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SMERCONISH

Smerconish Highlighted the Rise in the Economy; Scott Adams Shared a Concern that Any Good the Trump Administration has Accomplished has Been Brushed Off and How Much Influence the Obama Administration had in those Accomplishments; David Litt Drew Attention to the Disconnect Between Trump's Words and Actions; The Incarceration of Rapper Meek Mill Was Examined; The Issue of a Disproportionate Number of African-American Males Incarcerated Was Discussed; Thrush to Judgement, Trump Packing Courts with Conservatives. Aired 9-10a ET

Aired November 25, 2017 - 09:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


[09:00:00]

MICHAEL SMERCONISH, CNN ANCHOR: I'm Michael Smerconish in Philadelphia. We welcome our viewers in the United States and around the world. Well the President rightly brags that economic indicators are booming, his approval ratings are still bottoming out. Why the disconnect?

And when rapper Meek Mill violated his decade-long probation with a minor infraction, the judge sent him back to jail. Is he the right face for a national conversation about mass incarceration? Plus, "The New York Times" suspends White House reporter Glenn Thrush, pending investigation of sexual impropriety but in his case has the pendulum swung too far?

And perhaps the greatest achievement of President Trump is something that gets scant attentions. Behind the scenes, he's repopulating the federal bench and that will have a long lasting impact. But first, yesterday was Black Friday, today is Small Business Saturday. Cyber Monday is coming and cash registers are jingling across America. The stock market remains high, the unemployment rate is low and maybe heading further downward. Just last week, Goldman Sachs said the unemployment rate now 4.1 percent could tumble to 3.5 percent by the end of 2019. President Trump welcomed that news in a Tweet saying, under President Trump, unemployment rate will drop below 4 percent analyst predict, economic boom for 2018.

On Friday, the S&P 500 closed above 2,600 for the first time ever and yet one year after an election, in which, one candidate won the popular vote, and another the electoral college, Americans remain fundamentally divided, the man in the White House deeply unpopular. President Trump's disapproval rate is about 55 percent according to Gallup.

That's poorer than some of the least popular modern American Presidents. So when are the economic metrics going to catch up with to the polling numbers or when are the polling numbers going to catch up with the economic metrics? In 1992, James Carville famously summarized the key issue in the presidential race with these words, it's the economy stupid.

Well no more, President Obama presided over eight years of economic recovery, while his disapproval was never as high as Trumps. According to Gallup, he never enjoyed a sustained approval rating beyond the mid fifties. Viewed this way, the nearly nine years of economic growth under both Obama and Trump, beg the questions of whether these two bed rock load stars of American life, the economy, and the presidency, are now permanently disengaged.

Shy of a national security emergency, have we witnessed the end of days when Americans can generally agree on the job a president is doing? Apparently so, and that is yet another sad reflection of our deep partisan divide. Joining me now, Scott Adams, he's the creator of the beloved office worker cartoon, Dilbert.

He was one of the earliest to recognize, Donald Trump's likely victory. He's also the author, most recently, of the book, Win Bigly: Persuasion in a World Where Facts Don't Matter.

And David Litt is here, he's the former speech writer for President Barack Obama and author of the book, Thanks Obama, My Hopey Changey White House Years. He's currently the head writer producer for Funny Guys, Washington office. Scott, you first, react to my commentary, why the disconnect?

SCOTT ADAMS AUTHOR: Well I think you'll never see a situation like this again possibly, where the President's personality is such a big part of people's impression of the presidency. So I think the economics and the personality will be forever disconnected, especially when you have a president whose brand is being politically incorrect.

Because you're going to start with the third of the country who is going to hate whoever's in charge, just because they're on the other team. And about a third of the country, in my opinion, as a professional humorist, doesn't have a sense of humor, and I mean that literally. About a third of the population, pretends to have a sense of humor but kind of doesn't. And if you have a funny president who likes to be politically incorrect...

[09:05:00]

SCOTT ADAMS, AUTHOR: Well I think you'll never see a situation like this again possibly, where the president's personality is such a big part of people's impression of the presidency. So I think the economics and the personality will be forever disconnected, especially when you have a president whose brand is being politically incorrect.

Because you're going to start with the third of the country who is going to hate whoever's in charge, just because they're on the other team. And about a third of the country, in my opinion, as a professional humorist, doesn't have a sense of humor, and I mean that literally. About a third of the population, pretends to have a sense of humor but kind of doesn't. And if you have a funny president who likes to be politically incorrect, You have a third of the country that is harder to turn no matter what is happening with the economy. SMERCONISH: Scott, your book is all about persuasion. Is there any amount of persuasion that would cause those who did not vote for Donald Trump to re-evaluate in some cases their antipathy for the man?

ADAMS: Well, time will help. If we're looking at the end of his term and the economy is still doing great, then people are going to start to say, well, that may be a little bit more Trump than Obama. But everybody's first year is always going to be filled with I think it's this President. No I think it was the last President who got us going. And because the economy is this big complicated thing with so many variables, everybody can find something to like and something not to like. I like the GDP but I don't like the deficit. I like the jobs but I don't like the wages. So there's plenty of fodder for confirmation bias for people to lock into whatever opinion they already held.

SMERCONSIH: David Litt, you guy never got the full acknowledgement and credit that frankly I think he deserved for bringing us out of the morass of 2008. So it's not just a phenomena on the Trump watch.

DAVID LITT, SPEECH WRITER AND AUTHOR: That's true, they're different phenomena I think. I think for President Obama we saw over and over again, the economy was improving and for the most part, the conservative media echo chamber said no it's not. I think with Trump it's a little different. I think it's great that the economy is improving under President Trump. I would rather it improve than not. I think it's important for Americans but I think what's dragging down President Trump's approval rating for very good reasons, is the other stuff that he's doing. The fact that he referred to Neo-Natzis as very fine people or fired his FBI director in the middle of an investigation. I mean these are unprecedented times and I think that's what's being reflected in the President's approvals.

SMERCONISH: Scott, we can't even agree sometimes on the metrics. I remember when it was candidate Trump and the unemployment rate was decreasing under President Obama. He would say well it's because people are no longer looking for jobs and yet now if it's 4.1 percent on his watch, he's happy to accept it?

ADAMS: Yes, you know the President can't do everything about the economy. There are only a few levers that a President has. And one of them is our sense of optimism. Because if everything else is OK, you don't have shortages in your economy, and we don't, optimism and psychology are what drives things forward. So you do want a President who claims credit for things that may be even a little bit of an over claim because that's what makes people say, well, things are looking good. We heard it from the President. Let's invest now. And that's what actually makes it good. So you're watching a President who is actually attempting, and I would say succeeding at talking the economy up.

SMERCONISH: David Lit, I read a great analysis in "The Wall Street Journal" this week that said it depends where you are in the economy right now. Another-pardon me, where you are in the country right now, how you perceive the economy. Another reflection of this red state, blue state phenomena that if people are red staters right now, they're much more optimistic than those who are in the blue states?

LIT: Well, I think, you know Scott talked about talking the economy up but I think there's one thing I learned as a speech writer in the White House it's that actions do speak louder than words. And I think if you look at Democrats right now, there's a real fear. People remember what it was like in the Bush years when we passed huge irresponsible tax cuts. We were promised growth forever. Instead, we ended up with a recession. Democrats had to go clean it up. And now, what are we doing? We're looking at more huge irresponsible tax cuts. Some of the pessimism that I think a lot of my fellow Democrats feel is not about the state of the economy today, it's about passing a tax bill just as one example that even "Forbes" magazine says could lead to an economic crisis. That does make people more pessimistic and frankly I think it should.

SMERCONISH: Scott, go ahead and react to that.

ADAMS: Thing for the economy, for most people, the economy is this big ball of magic that we don't understand. And even Nobel-winning economists are making predictions that have been way off. People can pick and choose whatever they see, whatever they want to believe. And I can certainly see how there would be some pessimism especially given the way the news covers the President. You know when Charles Manson died recently, there were two major publications that tied him to President Trump in some tortured way. So when you're getting that kind of coverage and you've got an economy where you can pick and choose whatever you want as the good parts or the bad parts, people are going to come down on different sides and you just can't make them budge.

SMERCONISH: OK, David Litt, are Carvelle's words from '92 now passe? Electorially speaking, when we get to 2020 will it no longer be the economy is stupid because people will simply view the events through their own partisan lens?

[09:10:00]

We can't even agree when things are going well versus when they are not going well?

LITT: I think the economy will continue to be important. When we say the economy, I don't mean asking Americans how's the economy doing? Because that is a big question. It's hard to wrap our heads around something that is as large as the American economy. But if you ask Americans are your personal finances looking up or looking down? That will matter but other stuff will matter too. And I think right now, if you look at what President Trump is doing, whether for example just the other day when he suggested Americans should vote for a child molester because he would like to cut taxes for corporations in his own family, Americans are going to think about those things as well. That's going to matter too. The economy will be part of it, but not the only part.

SMERCONISH: React to my question, Scott, as to whether Carvelle's words are now passe? ADAMS: I think that they're, they're still valid but there's a timing issue. So the first year everybody gets to say, well, it was really the last President. By the fourth year, it gets harder and harder to say that. So if things are still popping at the end, I think you'll see the President's approval go up a little. But there really is a cap in his case because people are also voting about personality and, you know other topics as well. So, the economy probably isn't as dominant as it was so if there's not a war, people are going to be looking at personality and that's going to be probably the biggest variable in approval.

SMERCONISH: Scott, David, thank you so much. Hope you had a great holiday.

ADAMS: You too, thanks for having us.

LITT: Thank you.

SMERCONISH: What are your thoughts? Tweet me @Smerconish or go to my Facebook page. I'll read some responses throughout the course of the program. What do you got Katheryn? Smerconish, sad how Democrats look right past Trump's accomplishments with the economy only to find fault at something trivial. OK, Brandon, I hear you, but are you consistent. Were you likewise, for the last eight year, meaning before President Trump came in, willing to give-all I'm looking for is consistency. Were you willing to give a similar level of credit to President Obama as he presided over our coming out of the morass of 2008? That's the question.

One more if we have time. Smerconish, the disconnect comes when his actions don't match his words. That and nobody likes him even some who voted for him. Znurse says that. Znurse, it's true that that election of last year was much in people's minds the lesser of two evils and that's how they cast ballots. I'm just frustrated at the observation that no longer can we even agree when we live in decent economic times and then we can debate how much credit he or she at the top deserves for it. But that's now a bygone era which is a shame.

Up ahead, amidst a cavalcade of prominent men of being sexually accused of sexual assault and misconduct, I found one expose of a "New York Times" reporter both questionable and a little troubling and I'll explain. And, is the probation system actually designed to keep return felons to jail? The emblematic case of Philadelphia rapper Meek Mill who has been on probation for a decade.

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[09:15:00]

SMERCONISH: How America's prison system deals with black males came into sharp focus this week in the high-profile case of Rapper Meek Mill who was sentenced here in Philadelphia for two to four years in prison for violating his probation. Rap mogel JayZ who's company signed Meek Mill wrote an op ad in "The new York Times" said this, "On the surface, this may look like the story of yet another criminal rapper who didn't smarten up and is back where he started but consider this, Meek was around 19 when he was convicted on charges relating to drug and gun possession. And, he served an eight-month sentence. Now he's 30. So, he's been on probation for basically his entire adult life. For about a decade, he's been stalked by a system that considers the slightest infraction a justification for locking him back inside. The judge in this case, who I should point out is herself African-American had been giving him chances throughout the years decided she'd had enough. He'll do the time and then be done. But a lot of his supporters feel he's emblematic of the situation of young black men in America. Here's a quick summary of his arrest record.

In 2008 at the age of 18 he was caught carrying a gun and drugs while shopping at a local grocery store. He spent eight months in prison and was later placed on probation for five years.

In 2014, Mill served six months in jail for traveling to perform without permission from the judge after a similar trip in 2016 he was sentenced to 90 days of house arrest. Those most recent probation violations both from earlier this year, they include a minor scuffle at a St. Louis airport with a fan who wanted a picture and riding a dirt bike on an empty street in Harlem during a music video shoot. Neither the D.A. nor his probation officer thought these incidents were prison worthy. Has he been treated fairly by the judge? As of 2015, African-Americans comprised one-third of the 4.65 million Americans who were on some form of parole or probation and blacks are more likely to be sent back to prison for probation violations. Joining me now Philadelphia Attorney Bryan Lentz and from L.A., Civil Rights Attorney Areva Martin. Bryan, is he the right guy around whom we should be building a national conversation about mass incarceration?

[09:20:00]

BRYAN LENTZ, PHILADELPHIA ATTORNEY: I think the answer is absolutely not. The mass incarceration conversation is really a conversation about reforming the laws that result in folks going to jail and to reform the laws, you need legislation. And in order to get those laws passed, you need to expand the constituency of the people that are interested in it. For instance, life without parole in Pennsylvania doesn't have a big constituency but it's an issue that should be addressed. There are people on-serving life in P.A. that shouldn't be in jail anymore. But if you highlight a case like this, where you start with this seriousness of the initial offense.j

He was initially accused of pointed a loaded firearm at a police officer while exiting a house that was about to be raided for drug dealing. He went to trial. The judge acquitted him of the most serious offense, but did find him guilty of drug dealing and possessing a n illegal firearm. She then gave him immediate house arrest following the conviction. So he wasn't held in custody pending his sentence. At sentencing the D.A. asked for five years in prison. She didn't give him five years in prison, she gave him probation. If you look at the docket, which is available online, which I have reviewed, it doesn't read like a probation history it reads like a concert tour history. The judge signed multiple orders granting him, while on probation,

permission to go to places like Athens, Greece; Dubai; Paradise Island, Bahamas; Turks and Caicos; Curacao, Cancun; and on and on. These are actual orders in the probation history that were signed by the judge allowing him essentially to pursue his career. So if you go back to the seriousness of the initial offense, he could have very easily spent the past ten years incarcerated but he didn't. so when you point to this as a reason for reform, those people that are with you yet are going to look at those facts and say I'm not for reform because this is a person who was convicted of a serious offense and given every opportunity to succeed.

SMERCONISH: Areva, it sounds like the docket, according to Bryan, reflects that he was given any number of breaks by this judge. AREVA MARTIN, LOS ANGELES CIVIL RIGHTS ATTORNEY: Yes Michael, let's talk about consistency. In your earlier block, you said all you're looking for is consistency. That's what we're looking for, those of us like JayZ who are speaking out on Meek Mill and this case. I live in California as you know, and I lived through the Lindsay Lohan era. So talk about five to seven to ten years of an entertainer who is before the criminal justice system time and time again, whose probation is revoked on multiple occasions who is allowed to travel for her career, who violates her probation to travel for her career, and who spent on one occasion, a whopping 84 minutes in jail.

And, then on another occasion, three months she was sentenced for which she served two weeks and repeated community service was given to her as her punishment. And she was ordered to go to rehab. We know in the case of Meek Mill, the three violations here. One has to do with drugs being in his system, opioids. The second has to do with this minor altercation in St. Louis which you mentioned and the third is popping a wheelie. Eight people involved, he's the only one charged. So this case to me is a perfect case to use to talk about the need for reform in the criminal justice system because it's another example of an African-American male who is getting a disproportionate sentence that wouldn't be the case in someone like Lindsay Lohan or someone who is not an African-American male. And I think every time these cases happen, it gives us an opportunity to have this conversation again and again and again.

SMERCONISH: Bryan, to Areva's point, from the outside looking in, it does sound like he's been under the tentacles of the law for at least a decade for whatever that incident was when he was 18 or 19 and to some they say that's just too long.

LENTZ: Well I think what the incident is important to emphasize. I don't know what Lindsay Lohan was accused of but this young man was accused of pointing a loaded firearm at a police officer that was about to raid a drug house. That's about as serious an offense as you can get without pulling the trigger or being involved, you know, a homicide or an assault with a firearm. So he was given an extreme break at the beginning. He was allowed to leave the jail and go on house arrest pending sentence. He was not given the mandatory minimum of five years. And he essentially got a non-prison sentence for what most people would consider a very serious offense involving guns and drugs. He wasn't stalked by the system. You can't say a guy that was allowed to go to Dubai and Paradise Island, Bahamas, while on probation was stalked by the system. And it isn't correct

[09:25:00]

to say that getting arrested multiple times while on probation is a minor infraction. You know, asking people that are on probation not to get arrested again is not really an extreme or oppressive requirement. There has to be some consequences for folks on probation that break the law and he broke the law.

SMERCONISH: Areva, go ahead and respond to that. And also I just want to put one other issue, if I may just put this in the mix, I also wonder-and I want you to respond to what Bryan just said, but I also wander if the outside influence helps or hurts Meek Mill in Philadelphia. I wonder if the judiciary will bristle at the likes of JayZ all of the sudden telling the judges how they should handle this case. Areva, go ahead. The floor is yours.

MARTIN: Yes, two things. It sounds like Bryan's argument is the O.J. Simpson argument. Because he wasn't found guilty of the for murder in California, let's be harsher on him in the petty theft that happened in Nevada. Likewise, with Meek Mill, because he wasn't given some extraordinary sentence ten years ago, let's be harsh on him now. The record is clear that over the last 10 years he hasn't been involved in any violent crime. He hasn't been convicted of a violent crime. There hasn't been any gun charges and the only drug charge has to do with his own use of drugs which Lindsay Lohan again in her case was given rehab, not two to four years in jail.

So I think we have to talk about consistency in these cases when we look at African-American men and how the criminal justice system treats them versus non-African-Americans. And as for violating a year of probation, I'm for law and order as well. I'm for people following the law but when they don't and they have minor infractions which is what we're talking about in the case of popping a wheelie or this altercation over a picture, jail time two to four years is not what is the answer. It's an expense to taxpayers and this is a young man that has proven himself worthy of and capable of rehabilitation. So that's what the criminal justice system should be focused on is rehabilitation. And as for the influence Michael-

SMERCONISH: Bryan-

MARTIN: I think-

SMERCONISH: Go ahead, I'm sorry Areva, yes, go ahead.

MARTIN: It may be negative. It may not be helping his case but it is helping in my opinion, this broader conversation about criminal justice reform and how African-American men are treated in the criminal justice system.

SMERCONISH: Bryan, I've got just 20 seconds, respond to that latter issue. Does it help or hurt when JayZ is involved?

LENTZ: It hurts because it, it, shows a fundamental misunderstanding of the probation system as it is applied in the city of Philadelphia. When you go to the table to say let's reform life without parole and your last case was Meek Mill, you have no credibility and it hurts those guys that are in prison now doing life that need help but can't get it because now the conversation is poisoned by having this individual as a poster child.

SMERCONISH: Arvea, Bryan, thank you. I really appreciate your insight. Let me say now what everybody else is saying via twitter and Facebook. Hit me with it Katheryn, what you got?

Smerconish, why should Meek Mill be special be not expected to follow the restrictions regarding his probation? I don't get it. I don't know that anybody is saying that he should be treated special. I think Linda the argument is that he is representative of a fundamentally flawed system. That's what I just heard from Areva Martin.

One more if I might. Meek Mill is the perfect face Smerconish. The amount of influence he carries will transition to millenials showing them that the mistakes he has done, the mistakes he has done be a lesson for long term. Look, I think we have a mass incarceration issue in this country. I think that the privatization of our incarceration system, our prison system, is problematic. Because when you build them, it's like what do they say? If you build it, will they come? Well, we built them and now we're going to fill them. I'm questioning whether this is the right case around which to build that conversation.

Still to come, President Trump may lack for legislative achievement but he's making up for it with the pace at which he's repopulating the federal bench. Will this turn out to be his longest-lasting legacy? And "The New York Times" has suspended one of its White House reporters while investigating his alleged sexual impropriety. But has the pendulum now swung too far in the field of sexual harassment?

[09:30:00]

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MICHAEL SMERCONISH, CNN ANCHOR: Last week, I spoke here grateful that society is finally getting to the point of recognizing that women have the civil right to be left alone. Since then, still more bad deeds have been exposed and have led to consequences.

The most prominent being the downfall of talk show host Charlie Rose but as the press continues to uncover stories of disturbing, inappropriate and actionable male behavior, I worry that the pendulum may be swinging too far. The story that gave me pause involved "New York Times" White House reporter and MSNBC contributor, Glenn Thrush who was suspended by the "Times" after "Vox.com" ran a story citing four young reporters who accused him of inappropriate advances.

The "Vox" headline, I think, is telling about the thin nature of the story. It reads exclusive, "New York Times" White House Correspondent (00:05:00) Glenn Thrush's history of bad judgment around young women journalists.

Have we reached a point where bad judgment is worthy of a professional death sentence? If you don't recognize Thrush's byline, you might remember him as one of those depicted on "Saturday Night Live" who was being berated by Melissa McCarthy in the spicy sketches.

(BEGIN VIDEO CLIP)

MELISSA MCCARTHY, COMEDIAN: We'll do a couple questions. Go. Glenn Thrush, "New York Times," boo. go ahead. Just by a show of hands, who here hates Glenn, right? Everybody, one, two, three, infinity.

(END VIDEO CLIP)

SMERCONISH: Now, according to the story, last June, Thrush attended a going away party for a "Politico" colleague and spent time with a 23- year-old reporter. He suggested they go for a walk outside. After they left the party.

She said, Mr. Thrush kissed her and tried to hold her hand. "Vox" ran a long text exchange from the woman's friend who was checking up on her and criticizing Thrush for his behavior. And Thrush's responses to the friend are both apologetic and responsive.

One excerpt, "It was a terrible fight and I feel like a jerk. I really feel strongly about not creating a toxic environment." To the woman herself, Thrush had texted the following morning, "Nice meeting you and apologies."

And she responded congenially, "It was nice meeting you, too, and no worries, ha ha." In response to his suspension, Mr. Thrush released a statement addressing this most recent episode as a "life-changing event." He said, the -- "The women -- the woman," pardon me, "involved was upset by my actions. And for that I am deeply sorry.

Over the past several years, I have responded to a succession of personal and health crises by drinking heavily. During that period, I have done things that I'm ashamed of, actions that have brought great hurt to my family and friends.

I have not taken a drink since June 15, 2017, have resumed counseling and will soon begin outpatient treatment for alcoholism. I'm working hard to repair the damage I have done." Well, the "Times" is understandably on high alert about any such charges about its employees.

Because it's been on the vanguard of the exposes of powerful men including Harvey Weinstein and Louis C.K. They don't want to risk any credibility on the issue. I don't know what happened here. I have only "Vox's" story to go on. It sounds like he was boorish and hammered.

And she, herself, texted a friend that she was drunk. So does the conduct of a married man holding the hand of and trying to make a move on a younger woman warrant him losing his job? Thrush acknowledges and imbalanced power dynamic.

But this case doesn't seem the equivalent of the many others where men were forceful with women, some of whom working in a subordinate capacity. Let's check in on your Twitter and Facebook comments. What do we have, Katherine? Smerconish line is blurried by laws of attraction.

Women welcome the same boorish behavior when they are interested, #confusingforguys. You know what's interesting? I read that tweet without looking at your name and was assuming as I read it that the gender was male but the gender was actually female.

I'm just saying we want to be careful that the pendulum -- look, bad behavior needs to be punished and those who preyed on women within the workplace inappropriately need to be fired.

I just want to make sure that the pendulum doesn't swing so far that the due process rights of men are ignored. That was my point. The Trump administration, is my focus next, may not have many big legislative victories.

But the president is having enormous impact on everyday life that many don't realize. Next, the secret to his success.

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SMERCONISH: Though, many have attacked the Trump administration for its inability to accomplish its legislative agenda, that's decidedly not the case when it comes to transforming the federal judiciary and it's proof that elections do have consequences.

Since taking office, President Trump has nominated 59 people to federal judgeships. One hundred and forty-five more seats are open. Thirteen of Trump's judicial nominees including justice Neil Gorsuch have been confirmed by the senate.

At the same point in his presidency, President Obama had just three judicial nominees confirmed including Justice Sonia Sotomayor. Senate Republicans are trying to erase these nominees through the confirmation process.

Including several that have been rated unqualified by the American Bar Association. Ron Klain, the former chief of staff to Vice President Joe Biden and Al Gore, writes in the "Washington Post" that "By sometime next year, one in eight cases filed in federal court will be heard by a judge picked by President Trump.

Many of these judges will likely still be serving in 2050. Joining me now to discuss, Jeffrey Rosen. He is, of course, the president and CEO of the National Constitution Center.

He's a professor at George Washington Law School and a contributing editor at "The Atlantic." Jeffrey, is this his lasting legacy?

JEFFREY ROSEN, PRESIDENT AND CEO, NATIONAL CONSTITUTION CENTER: Yes, the appointment of judges will be President Trump's most important legacy, in addition to Justice Neil Gorsuch and any other Supreme Court justices he could appoint, which will completely transform the court.

President Trump, as you said has made judges far more of a priority than President Obama and by nominating 60 judges at this point in his presidency at a time when Obama had nominated only 20, he's also transforming the judiciary and this is an ageing bench.

Almost (00:15:00) 250 judges are eligible for senior status. That means that they can retire. So simply, we're going to see a lot more seats come open and by appointing conservative and able and determined judges, President Trump will transform the shape of the judiciary for decades to come.

SMERCONISH: Why does it matter?

ROSEN: It matters because on issues from network neutrality, which we're seeing in the news. The Trump administration is trying to repeal, which requires Comcast to treat Hulu and Netflix equally, to affirmative action, to voting rights, to abortion, to contraception.

To all the issues at the center of American life. Most of these issues are decided not in the Supreme Court. Although, that's hugely important. But in lower courts. The Supreme Court decides only 80 cases a year. Lower courts decide up to 60,000.

And on all of these issues, we're going to see a dramatic difference between Trump and Democratically appointed judges. The appellate courts will flip from Democratic to Republican and as a result, Americans' lives will be transformed across a whole range of issues.

SMERCONISH: How would you assess the quality of the nominees whose names he's put forth?

ROSEN: Broadly, they have been strong, able, determined, intellectual conservatives. Many clerked for former justice Antonin Scalia. Some are respected by liberals as well as conservatives, like my friend the University of Pennsylvania scholar Stephanos Bibos.

Who's just been confirmed to the Third Circuit. Some, as you've said in your introduction, have been rated as unqualified by the American Bar Association either for making inflammatory comments about Roe v. Wade being wrong or for their temperament.

Although, those ratings are contested but broadly, I would say they're able, smart but extremely conservative and they're chosen for being young and conservative and because the administration thinks they will transform the law.

SMERCONISH: You say young and conservative. Has he outsourced this is process to The Federalist Society?

ROSEN: The White House Counsel Don McGahn spoke at The Federalist Society recently and said, "I don't know about outsourcing. I've been a member of The Federalist Society ever since I was in law school. So, this is insourcing."

The truth is the conservatives to their credit really care a lot about the federal courts and through The Federalist Society, they left has the same organization, the American Constitution Society, they've just identified a really strong bench of strong, able conservatives.

And it's so interesting that President Trump has published a Supreme Court list. He recently added five names to it. It's true that he's consulting with The Federalist Society.

But it's more a sign of the intellectual coherence of the Republican commitment to transforming the court rather than any nefarious scheme.

SMERCONISH: OK. So, you've made the argument that as things stand, President Trump will have an enormous impact on the composition of the federal bench. You know that there's talk out there of increasing the size of the federal judiciary. Do you see that as a realistic prospect?

ROSEN: It's a fascinating suggestion. Viewers should check out Steven Calabrese's article. He was a founder of The Federalist Society and he has proposed increasing the size of the bench from 30 percent to 50 percent.

Adding new judges on the grounds that the judiciary is overworked. Now, Democrats say it's not overworked at all. The chief justice has said they've got plenty of time.

He has asked for these seats and so forth. But one draft of the tax bill actually includes a proposal to increase the number of judges. So, it doesn't seem completely impossible. It would be hotly contested. It might be challenged as being outside of the ordinary procedures.

But the fact that it's on the table suggests that we could see a drama -- you know, not since the court packing plan during the new deal have we seen such an ambitious proposal to really dramatically increase the size of the federal bench.

And if Republicans can get it through while they still hold congress, they may well try.

SMERCONISH: Right, and if they were to get it through then you know who would fill those slots, President Trump.

ROSEN: It's really impossible to understate. You're so -- it's so important, Michael, that you're doing this segment because simply by filling the existing vacancies and the ones that are to come, President Trump will transform the judiciary and cement his legacy.

But if the judiciary were to be increased by 30 to 50 percent and President Trump were to fill all of those seats, American law, the meaning of the constitution would be transformed in a way that we really haven't seen probably since the shift in the 1930s from the old court to the new.

It is a huge significant proposal and it's important for Americans to pay close attention to these lower court nominees.

SMERCONISH: Jeffrey Rosen, thank you so much for that analysis.

ROSEN: Thank you so much for having me.

SMERCONISH: Still to come. Your best and worst tweets and Facebook comments, like this one. Smerconish, regardless who appoints them, a judge's duty is to interpret the law impartially. Those who don't should be removed.

Julio, you make it sound so simple, as if everything in that constitution is black and white. Take it from this attorney, that's just not the case. Back in a sec.

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SMERCONISH: Hey, thanks for watching. Remember to follow me on Facebook and Twitter. Here's some of what's come in during the course of the program. Hit me with it, Katherine. "Smerconish, got news for you, Michael. People vote with their pockets. Polls do not mean anything.

If the economy is booming in three years, Trump wins re-election and you know it." Richard, no, I think there's now a disconnect in this country. Carville was right in '92 when he said it's the economy, stupid, but we can't even agree.

We are so polarized, we can't even agree on the metrics anymore, and it becomes a subjective decision (00:25:00) as to whether the economy is doing well. I'm all for consistency.

Obama deserves credit for bringing us out of that morass of 2008 and if the economy does well on President Trump's watch, I will say the same thing about him. Hit me with another one. "Glenn Thrush should have his suspension reversed. Stop dating people you work with."

Marianne, I think you'll probably find that most marriages today predicated, premised on someone that you met in the workplace or that you were going to school with. Give me another one, if you would.

"Smerconish, where was due process when these women were sexually assaulted?" I didn't talk about Harvey Weinstein, did I? I mean, that was not the focus of my remarks. I wasn't saying, "Oh, poor Harvey."

I'm just trying to ensure that the pendulum doesn't swing so far because of the worst conduct of men that some that was in poor taste doesn't become a professional death sentence. That was my point about Glenn Thrush. And all I know about that story is what I read at "Vox" but the headline itself told me that the story was a little bit thin. One more if we've got time.

"Well, we, in the black community, need to hold ourselves accountable for ours actions that could lead to incarcerations. This is a systematic problem of causing black --" I just don't know, Mr. O'Reily whether Meek Mill should be the poster case for a very important conversation about mass incarceration. I'll see you next week.

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