hi there. i'm kristen sze. welcome to our daily program called "getting answers." we're asking experts every day at 3:00 to get answers for you in realtime. today, we are remembering the life and legacy of supreme court justice ruth bader ginsburg. we're also going to explore the controversy and legality of when her replacement will be selected. of course, as you know, that is a debate being discussed across the country. we'll talk with law professor hah d hadar but welcome someone people in california know very, very well. she was a u.s. senator from 1993 to 2017 and she is, of course, familiar to the bay area. senator barbara boxer, good afternoon, so great to see you.

thanks for joining us. >> thank you very much for inviting me. >> it's long overdue. sorry it's under these circumstances but see what you're doing since retiring. what are you busy with? >> there's a little place in the bay area. our main residence near palm springs right now and with covid, kind of doing that. and have been giving a lot of speeches but with covid, we have been realizing we had to do it virtually and i'm a teaching fellow at usc, teaching a course in demystifying politics and governments. a lot of work to do in that area. >> yes, certainly. and i hope you can teach us a thing or two in the ten minutes we have here. i do want to give you my condolences because you're part of a sister hood with justice ginsburg, elected in 1993.

year of the woman following the confirmation with claerns thomas, and then justice ginsburg nominated and confirmed in 1993 the year after, talk about that era, >> the year of the woman, i thought that was a bit exaggerated. it was 2-6 in the senate but that was tripling the numbers. it was a big deal. when i got there clinton nominated the wonderful ruth bader ginsburg when she came into my sphere and my life. not that far behind her.

i experienced the same sort of prejudice she did and we had a wonderful arrangement, the women and it was pretty wonderful thing. we got more and more women in the senate. we did all believe in equality. minute one, before she got to the court. she was leading the way. some of her early cases actually, represented men who were not being treated which was

genius on her part, if a man is a plaintiff in a sex discrimination suit, if you win it, it works both ways. brilliant about the way they fought cases, before she got on to the court. and then once she got on the court, she sent strong signals, equal pay for equal work and she lost that, saying they ruled, saying she missed the statute of limitations. congress, it's up to you and because of that we all work together and barack obama signed the lily ledbetter

>> i love that picture. those who have equal pay, paychecks equal to a man who does the same job over a gratitude of thanks. i want to ask you, so president trump said he will announce the nominee late this week after r two e ginsbu ls in repose when do you think the confirmation process should be taken up? >> merritt garland, barack obama's nominee after scalia passed away. and mitch mcconnell said, it is unseemly to consider a supreme court nominee in an election year. that was 10 months before the election. this is days, weeks before an election, and there are at least six or seven republicans who are on the record, lindsey graham, for example, pulled me to the side. would never appoint anyone, take

up an appointment in an election year. and don't say you're for a principle and a couple of years later say, that was then, this is now, we need to hold their feet to the fire. it's absurd and i hope that the leaders of the democrats and the house and senate will use every tool at their disposal to slow this down, to show the people what these republicans said. we only need four of them to not vote to move forward. >> well, i do want to point out that despite what happened in 2006 with merritt garland, i know you were there for that but constitutionally, the president, of course, has absolutely the power to nominate

>> that's not the point. the point is, the president. and the republicans declared this. not just off the top of their head, they went on record. they looked out there like i'm looking at you and they say, we will never do. this is wrong. regardless of what the president has the right to do. they could declare war today, that doesn't make it right. >> in 2013, before democrats, the minority in this case, has more of an ability to stop this, but back in 2013, under senator harry reed who was the majority leader at the time, they eliminated the filibuster on traditional nominees by allowing

the process to advance to a vote through the simple majority rather than the 30 60 vo60 vote and the republicans said this would only rupture the system further. were republicans right? do you regret that happened? >> couldn't get one judge confirmed for obama. for the lower courts, take away the filibuster, but that's all, that's all over now. what we have to do is win this election and we have to also, in this particular period show everyone what the republicans said, clear as clear can be.

never, never have a vote upon confirming a supreme court justice in an election year. period. >> senator lindsey graham reminded a lot of that all weekend weekend. what do you think about that, pros and cons for her and for democrats coming up on the election. >> i say no cons at all. she's brilliant attorney. she will know the questions she needs to ask. i hope it doesn't get that far, frankly. i hope that there's many more republica republicans. there's chuck grassley, all of these, they said the same thing. and a lot of them are running, so maybe there's a way this can slip, but if kamala harris is there, she should just do what

she's always done in these hearings. get the questions straight and get out there and get to the truth because she's very good at that. very good at it. >> senator boxer, our last question. you said politics was still a noble profession. do you still believe that? >> i've got so many things i'm proud of, across the aisle. people cross the aisle to me, whether it was environmental protection, after-school care. things i did for vets. it was all bipartisan. that's gone. and we've got to get back to the point, that's why i think joe biden is a good candidate because you don't have to compromise your ideals. but you find the sweet spot with people on the other side of the aisle and he knows how to do

that. >> barbara boxer, good to see you you. >> it is quickly becoming one of the biggest debates in the u.s. when should the seat of ruth bader

and we are back. an unfortunate result to the passing of started almost immediately following her death. when should her replacement be selected? joining us now to get more on

this, law professor at u.s. hastings school of law i know you've seen her speak in person. >> she visited hastings in 2011. i think justice ginsburg' legacy is important to anyone who cares about equality. she's written very fundamental decisions in areas of gender equality, areas of voting rights. fie fiery dissents, with the ills of racial profiling

profiling. >> this is the second shortest time between vacancy and the election. the shortest time was in the 1800s who passed away 27 days before the election after president lincoln. generally speaking, the average of time that passes from the nomination to the senate judiciary committee passes somebody forward to the senate is 46 days and then before the senate, an extra 26 days. so the timeline would be very, very short if they're pushing to confirm someone before the election. >> mitch mcconnell has every reason to get a justice on the bench before election day. there's so many uncertainties.

but i want to ask you, what do you think the decision will be based on for him? in terms of deciding whether to push for before the election or perhaps wait until the lame duck session afterwards? >> confirming an additional conservative justice is going to be a huge boon to the conservative side of the map. no arguing about that but there's also the concern that this particular stunt is going to alienate centrist voters who might be uncomfortable ramming a justice through so shortly before the election and could put in jeopardy vulnerable republican seats including the seat of mcconnell himselfen and think this is part of the cost-benefit analysis trying to go forward.

>> two generally said they'll not vote on a justice before the election. we're talking about susan collins and lisa murkowski. there's a number of other vulnerable republican seats and those are facing pressure not to do that but remains to be seen what's going to happen. there's a big difference between doing this before the election and doing this during the lame duck two months between the election and the confirmation of the new president should biden receive the presidency and after the results are known and before the actual transition of power, there won't be the same consequences as before but by that point, we might be dealing with a very different scent. >> democrats have gotten a nominee through lame duck before, right? >> so there have been nominations

chuck grassley making the argument there's a tradition not to nominate anybody during the election year. two successful nominees during election year, one of them in 19 1988, this is not exactly fair but there's this bitter memory from something that happened in 1968. >> the year was 1968 and chief justice warren, seen president nixon, presidential nominee rising in the polls and didn't want to risk the situation to not outlive the presidency and personal beeves and decided once

he saw the election was going to go nixon's way, especially after the assassination of robert kennedy, he went to president johnson and said i'm going to retire as soon as you nominate someone and who was then an associate justice to the chief justice seat and then harry thor thornbury and not just among republicans but johnson's own party and it was made very clear this was not going to go through. it then came to light they had dealings with enjoying a privately appointed to american university and a consequence, when nixon took office, he could immediately nominate two justices and that was basically the incident that started the

entire reversal. this can backfire and does sometimes. >> we're going to take a short break on the air. when we come back though, i want to explore with you the concept of possibly expanding the court, a lot of people throwing out there, should the democrats

and we are back with law professor at uc hastings school of law. hadar. can the democrats, right, should they win the white house and the senate majority, expand the court and if the answer is yes, what is the downside to that? >> i know i know i know i know o opposed this in 2019 and learn to rue the day if we do this and sometimes when you do partisan moves like this, you undermine

in a way the opposite side can explo exploit. we saw the same thing happening in 2014 when they eliminated filibuster and if the democrats go ahead and appoint six more justices, the following year, the republicans appoint 15 more justices and that completely undermines public confidence. i could see arguments on both sides. when the supreme court blocking his new deal, his own party resisted and he was not successful pushing through legislation to do it. >> that could shake the confidence in that institution. isn't the supreme court one of the institutions left that's held in the highest esteem by the american people?

>> i think generally speaking, trust in the government has gone down considerably in the last couple of decades. the supreme court ranks a little bit better than most but i think that these kinds of strategies could lead to an undermining of the supreme court and that's, i think, a concern that democrats will have to discuss, if they're put in the position of having before the election. >> dear friend, the late justice antonin scalia, other justice on this court. in what ways? >> justice ginsburg's primary impact in the area of gender equality, as a lawyer arguing before the court and later as a justice. gender equality, she's written important decisions in cases of voting rights and she's been a staunch defender of reproductive

justice. this is partly why one of the interesting things that might happen now is that justice ginsburg could energize christian evangelical voters that might not be enamored with trump but care a great deal about abortion and a chance to get somebody in the supreme court to overturn roe v. wade. >> certainly energizing. no matter how people feel about this issue. what should be appointed and where they should individually to influence this process. >> people comfortable, put put t

pressure on republican senators seats are vulnerable and might be thinking twice cost-benefit analysis in trying to control the timing of this nomination. >> before we go, i just have a historical perspective of how we've got here. supreme court nominations is coming down to a 51-49 vote and we think that's normal. that's not really normal with the history of the u.s., right? >> that's exactly right. it used to be the case, i mean, typically they appointed justices from the same political party and shared basically the same opinions, but the person was legally qualified and professional excellence really important characteristic, if that was the case, people very seldom provoke contentious arguments and in fact, the hours that the hearings before the judiciary committee and before

the senate took greatly expanded in the last couple of decades. it used to be the person was qualified even if the senators didn't agree with them, the nomination would generally go through and we've come to partisan times and considerations. >> these are unprecedented times in so many ways. professor hadar from uc hastings school of law. thank you for coming on the show and sharing your insights. >> thank you, and good luck to all of us. >> yes, please don't g

thank you for joining us on "getting answers." we talked