Show Notes
Americans
are all too aware of the partisan warfare involved in recent nominations to the
Supreme Court. Heated political frenzy accompanied Brett Kavanaugh, Merrick
Garland, and Neil Gorsuch on their path to reaching (or being denied) a seat on
the nation’s highest bench. How much further will the Supreme Court nomination
battles escalate? How did we get here? How much of today’s vitriolic atmosphere
surrounding the nomination process is business as usual, and how much is it a
symptom of our polarized era?
Ilya Shapiro, author of the forthcoming book Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court, joins Adam on this episode of Unprecedential todiscuss the fascinating and sometimes unexpected history of Supreme Court nominations. This history involves idiosyncratic moments, such as men being confirmed to the Supreme Court before they even knew they were nominated in the earliest days of the republic. There are also interesting anecdotes of nominations past, including the fact that hearings for judicial nominees began only in the 1930s.
This history crucially informs us that disagreement and debate have always been involved in the confirmation process. Today, however, every single political controversy of national significance reaches the Supreme Court’s docket. Ilya and Adam discuss how nomination processes of the past can inform our thinking today, and point us to reforms that can deescalate the Court’s entrenchment in controversy. One especially urgent reform suggested by history is for policy disputes to be redirected away from the Court, back to the branch where they belong: Congress.
More from Unprecedential
After fifteen months and 46 episodes, Unprecedential is packing up and going to the beach. Today’s episode features Adam and Elayne reflecting on their favorite conversations thus far. They also draw out some general lessons about constitutional governance from the wide-ranging insights brought by guests. In the meantime, watch out for bonus episodes this summer and, later on, a revamped show with a new format. Stay tuned!
The Bill of Rights provides a great number of protections for accused and convicted criminals: it promises trial by jury; it prohibits “cruel and unusual” punishment. And in this system, defendants are presumed innocent until proven guilty. Yet few criminal indictments today are actually decided by a full trial; instead, prosecutors have many points of leverage, and defendants have strong incentives to plead guilty. Are these tools and incentives good for constitutional government? Judge Jed Rakoff, of the U.S. District Court for the Southern District of New York, recently published a book arguing for major reforms: “Why the Innocent Plead Guilty and the Guilty Go Free: And Other Paradoxes of Our Broken Legal System.” On April 29, 2021, he participated in a public web event with Adam, to discuss the limits of forensic science, prosecutors’ advantages over defense during trials, and other ways the criminal justice system is falling short. The recording of their conversation is today's podcast episode.
From today’s vantage point, the Founding era often seems a time churning with decisive hopefulness. The 1789 Constitutional Convention certainly featured vehement debate, as Gary Schmitt and Joseph Bessette noted in our last episode. But optimism appeared to prevail: on the last day of the Convention, Benjamin Franklin concluded that a rising, rather than a setting, sun was the apt metaphor for the fledgling nation. Yet many of our most revered Founders –Washington, Adams, Jefferson, Hamilton – expressed deep concern for the new nation’s prospects for success. The framers’ worries, often overlooked in scholarship, is the subject of Syracuse University Political Science Professor Dennis Rasmussen’s new book, Fears of a Setting Sun: The Disillusionment of America's Founders. Listen as Adam and Dennis discuss the Founders’ fears – and one framer whose measured confidence was notable exception.
When the Constitutional Convention began in 1787, delegates were tasked with creating a government that could simultaneously avoid monarchy’s overreaches and the Articles of Confederation’s ineffectiveness. In other words, the Convention needed to craft a republican executive. The Convention’s arguments over presidential selection, structure, and scope captured both the danger and fragility of executive power – twin concerns still evident in today’s debates about the presidency. Claremont McKenna College professor of Government Joseph Bessette and frequent guest and AEI scholar Gary Schmitt join Adam on Unprecedential to discuss their recent AEI report, “Crafting a Republican Executive: The Presidency and the Constitutional Convention.”
Since the 19th Amendment ratified women’s right to vote in 1920, the quest for women’s equality in America has taken many turns. But the philosophical lineage behind the legal and cultural debates about women’s rights remains visible in today’s disagreements. Intellectual descendants of John Stuart Mill argue that reproductive autonomy best achieves economic equality for women. Heirs of Mary Wollstonecraft’s thought, on the other hand, emphasize the need for laws that require employers to respect men’s and women’s family obligations. Erika Bachiochi, fellow at the Ethics and Public Policy Center, senior fellow at the Abigail Adams Institute, and author of the forthcoming book The Rights of Women: Reclaiming a Lost Vision, joins Adam to trace and evaluate the evolving debate over the political, legal, and cultural meaning of women’s equality.