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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. Before we get going today with our first guest, NPR's Nina Totenberg, I just want to briefly mention that this is day one of our annual Fall Membership Drive, and because of the amount of news and the seriousness of the news this fall, we are doing a shorter drive than we usually we do in October. It'll just be today through Friday.

Usually we would go through the weekend and into about half of next week, but we don't want to impede the election coverage that much and of all the local coronavirus information, or with all the local coronavirus information, we're trying to keep you abreast of, we don't think it's right to interrupt that much either, so we have shortened the drive.

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If we can raise $700,000 total from everyone today, the Philanthropy of Craig Newmark, who made his money by starting Craigslist, and now is very generous to journalism and journalism education, the Craig Newmark Philanthropy will donate another $100,000.

If you can help us meet that goal with however small a donation you would like to make, you can do that now on our website at wnyc.org or on the phone at 888-376-WNYC, that's 888-376-9692. Thank you, Newmark Foundation for helping us shorten the drive, and to all of you listening right now, thank you so much for considering helping us meet this challenge. On the website at wnyc.org or on the phone at 888-376-WNYC, 888-376-9692. Thank you so much.

Now, we are delighted that NPR's legal affairs correspondent, Nina Totenberg, is giving us some time this morning just for WNYC out of the hundreds of stations in the NPR system, and of course a busy week that will probably see the Senate Judiciary Committee vote on Amy Coney Barrett on Thursday. We will be hooked up with Nina here in just a second. In the meantime, I want to play a clip of Judge Barrett from her confirmation hearings and other recent statements that she has made to the effect that she has identified herself with the judicial philosophy of the late Justice Antonin Scalia.

Amy Coney Barrett: I want to be careful to say that if I'm confirmed, you would not be getting Justice Scalia, you would be getting Justice Barrett.

Brian: With that as prelude, Nina, we're so grateful that you could give us some time today. Welcome back to WNYC.

Nina Totenberg: Thank you. My pleasure.

Brian: Is the schedule that I mentioned before you came on still the schedule, and are Democrats resigned to a Thursday Senate Judiciary Committee vote for Amy Coney Barrett as a fait accompli?

Nina: Well, the answer to that is yes, but I can't honestly say that they're resigned to it, they don't have any choice in the matter, they don't control the Senate.

Brian: Right. I just played a clip that you cited in your NPR reporting in which Judge Barrett acknowledged that she has identified herself with the judicial philosophy of the late Justice Antonin Scalia, but says, "You're not going to get Justice Scalia, you're going to get Justice Barrett." After listening to the confirmation hearings last week, do you get any sense of differences in whatever direction we might see between Justice Scalia and if we get a Justice Barrett?

Nina: Well, you really can't be sure. It might be that you get a justice who's considerably more conservative than Justice Scalia. Justice Scalia, after all, served in government for quite a while as a younger lawyer and was head of the Office of Legal Counsel, advising the president on presidential powers, and although he over time got, I would say, more dubious about agency regulations, he still was willing to defer to them in many cases.

He was, as he put it, a weak-kneed originalist in the sense that he understood that more than 250 years had passed since the founding of the republic and that you couldn't entirely go back to the way it was at the beginning. He was a believer in following precedent where he could. There were times, of course, he, like any other justice was willing to overturn precedent and perhaps even more times.

I would say that his biggest dissents were when other justices, liberals and moderate conservatives expanded protections for individuals under the constitution. He would object to those, for example, in same-sex marriage or abortion rights and he continued to object to those expansions. Justice Barrett, one suspects, may be more conservative than he is. However, her writing, her academic writing at least was not particularly embracing of the idea of following precedent.

Brian: Interesting. Here's an exchange you mentioned in your reporting last week. Democrats press Judge Barrett on the Affordable Care Act, a.k.a. Obamacare, because the challenge to it is coming before the court next month, so that would be one of the first things that she would actually get to sit-

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-in hearings on and then rule on if she's confirmed. That's a very nice ringtone you've got.

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Nina: I think it was your people, even. [laughs]

Brian: Oh, is that right? Sorry about that.

Nina: I think so. [laughs]

Brian: Even knowing Obamacare was in play, Barrett had publicly questioned its constitutionality, which led Senator Amy Klobuchar to ask Judge Barrett this.

Amy Klobuchar: My question is simply, were you aware of President Trump's opposition to the Affordable Care Act during that time?

Amy Coney Barrett: Senator Klobuchar, I have no idea, and again, I want to stress I have no animus to or agenda for the Affordable Care Act. To the extent you're suggesting this was like an open letter to President Trump, it was not.

Brian: Nina, can you explain, what was it that Judge Barrett had written about the Affordable Care Act that prompted Senator Klobuchar to ask that question?

Nina: Well, there have been two decisions by the Supreme Court upholding Obamacare, and a third one that was not a direct challenge to Obamacare that was actually brought by insurance companies that wanted to get paid what they thought they'd been promised to get paid, and they won. The other two were the original challenge which challenged a whole bunch of provisions in the Affordable Care Act from the so-called mandate to the expansion under Medicaid. The court struck down the mandatory expansion under Medicaid but left intact the ability of states to sign on to Medicaid.

Some, even red states, have ultimately done that because they considered it a good deal and a way to get more health coverage for their poorer constituents. The mandate got zeroed out by the Republican Congress under President Trump, so they didn't get rid of the mandate, they simply said you don't have to pay it.

In both of those cases though, the earlier cases, Barrett disagreed with the reasoning of the chief justice who wrote both opinions, and both opinions in 2012 and then one a few years later, one upheld the mandate as a tax and under the taxing power of Congress, and the other didn't agree with the challenger's interpretation of the statute, which would have gotten rid of the federal government subsidy to come when they came in to replace the state that didn't want to set up a system under Obamacare. Both those decisions, the reasoning of the chief justice was questioned by Judge Barrett in her academic writings and in her appearances.

You have to assume that had she been on the court, she would have been among the dissenters. The first case was a five-four case. The second case interpreting the statute was six to three. You have to assume that she would have been a fifth vote to strike down the mandate and also there would have been, if you do the math, there probably would have been at least five votes to interpret this statute differently.

She has a track record here that's very critical of the chief justice's reasoning and the court's reasoning in those cases and you have to assume that had she been there, there would be no Obamacare. Now comes a third case with very different questions, such different questions that Paul Clement, who was solicitor general in the Bush administration and who challenged the Affordable Care Act on behalf of the National Federation of Independent Business. He represented the challengers in the Supreme Court in 2012 and he lost.

This year, he said the arguments that he made back then he thought were pretty good, but that they were a stretch to do it today after the law has been on the books for so long. He was very doubtful that the court should or would strike down, take a different position than it had taken before and on these questions and then in a very tech-- The third question is technical and we shouldn't bother to go through it all here, but he thought it was a stretch. The whole case was a stretch.

Brian: That brings us to a question that Judge Barrett would have to face if she's confirmed whether to recuse herself on issues directly involving the president who nominated her and or on which she's taken a public position. For example, Trump explicitly said he wants his nominee confirmed quickly in the event there was a lawsuit related to who won the election. Judge Barrett said, "Of course I've never spoken to the president about anything like that," but here we might be. What does history suggests the standard for recusal has been if there has been anything remotely parallel to what we might be facing soon on election cases?

Nina: I don't actually know if you go back zillions of years, but I know that she has no obligation to recuse under the ethical standards as they're now written for judges in the United States. Lots of times, new justices and old justices have taken positions before and they do not recuse themselves just because they took a position on an issue, so because she took a position on an issue in Obamacare does not obligate her to recuse herself any more than it would obligate a member of the court to recuse him or herself because they took a position on an issue on Obamacare in previous cases.

This is simply not something that the ethical standards require. The same thing is probably true in the election case. In the election case I think at least you could make an argument if you're a new justice if you wanted to, that you're on the court and you don't want there to be the appearance that you have a conflict. There is absolutely no reason she has to recuse.

She's not taking a position on any-- She has no relatives, friends, former associates who were directly involved in, for example, election cases. Even if her friends were lawyers, as long as they weren't her husband, her children, she's not obligated to recuse. The only reason to do it is to start off your career doing something that makes you look very impartial and that is totally up to her discretion.

Brian: That's really interesting as a lesson for a lot of our listeners in how high the bar for a recusal is and yet at the end of your answer, how image-related it could wind up being if she were to decide to do it for that reason she could. Listeners, if you're just joining us, we have a few minutes left with NPR Legal Affairs Correspondent, Nina Totenberg on this week on which we expect, probably Thursday, the Senate Judiciary Committee to vote on the confirmation of Judge Amy Coney Barrett to sit on the Supreme Court.

Nina, I don't know if this is on your beat or not, but have you been following the election legal battles enough to have a sense of what to anticipate? What kind of scenario like Bush versus Gore in 2000 which Amy Coney Barrett was actually involved in on the Bush side, of course, or something entirely different that could make the Supreme Court a deciding body in any way on Biden versus Trump.

Nina: The numbers of potential issues are so enormous that you can't anticipate them all. We know, for example, there's a battle in lots of States over absentee ballots and what are the requirements on absentee ballots and whether the postal dates that have to be posted before the ballot is counted and it all involves state law. You know for the moment in Texas, the governor has, for example, ordered that there be only one drop box for absentee ballots, if you don't want to post them only one drop box per county.

That means in a city like Houston, which has millions of voters, there's one drop box. It's working it's way up to the Supreme Court and I don't know what they'll do, but let's assume it's not decided before the election. That is the kind of the case you could get in front of the Supreme Court. The court has a principle called the Purcell Principle, which basically says, "We don't like interfering in state election rules close to an election."

The definition of close to election, of course, varies from moment-to-moment as far as I can tell, but it's based on the principle that you don't want rules fluctuating just before the election. You want that some rule is better than no rule. You don't want total pandemonium and chaos and confusion, but after the election, you can say that that rule is discriminatory or you can say that that rule defied federal law or state law. The numbers of potential cases in each state are huge if it's close.

If Florida or Ohio goes for Biden, let's say, and goes overwhelmingly for Biden and it's not much of a question, I think both of those states actually count their absentee ballots and report them on election day. I think we'll know, we'll have a better idea of what the margin is of whether Trump wins or Biden wins, how close it will be and I think it probably would take a big margin for there not to be contested ballots and balloting in important states. That means that if it's a close election, there's going to be a fight and it's probably going to make its way to the Supreme Court or multiple fights.

Brian: It's fascinating. There are so many moving parts and you've identified something that we're going to be watching very closely on election night. That is the states that count their absentee ballots and have those numbers ready to release on election night, as opposed to those that have different rules and won't count them until election day is completed.

That's going to do a lot, I think, to determine whether this goes on for days or weeks or whether we actually know on November 4th who the next president is going to be. We're almost out of time. I want to ask you one very big-picture question as we get all this partisan combat over Supreme Court nominees, the judges all say their philosophies aren't about political views or policy issues. We certainly heard that from Amy Coney Barrett repeatedly last week, that they're about approaches to the Constitution, but then when you look at it, originalist or textualist justices like Scalia wind up with rulings that are good for gun rights, bad for gay rights, bad for abortion rights, voting rights, the Affordable Care Act and on and on, and vice versa from the other side. What's the difference, really, between judicial philosophy and policy?

Nina: This is what they would tell you is that one is partisan and the other is ideological. Gun rights after all, according to the Supreme Court now, individual gun rights are in the Constitution, they would say same-sex marriage and abortion rights are not in the Constitution, end the subject. I don't think it's necessarily a question of helping or hurting either party, but at any time in history and probably 75 years, the court and it's nominees and it's judges, justices reflect the ideology of the president who appointed them. I think that's come because particularly Republicans, but Democrats too, increasingly pick people who have served on lower courts and you can tell what their views are.

The views of the Republican Party have gotten more and more and more conservative, to the point that there are now, I would venture to say, with the appointment of justice Barrett, unless something dramatic happens that I don't anticipate, that there are six very, very conservative justices. Even if one of them flakes off in an individual case, it doesn't matter, there's still five, it's still a majority.

We're going to see a court, I think, that's more conservative than anything since we've seen in the 1930s, and we could see potentially massive changes in interpretations of everything from the structure of the federal government and it's powers to gun rights and expansions of gun rights and overturning, I don't think you'll see same-sex marriage overturned, but that's probably the limit of it.

On the basis of the First Amendment guarantee of the free exercise of religion, you could see gay rights starting to be undermined by people who assert their rights to discriminate against them based on their religious beliefs.

Brian: Well, you've made it very clear and I think it's going to be one of the biggest things to look at. If Amy Coney Barrett is confirmed to the Supreme Court that she doesn't have the respect for precedent that even Justice Scalia had, so we will see what happens. Nina Totenberg, NPR Legal Affairs Correspondent, thank you so much for giving us some time today. Long may you cover the court.

Nina: [laughs] Thank you, from your lips to God's ears. Bye.

Brian: Bye bye.

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