GLENN: Kelly Shackelford is the president and CEO of FirstLiberty.org. He is probably the guest that everybody wants to have on this week talking about the new Supreme Court nominee and the hearings that are going on this week because this is what he does for a living is look at the courts in regards to religious freedom, especially, but freedom and the constitutionalist view of the Supreme Court nominee. This is what he does. He looks for the case to be made. Do the Democrats have a case to be made that this guy is out of control? Do we have -- can we take real solace in the fact that this guy won't turn out to be John Roberts. We go to Kelly beginning right now.
Welcome to the program, Kelly Shackelford, how are you?
KELLY: Great.
GLENN: It's good to have you here.
KELLY: Good to be here.
GLENN: You were looking at the list of all of the Supreme Court nominees when they had a list of 20, and I believe he was on your short list, Gorsuch, of somebody that you felt pretty comfortable with. Going into this, how comfortable are you that he's not John Roberts or any of the other conservatives that we always nominate, and then they always turn out to be a huge progressive?
KELLY: Well, there's a few things about him and what Republicans were doing in the past. In the past, there's this Republican thing of picking people without a record. And John Roberts, for instance, I mean --
GLENN: That was Ted Cruz's argument against him.
KELLY: And that's what people did. Now, John Roberts has been solid on most cases. ObamaCare twice, inexplicably.
GLENN: He wrote the law.
KELLY: Exactly. I will point out it was those two cases that -- not on the same-sex marriage case or the --
GLENN: Pretty big, though.
KELLY: I agree with you. But John Roberts was the guy who had no record. Now, that usually says one of two things. If you're 50 years old, and you have no conservative record, you're either --
GLENN: You're not a conservative.
KELLY: You're either not a conservative, or you're hiding. And if you're hiding, then how much courage are you going to have when the heat's on? That's the approach that the Republicans had. That's not their approach anymore. Really it, it changed. You have Harry being appointed by President Bush. That didn't work. So they went back and said I'm going to pick a full fledged conservative with a long record and guess what? Alito got through. They tried to filibuster, they got 25 votes. So since then now, it has changed. When you look at Gorsuch, he had 3,000 opinions that his name's connected to. Either he wrote or joined those opinions. So you see a long sloth of where his philosophy has been, what he believes, where he stands, so that's a little different.
GLENN: Chuck Schumer said there are many reasons to fear him. But the one that they're going after is that he's a corporatist, that he's always for the corporation and he's just going to sink us all because smokestacks will be everywhere.
KELLY: Really silly. What you find with Gorsuch is he doesn't really care who the plaintiff and told are. He's just going to go what does the law say? And that's the result. And the funny thing when you ask him if he's this person that you're saying he is, then what are the opinions? And if you pull out two or three opinions, he'll go wait. Those are unanimous, and you have a liberal Democrat joining on the opinions. So I've never seen such a weak set of attacks on anybody. They really don't have anything on him, so I think their only hope is to create something in the hearing to hope that he says something or does something. Because I think right now, they're in serious trouble at trying to stop.
GLENN: It seems like -- I mean, it was a really big deal. A lot of people voted for Trump because of this. In fact, I would say perhaps a majority of people voted for Trump because of this. And yet, here we are on the hearings, and it doesn't seem like it's going to be a big deal. It doesn't seem like when we were building up, we knew that was going to be a big deal and a big fight. Is it because we're replacing Scalia that it's not that big of a deal? Or what's happening?
KELLY: I think that's part of it. I think part of it most people for whatever reason don't even know it's occurring. We put a website up TrumpNominee.com where people can, like, watch the hearing, get the information, you know, where does he stand, what are his past opinions, what does the NRA say about him, what do the right to life say about him, what do the different groups out there have to say, I think most people have no idea that the hearings are starting this week.
GLENN: Starting today. We won't hear from him until later this afternoon.
KELLY: Right. It's something they don't know. And the media I think is probably not playing this up because I think they realize that as far as the left wing, this is not going to work out well for them, most likely. So they're not highlighting this. I do think, you're right, though, I do think if we had the next nominee.
GLENN: The next one's going to be big.
KELLY: The rumors are it's going to happen soon, like, within the next year. And let's say if Kennedy did step down, now you're talking about the control of the court because you essentially -- when you had Scalia, you had four conservatives, four liberals, and one that moves back and forth.
GLENN: Kennedy was a conservative appointed; right?
KELLY: He was, but he has been voting on both sides of the issue.
GLENN: Never trust a Kennedy.
[Laughter]
KELLY: Theoretically if you replace Kennedy, you're talking about a lot of huge issues now that if you had issues. You're talking about big issues. You can see the other side would really come out for that next seat. Where this, really, the conservatives the best they can do is stay even with replacing Scalia.
GLENN: Correct.
KELLY: Now, I think they're going to do that. In fact, some people may think that Gorsuch was more conservative than Scalia. But not as conservative as Thomas. But more conservative than Scalia.
GLENN: How close are these guys? I know that Scalia and Ginsberg were really close and good friends. I really wish that Ginsberg would have spoken at his funeral, because I would have liked to show America that you can be on complete opposite ends of the spectrum and still be good friends. But how close is Thomas with Roberts? Do they influence each other at this point?
KELLY: I don't know how much they influence, but they are friends. The uniqueness of the Scalia/Ginsberg relationship, they grew up in New York. There was a real connection there. And they're friends with one another. They're in a very small, special group, obviously. But guys like Thomas aren't really influenced by what other people say or do.
GLENN: So do you think -- I mean, Calvin Coolidge, nominated a good friend of his who is a staunch, he thought, conservative. He gets onto the court, and he's so bad, he becomes proving that even FDR makes him the chief justice. Really crazy. Do they get in to the court, do you think some of them get into the court and think "Well, now I have such an important position, and I want to legacy."
Does that happen?
KELLY: Yeah, I think the old cocktail circles in DC wanting to fit in, wanting to be accepted. I mean, that's always what people really worry about. I think that's one of the unique things that Gorsuch has going for him that a lot of others didn't, and that is his mom was the head of the EPA under Reagan and was savagely attacked by the Democrats. And he felt that sting. It's well-known. I think he knows who his friends are and aren't, so I don't think he would fall into that trap.
GLENN: That's the best case I've heard yet.
KELLY: When you have somebody, though, who doesn't have a lot of record, and then they go in there, and then they get the social pressure, you can see that kind of thing happening. Again, Gorsuch has 3,000 opinions connected with him. He has a pretty strong, deep philosophy that's been expressed for many years. Anybody can surprise us; right? I mean, people are people but, you know, this is about as good of record -- we're a group that focuses on religious liberty. We've never seen anybody with this many solid religious liberty opinions. I mean, he wrote the lower court. He was involved on the right side on hobby lobby, on little sisters of the poor, on just a number of these cases where you've heard about them later and maybe he was in the dissent, depending upon which one it was. But he always did the right thing, wrote an excellent opinion, stood for religious freedom, so I think he's going to be good on a lot of the constitutional issues that your listeners really care about. Really solid because he's an originalist, and he doesn't think it evolves what he wants it to mean, which is the common approach.
STU: I've heard the argument Gorsuch has made a lot of decisions that would indicate he would be on the pro-life side. However, there's never been a specific ruling by him on abortion. What is your level of concern on that?
KELLY: I don't really have any. Again, he's really solid about what does the constitution say? He's not going to create things that aren't there. He criticized -- there's an article where he actually criticized the LGBT community for trying to use the courts instead of the legislative process and opinion. So even if he would agree with something, you would never think to use the courts.
GLENN: You think there is a constitutional case for pro-life?
KELLY: I think he is more likely to say this is something left to the legislative process.
GLENN: I'm asking you. Is there a --
KELLY: There's an argument. People can argue under the 14th amendment. There's a right to life.
GLENN: What about the preamble?
KELLY: Yeah, I mean, there are people that look at that and say he would look at the original intent of what the founders were doing with those things, whether they were trying to create a substantive right. Again, I think you're going to find a lot of the more conservative judges are more -- if it's not clearly there, then let's leave it to the legislative process.
GLENN: Why is that when, you know, I quoted several of the signers of the constitution and decoration today that took a stand. I mean, this was not unheard of in the day. Abortion was a thing, and they all came out as that's murder. Why is that not in the constitution or do they just think it was so plain that murder is murder?
KELLY: I think that's it. There are a lot of things that they couldn't conceive that we would have to deal with. I mean, same-sex marriage; right? A lot of these things we're seeing now, they didn't even think of, so they didn't address them, necessarily, in the constitution in a direct way. I do think Gorsuch, you got a little bit more on where he stands, at least, personally. He wrote a book on euthanasia. His editor of the book was professor Robert George. Probably one of the most well respected --
GLENN: Oh, yeah. Robby George is fantastic.
KELLY: A lot of people look at his education and see how incredible it was. He goes to Columbia undergrad, Harvard law school, and then he went to Oxford. A lot of people don't know why he went to Oxford. He went Oxford to study under the top brain in the world on natural law. A guy by the name of John Finnis, the guy who trained Robby George.
GLENN: Long-standing philosophy. Let me ask you this final question. Nobody is really thinking about this. But he's young enough to be dealing with in the next 10 to 20 years. Is he going to be able to handle or is anybody looking into the definition of life when it comes to AI? I mean, we're moving into the realm of trans-humanism, and that is going to be an issue. Have you seen anything from him on that?
KELLY: Well, I don't know how he would do -- you would have to look what legal case. But I think he's probably got the most extensive background to prepare him for that than any justice because, again, he studied his Ph.D. in understanding of natural law of life. What did he write his book on? Euthanasia. That he steeped on that philosophy.
GLENN: I wonder which way he would go on that.
STU: Two questions. One is this the first question you have had about trans-humanism with Neil Gorsuch.
GLENN: We're ahead of the curve, I'm just telling you.
STU: And he's a good Trump skeptic for Supreme Court because we were ought about it, and I didn't think it would be this good. I feel like Gorsuch is towards the top of that list and looking at it from my perspective, I think he did a great job with this pick. If you wanted your favorite guy for president, Rand Paul, Mike Lee, whatever, any of those guys, and they pick Neil Gorsuch, is that a good pick for them as well?
KELLY: Yeah. I think he's a good pick.
STU: It's that good.
KELLY: There are people out there that are, like, why aren't they on the list? But I'm not saying they're better than Gorsuch. I think we're going to have to wait and see, of course, after he gets on the court. But everything we see, we've got so many opinions. We have this steeped training background. We have this situation that happened in his own family where his mother was really unfairly treated by Democrats. So I don't think he's going to go to DC and cozy up. So there's a lot of things in his favor that, again, his manner is mild and humble and, again, I think that's why they can't attack him. They can't make him -- he's just -- that's not his personality. So I think they're really desperate during these hearings to get him to make a mistake, somehow, which I don't see him doing.
GLENN: If you really want to know where everybody stands from NRA on down the line, go to TrumpNominee.com. That's TrumpNominee.com. You'll be able to watch the hearings, get the analysis there, and, Kelly, I would love to have you back to get a highlight of what we saw, starting tomorrow because the hearings kind of start today with opening statements. Thank you so much, Kelly, appreciate it.
KELLY: Thanks for having me.
GLENN: TrumpNominee.com.
[break]
GLENN: I just asked Kelly to stay for a extra couple of minutes. How is he on privacy and the commerce clause?
KELLY: He's great on the commerce clause. On privacy, I would have to know what the issue -- what you're going to find with him is he's one of those boring guys that's going to say what does the statute say? What does the constitution say? What did it mean?
GLENN: For instance, the gathering information on everyone. I mean, to me, the constitution is very, very clear. No, unless you have a warrant.
KELLY: Yeah, I would think you would be solid. You see, privacy has been converted into all kinds of other things. It was the basis for Roe v. Wade, so you can stretch it and turn into something else. What you're going to find with him, though, is he's all about what does it say? And now, I do think one of the things that's really important -- I don't want to glaze people's eyes over, they show deference to bureaucrats. So congress passes a law, and they say we'll let the bureaucrats decide how to pass the law. And then they massively violate people's rights. Including criminal-type things. And then the court says we defer. We have chevron deference. He has been really strong on that saying, no, we protect our constitution.
STU: Better than Scalia on this issue.
GLENN: And that's where people like Mike Lee are going in congress.
KELLY: Absolutely.
JEFFY: Another thing you mentioned, there might be another opening.
GLENN: You said Kennedy.
KELLY: The rumors are there's going to be another.
GLENN: I've heard as soon as, like, ten months.
KELLY: That's very, very possible. I think we very well might have another one of these before a year from now.
PAT: So Kennedy maybe is stepping down then; right?
KELLY: He could be. He probably wants to step down under a Republican. He was appointed under a Republican. If you wait too late towards the end, then it gets stalled up.
STU: As every liberal in the audience is saying right now with Merrick Garland, you get too close to the end, you might not get a vote.
KELLY: So that's people talking about voluntarily stepping down if there's health issues, so that could be even more.
