Leonard Leo: I Think President Trump Will Continue Trend Toward "More Originalist And Textualist" Justices

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Leonard Leo, executive vice president of the constitutional originalist Federalist Society, joins 'FOX News Sunday' host Chris Wallace to discuss President Trump's upcoming Supreme Court nomination.

"Any Supreme Court confirmation is transformative. This is a court that is often equally divided. At the end of the day, I think what's really important to remember is that there’s been a movement on the court towards being more originalist and textualist. In other words, the idea that law means something, it has determinate meaning. And that's the trend that I think this president wants to continue," Leo said.

In response to concerns about abortion rights, Leo also said: "I don't think at the end of the day, it's about Roe v. Wade. It's about having judges on the court who are going to interpret the Constitution the way it's written and part of interpreting the Constitution is taking into account major precedents, and that's going to happen."





CHRIS WALLACE, FOX NEWS SUNDAY: Mr. Leo, Democrats are making Roe v. Wade, women's right to abortion, the central issue in this campaign and this confirmation battle. You call that a scare tactic the Democrats have used for more than 30 years.

But I want to play an exchange that I had with candidate Trump in the third presidential debate. Here it is.

WALLACE: You just said you want to see the court protect the Second Amendment. Do you want to see the court overturn Roe v. Wade?

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Well, if we put another two or perhaps three justices on, that's really what’s going to be -- that will happen and that will happen automatically in my opinion because I am putting pro-life justices on the court.


WALLACE: Given that, isn't Roe v. Wade on the line with this nomination?

LEONARD LEO, TRUMP ADVISER ON JUDICIAL NOMINATION: Chris, the fact of the matter is that Roe v. Wade is a very major precedent in America and for 36 years people have been talking about it being overturned. It was an issue with Sandra O'Connor, David Souter, Anthony Kennedy, all of whom people would said would overturn Roe v. Wade. No president is particularly good at speculating about these things and nobody is.

And so, I don't think at the end of the day, it's about Roe v. Wade. It's about having judges on the court who are going to interpret the Constitution the way it's written and part of interpreting the Constitution is taking into account major precedents, and that's going to happen.

WALLACE: But as you well know, sometimes justices adhere to presidents and sometimes they overturn them.

LEO: Absolutely, but major precedents of the court require a lot of attention and respect and scrutiny and we've seen that there's only one justice out of nine over a period of 36 years who is saying that he would explicitly overturn Roe.

WALLACE: And that's Clarence Thomas.

LEO: That’s correct.

WALLACE: But this does figure into the confirmation battle because given the Republican majority in the Senate and the fact that there is no longer a filibuster, one of the few ways that a Trump nominee could fail to be confirmed is if you get one of the two -- and here they are on the screen, if you lose, one of the two Republican senators, Susan Collins or Lisa Murkowski, were both pro-choice. Is it fair to say that the president won't pick someone who has a record of opposition to Roe v. Wade?

LEO: I think Senator Collins made the point very clearly. She wants someone who's going to adhere to the Constitution and the law more than anything else. So, what you really want, Chris, is --

WALLACE: But she also said Roe is a firm precedent and settled law. If you have somebody who has a record of having said, for instance William Pryor, that it was an abomination, Roe v. Wade, that's clearly going to set off alarm bells. Would it be fair to say that the president is not going to pick somebody who has a clear record of opposition to Roe v. Wade?

LEO: None of the people who are being talked about now in the public space in the media are people who have a clear position on Roe v. Wade. The most important thing here is a record showing fairness, someone who listens very carefully to arguments on both sides, someone who tries to keep an open mind.

And prospective nominees like Brett Kavanaugh, and Amy Barrett and Raymond Kethledge and Tom Hardiman are people who have not specifically said they oppose Roe v. Wade, and their writings and their work show that they are very fair. They look at arguments from both sides all the time and they analyze them very carefully, and when they take a position, they then say these are what the other people have said about this and here's why I don't agree with them.

And that's really at the end of the day what we want. We want that kind of fairness in a judge and I think Senator Collins and Senator Murkowski and others who went through the Gorsuch process saw that in Neil Gorsuch and I think that's what they’re going to be looking for again.

WALLACE: You just mentioned four names. Is it fair to say that those are the four frontrunners at this point?

LEO: No, I don't think it's fair to say that, and here's why -- the president is really in the driver's seat on this, along with the assistance of White House counsel, Don McGahn. Those are certainly people who are under very serious consideration, two of them as you know, Chris, are people who were through the process to some extent before. And Brett Kavanaugh --

WALLACE: Hardiman and Kethledge.

LEO: Yes, that’s right. Hardiman and Kethledge.

And then Brett Kavanaugh is one of the most distinguished jurists in America. So, it's not unnatural that he is being mentioned. He has over 300 opinions. He is respected by both sides on the political and ideological spectrum. And Amy Barrett, similarly, is one of the most talented and distinguished women in the legal academy anywhere in the country, former law clerk to Justice Scalia, someone who, again, people across the ideological and political spectrum greatly admire.

WALLACE: I want to ask you specifically about Circuit Court Judge Brett Kavanaugh, who as you point out is one of the front runners. He has written that the president, not this president, any president should be exempt from, quote, time-consuming and distracting lawsuits and investigations which would ill serve the public interest, especially in times of financial or national security crisis.

Given the fact that President Trump is now facing lawsuits, given the fact that he is now dealing with a special counsel, wouldn't be any kind of a conflict if he were to pick somebody like Brett Kavanaugh, who is on record was saying that he is opposed to that? That's an issue the court might have to deal with.

LEO: Well, first of all, you have to remember that when Brett Kavanaugh said that, it was when we hadn't independent counsel statute if I remember correctly. And there were a lot of problems with the independent counsel statute in terms of having zero accountability, zero transparency.

And so, there were constitutional issues there and even liberal law professors like Akhil Amar from Yale Law School have said that it's a very reasonable position that Brett Kavanaugh took when he wrote about that some years back. So, it's not clear to me what he said then necessarily applies to now.

Secondly, what you are really seeing and what Kavanaugh said is that the core of what he believes in, which is this idea that if you really want to protect freedom and you want to have accountability, you have to respect the limits on government power in the Constitution, which includes the separation of powers.

WALLACE: I got less than a minute left. What are the stakes here? How will replacing Anthony Kennedy, who was a distinguished jurist, but with a more conservative -- a consistent conservative, how will that reshape the court potentially for the next generation?

LEO: Well, any Supreme Court confirmation is transformative. This is a court that is often equally divided. At the end of the day, I think what's really important to remember is that there’s been a movement on the court towards being more originalist and textualist. In other words, the idea that law means something, it has determinate meaning. And that's the trend that I think this president wants to continue.

WALLACE: Mr. Leo, thank you. Thanks for coming on and we will be watching the president's announcement in just eight days. Are you a little worried about eight days? Are you ready to go in eight days?

LEO: I think the president and his team at the White House will be ready.

WALLACE: Good. That's fortunate because if we go on the air and he’s not there, it would be in -- it would be embarrassing.

LEO: It would be rather embarrassing.

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