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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. After we've been listening to live coverage of the casket of Supreme Court Justice Ruth Bader Ginsburg being placed in the US Capitol's National Statuary Hall to lie in state and the short ceremony that went with that after it lied in state at the Supreme Court the last two days, Justice Ginsburg, as you've been hearing, is the first woman to be given that honor in that way, "lying in state" as they call it.

We will note that civil rights icon Rosa Parks was given what they call a lying in honor tribute there in Statuary Hall in 2005. We'll also note that Justice Ginsburg, I only learned this this morning, was the first Jewish person ever to be given the lying in state at the Capitol honor. President Trump and Vice President Pence were among those who paid tribute to Justice Ginsburg at the Supreme Court site this week. Joe Biden and Kamala Harris were both at the Capitol for what we just heard.

Now, tomorrow, Saturday at five o'clock, Eastern Time, President Trump is scheduled to name his nominee to succeed Justice Ginsburg. Very controversial as you know, given the Republican Senate's refusal to hold confirmation hearings on President Obama's nominee in February 2016 after Justice Scalia died because they said it was an election year and the people should decide nine months later.

Who gets to make that next appointment? Here we are on September 25th and they're doing the opposite this year. The President says his nominee will be a woman. Now, listeners, program note. We have our weekly Ask the Mayor segment coming up at 11:05 with Mayor Bill de Blasio. Please hold your mayor calls till the eleven o'clock news. Right now, Washington Post correspondent Seung Min Kim covering the White House and Supreme Court nomination process. She joins us from DC. Seung Min, welcome back to WNYC.

Seung Min Kim: Hi, thanks for having me

Brian: Five o'clock tomorrow, are they leaking yet who it's going to be?

Seung Min: Well, it's pretty much all but clear at this point borrowing some major last-minute development, which were, of course, in the Trump presidency, we will never rule out. It looks like President Trump's Supreme Court nominee will be Judge Amy Coney Barrett of the Seventh Circuit Court of Appeals. She was a finalist in the consideration and the deliberations for filling Justice Anthony Kennedy's seat two years ago, the seat that ultimately went to now-Justice Brett Kavanaugh, but she does seem to be the overwhelming favorite.

According to our reporting this week, she is the favorite of senior White House officials such as White House Chief of Staff Mark Meadows, White House Counsel Pat Cipollone. She was at the White House twice this week meeting with the President. Our sources tell us that the interview went well. Another finalist who had been talked about as a potential replacement for Justice Ginsburg, Judge Barbara Lagoa of the 11th Circuit Court of Appeals. The White House and the President are not even meeting or not even planning on meeting with her or interviewing her at this point. That's a pretty clear signal that the President is preparing to unveil Judge Amy Coney Barrett as his Supreme Court nominee tomorrow afternoon.

Brian: What makes Judge Amy Coney Barrett so high on their list?

Seung Min: She had been eyed as this rising star and definitely on the shortlist of potential Supreme Court justices for some time. She has already been confirmed to her current position. It was pretty much a party-line vote when that vote occurred, but she did get three Democrats in support of her nomination. One is no longer in the Senate, but she really attracted the eye of the base and social conservatives because she had a pretty brutal confirmation hearing.

A lot of these Circuit Court confirmation hearings are pretty much pro forma. Democrats and Republicans don't ask too many tough questions of the nominee just because of the sheer number of nominations they have to process. This is a hearing where Judge Barrett's personal Catholic faith got into the focus. Democrats who led the questioning on that end really got a lot of backlash for that. The way that Judge Barrett handled those questions really made her almost this rising star, almost an icon among the right.

I think that's why she's been on the shortlist for some time. She was a well-regarded professor at the University of Notre Dame. Also, the President had made it clear that he was going to nominate a woman for the Ginsburg vacancy. Reporting shows as far back to 2018 when she was considered a finalist for the Kennedy vacancy that President Trump was kind of "saving" her if there ever were Ginsburg vacancy. Now, we are and it looks all but assured that he would be announcing Judge Barrett tomorrow night.

Brian: I'm reading from Yahoo! News, an article about Amy Coney Barrett. It says during her tenure as a law professor at the University of Notre Dame Law School, a private Catholic university in South Bend, Indiana, where she spent more than 10 years teaching, Barrett was a member of Faculty of Life, an anti-abortion group, the ABA Journal, American Bar Association Journal reported. It says, in 2013, Barrett said at a Notre Dame event that she believed life begins at conception.

That's attributed to Notre Dame Magazine and it says, "Speaking about Roe v. Wade, Barrett seemed to reject the idea that courts should always uphold precedent in a 2015 article for the Texas Law Review. Although when asked about this issue by Senator Dianne Feinstein at a confirmation hearing in 2017, Barrett said she would follow precedent when deciding a case. I have a feeling that's going to be a major line of conversation, assuming she's the nominee and assuming she gets the confirmation hearings.

Seung Min: Certainly. The question of precedent, because it relates so much to the fate of Roe v. Wade, is always a major topic in these confirmation hearings, but it's going to be so much more so for a couple of reasons. One, this is the vacancy. If President Trump and Republicans are successful at filling or successful at getting his nominee confirmed, this is the confirmation that will really cement a conservative majority on the Supreme Court for years if not a generation, which is why that question, the focus on abortion is so strong and so fervent at this point.

Another important issue is that some Republican lawmakers are actually making abortion more of an issue and, particularly, senators who sit on the judiciary committee where these committee hearings are held. One, whose name is Josh Hawley, he is a freshman Senator from Missouri, a Republican. He has laid out a standard that is being espoused by a lot of the social conservative groups saying this nominee has to basically publicly say that she believes Roe v. Wade was wrongly decided.

You're going to see abortion, the future of Roe v. Wade, automatically injected as a major issue in this race. Amy Barrett does have writings in her history that suggest that she has a flexible view towards precedent. As a Circuit Court judge, they are not on the top tier of federal courts. Circuit Court judges are automatically bound to the precedent set by the Supreme Court.

Once you're part of that powerful group of nine justices, obviously, the Supreme Court can overturn precedent. How she approaches that is going to be a question that gets asked to her certainly at these confirmation hearings. It is interesting though that the two Republicans who are supportive of abortion rights, so that if Senator Susan Collins of Maine and Senator Lisa Murkowski of Alaska, they are so closely watched in these confirmations for that precise reason, for their personal views on abortion access.

They are two senators also who have said already that this nomination shouldn't proceed so close to an election. Senator Collins has even said that she would vote against a nominee no matter the qualifications if the vote is held before election day, so they're personal views, their views on a nominee, and whether she would uphold precedent matters a little less this time around, which I think is an interesting dynamic.

Brian: Now, tentatively, Judiciary Committee Chair Lindsey Graham has set the week of October 12th for hearings leading to a final vote around the end of the month, just days before the election. Here's President Trump in something we might call saying the quiet part out loud about why he wants a third Justice of his choosing confirmed by that.

President Donald Trump: I think it's better if you go before the election because I think this scam that the Democrats are pulling, it's a scam, the scam will be before the United States Supreme Court. I think having a four-four situation is not a good situation if you get that.

Brian: Today, September 25th, would a Justice confirmed, say, October 25th, be able to rule on challenges to ballots cast or voting systems put in place before that?

Seung Min: Once a Justice has confirmed officially by the Senate, the processes can move pretty quickly to formally seat that person on the Supreme Court. As long as there is at least a few days between the confirmation vote and when these hypothetical election challenges can start, conceivably, that can happen and that is an argument that you're hearing-- You're right, that the President is basically saying the quiet part out loud and also several Republican senators are saying the quiet part loud.

I will point out though that this is not an argument that Republican senators made during the 2016 election which, needless to say, was also a heated presidential election year where the Supreme court was basically, effectively an eight-member court because of Justice Scalia's death and Mitch McConnell's refusal to take out Merrick Garland. It is interesting to see this argument being made so fervently now this year.

Obviously, the legal challenges and the potential outcome of the election that has been so much more focused on this year, particularly with the President's rhetoric about the validity of mail-in balloting. That is perhaps an issue, but certainly, yes. The Republicans want to move quickly for many reasons. For the President, this is definitely one of them.

Brian: Listeners, we have time for a few phone calls for Washington Post correspondent Seung Min Kim. Is there any potential Supreme Court nominee? You have a comment or a question about and Amy Coney Barrett in particular since Seung Min is reporting that she does seem to be the nominee parent, though Trump certainly has been known to pull a surprise out of his hat for staging purposes on other occasions, or is there anything about the process or the politics of the Supreme Court nomination or the peaceful transfer of power?

We'll get into that a little bit with the things President Trump has said this week or we had A Tribute to Justice Ginsburg show on Monday. You can add yours now too if you'd like to do that, now that we've just aired the ceremony of her casket being placed in state at the Capitol. Any of that or any question for Washington Post White House Correspondent Seung Min Kim, 646-435-7280, 646-435-7280. Let's see. I gather there's not much the Democrats in the Senate can do to push past the election procedurally. Do you expect an intense challenge to the fitness of the nominee herself like we saw with Brett Kavanaugh? We saw, though, he eventually got confirmed, that it did delay things.

Seung Min: Certainly. The timeline that Republican officials have privately laid out is a very ambitious one and even they acknowledged that privately. Because if you think about it, the confirmation hearings for, let's presume, Judge Barrett is supposed to begin 16 days after she has announced as the nominee. If you want to look at a historical context, it's taken an average of 50 days between nomination and the start of the confirmation hearings if you average out all the Supreme Court nominees since, I believe, 1990s.

That is a very ambitious timeline. Republicans acknowledged that it is aggressive. Republicans acknowledged that, basically, every piece has to fall in the right place for this plan to happen. No surprises in her background check, no major issue in her paperwork, or a glitch at her confirmation hearing or whatnot. Senate Democrats, they don't have a lot of procedural maneuvers.

If Mitch McConnell has 51 votes, particularly on nominations, they can do what they want. Democrats are going to try to delay this out even days at a time. Every little bit counts in this. As a messaging matter, they're really going to focus on health care. We know that health care was an issue that was very successful for congressional Democrats in the 2018 elections.

The Supreme Court is scheduled to hear a major case on the fate of the Affordable Care Act just a week after the election. They see that as a way to really bring home to their voters, the importance of the selection. The importance of not only that they can see for the future of the Affordable Care Act and the future of the healthcare provisions such as the protection for people with preexisting conditions and whatnot, but also just to drive home to their voters how important every seat on the Supreme Court is.

Because we've seen for the past decades, the courts have generally been an issue that has galvanized conservative voters and not necessarily liberal voters, Democratic voters, but Democrats have really been trying to change that for the last four years under the Trump presidency. They think that senators believe and outside group not strategizing on this believe that making this about health care and access to health care is their most effective strategy in terms of a message.

Brian: Let's take a phone call. Mark in Nyack, you're on WNYC. Hi, Mark.

Mark: Yes. Hi, thanks for taking my call. Oftentimes, the establishment is some kind of an evangelical sect and religion monetarily. To the extent that it simply frames Judge Barrett's position as developed Roman Catholicism, I think it misses an important point, which is that she's a member of an ultra-conservative sect called People of Praise, which Jeff Sharlet, the religion writer, has written about. It requires that women "submit," that's their term to their husbands. Women had advisors at one point in the sect that we refer to as handmaids. It's so extreme that Margaret Atwood literally used it as the model for her novel, The Handmaid's Tale.

Brian: Let me jump in there partly for time also for what I think is a correction to be fair. I think Margaret Atwood has said this week that-- or maybe it was earlier, I'm not sure honestly, but has said that it was not the inspiration or at least the sole inspiration. Let's see here. Margaret Atwood is saying, this is according to ABC News, "Amid speculation that the group may have inspired the novel and Emmy award-winning drama, The Handmaid's Tale, author Margaret Atwood is saying that's not accurate, telling ABC News there were several inspirations." Nevertheless, with that reference to that word and however extreme this group, which I'm not familiar with, may be, People of Praise, are you familiar with it, Seung Min, and do you expect that to come up at the confirmation hearings?

Seung Min: It was definitely part of her confirmation hearing discussions for the Seventh Circuit Court of Appeals. It certainly has been mentioned in the context of her conservative views ever since she had been announced or ever since her name has been floated for a Supreme Court vacancy, not just this one but for Kennedy's as well two years ago. Senators on both sides will be very careful about this because most of them really do, at least on the surface and at least during these confirmation hearings, do want to make this about Judge Barrett's jurisprudence and how she would rule on the court and how she would approach as law.

There was a lot of backlash during her Circuit Court confirmation hearings when the issue of her personal Catholic faith was brought into her hearings. There are a couple of Democratic senators on the committee who have indicated that when it comes to assuming Judge Barrett's confirmation hearings that nothing is off the table, including how her personal faith may guide how she may rule or how she views the law. An overwhelming Democratic senators say it actually is not going to be appropriate for senators to approach that.

You already see Republican senators accusing Democratic senators of anti-Catholic bias and the way that they have approached Judge Barrett. Frankly, they're waiting for Democrats to trip up on that front. Her faith, her Catholic views will definitely be a topic that will be touched upon to the extent how deeply senators devolve into that. I find it a little unlikely just because most senators have indicated that, again, if someone's personal views should not matter and does not matter when it comes to how that person will rule from the bench.

Brian: Michael in Manhattan, you're on WNYC. Hi, Michael.

Michael: Hi, yes. Thanks for taking my call. I wanted to ask about recusal. Should Trump bring election issues to the Supreme Court, will recusal be part of the line of questioning from Democrats during the confirmation process? Should she recuse herself?

Seung Min: Obviously, I have no personal thoughts on whether she should or should not, but I would imagine that is definitely something that Democrats are thinking about getting on the record from the nominee during the confirmation hearings because you've also heard these potential "conflict of interest" issues raised with the President's previous nominees, including during Kavanaugh's hearings last time. How they phrase it, how much they delve into it will be something that Democrats will have to learn to craft and strategize over.

A Supreme Court nominee generally has a canned answer to those types of questions, saying that he or she will follow the Code of Judicial Ethics in terms of determining where to recuse and where not to recuse. I would be very surprised if Judge Barrett is at our confirmation hearings and says, "Yes, I will recuse." I don't expect that to happen. Certainly, it will be something that comes up in the confirmation hearing or that could come up in the confirmation hearing.

Brian: Right, and we will follow up on that on this show with Jami Floyd and other Supreme Court watchers in the coming weeks. No doubt. I imagine the Republican position or maybe the potential Justice’s position will be that any Supreme Court Justice is going to rule on things that regard the President who appointed them because that's a lot of what comes before the Supreme Court challenges executive branch actions. Why would this be any different?

Of course, this is in the context of an election season where, right away, there would be an election challenge on behalf of the individual as a candidate, though he's the incumbent who just nominated her. If they met in person, knowing Donald Trump, I wonder if he would have sussed her out in any way on that or if anything could emerge from those private conversations if, in fact, he did. Maybe as somebody who's famous for saying the quiet part out loud, [chuckles] maybe he did when other presidents would have not. How do you feel about mail-in ballots or something like that? Maybe even he wasn't that obvious.

Seung Min: Well, those meetings with Judge Barrett and President Trump were very tightly held and only attended by a few people. Obviously, you have the President and Judge Barrett. We know that Chief of Staff Mark Meadows is in the meeting, Counsel Pat Cipollone, and the readout of those conversations have been very tightly held. Now, this isn't the issue that you talked about.

Another issue, abortion, White House officials have insisted that the President did not ask potential candidates how he or she would rule on a certain decision or certain policies or on precedent should that come before the Supreme Court. If I recall correctly, both Gorsuch and Kavanaugh testified to that matter too that the President never asked them in their one-on-one conversations on how they would rule on a certain hypothetical topic.

It does seem that the President has veered clear of those landmines, but Judge Barrett is certainly going to be asked about her conversations with the President and her conversations during the selection process. She will be asked about it in her written questionnaire because since that's a standard part of the paperwork. It's usually asked about on her hearings and her answers may be illuminating or most likely, probably not.

Brian: All right. Well, with the President who, this week, refused to say explicitly that he would submit to a peaceful transfer of power even after a Supreme Court ruling that, in effect, gives the election to his opponent, there's going to be a lot at stake in this regard. We are out of time with Seung Min Kim, Washington Post White House correspondent. Seung Min, thanks so much for jumping on with us today after the lovely ceremony for Ruth Bader Ginsburg. We really appreciate it.

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