The panel on CNN’s "New Day" had a lively discussion Thursday about the future of the Supreme Court following the retirement of Justice Anthony Kennedy.
CNN senior legal analyst Jeffrey Toobin decried the influence of the Federalist Society on President Donald Trump’s judicial appointments, accusing the group of "eliminating even the possibility of any sort of gun control," and other extreme positions. While the Federalist Society does not take positions on particular legal issues, its executive vice president Leonard Leo has spoken out about the principle of originalist and textualist interpretation, and Toobin considers him dangerously right-wing.
"It is not just abortion, it is eliminating affirmative action, it is eliminating even the possibility of any sort of gun control ... The current view in the conservative legal world is you cannot regulate anything related to guns. Allowing greater use of the death penalty. Allowing religious people to exempt themselves for from the more and more government requirements," Toobin said.
CNN political analyst John Avlon agreed that these judges are there to advance an agenda, arguing "activist groups" have "hijacked" the process.
"Over even just the period of the last 40 years, you had a center-right Republican tradition. They were conservative, but like Kennedy, they weren't necessarily dogmatic," Avlon said. "And the Court and the national unity in the Court that the Court can reflect, depends on swing justices, and there used to be a lot of them that came from Republican presidents from Nixon on. That tradition seems to have been decimated, and it’s because activist groups have effectively hijacked or outsourced the process."
CNN political director David Chalian said Toobin’s passion would be enough to fire up the Democrats’ base but that it may not help given the fact Republicans hold the Senate and the White House.
Toobin repeated his claim that the Roe v. Wade decision granting constitutional protections to abortion would be overturned.
"John Roberts would prefer that the Court sort of go about its business in a quieter way, but too bad. That’s not the cases that come before the Supreme Court," Toobin added. "The activists who bring these cases are going to bring these cases and the Supreme Court can only duck so many of them."
"New Day" host John Berman said Sen. Majority Leader Mitch McConnell (R., Ky.) had "won" after getting rid of the judicial filibuster requiring 60 votes to confirm a nominee. That is how Justice Neil Gorsuch was confirmed in 2017, and it is highly likely to play out similarly because McConnell announced the Senate would vote on Kennedy's replacement this fall.
"Mitch McConnell—Cocaine Mitch, as he was referred to in West Virginia, is really Champagne Mitch this morning," Berman said. "He won. He won—there’s not even big enough three letters W-O-N to describe what he did here."
"So much for being the institutionalist that McConnell pretends to be here," Avlon said. "Let's just call the hypocrisy out. This is Cocaine and Champagne Mitch—he is a on a bender, the institutionalist argument is done, he gutted it the last time around and that’s what is going to make this next nominee possible."
"The strong do as they will, and the weak suffer as they must," Berman replied, quoting the Greek historian Thucydides. "Jeffrey, you’re nodding, I want to give you the last word here just to make you feel better."
"I feel fine," Toobin said.
"Chris Cuomo didn’t do any Thucydides," Toobin added, referring to Berman’s predecessor at "New Day" who now anchors CNN’s 9 p.m. show "Cuomo: Primetime."
"Because he’s the perfect example of the weak suffering as they must," Berman replied.
Toobin has been staunchly critical of Republican judicial appointments, accusing McConnell of stealing a Court seat from Obama nominee Merrick Garland and wanting to overturn precedents on abortion, affirmative action, and a host of other issues.