BREAKING: Supreme Court Justice Stephen Breyer Retiring

Today on Sekulow, President Biden issues a warning saying a battle between Ukraine and Russia will be the biggest since World War II.

So why aren't other European countries ready to fight? Keeping you informed and engaged, now more than ever, this is Sekulow. There will be enormous consequences worldwide.

This would be the largest, if you were to move in with all those forces, it would be the largest invasion since World War II. It would change the world. We want to hear from you.

Share and post your comments. Or call 1-800-684-3110. There is not going to be any American forces moving into Ukraine. And now your host, Jordan Sekulow. There are U.S. forces in Ukraine right now though, doing training of Ukrainians. And remember, it was the U.S. State Department that said Americans get out, we're not going to get you out. So if you believe that it's imminent, and now the prediction is sometime mid-February, so a few weeks, that there will be some kind of Russian aggression, what about the troops that are there in the training that are internal in Ukraine? But again, this goes to a bigger issue, which is that the President is claiming this will be the biggest invasion since World War II.

And I think the question we have to ask today is, one, if that's true, that's true. Why are other European nations unwilling to fight? Why is NATO so disengaged from this potential conflict? But two, is that just a way to raise the bar so high that anything else that Russia does that isn't equal to Hitler invading Poland in World War II? So if it's not equal to that, then it won't be as big of an international event, and thus the Biden administration can try to claim that they have some kind of victory because the incursions were smaller. So they're setting the bar so high for what they predict. But then again, if they really do believe that, why are we going to fight Europe's war?

Why? I mean, they have not been able to tell us that. No one has sat down, the Secretary of State, President Biden, no one has said, why does the U.S. need to go about this alone when NATO can't agree what to do, when Germany is ignoring this because they want to deal with Russia? What about the U.K., France? Where are these countries, these major militaries that we have been working with, training with, funding, arming for decades since World War II? For a moment like this, just in case this ever were to recur, and yet they're nowhere to be found, so they just assume the U.S. will show up and somehow save the day, or they just don't care about the sovereignty of Ukraine. It's just not a big enough issue to most of Europe, and the part of Europe that would have the weaponry and military power to actually do something about it.

So I think it's twofold. I think on one hand, they could be raising the bar so high that anything else looks kind of minimum, it looks like a small incursion, or two, this idea that the U.S. has to come save the day, which I don't think the American people support. Well, Denmark's sending a frigate, and I think we're also looking at one other situation. We do have a Supreme Court retirement, CNN reporting. This is breaking news that Justice Breyer will be retired from the court, so that would give...

Okay, let me explain. That's interesting timing with the 50-50 Senate. There's no filibuster to get confirmed, so this would give Joe Biden an opportunity to replace a liberal with a liberal. Yeah, I think probably what I'm going to suggest is, and maybe we do this, do we come down on Facebook and re-come up on this so it's fresh? Our radio audience, we're going to get into this. Obviously it changes what we're going to discuss, but we can discuss Russia tomorrow or even later in the broadcast. But this is very, very significant. We're trying to get some confirmations on this point right now.

Obviously this is... I'll tell you what the confirmation process is. Let's get Fan Bennett, if he's available, to come on as well, and we'll go through the process and what it means. It's a big moment in Supreme Court history with Justice Breyer, if that in fact is the announcement. I've been litigating before him since he was on the court. All right, we'll take your calls at 1-800-684-3110, that's 800-684-3110, 800-684-3110, where obviously this is breaking news with the now CNN reporting that Justice Breyer is in fact going to retire from the Supreme Court at the end of the term is what I'm hearing. NBC also confirming that, SCOTUS blog, it's everywhere. So we'll be right back on Sekulow.

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Only when a society can agree that the most vulnerable and voiceless deserve to be protected is there any hope for that culture to survive. And that's exactly what you are saying when you stand with the American Center for Law and Justice to defend the right to life. We've created a free, powerful publication offering a panoramic view of the ACLJ's battle for the unborn.

It's called Mission Life. It will show you how you are personally impacting the pro-life battle through your support. And the publication includes a look at all major ACLJ pro-life cases. How we're fighting for the rights of pro-life activists. The ramifications of Roe v. Wade 40 years later. Play on parenthood's role in the abortion industry. And what Obamacare means to the pro-life movement. Discover the many ways your membership with the ACLJ is empowering the right to life.

Request your free copy of Mission Life today online at ACLJ.org slash gift. Alright, welcome back to Sekulow. So we've got breaking news.

We're going to continue to cover Russia, Ukraine. But there is breaking news. Supreme Court retirement has been announced. Justice Breyer, a liberal justice from the Supreme Court, has announced his retirement. The report is that he has let the White House know. I mean, likely he'll be retired at the end of the term after the briefing is done because he's still been active in the current cases. He, again, set to retire.

Now what does that mean? It means that Joe Biden, President Biden will get a nominee to the Supreme Court. Now, it will not shift the balance of the court when it comes to votes.

I think that's safe to say. When it comes to things that are kind of the conservative versus liberal major votes. But certainly the person who replaces Justice Breyer, who was seen as kind of a pragmatic, but pretty liberal, but tried to be pragmatic on some issues, could be replaced with a very radical liberal. And I'm sure the pressure will be on the White House to put someone forward who is to the left of anybody who's on the court right now. Unless there was a move like that, to move Kamala Harris out of politics so that Joe Biden can bring in a new VP to try to, as we've talked about, like a 2.0 in his administration.

There's a lot of what ifs here. The one thing we know, though, is that there's going to be a Supreme Court nomination battle. There is no filibuster on this. I'll go to Thad Bennett right away in Washington, D.C. Thad, important to note, Democrats did away with the filibuster for judicial nominees all the way through the circuit court. Republicans, during the Gorsuch nomination, did away with the filibuster for the Supreme Court. So it's a 51 vote, and that's how, again, that's how close the Senate is right now. Yeah, it really ties into the conversation we had last week, Jordan, about the legislative filibuster. If you make a change to the filibuster, it is going to apply to both parties. And when the Democrats pulled down the judicial filibuster for lower court nominations, it was always going to apply to the Supreme Court.

Of course, it does now. So you're right, Jordan, we're at a 50 vote threshold in the United States Senate, plus the Tyvett-breaking vote of the President of the Senate, which, of course, is Vice President Harris. Jordan, I mean, you know this better than most. The scuttlebutt just starts immediately.

I mean, my phone is filled with potential replacements. And you're right, even though I think it's a little bit of a long shot, the one that I'm seeing the most often, it's actually Vice President Harris. But here's the thing that you have to understand, though. Justice Breyer, although a liberal member of the Supreme Court, is considered a moderate, okay? If you look at it, believe it or not, he's left a center, obviously. But if I look at our cases, there's been a series of cases where Justice Breyer has agreed with our position.

There's a series of cases where he hasn't. But he is more of a centrist moderate than Elena Kagan or even Sotomayor, although Elena Kagan has been more moderate than people think. The pressure here, the pressure point on this is going to be to appoint someone who is very, very progressive and very, very liberal on this. And again, it's not a vote that changes the court's outcome because it's replacing a justice with a conservative liberal justice. I'm actually a bit surprised he did it because I know the pressure that they put on him. They had billboards up about him. But he's been in great health and he is, as far as we know, and seemed very strong during the oral arguments.

And his questioning was no different than it was when I was before him 25 years ago. But there's going to be a big fight over this. Absolutely. So I think the left will attempt to put a progressive globalist elite individual on the United States Supreme Court.

I suspect they are salivating. So they will seek to place on the court someone who gets approval from either AOC or Senator Warren. And so I really think what we will get is a pure, complete ideologue on the Supreme Court who will replace Justice Breyer.

And I think it will make for more fireworks on the court and probably a greater outburst that will be carried by the press. So I think they will be unrestrained, or at least that's what they hope. And so if you look at anyone who is probably above the age of 35, somewhere between 35 and 55, they are now in play, particularly if they are ideologues.

Yeah, I think that's right. But I think you're going to have a lot of pressure from, like you said, the left wing of that party. It's going to be very intense on the President to select someone that meets their criteria for what they would like to see in a Supreme Court nominee. My question, Jay, is, and perhaps you know the answer, Earthan does, playing out the hypotheticals, if they were to nominate the vice President to go to the Supreme Court, there's a 50-50 Senate, is she allowed to break the tie to vote for herself? Oh, sure. Okay. Yeah, I mean, she's the President of the Senate.

Okay. So her role doesn't change. Yeah, I was wondering, is the nominee, would she need to step down as vice President?

No, because they served as 10th Circuit Court of Appeals judges until they were confirmed to the Supreme Court of the United States. So, no, she wouldn't have to do that if they did that. I mean, there's speculation on this. We're not hearing anything from the White House on this point.

No. It would be an interesting double play, though, Andy, to do that, because there's a lot of tension between the vice President and the President's office. We know that all the media is covering that. So this would bring a whole different perspective, I think. Oh, I think it definitely will.

I think it would. If the President were to nominate Kamala Harris, he would be able to eliminate some of that tension by literally kicking her, not upstairs, but across the street, and putting her in the Supreme Court of the United States, and then putting someone as vice President, which he then would get the right to appoint, who would be more amenable and more consistent with his own policies. But I agree with my colleagues. We're going to get someone who's, to me, the left of Breyer, no doubt about it, and who's going to be an ideologue of the left. And the left is going to be pushing the President very, very hard to get someone on there who is a left-wing ideologue of the harshest, leftist-most variety.

It's also to understand there is no, like you said, there's no filibuster on Supreme Court justices, so that doesn't happen. And I really think, Than, the battle here, I mean, he nominates. There'll be a process, but is nominees getting through? I mean, I think that's likely, Jay, but it sets up a very interesting political dynamic. I fully agree with your assessment that it's going to be somebody to the left of Breyer, but I mean, think about this, Jay. This has to happen before the midterms if the Democrats lose control of the United States Senate, if that nominee is going to get confirmed. So, you know, I haven't seen details on whether or not Justice Breyer is going to wait for the confirmation before he steps down or how that detail has worked, but just think about it this way, Jay. If it's going to happen this year, they cannot afford to lose a single vote in the United States Senate. Now, look, it's a much higher hurdle to lose a vote on a Supreme Court nominee, but look at the last few major pieces of legislation that have been put on the floor.

They've not been able to rally those troops, so they are going to have to nominate someone who can get all 50 votes. You know, what's interesting here is, have they specified when Justice Breyer will step aside? Are they saying at the end of the term or upon confirmation of a successor?

I'll tell you why that makes a difference. I don't think we've seen that yet specifically. If he's stepping down before the confirmation of someone, okay, that would mean an 8-8 court, there could be ties. But the fact is, the replacement vote, you would assume, is going to be no different than Justice Breyer's actual vote.

So I think that's how this plays out. So we'll find out more of the timing as this goes on, but the fact of the matter is, I think if we're being clear, the historic aspect of this is Stephen Breyer served for a long time. As I said, we've had, and you have too, we've had a very good relationship with him on a personal basis and in court.

He's always asked hard questions, but it's never mean-spirited, and we've talked to him at various events we've been at and have spent time with him. Again, you're going to see a replacement. It's going to be, how far left is that replacement? It will be further left, Harry, than Stephen Breyer.

I think that's right. He was a Ted Kennedy nominee. But there is a slight risk, and I would emphasize only a slight risk, that Senator Manchin might balk at someone who's incredibly far to the left. But that's only a guess. I would say right now that's a long shot. And so I think President Biden will not want to make a huge mistake by nominating someone who's so offensive that Senator Manchin balks. So that would probably be the only break or limitation on Biden.

I think that would play out on that part. I don't think he balks on a far left nominee. I mean, he didn't balk on any of the other, Kagan or Sotomayor. I tend to agree. Very liberal on Kagan, who had no experience in judiciary at all, came out of Harvard Law as Dean. I mean, you can't think much more liberal than a Harvard Law Dean.

These days you can, but at the time. So yeah, I think that there's a lot of things that go into play with this. One is, this is going to have to move pretty quickly because of midterm elections.

Yeah, no. So this was definitely a calculated political move. Justice Breyer saw the writing on the wall that likely the Senate's flipping and the House is flipping for his purposes, the Senate flipping. And so you got a Democrat President for right now.

If you got a Democrat Senate, even with one vote, at least you'd be replaced with someone with your similar ideology. And they could still sit on the court. You know, they sit on lower courts once they retire from the Supreme Court. Justice Souter does that now. Justice White, until he passed away, was doing it as well. So did Justice Stevens.

So it's not like they're not doing anything, but they will not be on the Supreme Court of the United States. Fascinating. Wow, big development. We'll talk more about it when we come back from the break. If you got questions, 800-684-3110.

What do you think? 1-800-684-3110. This is called Mission Life. It will show you how you are personally impacting the pro-life battle through your support. And the publication includes a look at all major ACLJ pro-life cases, how we're fighting for the rights of pro-life activists, the ramifications of Roe v. Wade 40 years later, play on parenthood's role in the abortion industry, and what Obamacare means to the pro-life movement. Discover the many ways your membership with the ACLJ is empowering the right to life.

Request your free copy of Mission Life today online at ACLJ.org slash gift. The challenges facing Americans are substantial. At a time when our values, our freedoms, our constitutional rights are under attack, it's more important than ever to stand with the American Center for Law and Justice. For decades now, the ACLJ has been on the front lines, protecting your freedoms, defending your rights, in courts, in Congress, and in the public arena. And we have an exceptional track record of success.

But here's the bottom line. We could not do our work without your support. We remain committed to protecting your religious and constitutional freedoms. That remains our top priority, especially now during these challenging times. The American Center for Law and Justice is on your side. If you're already a member, thank you. And if you're not, well, this is the perfect time to stand with us at ACLJ.org, where you can learn more about our life-changing work.

Become a member today, ACLJ.org. Music This will not affect current cases at the U.S. Supreme Court that have been, you know, had oral argument and opinions that are coming this summer. Some reporting saying that he is retiring at the end of this term, that would be different than waiting until the new justice was confirmed, which could leave for a short period of time a 4-4 court, which right now is actually kind of like a, would be a 5-5, let's say 6-2 court. According to the end of the term, here's the interesting dynamic, and that is it makes this battle in the summer, because the term is usually not over until the last decision is rendered.

That's usually the first week of July. So the political aspect of this is pretty clear. I understand why Justice Breyer wants to finish this term, but it's going to make this a pitched battle right before the midterms.

Well, that's exactly right, Jay, and I think what Thanh said is correct. This is probably very calculated on the part of everybody who is involved, seeing the possibility that the Senate might flip in the midterms. The President, his popularity is sinking.

He has wars and rumors of wars in Europe, a lot of things happening. Also, Justice Breyer, after 27 years, wants to perpetuate keeping a liberal on the court, and he says this is the time to do it. We better do it while we still have control of the Senate, hopefully, for them. I mean, it's up to them. Manchin, Sinema, whoever, some of the more moderates might not go with it, but this is the time to do it, and I think you're right, Jay.

The battle is going to be in the summer, if not sooner. I think the other aspect of this, Thanh, how do you think, explain to everybody what the process is going to look like. Yeah, so the process, once there's a nominee, it will be sent to the United States Senate and assigned to the Senate Judiciary Committee. Of course, Jay, all of our listeners are probably going to remember the hearings from Justice Kavanaugh, Justice Barrett, and others. They would go through a series of hearings there, and ultimately, the Senate Judiciary Committee would take a vote. Now, the nominee, Jay, just so our listeners are clear, does not have to have a majority on the Senate Judiciary Committee to move to the floor, but just for informational purposes. There are 11 Democrats and 11 Republicans on that committee, so it's entirely possible that a nominee would move out of the committee with a tied vote, 11 to 11, and then move to a tied Senate to take a vote. Jay, one thing I just wanted to put out there, just so people remember this, President Biden, when he was campaigning, he did pledge that he would put a woman of color on the court if a nomination were to open up. So if he stays true to that, Jay, it does narrow the scope quite a lot. I think when he made that pledge, there were only five women of color on the Circuit Court of Appeals.

Not that he has to draw from that list, but they were all up in age as well. So another name that I'm hearing, Jay, just to say it, is Katonji Jackson, who's a judge on the D.C. Circuit Court. I think she's 51 now, so that would be someone that's going to get a lot of attention. There's also Leandra Krueger. She's on the California Supreme Court. She is an African-American woman, was a clerk to Justice Stevens. It's only 45 years old, California Supreme Court. And there is a South Carolina District Court judge who's up for the D.C. Circuit right now, Michelle Childs, also an African-American woman.

It looks like that age would be 45 or 50 years old. So like they had said, he probably narrowed it by the pledge he made, but he knew that going into that pledge. So they're going to hold him to that, I think, the left and his party. Kamala Harris would also meet that standard.

I mean, I think that that would be an outlier. We look at that as a political move because she has not performed great as Vice President. She would still be a liberal, trustworthy vote in the Supreme Court.

And President Biden would be allowed to bring in a whole new team for his second in command. And she's a member of the United States Senate. So she was formally. So there's a little Senate courtesy that's still part of the process, even in these times. She would be confirmed immediately. I think she's definitely on the list. Yeah, I think there's a political calculation, though, with that because it disrupts your whole White House operation. She might be disrupting it enough right now. Yeah, I mean, this is a big moment.

We want to take your calls at 800-684-3110. And I do want to say something here. And that is, look, I've been litigating cases before the Supreme Court for four decades. Andy's been on a lot of those cases with me. Jordan's been on the last two decades, has been on a lot of those cases.

And I don't view these justices ever as the enemy. I just never thought that was the role of the lawyer. We're members of the bar of the court. We're counselors to the court. We're officers of the court.

We disagree, obviously, but like I said, there's been times. Justice Breyer has cited opinions of the briefs of the American Center for Law and Justice. I suspect, Harry, his replacement probably will not.

I think that's a good bet. And I would also guess that the only time we will get cited is because they will want to attack our argument. And so it's very, very unlikely that the ACLJ will be cited by Breyer's replacement favorably. Yeah, I think that's, you know, look, that's part of the process here. You know when we say elections have consequences? Rule changes have consequences? They did that for Gorsuch. They did it for Kavanaugh.

They did it for Barrett. This is what happens. And I think it's fine because I think that's what the Constitution says anyways. Yeah, and I think for conservatives who are listening, this is not going to change the balance of the court. It might push the liberals more liberal. But I don't think it's going to push the court. It doesn't affect that there are six conservatives on the court right now with at least a conservative judicial philosophy. There's a little bit of a spectrum there, I would say, from Justice Roberts to Justice Alito. But, you know, it's not going to change that.

There's still going to be, so even if he died, that may be part of his calculation too, he could probably retire without staying until the end because the make of the court right now is you would still have five votes, or six conservative votes. This is what Joe Biden said when he was running for President during the Presidential debates. Everyone should be represented.

No one's better than me and I'm no better than anyone else. The fact is, what we should be doing, we talked about the Supreme Court, I'm looking forward to making sure there's a black woman on the Supreme Court to make sure we in fact get every representation. Not a joke. Not a joke.

I pushed very hard for that. So, I think, look, it's fine. This is Presidential prerogative, Harry. The President has the authority to nominate with the advice and consent of the Senate and I don't, I agree with Jordan, I don't see it likely that Sinema or Congressman Manchin, Senator Manchin are going to fight Joe Biden on that. I just don't see it. I think that's probably right.

I guess I would disagree with President Biden in terms of his insistence that melanin determines one's judicial philosophy. But if he really believes that, it will indeed be impossible to comply with that notion unless we expand the United States Supreme Court up to maybe 50 Supreme Court justices. I think that's the end of the court packing too, by the way. I don't think they're going to go back to that. They may, but not likely.

Well, this has to be their focus now. Because you can't, what you don't want to do with this, we say it's kind of a done deal. I mean, it's 51 votes. What you don't want to do is nominate somebody who hasn't been properly vetted and then have to poll them and then keep looking like a crisis President who can't get his act together. So, I think for the Biden team, this is a huge decision because they can get a win, a pretty easy win, or they could cause disaster. And let me tell you something. Republicans remember what they did to Kavanaugh. Now, I wish there were more senators who I think were tough enough to take it to Democrats if they were willing to do, but that's why I'm saying you better vet this nominee, Joe Biden, because there's some anger left over from what they did to Brett Kavanaugh.

No, there is, but it'll be very, very interesting. Hey, we're going to be here for another 30 minutes and we want your calls. The importance of the Supreme Court for you and what the processes or questions and comments you have. 1-800-684-3110, 800-684-3110, where we're going to be during the break.

We'll be following this up and see what we can find. For decades now, the ACLJ has been on the front lines, protecting your freedoms, defending your rights in courts, in Congress, and in the public arena. The American Center for Law and Justice is on your side. If you're already a member, thank you. And if you're not, well, this is the perfect time to stand with us at ACLJ.org, where you can learn more about our life-changing work. Become a member today.

ACLJ.org. Keeping you informed and engaged, now more than ever, this is Sekulow. And now your host, Jordan Sekulow.

Welcome back to Sekulow. So if you're just joining us this first half hour, there is breaking news. I want to make clear to everybody, this is just breaking minutes as we're on air. The first half hour of the broadcast, that is that Supreme Court Justice Stephen Breyer is stepping down from the U.S. Supreme Court. Now, it won't impact current cases. Right now there's some news outlets reporting that he is stepping down at the end of this term. Sometimes they say, I will step down when my replacement is confirmed.

So we're not, I'm not 100% on that yet. But what this does is set up a confirmation battle. And I'll go right to Thanh Binh in Washington, D.C., Thanh. There will be a confirmation battle. It will not significantly, this is not going to significantly push the court in a different direction.

This is liberal for liberal. You might get a more liberal justice replacing Justice Breyer, but it's not going to shift the court significantly. But, Thanh, it is going to be a major battle that occurs with a lot of attention because of the cases that are before the court right now that will be out before this nominee. Certainly they'll be questioned about Dobbs and those kind of cases all before the midterm elections, which could do one of two things. It could help the Biden base kind of get a win, but it could also re-fire up the conservative base where they see if it is a kind of extreme liberal nominee that's put forward. Yeah, Jordan, it's going to be intense any way you cut it, and I think it's going to have a big impact on the midterm elections no matter how you cut it. I mean, the fact that it's not a swing vote definitely does dial it down just a little bit.

It's not a change in sort of the makeup of the court in any sort of a way. But, Jordan, I think there's actually something very significant about the timing of him stepping down, and we've touched on this, but let me just extrapolate on this for just a minute. If his departure from the Supreme Court and then an eventual nomination is not able to happen until the summer, then, Jordan, you really do start to have a squeezed timeline. You start to get into the point, the period where the Senate doesn't like to consider this.

Now, look, the Senate is under Leader Schumer. They're going to consider this nominee. It will get a vote.

I'm not suggesting that time would run out, but it does bring up the scenario that you mentioned a bit ago. If the President were to make a mistake or were to nominate someone who then ran into trouble during the nomination process, there would not be a lot of room for error in that scenario. And, Jordan, even if none of those things happen, it is going to be one of the front burner issues that is either animating or deterring both Republican and Democrat voters come this fall. And remember, both chambers, Jordan, razor thin majorities, both majorities are on the line here.

Yeah, I mean, I want to go to Harry on this. Harry, there might be a limited field here, but even in that limited field, there's probably more liberal to, I mean, there's a lot of different ways this could go. There's even talking about a Vice President Harris being utilized. Certainly, there'll be a lot of speculation. The White House will go through its vetting process. I'm sure, you know, they've been notified by Justice Breyer. They may have been notified even earlier. They may have been more prepared, but it's a major decision for any President. And again, for this President, they need a smooth process. I think they do. And they may indeed have some incentive to nominate someone who has already gone through the vetting process. And so if we expand the field just a bit, it's possible that a high level African American woman in the Justice Department could indeed surface as a possibility.

I've seen some of the testimony of those individuals, and it's far from clear that they would indeed pass muster, but it's clearly a possibility. Yeah, so we're going to be breaking this all down. If you wish to take your calls as well, 1-800-684-3110. Great call. Kevin and Lori, we will talk about that. We'll take your calls right when we get back to this break.

Kevin and Lori, we'll get to you first. But if you've got a question about this Supreme Court nominee, I mean, it's a very divided Senate right now. I mean, to get the 51 votes, if no Republicans join on, which by the way, I mean, there's some moderate Republicans who may join on. So I don't think it's certain that it's 50-50, by the way.

It really will depend on who the nominee is and their judicial philosophy and how they perform in the hearings, because there's a handful of Republicans who would probably vote for the nominee, even if they disagree with their judicial philosophy. That's just bottom line truth. We'll be right back on Secular. And we have an exceptional track record of success.

But here's the bottom line. We could not do our work without your support. We remain committed to protecting your religious and constitutional freedoms.

That remains our top priority, especially now during these challenging times. The American Center for Law and Justice is on your side. If you're already a member, thank you. And if you're not, well, this is the perfect time to stand with us at ACLJ.org, where you can learn more about our life-changing work.

Become a member today. ACLJ.org. Only when a society can agree that the most vulnerable and voiceless deserve to be protected is there any hope for that culture to survive. And that's exactly what you are saying when you stand with the American Center for Law and Justice to defend the right to life. We've created a free, powerful publication offering a panoramic view of the ACLJ's battle for the unborn.

It's called Mission Life. It will show you how you are personally impacting the pro-life battle through your support. And the publication includes a look at all major ACLJ pro-life cases, how we're fighting for the rights of pro-life activists, the ramifications of Roe v. Wade 40 years later, play on parenthood's role in the abortion industry, and what Obamacare means to the pro-life movement. Discover the many ways your membership with the ACLJ is empowering the right to life.

Request your free copy of Mission Life today online at ACLJ.org slash gift. Welcome back to Secchia. We're going to take your calls now, good calls and good questions coming in. If you've got questions about this process with a divided 50-50 Senate, with a tie-breaking vote being cast by the vice President, remember there's no more filibuster. That does change a lot about the nomination process. It was Democrats who got rid of it for everything but Supreme Court justices, and then it was Republicans who got rid of it for Supreme Court justices. That was the Gorsuch confirmation hearings when they decided to use the nuclear option to get rid of that for nominees. It's still there for legislative, as we saw. Right, but not there for nominees. Let's go to Kevin's call at Texas Online too.

Hey Kevin, welcome to Sekulow, you're on the air. Thank you. The question I had is wouldn't Kamala Harris have to recuse herself of any cases that come up since she was vice President? So here's the way it works.

It's very interesting. In the Supreme Court, different than other courts, there is no recusal criteria. So the only way a justice recuses themselves from a proceeding is if that justice on their own, you can file a motion, elects to recuse themselves. It happens, but it's rare. But it's possible. You have to understand, I think what's important to understand in all of this is the process that's going to take place. The Constitution, Andy, does vest with the President the authority to nominate, to appoint and nominate.

That's right. With the advice and consent of the Senate, now no filibuster, so the majority vote controls, Jay, under the circumstances as they exist today. Just from a pragmatic point of view as a citizen, you know, we talked about the different things that might happen. And we mentioned Kamala Harris and she is certain her name is being mentioned. She has been a horrible vice President. There's a lot of tension by all accounts between the White House, the President's office and her office. He could, by nominating her to the court, select a new vice President with whom he could run because he says he's going to run again.

And she's a drag on the ticket. And so it would solve a problem for the President, you know, if she did that. But my concern is the pragmatic piece. I worry about Joe Biden and his health. I don't want to get into that, Wes. I really don't. I really don't.

I don't like getting into that because they did the same thing with the previous President. And I'm not meaning to cut you off. You know, look, I just don't like when people do that. And I want to be clear on that.

I understand people have opinions and whatnot. He's the President of the United States. Unlike what they did with Donald Trump, I'm going to show respect to the presidency. And I don't want to send a message to the world that our President is not mentally fit for the job. So let's not get into that. But you do raise the point of does it give them a chance to breathe new life into their White House?

But also a lot of chaos. Here's one of the issues our producer, Will, pointed out is that this is a hang up. So you would you would have to she would have to leave at some point, you know, and then you get a 50-50 Senate while you because you've got to then get a majority vote of the House and Senate for new VP. That is why she doesn't get that vote.

Yeah. And so then that to me takes her out of it because that's not going to happen. Yeah, it's definitely a significant hang up. This is the 25th Amendment, Jay, one of the provisions of the 25th Amendment, both chambers, not just the Senate, both chambers would have to confirm her. So, again, back to the timeline that we played out, you have to think it would has to happen before the midterms. In fact, I think probably the retirement is a signal that Justice Breyer isn't confident there would be a Senate that could confirm his replacement after the midterm. So if it happens before the midterms, you've got this razor thin majority in both chambers, the House and the Senate, that would have to confirm somebody. And without a tie breaking vote, that may prove to be very impossible.

If you just played out one more step, Jay, so if the vice presidency was vacant, you couldn't move anything through the Senate on a simple majority. And second in line to the Oval Office would be Speaker Nancy Pelosi. Yeah, so I don't think, I think it's going to be, there's a list of, you know, we know how this works, we've done this, there's a list of people they have. They have been going through that list, it usually goes through the White House Counsel's Office, and then with the President, the President interviews each person.

It will probably be someone he has nominated, I suspect that's how this will go, and that person will either meet the vetting criteria or not. Yes, so I mean, you've got a Breyer clerk, a Stevens clerk, and then, so I mean, those are two, and then a third would be the South Carolina District Court judge who has been nominated right now for the D.C. Circuit, Michelle Childs.

But you've got Leandra Krueger, who is... Which one's the Breyer clerk? That is Judge Jackson of the 5th, of the D.C.

Circuit. Because there will be a lot... She's 51. Yeah, there will be a lot, because that happened, remember, with Gorsuch was a clerk for Kennedy, he replaced Kennedy, but that does happen a lot, so you could see that kind of situation. The younger of the nominee would be the California Supreme Court Justice Leandra Krueger, who's 45, she was a clerk for Justice John Paul Stevens. So again, I mean, even with the, if he goes to that limited bench like we've talked about where it's African American woman, you've got, right there, two former Supreme Court clerks, both who you couldn't make the argument they're not qualified for the bench, what is coming out of the California Supreme Court, what is coming out of the circuit courts. Judicial philosophy, though, I want to make it clear, as we've said that we're friendly, we will likely oppose very strongly any of these nominees and make it a battle, because it should be.

And because, honestly, after what the left did to Brett Kavanaugh, I will go to any lengths possible to destroy their nominee, because that's what they do. And I wish Republicans were that tough. They're not, unfortunately. They're not in the U.S. Senate, specifically.

They're not. I mean, like half of them will vote for, will end up like praising them, and about a quarter of them will probably end up voting for. But that doesn't mean groups like the ACLJ are going to just sit back and say, oh, let it go. We're going to do it based on their records.

Point out how radical they are to the American people, how out of touch. Because, likely, whoever this is, they're going to be more liberal than Breyer, just because of age and the current makeup of where they are on the courts. I mean, I would imagine a California Supreme Court justice who clerked for John Paul Stevens, who's only 45, is pretty liberal. But we're going to do that research, as we've got these names coming. There will be a couple on the list that will start leaking.

Yes, and I think that Harry was right, too. We'd probably have to look outside of just a handful that would be qualified to the judiciary side and look at really qualified attorneys, people who have been served high up positions in the Department of Justice and other government agencies. Because that is also, those are also people who could be chosen.

You know, as we always want to point out. I don't think he will appoint a sitting senator because it puts the Senate at such risk. Yeah, I think that there's issues with, that's another issue with Harris and a senator is that it's a divided Senate and it's going to be very close on if Democrats can hold control of that.

Unlikely, but you're making it that much tougher. Unless you pick, now, you can pick from a state that's deep blue. But also, you never know exactly where the nominee is going to be coming from. We see a list, but Harry, as we've experienced this over many years of putting these lists together and these research together. You net, there's always an outlier that you didn't expect that ends up on that short list. I think that is, I think that is true. And I think that is particularly a possibility with President Biden.

He has been a fairly erratic President. So, yes, he could pick someone that is totally unexpected. That's number one.

Number two. That doesn't mean they're not vetted. They may not be expected, but you can guarantee they're going to be vetted. Number two, I agree with Jordan that we should work to toughen up Republicans in the Senate. And in fact, perhaps we should deputize Jordan's secular to begin the toughening process immediately because I think that is the Achilles heel of Republicans typically. They're not particularly great at the politics of personal destruction, as I like to call it. Now, I'm not saying I'm a huge fan of the politics of personal destruction, but they, the left is. I mean, they look at those nominees, how can we kill them?

I mean, how do we take them out, ruin their life, ruin their, make it where, you know, make it painful. And, you know, Justice Barrett, they're mocking her religion up until the final moments before she was confirmed. Kavanaugh, the accusations against him. Gorsuch, they, we had to do the filibuster. We had to get rid of the filibuster. They were going to keep him off the court.

So, I mean, you know, when I say, again, toughen up, I would like to see some tougher moves. And there are new members of the Senate that we'll get to see in action on this. But ultimately, it comes down to, are they clearly vetted? The real disaster for the Biden administration would be putting forward someone who has just got something in their background that would cause them, not because of their judicial philosophy, but cause them to have to step aside. Which would lead to the theory that this is an administration that just can't get things together.

They can't, they're not operating on full center. So I think while this could give Justice, this could give President Biden a win, it looks like a victory. It also presents him with a task of where you've got to have a unified front. You can't have a divided White House on who this nominee is. You've got to have Democrat buy-in. And probably from the left.

The progressive left. So, I mean, he's got a few different boxes. He's got to check to make this an easy victory. And I can see how it unravels difficult because of the progressive left. Like if you announce somebody, well, they come out and start pitching a fit, then, you know, you never know. That's not what this White House wants. So what is our job? Our job will be to vet these, any of the nominees or the names that start coming out, and then clearly tell you what they're about. What they're doing. I mean, if it's a couple of these that are judges, it'd be pretty easy to figure out their judicial philosophy very quickly.

And where they are and where they would be on the court. I do want to point it out one more time. We're going to take more of your phone calls when we come back at 1-800-684-3110. This will not shift the court, I mean, as far as decisions go. It might shift the left of the court further left, but it still keeps it to three. Only when a society can agree that the most vulnerable and voiceless deserve to be protected is there any hope for that culture to survive. And that's exactly what you are saying when you stand with the American Center for Law and Justice to defend the right to life. We've created a free, powerful publication offering a panoramic view of the ACLJ's battle for the unborn.

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ACLJ.org. Let's go to the phones. Lori in Washington State, online 3. Hey, Lori, welcome to Sekulow. You're on the air.

Thank you for your work and taking my call. As a businesswoman and an educator, I do not understand how it is legal for our government to state in advance of putting someone in a position what sex and what skin color they want. I thought that we fought for decades to have laws on the book against discrimination. Yeah, but here's the way it works, Lori, and that is the President, of course, will be discriminating because he's going to make the decision on who he wants to be the nominee. So let's say there's six candidates up there. In this sense, you may say, well, there's this one and there's this one and this one has this judicial philosophy.

I'm picking this one because I like whatever it is about him or her, probably female, I think, positions. She happens to be black, Hispanic, whatever it might be. The President has that prerogative. I mean, we do need to understand what the Constitution says, and it's the President nominates and appoints. That's it.

So he can use whatever criteria. You don't have to be a lawyer to be on the Supreme Court of the United States. That was actually the switch from Ronald South Carolina online for. Hey, Ronald, welcome to Sekulow. You're on the air.

Yeah, thanks for taking my call. That was actually one of the questions that I had. What qualifications do they need in order to actually even be selected for Supreme Court justice? Would, you know, do they have to be on the bench?

And if so, how long do they have to be on the bench? Ronald, they don't even have to be lawyers. There's no requirement in the Constitution that a justice of the Supreme Court or as the Constitution actually says, a judge on the Supreme Court would be a lawyer.

That's not required. So constitutionally, it's not relevant. As a matter of fact, one of the finest justices of the Supreme Court of the United States, Robert H. Jackson, who was a prosecutor at the Nuremberg trials, was not a lawyer. He did not have any judicial experience. He was not an attorney at law. It's up to the President that you don't have to have a judicial nominee.

You don't have to be a lawyer. It's up to the President to make the appointment and then the Senate vets through their advice and consent process and decides whether to advance the nominee to the position or not. Yeah, I think that, again, it's not unusual for Presidents, I want to say, is to kind of box in who they would pick. I think President Biden went a little further by saying sex and race. But I think also he looked at it and said, you know, if I do this, are there people available on the court to do that?

And there are. I mean, we've already gone through a list of people who, like you said, you don't have to be serving on a court. But it sure makes your confirmation process easier when you've got a legal background. And, you know, there was a question about Justice Kagan because she didn't have the judicial background. But she was a solicitor general, dean of Harvard Law School.

She was living, you know, in the legal world. What it really comes down to is I think what you're going to see, and this will be the interesting part, is this is probably going to be a nominee that is much more liberal than any nominee that's been before the Senate, at least publicly. You know, I mean, sometimes they shift on the court, but, you know, publicly because you've got to appease the progressive part of the party. So by doing that, then, I think it does set up a real battle in the Senate because, no, it's tougher to see a mansion in a cinema voting no. They put someone who's really far out there and start saying some weird things about Second Amendment or weird things about other issues, and suddenly you've got a battle on your hands. Well, Jordan, especially given that it's a midterm year. I mean, this is going to be all about politics.

It really will. I think it will be a hard-left nominee. I think that's just the politics of it. I think they'll be trying to drive their base. But then when you look at the procedure of it, if it's all about politics or if it's at least substantially about politics, Jordan, let's put it that way, what will it look like in the United States Senate? And I think it will look like needing to be someone that appeals to every member of the Democrat Party on a certain level. Now, just for example, Jordan, that's why I think Kintanji Jackson is probably the frontrunner, a former Brier clerk. She sits in the Merrick Garland seat so President Biden could say, you know, I'm looking back at what happened to Merrick Garland and I'm trying to fill his seat. And if they would put something like that forward, Jordan, not only does it appeal maybe to all the Democrats in the United States Senate, but she got three Republican votes when she was up last April for the D.C.

Circuit Court. So, so much of this, Jordan, is going to be about political atmospherics, not just for the Senate, but also for the U.S. House as you try to get control of both chambers. And you said this, I mean, these confirmation processes have gotten horrible. I mean, they're just, they're a terrible, terrible process.

I mean, I think it's bad for the country, but nevertheless, that is the process. Now, Andy referenced Robert H. Jackson. He actually was a lawyer, did not graduate from law school.

He read the law like Abraham Lincoln in the old days. But, so there's, but there is no constitutional requirement. But I suspect that the names you're going to hear today, one of those names is going to be the nominee. The ones that have been mentioned? Yes. Yes, I think that's true. I think that's probably likely.

And they may, they may expand that out over the next 24 to 48 hours. There could be some district judges. You know, I was thinking that we have a judge in the middle district of Georgia called Leslie Abrams, who is kin to Stacey Abrams, who happens to be a lawyer also. How old is she? She's very young, in her 40s or early 50s.

I think the age is going to be one of the biggest factors. Yeah. Yeah, she's a lawyer.

Legal trainer. I think she has more political ambitions. She might not want to take that move.

But again, it's hard to say no to that, because so far, political, you know, ambition is one thing. She hasn't served those jobs. I would say that there's also the, out of South Carolina, there's a judge there on the district court who is right now nominated for the D.C.

Circuit, who would fit this criteria too. She was born in 1966, so that's, what is that? She's 20 years, 10 years younger than me. She's 55.

Yeah, so she's right in that age. Yeah, so I mean, you've got, you have, there's a lot of factors here, so a lot of this is going to come into play, Wes. It is, and I think we want this to be a tough process of vetting this person and going before the Senate for hearings.

I don't want it to be ugly, like it's been in the past. That was so not who we are. You can ask tough questions without being ugly.

And as you said, Jay, the President has the authority to nominate him. It's never ugly for the Democratic nominee. Can I not ask about that? They asked Amy Barrett about her, I mean, have they asked about Amy Barrett about her religion? Are you too religious?

No, the dogma lives deep within you. Yeah, fine style. Yeah, yeah. No, I mean, I think, listen, I'm a little bit on the other side of that. I think put them through the ringer.

Make their life tough, because it's a lifetime appointment. And while it might not shift the court right now, this is going to be a progressive liberal for all intents and purposes. I mean, California Supreme Court Justice, who was a Stevens clerk, who was a very liberal, still, I mean, an outlier that he was so liberal at the time, even then. And it would often be eight to one. Yes, I mean, he was that liberal.

He didn't even need a loan to center. And she's the youngest of this group so far, which I think puts her right at the front. California helped, clicks the progressive boxes, clerked for the most liberal justice to the Supreme Court in history, Justice Stevens, and she's only 45 years old.

That means, that's a real lifetime appointment right there. But again, we can all be surprised. I just think Republicans, and I'll go to Than on this just quickly, they've got to be ready to do battle on it, Than, even if it's an uphill battle. Because there are two pretty moderate members of the U.S. Senate who have been, who have opposed the Biden administration when it's been too out of touch.

Here's the reality, Jordan. No matter who nominates a Supreme Court justice, no matter what the makeup of the U.S. Senate is, making sure that that nominee has fidelity to the U.S. Constitution, that is a serious responsibility. And I would tell you that all 100 members of the United States Senate have a duty, Jordan, to make sure that whoever's nominated has fidelity to the Constitution. It should be a rigorous process. I think it should be on the merits.

But all 100 of them, Jordan, have a duty to do it. Yeah. I mean, you know, this could take as little as 30 days. It could take months. Well, they're going to try to time it to when he is, the term's going to be over. It's just summertime. It'll be summer. They'll get the nomination before. Yeah. But the vote will be sometime next week. That's right.

Because he or she could prepare for that. We're going to begin our research at ACLJ on already these names that are out there. We'll keep you updated on this. Of course, we're going to keep you updated on Ukraine and Russia. Go to ACLJ.org to support our work. That's at ACLJ.org. We will talk to you tomorrow. We'll talk to you tomorrow.