Liberty Alert With Rev. Dr. Gregory Seltz

The following program is sponsored by evangelical life ministries.

Welcome to the Liberty alert with Gregory sells, sponsored by our friends at the Lutheran center for religious Liberty here in Washington, DC, a program that cuts to the chaos and confusion in the culture today by talking to kingdom, citizen chip old biblical principles for robust public Christian life. And now your host is Dr. Gregory Seltz

Good day,

Good day, Washington DC, and friends of the program all around the country. I'm Gregory. Seltz welcome to the Liberty

Alert where every week we

Try to cut through the noise and take on the issues, especially the public issues that matter to people of faith. Today, we're talking about the Supreme court and with the retirement of Steven Breyer, this is now back in the news, and we're gonna be talking about, uh, his replacement potentially, but to do that, we are privileged to have the expert on these kinds of things in the field. Uh, talking about Supreme court stuff, nomination process, Carrie Severino, who's the head of the judicial crisis network, but also, um, bestselling author of a book that I think everyone should read justice on trial, the Kavanaugh hearings, uh, Carrie, it's great to have you with us today.

Thanks. It's so great to be here

And, and Tim Galine VP of, of external and government relations for focus on the family. Welcome Tim. Thank

You. It's a pleasure to be

With you. All right, Carrie, I'm gonna start with you. Uh, you have seen this, this process, this nomination process from the inside many, many times. Um, my struggle and I think maybe the struggle with a lot of our listeners is anytime we talk about the Supreme court nomination process, it gets narrative is usually liberal versus conservative. And it's not what I think it should be a constitutional judge versus an activist judge. I, I think Dred Scott was an activist ruling. I think Roe V. Wade was an activist ruling. Am I missing something? How come we can't seem to get a hold of the narrative? Do you think?

Well, you know, I think the good news is as you, as we can see by the current makeup in the court, there actually has been a lot of success in the conservative movement in terms of understanding that narrative. When you think back, you know, now many decades, but some of the worst cheap justices in the history of our country, like Earl Warren were nominated by Republican politicians, right?

Didn't even, you know, black men who wrote Rover white Roe V Wade, right? They weren't even beginning to think about looking at the kinds of things they should be looking in judges. It was seen as a political that they were trading for something else, or, you know, just not, not the, this is a historic generational impact they're going to have on the constitution that changed and really started to change with Ronald Reagan. And now I feel like with the growth of the federal society, which has trained a whole new generation and now multiple generations of lawyers in this understanding of the constitution, how we read it in a faithful manner and then really in messaging that and explaining that to the American people. I think it, most Americans actually do want to see judges, wow, who are gonna be faithful to the constitution and the rule of law.

The, the tragedy here is that only one of our political parties recognizes that even though I really think a lot of Democrats out there would agree. That's what we want. When you hear Democrat politicians talk about it. They talk about here's this wishlist of, you know, rulings. We want to, uh, get a certain result in. And to some extent, you know, conservative politicians can fall into that trap as well as seeing the, the justice of Supreme court is kind of nine fairy godmothers. We're gonna give me what I want. We would all like, you know, we'd all like to see the policies we think are gonna be good for America enacted, but we have to remember that has to happen through a legitimate process. And in the case of, you know, we have a constitution that says that's laws are passed by the elected representatives of the American people.

That's Congress signed by the president and the, the justices, the Supreme court are there just to make sure those laws are faithfully interpreted. And the constitution itself is faithfully interpreted. So we need justices here to be vigorous in defending the rights that are in the constitution. But of course not inventing rights that are not in the constitution. Like we saw with the Roe V Wade decision. And like, unfortunately there is a temptation of many justices to do, to say, Hey, this thing, I know this thing is so good. And you know, sometimes we disagree about which things are good, but okay. Apart from even that they wanna do something they think is good, but they say, well, the constitution, I'll just, I'm just gonna read this into it. Basically. I'm gonna make it part of American law rather than doing it the legitimate way, which is let's, uh, take that to the American people.

And as a judge on the flip side, your job is to enforce those laws. Even when you think they're really poorly written or poorly, uh, you know, bad policy in those laws, they have to make, make sure they recognize the, the, the role to which they took an oath is to uphold those laws, uh, as their, their past. And then hopefully, you know, those of us who were out there advocating in the political sphere can try to get politicians who will pass laws that have the better policies, but it's, the judges need to be very careful to keep to their constitutional role. And ultimately that is, what's going to ensure a country that's grounded on freedom and that's surrounded on democracy like ours is.

Yeah. It, you know, Tim, when you think about this, we've talked about this before, too, that it seems like a lot of these issues, everyone wants them to be federalized. Everyone wants them to, you know, they want one thing coming outta DC, that's gonna solve all these problems. And maybe that's the pressure on these judges that maybe if we just leave nine people to figure it out, they'll come up with some solution, but that's not their role. Right. And, and we've gotta teach people that it's, it's our responsibility to get involved in these issues.

Uh, yes, I totally agree. And I must say every time I'm in the presence of Carrie Severino, I kind of scratch my head and wonder why she's not one of the right. Uh, she, she, she, she's so extraordinary. And may I say to the second point that she raised, uh, Greg and, and Carrie, we're going to test, uh, this proposition pretty quickly. So I would say, uh, both Greg and Carrie, that this is going to be a very important, fascinating process to watch and applying the rubric that Carrie talks about the largest question is, you know, will a potential nominee really understand not what they perceived to be their role, but what their role actually is. And, uh, and as Carrie said, it so eloquently, it is not to assign the laws or make the laws. It's something quite different. And I think that we all agree as constitutionalists. This is the largest historical question we're facing in this nomination.

Well, let's just jump back to you, Carrie, then what are the dynamics of this process? Because isn't it the president's, uh, an opportunity to just go ahead and nominate who he wishes and how, how come the Senate ha taken such a, um, a, a more powerful role in this, because I remember all the way back to, to judge Bork. I mean, that's where I go back to. And then I also think about Clarence Thomas, what happened to Clarence Thomas? You know, no one seems to talk about, uh, representation when they talk about him. You know, I go back to those processes and I thought how, how these guys were actually now determining who these, these people were to be, and I just didn't understand their criteria. So take us inside that process a little bit more, uh, so that our people can understand.

Yeah. So the idea, you know, originally behind having the Senate confirm a nominate that the president put picked is to kind of give the them some sort of, uh, accountability, make sure the president's not just, you know, nominating nepotistic kind of nominations, where my cousin would go on the Supreme court and then, you know, picking people just for himself. That means that the, the Senate has a check on the president. That's a lot of authority to pick the nominee, but still has to be someone the Senate can make sure is really well qualified and well suited for the position for a lot of American history, not all of it, but most of it coming up until the time you're talking about with Bo it was a process that the Senate was, um, largely fairly deferential to the president. So, uh, you know, there were definitely contentious nominations in there, but most of the time they were not as contentious.

And particularly when up below the Supreme court level, but the, you know, if there was, if there was controversy, he'd come out at the Supreme court level, but most people did get confirmed nonetheless, with rare exceptions, once you get to the Bork era. And this is where Reagan really started turning things around, obviously before that he had nominated Antonin Scalia who was an incredibly strong conservative, um, but it was with Bork that we saw things change particularly. And the big shift happened because between Scalia and Bork, the Senate switched hands. It went from Republican controlled Senate to a Democrat controlled Senate. And for the first time, really the Democrats decided to say, Hey, wait a minute. We don't have to confirm the president's nominee. There's, there's nothing. We, we could actually stop this nominee because now we have an jury control in the Senate and guess who was leading the Senate judiciary committee helping lead this charge against Robert Bo creating the first, you know, huge, catastrophic nomination failure.

It was a, you know, they were, they were ads being run for hundreds of thousands of dollars. People were shocked that this, this happened. There's a verb. Working someone is, is to have this sort of, um, underhanded, uh, personal campaign against them. Well, guess who it, it was Joe Biden, right? Biden, Joe Biden was head of the judiciary committee when that all happened. Um, and that really marked a turning point in American politic for a long time, particularly the Republicans kept on trying to go back and go, wow, let's not go down that road again. Let's keep on trying to be as, as, as even handed and as, as easy going as we can on the, on the Democrats, cuz we don't wanna go down this road. What we've learned unfortunately is the, there's no UN you know, UN ringing that bell. There's no way to go back to the old system.

And we learned it in with Clarence Thomas's nomination. Exactly. Guess who is chairing the judiciary committee during Clarence Thomas's confirmation. So Biden the same guy who's I know it's like he keeps coming back, right? It's the same guy who's going to be asking all of us to be, you know, nice and, and you know, yes, calm. And of course his nominees are all gonna be wonderful. And why would you exert serious scrutiny on his nominees? Well, let me tell you, sir, the kind of underhanded smear campaigns that you ran against, um, Republican nominees and that you, the, the ringleader of the judicial nomination circus is now the one appointing this judge. That's amazing. I am not advocating. We ever should go down that road. We should, we, we to maintain the, the high ground here in terms of being, we're not, we should never attack a nominee based on his or her, you know, a, a personal smear campaign of things.

However, I do think we always need to be recognizing, given the importance of this position that we do need to show real scrutiny of a nominees, beliefs and judicial philosophy. That always should be fair game. And you can be, you can have hardball questions that are still kind and respectful, uh, of the human being on the other side of the table. And I think that's what I hope the, the Senate, um, engages in, in this process, cuz I I'm really concerned about a, uh, a party that has gone really all in, on judicial active in the form of as justice Breyer really used to eloquently argue for this living constitution. The idea that the constitution evolves and that the judges that nine unelected men and women on this court get to be the sort of Delphic Oracle to tell us what the constitution says today.

When we, as the American people should be the ones who, who, uh, we're the ones who ratified the constitution originally and under the proper amendment process, we're the ones who get to amend it, not unelected judges and, and even Biden himself said recently, I wanna nominate someone who's going to enforce the UN enumerated rights and the constitution. So remember the constitution enumerates a lot of rights. We, the bill of rights says what our rights are, what are the, the UN enumerated rights. Those are the ones that literally are not in the constitution. So this is an important debate that this is an opportunity for our country to have not everyone gets involved in the sort of lower court nominations, but this is a chance to look front and center and say, Hey, do you want judges who are just pulling out of the ether? What they think our right should be?

Or do you want judges who recognize that they take an oath uphold the constitution and the law of the country and the constitution. Doesn't just mean a blank slate that you can import, whatever your beliefs are into. There's actual words, there's a text, there's a document it's there, you know? Yes. So, um, anyway, that's, that's what I think this is gonna be a chance to discuss. And I hope that we keep the, we keep the idea of not just nominating as a, as a rubber stamp, every judge. Cause I think that was probably the wrong approach too, but we have to also do it in a, in a civil way where we can have that debate, um, in a proper fashion.

Well, you know, I, I, I,

A couple on that really quickly, Greg, cause I think it's such a, uh, an eloquent point, uh, you know, God rests for memory and I really do mean this, but this is one of the ironies of the late justice Ginsburg. She was on the court for a very long time. She lived to be quite old, but she never really understood her constitutional role. Uh, it was not, it was not to make law. Uh, it was not to be clever. It was not to seek, uh, you know, the, the, the front edge of the living constitution as Carrie has said to, and to the other point that she was making. And Greg, the, the embedded in the question you were asking is another really remarkable book, which I strongly recommend called Clarence Thomas in the lost constitution, right by my and magnet. I, I think

It's excellent book.

Yes. I think it's the best. And it's small. I mean, it's relatively short, but it packs a punch and it goes directly to the, to the point that you were asking about and that Kerry was making so well. Uh, what, what is the lost constitution? The lost constitution, uh, is a relevant, short document that is written with unflinching clarity, and which is really easy to understand the words have a fixed meaning it's timeless.

Well, and I think, again, people need to understand, that's why I said the narrative. If we keep changing the process, then we need to understand the underlying narrative that's pro that's proper. And then the narrative is this is to limit government so that you can have individual freedom and you can actually make your own way. And to give all this power over to nine justices is the exact opposite of the American experiment. I mean, we've got an amendment process. If you wanna amend the constitution, there is a process for that, you know, so again, I, I don't understand why people, you know, even when we vote, I was, uh, I was very frustrated. Uh, and this maybe goes to the heart of the matter. I'm very frustrated at the, at the basic level where I look for a judge and it doesn't give me any information about his politics, nothing about his stance on issues, nothing about his judicial philosophy. And yet I'm supposed to just say, he's competent. He's not competent put him on the bench, you know, in our local area. Well, if they're gonna become activists, I wanna know about that information. And so again, you talked about how the process is changing, but actually we're still using the old ways at the levels where we have some control, Carrie. I mean, so again, uh, help us out. I mean, how are we supposed to fight back on some of this stuff?

Yeah. It, it ma it does make it really difficult. And, and justice Scalia talked about how the, when you have an approach to the court where the judge gets to kind of add content to the law, and it's not just the legislature, then suddenly it turns the judges into much more political actors. So that then he said, you shouldn't have to in a judicial nominate process. No. Well, where do you stand on this issue? Where do you stand in this issue? Do you personally like this or that? No, I, I shouldn't have to know those things. Right. But if the judge is gonna be a politician suddenly that does become relevant and then suddenly I do have to know, right. What is your stance on life issues? What's your stance on guns? What's your stance on unlimited government? What's your stance? Yeah. So all of those things sh shouldn't be our focus.

Um, and, and as much as people get frustrated by the, um, having parties involved in judicial elections where, you know, different states where sometimes judges are elected there, that actually can provide a helpful proxy, at least for people who are trying to figure out, okay, what is this judge's approach? Because thankfully at least we have one party that has committed itself to a, a vision of judging that would say, let's stick with the, the written text of the constitution, the written law. And I would hope again, I, I think this is something that should be appealing to people on both sides, both sides of the aisle. So this is something that may, might be an opportunity to talk with your friends who are on the other side of the island, say, Hey, we might not agree what the best policies are to solve this problem or that problem, but at least we should agree that that is something for the American people and not for the judges to then do an end run around the democratic process.

Absolutely. And, and before I know you have to run, uh, Tim, um, just, you were actually knee deep in this because a new Kavanaugh really well. Uh, do you anticipate that kind of process with this nominee where, I mean, that was, that was wild. I mean, that was a wild process. I was there to, I was seeing the protests, you know, the orchestrated protests on the, on the hill and these kind of things. And I thought, have we, have we S to this where a really good guy, you know, is gonna be, he smeared, like this is this the way it's going to be. And, and all of us would probably say, I don't think this is gonna happen with, uh, Biden's nominees. And, and I is doesn't that say something about us as a people?

Yeah, I think it does. Uh, justice Kavanaugh is a person of impeccable character and integrity. Uh, he is a, uh, annually gifted, uh, ju uh, and for anyone who paid attention to the content and the substance, uh, of those hearings, they know that, uh, you know, we, that, that the American people have a, a remarkable justice in, in justice Kavanaugh, uh, as Carrie said, and as you intimated a moment ago, uh, arising like a few, you know, from the, from the Bo years, and, and in many ways carried over into the, into the Thomas, uh, you know, hearings, uh, you know, this is really a nare, uh, the, the, the lowest, uh, possible way, uh, that we should ever, uh, consider, uh, any potential nominee. And I feel very confident, genuinely confident, uh, that the members of this, of the Senate judiciary committee, uh, you know, uh, the ranking member, Mr.

Grassley, and so many others, I think, uh, regardless of how they may disagree on of judicial philosophy or other matters that, that, that may come out. I, I think a, a sense of ity and civility, uh, will, uh, will prevail. And I think that, you know, it's always perfectly acceptable to criticize the ideas, uh, even if you're not criticizing, uh, the person. And I think that this was animated so beautiful in the friendship for years between, uh, the late justices Ginsburg and Scalia. And in fact, justice gins, uh, Ginsburg said this in her, uh, incredibly eloquent and tender, uh, eulogy of her friend justice Scalia, where he she's had in part that their, that the elasticity of their very law, long decades, long friendship was that they may have attacked each other's ideas, but they didn't attack each other's person or character. And I think that that is very buffeting of the Supreme court, uh, even if we disagree on the big ideas.

Okay. And Carrie, just to close this out, then, uh, let's talk about a couple of the ideas, because as far as I can tell from, uh, judge Michelle Childs, uh, the issue for me is, is again, she was front and center with the O GFE basically ruling because she was one of the first, uh, judges that, where this was litigated in her court. And then Leondra Kruger aggressively against the Hosanna Taber ruling, which I think shocked all the judges when she came up as arguing against religious Liberty. Uh, you know, in, in, in that particular thing, these are real issues that we should be concerned about, correct.

Oh, absolutely. I think those are, and, and judge child also has a, has a concerning case, uh, regarding witnesses for absentee ballots and, and invalidating the state of California. Uh, judge Jackson had some, has some concerning cases where she seems to have taken very political positions, opposed to the Trump administration and reached out to decide decisions against his regulatory, um, uh, actions that she didn't even have jurisdiction to do. And that was even liberal judges of the DC circuit arguing that actually she didn't have authority to decide those cases. Um, I, I am concerned to make sure that, that the Senate judiciary committee members, as we're, we're, um, vetting these nominees and as they have their hearings, that there is a serious delving into their approach to the law. What we've seen from Biden's nominees so far is they like to go up and say, oh, well, I'm, I'm perfectly moderate and down the middle of the road.

And of course I recognize how to read the constitution and what it says, but do you have examples in your judging before where you can show that you actually do apply those things? I think now this is more of an illustration than anything. I mean, we have the fact that we have a majority justice in the court who are originalists right now, and the fact that every judge, even the, the Democrat nominees have to go up before the court and, and at least verbally say they understand originalism is a Testament to where we've come. Cause I think everyone recognizes that's that is the principled way to approach a constitution. So we have to at least give lip service to that. What we need to do is ensure that there's a way to show that the people really have applied that in their judicial lives so far again, it's a concern with judges, you know, like judge Kruger or justice, California Supreme court justice Kruger, who basically disavowed first amendment protections to that Lutheran school in the Hazan Taber case.

Um, you know, it's, it's a concern case. It's just a concern for me, for judge Jackson, who at her confirmation process to the DC circuit claims, she didn't really have an approach to interpreting the constitution. So I would've been embarrassed to say that as a three L in law school and here she is coming to the second highest court in land, and still doesn't really have a, isn't able to articulate a clear approach to the constitution either. She's be, uh, correct and candid in saying that, and that's concerning, or she's simply trying to not disclose what her real interpretive philosophy is. And I fear that any nominee that this president is going to select is gonna be someone who much, like many of his other policies will be presented as moderate, but at the end of the day, um, is actually going to be seen some of the most extreme liberal policies.

We know that's the direction his administration is pushed. We know that's the direction they're being pushed by the dark money groups in the left that have spent hundreds of millions of dollars to get him elected and other Democrats elected this past season. And so that's where the pressure is. So I, I think we need to be very careful to vet. These just is fully. And, you know, the reality is there's only, uh, the Senate is a 50 50 vote right now. So if every Democrat nominee, you know, green lights, these judges, uh, they it's, whoever the president picks would be confirmed in that case that's case. But we can't waste the opportunity to talk about this, to make sure the American people realize what is happening and to make sure of those, um, senators on both parties, who, who are green lighting, a nominee that doesn't have a sound judicial philosophy are held accountable.

You know, that's an excellent, and I'll, let's just leave with that thought because in, in every interview that all, most people have gone through interview process, and people will say, they're not asked, just what do you think about this or that they're asked to demonstrate how they have done this in the past, show us how you've solved this issue, or show us how you, what principles have you brought to bear on this? And one of the things I, I talked to people about is when prop eight was overturned in California, and it was 75% African Americans and 75% Hispanics voted for it. It was a judicial, uh, uh, you youer patient of indivi of, of the individual's vote. And I said, nothing like that happened to Jim Crow to that degree. And yet nobody made a big deal about that because it was kind of the, the, the liberal way of doing things.

And the nine circuit court just did it, uh, capriciously. And that's really our issue. Our issue is they, they didn't have the right to do that. They did not have the right to vacate the votes of blacks and Hispanics who happen to believe that marriage was between a man and a woman. And I think that's what you're talking about is let's, let's talk about their rulings. Let's see how they have applied these things in the past. So thank you both, you know, for being, uh, with us today, because this is about people's individual freedoms. It's about making sure that the judiciary doesn't align with the executive branch or the legislative branch, but that they maintain, uh, their uniqueness so that our individual Liberty can actually be protected. Well, thank you again. K. Thanks can area for being with us today. It's a pleasure to have gotten to know you a little bit more and thanks for your expertise on this. And thank you, Tim. Thanks for tuning in today to get to know our LCR L DC work better. Check out our website@lclfreedom.org contain their, our resources to empower your public square dynamic discipleship, or check out our weekly work from the center opinion piece every Friday at facebook.com/l C R L freedom till next time, God bless you. Always I'm Greg Russels have a great week.