge kavanaugh and it helped four democrat senators into early retirement, the voters put these four senators into early retirement in 2018 over the me too fight with judge kavanaugh. we saw the group pushing the defund the police movement that cost democrats several wonderful seats in the senate all over the country and now, in 2022, demand justice wants to pack the courts.

republicans should welcome this because it is not going to end well for democrats. pedro: (202) 748-8001, for republicans, (202) 748-8000 four democrats and if you want to text as your comments, (202) 748-8003. and this came from the alliance of justice, she wrote, justices were nominated by presidents who lost the popular vote. of the past two years, we saw two of those seats stolen to stack the court with partisan justices and a partisan agenda. expanding the number of justices would democratize the highest court in the land so it can properly represent -- properly uphold the rights of all americans. what you think? mr. davis: the president

nominates these justices and the senate confirms. it doesn't matter how they won, whether it was a landslide or a slim majority or less than a slim majority. that is how the constitution works. you have to understand what democrats are trying to do. they don't like that these judges are a check on their power. and if we pack the supreme court, politicize the supreme court, they call it democratize the supreme court, than everyday americans need to worry about first amendment rights to speak or worship or second amendment rights to protect ourselves. those rights will be on the line if we have a politicized supreme court filled with liberal judicial activists. pedro: mary on our independent line, fort myers, florida, you are on with ike davis of the article three project.

good morning. caller: good morning, thanks for taking my call. i listened to both the gentleman speaking about the supreme court. i don't think there is anything supreme about the supreme court. there is no separation between church and state, nothing like that, and they are always in hiding. they hardly work. they should be like every politician all the way up the line, should be punching a clock like every other taxpayer. and they should be accountable for the hours that they spend. and they shouldn't be paid anymore. i would like to see a total of how much of our tax dollars pays all of these people, their health care, their vacation, all this other stuff and their security. pedro: mary, what you think about this idea of expanding the supreme court? caller: i am against it, because

-- why don't they all go away? [laughter] because i don't think the supreme court does anything. pedro: we will let our guest respond. mr. davis: it is unfortunate we have groups like demand justice attacking the legitimacy of the supreme court. there is a lot of popular support in this country for the supreme court, for judicial independence, for the rule of law. it is what separates america from banana republics, because we know we have a judiciary that is independent of the political branches and court packing would turn the federal judiciary into another political branch. it would destroy our federal courts. it would destroy the supreme court. a bee that is their plant. i don't know. but that would be the effect. pedro: a couple of times in the last segment, a guest and a caller referred to the court as more acting like a legislative body. would you agree? mr. davis: if you look at how

the supreme court ruled over the last 80 years, you have seen the supreme court rewrite statutes and create rights out of thin air. and when it was a liberal court doing this, you didn't hear groups like demand justice and brian complaining about this. it is only recently that president trump appointed justice gorsuch, justice kavanau gh and justice there at that we finally brought the court back in line with what the constitution says and what the constitution means. and you bring the court back into alignment and you are starting to hear these left-wing groups call for radical change. pedro: on the democrat's line, hi. caller: he talked about politicizing the supreme court, but trump already politicized to the supreme court.

they denied barack obama's nominee. pedro: what you think about this idea of expanding the supreme court? he hung up. mr. davis? mr. davis: i think he was talking about judge garland's nomination to the supreme court by president obama during an election year and i would say that in the senate, they follow the 90% rule. when the senate is the same party as the president, 90% of the time they will confirm a supreme court justice during a presidential election year. when the senate is the opposite party is the president, 90% of the time, they won't. that is historically how it has happened. with judge garland, you had president obama a democrat and you had a republican-controlled senate that senate republicans said, we are going to let the american people weigh in with the election and decide how they want to feel that supreme court see. and -- supreme court seat. during that election, the

american people voted for president trump and a republican-controlled senate so the american people spoke and now we have just as gorsuch. pedro: from riverside, california, date, the republican line. caller: the last guest said conservatives are a 6-3 super majority but that assumes justice roberts votes consistently conservative, which he has not. and justice gorsuch voted to change the 1964 human -- civil rights act to vote to include homosexuality in the workplace. the only dependable ideologues are the liberals. if democrats can't do it, why won't republicans do the same thing? we are headed for a constitutional crisis because we keep messing with everything like the filibuster traditions of our country. what are we if we change everything, democrats say, we love the constitution, let's change it, not through amendments, which the constitution says you can do, but changing it by getting more

members on the supreme court, which is sick. roosevelt did this and nobody liked it and he inspired a constitutional amendment that says you can only have two terms as president. pedro: that is david in california. mr. davis, go ahead. mr. davis: this notion the court is politicized is just wrong. there are a lot of demagogues pushing this notion because they want to grab power. if you look at the supreme court, they hear an oral argument less than 100 cases per year. these are the furthest cases in the country that have split federal courts, they get to the supreme court and there are nine justices of different backgrounds from different parts of the country, with different judicial philosophies, and it is like 90% plus percent of the time, there is near unanimity of the nine justices for these were links. so we -- for these rulings.

so we hear about the high-profile cases, but the day-to-day operations, with justice gorsuch on the supreme court, it is not political. it is not a super senate there. it is not good people trying to figure out what the law is based on their judicial philosophy and just trying to do a good job and do what is right. at they work very hard. pedro: if you are on twitter suggested supreme court justices should never again have lifetime appointments. i don't care what the founders thought about this topic, they didn't provide voting rights for black americans are women, life expectancy was way lower, it is time for an overhaul of this archaic institution. what about changing lifetime tenure? mr. davis: lifetime tenure is in the constitution and there is a reason. once you insulate judges, the federal judiciary, from politics, there is a reason for that. if you are going before a judge as a litigant, we are all supposed to be equal in the eyes of the law.

if you have a political judgment was worried about his next job or worried about congress, so you have lifetime tenure and pay protection so we don't worry about judges worried about their next job, judges worried about a pay cut if they ruled the wrong way. the founders were very smart about this. as a party, you don't want your case decided based on political considerations, you want your case decided based on the lot. you want to feel like you got a fair shake. if you have judges who are worried about job security or pay, it is an assault on judicial independence. we don't want to do that. that is why court packing is so wrong and against everything we have stood for as a country. we want any dependent federal judiciary that is not politicized and court packing does the opposite. pedro: our guest served as chief counsel for nominations on the senate judiciary committee from 2017-2019.

what does that job involved? were you involved with president trump's nominees? mr. davis: i was. i worked with chairman grassley from my home state of value what and was one of his lawyers last congress and it was my job to help grassley that president trump's judicial nominees. we were not a rubberstamp. there were five nominees who then chairman grassley sent packing. they didn't get through the process. it is a vigorous process. they were not a rubberstamp. senator grassley helped president trump set records for the number of judges that were confirmed in a president's term, but it was because president trump did such a good job of picking and nominating highly-qualified nominees, and the senate made it a priority. pedro: jack is from maine,

mechanics falls on the democrat's line -- mechanic falls. caller: thank you. i love the show. the gentleman was talking about court packing on the comment i have, that is exactly what president trump did. i am sure he is going to want to debate that with me. i will stay on the line for that. but also, they are still talking about liberal judges on conservative judges and last time i called about this subject, i was saying there shouldn't be either, they should all be neutral like it says in the constitution, or implied they should be. but of course they are not. and why would republicans be trying so hard, and why did they succeed in packing the court if they believe it is all supposed to be neutral? i got another three hours i could discuss this, but i would let it go for now. i am glad i got through and i love the way you run the show. thank you. pedro: jack in maine on the

democrats' line. go ahead. mr. davis: filling existing vacancies is never court packing. democrats are trying to change the definition of court packing because they know it is radical and the american people don't support it, they know six democrats i named earlier in the senate don't support this. when you are feeling existing vacancies, that is not court packing. let's make that clear. i agree we should not have conservative judges, we should not have liberal judges, we should have judges that look at the law, look at the plain text of the law, textualism, look at what the text meant to the public at the time the law was enacted, originalism, and let the chips fall where they may. if you get a liberal law, it is a liberal result, if it is a conservative law, it is a conservative result. it is the job of our elected

officials in congress to write the law. we can throw them out of congress if we don't like the laws they write. unelected, lifetime appointed, pay protected federal judges should never be writing the laws. pedro: eddie from los angeles on the independent line. caller: good morning. anybody that is in government or controls or has some say-so over the mass of us should have term limits. period. if they are worried about work, they should do a good job at what they are doing because under that philosophy, we shouldn't have term limits for any of our politicians if they are scared about the next job. the supreme court is not supposed to bring emotions -- political, religious, all they are supposed to do is say two words -- yes and no. is this constitutional, yes or no? whatever your thoughts on that,

your religion, that is personal. yes or no. plus, they go with the political climate. that is how come the democrats want this guy, because the words are just normal whatever. follow the words. pedro: thank you. mr. davis: i agree, judges should follow the words. that is right. and that is the problem. when you have judicial activists, they tend to be on the left but you also have judicial activists on the right, you politicize these court. the job of a judge is a very modest job at a very critical job, to say what the law is, what is the law, and be fair and impartial, don't take political sides, just figure out what the law is and apply the law. pedro: what is the likelihood of this happening?

the last guest talked about how several democrats have been hesitant this idea, as well as this commission being formed by president biden. mr. davis: the fact that we are even considering such a radical assault on judicial independence like court packing, it is extreme. it is amazing to me that there are democrats in the house and in the senate who are a may be on this. this should be an open and shut case of no, this is a radical salt -- radical assault on judicial independence. this will destroy the judiciary. that means the job of a judge is to protect every americans our individual rights from government overreach and mob rule, and if you destroy the supreme court by packing it, by politicizing it, that is when you harm our individual rights,

our first amendment right to speak, associate, worship, our second amendment right to keep and bear arms, our fourth amendment rights, due process rights, criminal proceeding rights, many rights are on the line if you have a politicized supreme court. you do not want supreme court justices going with popular opinion. a good example is brown v. board of education. school integration was not popular when brown v. board of education was decided, but they made the right decision and they didn't have to worry about their job, worry about having their pay cut. they needed to understand the separate but equal doctrine in plessy versus ferguson was wrong and brown versus the board of education fixed that. pedro: here is tina on the republican line. caller: good morning, pedro, good morning, mike.

i am not a paraprofessional by any means, but i want to say a basic element to some of the callers i heard. what donald trump did what he was president was not court packing. he failed vacancies. totally different. justice is supposed to be blind, and if we start packing the supreme court and start getting all of these -- look at what is happening in minnesota and chicago? they are going to court, they are being left out, they are doing it again. i watched last night a livestream from north carolina and called the police down there and said, they are talking about bringing guns to this. if we would just get rid of our labels as democrat, as republican, and start acting like we did on september 12, two thousand one. we were americans. we need to come together come up with the bs aside and save our

nation. we all live by god's rules and that is the constitution and i will not have my rights infringed upon because some on is misreading the constitution, just like they miss read the bible. pedro: i would let our guest respond. mr. davis: i want to frame this this way. we look at what democrats are trying to do. they won the white house, barely won the senate with kamala harris breaking the tie, there is not a mandate by the american people for. radical change in this country. president -- radical change in this country. president biden did not campaign on that. clint look at what the democrats are trying to do, pass hr one which would federalize elections and make it where democrats are almost certain to win and keep power forever. and then you have things like court packing, where they want to add justices to the supreme

court's or they can jam through their political agenda unchecked by an independent judiciary. they are talking about adding d.c. as a state, puerto rico, and have two new democrat senators in each state. do have five news dates and a new democrat senators? this court packing, hr one, these new states democrats are talking about, this is a political power grab to ensure they have total control and win elections forever and there is no one to check their power. it is dangerous. it is a radical assault on judicial independence. it is a threat to our rights, our liberties, and fortunately, the american people do not support court packing and at least six democrat senators have come out and voiced strong. . concerns pedro: thomas -- strong concerns about it. pedro: thomas in washington dc, go ahead. mr. davis: is there --

caller: is there any way to hold mitch mcconnell accountable to prevent polarization between the partisan sides? and is there any way to prevent the court from being politicized going forward? mr. davis: on mcconnell, remember back in 2013, democrats nuked the filibuster, meaning they lowered the vote threshold from 60 to 51 so they could add four obama-appointed liberals to the d.c. circuit judge the second-highest court. so -- d.c. circuit judge judges, the second-highest court. so saying mitch mcconnell prevented senator obama's judges is wrong.

we followed historical precedent and norms. democrats thought it was unreasonable to require 60 votes to confirm president obama's nominees, yet you have groups like demand justice out there telling democrats to #resist every one of president trump's judicial nominees. so it is political games we are hearing about. and how you depoliticize the federal judiciary is let judges do their job. you don't threaten to pack the judiciary, you don't threaten to impeach them like justice kavanaugh, you don't threaten term limits, you let judges do their job. pedro: mike davis of the article three project, thanks for your time. clarence j robinson is the former