President Donald Trump's nomination of Judge Amy Coney Barrett to replace the late Justice Ruth Bader Ginsburg's seat on the U.S. Supreme Court has sparked a lot of controversy between Democrats and Republicans. The nomination process is expected to begin even though the November election is just weeks away, and her appointment would skew the nation's highest court more conservative. GBH Morning Edition host Joe Mathieu spoke with Northeastern University law professor and GBH News legal analayst Daniel Medwed about what's ahead, and potential new reforms on the horizon. The transcript below has been edited for clarity.
Joe Mathieu: I guess this is going to be an ongoing conversation here with us as we learn more and hearings get underway. They're talking about Oct. 12, but what should we expect from what you're learning in the coming weeks?
Daniel Medwed: Well, it is 2020 after all, which means all bets are off.
Mathieu: That's for sure!
Medwed: But I imagine absent a constitutional crisis, as you just indicated, we're going to have a committee hearing in October to weigh Coney Barrett's nomination. Usually it takes about a month or more between a presidential nomination and the holding of a hearing to allow the FBI to gather documents, for the nominee to get prepared and so on, but all signs are that this is going to be fast tracked.
During the hearing, as many listeners may recall from Kavanaugh's hearing just two years ago, Democrats and Republican members of the committee are going to be allowed to interview the nominee [and] there might be some witnesses. Once the vote gets through committee — and I assume it will, because Republicans dominate the committee — it will go to the full floor of the Senate for a vote. Originally, of course, or at least historically, you could filibuster or block a Supreme Court nominee and it took 60 votes — three-fifths of the body — to break that filibuster. It was called cloture. But in a very dramatic move back in April 2017, the Republicans got rid of cloture. Now all you need is a simple majority to get a Supreme Court justice through.
Long story short, since Republicans hold the majority on both the Judiciary Committee and in the Senate writ large, it's a foregone conclusion, I think, that Barrett will be appointed. The only real question is when. Will it occur before the election, or during the lame duck session?
Mathieu: We should note, Daniel, that the introductions begin today. This is part of the formalities, the pomp and circumstance. She'll be up on the on the Senate meeting with Mitch McConnell, Lindsey Graham, the chair of the judiciary, along with a few others. Also interesting, there'll be no "Sherpa," I read, this time. Usually a lawmaker, a friend or some sort of associate will walk them through these meetings. But it will, in fact, be the White House Chief of Staff who does that job, which says a lot about the direction of this whole process.
So I want to ask you, Daniel, about the legitimacy of the process given the appointment is occurring so close to the election. That's really getting to the heart of the conversation here, because we all remember Merrick Garland.
Medwed: Well, that's right. And I think that phrase legitimacy, whether this is illegitimate or legitimate to some extent, depends on the lens through which you're looking at that term — if you're looking at it legally, or in more of a moral or ethical sense.
So legally, the Republicans can basically do whatever they want. Separation of powers go by the wayside with no "Sherpa" even involved. They occupy the Oval Office, they have the majority in the Senate, they can do this. But, of course, just because you can do something doesn't mean you should. And I find this, like so many other people, to be the epitome of hypocrisy [and] an example of the absolute erosion and deterioration of our norms for Mitch McConnell and others to say four years ago, there's not enough time to rush through a nominee on the eve of a presidential election, and four years later say, when there's even less time, that apparently it's appropriate.
Mathieu: Well, in our remaining moment, I'd like to ask you about some of the reforms that are being proposed. Of course, this is really further down the road here, but for instance, Congressman Joe Kennedy III is one Democrat set to introduce a bill calling for term limits. We've also heard about expanding the number of justices. What do you think about these ideas?
Medwed: I don't like term limits and I do like expanding the court. Here's why.
First, Article III judges under the federal constitution have life tenure for a very important reason. That is, in theory, to protect the interests of the minority from the tyranny of the majority, as reflected by decisions by the president in the Congress that are, of course, elected by popular vote. And if you have term limits, I think that could skew their decisions. They might be less long-term cited and they might not rule without fear or favor because they're looking for their next job. So I don't love term limits.
But I do like the idea of expanding the court. First, there's nothing set in stone in our Constitution that prescribes the number of justices. It's ranged from five to 10 over our history. Congress settled on nine back in 1869, but our country has changed significantly since then. It's much more diverse, it's much larger, and for our judiciary to truly protect minority interests, which, as I indicated a moment ago, is what they should be doing, then the composition of the court should better reflect the diversity of our community. So I'm in favor of expanding it, and not just out of disdain for the Republicans.