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How to Think Constitutionally About Filling the Kennedy Vacancy on the Supreme Court

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HUGH HEWITT: Morning Glory, America. Bonjour, hi, Canada. That music means, from the ReliefFactor.com studio, it is time for The Hillsdale Dialogue. Once a week, the last radio hour of my week each week, I sit down with either Dr. Larry Arnn or one of his great colleagues.

This week, Dr. Matthew Spalding, head of the Kirby Center in the shadow of the Capitol, is in to discuss the big issues both historically all the way back to Homer, up to the present day. And this week, with the retirement of Justice Kennedy from the Supreme Court, Dr. Spalding and I are going to focus on the Supreme Court. Good morning, Matthew. How are you?

MATTHEW SPALDING: Good. Good morning-- just pointing out that the Kirby Center is in the shadow of the Supreme Court building, too.

HUGH HEWITT: Oh, that's right. You've got two shadows on you.

MATTHEW SPALDING: Right around the corner. So we're right behind it, yeah.

HUGH HEWITT: Let me start with just cutting to the chase. We'll talk about the consequences of this. I have a morning line that I publish on likely nominees-- 2-to-1 odds for Raymond Kethledge of Michigan and Brett Kavanaugh of DC; 3-to-1 odds for Amy Barrett, Joan Larsen, and Meg Ryan; 4-to-1 odds for Amul Thapar, David Stras, and Don Willett. How do you view my tote board?

MATTHEW SPALDING: That's not bad. I think Kethledge, Michigan, puts Stabenow on the spot. I'm actually big on Amy Barrett. Indiana, Donnelly and Manchin have both voted for her in the past. She's a Scalia clerk, and she's got a lot of stuff going for her. If nothing else, she also has the dogma burning in her very brightly.

HUGH HEWITT: You know, there is a political case to be made for either Amy Barrett or Joan Larsen. But here's the thing I'm worried about. And just talk to me about this. It's not so much a concern with Willett or David Stras, but I am concerned about people whose record of dealing with administrative state issues is thin. And I want to see someone, like Kethledge has, go hammer and tongs with the administrative state-- take on the IRS, take on Chevron, write about how one must never use statutory history as a guide to a decision. I think he's Gorsuch 2.0, and unfortunately he's a Michigan fan. I mean, the guy is a Michigan grad. And he went there undergrad and law school.

MATTHEW SPALDING: Let's think about it more broadly. We're potentially moving into a situation where you now have a majority. And the Chief Justice Roberts is now your, quote-unquote, "swing vote." We should now be thinking like a majority, which is to say that you have people on your team that are experts, just like in baseball. So you have Gorsuch on your bench, who's an administrative law expert who's going to kill Chevron. And there was an interesting case this term in which Justice Kennedy took a shot at Chevron. I don't know if you caught that.

HUGH HEWITT: I did, in a footnote. You bet.

MATTHEW SPALDING: That's going its way. So you got that guy letting go, and you're going to have other experts. Think about it that way. I think that if you've got a powerful argument coming from a Gorsuch, and they're leading the charge on Chevron, these other justices are not going to vote against that.

HUGH HEWITT: Let me make a counterargument to you, Dr. Spalding. You have Justice Thomas who's suspicious of Chevron, and you have Justice Gorsuch who's suspicious of Chevron, and Justice Alito who is suspicious of Chevron. If you add one more power hitter on Chevron doctrine, which is, by the way, the administrative state relies upon Chevron. And I want the audience-- I'll let you explain it in a second.

If you've got four for sure, the Chief has to go with them. If you've only got three, and you've got a young justice who may or may not be deeply embedded into anti-administrative-state thinking, they might go with the chief if the chief is inclined to move a little more slowly. I think he's very reliable, 100% reliable. He's just very much an institutionalist, as well. If you want to rush the door on Chevron, I think you put Kethledge on.

MATTHEW SPALDING: OK. I can see your point. I'm just wondering if that's too-- I think the logic against Chevron-- I mean, look. Kennedy in his concurrence said, we've gone way too far with Chevron. I think that if you're getting a jurist who is generally a constitutional, general, structural jurist who's going to look at laws the way they ought to be looked at, Chevron falls.

HUGH HEWITT: OK. I agree with that.

MATTHEW SPALDING: I think we should not appoint them for a specific thing that way. I think we should broaden it, pick somebody who we know is going to be there for a while, who's got very good qualifications, who writes well and is not going to change over time. The big lesson here, I think, if you look at-- Kennedy's leaving. Kennedy was a philosophical chameleon-- all over the place. He loved doing what he was doing. He had no judicial philosophy.

And what he represents and points us towards, if you compare him to say, Gorsuch or Scalia or Thomas, Alito, it's taken two decades for Republicans to learn how to make good appointments to the Supreme Court. And the way you do that is you don't pick somebody for a narrow reason or because somehow they've hidden their opinions. You want to get someone who's a solid jurist all around, and likely they're going to then follow that. They will continue to follow that logic. And that would lock them in as part of that majority.

HUGH HEWITT: And I want to add a couple of lessons to this. David Souter is our great lesson giver, right? State Supreme Court, John Sununu swears by him. But a state Supreme Court does not produce a record of decisions on federal law which is binding. That's why I like Kavanaugh and Kethledge. They both have federal law binding decisions, and not just on the administrative state. I need Smith to be overturned. I don't know if you're a Smith expert, but it's Justice Scalia's one bad decision-- Smith versus Employment.

MATTHEW SPALDING: I agree with that.

HUGH HEWITT: Gotta be overturned. So I need someone-- Kethledge, by the way, fills the bill. And I don't think Kavanaugh has weighed in on religious liberty. Kethledge has stood up for free exercise clause rights repeatedly. I need someone, as well, who--

MATTHEW SPALDING: On that point, It think Kethledge is a strong pick. I would put him very high on a list, as well. And I think there are a lot of things there that Kavanaugh hasn't gotten into, which I think--

HUGH HEWITT: And Second Amendment rights.

Kethledge has ruled in Tyler versus Hillsdale County Sheriff's Department. I mean, he's got the marker. No one has a Roe v. Wade opinion. That's good among all these people, because that's what the Left is obsessing about. But we have five, six, seven, eight great nominees, right? We've got eight great nominees.

MATTHEW SPALDING: Absolutely.

HUGH HEWITT: How much do you put into the politics of it? Because as you point out, Barrett puts Joe Donnelly in a corner. Either Kethledge or Larsen puts Debbie Stabenow in a corner with John James making a run at it. How much should that enter into the president's thinking?

MATTHEW SPALDING: Well, I actually think in this case, it should enter into it somewhat considerably. If-- and I'm giving him some credit here-- if not him, the people behind him are thinking this through. This is why I go back to two decades of Republican appointments. We have now got in place some serious thinking about how to reshape the courts over time, which means they're looking right now at replacing Kennedy, keeping in mind that if you look at the sitting justices of the court right now-- Ginsburg is 85-- it's very likely that he's going to have another appointment.

And right now, I would say Trump's likelihood of getting reelected, given this appointment, has gone up. So it's very likely he'll get a third appointment. So they're playing this game, I think, out farther, and putting a team together. And that means he needs to strengthen his hand in the Senate. So, yeah, I think politics has to be part of this, not in a narrow sense, but in the grand sense of how do you use politics to try to reshape the direction of the country? That's what it's supposed to be about, and I think that's perfectly legitimate.

HUGH HEWITT: And I think that leans, Matt Spalding, towards Larsen or Kethledge, because Indiana we're going to win. Michigan is not so certain. It only went for Trump by 12,000 votes. But if you put up Kethledge or Larsen, a Michigan circuit court judge, or a Michigan state senator.

MATTHEW SPALDING: I think at that point, that's probably right. I mean Michigan, you put Michigan in play, that really changes things.

HUGH HEWITT: It really does. Let's go back to, for the moment, though, Amy Barrett. She was attacked for her Catholicism by Dianne Feinstein. I wouldn't mind having that argument either. And Don Willett was attacked for a good sense of humor. I wouldn't mind having that argument either. David Stras was attacked because Al Franken didn't like him. I wouldn't mind having that argument either. And Amul Thapar would be the first Indian-American. I wouldn't mind sending that message either.

There are really a-- the one I just don't get right now is Mike Lee. And I love Mike Lee, right? His jurisprudence would be good. I don't get opening up a Senate seat to competition. What do you think?

MATTHEW SPALDING: I don't think that's going to happen. And I think that he's-- I'm not sure his temper is right for the Supreme Court, to be honest. But I think right now they're pointing at a political figure. You would think you would consider a senator if that's absolutely necessary to get the confirmation-- it's not. So I think that that's less likely. I think you look at this appointment keeping in mind that it's highly likely you're going to have another appointment. I mean, the advantage of Barrett is she's 46. She could come up next time.

HUGH HEWITT: True. You can put her on the bench and get a few opinions out of her, too. I'll be right back, America. Don't go anywhere. Matt Spalding and I are obsessing on the Supreme Court, because that is an issue for the ages. It is The Hillsdale Dialogue-- all things Hillsdale at Hillsdale.edu. All of our previous conversations collected at HughforHillsdale.com.

Welcome back, America, it's Hugh Hewitt from the ReliefFactor.com studio. I am joined by Dr. Matthew Spalding. He is, of course, the head of the Kirby Center, Hillsdale College's lantern of reason in the shadow of the Capitol and the Court. Today we are talking about the Supreme Court. In the aftermath of the retirement of Justice Kennedy, I will be talking with his colleague, Dr. Larry Arnn, on my MSNBC show about the same thing tomorrow morning at 8:00 AM across the United States, 8:00 AM Eastern, because it matters so much.

And before I resume my advocacy for Raymond Kethledge, who I do not know, by the way-- I just study this stuff. This is for me like the NBA finals or the World Series. You've got to get this right. We blew Souter so badly, we cannot do that again, right? We have to get this right, so I study it.

Let's go back and talk about Anthony Kennedy, Matt Spalding. And why, if someone listens to The Hillsdale Dialogue today, Hillsdale.edu, why he was a disappointment to Ronald Reagan and everyone. He was put on after Doug Ginsburg withdrew, after Robert Bork was slandered. And he disappointed even as he ruled correctly in this final June of his term on every single case.

MATTHEW SPALDING: It goes back to this broader thing. Let's go all the way back to Eisenhower and Earl Warren. I mean, Nixon gave us Blackmun and Powell. How do you pick Supreme Court justices? What's the responsibility? This goes back to a fundamental problem in how a lot of people think about the Constitution. Congress, the executive judges, they take an oath to the Constitution. And their job and carrying out their duties are to uphold that document, which is not this legalistic technical thing, but this document that allows us to rule ourselves and self-govern with this structural document.

It allows for a republican government. Which is to say that if the president, in making appointments to another branch, the Court, which is a key aspect of how our separation of powers system works, and checks and balances-- he makes an appointment to the Court. His first responsibility is to put somebody there who he thinks, or he or she thinks, will do their primary job, which is to look at cases and controversies before them and decide what the Constitution directs them to decide about that law or action relative to the Constitution. That's their first job.

HUGH HEWITT: And it requires modesty. It requires modesty and honesty in the interviewing process and, I believe, a record of decisions from the bench.

MATTHEW SPALDING: And Republicans in the past have tried to be clever, or they've appointed people for different reasons, and it just has not worked out well. So with Justice Kennedy, yes, his decisions this term-- every 5-4 decision this term he's sided with the conservatives. And actually, I think he probably did that because he knew this was going to be his last term, and he wanted to end that way so he gets plaudits all around. And I will give him credit for that. But prior to this term, his whole career he is the justice who was involved in the most 5-4 decisions ever, and almost always he was on the other side of those decisions.

HUGH HEWITT: Let me dissent a little bit. He was on Citizens United and on First Amendment issues, striking down McCain-Feingold. He was terrific. On the Commerce Clause jurisprudence he was terrific. Where he went awry was on redistricting and opening the door, and especially on the privacy clauses that overruled the will of the people with regards to marriage, even as it was changing in real time before our eyes. He did disappoint on due process, equal protection in the Romer cases. But he did deliver on First Amendment, Matt, pretty consistently.

MATTHEW SPALDING: No, that's true. And that there's a certain libertarian streak in Kennedy, which you see coming out in these recent cases. And to his credit, I will give that to him. But his philosophy, his way of approaching the decisions and the Court, it's hard to imagine a justice who was more focused on this idea of being a swing judge and following his opinions, his own opinions, and writing these grandiose decisions about the meanings of the universe and one's ability to define the universe, than Justice Kennedy. He really defined that approach to the Constitution.

Now, his own libertarianism allowed him sometimes to get things right. But it was very rare that he came back to the actual Constitution in a substantive way to make a decision. That was not his guiding philosophy.

HUGH HEWITT: I agree. I agree. We'll talk more about-- it's fascinating who is leaving and who is coming. Remember that name-- Kethledge. I'll be right back, America. It's The Hugh Hewitt Show.

Welcome back, America. It's Hugh Hewitt. Thank you for listening. From the ReliefFactor.com studios, it is The Hillsdale Dialogue. All things Hillsdale are collected at Hillsdale.edu-- great online courses about the Constitution, amazing courses on Churchill and the progressive movement. Every conversation I've had with every member of the Hillsdale team dating back to 2013 are collected for your binge listening at HughforHillsdale.com.

My guest today, not Dr. Larry Arnn-- he'll be joining me on my MSNBC Saturday show tomorrow morning at 8:00 AM to talk about the Supreme Court vacancy created in the aftermath of the retirement of Justice Kennedy. But Matt Spalding, Dr. Spalding, is the director of the Kirby Center in Washington, DC, where Hillsdale has its lantern outpost, lighting up freedom for both the Congress and the Supreme Court with extended discussions on a daily basis, not just with students, but with legislators, about all things originalism.

And let's go there, Matt Spalding. Would you define originalism? Because I use the term a lot, and I'd love to hear if your definition and mine concur.

MATTHEW SPALDING: Sure. I think we back up, and have to just talk a minute about the Constitution. What is the role of the Constitution in our country? When we talk about originalism, I'm not sure I necessarily like the word. But it implies that somehow that document is crucially important. It's the highest law in our land. It's the Supreme Law. But the way our American judicial system works, the oldest law, in this case the Constitution, is actually the first law, the primary law. Everything needs to be done in light of that.

So an originalist means that we go back to that document. There are different gradations of, are you more of a textualist like Scalia was? A broader understanding of originalism-- does your originalism include a broader understanding of intent, which looks to the broader philosophical intentions of the Founders? That's within the conservative debate, which is a great debate, and there's some variation.

But the general point, which I think is not merely a debatable point, but a necessity of constitutionalism and the way our system in particular is designed, is you have to go back to the document of the Constitution precisely because it is the only document that is fully grounded in the intent of the people. It is the source of all of the powers in the courts, in the Congress, and the executive. And it is the one document, the only document, that they can go to for their full legitimacy, which means that in making their decisions they've got to go there. Anything else is not only not originalism, but it's really not constitutionalism in the broadest sense of the term.

HUGH HEWITT: I agree with all of that, I just want to make an addendum. It is an absolute necessity that the amendments to the Constitution be considered in the same light, so that the 13th, 14th and 15th Amendment and those thereafter, and the 12th Amendment and the 11th Amendment, are understood in the light in which they were intended to apply.

Therefore, we would not have ended up with Plessy v. Ferguson, among the three worst decisions. We would not have ended up with Korematsu. We would not have needed Brown v. Board had the original intent of the 14th Amendment been followed and not eviscerated by a court rampaging in the Slaughterhouse Cases. If we had had an actual Privileges and Immunities Clause working-- Privileges or Immunities Clause working at the time of the original decision in that case, it would have protected our minority populations against the overarching nature of the state.

Now let me go to some of the key issues as we consider. The Second Amendment, everybody knows we need someone who is a Second Amendment individual right believer. Someone who believes that the Second Amendment has been incorporated via the incorporation process. We need a Free Exercise Clause enthusiast. But one thing that doesn't get often talked about, is we need somebody who believes in the Fifth Amendment when it comes to property rights, Matt Spalding. Agree?

MATTHEW SPALDING: Yes, very much so. But just to underscore what you just said a minute ago, the idea that the amendments are part of the Constitution. Madison's original intent, when you go back to his introduction of the Bill of Rights, was that those amendments would not be at the end, separated out, but they would be weaved into the original document as if they are part of the original document, to make that point even clearer. So you're absolutely right about that.

But I would also underscore my general point. This is how politics works. You get the principle right. You get the idea right, and then everything else is the application. Same thing true is this case with judges. You have to understand the structure, the intention, the original idea of the Constitution, which I think actually includes the understanding of rights you get from the Declaration of Independence, which is the other side of the Constitution. They are two sides of the same coin.

If you understand that, and then you look at the structure and work it through, these other things follow. The rights to keep and bear arms, rights to property, rights to religious liberty are all deeply inherent and necessary, and you can't have one, in my opinion, without the other one. As Madison said when he writes about property in the 1790s, not only does property mean physical property, but you actually have a property in your rights, which includes your religious liberty.

HUGH HEWITT: Agree.

MATTHEW SPALDING: They're understanding, they weave all those things together. So you get that right, get the big thing right, I think the other things logically follow.

HUGH HEWITT: Now let me lead you further into the Kethledge counter, all right?

MATTHEW SPALDING: I have this feeling that-- see, you're a lawyer. You're taking me down a path. This is a prosecutor here.

HUGH HEWITT: I am. I am-- Wayside Church versus Van Buren. Because when a judge dissents tells you as much about-- when he agrees with and writes for the majority. When they dissent, what do they think is important to dissent about? Wayside Church brought a takings claim against Van Buren County in Michigan after the county foreclosed on the church's summer youth camp. The property was worth $206,000. And they were $16,750 behind, and they foreclosed on the whole thing. Now, that raises a host of issues, but the panel majority refused to hear the claim. And they cited a Supreme Court decision that generally requires federal takings claims against state defendants to be litigated in state court.

And Judge Kethledge dissented, writing, "At this point, one senses we have lost our constitutional bearings. In this case, the defendant, Van Buren County, took property worth $206,000 to satisfy a $16,750 debt, and then refused to refund any of the difference. In some legal precincts, that sort of behavior is called theft. But under the Michigan General Property Tax Act, apparently, that behavior is called tax collection. The question here is, or at least in my view, should be, whether the county's action is a taking under the Federal Constitution." He said the answer was yes. To me it is obvious it is yes.

MATTHEW SPALDING: Right, right.

HUGH HEWITT: And so I look for people that will just say, look, obviously the Framers would not allow a state to seize that and keep the surplus.

MATTHEW SPALDING: Right. No, and you're correct in pointing to dissents. I think we need to think about how important those are, especially now when you're looking at a new appointment, but also trying to figure out where people are and how they think.

There are different ways of doing dissents. One is the beauty of Justice Scalia's dissents, right? He knew he was going to be in the minority, and so his dissents were intended to be kind of a blast across the ages, laying out a possible future.

But the great dissents are the ones like you just mentioned here, where a person will write essentially a separate argument with the intention of making a serious argument to be picked up in other cases going forward, which is what Supreme Court justices do looking at other cases that are coming before them. And a dissent can tell you just as much, if not more, about what that judge, in this case potential justice, thinks about things. So I think you're absolutely right in pointing that out. That is a great example.

HUGH HEWITT: I've been teaching common law for 22 years, and my students will tell you I'm a legal realist, meaning that, because we have so much to cover in a three-hour course, I tell them to skip the dissents unless they're Scalia. But that, and occasionally a Thomas dissent, because they've got to get the material down for the exam and the bar, et cetera.

However, in picking a judge, that's a completely different thing. Tell me who you are. I'll look at your dissents and I'll tell you who you are. That's when you stand up and say, I'm not going to go.

MATTHEW SPALDING: So we have gone back and forth, the two of us, about Masterpiece and this NIFLA case. Here is an example. If you look at the Masterpiece case, you have a decision there by Kennedy. But what goes on inside of that is the most interesting thing in many ways. Between the dissents, and then there are several different concurrences.

What's happening in those is you have a majority opinion, but then the real debate, which is pointing towards the future-- because that case did not decide everything to come-- is these interesting concurrences and mixes of people where you've got Kagan and Kennedy and Breyer arguing with Alito and Gorsuch. And they're all over the place. So the real movement for the future is told to you by things like dissents and concurrences, which make amendments, and they're trying to define the majority opinion.

HUGH HEWITT: What I found interesting about Masterpiece Cakeshop-- you think it's a narrow decision, I think it's quite broad. Every court case is limited to the facts before it. That's the holding, and I have to teach my-- but what does the dicta say in the majority?

And Justice Kennedy wrote, "Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason, the laws and the Constitution can and in some instances must protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by courts.

At the same time, the religious and philosophical objections to gay marriage are protected views, and in some instances protected form of expression. As this court observed in Obergefell, the First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faith. Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law."

He goes on to write, "When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform their ceremony without denial of his or her right to the free exercise of religion. This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity. And if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights law that ensure equal access to goods, services, and public accommodations."

That's all dicta, Matt Spalding, and I think it is hugely important dicta.

MATTHEW SPALDING: That's good stuff, counselor, and good of you to bring that to the case. You're right. I like that. The reason I think it's narrow is not in the general sense that this was a narrow, unimportant case. But it was narrow in the sense-- and I go back to my point, which is you know there's a certain narrowness to it in the sense that this could go different ways.

And there's lots of signals that this could go different ways. And you see that in the fact that the concurring other justices are arguing at great length about what exactly that means. To say that there's this potentially-- that there's a-- we can't allow the rule to be swallowed. Or again, we have this exception to swallow the rule. That leaves room for the debate to come.

HUGH HEWITT: And that's why we need-- when we come back from break.

MATTHEW SPALDING: And Kennedy did a great job setting it up the way he wanted to set it up. And I think the NIFLA case underscores that. But this is going to be-- I look at this more as a threshold case.

HUGH HEWITT: It is. It's a beginning. It's the starting gun.

MATTHEW SPALDING: He defined the terms. Now what's going to happen?

HUGH HEWITT: I'll be right back with Matthew Spalding, talking about the starting gun going off on these cases, and whether Judge Kethledge or Judge Kavanaugh or Judge Willett will carry forward.

Welcome back, America, from the ReliefFactor.com studio, I am Hugh Hewitt. Thank you for listening to The Hillsdale Dialogue today. All things Hillsdale available at Hillsdale.edu. In fact, tune in tomorrow morning on MSNBC at 8:00 AM, you'll see Dr. Larry Arnn, president of Hillsdale College, joining me. Dr. Matthew Spalding is the leader of the Kirby Center, Hillsdale outpost of reason in the shadow of the Capitol and the Supreme Court on Capitol Hill.

We've been talking this morning, and probably will be talking for many weeks-- I'll certainly be talking about it with Dr. Arnn tomorrow morning on MSNBC-- about who will replace Justice Kennedy and what's it mean? And whether it's Judge Kavanaugh or Judge Kethledge, who I think are the front runners, Judge Amy Barrett, Judge Joan Larsen, Judge Meg Ryan, Judge Amul Thapar, Judge David Stras, Judge Don Willett-- there are lots of great judges. We have to get it right.

And I want to go to a factor, Matt Spalding. When Neil Gorsuch sat down in front of that committee and contended with-- he won't have to do it this time-- the rather moronic comments of Al Franken. He was just illiterate on matters constitutional. He never got ruffled. He was completely in command of his persona and his rulings, and had gone through a lot of murder boards. How important-- that's not a quality that a justice ever needs again, but it's a quality you must have to get over the hurdle. How do you weigh that?

MATTHEW SPALDING: I think it's absolutely important. Look, what is the hope of Democrats who want to stop this nomination? Well, they can try to pull in a few Republicans, Collins or Murkowski-- I think that's highly unlikely. They've got to hold their guys, pull in a few. Their one hope they have is if the whole nomination hearing blows up. Something comes out, it turns in a way that the politics are really bad. And that means that the hearing is important. If you get somebody who goes in there unruffled through the whole thing, answers questions, puts up with some of their outlandish claims, I think they'll get through very successfully.

And I think the one person we haven't mentioned here is Mitch McConnell. His job in the Gorsuch nomination and actually prior to that, preventing the previous one, his role here will be extremely important. And I think he's been planning for this for a lifetime. He knows what's at stake. He's been thinking about this. I've been talking to him about-- he knows his role in getting those judges in there, especially on the Supreme Court.

So this will be very carefully done. They're starting interviews next week. They'll get this decision announced, the nomination announced, before he leaves for Europe. I think we see these hearings in August, maybe September. And they've got a plan, and they're moving forward.

So the Democrats' only hope, I think, is the hearing itself becomes a politically explosive event. And they're going have to be the ones who have to make it into that. And the nominee can respond and deal with it. And they've got to remain level-headed, and I think they get through.

HUGH HEWITT: That is my assessment completely, which is why that quality of being under fire and being in the media eye is going to matter so much in this when they pick. Now, I hope they don't wait until the week after next, although it's better. I'm taking most of next week off, so if the nominee comes out the following week, I'm fine in a radio world.

But I am curious about what you just said about the interviews. They had a lot of interviews when Gorsuch came up, among them Kethledge, and I believe David Stras was interviewed, maybe Don Willett. I don't know if Thapar was.

MATTHEW SPALDING: Amul Thapar was interviewed, I think.

HUGH HEWITT: He was. Do you think McConnell wants Thapar? And how much does that tilt it towards him?

MATTHEW SPALDING: The Kentucky-- I don't know. This is just a speculation on my part. I think his guys would like to see him there. But he knows what's at stake. He knows they want to pick the best possible candidate, and he wants to get him through. I think he knows his role. So he'll want a candidate who can go through those hearings, who has a good record. He probably will want a candidate who doesn't have anything out there that will be too controversial.

Probably the one thing, the one outlier about Barrett is she is very openly critical of Roe v. Wade. Do they want that debate? Do they think that might go the wrong way? Do they want to play it safe? That's the kind of calculations where I think McConnell will be. But I think he'll take whoever that is, they'll plan this out, they'll prep them, and it'll be his objective to make it as smooth as possible and as quickly as possible. They want to get him on the Court when the Court comes back in October.

HUGH HEWITT: I believe they will get four or five Democrats, maybe more, because I think Bill Nelson has to vote for them. I think Joe Donnelly has to. I'm going to give you the last minute. Do you agree with me?

MATTHEW SPALDING: I think that's absolutely right. And I think many of these candidates could draw a number of Democrats. I think the Republicans all stay. So I think it's going to turn out to be a pretty straightforward nomination and confirmation. And the key here is who it is, and I think we're going to see a new Court. And the Roberts Court is going to actually mean something anew. And we're going to start taking down the administrative state, and pressing through these things.

The next thing we've got to see is rebuilding the legislative branch. That's next on our list of--

HUGH HEWITT: That's next week's work.

MATTHEW SPALDING: --restoring constitutional government.

HUGH HEWITT: That's next week's work. Matthew Spalding, thank you.

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