-- [applause] >> thank you governor, thank you atlanta, good news, you are free. we are very pleased that you have joined us here for the governors events from politico. and we will be back next year. thank you very much everyone. goodbye. >> house speaker kevin mccarthy is traveling to the southern border with gop lawmakers. the speaker who is critical of biden's border policy, will give a tour of u.s. customs and border protection. watch live coverage on c-span at 4:45 eastern time. you can watch on her website, c-span.org or on our free video app, c-span now. >> all this week beginning 7 p.m. eastern, c-span is

featuring encore presentations of q&a, our hour-long program with fiction writers, journalists and other authors. -- the racial violence experience in the jim crow area in america. watch it at 7:00 eastern on c-span q&a. you can listen to q&a and all of our podcasts on our free c-span now app. >> as the democrat from wisconsin did that from 1993 to 2011. he is the president of the american constitution society, senator frankel, thank you for joining us. resources, and rich images that tell the story of their lives and presidencies all in one easy to browse c-span website. visit www.c-span.org/presidents to export the rich catalog of c-span resources today.

>> "washington journal" continues. host: russ feingold served and is now the president of the american constitution society. thank you for joining us. >> good morning and thank you for having me on the show. host: tell me about the organization, what is it about and how it's funded. guest: the american constitution society was founded after the infamous decision in bushby gore when progressives and moderates and even conservatives realized that the court was becoming very political. it basically decided the presidential election and there was a kneeling that those on the right had sort of come up with a plan to control the legal system especially the courts area this organization was created to say we can't let that happen. that means challenging some of their ideas like originalism and textualism and phony ways of interpreting the constitution, but also this organization reach

a national net in over 200 law schools, 55 lawyer chapters of lawyers who are concerned about the legitimacy of our legal system and not wanting works politicized. we are also very active on issues such as wanting to see some reform of the united states supreme court. it includes many lawyers but not just lawyers. the purpose is to try to make sure we have a legitimate legal system that fits the 21st century. the constitution is applied to the reality of this country in multiracial democracy in the 20th first century -- and the 21st century. host: you served in the senate, talk about the political process involved in the actual process of putting people on the court through the process of approving them through the senate. guest: to weigh the founders and framers decided to set this up was the judges would be appointed by the president but that wasn't the end of the process.

only the united states senate has the role of advising and consenting on all nominations so investors and executive appointments of a certain kind but also all federal judges. federal judges are basically lifetime appointments. once the president nominates somebody with various background checks and ultimately, he goes to the senate judiciary committee which is now chaired by senator dick durbin of illinois. they have hearings and everything goes the way goes and they discuss the person and then vote on the committee and then the nomination is sent to the floor of the senate. when i was in the senate, in theory, you could have required 60 votes to break a filibuster if there was resistance. that was changed by majority leader harry reid in 2013. so now, a majority vote is sufficient to confirm or put a person on the bench for life and actually it was originally just a court of appeals but it was

also more recently applied to the supreme court. that's a big change from when i was in the senate but that sort of the process once that person is confirmed by a vote, they are sworn in and they are a judge for life. host: there was news this week in the biden administration, their 100 judge being approved in the senate so what does that suggest to you? guest: we are thrilled the american constitution society is thrilled about the success. even though the trump people abuse the process, the biden administration was ahead having 97 judges confirmed in two years to trump's 85. now it's gotten off to a slow start this year. they have not only gotten to 100 with the last couple of days, 104 we think today will be 105. that's very impressive it is not just impressive because of numbers. it's impressive because of what they are doing. this administration is historic

and the diversity of the people that are being nominated and confirmed. 75 of those 100 people are women, actually 76. 68 are people of color and 49 are women of color. this is literally the opposite -- i think only 25% of trump's nominees were women and even smaller percentages of diverse people. the goal here is to return judiciary to people who are legitimate judges who don't have a political agenda and are not just partisan but also that they reflect the population of this country, the diversity of the country in terms of personal background but also professional background. this president has nominated in the senate has confirmed a lot of people who were public defenders, people who represented play tapes, people who have been on the side of the little guys we think this is a proud moment but as an organization, we think they have to move faster in the next two

years in order to avoid the fact that president trump actually got through 234 judges in four years and that's still a pretty big mountain to climb if you want to achieve that. host: is it a numbers game? guest: that's just a measure. first of all, yes it's important to make sure that you take the opportunity to undo the damage that was done by senator mcconnell and president trump of putting as many very young, right wing ideologues on the court. that is a numbers game to an extent but the point more importantly is that each individual judge can have a huge impact. each one matters because it might be a federal judge in miami and handling the case having to do with book banning. might have something to do with immigration. each judge matters tremendously so when we measure this in terms of numbers, yes, but in terms of who is nominated, who will

represent the judiciary that has been far too biased in favor of white males throughout our history. that is something that has to be done in order for the courts to be seen legitimately area our supreme court and our court system has basically taken a bath in terms of legitimacy. there are polls that suggest only 25% of the american people have a positive you the supreme court that's because they sense there is a great deal of politicizing going on. the goal here, -- there are many goals, it's replacing people who are extreme but also getting people to feel more confident again that the courts are on the level. that's the most important thing in our society and we believe that courts matter. host: russ feingold is joining us, the president of the american constitution society and served in the senate and if you want to ask him questions --

being outside of the senate, other ways to streamline the process that would satisfy both sides? guest: i'm not sure it would satisfy both sides but there are ways the process should be streamlined. i will talk first about the lower courts first. we have proposed is an organization, three changes be made to move this process more weakly. that is to get rid of this thing most people haven't heard about called the blue slip. there's a procedure in the senate where if there is a judge nominated for the federal court, the district court in your state, they send you a blue slip of paper and you are supposed to sign off and approve this nomination. this is a senate tradition that the idea behind it is it sort of to make sure nobody seems bad gets in. it has a very dubious background. this was used by senator james

eastland of mississippi, the chairman up to judiciary committee during the civil rights hero to make sure that only segregationist judges would be appointed in southern state. it's got a bad history. during the recent years when the republicans were in charge of the senate, they got rid of these loop slips for the court of appeals. they said we are going to ignore this tradition. now the democrats in the position with many vacancies happening for the district court across the country have had to decide if they are going to let republicans use this failure to return loose lips as a way to prevent judges from being confirmed over the next two years and we had taken of you that that would be a mistake. this is not require a formal rule change, it's up to the chairman of the committee, and we have urged senator durbin to consider this and i think he is. i think he's trying to give the republicans a chance to not obstruct but we feel that may have to happen. there are other changes we think should occur in order to speed

up the appeals process. right now, you just need a majority to get past the filibuster for a court of appeals judge which is a high court lifetime appointment. you just need a majority but once have shown you have a majority, they still have 30 hours of debate in the senate on that nomination. that makes no sense because obviously the votes are already there and is just wasting time. they like to say in the senate that even though it's about money and politics, in the senate, time is more important than money. what gets the attention? using all that time when you would only have two hours for district court judgeship doesn't make sense.you should consider a number of nominations at the same time as they do for executive women's. those are three things that should be viewed as neutral but some republicans would say that's only to help you now. it would presumably be a permanent change that would benefit both parties. host: russ feingold of the

american constitution society serves as their president. our first call come from south carolina come republican line. go ahead. caller: my name is chuck and i'm from south carolina. it's good to see you, mr. feingold. i've been watching politics for 40 years. i think what happened with the supreme or was fdr was in office and by the time he left, he had a really liberal court. it stayed that way and that's how roe v. wade got through. it wasn't until republicans started getting the majority in the senate that democrats started coming up with ideas and how to reform the court area i think the court is fine. probably in 10 years, it's going to be ruling the way i don't like.

there is a line in the court -- the constitution is always ignored. anything that is not enumerated in the constitution is left to the states. i'm a republican to the core and i think that should be the guiding principle of the united states. there is too much federal government and i'm a states rights guy forever. it's good to see you and i miss you. guest: so nice of you and i appreciate it. a lot of what you said makes sense. i grew up believing that the court was on the level. you had a chief justice warren who was a republican. he was from bakersfield, california, republican governor california and came on the and wrote the brown decision. that was for civil rights. justice brennan, many people like me who are more liberal have always considered him one

of the greatest justices. he was a republican and president kennedy appointed the football star. he was very conservative and some liberals didn't like that and he was one of the two that voted no on roe v. wade. we used to say it looks like these guys get on the court and they decide they have to act like judges. the problem is, that has changed and that has changed and now we have people on the court who clearly are showing they have a political agenda. it's so unfortunately predictable what they will do. that was demonstrated in the dobbs case, the abortion case where they throughout 50 years of president. there was aperiod where president could appoint more people but in my lifetime, there has never been a democrat appointed and confirmed as chief justice. i'm about to turn 70 years old. not once. when we have a court where it's perceived that there is a party by us going on in the court, is

not easy to believe it will be returned to a situation where people can be comfortable. our goal is not to turn it into a liberal court. the goal is to make it seem legitimate, to make it be legitimate, to make people feel the judges are actually ruling on the facts of the law, not on their own political preferences. that's where we are at on that. host: lake geneva, wisconsin, independent line. caller: thanks for taking my call. i would like to talk about the upcoming election in election -- in wisconsin. you say you don't think the judges should show a bias one way or the other. a liberal judge from milwaukee, she is pretty much saying in her

tv ads that she is going to vote to overturn republican districting gerrymandered maps and laying out her protocol. it's happening in her ads which is against the state constitution. . it's not only against it but is not regarded to be -- it's not something they should be doing. she saying she will vote on a case when she's not a justice and she's running to be adjusted so she's telling how she will vote beforehand. you said earlier about joe biden has hired more judges due to their sex or race or their gender. don't you think the best person for the job, no matter what the race, color, creed or religion or anything personal shouldn't have anything to do with it? it's who should be most qualified for the position. guest: i agree with that and

president biden was on the judiciary committee when i was there for 16 years the people that he has appointed and have been confirmed are the best people. they happen to be finally representative of the population of this country which is important. for far too long, people with those backgrounds were not given a fair shark dish a fair shot. they are normally qualified starting with our newest supreme court justice, justice jackson and i am comfortable and happy about that. speaking about wisconsin and i love lake geneva, 25 miles from where i grew up, we've had a problem in wisconsin for too many years of the court being politicized. it did not start with this race. i know the judge you are referring to is not the only one who is being pushed to state positions about how they would rule. my understanding is she is not

-- has not said has not said had she will ruin any case. she has a long record of circuit court judge where he has -- where she has shown itself to be independent. we have representation problem in the wisconsin. it appears bias politically, more on the conservative side during the last few years. that is very damaging. i hope that if there is a change on the wisconsin supreme court, he can begin and you are where things don't look like they will always be4-3. one of the conservative judges who has decided occasionally with some of the more liberal judges on the wisconsin supreme court so there is some hope. i have no idea how this election will turn out but i can assure the viewers that the judge he mentioned is not the only one who is being put in this position with regard to people

demanding positions on issues. normally in the past, that would not have been addressed by candidates for the wisconsin supreme court. host: you probably saw the story from a couple of weeks ago, senator john eddie from louisiana rationing a judge being nominated to be a district judge and couldn't answer basic lessons about the constitution. does that show a larger issue as far as the biden nomination and who they are putting forward? guest: my guess it was more of a one off. i have seen senator kennedy do this or to gotcha weapons. some of he asked were maybe i could've answered but teaching constitutional law, this is not necessarily the way you want to do the confirmation process. i know that has not been a problem with most of these nominees because they have asked them tough lessons and they have been able to answer them but announcer: you can watch the rest of this if you go to our website, c-span.org.

house speaker kevin mccarthy and other members of congress are at the southern border. >> a little over two years ago, she literally left the country with her force of intellect. at one point, she went to a hearing after being asked multipart questions of constitutional law. now justice barrett was asked to hold up the notepad she had been provided to keep everything straight. and it was completely blank. she had not even touched it. justice barrett is an intellectual outlier by any standard but she is an appropriate stand and for the judicial nominees of the republican senate confirmed from 2017 through 2020. >> there is the example he gave senator feingold.

what is your response? to hold up the notepad she had been provided to keep everything straight. it was completely blank. she hadn't even touched it. justice barrett isn't intellectual this is not an intellectual outlier but she is an appropriate stand-in for the judicial nominees the republican senate has confirmed for 2017-2020. caller: host: there is the example he gave, what is your response? guest: i think senator mcconnell must've somehow missed the most recent supreme court nomination. why doesn't he say that about catania brown jackson who was brilliant in that hearing? i was on the judiciary for 16 years but largely justice barrett was treated with respect. i feel that kataji brown jackson

was treated badly. they were just plain rude to her but she was unflappable i never saw a point in the process where she wasn't capable of handling questions. she was brilliant and the reviews even from the conservatives on the supreme court now says that's who she is. why would senator mcconnell make a big deal about the barrett nomination and not acknowledge that the most recent one was a tremendous nominee, and historic nominee but a nominee who is an honestly qualified. it's not fair to only talk about one thing. host: bill is in new york on our line for democrats, good morning. caller: good morning, senator. i'm different than the other callers. i think every judge gets confirmed whether for the trial of the supreme court if they qualify for the job my problem

with the supreme court is not so much since there is a liberal or conservative wing, it's that every one of these appointees have an ivy league school background. they all served in the judiciary in lower positions. they are all too much the same. in spite of the differences that appear in the press and complaints about the differences, if you look at all of the cases in every term and every one of these cases have difficult problems. 80% of them are decided before and they are too much alike what do you think? guest: i happen to agree with you. i've been concerned for years that the united states supreme court is beginning to look more like a priesthood where you have certain steps you have to go through and if you don't go

through those exact steps which means going to a very good law school but also means becoming a judge at a young age and having very little contact with the rest of society. i mentioned earl wall -- earl warren,, sandra day o'connor. i think it's good to have a mixture of experience and backgrounds of the people who have a real life experience where they are not required to be so careful which judges have to do is important for informing the thinking and debate and deliberations on the supreme court. going forward, i hope there will be people that don't just fit that model. that used to be the way it was. i think it's damaging the institution because people have a hard time relating to nine people who seem to be almost completely from the same sort of training background and career background. it's not adequate. host: there is a viewer who suggests term limits for the

courts anything's 12 years is enough. when it comes to the actual changes as far as term limits for the supreme work, what do you think? guest: we think that's right, there needs to be term limits. this is not something i would have said in the past. we felt the warren court was on the level and even the burger court and others but the problem now is this supreme court was stolen. it was stolen by mitch mcconnell and donald trump. they deny president obama's right to fill seats and they basically stole future president biden his opportunity to fill the ginsberg c. the court has been basically stolen in terms of the legitimacy of who is actually on the court. we need reform. we need to do something because these folks are in their early 50's mostly and they will be there for probably 30 years of

something has to be done to undo this unfair attack on the legitimacy of the court area the first thing we think we should do is add seats. congress and the president can add seats, it's been done before and that something you want to do but given the theft of these two seats, we think and many other people think, that needs to happen in the near term. secondly, we support having term limits. one of the callers said, the conservatives were the first ones to talk about that. they proposed an 18 year term limit. we don't weigh in on the exact time. these people can continue his other federal judges but an 18 year term limit. most people might think that requires a constitutional amendment which is hot -- which is hard but many scholars think you don't need it. we support the kinds of reforms you were alluding to. we think there should be an ethics code for the court, they don't have one. the other federal judges have

had one. they have to have a basis for when they fail to recuse themselves in a case, there is not a real gift ban. they can receive gifts and travel i make sure those rules were applied to members of congress. there ought to be some reform of the so-called shadow docket which is a kind of hidden docket that supposed to be for emergencies but it's being used in many cases for very important decisions, where they don't issue a real opinion. we support a whole range of reforms and we think this is the moment where this has to happen. host: you talked about the stolen seats and i assume you mean justice kavanaugh injustice eric. what you think of their performance to date? guest: this court has become highly politicized. even though they may be intellectually capable, these decisions such as the dobbs decision were simply lawless. it literally took 50 years of

precedent protecting a woman's right to choose and threw it in the garbage can based on flimsy historical evidence. these justices have been part of that damage and they are on doing any limitations on the so-called second amendment which i happen to believe there is a right to bear arms but they are taking it to an extreme, eliminating laws that we've had in new york for generations to make sure about how and when you can brandish a weapon and they are taking this to town on especially voting rights. these justices have done enormous damage to the voting rights act and the right of people in this country to have a chance to vote. it began before they were on the court and we are fearful it will get worse in this supreme court term with the cases before it. the most fundamental right, the right to vote is being undercut by these justices you mentioned. the combination of them with the ones that were already there really looks like a court that is biased and has a political

agenda and does not respect precedent. the president is the whole basis of the legitimacy of the court. the founders did not intend the court to replace congress and the president but that's what they are doing. host: russ feingold joining us, president of the american constitution society. this is carl from florida on the republican line. caller: how are you? guest: good, thanks. caller: i was nice and calm for the phone call in the fellow before me rattled me. anyway, originally, were talking about how inclusive biden is in this equity stuff. he put 49 lakh women judges on and he's looking like america. the america i grew up in, i'm 67

years old, and it's somewhere between nine and 13% lakh. -- black. how does that look like america? guest: what this is is 49 new judges, women of color who will start undoing the enormous bias in the other direction. the hundreds of federal judges are overwhelmingly white males and maybe it will reflect the population in the end but with these changes, it doesn't come close. the historic record is that black women and others have not had the same fair chance to be on the word. this is merely making up for historical discrimination. it's very clear to the viewers this does not mean that 49 women on the court or black,. host: democrats line from new

jersey, here is richard. caller: good morning. originalism, i was watching the debate about the woman who didn't [indiscernible] and i watch for two hours in the never heard them ask for the definition of words. they totally ignored the text and they went back to some originalist bs and therefore come up with any answer they want. it's crazy. is it possible to pass a law in congress that says they have to stick to the text? use the dictionary from the 18th century, i don't care but go by the text. you can come up with anything you want, look for the right founding father to express your view and that's how you come to an answer? the idea that citizens can carry

guns, it's not in the text at all. anybody who can read can see that. this is a big problem as far as i can tell. guest: you are right in this use of originalism and textualism, it shouldn't be the whole analysis. you are right, they use this in a phony way. the user to get the result they want, pick and choose the words and the laws about portion from a certain time on they don't look at traditions from another time. it's completely manipulative. it's not an a legitimate intellectual approach of people have to realize when people talk about originalism and textualism, they are not really following the intent of the founding fathers. the intent was that the people

of this country be able to adapt the constitution to the times we are in. george washington said at the adoption of the constitution before it was sent for ratification, he said he will support this because thank got under article five of the constitution, it can be amended. is that the people of his time certainly will not have more wisdom or understanding than those of the future. the idea this get tied to some mythical idea of what was going on in 1789 is usually used in a bogus way. we need a more holistic look at what the law it to be understood as now. the framers adopted a document that was sufficiently flexible to adapt to a period like the 21st century. it's only the people demanding this cramped version of reality and words that are causing it not to be adaptive host: host: in that way. is that a congressional issue as far as making changes to the constitution? guest: it would be ideal of congress didn't have to wait and

whether the work had -- whether the court had to do this. one way is to have two thirds of both houses propose an amendment and three forts of the state have to prove that. that's the only way it has ever succeeded. there is another mechanism which is the calling of the constitutional convention that can be done by two thirds of the states applying for a convention. i've just written a book about this with the student of mine. it warns that the far right is trying to call one of those conventions in a way that would allow each state to have one vote so we can really undo the constitution. my book is the constitution in jeopardy and addresses the fact that we need to be able to amend the constitution but we probably have to change the way it works because it doesn't end up being a vehicle to understand the basic test the basics of 1789. host: from virginia, go ahead.

caller: i am old enough to remember judge amy coney barrett not knowing first amendment freedoms in her confirmation hearing. i'm interested in knowing whether you think related to your book whether a constitutional convention is more likely and i want to know if you think the blue slip process will make the president less likely to consult with home state senators. finally, will you run for president in 2024? guest: the last one is the easiest, no i will not. secondly, yes, we have to get rid of these blue slips. having been in politics and in the senate for 18 years, just because there is a blue slip process or not, that's not going to change the fact that a president generally will want to consult with a senator and say we are thinking of appointing this person. generally, presidents want to be on the best side of members of the senate so they can get things through the senate.

they will continue to consult i'm guessing almost about the same. i don't think the blue slip process is the real deal. we are concerned in terms of a constitutional convention even though it's a legitimate mechanism that's in the constitution that the so-called convention of the states, people are trying to put together a convention that will be so biased in terms of delegations that each state whether it's wyoming, california, the same boat. you would have the problem we already have, filibuster and each state having to senators in the electoral college we don't have a majority system in this country. i understand their needs to be some limitations on it. if you have a constitutional convention where a simple majority of the states can undo things like the power of congress, the power of dealing with environmental issues, that would be damaging and take his back to the articles of

confederation which were the reason they had to go to philadelphia to do something new in 1787. we are concerned about it and fortunately, on recent boats, this effort of the convention of the state has failed. in montana and this weekend nebraska it's not moving forward but they are trying to get to the 34 state applications that would allow them to require congress to call a constitutional convention. host: as far as the supreme court cases that you are interested in following, which ones are being herded? guest: i'm concerned about the cases that have to do with independent state legislature theory. it's the idea that somehow the state legislature come in this case north carolina can ignore concerns by the north carolina supreme court about whether or not the legislative plan is legitimate. we are worried about this because it's not just about reapportionment, import -- important as that is for the right to vote but it can be applied to anything potentially.

they could potentially say we will decide who won the election. we will not consider what the majority of people voted in north carolina and we will not consider what the supreme court in north carolina did so it's a crazy notion that a state government, whatever powers the state has come is only the legislature which are often gerrymandered. it doesn't include the people and doesn't includes is just the supreme court so it's a term in this concern. we are concerned about the affirmative action case where there is a strong possibility that the very long commitment to affirmative action and universities will be undercut or destroyed. given the progress in this country in dealing with the historic founding failures of our constitution and racism in this country, to undo the work that affirmative action has done in our universities i think would be a tragic moment. we are very concerned that could come out of this court. this court is not on the level, it has an agenda that has been

present for many years and one of their things they wanted to do is to simply undo this important way of changing the fact that this country was based on very severe discrimination which continues to this day. host: this is from kiki, democrats line. caller: the first supreme court when after muslims and then voting rights and union rights, women's rights in said religious schools could take taxpayer money. they destroyed the epa and they are going after gay-rights and who is handing mentally ill people weapons, terrorists. keep it classy. this turned congress into an escort service. where they get their people from the jerry springer casting pool? guest: i haven't heard of jerry springer in a while.

i don't necessarily agree with every word but yes, the problem is the work looks like it has a political agenda and it's a far right little agenda. it's trying to underage dish undo many decades of congressional action and court decisions and trying to make this a better society, a more tolerant society, a society where can feel like one people instead of having one side nominate the other. this is an attempt to basically create not a my note a protection of minorities and make sure the majority doesn't oppress the minority but it's trying to put in place minority domination of our political system. that is their agenda and the court unfortunately seems to be reflecting it and that's why it's reputation is in the dumpster. host: great falls, virginia, daniel, republican line, hi. caller: thanks for taking michael. a couple of comments -- i get it that you are not in