‘Trib Talk’: Will Utah ban abortion and same-sex marriage under the new Supreme Court?

(Evan Vucci | The Associated Press) Supreme Court nominee Brett Kavanaugh, right, meets with Sen. Orrin Hatch, R-Utah, on Capitol Hill, Wednesday, July 11, 2018, in Washington.

On this week’s episode of “Trib Talk,” reporter Benjamin Wood discusses the nomination of Brett Kavanuagh to the U.S. Supreme Court with Jason Perry, director of the University of Utah’s Hinckley Institute of Politics, and Michelle Quist, an attorney and Republican candidate for the Salt Lake County Council.

A lightly-edited transcription of their chat is included below.

Benjamin Wood: On Monday, President Donald Trump named Judge Brett Kavanaugh as his pick to replace Justice Anthony Kennedy on the U.S. Supreme Court.

But because Kennedy was seen as the key swing vote on the nine-member court, his successor is expected to cement a conservative majority and embolden challenges to judicial precedents on issues like abortion rights and same-sex marriage.

From The Salt Lake Tribune, this is “Trib Talk.”

I’m Benjamin Wood joined today by Jason Perry, director of the University of Utah’s Hinckley Institute of Politics, good morning Jason.

Jason Perry: Good morning

Wood: Also with us is attorney Michelle Quist, a candidate for the Salt Lake County Council, Michelle thanks for being with us today.

Quist: You’re welcome, good to be here.

Wood: So Monday we got the name, Brett Kavanaugh, from President Trump. I’m curious just first reactions that you guys had after hearing the appointee.

Quist: I was disappointed it wasn’t Amy Barrett, Judge Barrett.

Wood: And why?

Quist: Because she’s a woman, honestly. And because I want to see a Republican [president] nominate a woman. I want to see President Trump nominate a woman, and I don’t think that choice is over yet, or that chance.

Wood: You think he might get another pick?

Quist: Yeah. I do. It’s two more years.

Wood: At least.

Quist: Yeah. We’re going one per year so far here.

Wood: Jason, what was your first reaction?

Perry: Well, the candidates — except for what Michelle just said, which is right, which many of us were thinking the balance there on gender would be very important to look at, so I was looking for that — but in terms of the other candidates on the list it’s like a lot of the same sorts of people. It’s not hugely surprising. It was going to be a conservative and someone familiar with D.C.

I think the thing that was interesting about it is you’ve got someone here that has not just experience in D.C. but has experience looking into political people, really, investigating particularly democrats, which is his experience.

Quist: Right.

Perry: So I think that’s interesting. But this is a very typical sort of recommendation, I think.

Quist: Yeah. He was on Whitewater, he was appointed originally by Bush. He served in the appellate court in D.C. for 12 years. So he’s, really he’s a judge’s judge. He’s very respected among the judiciary and I think most people expected him sooner or later.

What I think is interesting is that now we have two Kennedy clerks on the court. I’m waiting to see what that means for the court.

Perry: Well that’s a very interesting point in my mind, because Reagan appointed Kennedy, but Kennedy became a swing vote on the court. Right? He was appointed by a Republican but over the years, that’s what we’ve seen.

Quist: Yeah, right.

Perry: He could go either way on a couple of these key issues.

Quist: Not as bad as [Daivd] Souter, who was also appointed by a Republican.

Perry: That’s a great point. So you look at the last appointee, with [Neil] Gorsuch right? He’s replacing a conservative. Say “All right, we’re going to get a conservative.” But this is interesting, I think, because it could really tilt the court in some way because you have a conservative replacing a swing vote.

I think that’s why people are so interested in this one right here, because it really could change the makeup of the court.

Quist: Right.

Wood: And particularly when we look at the decision where Justice Kennedy was that swing vote, where he sided with what we would call the liberal bloc on the court. We have Obergefell with same-sex marriage, we have Roe v. Wade, of course, which has been reaffirmed the last time…well, throughout the years it’s been reaffirmed.

Much of this appointee, there’s been talk about what this means for abortion rights and same-sex marriage rights. Michelle maybe to start with you, there’s been a lot of talk about how this is the end of Roe v. Wade as we know it. I’m curious if you think that’s accurate or what you expect to see?

Quist: I don’t think it’s the end of Roe V. Wade. One, I think it’s kind of out of the box by now. It’s hard to pack that back in.

Two, when he was asked this question in his hearings for the circuit he said “I don’t think it would be appropriate to give a personal view on that case.” But he did say he would uphold precedent. In the Hobby Lobby case, he used a comment that said “access to contraception is still a right that we need to look for and protect.”

So I don’t think necessarily he’s going to come out on these issues exactly where liberals are saying that he will.

Wood: We’ve seen, in recent years, attempts to carve away at Roe v. Wade. Conservative states imposing restrictions, waiting periods, facility restrictions that have limited the number of abortion clinics. Could we maybe see those efforts emboldened by a new court?

Quist: I think so. I think it would be that kind of a hit. Not a hit, but…

Wood: Kind of a death by a thousand cuts.

Quist: Yeah. Or a federalism argument where the states end up being the ones who legalize it or not.

Perry: It’s an interesting question about what happens with Roe v. Wade because I’ll tell you right now, this is going to be the tagline all the way through the end. Is this what he’s going to do? The court tilts to become more conservative, and I guess this middle ground has been found with the feds to make sure this is a protected right but the states still have the chance to get involved. I think it’s going to be very unlikely that Roe v. Wade gets completely disrupted.

Michelle, I think, is right that we could see this thing picked at at the edges in some kind of way. But I’ll tell you what I think is interesting, because everyone is going to ask him about it right? When we go through these confirmation proceedings, and I can virtually guarantee having watched a bunch of these, sat through some of them personally, it’s unlikely he’s going to answer a question and say…

Wood: “I will overturn Roe v. Wade.”

Perry: That’s just not going to happen.

Quist: Right

Perry: In fact, you’re going to see how good he is by how little he says about how he will rule on issues just like that.

Quist: And appropriately. Because if he says how he’s going to rule then he’ll have to recuse himself.

Perry: He would. Every answer is going to end by “it depends on the facts before me. Precedent is very important and I’m not going to speculate on endless hypotheticals.”

Quist: Right.

Perry: Something like that.

Quist: I’m sure they’ll ask him about the case in the D.C. circuit where the undocumented teen was trying for an abortion. And he voted no against that because, not necessarily because of the abortion rights but because he didn’t want to create the new right to abortion, of government-funded abortion, for undocumented citizens.

Wood: And he authored a dissent in that case if I recall, where he kind of outlined his argument.

Quist: Yes.

Wood: I would expect that…

Quist: They’re going to ask him about it.

Wood: Yeah, that will be coming up, we can expect.

Let’s talk about Utah a little bit. We’ve seen some of these attempts here. In 1991 the state passed an abortion ban except in cases of rape, incest or threat of health to the child and mother. And again last year, we saw a bill that would have banned abortions if the sole motivating purpose was a pre-natal diagnosis of Down syndrome.

The sponsor, Rep. Lisonbee, has told The Tribune that she intends to refile that bill. So again, we may see some of these attempts, even from Utah, to chip away at abortion rights. I remember Michelle, you were skeptical of that bill last year.

Quist: I was. I think it would be unconstitutional under any future precedent that the Supreme Court comes out with. It’s just a weird bill. It’s a message bill.

Wood: And what else? I’m just trying to get a sense of what other attempts we might see, that perhaps don’t go to the heart of Roe v. Wade, but maybe go to the limbs and the extremities.

Quist: I think deadlines, or third-trimester or late-trimester. I think we will still see these kind of state regulatory actions, maybe parental authority or those types of things that the cases have already gone through the court. But I don’t think Roe v. Wade is suspect.

Perry: I don’t think it’s in danger either. The state sometimes gets into issues about informing, requirements on watching a video or reading some materials, understanding the process itself and some waiting. Those seem to be the ways our Legislature approaches regulation of this.

Quist: Right and they passed that — did it pass? — they introduced it this year anyway. That was Sen. Weiler’s bill.

Perry: Yeah, Sen. Todd Weiler.

Wood: Yeah I’ll have to go back, I believe it did pass, or at least some version of it passed I believe.

[Editor’s note: SB118, sponsored by Sen. Todd Weiler, R-Woods Cross, was approved in March. The bill requires women who are considering an abortion to first complete an informational module that discourages the procedure. The law is an update to previous requirements that included the reading of a brochure and viewing of a 1980s-era informational video.]

Let’s talk a little about Obergefell, that obviously a much more recent case but a pivotal one where Justice Kennedy wrote the majority decision. I’m, personally, not seeing as much talk about overturning that, but that sentiment certainly exists out there. Should we expect to see challenges to marriage rights coming forward now.

And again, challenges, who knows if they’d be successful or not. But would this pick embolden those who would like to see those rights peeled back.

Quist: I think it would be similarly attacked on other fronts like religious liberty, like the cake case we just had, Masterpiece [Cakeshop]. That case was decided for the baker, but on very narrow grounds. I could see the court broadening the grounds, where…

Wood: That religious objection argument?

Quist: Yes, is upheld.

Wood: Any thoughts there Jason?

Perry: We could see that. What’s interesting about questions like this is, there are infinite numbers of possibilities of things that could get to them. We always wonder where there’s a chance where you get the question “Do I have to bake a cake?” Right? It finally got there, and we have that answer.

So I think there are numerous “Do I have to bake a cake?” kind of questions that we’ll see, which is why when you start talking about the Supreme Court nominee, it’s really hard on a case-by-case basis to even say. You have to say “What is this person’s filter when they hear these cases?” And I think, in all of these and the numerous ways they’re going to get to the Supreme Court, the filter will be more conservative. So insert those things into those questions your asking about.

So I think, yes, it’s possible that those religious freedom sorts of things become maybe elevated in this filter.

Quist: Right. And you have to remember that for a Supreme Court case to reach the Supreme Court, circuits have to split on the issue. If you’re going to get a Roe v. Wade straight-subject case up to the Supreme Court, you’ve got to have a circuit court that’s going to go against Supreme Court precedent, and that just doesn’t happen.

Wood: That sets up nicely what I wanted to ask next. When Anthony Kennedy was confirmed, it’s not as if he came out and said “I will be a swing vote.” It just so happened that the particular cases that reached him, he voted the way that he did.

So I’m curious as we talk about this potential future member of the Supreme Court, to what degree can we even divine what his role on the court will be?

Perry: So I tell you, you can’t.

Quist: Yeah, to zero degree.

Wood: Right, quite simply, we just don’t know.

Perry: Yeah, you can’t. You look at Kennedy to understand that, but it gets to a fundamental interesting question for Utahns, because that is who I talk to but I know across the country as well is, when President Trump was elected and I talked to people in Utah about why they voted for him, the Supreme Court nominee was really, really high on the list. In fact for many, it was the highest. They said “I’m not sure about him necessarily, but that’s four years, maybe eight, but this is a 40-year appointment, maybe more.” So there’s no way to say where they’ll go but there is a pledge from President Trump to people saying “I will appoint conservative judges.”

So even though we can’t see it, we have 300 cases right? We can look at 300 cases that Kavanaugh has decided. And I predict he says very little more about that in the proceedings.

Quist: Right

Wood: It’s interesting, and, Michelle, you kind of alluded to this, but the role of precedent in these cases. I’ve heard some talk that perhaps Chief Justice John Roberts might find himself becoming that moderatizing element to support precedent. As an attorney, I’m hoping you can maybe describe for those of us who are not attorneys what the gravity of precedent is in cases.

Quist: It’s the base. It’s everything. You can’t make a decision until you determine what the precedent is. What was decided before. It’s the job of an appellate court.

In a trial court, you use facts. You use stories. You persuade the judge or the jury based on fact. In an appellate court, you’re talking about law only. You’re talking about what the policy makers meant or what the courts think the policy makers meant. And that’s where you start. It’s box one.

Perry: It really is. So I’m a lawyer also, so I’ve had to work on some of these issues of precedent and it is important. This is what people argue about. When it comes to it, that really is in most of the time by my experience, the starting place. Should we veer from precedent? Well, it depends on the facts of the case. Is some kind of surge result coming about from this particular thing as it pertains to the facts of this case?

So there are a lot of things that have to happen before the Supreme Court even gets to one of these things. There has to be a split and there has to be some kind of difference in terms of the facts themselves, that make them need to address it.

Quist: I think we also should remember that Justice Kennedy became a swing vote not on most issues. He voted very conservatively and mostly with the other conservative justices. But on these few social issues, he was a swing vote. And I think we can see that because a lot of conservatives are, not necessarily moving middle, but libertarianism is really taking hold of the conservative party. It’s this idea that, socially, take care of yourself but, for the government, let’s make sure they kind of stay out of our lives.

I could see that in new appointments happening, when people see them saying we’re a swing vote or we’re going to go toward the liberal side. It’s social issues.

Wood: Let’s talk about the political fight that we are all-but-assured to experience in the very near future.

Perry: Oh yeah.

Wood: We have a razor-thin majority in the Senate, which has the responsibility of considering these appointees. With the majority being so slim is there any doubt that Judge Kavanaugh will be appointed to the Supreme Court?

Perry: We should talk about the numbers. We have 51 Republicans, right?

Wood: I was hoping you would.

Perry: Yeah, 51 Republicans. And because of some maneuvering from the Democrats before, all you need is a simple majority for the Supreme Court nominee to be approved.

Wood: Right, the 60-vote threshold is gone with the wind.

Perry: It’s not there any more. The nuclear option happened already so now it’s a simple majority. Right? So that’s what we need. So you starting taking a look at it. Even if [Sen. John] McCain is not able to show up and vote, you’ve got your 50. So you start looking at what happens to your next election and there are a few people posturing. You’ve got Murkoswki and Collins, two female senators who are looking at this very closely, caring about the questions you’ve asked before for their districts as well. You say you probably can keep them and if that’s the case, they don’t even need a single Democrat to vote for this to happen.

So I think it’s a high likelihood that they’re able to get the votes. But this is right before an election, in November when this is going to happen. So even if that’s the case, the Democrats are going to make a whole lot of it.

Quist: Yeah, I think there’s always a chance now that something happens and these things don’t pass. It shows the close-sightedness — is that a word? As opposed to far-sightedness — of the Democrats’ maneuver to use the nuclear option over Justice Gorsuch who was replacing Justice Scalia, as opposed to now somebody who is replacing what most people consider the swing vote Justice Kennedy.

It would have been a lot harder for Republicans to go to a 51-49 majority vote over this vote. But they’ve already done it so it’s over.

Perry: Michelle is right about that. I thought it was funny, [Sen.] Schumer’s statement, “I will oppose Judge Kavanaugh’s nomination with everything I have.” And what he has is a few votes.

Wood: Yeah, he’s got 48 friends.

Quist: Luckily Sen. Hatch is also using everything that he has to make sure that it passes. So we’ve got lots of feelings.

Wood: And of course, Sen. Hatch has one more friend in the Senate than Sen. Schumer has.

Perry: He does. And he’s been part of the process of every single member of the Supreme Court now.

Quist: Yeah.

Perry: Because he’s been there for a little while.

Wood: Oh that’s, yeah, that’s something to think about.

Perry: Every single person there has gone through the Hatch…

Wood: Gauntlet?

Perry: Gauntlet. That’s true and he protects many.

Quist: And what will it be like next year? How will it be different?

Wood: And of course I want to circle back to that. You raised this specter of a third Trump pick. He does have two more years in his term and the potential for another four years. Our first pick was a conservative replacing a conservative. We now have a conservative replacing a swing vote. I get somewhat of a stomach ache even thinking of the political fight of a conservative replacing one of the liberal justices. But what does the future look like if there is a third Trump pick.

Quist: Yeah there’s going to be even more animosity over that. It’s scary for them.

Wood: As I imagine it would be scary for conservatives in the reverse scenario.

Quist: Right.

Wood: Like when Barack Obama almost appointed Merrick Garland.

Quist: Let’s not get into that.

Wood: Why not Michelle?

Quist: Which is why we ended up with Trump, because they were thinking Supreme Court picks. Not get into Merrick Garland because it’s such a procedural issue. I get the idea that the seat was stolen, but it wasn’t procedurally. It’s just an argument that has a lot of feelings behind it and not a lot of definitive answers.

You can’t say that the seat was stolen, because you can’t appoint without the Senate’s confirmation. But it was a low-blow to not even let him have a confirmation hearing.

Wood: So perhaps not stolen but still, maybe, dirty pool?

Quist: For sure. It’s politics.

Wood: Yeah.

Perry: Which is the interesting thing about a Supreme Court nominee, right? This is the third branch. This is the independent branch. They get to look at the laws that are passed, say what they are, and it’s interesting that everything we talk about is in terms of a political lens on these particular folks. Because the idea is, we understand their filter and their approach. But in the end, their loyalty is to the Constitution of the United States, more than any political party.

Quist: And most judges really believe that. And try to instill that in their decisions.

Perry: That’s my experience also. It’s true, this is how I approach a question, when I hear a set of facts, this is how I process this, and the end is supposed to be beyond politics. In the end those decisions tend to fall along those kinds of lines. At least in how they impact us, some Republicans are going to love it, some Democrats are going to hate it. That’s kind of just where we are in the system.

Quist: Right, it’s all very typical, which is why I would love for the Republican president to nominate somebody who is atypical, like Judge Barrett. Change the narrative a little bit. And she just went through the confirmation process less than a year ago. So it’s pretty close in everyone’s minds. Judge Kavanaugh has been a judge for 12 years and we’re going to go and unpack 12 years-worth of opinions.

Wood: And with a lot of Washington experience prior to that 12 years.

Quist: Yes.

Wood: He’s deeply embedded in all things political.

I’m curious on that Michelle, even if the Democrats were somehow successful in blocking this appointee, of course there would just be another after the election, before the election. This hole in the court is not going away any time soon. So I’m curious if you might elaborate on that. As long as you’ve got a runway…

Quist: Justice Kennedy is the result of a failed nomination. If you’re going to say that Merrick Garland’s seat was stolen, you’re going to say this is [Robert] Bork’s seat. He was originally nominated for this seat and was not confirmed by the Senate and then they had to re-appoint somebody who was less…

Wood: Objectionable? I’m not sure what the word would be either.

Quist: Less.

Wood: Yeah, “less”.

Quist: He was less, less excitable. I just think it’s the process now. But I think there’s names behind names and we’ve got 51 senators, Republicans have 51 senators, and I think they’re going to eventually get somebody confirmed.

Perry: I think that’s true and you brought up a great, interesting bit of history there too. I would say you go back to those Bork hearings.

Quist: It’s a verb now, when you “Borked.”

Perry: Yeah, it’s become that. And that is when, as you kind of look at it, maybe it’s always been, but I can see that’s one of those points in our history when we stopped understanding where these people are really coming from. Right? After those hearings, it’s become sort of skill. How well can I answer questions without saying anything? I would trace it back to that mostly.

So when you say “Where will these people stand on issues?” Who knows? They’re not going to say because they all remember when someone got borked, using your word right there. That’s what is just so interesting about it. If Kavanaugh’s not selected, Trump is still there. It will be another Kavanaugh sort of person.

Quist: That’s why we’re seeing so much assumption from somebody’s religious background, like Judge Barrett’s. She’s Catholic, she’s a strong Catholic. So people are assuming where her opinions would come out on things like abortion. Because judges won’t answer the questions, appropriately, and so we’ve got to somehow put the words in their mouths so we can denounce them that way.

Wood: Perhaps, and correct me if I’m wrong, but it almost sounds like we’re saying it’s less predictable what a Kavanaugh court will decide on issues than it is to predict how state legislatures might react to a new member of The Supreme Court. It seems like the fights that we’ve been having, we might have them again and just see what makes it to the top.

Quist: I could see that. Definitely. You need a case that differs from other circuit cases. You need an open and live confrontation.

Perry: Yeah. We’ll see a lot of those. As we get into these hearings, the thing that I’ll be looking for, for whatever it’s worth, is the approach. What legislatures all across the country care about is this, are they going to be activists in some way. Right? That’s where even the members of Congress are going to go.

Wood: And what will they be activists for?

Perry: Yeah. And the answer for almost all judges is “No. I don’t decide how to write the law, necessarily. I decide what the law is, based on what you tell me. I won’t just decide for myself what I think it should be.” They’re all going to say that.

Quist: Right. Of course.

Perry: The questions are going to probe around that question a little bit. If I can’t really understand how you’ll vote on something, can I get some kind of idea about how you will defer to us as lawmakers. That will give a hint.

Quist: And the strong thing about Judge Kavanaugh is that he is really known for being able to listen to arguments that he doesn’t agree with, or to have good conversations, civil conversations, about things that he differs from other people.

Wood: To come back to Utah for a last topic, Sen. Mike Lee was in the running. He’s on President Trump’s shortlist. I’m already seeing some skepticism from you both. If you were to guess at what the line of succession looks like on the Trump nominee list, how many openings might we need before Mike Lee gets the pick?

Quist: Well, [Utah Supreme Court] Justice Tom Lee, his brother, was also on the list. I think because Gorsuch was just chosen from the West, that it’s not likely that we’ll get another western scholar. He definitely is a scholar, Sen. Lee. He’s not a judge, hasn’t been. So he’s probably pretty far down on the list. But he’s still on the list, which makes a difference.

Perry: I don’t know if any of us were on the list.

Quist: I would love to be on the list.

Wood: Yeah, he’s higher than me on the list. That’s for sure.

Perry: Wherever he is, higher than us. So it’s something to be on the list at all.

Wood: For sure.

Perry: And it is significant for Utah. Whether their chances were high or low, two people were on a list that is said to exist, which is kind of a big deal.

Wood: And perhaps, I mean currently probably the most elite list there is in the judicial side of things.

Perry: For the people I know in the legal community, if you’re on a top 25 — let’s just say that, top 25 — that’s a huge thing.

Quist: Yeah, in the nation, to be able to be thought of as a candidate for the Supreme Court.

Perry: Yeah, that’s kind of a big deal in those circles. And so whether they were high or low on the list, we’ll see if we get there.

Wood: It’s an honor to be nominated?

Perry: Yeah, it’s like the Academy Awards.

Quist: I volunteer to be last on the list. I’m available.

Wood: Sure, yeah I’ll be 26 for the rest of my life if they want. Well Jason Perry, Michelle Quist, thank you both for joining us today.

Quist: Thank you.

Perry: Thank you.

Wood: “Trib Talk” is produced by Sara Weber, with additional editing by Dan Harrie. Special thanks to Smangarang for the theme music to this week’s episode. We welcome your comments and feedback on sltrib.com, or you can send emails to tribtalk@sltrib.com. You can also tweet to me @BjaminWood or to the show @TribTalk on Twitter.

We’ll be back next week, thanks for listening.