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All right. Joining us this week on Live in the Brain for all of my legal eagles out there and people who enjoy watching the courts from the Supreme Court on down, federal, state, all of it. We've got a special guest for you today who is aiming to make sure that there is a specific shaping of some of these courts and the decisions about who are going to be sitting on the bench. This is the
is the president of the Article 3 Project. He was chief counsel for nominations for Senate Judiciary Chairman then, Chuck Grassley. And he's also a clerk for Justice Gorsuch. Mike, great to have you with us. Thank you for having me. Okay, so a lot of people are very freaked out about what you're doing, as you know. So first of all, explain what you're doing and then we'll talk about your critics. Well, what we're trying to do is help the president, help President Trump continue his historic success in appointing judges to the bench and
who understand that their limited but critical role is to interpret the law and not to rewrite the law. And so we've seen with President Trump, he's appointed Justices Gorsuch and Kavanaugh, a record 41 circuit judges.
80 district court judges and two other federal judges. And we want to continue. We want this success to continue. And that's what we're going to be doing with the Article 3 project is fighting to confirm these judges, defending these judges from attacks from the left as they go through the confirmation process. We want to defend judges once they get to the bench. You see that the left...
likes to attack sitting judges, including Justice Kavanaugh. And we also want to defend the confirmation process and fight back against the left's attacks on judicial independence, including their court packing, term limits, and impeachment schemes. So let's talk about that, because a number of federal judges, once they're on the bench, it's very tough for them to stand up when they are publicly criticized, whether they've been appointed by Democrats or Republicans. There's been a lot of pushback that people think
The American public now views the judiciary as very political, and that was never its role. What do you make, first of all, of folks who do view it that way because they now – in almost every news story, and I know that there are some objections within the Supreme Court, folks I've talked to over there, that when there is a story about a ruling for or against President Trump and they're like, so-and-so appointed by President Obama or –
So, pointed by President Trump, I mean, do you think that it should matter who appoints a judge when we're looking at the way they make their decisions? It shouldn't matter, but it does. And I think it goes to the difference in judicial philosophy between conservative judges and liberal judges. From a conservative judge's perspective, there is a right answer. The law means something, and a judge's job is to find and apply the law as written and originally understood by the public at the time of its enactment.
And then you let the chips fall where they may. A lot of people on the other side of the aisle, on the Democrat side of the aisle, like to appoint liberal judicial activists because they can't convince – the Democrats can't convince the American people to go along with their legislative agenda. So they think that they have these judges that they install on the court that are just going to fix it. And so that –
you know if a judge comes to a quote liberal result or a conservative result it should be because the law commands a liberal result or a conservative result well and to that point i remember when justice gorsuch uh was going through his confirmation process and we are all you know feverishly digging back through everything he's ever written i remember there was an article back in 2005 that he wrote in which he talked about the american left he thought had now started to look to the courts
to do the work for them, as you mentioned, because he thought if they can't get things passed legislatively, they're increasingly turning to the courts to get the work done for them. Has that trend gotten better or worse, do you think, since he wrote that piece in 2005?
You know, I think that when you have Republican presidents who are appointing originalists and textualists to the court, it gets better because their job is to follow the law as written and understood by the public at the time of its enactment. So the law has a specific meaning. When you have liberal judges and justices, you know, sometimes they think their job is to have like an empathy standard and do the work of the legislator.
I think we've seen with President Trump that he campaigned on the promise that he would appoint judges and justices who follow the law as written and not make it up like a lot of these liberal judges do.
And the president has delivered with Justice Gorsuch, Justice Kavanaugh, and a record number of circuit judges. These are judges who understand their limited but critical role in our constitutional system. Okay, so let's talk about a couple of the folks who are not thrilled about what you're doing for this kind of philosophy, the Alliance for Justice.
In a recent, reacting to the debate, the first set of Democratic debates, they said it was important that the issues, because we had a couple big Supreme Court rulings on the second day of those debates. It was the final day of the Supreme Court term. I didn't sleep, I think, for 24 hours because we had the Supreme Court in the morning. Then we had the debates that night. But I always think it's really interesting to have candidates respond almost in real time. We got the census case, the gerrymandering case that day.
But Alliance for Justice Reacting said people are disgusted by Mitch McConnell's theft of a Supreme Court seat and President Trump's appointment of anti-woman, anti-worker, anti-civil rights and anti-LGBTQ federal judges.
at all levels. And, you know, they're insisting that if a Democrat doesn't win this time around, that the federal judiciary could be destroyed for decades because of the president's very aggressive. I mean, almost we're approaching 150, I think federal judges within not too distant future. Yeah. We're at 125 right now. And I, I hope that we get to over 200 by 2021 when president Trump is reelected. But I,
you know you know the alliance for justice is uh you know they're i think they're just trying to scare voters they're they're trying to again it goes to the left's what what the left view how how the left views judges the the left views judges as super legislators who are going to fix their problems that they can't get through the legislative process um and
It's just a difference in judicial philosophy. It's not a judge's job to be for or against a particular party or a cause. It's the judge's job to be for the law. And it's just a difference in judicial philosophy. It is. Okay. Demand Justice is another group that we follow. Obviously, Brian Fallon, formerly with Hillary Clinton. He's clearly on the other side of the aisle.
in this interesting release from them, he talks about how he thinks Democrats have just rolled over too much for Mitch McConnell, for the president, for all of these openings that had been filled under President Trump. He's also warning and talking about the fact that Democrats, he says, may not have the power to stop Republicans from changing Senate rules. He's talking about how they have changed things up so they could get more people through. But he says they should start opposing all of Trump's judges en masse.
He says they should also commit to adding seats to ensure that the next Democratic president has the chance to pick judges who can restore balance to the courts. Doesn't specifically mention the Supreme Court, but maybe it's all federal courts, maybe including Supreme Court. But he says McConnell set a new precedent that it's OK to change the Senate rules in order to help confirm more of your side's judges. Democrats must take this ball and run with it when they retake power.
What do you think? Brian Fallon and Demand Justice are the gift they keep giving for President Trump and his judicial nominees. And I would like to pay for their advertising because every time Brian Fallon gets out there and opens his mouth and pushes Democrats to do stupid things, it's very good for President Trump and judicial nominees.
Well, let me ask you, too, about Article 3 Project, because you have made it clear that you want Republicans or conservatives to be more assertive about these issues, more sort of about protecting judges, about who they nominate. Tell us how that's a little different maybe than some other groups have tackled this in the past.
Well, I mean, what we bring to this effort, we've worked on judicial nominations from the White House perspective. We've worked on the nominations from the Justice Department. We've worked on nominations from the nominee's perspective with helping Justice Gorsuch get through the process. We've worked on nominations on Chairman Chuck Grassley's staff on the Senate Judiciary Committee. So we have a very deep understanding of how the nominations process works.
I've clerked for Justice Gorsuch on the Supreme Court. I've clerked for Judge Gorsuch on the 10th Circuit. I think the difference, you know, how we're different from other groups out there is we're really willing to take off the gloves and put on the brass knuckles and punch back. And, you know, the...
The Democrats, the left, oftentimes have glass jaws. So they like to pick fights on judges, and then it doesn't work out so well for them. I mean, you saw this with, they tried to filibuster Justice Gorsuch, which was, in my mind, it was malpractice on the Democrats' side. They should have let Justice Gorsuch get through with 60 votes in the safe Scalia seat, and then whoever the nominee was for the Kennedy swing seat, they could have said, look, we were so reasonable with Justice Gorsuch last
But with whoever the nominee was, this person is just unacceptable. And they actually could have been effective in blocking whoever that nominee was. But you have groups out there like Demand Justice, Brian Fallon, Chris Kang, and they keep pushing the Democrats farther and farther to the left and to be more extreme on the judicial fight. And any time that the left shows up to the judicial fight, they lose.
You know they are going to characterize you, and they already do, and that side of this argument is doing the same thing. You heard how they described the judges that under Mitch McConnell's Senate leadership and the president's nominations have come to be. They think the right is getting more and more radical, anti-everything. These people are not reasonable, and only by changing the rules of the Senate are you getting them seated.
We all know how ugly the Kavanaugh fight was. I'm not sure the country has recovered fully from that. That was bruising. But we all know that if one of the next open seats happens under President Trump, and it happens to be somebody who is nominated by a Democrat president,
I think it's going to be something we haven't seen before, at least not since I've been covering the court. Yeah. I mean, I always say that if, if you, if you thought that the, the Kavanaugh confirmation fight was, um, ugly, uh, you just wait until the next one. It's,
it's going to make the cap the next one is going to make the kavanaugh confirmation look like a walk in the park so it's going to be ugly it's going to be very ugly is that partially why you were motivated to step up and get involved there were a couple reasons why i wanted to get involved on this um i i committed to help chairman chuck grassley my home state senator from iowa get through the last congress and then he went over to become the senate finance committee chairman and it was
It was a good time for me to go at that point. I was pretty exhausted after helping Gorsuch get through and then a record number of judges for the lower courts and then Kavanaugh. And then we had three more nominations hearings after the Kavanaugh confirmation. So it was – I think we broke every piece of China in the Senate. There was no more China left to break. But –
I think what got me really motivated to do this is the left going after Justice Kavanaugh for teaching at George Mason University.
So folks know it was an it's a summer assignment that the justices, most of them do some kind of summer teaching. And I've seen video of the of the meeting at which there were people who stood up and said essentially that it was unfair to sex assault survivors and people who have worries about those very real issues.
that he would in any way be teaching in an affiliation with the school. Just a little background. Yeah, I mean, which is crazy, frankly. You have a sitting Supreme Court justice who was willing to go teach a law course at George Mason University, a law school on the rise. And you have these cupcake undergrads and these wacky faculty members and these George Soros funded groups out there
feigning fear that somehow Justice Kavanaugh was going to who knows what. And so people are clear this is a teaching assignment across the ocean. Correct. Yeah, it's 3,600 miles away in England. So these people who are triggered by Kavanaugh's teaching at George Mason Law School, they can come out of their safe spaces without fear of Justice Kavanaugh getting them at the Northern Virginia campus of George Mason University.
But what do you say to those people who say, this is a very real issue, and there are people who came out of the whole public spectacle feeling that they are worse than one, answer questions about him, and that if he's going to be affiliated with any school, there are going to be questions. There are going to be protesters. I mean, people have the freedom in this country, thankfully, to ask questions and to do those things. Do you think he will forever be viewed by some portion of this country as having committed some type of assault decades ago? Absolutely.
Well, maybe there are going to be people who have their mind made up for political reasons and maybe other reasons. But I would say that we have a presumption of innocence in this country. And with the way the Me Too movement has radicalized and politicized sexual assault survivors, they've changed it into a presumption of guilt. And it doesn't matter that
Justice Kavanaugh was accused of being a serial gang rapist during this process. It was just the craziest thing I've ever experienced. None of these allegations panned out at all. Many of these accusations were immediately debunked and the people recant it, like the gentleman up in Rhode Island who claimed that... People forget about that case. That was bizarre. Yeah, the whole thing was bizarre, frankly. I just want to...
I'm very appreciative for Michael Avenatti for bursting onto the scene. Yeah, because he represented one of the women that was making the, I may have heard or may have seen something about gang rape allegations. And obviously that case, that investigation did not pan out. No, it did not. But Michael Avenatti did more than anyone to get Justice Kavanaugh confirmed. So I think President Trump should send him a thank you note for helping to make the court great again.
Well, he's got troubles of his own that he is going to be dealing with. We're covering that, obviously, as he's now facing numbers of charges that have nothing to do with the Kavanaugh situation. So a lot of talk in recent weeks about the fact that some of the left-leaning groups are putting together their own potential lists for whoever may end up as the Democratic nominee or become the next...
you know, president, if the Democrats win this thing. They're doing something a little different in that they're not releasing names. And some of the explanations I've seen are, listen, it's a very heated political environment. We see what happens to people. And so...
We're protecting their privacy, but we're doing the vetting so that if a Democratic president is elected, they will have a list of people that we've gone through. I mean, this is something that the right's been criticized for having Heritage Foundation or a federalist society or anybody connected to putting together lists. But these folks say, listen, it's a legitimate service that we would offer for a president. If somebody on the left wins, we want them to be ready. Any problem with that? Yeah, I mean, there's a big problem with that. President Trump campaigned.
on the promise, candidate Donald Trump campaigned on the promise that he was going to work with the Federalist Society, Leonard Leo, and with the Heritage Foundation to come up with a publicly disclosed list of potential nominees who he would put on the Supreme Court. And he followed through on that. He followed through with that. There were 26 people on his list. There were three different lists, 26 different people on that list.
and he appointed Justice Gorsuch from the list, and he appointed Justice Kavanaugh from the list, and he's appointed a number of those other people, other judges on the list to the federal bench, whether it's the, I think there are eight who have been appointed to the circuit courts, and one was appointed to the district court. So he's followed through, and he's, you know, he promised that he would pick judges from that list, and he's delivered on that promise. And then you have to compare that to what the Alliance for Justice did,
a left-wing group is doing. They want a secret list. They won't disclose the names of the people on their list. You have 31 people who are on their advisory board who are compiling this list, and all you have to do is look at the people on this advisory board and what they've said and what they've done. One of them wants to abolish the Supreme Court. Frank the Strongarm Azar from Colorado has made like 104 donations, over $400,000 to Democrats.
If you've been to Colorado, you'll see Frank Azar's mug on billboards across the state and on television ads. He's a notorious plaintiff's attorney. On this list, you have a former Yale Law School dean who kicked military recruiters off campus during the War on Terror. You have people on this list who have referred to cops as killers.
It's a radical group of people who are compiling a secret list. And I think the reason that they don't want to disclose the names on the list is because the types of judges...
that the left want to appoint, I think would really scare the heck out of the American voters. Well, you would think the Democrats would want to know who their nominee would be interested in. I mean, it's a selling point for them, just like the list for President Trump was a selling point for him as a candidate. But let me ask you, or let me read you something that comes from these groups pushing back. They say, there's one problem about this story, according to the group that allegedly created the list. It doesn't exist.
Laura Kinney, communications director for Alliance for Justice, a liberal advocacy group, and this is Yahoo News reporting just a couple of days ago, says her organization is identifying potential judicial nominees for future Democratic administration, but is definitely not asking candidates to commit to any lists.
She did talk about the advisory board and the council and people who were putting this together and people that would give a Democrat, if elected, an inability to hit the ground running with these folks. But a lot of the folks who were asked about this said, you know, I'm not hearing about it. I don't know about it. There's no secret list. So what do you make of that? I mean, if I were a Democrat running for president, I would run very far from this effort if I were them. Just the 31 people they have on their advisory board.
Again, if I'm running for president, I would try to run as far away as possible from many of the people on that 31-person advisory board. Okay, so say that's delayed if President Trump is reelected or if there's an opening this term, which a lot of people say that it wouldn't be his seat to nominate someone for. I know the Senate majority leader feels differently.
Would you be willing to float, I don't know, two, three, four names, people you think that would be sort of on a so-called short list or sort of near the top of the list if President Trump has another opening on the Supreme Court? I mean, there are a lot of good people out there, a lot of people who President Trump has already appointed to the lower courts. There's Judge Amy Coney Barrett.
out of the Seventh Circuit in Indiana. Excuse me. We have... Let me ask you before you move on from that name because we've talked about her a lot so our viewers and listeners know about her. She's gotten a lot of pushback for being a devout Catholic, for what people presume is her position on abortion and those kinds of issues. I mean, any way she'd be able to make it through the Senate because even there are a couple of GOP senators who obviously are very committed to the idea of preserving Roe v. Wade. Sure. I mean, it...
I think we saw with Judge Barrett's nomination hearing for the Seventh Circuit seat back in, I think it was 2017, the Democrats tried to attack her for being Catholic, and that backfired on them pretty badly. It's not a smart idea. It's wrong, but it's also pretty stupid politically to attack someone for their faith, especially if you're trying to pick off
Catholic voters is a Democrat party. And so if they want to attack Judge Barrett for being too Catholic, go for it. You have a person, you have a, Judge Barrett has seven children. She's adopted a couple of children, including from Haiti. You know, she's a fantastic judge on the Seventh Circuit. She was a professor before she went on the Seventh Circuit. She clerked for Justice Scalia. She's the real deal. We also have like Judge Amulthapar.
who is on the Sixth Circuit in Kentucky, who is really good. We have Judge Ray Kethledge on the Sixth Circuit in Michigan. There's a whole bunch of judges who would be great. A former clerk to Justice Gorsuch, Allison Jones Rushing, just got put on the Fourth Circuit in North Carolina. She's a friend and a former colleague of mine. She's a rising star.
There are a lot of really good people out there. Judge Joan Larson on the Sixth Circuit in Michigan would be someone to consider. There are no shortage of potential candidates.
picks to fill the next Supreme Court vacancy. Well, I've got notebooks on all these people that you've mentioned. I'd like some help from the left-leaning groups. If they could give me their list, I could get started on those notebooks too, just in case. It's always good to be prepared. All right, Mike Davis of the Article 3 Project, thanks for filling us in and for answering some of the critics, and we'll continue to watch as these battles in the Senate continue. Thanks, Mike. Thank you very much.
Hi, everybody. It's Brian Kilmeade. I want you to join me weekdays at 9 a.m. East as we break down the biggest stories of the day with some of the biggest newsmakers and, of course, what you think. Listen live or get the podcast now at BrianKilmeadeShow.com.