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Brian Lehrer: Brian Lehrer on WNYC. Good morning again, everyone. Quick reminder that we will carry live the presidential debate tonight, that's at nine o'clock. We'll have that on WNYC. As we continue to bring you your elected officials from New York, New Jersey and Connecticut, back with us now is democratic Senator Chris Murphy of Connecticut. He joins us on a morning when Democrats on the Senate Judiciary Committee boycotted the Committee's official debate and vote on Supreme Court nominee Amy Coney Barrett.

The Republicans in the room voted to pass for nomination to the full Senate. Just before the vote, Joe Biden announced that if elected, he would name a bipartisan group to study the court system which, he said, is getting out of whack. That, of course, is a response to people asking if he would expand the Supreme Court, having seen the last several nominees as a legitimate.

Senator Murphy joins us on the morning after the Supreme Court allowed Alabama to ban curbside voting. Basically, voting from people's cars outside polling places, just as Sotomayor said in dissent, that the ruling discriminates against older and other voters most vulnerable to COVID, "If those vulnerable voters wish to vote in person, they must wait inside for as long as it takes, in a crowd of fellow voters whom Alabama does not require to wear face coverings," from Justice Sotomayor.

The Supreme Court has now voted five to three to allow Alabama to do just that. Senator Murphy joins us on the morning after president Trump's FBI director and director of National Intelligence announced Russian and Iranian attempts to interfere in the election. We'll talk about all of those things. Senator Murphy, I know the listeners always appreciate when you come on. Welcome back to WNYC. Too bad you're here on such an uneventful morning.

Senator Chris Murphy: That is a really long list. Good morning, Brian.

Brian: Did your colleagues, who sit on the judiciary committee, do the right thing, in your opinion, by boycotting this morning, rather than have those few hours of debate before the vote on judge Barrett?

Senator Murphy: Why give the cover of legitimacy to this process? Republicans effectively stole a Supreme Court seat from President Obama. It was his constitutional responsibility and right to appoint members to the court if a vacancy occurs during his term. It did, with 10 months left, and Republicans denied him that opportunity by refusing to hold a hearing on Merrick Garland, because they said there was some sacred precedent that you can't put judges on the court in the last year of a president's term.

We had our suspicions that that was not the rule, that the rule was just-- They were going to do anything that they could in order to stop Barack Obama from getting selection to Supreme Court, and indeed that is the rule to use the rules of the Senate to stretch them to any length they will go in order to express and advance Republicans power. It just didn't make sense for Democrats on the Judiciary Committee to provide a veneer of legitimacy to a nomination process that is illegitimate.

Brian: A few listeners have tweeted a question about whether it's even parliamentarily acceptable for Judiciary Committee Chairman, Lindsey Graham, to have held the vote without the minority present. Is that a loophole you're interested in pursuing?

Senator Murphy: I don't know in detail the quorum rules on the Judiciary Committee. What I do know is that Republicans are going to change the rules however is necessary in order to get Amy Coney Barrett on the court. They are not going to let the rules stand in the way. With 50 votes they can easily change the rules of a committee or of the process on the floor. We're going to continue to use every maneuvered artist's puzzles to slow this nomination down, so that the American people can actually see how radical Amy Coney Barrett is, but they seem intent on doing whatever is necessary, including coming onto the floor of the Senate in moon suits, half of them are COVID positive, in order to rush her onto the Supreme Court before the election.

Brian: Do you support Joe Biden's idea of a bipartisan group to study the court system? I assume that includes the potential to grow the number of Supreme Court justices.

Senator Murphy: Yes. I have not seen his proposal yet. I think that all of our options need to be on the table in order to make sure that we can govern in 2021, if Democrats do indeed get control of the Senate and the White House. I've long been a supporter of filibuster reform, for instance. I would certainly be open to a fresh look at the court system. If that's where Joe Biden wants to go, I think there could probably be some pretty important discussions that happen in that forum.

Brian: Ruth Bader Ginsburg, despite her known liberal views and ACLU background, was confirmed 96 to 3 back in the '90s. Are there circumstances under which you could see yourself ever voting for a Republican president's conservative nominee under circumstances that would not be this extraordinary or questionable?

Senator Murphy: Not only can I envision that, but I have. If you look at my voting record with respect to Trump nominees, both to the court and his political appointees to administration posts, I have probably voted for more of those nominees than most all of my Democratic colleagues, because I generally do believe in giving deference to presidents, even presidents of the opposing party, so long as their nominees are in the mainstream and the process is legitimate. In this case, the process is not legitimate.

Amy Coney Barrett really is not in the main stream, and I know it's hard for people to imagine that she looks mainstream. She doesn't talk like a radical, but her views are really out there. For instance, she believes that The Second Amendment protects the right of felons to own guns. She's going to totally rewrite The Second Amendment. To me, she's just not somebody who sits within the 20 yard lines, and those are the kind of Republican nominees that I will support and that I have supported.

Brian: In fact, we covered that on the show during her testimony. She believes in The Second Amendment constitutional right of convicted felons to continue to own guns. Obviously once they're out of prison, she would not make that clearer statement about believing in the rights of those felons to vote once they've served their time. That's a distinction worth mentioning. Before we leave the question of expanding the court, the proposals that I'm seeing out there are actually not just to give a president Biden or whoever the ability to put on more justices of their part as in choice, but things that would actually make the whole system less partisan.

Like there's one where Democrats appoint 5, Republicans appoint 5, and then those 10 justices appoint another 5. There's one where each president gets to appoint two justices over there for a year term, and then it becomes- I think it's 18 years of term limits rather than a lifetime appointment. Tying it more closely to who's elected in an hour or a time frame. Do you think that's the goal really, is to depolarize this process and take the Supreme Court back to being a nonpartisan institution through some mechanism like one of those?

Senator Murphy: Our goal should certainly be to reduce the current hair-on-fire high stakes nature of Supreme Court nominations, and to avoid the swings that can happen depending on whether you get ultra conservative judge or a more liberal judge appointed. There are a number of different ways to get there. As you mentioned, there are some very innovative proposals out there that would guarantee every president getting a certain number of appointments to the court that would perhaps come hand in hand with a increase in the number of justices.

You can also attack the underlying problem in American politics today, which is this pressure for both parties to have to play to the extremes or to the more progressive and more conservative elements of their political party and taking on that general trend towards more partisanship involves campaign finance reform. It involves redistricting reform in the House of Representatives. I think you can try to attack the underlying causes of partisanship, and then you can also look at some of these innovative plans for the future of the court.

Brian: Senator Chris Murphy with us from Connecticut for another few minutes. Election security. I know it's one of your interests in general, and there was this hard to understand briefing last night by Trump's FBI director and director of National Intelligence about attempts by both Russia and Iran to interfere in this election. Is it clear to you exactly what they were revealing and why publicly at this time?

Senator Murphy: Maybe it's not hard to understand because, as I laid out three weeks ago in a Twitter thread that I reposted again on my account this morning, there's been a pretty consistent effort by this. administration to bury information about Russian interference in the election, and to elevate information about Iranian and Chinese interference, and to try to create this false equivalency. To me, that's what last night's press conference was about. They were attempting to over-hype an Iranian attempt to intimidate voters, and they were legitimately trying to intimidate voters. The whole question of interference gets glossed over and people think that "The Iranians might be doing things against Biden, and the Russians are doing things."

Brian: No, the other way around.

Senator Murphy: "The Iranians are doing things against Trump, they're against Trump, and the Russians are doing things against Biden, and it's all the same." In fact, it's not the same. The Russians are the only country that have the capability and the intent necessary to meaningfully manipulate our politics. We need to understand that. I think last night was just one more effort by the administration to try to paper over the extent of the Russian interference campaign.

Brian: Senator, what should listeners be prepared for come election night and possibly beyond? The swing state of Pennsylvania just won the right at the Supreme Court to count absentee ballots that are postmarked by Election Day, but received up to three days later. The swing state of Michigan wants to count ballots postmarked by Election Day, but received up to two weeks later. What are you anticipating?

Senator Murphy: You may have a situation in which Joe Biden can declare victory on election night. It may be that the polls and the number of in-person ballots counted by election night are sufficient for him to declare victory, but there may be states that can't come to a conclusion on election night. They will need a handful of days in order to deliver a result, and that's okay. We should just accept the fact that we may not know, on election night, who the victor is, and we should have the patience to make sure that we count all of the votes necessary to come to that conclusion.

There's no doubt that Donald Trump is going to try to play some dirty tricks if he thinks this isn't going his way. One of them may be an attempt to try to shut down the counting of votes if he thinks that that will advantage him. The [unintelligible 00:12:26] is not on his side. We just should make sure ahead of Election Day that we don't create an impression, an expectation, that we will certainly know the result that night. It may be that we will need a few days, and we should take those days if we need them.

Brian: We've got one minute left, any other election security issue you want to point to?

Senator Murphy: I just think it's also important to remind everybody about what the law is on voter intimidation, because Donald Trump and his surrogates are trying to try to encourage folks, I think, to come out to the polls and perhaps harass voters as a means to try to depress the vote. The Republican game plan right now is to try to get less people to vote.

Voter intimidation is already illegal. It's a felony in many states. We also have to create the expectations, in this country, that if you do turn out to the polls, with a gun or with an intent to try to stop people from voting, you're going to be locked up. That's illegal. You're going to face jail time. That word is got to be very clear, spread far and wide between today and Election Day.

Brian: Did you see the was a cop at a polling place with a Trump mask in Miami this week, in uniform?

Senator Murphy: Yes. I think we're going to have to be very nimble in how we make sure that there are absolutely no either overt or slightly more subtle efforts to intimidate voters at polling places.

Brian: Democratic Senator Chris Murphy from Connecticut. We always appreciate. I know our listeners in the whole tri-state area always appreciate when you come on. Thank you very much.

Senator Murphy: Thanks a lot.

Brian: Brian Lehrer on WNYC. Much more to come.

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