Arguments for and against filling the Supreme Court seat ahead of the election

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Carrie Severino, the president of conservative advocacy group Judicial Crisis Network, thinks that it would be “better for the country” for the Republican-controlled Senate to confirm President Trump’s nominee for the vacant seat on the Supreme Court.

“It would be better for the country to have that full complement of justices on the court,” Severino told CBS News chief Washington correspondent Major Garrett in this week’s episode of “The Takeout” podcast. Severino suggested it would not be ideal to have an eight-member court when the upcoming election may be contested, adding that “no one really wants to see Bush v. Gore times two.”

But Elizabeth Wydra, the president of the progressive Constitutional Accountability Center, noted that several states have already begun early voting.

“We have never been in this situation before,” Wydra told Garrett. “We are in the election right now.”


Highlights from this week’s episode:

  • Carrie Severino on whether the Supreme Court vacancy should be filled before the election: “It would be better for the country to have that full complement of justices on the court.”
  • Elizabeth Wydra on how the election has already started: “We have never been in this situation before…We are in the election right now.”
  • Severino on Ginsburg’s wishes to have the next president nominate her successor: “We can understand and respect that that’s her wishes, but she would understand that this is a process that would continue.”
  • Wydra on a conservative court potentially striking down the Affordable Care Act: “Striking it down would to my mind as a constitutional lawyer be putting a political agenda above clear constitutional interpretation.”

Severino said it would not be difficult for the Senate to confirm the nominee quickly, since the two top  contenders for the nomination — Judges Amy Coney Barrett and Barbara Lagoa — were recently confirmed to the federal judiciary by bipartisan votes in the Senate.

“We’re in a very good position to move swiftly,” Severino said.

However, Wydra argued that both judges’ records on the circuit courts still need to be reexamined by senators.

Asked about Ginsburg’s dying wish that her replacement be chosen by the next president, Severino responded,”We can understand and respect that that’s her wishes, but she would understand that this is a process that would continue.”

Wydra said that “people are going to be paying attention to this Supreme Court nomination more than ever before,” given Ginsburg’s fame and popularity among progressives.

Severino also discussed the possibility that a 6 to 3 conservative majority court could overturn the Affordable Care Act.

“It’s not the court’s job to save a law, however helpful, however popular. However, they might not want to do it simply because they think this law is good. The job is really limited as judges to interpreting whether the law is constitutional,” Severino said. “You can have the best law on earth, but if it’s not constitutional, it’s not the judge’s job to try to save it.”

However, Wydra, noting that the Supreme Court had already found the ACA to be constitutional, said that overturning it would be a political act.

“Striking it down would to my mind as a constitutional lawyer be putting a political agenda above clear constitutional interpretation,” Wydra said. She also said that she believed confirming Mr. Trump’s nominee would “100%” put Roe v. Wade in danger of being overturned.

For more of Major’s conversation with Severino and Wydra, download “The Takeout” podcast on Art19, iTunes, GooglePlay, Spotify and Stitcher. New episodes are available every Friday morning. Also, you can watch “The Takeout” on CBSN Friday at 5pm, 9pm, and 12am ET and Saturday at 1pm, 9pm, and 12am ET. For a full archive of “The Takeout” episodes, visit www.takeoutpodcast.com. And you can listen to “The Takeout” on select CBS News Radio affiliates (check your local listings).  

Producers: Arden Farhi, Jamie Benson, Sara Cook and Eleanor Watson
CBSN Production: Eric Soussanin, Julia Boccagno and Grace Segers
Show email: TakeoutPodcast@cbsnews.com
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