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Brian: It's The Brian Lehrer Show on WNYC. Good morning, everyone. Just another weekend in America, nothing to see here, nothing going on, just the 200,000th death from coronavirus and hardly anybody's talking about it because it isn't the biggest story. To our Jewish listeners, if you're observant enough to have been in a news blackout for the two days of Rosh Hashanah, Shana Tova, happy new year, and welcome back, but I have some very bad news.

The girl who was known when she was a teenager as the rabbi of her summer camp in the Adirondacks has died. For the record, it was Camp Che-Na-Wah in Minerva, New York and I was a counselor at the boys' camp down the road, Balfour Lake Camp, except I was there 30 years after her. Here's a clip of Ruth Bader Ginsburg that is relevant, since she died as Rosh Hashanah was beginning and that hasn't been played a million times this weekend on every network, 40 seconds. She was speaking in Israel in 2018.

Ruth Bader Ginsburg: I am a judge, born, raised and proud of being a Jew. The demand for justice, for peace, for enlightenment, runs through the entirety of the Jewish history and Jewish tradition. I hope that in all the years I have the good fortune to continue serving on the bench of the Supreme Court of the United States, I will have the strength and courage to remain steadfast in service of that demand.

Brian: Justice, peace, and enlightenment, the goals the RBG took from her Jewish heritage. For the record, on this third day of the new year, 5781. Later in the show, listeners, we will do much more by way of tribute to Justice Ginsburg, including your calls and what she meant to you, but first, back to the present and because the presidential campaign wasn't in high gear enough. Now, we have this fight over who should get to nominate the next justice.

If you haven't heard this yet, here's the starting line. It's Lindsey Graham, who is in charge of this process now he's chairman of the Senate Judiciary Committee, which would hold the hearings. Here's what he said in February 2016 after Antonin Scalia died, and President Obama nominated Merrick Garland.

Senator Lindsey Graham: I want you to use my words against me. If there's a Republican president in 2016, and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said, let's let the next president whoever it might be, make that nomination and you could use my words against me and you'd be absolutely right. We're setting a precedent here today, Republicans are, that in the last year, at least have a lame duck, eight-year term, I would say it's going to be a four year term, that you're not going to fill the vacancy of the Supreme Court based on what we're doing here today. That's going to be the new rule.

Brian: That was clear, Lindsey Graham in that election year, but now it's, never mind. By the way, he has a history of this. Anyone remember when Graham said this about Donald Trump in 2015?

Senator Graham: : I want to talk to the Trump supporters for a minute. I don't know who you are and I don't know why you like this guy. I think what you like about him, he appears to be strong when the rest of us are weak. He's a very successful businessman. He's going to make everything great. He's going to take all the problems of the world, and put them in a box, and make your life better. That's what he's selling. Here's what you're buying, he's a race-baiting, xenophobic, religious bigot.

Brian: Never mind. What happens next? With me now CNN political analyst and Wall Street Journal national politics reporter Sabrina Siddiqui, whose Twitter feed right now is mostly RBG with a dash of Zendaya at the Emmy's. She is definitely following the NBA playoffs because we all need some relief during some hours of days like these once in a while. Hi, Sabrina, just a Monday morning with nothing to see here, right?

Sabrina Siddiqui: Good morning. It's never a dull day.

Brian: Congratulations on your Lakers, but we'll leave that to some stations down the dial, and Trump and McConnell, are they really going to do this? Try to ram through a nominee before the election?

Sabrina: You better believe it, and they've made it quite clear Senate majority leader, Mitch McConnell, didn't waste any time when the news of Justice Ginsberg's passing emerged on Friday night, in announcing that the Senate will move forward with President Trump's nominee whenever we have one, and President Trump himself, reached out to Senate Republicans in urging them to proceed.

We, I think always knew that if the tables were turned, and this were a Republican president, and it was an election year, that that same rule that McConnell set forward with the Merrick Garland nomination in 2016, under President Obama, that it wouldn't hold up and that he would most likely reverse on that same pledge, if he had the opportunity to confirm a Republican president's nominees. It's not surprising. The question is really going to be what happens with those vulnerable Republican incumbents who are up in November, and are facing a lot of that external pressure not to move forward.

Brian: What do you mean Republican incumbents? Those in the Senate?

Sabrina: Those in the Senate, we have a couple of Republican senators who have already come out and said, that at a minimum, they should not move forward prior to the election. That includes Senator Lisa Murkowski of Alaska, Senator Susan Collins of Maine who is in a really tough reelection battle down to the polls. There are a couple more, Senator Cory Gardner of Colorado is a up in a very tight battle for his own reelection and he has so far said that the nation should mourn Justice Ginsberg's death before we get involved in the politics. He seems to be trying to buy more time with respect to a position.

Senator Joni Ernst in Iowa, signaled she wasn't sure how she would proceed. She hasn't said anything one way or the other and that's definitive. There are few senators that I think everyone is watching right now. Democrats have raised an extraordinary amount of money since Friday, Democratic outside groups, working in this election. Whereas, the Supreme Court, and just the judiciary in general, have also been galvanizing issues for the Republican's base, for conservatives. This may be the first election where it is a galvanizing issue for Democrats and for progressives.

Brian: Just remind us of a little bit of the Senate math here. If all the Democrats stick together in opposition, is it four Republicans who would need to decide that this is unconscionable to confirm someone five minutes before an election? Is it four Republicans who would need to defect?

Sabrina: They would need four defections, because if they have three then Vice-President Mike Pence can cast the tie-breaking vote. There need to be four detections. It's possible. It's not just those who are up for reelection. I think a lot of people will wonder what Senator Mitt Romney has to say about this. If there were some unsubstantiated rumors it turns out that he was going to oppose confirming a justice before the election year, and his office came out and said that that was not true, but they didn't necessarily say how he would vote. Of course, we know that Senator Romney voted to remove a President Trump from office in the course of the impeachment trial. What does he think about precedent and what people now refer to as the McConnell Rule of having kept that seat vacant for a much longer period of time, that they could see came up in February of 2016.

We're now just a little less than two months away from the 2020 election. We don't know where those votes could come from, and how this battle is going to play out. It also might depend on who President Trump nominates and how polarizing that person is. We all thought it couldn't get much uglier than the confirmation fight surrounding Justice Brett Kavanaugh in 2018, and here we are.

Brian: Here we are. Listeners, here we are. As I said earlier, we'll take your phone calls of tribute to RBG later in the show, but we're on the politics of what happens right now with Sabrina Siddiqui, Wall Street Journal national politics reporter and CNN political analyst. Your calls on that, which are already starting to come in, I'm not surprised. I didn't even have to give out the phone number for the calls to get started today, but for those of you who don't have it in your speed dial, 646-435-7280, 646-435-7280. Anything you want to say or ask about replacing, succeeding. Nobody could replace her. What's the right word? Succeeding Justice Ginsburg, 646-435-7280.

Including Republican listeners who want to call it and say even after hearing the Lindsey Graham clip and knowing everything that went on in 2016, you want to argue that this is okay? Give it a shot, 646-435-7280, 646-435-7280. Let me bring up another Republican name that I've heard, who might go against it. That is Chuck Grassley of Iowa, who in fact, before Lindsey Graham was the Chairman of the Judiciary Committee. I've read that he has said in the past, that he would not vote to confirm somebody under circumstances exactly like these. What can you tell us about Chuck Grassley?

Sabrina: Well, I think that that is exactly correct, that he was one of the senators who initially said he would think that if there were a same position under a Republican president, in an election year, he didn't think that the Senate should proceed with a nomination. Now, we haven't really heard much from him on this matter. We have seen, you played that clip from Lindsey Graham, some Republicans who were very definitive in taking some of the position, now reversing that view and finding a way to rationalize it.

Senator Ted Cruz is another one who, in 2016, of course, opposed filling a vacancy under President Obama. Now, he said, "Well, we could have a contested election that we can't run the risk of having only eight justices on the Supreme Court." Well, we could have had a contested election in 2016. I'm old enough to remember when then candidate Trump said flatly, in one of the debates, that he might not accept the results of the election, depending on how the people voted. It's not a new problem.

We have Bush v. Gore, we have precedent for there being a contested election. It's not uniquely a 2020 issue. Some of them have also said, "Well, that was a Democratic president and a Republican senate, the people have clearly decided that they want a Republican White House and a Republican Senate, at least through November, so we should honor that commitment," as if they didn't make the 2016 election a referendum on the Supreme Court.

People are going to contort themselves is what I'm trying to say, and twist themselves into a pretzel to try and argue why this is different. A lot of it will also depend on the polling. The Reuters poll just over the weekend, showing that a majority of Americans think they should keep that vacant 'til after the election. That could have 5 in 10 Republicans. That was interesting. It seemed to be that nearly half of Republican or half of Republicans polled seem to think that that seat should be made vacant and be decided, and be filled by the next president.

Brian: That's a national number, which means it doesn't mean that much. You have to look state by state where Republican senators are up for reelection, or where it could play into the presidential race in a very close swing state and whether that opinion would be something that people would actually act on to determine their votes any differently than the way they were going to vote before Justice Ginsburg died on Friday.

The public opinion top number on not appointing a justice this quickly doesn't necessarily control the narrative, but it certainly is an interesting data point and interesting measure of where at least the majority of the people, and even a lot of Republicans, as you say, are in theory. Abdul in the Bronx, you're on WNYC. Hello, Abdul.

Abdul: Yes, good morning, Brian. My question is, do the Democrats have a pathway to unseat the nominee if Republicans are successful in putting one. After the nomination happens, do the Democrats have a pathway to unseat in a constitutional way?

Brian: Abdul, thank you very much. Let's talk about what the various options would be for the Democrats. If a justice does get confirmed, but then a Democrat wins the White House and the Democrats take the majority in the Senate. There's a host of scenarios. To Abdul's specific question at first, would there be a way to unseat a confirmed justice? I'm guessing probably no.

Sabrina: Not to unseat. People have talked in the past about what remedies Democrats have at their disposal, and they're just limited in their options. I think that it also depends on what the makeup of the Senate will be after the election. If that justice is already filled, I think that that position will then remain. There were calls, of course, for them to figure out if they took back control of the Senate a way too unseat Justice Cavanaugh, and we know that that's not going to happen, regardless of the outcome of the election.

I don't think that that's really much of an option. The question is, if Republicans are not able to fill that vacancy before the election, because of some of these foldable incumbents, then there are some scenarios that have emerged with respect to special elections, and some senators potentially taking the oath of office before January, so in a lame duck session. The Arizona Senate race is one example, where if Democrats are able to take that seat, then you could have the Senator-elect fill that seat by November 30th.

The same holds for Georgia, one of the special elections. There are a couple of states where people are keeping an eye on the outcome, or they're very tight elections, and perhaps they could change the math before January when two people are typically sworn in. If they change the math in a lame duck session, and Republicans have yet to fill that vacancy, then there may be an opportunity to stop President Trump's nominee.

Brian: Well, that's interesting and that raises a whole other scenario that we hadn't even broached before, which is, if the Democrats win the presidency and a majority in the Senate, that the Mitch McConnell-controlled Senate would go ahead and confirm a nominee, even under those circumstances, do you think that's possible?

Sabrina: I think we should expect Mitch McConnell to confirm a nominee under any circumstance whatsoever if he has the votes. They care about filling the judiciary with as many conservative justices as possible, whether that's the Supreme Court or judges in the federal judiciary. In fact, I would say one of the President Trump's most enduring legacies, has been the ability, with a Republican-controlled Senate, to pack the courts, in essence.

I think that even if you have a president-elect Joe Biden, and a Democratic senate set to take office in 2021, Mitch McConnell will do whatever he can in a lame duck to try and jam that nomination through. What would be the public backlash? We don't know. It's a ways away from the 2022 midterms, so I think the calculus would be that there wouldn't really be that much blowback.

Look, ultimately, again, it's always a base issue, the Supreme Court. I don't think that the suburban voters and the independents, who many people believe will decide this election at the presidential level, are not necessarily motivated by the Supreme Court. This is really an issue that both parties see as an opportunity to energize their base, to raise a lot of money, and to boost turnout from within their own base. That's the kind of politics that Mitch McConnell is looking at.

That goes back to your point where, at a national level 5 in 10 Republicans might not actually mean so much. A lot of these Republicans are going to make the calculus and that's why it's not surprising Lindsey Graham flip-flopped on his position. What do Republicans think in South Carolina? What do they think in North Carolina, where Thom Tillis, who also said he would vote to move forward on the President's nominee, think? A lot of those voters probably think that Republicans should go ahead and feel the same.

Brian: What about Lindsey Graham's own election? I read in your paper in the journal, that there are some close polls between Lindsey Graham and deep-red South Carolina, and Democrat Jaime Harrison.

Sabrina: They absolutely are. There are a couple polls that have shown this effectively tied, which is fascinating for a state like South Carolina, reliably conservative state, where President Trump has been up in the polls and is certainly expected to carry without any difficulty. I think that Lindsey Graham has had a very difficult time trying to position himself in a Trump presidency. You played the clip of Lindsey Graham in 2016 or 2015, during the course of that election, appealing to Trump supporters. He called him a racist and he said all kinds of other things about how Trump was effectively a con man. Now, he's been one of President Trump's closest allies in the senate.

I think what has happened and why you see that race lead tightening is Lindsey Graham, in the eyes of many voters, embodies everything that's wrong with Washington. It's so transparent the way in which he has done an about-face on virtually any issue that was really at the core of his politics or ideology. He hasn't exactly won support from Trump voters who still see him as a figure of the establishment. No matter how much he tries to cozy up to Trump, I think they always will see him as a figure of the establishment, and they will always remember that he was one of Trump's most vocal critics, and then by that same token, he has turned off any moderate voters who had hoped that he would stand his ground.

Brian: Which helps to explain why Graham dug in this weekend on going ahead with a nominee, even though he knew everybody would play that clip in which he said, "Use these words against me," back in 2016, if he ever supported the idea of a confirmed nominee in an election year. I guess he feels his path to reelection is to dig in with the base that would support that rather than the calculation that Susan Collins in Maine is making in a close reelection battle, which is to make herself look not too extreme to the center.

Sabrina: I think Lindsey Graham, those words that you played of him saying this is a new rule, this is a precedent we're going to follow here on out, there is a Super PAC working to defeat Senator Graham that is spending $300,000 over the next 10 days, airing an ad showing his reversal. I think that his opponents think there's an opportunity here to use this moment, to try and once again, paint him as someone who is blowing with the wind, really in search of an identity in the age of Trump, but the calculation for him is base first, the Supreme Court is a base issue. "This is maybe the only chance I have left to get Republican voters behind me in South Carolina in large enough numbers where I'm no longer vulnerable."

Susan Collins of Maine has been down in the polls much more, she has long cast herself as a more independent-leaning senator but in fact, it's the Supreme Court that has been one of the big issues for her in her reelection battle, where her vote for Justice Brett Kavanaugh, amid the sexual assault allegations in 2018, has been a real motivating factor for Democrats to put up an opponent, to raise a lot of money and to undercut Susan Collins' message that she is someone who has taken a more principled stand against President Trump, and so her decision to vote, to acquit him in the impeachment trial.

I think she's in a position where she really now to prove that she is in fact, as independent-minded as she has long tried to cast herself as, but what's notable is she said we shouldn't move forward prior to the election. That once again raises the question of what happens if you're in a lame duck session and does Mitch McConnell just have the votes to jam this nomination through? If these Republicans senators keep their powder dry through the election, that doesn't necessarily mean that they won't just vote to confirm President Trump's nominee in a lame duck session.

Brian: I thought I saw a version where Susan Collins said the next president, Trump or Biden, should get to name the next nominee, and that she went that far, but maybe I misread that. Michael, I'm with Sabrina Siddiqui national politics reporter for the Wall Street Journal, Michael in Brooklyn, I think is calling to say, yes, it is okay to go ahead with a nominee now, Michael, thanks for calling, you're on WNYC.

Michael: Hi, Brian, how are you.

Brian: Okay. Thank you and you?

Michael: I do think that if the Democrat under Obama had the majority in the Senate, they would have pushed through that nomination. I forgot. I don't remember the guy's name. Clark Garland.

Brian: Yes, Merrick Garland and you're right, they didn't have the nomination and certainly they thought at the time that they would have had the right to do that. That part, I think is indisputable. It was February of the election year, but then Lindsey Graham and Mitch McConnell explicitly, since they had the power and wanted to block that nomination then, they set this as a new standard. You don't nominate a Supreme Court justice if a vacancy occurs in an election year, and here we are in late September of the election year. To say that they would have, is that enough?

Michael: They're politicians, they're hypocrites, Democrats are also hypocrites as much as Republicans, politicians are hypocrites.

Brian: Therefore what though? Don't worry about consistency at all. Just go with your side. Is that the standard that you want to set?

Michael: It's not my side, the president has the right to nominate somebody.

Brian: Michael, thank you very much, you've reflect a lot of people, Sabrina?

Sabrina: I think everyone thinks that both parties can't be hypocritical, that politicians are by nature, often hypocrites, but I think to your point, yes, sure, of course, the Democrats would also confirm a nominee in an election year, but the standard here was put in place by Republicans. It was Mitch McConnell who set this standard, who set this precedent, not Democrats, and therefore, that doesn't really get it what this argument is really about.

In fact, I even came up with Kavanaugh's nomination in 2018, when one of the first questions reporters asked was, does this count as an election year? It's a mid-term election. In fact, it's more closely tied to the Senate because we are looking at the make-up of the Senate and have a number of tight races or had a number of night races in 2018 but the argument Mitch McConnell used at that time was, "The Merrick Garland rule, that would apply to a presidential election. This is the mid-term election, so it's different."

Now we're in a presidential election and now he's moved the goalpost by saying, "We have a Republican majority of the Senate and a Republican White House. Last time, it was a Republican Senate and a Democratic White House. He moving the goalposts, I think that's quite clear, and that's because they've boxed themselves into a position that is untenable, if you're trying to rationalize it, but again, it goes back to, there was no doubt in anyone's mind that Mitch McConnell was going to find a way to try and rationalize why this year is different.

I think what it really raises is the question of what do Democrats do if they win the majority and the White House. I think you're going to see a lot more support for eliminating the filibuster. I think you already see a lot more support for packing the courts or perhaps even expanding the number of seats on the Supreme Court. These are all progressive. These are all proposals that progressives, that we've been hammering for a while, so why do Democrats continue to be bound to precedent and to norms, when Republicans have virtually shattered all, but during the Trump administration.

You're going to maybe see a much different Biden presidency than what he has pitched so far, positioning itself as a moderate, because he even signaled that Republicans are the ones who are now pushing the country to the brink.

Brian: There are those proposals that you just mentioned, plus pushing statehood for Puerto Rico in Washington, DC if they get control of both houses of Congress, which would presumably give them four more Democratic senators, two in each of those states in most elections going forward. On the packing the court though, expanding the court, there was an interesting Pete Buttigieg proposal when he was in the presidential race, that aimed at ending all of this back and forth where Democrats would get to name 5 justices, Republicans would get to name 5 justices and then those 10 justices would get to pick an additional 5 justices so total 15, but with the goal of depoliticizing the Supreme Court.

I wonder if Biden would adopt that, and start running on that as something that would both potentially neutralize might happen in the next few weeks, and depoliticize the process as both sides, go back and forth on this.

Sabrina: It's certainly possible. I think one thing that is notable is that the Biden campaign is no longer being as outwardly opposed to the idea of expanding the Supreme Court. Joe Biden, during the primaries, was quite clear that he did not think that expanding the court was a good idea, and he said at the time that, "We'll add three justices when we're in control, Democrats and Republicans will retake the Senate or the White House," and they'll add three justice through that. He just thought it was an all-around bad idea to even talk about tinkering with the make-up of the court.

Now over the weekend, many reporters, including the Wall Street Journal, have asked Biden campaign, if he has evolved in that view, they haven't said that he's changed position, but they also have signaled that he is more open to measures that could potentially depoliticize the process and they essentially are not being as forthcoming, which always means that they're perhaps reconsidering that position. I think that there could be a lot more pressure under President Biden if that comes to pass, to do something about the Supreme Court because this could potentially be, if confirmed, a third justice under President Trump, and you better believe that progressives, because of a number of priorities they care about, from healthcare with the Affordable Care Act before the court once again, to access to abortion, to LGBT rights, climate change, you name it.

There are a number of priorities they believe are really at stake here, and they would like to see the party do more to protect them, even if it means taking unprecedented measures.

Brian: By the way, in fairness to the idea that both sides play hardball, I know a lot of Democrats are saying only the Republicans play this kind of hardball and the Democrats should do it, too. Didn't the Democrats, when Harry Reid was the majority leader in the Senate, and the Democrats have the majority, didn't they end the filibuster for most judicial appointments because the Republicans have been blocking so many Obama judicial appointments, something like that, with the filibuster?

Sabrina: Yes, that was absolutely the rationale, and it was because Republicans kept accusing President Obama of packing the court, but in fact, they were keeping, they were blocking so many of President Obama's nominees to the judiciary, that there were a record number of vacancies at the time. It reached the point where Harry Reid said, enough is enough. At the time Republicans did warn that to end the filibuster for judicial nominees, that that will come back to hurt Democrats, that they're the ones who are now setting the precedent that the institution will not be able to come back from.

I think that if you look at Mitch McConnell's record, and if you look at the way in which he has operated as a tactician, and what he's been willing to do to maintain power for Republicans in the Senate. I think that even if Harry Reid had not ended the filibuster for judicial nominees, that Mitch McConnell would have still ended the filibuster for a Supreme Court nominee under President Trump if he didn't have the votes.

I find it hard to believe that he would, because of some deference to the institution, not enact a similar rules change, but that's the world we live in. They're both going to point fingers at who's to blame for this era of hyper-partisanship and polarization. Maybe there is some truth to both of them being in part to blame, but I think that had it not been for those vacancies under Obama, Harry Reid would not have gone down that path, and you better believe if there are vacancies under President Trump, then Mitch McConnell would go down that same path.

Brian: Tom in Edison, you're on WNYC with Sabrina Siddiqui National Politics Reporter for the Wall Street Journal and CNN political analyst. Hi, Tom.

Tom: Hi, thanks, Brian. I looked at my calendar and it looks like two weeks from today is the first Monday of October, which according to the Constitution is the beginning of the Supreme Court session, are there any cases currently on the docket that might inject themselves into the presidential political debate? I noticed at the end of the last session, they were doing it on Zoom, so there might even be audio or video appearing in campaign commercials?

Brian: They are going to do it on Zoom again, starting Monday, October 5th is my understanding, and yes, the public, I believe, will be able to listen in again which you couldn't do in the past and Sabrina, do you know the answer to his central question, which is, are there cases likely to come before the court that will actually impact the rules of the election or potentially the counting of the votes?

Sabrina: Well, I think that with respect to the election itself, that, we'll have to wait and see, depending on the outcome, whether or not it goes to the Supreme Court. There's not a case in advance of it that would necessarily have any bearing on the election result, but if you do have a four-to-four tie, we could be in this for the long haul. I think there are cases that are coming before the court in the fall that have a great deal of significance in terms of public policy. The biggest one is of course, the future of Obamacare, and now the court stands at five-to-three ideologically. Of course, all eyes would be on Chief Justice John Roberts, who voted once to preserve Obamacare in the court.

I think this just raises the prospect of more four-to-four tie votes on key issues like Obamacare, as well as religious freedom, the non-discrimination laws, in addition to perhaps more cases that come before the court with respect to abortion. What happened when Justice Scalia died in 2016, is that the court ended up effectively deferring on some of the most contentious issues. There were a lot of four-to-four tied votes, and what that effectively meant was there were no real sweeping rulings until a new justice was seated, and I think that's probably what you're going to see again, but as I said, I think all eyes will be on Chief Justice John Roberts.

Brian: Sabrina Saddiqui National Politics Reporter for the Wall Street Journal, CNN political analyst. Thank you for all this this morning. I know you've been working nonstop and when we booked you for this segment last week, Ruth Bader Ginsburg was still alive and we thought this was going to be a lot easier today. Thanks for coming.

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