Transcript

Big Alito Lies · Politix

0:00
SPEAKER_01: Do you think Alito's wife would fly the flag upside down at his funeral?
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SPEAKER_00: Half-mast, upside-down flag.
0:05
SPEAKER_00: I mean... Hey, everyone.
0:11
SPEAKER_01: You're listening to a free preview of The Politics Podcast.
0:14
SPEAKER_01: In this episode,
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SPEAKER_01: we're going to discuss the revelation that Justice Samuel Alito flew a Stop the
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SPEAKER_01: Steal flag over his house in the days after the insurrection,
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SPEAKER_01: the Democrats' decision or seeming decision not to press the issue beyond
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SPEAKER_01: seeking his recusal in January 6th cases,
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SPEAKER_01: and what all of this says about everything from the state of polling on abortion
0:35
SPEAKER_01: and Dobbs to the problems with democratic institution building that are compounding
0:41
SPEAKER_01: all of these difficulties.
0:42
SPEAKER_01: So I hope you enjoy the conversation.
0:44
SPEAKER_01: And if you want to hear the whole thing, you can upgrade to paid at politics.fm.
0:49
SPEAKER_01: Hey, everyone.
0:55
SPEAKER_01: Welcome to the Politics Podcast.
0:56
SPEAKER_01: I'm Brian Boitler.
0:57
SPEAKER_01: I'm Matthew Iglesias.
0:59
SPEAKER_01: So this week,
0:59
SPEAKER_01: we're going to use Justice Samuel Alito's apparent support of the insurrection as a
1:05
SPEAKER_01: jumping off point to look at a whole bunch of Supreme Court adjacent issues from
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SPEAKER_01: January 6th related stuff to abortion.
1:15
SPEAKER_01: So first,
1:16
SPEAKER_01: Matt,
1:16
SPEAKER_01: tell us how you really feel about the Alito stuff,
1:20
SPEAKER_01: because over the weekend,
1:21
SPEAKER_01: you somewhat tantalizingly tweeted-
1:24
SPEAKER_01: The official most important reason for Biden to win our health care,
1:27
SPEAKER_01: especially including abortion rights and affordable prescription drugs.
1:30
SPEAKER_01: But emotionally,
1:31
SPEAKER_01: my top thing is I do not want to see this corrupt Federalist Society racket be
1:35
SPEAKER_01: rewarded for all their fuckery.
1:37
SPEAKER_00: Yeah, I mean, there is a...
1:43
SPEAKER_00: The conservative legal movement that is well entrenched in American society and
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SPEAKER_00: that I think is very smart and hardworking and clever and keeps fucking the country
1:56
SPEAKER_00: in like subtle,
1:57
SPEAKER_00: very effective ways.
1:58
SPEAKER_00: You know, when you go all the way back to Bush v. Gore.
2:02
SPEAKER_00: right?
2:03
SPEAKER_00: And then you go back to Justice O'Connor choosing to retire in a strategically
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SPEAKER_00: timed way after picking her successor.
2:14
SPEAKER_00: You look at the steady rightward march of the Supreme Court over that period.
2:20
SPEAKER_00: You look at the way that a judge who Trump appointed has kept delaying
2:26
SPEAKER_00: There, Trump's classified documents, trial.
2:31
SPEAKER_00: You look at, you know, just a whole series of decisions that have been made over the years.
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SPEAKER_00: Justice Kennedy retiring, you know, when he did.
2:41
SPEAKER_00: I think that, to back it up,
2:46
SPEAKER_00: I think that one of the big temptations in political life is to think that like
2:50
SPEAKER_00: your enemies are super organized and ruthless and like your people are just like well-meaning,
2:56
SPEAKER_00: like la-di-da kind of folks.
2:59
SPEAKER_00: And, you know, I think people over-perceive.
3:02
SPEAKER_00: those kind of asymmetries.
3:04
SPEAKER_00: But I think that asymmetry is incredibly real in the specific field of the federal
3:09
SPEAKER_00: judiciary and constitutional law,
3:12
SPEAKER_00: that the conservative movement saw itself getting sort of outgunned by
3:18
SPEAKER_00: cultural elites in the legal system in the 1960s and 1970s.
3:23
SPEAKER_00: And they very deliberately went about to say,
3:25
SPEAKER_00: we need to have an organized system through which guys who have high SAT scores and
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SPEAKER_00: right-wing political opinions understand that if you want jobs as US attorneys,
3:37
SPEAKER_00: as district court judges,
3:39
SPEAKER_00: et cetera,
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SPEAKER_00: this is what you're supposed to do.
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SPEAKER_00: You're supposed to join the Federalist Society.
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SPEAKER_00: You're supposed to go to these meetings.
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SPEAKER_00: You're supposed to believe these kind of things.
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SPEAKER_00: And you will be inculcated in a professional network that places you in jobs and
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SPEAKER_00: places you into higher jobs.
3:54
SPEAKER_00: And it's a system that it has real standards of like academic performance and intellectual rigor.
4:01
SPEAKER_00: But it isn't just like we want to find smart guys who believe in tax cuts.
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SPEAKER_00: There's like a totalizing philosophy of
4:10
SPEAKER_00: that you're supposed to sign up for.
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SPEAKER_00: They have disagreements amongst themselves about things,
4:14
SPEAKER_00: as any group would,
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SPEAKER_00: but they defer to each other.
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SPEAKER_00: They make sure that their successors, you know, are appointed by the same group of people that they are.
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SPEAKER_00: They are the one sort of plank of the conservative movement that clearly had power
4:29
SPEAKER_00: over Trump,
4:30
SPEAKER_00: right,
4:30
SPEAKER_00: rather than vice versa.
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SPEAKER_00: He appointed guys from Leonard Leo's list,
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SPEAKER_00: and Leonard Leo,
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SPEAKER_00: like,
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SPEAKER_00: signed that deal,
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SPEAKER_00: both sides carried through with it.
4:40
SPEAKER_00: And, you know, they play both sides of the ball.
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SPEAKER_00: They both help Republicans win elections, you know, by ruling on procedural things.
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SPEAKER_00: And then they accomplish conservative policy goals that would not be popular enough
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SPEAKER_00: to sort of do on their own,
4:58
SPEAKER_00: right?
4:58
SPEAKER_00: So Republicans would never be able to just, like, substantially repeal the Clean Air Act.
5:06
SPEAKER_00: You know, like, it would be...
5:09
SPEAKER_00: The kind of asymmetry that we talk about all the time on here, right?
5:12
SPEAKER_00: We know,
5:13
SPEAKER_00: you know,
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SPEAKER_00: I know,
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SPEAKER_00: I think the listeners of this show know that Republican Party elites,
5:18
SPEAKER_00: conservative movement elites,
5:20
SPEAKER_00: would like to make it easier to pollute the air and the water.
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SPEAKER_00: But you have never seen a Republican Party primary pollute.
5:27
SPEAKER_00: Which like different presidential candidates or just like Senate candidates,
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SPEAKER_00: House candidates compete with each other to like pledge to be like,
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SPEAKER_00: I'm the guy who's going to let agribusiness dump toxic waste in the drinking water.
5:40
SPEAKER_00: And part of the reason why they don't do that is that there is no move afoot to
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SPEAKER_00: legislate the repeal of the Clean Air and Clean Water Act.
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SPEAKER_00: The judiciary instead is steadily working to make it harder and harder for
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SPEAKER_00: executive agencies to enforce these rules.
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SPEAKER_00: That is the plan.
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SPEAKER_00: That's what they've been doing.
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SPEAKER_00: With Dobbs,
6:01
SPEAKER_00: you had a issue that is so emotional to people and is so high profile that it
6:07
SPEAKER_00: actually did attract a meaningful amount of public attention.
6:11
SPEAKER_00: But every term...
6:12
SPEAKER_00: The Supreme Court chips away at aspects of the New Deal and the Great Society.
6:20
SPEAKER_00: And because of the way the court works, you get aggressive right-wing litigants.
6:26
SPEAKER_00: And so the more right-wing the court gets, the more aggressive the litigants get.
6:30
SPEAKER_00: And so it continues to be the case that the liberal side wins about half the time.
6:35
SPEAKER_00: But what it is the liberal side is litigating over keeps slipping further and further to the right.
6:40
SPEAKER_00: The public continues to have this impression that there's no big deal here happening.
6:46
SPEAKER_00: Democrats obviously appoint their own judges when they have the chance and are
6:50
SPEAKER_00: getting a little more of their shit together in terms of prioritizing this.
6:54
SPEAKER_00: But they don't have a message about the judiciary.
6:59
SPEAKER_00: When Merrick Garland was being bottled up by Obama, he could complain about it as a procedural matter.
7:06
SPEAKER_00: But he could not articulate.
7:08
SPEAKER_00: You know, like Obama's a good speechmaker.
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SPEAKER_00: And he never gave a good speech that was like, here's what's at stake here.
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SPEAKER_00: Like,
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SPEAKER_00: here's what replacing Justice Scalia,
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SPEAKER_00: who I think is bad,
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SPEAKER_00: with Merrick Garland,
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SPEAKER_00: who I think is good,
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SPEAKER_00: is going to accomplish for America.
7:26
SPEAKER_00: You know,
7:26
SPEAKER_00: and it's like,
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SPEAKER_00: Dobbs has given Democrats like a thing to grasp onto because abortion rights people get,
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SPEAKER_00: Democrats support it,
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SPEAKER_00: they have rhetoric about it.
7:35
SPEAKER_00: But there's like a million other issues in play in the American government.
7:40
SPEAKER_00: And the extent to which, you know, we are
7:44
SPEAKER_00: Slipping toward a politics where all that people talk about is kind of vague
7:51
SPEAKER_00: culture war,
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SPEAKER_00: you know,
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SPEAKER_00: posturing,
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SPEAKER_00: while actual policymaking is made by a judiciary that just rules out of bounds,
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SPEAKER_00: like the creation of powerful executive agencies and can do things is,
8:05
SPEAKER_00: you know,
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SPEAKER_00: what terrifies me about the modern world.
8:08
SPEAKER_00: And there's an incredibly real risk
8:10
SPEAKER_00: that if Trump wins and Justice Sotomayor's health doesn't hold up,
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SPEAKER_00: that we are going to be,
8:17
SPEAKER_00: you know,
8:17
SPEAKER_00: you never say never in life,
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SPEAKER_00: but like a 7-2 deficit with conservatives committed to strategic retirements and
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SPEAKER_00: progressive judges like not committed to that is going to be like an almost
8:30
SPEAKER_00: impossible deficit to climb out of.
8:33
SPEAKER_00: And I don't think because there has been so little groundwork laid for any of this, like I don't think it
8:40
SPEAKER_00: ought to be the core of a Biden re-election message,
8:44
SPEAKER_00: but it is really core to what I personally worry about.
8:48
SPEAKER_00: And the fact that the two most MAGA-pilled,
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SPEAKER_00: nuttiest justices out there aren't even the ones Trump appointed is...
8:57
SPEAKER_00: telling to me.
8:58
SPEAKER_00: In terms of my hot buttons,
9:01
SPEAKER_00: that's what I think about when it's like Sam Alito is doing January 6th signifiers.
9:08
SPEAKER_00: He's not a Trump crony in his origin.
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SPEAKER_00: That's not how he got there on the bench.
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SPEAKER_00: But he is 100% bought in on this project because MAGA is also 100% bought in on this project.
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SPEAKER_00: It's the thing where there is the least daylight between Trump and Bush,
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SPEAKER_00: and it's the most important part of the whole thing.
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SPEAKER_01: If the Alito stop the steel flag thing surprised me in any way,
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SPEAKER_01: it was insofar as I had...
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SPEAKER_01: I think Sam Alito is the most...
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SPEAKER_01: mercenary Republican justice on the court.
9:52
SPEAKER_01: Not necessarily the most extreme ideologically,
9:55
SPEAKER_01: like I think that's Clarence Thomas,
9:56
SPEAKER_01: but Clarence Thomas does have these sort of offsetting.
9:59
SPEAKER_01: He does feel like a tension between his partisanship and his ideology,
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SPEAKER_01: whereas Lito just seemed to me like a party hack.
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SPEAKER_01: And so I was like, I'm not really sure how
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SPEAKER_01: deep into MAGA stuff he is, except insofar as that's the Republican Party now and he wants to help them.
10:18
SPEAKER_01: The fact that he,
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SPEAKER_01: or like in his telling his wife,
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SPEAKER_01: like knows that they're like cryptographic,
10:27
SPEAKER_01: like their iconography and the secret signaling messages that they have in that
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SPEAKER_01: movement suggests to me that over time he has been,
10:37
SPEAKER_01: like actually become a reactionary crank, not just a partisan hack.
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SPEAKER_01: And that as Brett Kavanaugh ages and Neil Gorsuch ages, they might go in the same direction.
10:49
SPEAKER_01: But I like,
10:49
SPEAKER_01: so you gave like a really good big picture precise on why the Supreme Court
10:55
SPEAKER_01: situation is unacceptable,
10:58
SPEAKER_01: alarming,
10:58
SPEAKER_01: and Democrats don't seem like organized people.
11:03
SPEAKER_01: in the right way to sort of fix it in our lifetimes maybe.
11:08
SPEAKER_01: But like what you said about the Federalist Society being a genuinely professional
11:15
SPEAKER_01: organization in some ways,
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SPEAKER_01: I think is a good way into the specific reasons why the Alito flag incident is revealing,
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SPEAKER_01: infuriating,
11:29
SPEAKER_01: important,
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SPEAKER_01: and something that I think
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SPEAKER_01: Democrats really should not let
11:36
SPEAKER_01: disappear into the news cycle.
11:38
SPEAKER_01: Right.
11:38
SPEAKER_01: Because,
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SPEAKER_01: because Sam Alito comes up through that world,
11:42
SPEAKER_01: we know that quite apart from his partisanship or his,
11:46
SPEAKER_01: his cranky Magnus,
11:47
SPEAKER_01: like he's a well-trained lawyer.
11:49
SPEAKER_01: He's an intelligent person.
11:51
SPEAKER_01: He like,
11:54
SPEAKER_01: he may be a little bit brain pickled by Fox news,
11:57
SPEAKER_01: but he,
11:57
SPEAKER_01: he knows what the judicial code of ethics is.
12:03
SPEAKER_01: expects of him, right?
12:05
SPEAKER_01: And so do Eileen Cannon and all these judges coming up
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SPEAKER_01: like through the Federalist Society pipeline,
12:15
SPEAKER_01: have the training and the intellect to know what it would mean to be ethical people.
12:22
SPEAKER_01: And part of their rearing,
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SPEAKER_01: part of the reason they're chosen is that they are willing to not do that stuff.
12:32
SPEAKER_01: If you don't get to the Supreme Court in the modern Republican Party,
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SPEAKER_01: if you've shown no willingness to conduct yourself as a judge,
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SPEAKER_01: the way Alito is now,
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SPEAKER_01: the way Eileen Cannon is showing that she would if she got onto the Supreme Court,
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SPEAKER_01: the way that many circuit court judges like Naomi Rao act,
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SPEAKER_01: they are smart enough to know what ethics are,
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SPEAKER_01: and they cast them aside to prove judicial fealty to the Republican Party.
13:02
SPEAKER_01: And if they didn't,
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SPEAKER_01: they would have no upward trajectory.
13:07
SPEAKER_00: Right.
13:08
SPEAKER_00: I mean,
13:09
SPEAKER_00: I think an example of the asymmetry here,
13:12
SPEAKER_00: because it's an asymmetry that I think even the organizing that's happening doesn't
13:16
SPEAKER_00: quite get it,
13:17
SPEAKER_00: is you look at Neil Gorsuch's career,
13:19
SPEAKER_00: right?
13:20
SPEAKER_00: And so it starts off like everyone on the Supreme Court.
13:24
SPEAKER_00: I mean, the Supreme Court has changed a lot over the years, but all the current justices,
13:29
SPEAKER_00: are guys who had good SAT scores and good LSAT scores,
13:33
SPEAKER_00: went to good colleges,
13:34
SPEAKER_00: went to top law schools,
13:36
SPEAKER_00: did like law review type stuff.
13:38
SPEAKER_00: They were like star students in law school.
13:41
SPEAKER_00: Again, this isn't how justices used to be selected, but both sides do it this way.
13:45
SPEAKER_00: So you go to a good law school,
13:47
SPEAKER_00: you do well in law school,
13:49
SPEAKER_00: you get a clerkship on an appeals court with one of like the good appeals court judges,
13:55
SPEAKER_00: ideally.
13:56
SPEAKER_00: The feeders.
13:57
SPEAKER_00: Because then those feeder judges get you a Supreme Court clerkship.
14:00
SPEAKER_00: And so that's like,
14:01
SPEAKER_00: that's table stakes for the contemporary Supreme Court,
14:04
SPEAKER_00: which I think is bad,
14:06
SPEAKER_00: but like it is what it is.
14:08
SPEAKER_00: Gorsuch, after that, you know, he... Alito or Gorsuch?
14:13
SPEAKER_00: Sorry, sorry.
14:13
SPEAKER_00: You should look at Alito.
14:15
SPEAKER_00: That's who we're talking about.
14:16
SPEAKER_00: You know, they all have a range of different things that they do afterwards.
14:24
SPEAKER_00: But, like, Alito...
14:26
SPEAKER_00: worked in the Solicitor General's office for Ronald Reagan.
14:31
SPEAKER_00: He was an assistant to Solicitor General Rex Lee.
14:35
SPEAKER_00: Then he was Deputy Assistant Attorney General later in the 80s under Meese.
14:40
SPEAKER_00: He became the US Attorney for the District of New Jersey, which is just to say that he
14:48
SPEAKER_00: He was a lawyer for the Republican Party.
14:52
SPEAKER_00: You know what I mean?
14:52
SPEAKER_00: He was a very good lawyer,
14:54
SPEAKER_00: a distinguished lawyer,
14:55
SPEAKER_00: but he's a lawyer who held a series of low-level Republican Party political appointments,
15:02
SPEAKER_00: rising to mid-level Republican Party political appointments,
15:06
SPEAKER_00: rising to eventually becoming an appeals court judge.
15:10
SPEAKER_00: So that's a test not just of your ideas, but of what you want to do in life.
15:15
SPEAKER_00: I know lots of people who are liberal and who vote for Democrats.
15:20
SPEAKER_00: And I also know people who work in Democratic Party politics.
15:25
SPEAKER_00: And those are different kinds of people.
15:26
SPEAKER_00: Those are different life choices that you could make in the world.
15:30
SPEAKER_00: Somebody like Kentucky Brown Jackson is a very modern Democratic Party nominee,
15:35
SPEAKER_00: like same deal,
15:36
SPEAKER_00: good law schools,
15:37
SPEAKER_00: good clerkships.
15:40
SPEAKER_00: Then she leaves and she's done public interest-y type things because like the new
15:45
SPEAKER_00: thing is to try to find people who aren't just like corporate lawyers who support
15:49
SPEAKER_00: abortion rights.
15:50
SPEAKER_00: But this is like she worked as a public defender.
15:54
SPEAKER_00: which shows that she's progressive in her heart, which I'm sure that she is.
15:58
SPEAKER_00: I mean, I don't know her.
16:00
SPEAKER_00: But these are just kind of regular legal jobs.
16:04
SPEAKER_00: She didn't...
16:06
SPEAKER_00: work for, you know, she wasn't on the committee staff for an important Democratic senator.
16:15
SPEAKER_00: You know,
16:15
SPEAKER_00: Elena Kagan,
16:16
SPEAKER_00: who served as Solicitor General,
16:18
SPEAKER_00: is the closest to a Republican-style nominee,
16:21
SPEAKER_00: but she was also dean of Harvard Law School.
16:23
SPEAKER_00: It was more like,
16:25
SPEAKER_00: we want to bring in a distinguished academic into our administration than like,
16:30
SPEAKER_00: you know,
16:30
SPEAKER_00: we want to put a party person on the bench.
16:34
SPEAKER_00: So it's like half the Republican justices worked on the Bush v. Gore case.
16:39
SPEAKER_00: Yeah.
16:40
SPEAKER_00: Which like, again, that's telling, right?
16:42
SPEAKER_00: Like that's a big lawsuit, right?
16:44
SPEAKER_00: When you get a big lawsuit, you need a big time lawyer.
16:47
SPEAKER_00: But working Bush v.
16:48
SPEAKER_00: Gore is not as lucrative as working,
16:51
SPEAKER_00: you know,
16:52
SPEAKER_00: a complex civil litigation that goes to the Supreme Court.
16:56
SPEAKER_00: You take that case because you are a passionate Republican Party partisan, right?
17:01
SPEAKER_00: over and above whatever opinions you may have about constitutional law.
17:05
SPEAKER_00: For Republicans,
17:07
SPEAKER_00: but I shouldn't just say for Republicans,
17:09
SPEAKER_00: in the way the Federalist Society thinks about things,
17:13
SPEAKER_00: that is good.
17:14
SPEAKER_00: It is important to go to a good college.
17:16
SPEAKER_00: It's important to go to a good law school.
17:18
SPEAKER_00: It's important to score a good appellate clerkship.
17:20
SPEAKER_00: But it's also important to pay your dues in the Justice Department.
17:25
SPEAKER_00: or doing litigation work for Republican Party presidents, or working for Ken Starr, right?
17:31
SPEAKER_00: You are doing the political work of the Republican Party is one of your qualifications.
17:37
SPEAKER_00: And that's supposed to be the guarantor that you're not going to go suitor on.
17:42
SPEAKER_01: Right.
17:46
SPEAKER_01: Because that's the qualification,
17:49
SPEAKER_01: I think it's no coincidence that they behave – and I mean,
17:54
SPEAKER_01: the other half of this is that they have this very large majority and a bought-in
18:00
SPEAKER_01: Republican –
18:03
SPEAKER_01: But in Republican caucuses in Congress, so no accountability is coming.
18:07
SPEAKER_01: But because of that, that pedigree and those expectations.
18:13
SPEAKER_01: They do these things like what Eileen Cannon is doing down in Florida or what- What is she doing?
18:19
SPEAKER_00: Let's explain for slow boring readers who have not been following this case.
18:25
SPEAKER_01: She has most recently withdrawn a trial date in Trump's stolen documents espionage
18:32
SPEAKER_01: case without any indication of when she's going to reschedule it.
18:36
SPEAKER_01: And her-
18:38
SPEAKER_01: Um,
18:39
SPEAKER_01: justification for that is that she's got all these pending,
18:42
SPEAKER_01: um,
18:43
SPEAKER_01: undecided motions to look at,
18:45
SPEAKER_01: but she sets the schedule on those.
18:46
SPEAKER_01: So she's, she's basically built a pile up of delays, um, without doing anything to, to, um,
18:56
SPEAKER_01: end of the delays,
18:57
SPEAKER_01: which would require making decisions,
19:00
SPEAKER_01: some of which would be,
19:01
SPEAKER_01: in theory,
19:02
SPEAKER_01: appealable by the government.
19:04
SPEAKER_01: So then Jack Smith,
19:05
SPEAKER_01: the special counsel,
19:06
SPEAKER_01: could go to the 11th Circuit,
19:08
SPEAKER_01: I believe,
19:08
SPEAKER_01: and seek mandamus to either make her do things or take her off the case.
19:13
SPEAKER_01: But because she has chosen this trajectory-
19:18
SPEAKER_01: of just not making decisions and thus delaying the case, he has very little to actually appeal.
19:23
SPEAKER_01: And so Trump just gets an indefinite... His case is essentially in abeyance until she says otherwise.
19:33
SPEAKER_01: Presumably, her thinking is after the election, if he wins, he can just make the case go away.
19:38
SPEAKER_01: And then if he loses, she'll deal with that.
19:41
SPEAKER_01: She'll cross that bridge when she gets to it.
19:43
SPEAKER_01: So she is...
19:45
SPEAKER_01: Right.
19:46
SPEAKER_01: Right.
20:04
SPEAKER_00: So again, explain the flood.
20:06
SPEAKER_01: What happened?
20:07
SPEAKER_01: So there was one mystery about it is why it took four years for us to learn that this happened.
20:15
SPEAKER_01: But apparently there was like a spat among neighbors where there's either some like
20:20
SPEAKER_01: Democrats or anti-Trump Republicans who are the Alito's neighbors who got mouthy
20:25
SPEAKER_01: with them about their –
20:28
SPEAKER_01: you know, allegiance to this movement that gave rise to the insurrection.
20:32
SPEAKER_01: And they had like a fuck Trump sign in their yard or something like that.
20:37
SPEAKER_01: And in Justice Alito's telling,
20:40
SPEAKER_01: his wife got so incensed by this that her reaction was to hang an American flag
20:46
SPEAKER_01: upside down,
20:46
SPEAKER_01: which was among MAGA people and insurrectionists,
20:52
SPEAKER_01: like a stop the seal emblem.
20:55
SPEAKER_01: And
20:56
SPEAKER_01: judicial ethics rules prohibit judges and justices from putting any kind of
21:02
SPEAKER_01: insignia on their property that indicates their partisan leanings,
21:07
SPEAKER_01: right?
21:08
SPEAKER_01: And this flag flew for days upside down, according to the reporting.
21:14
SPEAKER_01: And then many years went by and now
21:18
SPEAKER_01: Alito is ruling, um, unrecused on all kinds of January six related cases.
21:24
SPEAKER_01: Um, and the fact that he's been exposed as a, you know, pro insurrection justice, um,
21:32
SPEAKER_01: isn't, at least at this point, leading to his recusal.
21:37
SPEAKER_01: I mean, he can't be impeached because Republicans in the House will never impeach him.
21:41
SPEAKER_01: So it's going to have to come from a mix of his own conscience,
21:47
SPEAKER_01: which I think he doesn't really have much of,
21:50
SPEAKER_01: or a pressure campaign from the Democratic Party.
21:55
SPEAKER_01: And
21:58
SPEAKER_01: I mean,
21:58
SPEAKER_01: maybe we should probably like bracket the pipeline question about the differences
22:02
SPEAKER_01: between people like KB Jantle and Kagan on the one hand and Alito on the others and
22:07
SPEAKER_01: talk about like,
22:10
SPEAKER_01: what the Democrats are doing,
22:12
SPEAKER_01: confronted with things like Eileen Cannon delaying Trump's trial and Republicans in
22:17
SPEAKER_01: Georgia trying to get Fannie Willis kicked off.
22:20
SPEAKER_00: But wait, I do want to talk about the pipeline because I think it's relevant to the Cannon thing, right?
22:25
SPEAKER_00: Which is,
22:25
SPEAKER_00: you know,
22:26
SPEAKER_00: we talked about how many of the Republican Supreme Court justices had experience on
22:30
SPEAKER_00: Ken Starr's special prosecutor team.
22:34
SPEAKER_00: And that's relevant for Supreme Court justices,
22:37
SPEAKER_00: but also the contrast between how Starr thought about his work and how Jack Smith
22:43
SPEAKER_00: is thinking about his work,
22:44
SPEAKER_00: right?
22:45
SPEAKER_00: Which is that, you know, Ken Starr, I'm sure he's a good lawyer.
22:48
SPEAKER_00: I think he died recently.
22:50
SPEAKER_00: Oh, fair enough.
22:51
SPEAKER_00: He had, you know, he had a...
22:53
SPEAKER_00: There was a reason he got the gig, right?
22:55
SPEAKER_00: Like, he had a good career as a lawyer, which Jack Smith also has.
23:01
SPEAKER_00: But Ken Starr was clear from the beginning that,
23:06
SPEAKER_00: you know,
23:06
SPEAKER_00: Bill Clinton wasn't going to just be like,
23:09
SPEAKER_00: oh,
23:09
SPEAKER_00: hey,
23:09
SPEAKER_00: whatever,
23:10
SPEAKER_00: you know,
23:11
SPEAKER_00: like,
23:11
SPEAKER_00: nail me to the wall,
23:13
SPEAKER_00: right?
23:13
SPEAKER_00: Like,
23:13
SPEAKER_00: he's fighting for his political life against Ken Starr,
23:16
SPEAKER_00: which means that Ken Starr is going to have to fight him,
23:19
SPEAKER_00: not just in court,
23:21
SPEAKER_00: but in court.
23:22
SPEAKER_00: politics,
23:23
SPEAKER_00: you know,
23:23
SPEAKER_00: that like in the political arena,
23:26
SPEAKER_00: if members of your own party are criticizing you,
23:29
SPEAKER_00: that makes it hard for you to hold the line.
23:32
SPEAKER_00: And so that means you need to have a strategy that involves a press element,
23:36
SPEAKER_00: right,
23:36
SPEAKER_00: to pressure people in Congress,
23:38
SPEAKER_00: to pressure Bill Clinton to make different kinds of concessions and shape the environment.
23:44
SPEAKER_00: And that's why, you know, guys like Brett Kavanaugh were on his staff.
23:47
SPEAKER_00: Ken Starr was communicating to the press.
23:51
SPEAKER_00: You know, there were off the record stuff, leak stuff.
23:53
SPEAKER_00: But it was a it was full spectrum, you know, legal political combat.
24:00
SPEAKER_00: That is not how Robert Mueller played his investigation of Trump.
24:04
SPEAKER_00: He played it very square, sort of by the book, do an investigation, write a report.
24:10
SPEAKER_00: And Jack Smith has done the same thing.
24:12
SPEAKER_00: You know what I mean?
24:13
SPEAKER_00: He never came into this with a mentality that was like,
24:17
SPEAKER_00: Trump and his allies are going to try to stonewall me,
24:21
SPEAKER_00: and I need a strategy for getting around that that isn't just filing motions.
24:28
SPEAKER_00: He doesn't have that.
24:29
SPEAKER_00: But one reason why he doesn't have that is that that's not value.
24:33
SPEAKER_00: It would not be considered a resume booster.
24:37
SPEAKER_00: on the um democratic party side to spend your time being like jack smith no merrick
24:44
SPEAKER_01: garland would fire him if he did that maybe yes most likely maybe yes maybe no but
24:48
SPEAKER_00: i just mean not even like exaggerating we talked about what's his name andrew
24:52
SPEAKER_00: weissman who worked for yeah he was he was he was muller's top deputy right and so
24:57
SPEAKER_00: weissman became the closest thing that
25:02
SPEAKER_00: Weissman became the closest thing that the Mueller team had to like a wartime conciliary,
25:07
SPEAKER_00: you know,
25:08
SPEAKER_00: who like went on television and like talked about the significance of that.
25:13
SPEAKER_00: Yes, yes.
25:14
SPEAKER_00: But I mean, he clearly, he had the disposition to do that.
25:17
SPEAKER_00: Mueller seems to have told him not to do it while it was going on.
25:20
SPEAKER_00: And Weissman has a nice career, you know, like post-presidentially.
25:25
SPEAKER_00: I'm sure he's got like a contract with MSNBC.
25:27
SPEAKER_00: I see him all the time.
25:28
SPEAKER_00: He could write books.
25:30
SPEAKER_00: But nobody's like, this guy's a progressive legal star as a result of this.
25:36
SPEAKER_00: That's not how you rise in the movement doing that kind of work.
25:41
SPEAKER_00: Then you get to Democrats,
25:43
SPEAKER_00: although in this case,
25:44
SPEAKER_00: it's not so much Democrats as like Dick Durbin personally,
25:47
SPEAKER_00: a Democrat.
25:48
SPEAKER_01: Who like- Dick Durbin is part of the,
25:50
SPEAKER_01: I mean,
25:51
SPEAKER_01: he is the,
25:51
SPEAKER_01: in addition to being the judiciary chairman,
25:53
SPEAKER_01: he is the Senate majority whip,
25:56
SPEAKER_01: number two senator overall.
25:58
SPEAKER_01: And like the caucus is overseen by Chuck Schumer, who-
26:06
SPEAKER_01: could yes yes yes you used to be a senior judiciary committee member himself like
26:11
SPEAKER_01: spearheaded investigations out of that committee um of the bush administration like
26:16
SPEAKER_01: he knows in theory what could be done here and it's just not happening so an
26:20
SPEAKER_00: interesting thing about this though is that like several republican senators have
26:25
SPEAKER_00: been saying like um
26:27
SPEAKER_00: I don't know.
26:28
SPEAKER_00: You probably shouldn't fly an upside down flag.
26:30
SPEAKER_00: You know what I mean?
26:31
SPEAKER_00: There is a little bit of defensiveness and blood in the water around this,
26:36
SPEAKER_00: which that's your time to try to be like,
26:39
SPEAKER_00: we should try to have additional news stories.
26:43
SPEAKER_01: No,
26:43
SPEAKER_01: it feels more to me,
26:44
SPEAKER_01: I'm going to be conspiratorial about this,
26:46
SPEAKER_01: it feels more to me that Durbin went to people like Lindsey Graham and was like,
26:50
SPEAKER_01: go say something to castigate Alito gently for doing this so that I don't have to
26:56
SPEAKER_00: do an oversight thing.
26:57
SPEAKER_00: That would be an incredibly effective good cop,
27:00
SPEAKER_00: bad cop strategy if Durbin did that,
27:02
SPEAKER_00: because you then just need somebody else.
27:05
SPEAKER_00: I mean, yes, they could do an oversight thing, but also like,
27:08
SPEAKER_00: Just like five guys could stand on Sam Alito's lawn with American flags right side up.
27:15
SPEAKER_00: You know, and like there would be a news story about that.
27:17
SPEAKER_00: And then you could do an oversight hearing.
27:18
SPEAKER_00: I mean,
27:19
SPEAKER_00: just like the one thing I always want to say about all of this stuff is that like
27:24
SPEAKER_00: literally anyone could try to take action to advance this as a news story.
27:30
SPEAKER_00: Like Dick Durbin could,
27:31
SPEAKER_00: Chuck Schumer could,
27:34
SPEAKER_00: some random backbench senator could,
27:36
SPEAKER_00: you know,
27:36
SPEAKER_00: like nothing is stopping Patty Murray from going and making a big deal about this.
27:43
SPEAKER_00: The progressive movement as a whole,
27:45
SPEAKER_00: You know, Patrick Gaspard could decide that this is a big deal and he wants to talk about it.
27:51
SPEAKER_00: And there is a you know, in this particular case, like Republicans are showing some weakness around it.
27:58
SPEAKER_00: You know, it's a it's a question of patriotism.
28:01
SPEAKER_00: It's a question of judicial ethics.
28:03
SPEAKER_00: And it is a way into I mean,
28:06
SPEAKER_00: as we've said many times before,
28:07
SPEAKER_00: like Biden's best issue in twenty twenty four.
28:11
SPEAKER_00: is abortion rights.
28:13
SPEAKER_00: But abortion rights and the Supreme Court has a way of falling out of the news
28:18
SPEAKER_00: because they're not like doing a new Dobbs decision every week.
28:22
SPEAKER_00: It's something that happened in the past.
28:24
SPEAKER_00: And so like, if you have a pretext to talk about the Supreme Court,
28:30
SPEAKER_00: Right.
28:30
SPEAKER_00: Like it's really easy to slip.
28:32
SPEAKER_00: Magov Republicans, anti-choice judges, insurrection.
28:38
SPEAKER_00: It's like a perfect bouquet of Joe Biden's good issues.
28:43
SPEAKER_00: And for Durbin to be kind of muffing it, he's like, what can we do?
28:47
SPEAKER_00: You know, except for impeachment.
28:48
SPEAKER_00: It's like, yeah, like what can you do?
28:49
SPEAKER_00: Like what you can do is you could make a stink.
28:52
SPEAKER_00: Right.
28:52
SPEAKER_00: And like try to have additional articles in the newspaper about this.
28:55
SPEAKER_00: Like Dick Durbin can give a speech saying this is the most outrageous and unethical
29:00
SPEAKER_00: thing that has ever occurred in the history of the American judiciary.
29:05
SPEAKER_00: And they will stop at nothing to rip away rights from American women.
29:09
SPEAKER_01: Like I don't I don't I don't want to give Biden a total pass on this because it
29:14
SPEAKER_01: like the decision,
29:15
SPEAKER_01: the Democratic Party's decision to not politic around Donald Trump's
29:21
SPEAKER_01: criminal legal exposure came from him.
29:24
SPEAKER_01: There's reporting on it.
29:26
SPEAKER_01: He told the DNC in his campaign, don't talk about this stuff.
29:31
SPEAKER_01: The social media team gets to make wry little remarks and stuff,
29:34
SPEAKER_01: but they're not using the fact- But I just,
29:36
SPEAKER_00: I hear it,
29:36
SPEAKER_00: because this is what I say about everything.
29:39
SPEAKER_00: Any time that Joe Biden deviates even slightly from left-wing politics on a
29:46
SPEAKER_00: question of public policy substance,
29:49
SPEAKER_00: right,
29:49
SPEAKER_00: like related to energy or foreign policy or anything like that,
29:55
SPEAKER_00: The fact that this is what Joe Biden wants has zero pull with freestanding
30:01
SPEAKER_00: independent progressive movement activities.
30:03
SPEAKER_00: They will say, we are going full bore to ream out Joe Biden over climate.
30:08
SPEAKER_00: The Sunrise Movement came to the White House with wheelbarrows full of shit to stage a protest.
30:17
SPEAKER_00: And it's like, yes, Biden made this call, but like,
30:21
SPEAKER_00: there's a broad constellation that like has decided what they want to do.
30:28
SPEAKER_00: I'm just pausing on this.
30:29
SPEAKER_00: Like I agree with you that like that is the call that Biden made, but like,
30:36
SPEAKER_00: Biden also made a call, you know, to sell weapons to Israel.
30:40
SPEAKER_01: I do think it's worth like looking into what groups like Demand Justice will say in
30:45
SPEAKER_01: response to like Durbin's declaration that they can't do anything because they
30:50
SPEAKER_01: don't have the impeachment power.
30:51
SPEAKER_01: But A, what Durbin said is not true.
30:53
SPEAKER_01: And B,
30:53
SPEAKER_01: I think the reason he said it apart from his just general like I'm an old guy and I
30:57
SPEAKER_01: don't do oversight and I –
30:58
SPEAKER_01: I don't like conflict and whatever else,
31:02
SPEAKER_01: is that the way into this outside of impeachment is – it's not even like a bank
31:08
SPEAKER_01: shot talking – to be like,
31:10
SPEAKER_01: oh,
31:10
SPEAKER_01: Alito also wrote the Dobbs opinion,
31:12
SPEAKER_01: and so these issues are conflated.
31:14
SPEAKER_01: It's to say we have reached –
31:18
SPEAKER_01: May 2024, Donald Trump has not faced trial for inciting insurrection.
31:25
SPEAKER_01: He may make it to the election without facing trial.
31:30
SPEAKER_01: A bunch of January 6th insurrectionists are on the cusp of being let free early
31:35
SPEAKER_01: from prison because of a case that the Supreme Court decided to take up that might
31:40
SPEAKER_01: shorten their sentences.
31:42
SPEAKER_01: And Justice Alito was there the whole time casting what might have been decisive
31:48
SPEAKER_01: votes to delay Trump's trial,
31:50
SPEAKER_01: to take up the case of the January 6th prisoners,
31:56
SPEAKER_01: to try to hide evidence from the House January 6th.
32:01
SPEAKER_01: He did all these things.
32:03
SPEAKER_01: After he flew the Stop the Steal flag, but before we found out about it.
32:07
SPEAKER_01: And so given that all that time went by when he should have been recused on these issues,
32:12
SPEAKER_01: we want to know what was happening behind the scenes in the court.
32:15
SPEAKER_01: What votes did he cast?
32:19
SPEAKER_01: on these shadow docket decisions where they don't provide any detail.
32:23
SPEAKER_01: In what cases were he and Clarence Thomas,
32:25
SPEAKER_01: whose wife is also thick with insurrection,
32:28
SPEAKER_01: in what cases were they the decisive votes?
32:31
SPEAKER_01: And thus,
32:35
SPEAKER_01: to what extent is the fact that we've reached this point illegitimate,
32:39
SPEAKER_01: a matter of pure corruption on the part of these two justices?
32:46
SPEAKER_01: Even if Durbin had that kind of fire in the belly,
32:51
SPEAKER_01: it becomes complicated to do that if the word coming out of the White House is
32:55
SPEAKER_01: don't talk about Trump's criminal cases.
32:58
SPEAKER_01: Because what you're doing...
33:01
SPEAKER_01: in a sense,
33:02
SPEAKER_01: is saying Donald Trump's criminal trials are good and they should have happened,
33:06
SPEAKER_01: and it's Alito's fault that they didn't.
33:08
SPEAKER_01: Well,
33:08
SPEAKER_01: that's how I feel about it,
33:09
SPEAKER_01: and I don't think that that should be off limits for the Democratic Party to say,
33:12
SPEAKER_01: but they have placed it off limits in a way that's just extremely detrimental to
33:18
SPEAKER_01: Democratic Party interests,
33:20
SPEAKER_01: the country.
33:21
SPEAKER_01: I mean, it's a fiasco.
33:22
SPEAKER_00: What I'm trying to say here,
33:23
SPEAKER_00: though,
33:23
SPEAKER_00: is if it were factually true that Joe Biden was able to order up progressive
33:29
SPEAKER_00: movement-wide message discipline,
33:31
SPEAKER_00: That would be very,
33:32
SPEAKER_00: no,
33:32
SPEAKER_00: no,
33:33
SPEAKER_00: no,
33:33
SPEAKER_00: no,
33:33
SPEAKER_00: no,
33:33
SPEAKER_00: no,
33:33
SPEAKER_00: no,
33:33
SPEAKER_00: no,
33:34
SPEAKER_00: no,
33:34
SPEAKER_00: but I,
33:34
SPEAKER_00: I,
33:34
SPEAKER_00: I,
33:35
SPEAKER_00: I'm trying to take this a step back,
33:36
SPEAKER_00: right?
33:36
SPEAKER_00: Like, cause there's a question.
33:39
SPEAKER_00: Can Joe Biden induce the progressive movement to exercise ironclad message
33:44
SPEAKER_00: discipline on arbitrary subjects of his choosing?
33:48
SPEAKER_00: And like, the answer is no.
33:50
SPEAKER_00: Like if he could do that,
33:52
SPEAKER_00: that would be very beneficial to him on net,
33:54
SPEAKER_00: even if some of his specific choices were wrong.
33:57
SPEAKER_00: But the answer is, like, he can't do that.
34:00
SPEAKER_01: I think that you're wrong.
34:01
SPEAKER_01: Like,
34:01
SPEAKER_01: what Joe Biden said about this case or what he had Karine Jean-Pierre say about it
34:06
SPEAKER_01: was something about how,
34:07
SPEAKER_01: like,
34:07
SPEAKER_01: the flag is sacred and it's,
34:10
SPEAKER_01: like,
34:10
SPEAKER_01: rude to fly it upside down,
34:12
SPEAKER_01: you know?
34:13
SPEAKER_01: If he had said...
34:16
SPEAKER_01: Donald Trump tried to overthrow the American government,
34:18
SPEAKER_01: and now it appears that a Supreme Court ally of his is trying to help him get away
34:23
SPEAKER_01: with it.
34:24
SPEAKER_01: And that is unacceptable.
34:25
SPEAKER_01: And I hope Democrats in Congress and everyone in Congress seeks to get to the bottom of it.
34:30
SPEAKER_01: Patrick Gaspard would go from saying Alito should recuse to saying Alito needs to
34:35
SPEAKER_01: testify before the judiciary.
34:37
SPEAKER_00: Opposing the counterfactual the other way,
34:38
SPEAKER_00: though,
34:38
SPEAKER_00: it's that if this was a topic that the American progressive movement gives,
34:43
SPEAKER_00: when it's something they give a shit about,
34:46
SPEAKER_00: Like, they just blow the White House off, even when they know it's electorally counterproductive.
34:51
SPEAKER_00: And like, they just like, they don't hear it.
34:54
SPEAKER_00: Like,
34:55
SPEAKER_00: I mean,
34:55
SPEAKER_00: I'll just say this every day,
34:56
SPEAKER_00: but it's like,
34:57
SPEAKER_00: if progressive institutions in America,
35:00
SPEAKER_00: like,
35:00
SPEAKER_00: cared about defeating Donald Trump,
35:03
SPEAKER_00: then the Democratic Party would try harder to do that.
35:06
SPEAKER_00: But like, they don't.
35:08
SPEAKER_00: They care primarily about their intraparty factional leverage.
35:12
SPEAKER_01: So here, but I think we should- We're right back to our angry agreement because I agree.
35:15
SPEAKER_01: I think it'd be great if Demand Justice had a bunch of people flying American flags
35:20
SPEAKER_01: and demanding that he recuse.
35:22
SPEAKER_01: But I also think that like Dick Durbin,
35:24
SPEAKER_01: who doesn't particularly give a shit what progressive activists think about
35:28
SPEAKER_00: anything else- Let's take a pause here because we got to talk about Dick Durbin though,
35:31
SPEAKER_00: who's like a real,
35:33
SPEAKER_00: he sucks.
35:35
SPEAKER_01: We're going to do a paywall,
35:36
SPEAKER_01: and then we're going to talk about how Dick Durbin sucks,
35:38
SPEAKER_01: and also about what it would look like if Democrats fixed their pipeline problem.
35:45
SPEAKER_01: What world would we be living in,
35:48
SPEAKER_01: and what world might we be living in if Democrats found their institutional leaders
35:54
SPEAKER_01: the same way Republicans do?
35:56
SPEAKER_01: But if you want to hear about that, go to politics.fm and upgrade your subscriptions.