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“Can Youngkin escape Trump’s taint?” · Pod Save America

• 0:00
  Speaker 1: The Supreme Court has had a busy summer loosening gun
• 0:02
  Speaker 1: restrictions in states, overturning Roe v. Wade, and severely threatening
• 0:06
  Speaker 1: our Miranda rights. I'm Leah Lippman, and each week on
• 0:08
  Speaker 1: Strict Scrutiny, I'm joined by my co-hosts and fellow law professors,
• 0:12
  Speaker 1: Melissa Murray and Kate Shaw, to break down the latest
• 0:14
  Speaker 1: headlines and the biggest legal questions facing our country. It's
• 0:17
  Speaker 1: more important than ever to understand the repercussions of these
• 0:20
  Speaker 1: Supreme Court decisions and what we can do to fight
• 0:22
  Speaker 1: back in the upcoming midterm elections. Listen to new episodes
• 0:25
  Speaker 1: of Strict Scrutiny every Monday, wherever you get your podcasts.
• 0:50
  Speaker 2: Welcome to Pod Save America. I'm Jon Favreau.
• 0:52
  Speaker 3: I'm Jon Lovett.
• 0:52
  Speaker 2: I'm Jon Petore.
• 0:54
  Speaker 4: You keep doing a new inflection every day.
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  Speaker 3: I don't think I am.
• 0:57
  Speaker 2: It's keeping you on your toes. I appreciate that.
• 0:58
  Speaker 3: It's the afternoon.
• 0:59
  Speaker 2: On today's pod. It's frisky.
• 1:01
  Speaker 3: It is frisky.
• 1:02
  Speaker 2: On today's pod, Joe Biden tries to rally the world
• 1:04
  Speaker 2: to save the planet while Joe Manchin is still holding
• 1:06
  Speaker 2: up his climate agenda back home. Donald Trump wades into
• 1:09
  Speaker 2: the final days of the Virginia gubernatorial contest. And NYU
• 1:12
  Speaker 2: law professor Melissa Murray is back to talk about today's
• 1:15
  Speaker 2: Supreme Court oral arguments over the Texas abortion law. But
• 1:19
  Speaker 2: before we start, Lovett, tell us about your upcoming show
• 1:22
  Speaker 2: in New York. It's almost here.
• 1:23
  Speaker 3: It's almost here. Two weeks to love it or leave
• 1:25
  Speaker 3: it at the Beacon Theater. Very exciting.
• 1:28
  Speaker 2: Where is that now? In New York City?
• 1:29
  Speaker 3: It's in New York City. There you go. Listen, all
• 1:32
  Speaker 3: I'm saying is we got a big confirmation on a
• 1:35
  Speaker 3: guest today. Up until now, we had a lot of
• 1:36
  Speaker 3: pretty exciting passes, but this is a yes.
• 1:38
  Speaker 4: You finally landed Eric Adams?
• 1:39
  Speaker 3: Yeah, we finally got that vegan mayor from out of town.
• 1:43
  Speaker 2: Congratulations.
• 1:44
  Speaker 3: A vegan cop from out of town. New York, you
• 1:46
  Speaker 3: sure can't pick him. I'd like a seven foot tall
• 1:50
  Speaker 3: guidance counselor who seems to like S & M followed
• 1:52
  Speaker 3: by a vegan cop. Get me a tiny, a tiny
• 1:57
  Speaker 3: billionaire hates soda. And before that, I'd like a person who's,
• 2:01
  Speaker 3: I'm done.
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  Speaker 4: Did you pull a string?
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  Speaker 2: Wow.
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  Speaker 3: I don't know where this is going.
• 2:05
  Speaker 2: I like that a lot. Anyway. Yeah. Where can people
• 2:08
  Speaker 2: buy tickets?
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  Speaker 3: Quirk.com slash events. Thank you.
• 2:10
  Speaker 2: The internet.
• 2:12
  Speaker 3: It's going to be great.
• 2:13
  Speaker 5: All right.
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  Speaker 2: Let's get to the news. President Biden spoke at a
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  Speaker 2: global climate summit in Glasgow, Scotland on Monday that opened
• 2:19
  Speaker 2: with some pretty desperate warnings. about what will happen to
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  Speaker 2: life on this planet if most world leaders don't do
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  Speaker 2: dramatically more than they're doing to reduce carbon emissions over
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  Speaker 2: the next decade. UN Secretary Antonio Guterres said that we're, quote,
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  Speaker 2: careening towards climate catastrophe and, quote, digging our own graves.
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  Speaker 2: Even UK Prime Minister Boris Johnson compared the climate crisis
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  Speaker 2: to a doomsday bomb that's about to explode. And while
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  Speaker 2: the leaders of China and Russia, two of the biggest
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  Speaker 2: carbon emitters on the planet, refused to show up to
• 2:47
  Speaker 2: the summit... Biden used the moment to apologize for Donald
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  Speaker 2: Trump's decision to pull out of the Paris Climate Accords
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  Speaker 2: and pledge more action from the United States. Here's a clip.
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  Speaker 6: I guess I shouldn't apologize, but I do apologize for
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  Speaker 6: the fact the United States in the last administration pulled
• 3:01
  Speaker 6: out of the Paris Accords and put us sort of
• 3:04
  Speaker 6: behind the eight ball a little bit. This is a
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  Speaker 6: challenge of our collective lifetimes. The existential threat to human
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  Speaker 6: existence as we know it. And every day we delay.
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  Speaker 6: The cost of inaction increases. So let this be the
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  Speaker 6: moment that we answer history's call here in Glasgow.
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  Speaker 2: Apology tour, huh? It's still early, but so far I'd
• 3:27
  Speaker 2: say that Glasgow doesn't feel as optimistic as the summit
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  Speaker 2: in Paris did back in 2015. What do you guys
• 3:33
  Speaker 2: think about the coverage you've read so far and what's been.
• 3:36
  Speaker 3: Going on there? That was a low point when Greta
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  Speaker 3: Thunberg threw a bucket of polar bear blood on Emmanuel Macron.
• 3:43
  Speaker 3: That was weird. I want you to know that I
• 3:44
  Speaker 3: was going to say Antonio Gutierrez, which would have been
• 3:46
  Speaker 3: a funnier name to use, but you threw him in
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  Speaker 3: the intro. Over to you, Tommy. I thought that was funnier.
• 3:53
  Speaker 2: I like both jokes.
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  Speaker 4: I think the coverage reflects the fact that this is
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  Speaker 4: an urgent problem. But even the pledges that countries are
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  Speaker 4: bringing to this conference don't do enough to reduce emissions
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  Speaker 4: by the amount we need to reduce them to stay
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  Speaker 4: underneath the 1.5 Celsius temperature increase by the end of
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  Speaker 4: the century. not to be dorky for a second, but
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  Speaker 4: that's the challenge. Even the pledges they're making don't meet
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  Speaker 4: the moment. And these are just pledges. They are not
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  Speaker 4: backed by laws or policies in a lot of cases.
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  Speaker 4: So I understand the skepticism, but that's why you do
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  Speaker 4: the summit, right? I mean, the Paris Climate Accords kind
• 4:29
  Speaker 4: of pulled a rabbit out of a hat. It was
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  Speaker 4: a really important moment. We need to build on that.
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  Speaker 4: We had Trump for four years who set us back,
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  Speaker 4: but emissions have gone down. You know what I mean?
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  Speaker 4: Like 80% of global emissions are produced by the G20 government. countries.
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  Speaker 4: And so we have to be the ones to solve it.
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  Speaker 4: So that's why we get together.
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  Speaker 2: Yeah. It's tough when the pledges don't get you to 1.5
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  Speaker 2: and that they're also not all living up to the
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  Speaker 2: pledges and the, that don't get you to 1.5. Right.
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  Speaker 2: So there's a couple of problems that we're dealing with here.
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  Speaker 4: Yeah.
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  Speaker 3: It's a real, um, it's Thanksgiving is over. Everybody's full.
• 5:00
  Speaker 3: There's dishes everywhere. And someone's like, well, someone should clean
• 5:03
  Speaker 3: this up. Yeah.
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  Speaker 4: You know, and Biden's trying, like if it would be
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  Speaker 4: great if he could have brought to the table, uh,
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  Speaker 4: an agreement that had been passed that had $ 555 billion
• 5:13
  Speaker 4: in climate funding. But hopefully, he'll be able to say
• 5:16
  Speaker 4: to them, look, this is on the table. Hopefully, we'll
• 5:18
  Speaker 4: get there, I don't know, by Christmas. We're going to
• 5:20
  Speaker 4: talk about this later. But maybe that's the new deadline
• 5:22
  Speaker 4: for Congress. And so that would be significant.
• 5:24
  Speaker 2: And Gina McCarthy, EPA administrator, is noting there that even
• 5:29
  Speaker 2: before we hopefully get this bill passed by Congress that
• 5:31
  Speaker 2: has a half a trillion dollars in investment in clean energy,
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  Speaker 2: The administration's embraced higher fuel efficiency standard for cars, advanced
• 5:37
  Speaker 2: wind and solar projects. They've begun working to reduce emissions
• 5:40
  Speaker 2: of potent greenhouse gases such as methane and HFCs. So
• 5:43
  Speaker 2: there's all the executive action they're taking as well. Some
• 5:46
  Speaker 2: other hopeful news I thought from Monday was India pledges
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  Speaker 2: to get to net zero by 2070. Would be nice
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  Speaker 2: if it was 2050.
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  Speaker 3: Better than nothing.
• 5:55
  Speaker 2: Better than nothing. You know that India is obviously a
• 5:58
  Speaker 2: huge carbon emitter and them making that pledge was big. Tommy,
• 6:02
  Speaker 2: what do you make of China and Russia just skipping
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  Speaker 2: the summit?
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  Speaker 4: I think it's pretty bad. I mean, China and Russia,
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  Speaker 4: I think, are number one and number four in terms
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  Speaker 4: of emissions per country, if you were to rank them. So,
• 6:15
  Speaker 4: you know, the consensus is that the world needs to
• 6:17
  Speaker 4: get to net zero by 2050. And I think both
• 6:20
  Speaker 4: Russia and China have proposed 2060 as their target. So
• 6:24
  Speaker 4: they're already proposing to miss the targets.
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  Speaker 2: It gets a little weird.
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  Speaker 4: Like Xi Jinping hasn't left the country in almost two years.
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  Speaker 4: I think it's been 21 months since he's left the country.
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  Speaker 4: It was pre COVID. So there's something weird and bigger
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  Speaker 4: going on with him.
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  Speaker 2: Is he having one of those things where it's like
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  Speaker 2: tough to get back into society because you haven't been
• 6:36
  Speaker 2: around crowds in a while? Yeah.
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  Speaker 4: He's like, hey, he's packing.
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  Speaker 3: Doesn't have to do small talk at a barbecue.
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  Speaker 4: That's exactly right.
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  Speaker 3: But, you know, China... What's up? Good. Talk.
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  Speaker 4: You know, and again, like China, we need China to
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  Speaker 4: get on board and to stop burning coal specifically. But
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  Speaker 4: they have said that their emissions will peak in right
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  Speaker 4: around 2030, whereas most countries are pledging cuts.
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  Speaker 2: So it's bad.
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  Speaker 4: Xi Jinping, the leaders of a lot of developing countries, say, hey, America, hey, Europe,
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  Speaker 4: you guys have been belching out carbon for decades. You
• 7:13
  Speaker 4: should pay us to take these steps to reduce our
• 7:17
  Speaker 4: carbon emissions because that's how you grew your economy. How
• 7:20
  Speaker 4: are we supposed to grow ours? I understand that. European
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  Speaker 4: leaders are trying to push Xi, Macron, and I think
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  Speaker 4: Boris Johnson talked to him last week. The Russia... the
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  Speaker 4: example is even more cynical, I think. I mean, a
• 7:31
  Speaker 4: lot of cynics point out that like, yes, we all
• 7:33
  Speaker 4: have a long-term need to deal with climate change, but
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  Speaker 4: in the short term, some farmers in Siberia don't necessarily
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  Speaker 4: mind that it's melting. You know, the Arctic is also
• 7:44
  Speaker 4: melting and opening new shipping lanes for the Russians. So
• 7:46
  Speaker 4: there's a lot of, you know, competing interests here. They
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  Speaker 4: have a lot of oil and gas. They're not necessarily
• 7:50
  Speaker 4: looking for the prices that drop. So, you know, it's complicated,
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  Speaker 4: but it's not good that they're not there.
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  Speaker 1: Yeah.
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  Speaker 3: I also do think they like, correctly point to China
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  Speaker 3: as the world's number one emitter, but not per person,
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  Speaker 3: still us.
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  Speaker 2: Well, one thing that was common in all of the
• 8:03
  Speaker 2: speeches today from world leaders or all the speeches so
• 8:06
  Speaker 2: far from world leaders is that none of them really
• 8:08
  Speaker 2: committed to getting rid of fossil fuels, right? There's a
• 8:11
  Speaker 2: lot of talk about net zero and hitting certain emissions
• 8:14
  Speaker 2: targets in the middle of the century, but whether it's
• 8:17
  Speaker 2: a rich country like the United States, whether it's China,
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  Speaker 2: whether it's India, like No one was talking about it's
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  Speaker 2: time to get rid of coal, which is a huge
• 8:25
  Speaker 2: problem because we're not going to get there without getting
• 8:28
  Speaker 2: rid of fossil fuels.
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  Speaker 3: We're going to have to go like, you can't see this,
• 8:30
  Speaker 3: but I'm reaching up into the air and I'm pulling
• 8:32
  Speaker 3: the carbon out of it.
• 8:35
  Speaker 2: That will be a piece of it. Wow, Lovett's figured
• 8:37
  Speaker 2: it out. Some good news.
• 8:40
  Speaker 4: Pew's done a lot of polling about the interest in
• 8:44
  Speaker 4: climate sentiment. And they have found that concern about climate
• 8:48
  Speaker 4: change has risen dramatically in a lot of countries. In
• 8:51
  Speaker 4: France and Mexico, it's been dramatic. I think now more
• 8:53
  Speaker 4: than eight in 10 people in those countries now say
• 8:55
  Speaker 4: climate change is a major threat. That's up 30 points
• 8:57
  Speaker 4: from 2013. That sentiment is up 19 points in the
• 9:00
  Speaker 4: United States. So people are starting to care. You're seeing
• 9:02
  Speaker 4: like Green Party's doing well in Europe. So there's growing support.
• 9:08
  Speaker 4: It's not as fast as it needs to be, but
• 9:09
  Speaker 4: it's happening.
• 9:09
  Speaker 2: It's out there. Yeah, we have majority support here. Just
• 9:12
  Speaker 2: majority support doesn't get anything done in this country anymore
• 9:15
  Speaker 2: because of minority rules.
• 9:16
  Speaker 3: We need a climate change inside of Instead of Joe
• 9:18
  Speaker 3: Manchin's skull.
• 9:19
  Speaker 2: Speaking of which, as you mentioned, Tommy, good segue.
• 9:23
  Speaker 3: You're welcome.
• 9:24
  Speaker 2: Biden obviously wanted to be able to tell the world
• 9:25
  Speaker 2: the United States just passed the most ambitious climate bill
• 9:28
  Speaker 2: in history, which, again, the Build Back Better plan would
• 9:31
  Speaker 2: be if it passed. But Joe Manchin had other ideas.
• 9:34
  Speaker 2: Here he is at a press conference today that he
• 9:37
  Speaker 2: said would, quote, clear up a lot of things.
• 9:39
  Speaker 7: I will not support the reconciliation legislation without knowing that.
• 9:44
  Speaker 7: how the bill will impact our debt and our economy
• 9:46
  Speaker 7: and our country. And we won't know that until we
• 9:48
  Speaker 7: work through the text. I'm open to supporting a final
• 9:52
  Speaker 7: bill that helps move our country forward, but I'm equally
• 9:55
  Speaker 7: open to voting against a bill that hurts our country.
• 9:58
  Speaker 7: And I've been very clear about that also.
• 10:01
  Speaker 2: Is that clear enough for you guys? Super clear. I
• 10:03
  Speaker 2: get it. Did you guys figure it out?
• 10:04
  Speaker 3: I mean, just.
• 10:07
  Speaker 2: That was.
• 10:08
  Speaker 3: He seemed just annoyed about something else. It was like
• 10:10
  Speaker 3: a subtweet. I think something annoyed him.
• 10:14
  Speaker 2: I decided to watch... Tommy, you told me it was on.
• 10:17
  Speaker 2: I decided to watch it live and then not watch
• 10:20
  Speaker 2: the reaction on Twitter because I was like, I'm just
• 10:22
  Speaker 2: going to try to figure out Joe Manchin on my own.
• 10:24
  Speaker 2: But we were texting about it. Tommy was like, so
• 10:27
  Speaker 2: far this sounds bad. And I was like, nope, nope,
• 10:30
  Speaker 2: now he's turning. Now it sounds bad. Nope, nope, now
• 10:33
  Speaker 2: it's bad again. He just went like, it was not,
• 10:37
  Speaker 2: I don't understand.
• 10:38
  Speaker 3: He's just a whiner.
• 10:39
  Speaker 4: He's in his own head.
• 10:40
  Speaker 2: Does anyone want to do optimistic take, pessimistic take from
• 10:42
  Speaker 2: this press conference?
• 10:44
  Speaker 3: The optimistic take from it is that there's actually no
• 10:46
  Speaker 3: words inside of what he actually said. Like, you could
• 10:50
  Speaker 3: have given it to a different performer and gotten a
• 10:52
  Speaker 3: version of that press conference that actually was more optimistic.
• 10:55
  Speaker 3: He seemed annoyed and frustrated, but he didn't actually go
• 10:58
  Speaker 3: against anything he's previously committed to or come out against
• 11:01
  Speaker 3: supporting Build Back Better. It seems like he has concerns
• 11:06
  Speaker 3: about the overall cost, but because it's through reconciliation, that's
• 11:09
  Speaker 3: kind of the process of reconciliation is supposed to make
• 11:12
  Speaker 3: sure it doesn't add to the debt. in the long term.
• 11:14
  Speaker 3: So it's all a bit confused. And it seems like
• 11:17
  Speaker 3: more like moral positioning than actual political positioning to me.
• 11:20
  Speaker 4: I know he's spent all his time up there, like
• 11:22
  Speaker 4: crying about civility in the process and how outrageous it was.
• 11:25
  Speaker 4: But it really does, I think, validate the strategy by
• 11:28
  Speaker 4: progressives to withhold their votes on the infrastructure bill until
• 11:32
  Speaker 4: he figures out what the hell he wants. Otherwise, you
• 11:34
  Speaker 4: could see him just completely walking away from these negotiations
• 11:37
  Speaker 4: weeks ago.
• 11:38
  Speaker 2: Though I guess they're about to do that because Jayapal
• 11:41
  Speaker 2: just said that she sees a vote on both bills
• 11:44
  Speaker 2: this week. And then she said she'll trust Biden to
• 11:47
  Speaker 2: get the 51 votes in the Senate if they pass
• 11:49
  Speaker 2: Build Back Better and the infrastructure bill from the House.
• 11:51
  Speaker 3: Over to you, Joe. I mean, I think that's strange
• 11:53
  Speaker 3: about this, Joe. What Joe Manchin said today, I think
• 11:56
  Speaker 3: what was so strange about it, it was very, very abstract,
• 11:58
  Speaker 3: but we're out of the abstract point, right? It's like,
• 12:01
  Speaker 3: one point he made in that kind of meandering press
• 12:02
  Speaker 3: conference is, okay, you say it's 1.75, but it's actually
• 12:05
  Speaker 3: much more if you do a bunch of programs that sunset,
• 12:08
  Speaker 3: and then you're actually planning to put them, to make
• 12:11
  Speaker 3: them continue into the future. Okay, well, which programs do
• 12:14
  Speaker 3: you want to keep? Which do you want to lose?
• 12:15
  Speaker 3: Do you want to make it, do you want to
• 12:17
  Speaker 3: make some of these bigger and cut some of these
• 12:18
  Speaker 3: other things out? Because that's, we're at 1.75 in the
• 12:21
  Speaker 3: current framework that Joe Biden and you seem to be
• 12:23
  Speaker 3: in favor of nary three days ago.
• 12:26
  Speaker 2: Yeah, I think, well, so the pessimistic take on this is,
• 12:30
  Speaker 2: And I do think some of this is going on.
• 12:31
  Speaker 2: The longer this takes, the more time Joe Manchin's Republican
• 12:36
  Speaker 2: Senate colleagues, lobbyists, whoever else is annoying and in his ear.
• 12:40
  Speaker 4: Time kills all deals.
• 12:41
  Speaker 3: Right.
• 12:42
  Speaker 2: They have more time to put, you know, fancy spreadsheets
• 12:45
  Speaker 2: and numbers in front of him that I'm about. Fancy spreadsheets.
• 12:48
  Speaker 5: Yeah.
• 12:49
  Speaker 2: Which, well, I'm thinking like Joe Manchin, which is very simply,
• 12:53
  Speaker 2: which can easily convince him that, oh, the Democrats are
• 12:55
  Speaker 2: telling you that it's 1.75 trillion, but actually it's a
• 12:58
  Speaker 2: lot more money. And I think he is easily persuaded
• 13:01
  Speaker 2: by a lot of this, which is why what he
• 13:03
  Speaker 2: wants is a congressional budget office score of the bill,
• 13:06
  Speaker 2: which will tell you how much the bill adds to
• 13:09
  Speaker 2: the deficit in the short term and the long term.
• 13:11
  Speaker 2: whether it affects, uh, GDP, whether it affects inflation, all
• 13:14
  Speaker 2: this kind of stuff. So we're going to get a
• 13:16
  Speaker 2: CBO score anyway. Like you said, love it. You have
• 13:18
  Speaker 2: to throw a wreck for a reconciliation bill just to
• 13:20
  Speaker 2: see the effect on the budget. But I think what
• 13:22
  Speaker 2: Joe Manchin meant is you guys all wanted me to
• 13:24
  Speaker 2: just say yes to the framework. I'm not going to
• 13:26
  Speaker 2: say yes until I actually see the score and I
• 13:29
  Speaker 2: can tell all the fucking people he needs to tell
• 13:32
  Speaker 2: that this bill actually doesn't add to the deficit as
• 13:34
  Speaker 2: much as, you know, people might be worried about.
• 13:37
  Speaker 3: I also want to, one semi-optimistic read on all of
• 13:39
  Speaker 3: this is that, um, From Joe Manchin's point of view,
• 13:42
  Speaker 3: Joe Manchin is desperately trying to create compromise in a
• 13:45
  Speaker 3: broken world and bring people together. And then his coverage
• 13:48
  Speaker 3: is just fucking dog shit. Like he's getting torched left
• 13:52
  Speaker 3: and right in all these pieces. And that's annoying.
• 13:54
  Speaker 2: It's a real Kendall Roy issue.
• 13:57
  Speaker 4: Yeah, the optimistic case, right, is he's just sick of
• 14:00
  Speaker 4: being told what to do. He's sick of being yelled at.
• 14:02
  Speaker 4: And he just wants to extract one last little pound
• 14:05
  Speaker 4: of flesh before he gives him his vote.
• 14:07
  Speaker 2: That's the hopeful case. I mean, I definitely thought what
• 14:09
  Speaker 2: was more telling than Manchin's press conference, which was not
• 14:12
  Speaker 2: very telling at all, was the reaction to it from
• 14:14
  Speaker 2: everyone else. So, like, the White House released a statement
• 14:16
  Speaker 2: being like, we're fine. We think he's going to vote
• 14:19
  Speaker 2: for it. Brian Schatz tweeted. None of what he said
• 14:22
  Speaker 2: was new. Everything's fine. Jayapal declined to take a shot
• 14:25
  Speaker 2: at him and was like, I trust Joe Biden when
• 14:27
  Speaker 2: he says he's going to get Joe Manchin on board.
• 14:28
  Speaker 2: So whether that's all true or not, at least the
• 14:32
  Speaker 2: rest of the party still seems quite confident that they'll
• 14:35
  Speaker 2: be able to get Manchin's vote in the end. And
• 14:36
  Speaker 2: clearly the House progressives do because they're willing this week
• 14:40
  Speaker 2: now to vote on the infrastructure bill, vote on Build
• 14:44
  Speaker 2: Back Better, send it over to the Senate and let
• 14:46
  Speaker 2: the Senate deal with the rest.
• 14:48
  Speaker 3: We're still heading towards a parking lot where the progressives
• 14:52
  Speaker 3: push the highway money forward and Joe Manchin pushes the
• 14:56
  Speaker 3: climate money forward, and they kind of walk away. They're
• 14:58
  Speaker 3: in the parking lot, you know, like in Ronan.
• 15:02
  Speaker 2: I haven't seen that. No, me neither.
• 15:04
  Speaker 3: There's an exchange of, you know, kind of drug deals.
• 15:07
  Speaker 2: Is what I'm kind of getting at. Oh, I get it.
• 15:09
  Speaker 2: Like a ransom kind of thing?
• 15:11
  Speaker 3: You bring the climate money, I'll bring the highway money.
• 15:12
  Speaker 2: I get it, I get it.
• 15:13
  Speaker 3: That was what I was going for.
• 15:14
  Speaker 1: Cool. Nailed that.
• 15:15
  Speaker 4: I like the reports over the weekend that Manchin asks
• 15:18
  Speaker 4: about putting in place work requirements for paid family and
• 15:21
  Speaker 4: medical leave, even though you have to have a job
• 15:23
  Speaker 4: to get it.
• 15:25
  Speaker 3: Get the government's hands off of our Medicare.
• 15:27
  Speaker 2: He's just not a bright guy. It's the Occam's razor
• 15:31
  Speaker 2: of the whole thing.
• 15:31
  Speaker 3: All right.
• 15:32
  Speaker 2: Some political context here for how the electorate feels about
• 15:35
  Speaker 2: all this. Don't need a poll. Not great. But I'll
• 15:39
  Speaker 2: dig into one anyway.
• 15:40
  Speaker 3: What are these Bengalis doing?
• 15:42
  Speaker 2: ABC News poll over the weekend found that even though
• 15:45
  Speaker 2: 55% of the public is following news about the budget
• 15:48
  Speaker 2: negotiations closely, 70% said they know, quote, just some or, quote,
• 15:52
  Speaker 2: little to nothing about what's in the infrastructure bill or
• 15:55
  Speaker 2: the Build Back Better bill. And a new NBC News
• 15:58
  Speaker 2: poll has Biden's approval at 45% among registered voters with
• 16:02
  Speaker 2: 52% disapproving. That's down from his 50-48 approval rating in
• 16:06
  Speaker 2: their poll from two months ago, with much of the
• 16:08
  Speaker 2: drop coming from Democrats. Biden's favorable unfavorable rating was almost
• 16:12
  Speaker 2: the same as Trump's in the poll. And 71 percent
• 16:15
  Speaker 2: of all Americans now say the country is headed in
• 16:19
  Speaker 2: the wrong direction. What do you guys think's going on here?
• 16:23
  Speaker 4: It's not good.
• 16:24
  Speaker 3: I don't know.
• 16:24
  Speaker 2: What do you think's driving this? What do you think's
• 16:26
  Speaker 2: driving these numbers?
• 16:28
  Speaker 3: Congressional gridlock. There's 2,000 ships filled with Christmas presents stuck
• 16:32
  Speaker 3: off the course of California. The pandemic doesn't seem to
• 16:38
  Speaker 3: want to end.
• 16:39
  Speaker 2: Yeah, those are literally the three possibilities I had too. Economy,
• 16:44
  Speaker 2: languishing pandemic, mess in Washington. And I don't know exactly
• 16:48
  Speaker 2: what combination of all three there, but I think it's
• 16:49
  Speaker 2: all three.
• 16:50
  Speaker 4: I think that the Afghanistan withdrawal back in August and
• 16:54
  Speaker 4: the rise of the Delta variant ended what back in
• 16:57
  Speaker 4: the day people called the honeymoon period for a president.
• 17:00
  Speaker 4: for listeners who weren't paying attention to politics before Trump.
• 17:03
  Speaker 4: That was when people from the other party gave you
• 17:05
  Speaker 4: the benefit of the doubt for a few months. I
• 17:07
  Speaker 4: also just think, though, that the Democratic coalition isn't as
• 17:10
  Speaker 4: cult-like as the Republican party. We're far more willing to
• 17:13
  Speaker 4: criticize our own, as that section about Joe Manchin probably
• 17:16
  Speaker 4: indicates to you all. And my sense is, I bet
• 17:19
  Speaker 4: people are just so sick of COVID, not just the
• 17:23
  Speaker 4: mask requirements, but just the continued conversation about it, the
• 17:27
  Speaker 4: disruptions in their lives, the associated economic impact. supply chain stuff.
• 17:31
  Speaker 4: You talked about, Lovett, the inflation that's coming from it.
• 17:33
  Speaker 4: It's just sort of bad mood music out there for Biden.
• 17:36
  Speaker 4: And he's losing Democrats and losing independents because of it.
• 17:39
  Speaker 2: I will say two moments when Trump started losing support,
• 17:44
  Speaker 2: not just of Democrats, which he never had, or independents,
• 17:46
  Speaker 2: but Republicans, is trying to repeal the Affordable Care Act,
• 17:50
  Speaker 2: which he failed to do, and trying to pass their
• 17:52
  Speaker 2: tax cuts, which they ended up succeeding. But both were
• 17:55
  Speaker 2: cases of Huge mess in Washington. Didn't seem like Republicans
• 17:59
  Speaker 2: were going to be able to get it done or
• 18:00
  Speaker 2: Trump was going to be able to get it done.
• 18:02
  Speaker 2: And so you started seeing erosion in his base in
• 18:04
  Speaker 2: those moments. And I think that's partly what's happening now
• 18:07
  Speaker 2: with Democrats. I think the other two issues are broader
• 18:10
  Speaker 2: throughout the electorate beyond Democrats and independents and Republicans are
• 18:12
  Speaker 2: just pissed about the economy and the pandemic.
• 18:15
  Speaker 4: Look, if you're paying attention, credit to you because this
• 18:17
  Speaker 4: shit is boring as fuck. But yeah, you're probably not
• 18:19
  Speaker 4: liking what you see.
• 18:20
  Speaker 2: Yeah, I was surprised that 55% are paying close attention.
• 18:23
  Speaker 2: I'd like to see how they define close attention.
• 18:26
  Speaker 3: And 50% of them are fucking liars.
• 18:27
  Speaker 2: Well, but I was going to say, that to me
• 18:29
  Speaker 2: tells you everything, those two numbers, that 55% are paying
• 18:32
  Speaker 2: close attention and then 70% have no fucking idea what's
• 18:34
  Speaker 2: in the bill. Which makes sense, though, because you could
• 18:36
  Speaker 2: see paying attention meaning like, I saw the headline about
• 18:39
  Speaker 2: negotiations today and all it said was, Joe Manchin and
• 18:41
  Speaker 2: Kyrsten Sinema fucked something up and said no to Joe
• 18:43
  Speaker 2: Biden and everything's a mess. But I don't really know
• 18:45
  Speaker 2: what it's about. I don't know what's in the bill.
• 18:46
  Speaker 2: That makes sense.
• 18:47
  Speaker 3: You see journalists who work in Washington whose job is
• 18:51
  Speaker 3: to cover tweet things like, has anyone seen what's in
• 18:53
  Speaker 3: the bill today? Like it has been very confusing. The
• 18:56
  Speaker 3: other piece of this, too, is it's absolutely true that
• 18:58
  Speaker 3: there's a kind of now because we're all pundits, there's
• 19:01
  Speaker 3: a partisan response to polling, even about like sort of
• 19:04
  Speaker 3: basic economic indicators. But one thing that as we have
• 19:06
  Speaker 3: seen over and over again is that partisan effect is
• 19:09
  Speaker 3: more pronounced for Republicans. And conservatives, so there is just
• 19:13
  Speaker 3: going to be an economic tax on how people see
• 19:15
  Speaker 3: the economy under Republicans versus Democrats. More Republicans are more
• 19:19
  Speaker 3: willing to say the economy isn't going well under a Democrat,
• 19:22
  Speaker 3: whatever the actual underlying conditions. The other piece of this,
• 19:25
  Speaker 3: and we talked about this in the past, I remember
• 19:28
  Speaker 3: we talked about this in 2009, that when the president
• 19:32
  Speaker 3: is deeply involved in a political fight in Washington, there's
• 19:36
  Speaker 3: a risk that they go from being the president to
• 19:38
  Speaker 3: a prime minister. who's kind of in the scrum and
• 19:40
  Speaker 3: in Washington and a part of the fight. And like,
• 19:44
  Speaker 3: I don't think there's any way to kind of, this
• 19:45
  Speaker 3: underlying dynamic can't be changed with like a bus tour
• 19:48
  Speaker 3: and like giving giving optimistic speeches but i think once
• 19:51
  Speaker 3: we get to the other side of these negotiations and
• 19:53
  Speaker 3: these bills are passed he has to be like he
• 19:56
  Speaker 3: has to just be out there as like you know
• 19:58
  Speaker 3: i this is gonna be the most james carville thing
• 20:00
  Speaker 3: i'll say today which is as you all know as
• 20:04
  Speaker 3: you know i want america to get the third the
• 20:05
  Speaker 3: third shot right all right we gotta get the third
• 20:08
  Speaker 3: booster sure Joe Biden's got to be the fourth booster.
• 20:10
  Speaker 3: All right, we've got to get out there.
• 20:12
  Speaker 2: I feel like that is, if David Axelrod has not
• 20:15
  Speaker 2: said that line yet.
• 20:16
  Speaker 3: Memo.
• 20:18
  Speaker 2: It shows that you learned under him for so long.
• 20:21
  Speaker 3: Joe Biden.
• 20:22
  Speaker 2: He'll be very proud of you for that line.
• 20:23
  Speaker 3: David Axelrod, inspired, calling Joe Biden the fourth booster.
• 20:28
  Speaker 2: All right, so when Joe Biden goes to bed tonight
• 20:30
  Speaker 2: in Glasgow and listens to Pod Save America, he's going
• 20:32
  Speaker 2: to get that advice from Lovett. Tommy, do you have
• 20:33
  Speaker 2: any advice for him? I don't even know what we're
• 20:35
  Speaker 2: talking about anymore.
• 20:37
  Speaker 3: What do you want from me?
• 20:38
  Speaker 2: Any advice for the Biden administration? What would you be
• 20:39
  Speaker 2: right now?
• 20:40
  Speaker 4: I just think that success begets success. And he's got
• 20:42
  Speaker 4: to get these bills over the finish line and then
• 20:44
  Speaker 4: things can start to pick up.
• 20:46
  Speaker 2: Yeah. I think once the bills pass, knocking on wood,
• 20:50
  Speaker 2: once we get to the end of this year, he's
• 20:52
  Speaker 2: just got to, this sounds like common sense, but focus
• 20:56
  Speaker 2: exclusively every single day talking about the economy, how to
• 20:59
  Speaker 2: improve the economy. Dan and I talked about this last
• 21:01
  Speaker 2: week too, but You see in these polls, people say
• 21:04
  Speaker 2: that like the most important issue is the economy and
• 21:06
  Speaker 2: then like inflation is number two or three now. And
• 21:08
  Speaker 2: then they you ask them, well, what's Washington focused on?
• 21:12
  Speaker 2: And the economy inflation aren't up there or what Democrats
• 21:14
  Speaker 2: are focused on. They're not up there. And I think
• 21:16
  Speaker 2: for a whole bunch of reasons that we've all talked about,
• 21:19
  Speaker 2: there is a disconnect between what Biden and the Democrats
• 21:21
  Speaker 2: are focusing on in this build back better legislation and
• 21:24
  Speaker 2: the economy. And the build back better legislation is supposed
• 21:27
  Speaker 2: to be the economic plan. But for some reason, the
• 21:30
  Speaker 2: public is not seeing it as the economic plan and
• 21:32
  Speaker 2: they're not seeing it as a focus on the economy.
• 21:34
  Speaker 2: And I think a real focus on the economy where
• 21:36
  Speaker 2: every day he's out there connecting Republicans to favoring rich
• 21:40
  Speaker 2: people and saying that Joe Biden and the Democrats are
• 21:42
  Speaker 2: on the side of everyone else and that's why they
• 21:44
  Speaker 2: pass these bills and that's where they're going to keep
• 21:46
  Speaker 2: fighting to lower inflation and all the rest of it.
• 21:47
  Speaker 2: Like that has to be the message going forward in 2022. Yeah.
• 21:50
  Speaker 3: And I also think one other piece of this, too,
• 21:52
  Speaker 3: is like we've never come out of a global pandemic
• 21:54
  Speaker 3: slowly before. And we've never experienced this kind of trauma
• 21:58
  Speaker 3: as a country before. And Joe Biden became president in
• 22:00
  Speaker 3: part because he understood how to speak to people going
• 22:02
  Speaker 3: through that. But I do think that like whatever the numbers,
• 22:05
  Speaker 3: whatever the specifics, like this is a country that's been
• 22:07
  Speaker 3: through a really hard and sad time. And like, I
• 22:10
  Speaker 3: think you will see that in a lot of unexpected ways.
• 22:12
  Speaker 3: And he just, I think that like that boosterism is really, it's,
• 22:15
  Speaker 3: we need it.
• 22:16
  Speaker 2: I need it. I totally agree with you. I mean,
• 22:17
  Speaker 2: I think all the public health experts have told us
• 22:20
  Speaker 2: we're going to have to learn to live with COVID
• 22:21
  Speaker 2: as an endemic virus and not a pandemic. And I
• 22:24
  Speaker 2: think that's probably right. I trust them on that. The
• 22:26
  Speaker 2: Biden administration at some point, and the president himself, needs
• 22:30
  Speaker 2: to talk to the country about what it looks like
• 22:32
  Speaker 2: to live with COVID-19 as an endemic virus, right? And
• 22:35
  Speaker 2: say that it may never go away. It's going to
• 22:37
  Speaker 2: be with us for a while, but there is hope ahead.
• 22:40
  Speaker 2: The worst is behind us. Here's how we're going to live.
• 22:41
  Speaker 3: I'd skip that first part.
• 22:42
  Speaker 2: I mean, there's some truth talk. There's some truth telling
• 22:45
  Speaker 2: that you have to do, too.
• 22:46
  Speaker 3: I don't know. Keep that in 2009.
• 22:49
  Speaker 2: But I think right now, there's just a lot of confusion, right? Like,
• 22:54
  Speaker 2: How long are there going to be indoor mask mandates
• 22:56
  Speaker 2: in place? Is this going to be the last booster? Look,
• 22:58
  Speaker 2: and there's a lot of answers that they're not going
• 23:01
  Speaker 2: to have. But giving people some metrics, some guidance, here's
• 23:05
  Speaker 2: how we're going to live, here's how we're going to
• 23:06
  Speaker 2: go forward, I think that's going to be important. Let's
• 23:17
  Speaker 2: talk about Virginia. The hits keep on coming. You're probably
• 23:20
  Speaker 2: listening to this Tuesday, which is Election Day. The polls
• 23:23
  Speaker 2: say the governor's race is basically even, with maybe a
• 23:26
  Speaker 2: slight edge to Glenn Youngkin. The demographics of the electorate,
• 23:29
  Speaker 2: which voted for Biden by 10 points in 2020 and
• 23:31
  Speaker 2: Ralph Northam by 9 points in 2017, favor McAuliffe. The
• 23:36
  Speaker 2: early vote shows high turnout and enthusiasm in both red
• 23:39
  Speaker 2: and blue parts of Virginia. Beyond that, the only thing
• 23:42
  Speaker 2: we could all be sure of is that Donald Trump
• 23:44
  Speaker 2: would try to insert himself in the race at the
• 23:46
  Speaker 2: very end. And that he has, with two statements on Monday,
• 23:49
  Speaker 2: a tele-rally Monday evening, and this interview with Loudoun County
• 23:52
  Speaker 2: Wine Mom, Janine Pirro.
• 23:54
  Speaker 5: If I endorse somebody, they win. If I endorse somebody,
• 23:57
  Speaker 5: they win. I think I'm 148-2.
• 23:59
  Speaker 3: That's a pretty good number.
• 24:02
  Speaker 5: You endorsed Youngkin. And I did endorse Youngkin. And we're
• 24:05
  Speaker 5: going to see.
• 24:05
  Speaker 3: I hope it's not going to be three.
• 24:07
  Speaker 5: OK, do you understand that?
• 24:08
  Speaker 2: I did.
• 24:09
  Speaker 3: I endorse him strongly.
• 24:10
  Speaker 2: What do you think Trump is up to here? And
• 24:12
  Speaker 2: how excited do you think Glenn Youngkin is about it?
• 24:15
  Speaker 3: Youngkin, probably less so.
• 24:16
  Speaker 4: I mean, I think the Washington Post poll said 9%
• 24:19
  Speaker 4: of Virginia voters say Trump's endorsement makes them more likely
• 24:21
  Speaker 4: to support Youngkin, 37% less likely, 54% don't really care.
• 24:26
  Speaker 4: So he's certainly not, I mean, maybe he can help
• 24:29
  Speaker 4: turn people out, but a tele rally on Monday night
• 24:32
  Speaker 4: before an election Tuesday, that is the most unhelpful option
• 24:35
  Speaker 4: possible for the Youngkin campaign. It will do nothing to
• 24:37
  Speaker 4: turn out voters. It will do nothing to get you
• 24:39
  Speaker 4: the media support from a good event. I think it's
• 24:42
  Speaker 4: closed press, right?
• 24:43
  Speaker 2: It's closed press.
• 24:43
  Speaker 4: I don't know how you close press a phone call.
• 24:45
  Speaker 2: I don't either. Especially what's like, it's Donald Trump, the
• 24:49
  Speaker 2: entire Republican ticket, and they're going to close it to press?
• 24:52
  Speaker 3: It's invite only. You've got to get the Zoom link.
• 24:54
  Speaker 2: Pass along their invite.
• 24:56
  Speaker 3: Yeah.
• 24:56
  Speaker 4: So this is the worst case. This is Donald Trump
• 24:58
  Speaker 4: trying to get credit for a Youngkin win. And of course,
• 25:01
  Speaker 4: he will write off a Youngkin loss.
• 25:02
  Speaker 3: This guy ran away from me. I mean, this is
• 25:04
  Speaker 3: so predictable. It's the most predictable setup. If he felt
• 25:07
  Speaker 3: Youngkin was going to win, he'd be going. If he
• 25:09
  Speaker 3: felt Youngkin was going to lose, he wouldn't be doing this.
• 25:11
  Speaker 3: It is the perfect middle ground.
• 25:12
  Speaker 6: Yeah.
• 25:12
  Speaker 4: I mean, but Youngkin's backed by 99 percent of Trump
• 25:14
  Speaker 4: voters in Virginia. So he doesn't really need this.
• 25:17
  Speaker 3: Yeah.
• 25:17
  Speaker 2: He wants. Right. He wants the Trump base.
• 25:20
  Speaker 3: Right.
• 25:20
  Speaker 2: He wants the Trump base to turn out.
• 25:21
  Speaker 3: Right.
• 25:22
  Speaker 2: And but he doesn't want any of the Trump taint.
• 25:25
  Speaker 1: Right?
• 25:25
  Speaker 2: Look, here's the thing.
• 25:27
  Speaker 3: I've said it once in a thousand times. Nobody wants
• 25:29
  Speaker 3: the Trump team. That's exactly right. That's why people listen
• 25:33
  Speaker 3: to the show. That's the analysis you can't get anywhere else.
• 25:36
  Speaker 2: Speaking of really stupid last-minute campaign stunts, the Lincoln Project
• 25:41
  Speaker 2: organized a group of people on Friday to disrupt a
• 25:43
  Speaker 2: Yunkin event by dressing like white supremacists from the Charlottesville
• 25:46
  Speaker 2: rally and telling everyone that they were Yunkin supporters. What
• 25:49
  Speaker 2: the fuck were they thinking, huh?
• 25:52
  Speaker 4: Guys.
• 25:52
  Speaker 3: You get an email about volunteering at a campaign event.
• 25:55
  Speaker 3: All right. And then they tell you, you got to
• 25:57
  Speaker 3: dress up like a white supremacist. You don't do it. No.
• 26:00
  Speaker 3: Just say no. I'll go somewhere else on Saturday. I just,
• 26:03
  Speaker 3: I hope this.
• 26:04
  Speaker 4: Was a dumb Twitter story and it didn't really like
• 26:06
  Speaker 4: resonate all around the state, but super PAC people, you're like, you're, you're,
• 26:11
  Speaker 4: you're playing with live ammo here. You know, if you're
• 26:13
  Speaker 4: going to do some dumb stunt, if you're going to
• 26:15
  Speaker 4: run cable ads at that are targeted Amara Largo designed
• 26:19
  Speaker 4: to bait Trump into doing something, He's going to respond.
• 26:22
  Speaker 4: We know that about him. So you better hope it's
• 26:24
  Speaker 4: a good idea. This was not a good idea.
• 26:26
  Speaker 2: These are tried and true Republican campaign tactics. That's what
• 26:29
  Speaker 2: you get. You get a bunch of ex-Republican strategists. They
• 26:33
  Speaker 2: do Republican campaign crap. Right, right.
• 26:37
  Speaker 4: Until recently, you know, a lot of Democrats were like,
• 26:39
  Speaker 4: Democrats need to play tougher.
• 26:41
  Speaker 3: They need to punch harder.
• 26:42
  Speaker 4: Sort of like that MSNBC kind of zeitgeist.
• 26:45
  Speaker 2: Right.
• 26:45
  Speaker 4: And something like this happened.
• 26:46
  Speaker 2: This is what you get. What are you thinking? Yeah,
• 26:48
  Speaker 2: you happy about that? Not sure it's going to work.
• 26:50
  Speaker 8: Right.
• 26:50
  Speaker 2: Like, I don't... Like you said, Tommy, I think it's
• 26:52
  Speaker 2: probably a fucking Twitter story that doesn't really matter, I hope. Like,
• 26:56
  Speaker 2: I don't know.
• 26:57
  Speaker 4: It's just this is not really– I mean, Terry McAuliffe
• 27:00
  Speaker 4: is trying to tie Youngkin to Trump. That's been his
• 27:02
  Speaker 4: closing message. The race generally has been more about, like,
• 27:05
  Speaker 4: Loudoun County school boards and education. I mean, like, that's
• 27:09
  Speaker 4: what's been really talked about and what you've seen popping
• 27:12
  Speaker 4: in the polls lately. So this was just an odd move.
• 27:15
  Speaker 3: It didn't work. I don't know what it would have
• 27:16
  Speaker 3: looked like if it did work. I don't even actually
• 27:18
  Speaker 3: understand the takeaway. It's too many steps. It's a trunk.
• 27:22
  Speaker 3: It's a trunk. It's a group of people getting together
• 27:24
  Speaker 3: for a brainstorm and getting too far from the original idea.
• 27:26
  Speaker 2: It's a trunk. It's a classic trunk. How are you
• 27:28
  Speaker 2: guys feeling about the closing days of this race? Any
• 27:30
  Speaker 2: final thoughts before the results start coming in?
• 27:32
  Speaker 3: All comes down to turnout. I will say this.
• 27:36
  Speaker 2: The only poll that matters.
• 27:39
  Speaker 3: I was really glad, and I appreciate how you and
• 27:41
  Speaker 3: Dan discussed it as well, which is like, I feel
• 27:43
  Speaker 3: like there's like this you know, when it comes to
• 27:46
  Speaker 3: issues around like critical race theory, like I think that
• 27:48
  Speaker 3: there's like a very unhelpful Twitter conversation about it. And
• 27:50
  Speaker 3: then there's been a lot of, I think, uncertainty and
• 27:53
  Speaker 3: anxiety on the part of campaigns about how to deal
• 27:55
  Speaker 3: with this, how to change the subject. And I agree
• 27:57
  Speaker 3: that I really liked the McAuliffe campaign ad that decided
• 28:00
  Speaker 3: to go on and redefine it and make it about
• 28:02
  Speaker 3: banning history, something I think we've all been talking about.
• 28:05
  Speaker 3: And I don't know if it's going to work, but
• 28:07
  Speaker 3: I appreciated that this was like finally a full-throated message
• 28:10
  Speaker 3: that it's like, this is about banning history that didn't
• 28:13
  Speaker 3: didn't take it on on their terms in their words
• 28:15
  Speaker 3: and tried to make a new kind of argument. I
• 28:17
  Speaker 3: don't know what's going to happen. I don't think anybody does,
• 28:19
  Speaker 3: but that part of it, I was like, I was
• 28:20
  Speaker 3: glad to see finally a Democrat figure out some language
• 28:23
  Speaker 3: to tackle this ridiculous issue, racist issue.
• 28:25
  Speaker 2: I think it's really hard to separate the signal from
• 28:27
  Speaker 2: the noise on this one and this whole race, because
• 28:29
  Speaker 2: there's just, you know, if you just pay attention to
• 28:32
  Speaker 2: Twitter and the media narratives, it is all critical race
• 28:36
  Speaker 2: theory and stuff like that. And I just, I can't
• 28:38
  Speaker 2: get out of my mind the MS-13 scares from 2017.
• 28:42
  Speaker 2: You know, we talked about the final morning Joe panel
• 28:46
  Speaker 2: on that race, right? Like, I don't know. I don't know.
• 28:48
  Speaker 3: Oh, Twitter today. I mean, Twitter today, Virginia is pre-lost.
• 28:51
  Speaker 3: I mean, it's unbelievable.
• 28:53
  Speaker 2: Yeah, and who knows? Like you said, we don't know
• 28:55
  Speaker 2: what will happen. The only thing I'll say is no
• 28:57
  Speaker 2: matter what happens, I really hope that everyone has some
• 28:59
  Speaker 2: humility about why it happened, win or lose. Win or lose, right?
• 29:03
  Speaker 4: Good luck with that, pal. I think you picked the
• 29:05
  Speaker 4: only guaranteed outcome.
• 29:07
  Speaker 2: No, and you know what? Exit polls do not help
• 29:10
  Speaker 2: with that, at least the first exit polls, right? Sometimes
• 29:14
  Speaker 2: they get fixed later when they're weighted correctly, but beware
• 29:18
  Speaker 2: of instantaneous takes. Wait for all the data to come out.
• 29:21
  Speaker 2: Wait for good interviews and focus groups. I don't think
• 29:24
  Speaker 2: there even has been really extensive good reporting on like
• 29:29
  Speaker 2: what voters in Virginia are thinking.
• 29:31
  Speaker 4: No, the Post had a good piece today on that.
• 29:34
  Speaker 4: But again, it's anecdotal. It's like they talked to 20
• 29:36
  Speaker 4: people outside a supermarket somewhere. And it's good reporting.
• 29:38
  Speaker 2: It's helpful. But who knows?
• 29:39
  Speaker 4: It's not scientific. I mean, this could be a California
• 29:42
  Speaker 4: recall example where there was one poll that freaked everybody out.
• 29:47
  Speaker 3: Right.
• 29:47
  Speaker 4: And in that in the California example, it was Survey USA,
• 29:49
  Speaker 4: I think.
• 29:50
  Speaker 2: Yeah.
• 29:50
  Speaker 4: In Virginia, it was this Fox News poll, which is
• 29:53
  Speaker 4: either prescient or an outlier. We will find out. We
• 29:57
  Speaker 4: do know that education has increased in salience in polling
• 30:02
  Speaker 4: since September. And 15% of people said it was the
• 30:05
  Speaker 4: most important issue to them in September. 24% said that
• 30:08
  Speaker 4: in October. So that might tell us something. But looking
• 30:12
  Speaker 4: back over the last couple of recent elections, in 2014,
• 30:16
  Speaker 4: Mark Warner and Ed Gillespie were scary close.
• 30:20
  Speaker 2: At the end.
• 30:20
  Speaker 4: It was less than 1% margin, but no polls showed
• 30:23
  Speaker 4: it that close. And then 2017, Ralph Northam beat Ed
• 30:26
  Speaker 4: Gillespie by nine points, but polls had made it seem
• 30:29
  Speaker 4: very close. So Virginia has been the site of a
• 30:32
  Speaker 4: lot of big time polling misses, and we don't know
• 30:34
  Speaker 4: what the electorate will look like this time. And they
• 30:36
  Speaker 4: changed the early vote access.
• 30:38
  Speaker 7: Right.
• 30:38
  Speaker 2: So it's hard to compare early votes. It's weird. And
• 30:40
  Speaker 2: even to the education numbers you just mentioned, that could
• 30:43
  Speaker 2: be the education is suddenly a really big issue with
• 30:47
  Speaker 2: a lot of voters in Virginia because Glenn Youngkin tried
• 30:50
  Speaker 2: to make it so and talked about critical race theory,
• 30:52
  Speaker 2: or Glenn Youngkin made it a big issue with his
• 30:55
  Speaker 2: Republican supporters. And because now all of them are saying
• 30:59
  Speaker 2: it's a big issue, that's what that poll looks like.
• 31:01
  Speaker 2: So we don't know. Again, we're not going to know
• 31:03
  Speaker 2: until we actually see the results.
• 31:04
  Speaker 3: And if you were hearing this on Tuesday, the organizer
• 31:08
  Speaker 3: you talked to last week, one reason some people are-
• 31:15
  Speaker 3: We're not planning to vote, didn't know they had to vote. Like,
• 31:17
  Speaker 3: there are still people that need to be reached. So
• 31:19
  Speaker 3: if you are hearing this on Tuesday, I mean, we
• 31:22
  Speaker 3: may win or lose this thing on Tuesday based on
• 31:24
  Speaker 3: how successful we are at making phone calls and getting
• 31:27
  Speaker 3: people to make sure their votes are in by Tuesday night.
• 31:30
  Speaker 2: Absolutely right. And, Lovett, I think you might have a
• 31:32
  Speaker 2: little game for us.
• 31:33
  Speaker 8: Oh, yes.
• 31:33
  Speaker 3: But before we go, as you both mentioned, it's hard
• 31:36
  Speaker 3: to get a feel for what's been happening on the ground.
• 31:39
  Speaker 3: But that's why we turn to reporters, you know?
• 31:40
  Speaker 8: Mm-hmm.
• 31:44
  Speaker 3: Journalists for major news outlets have a problem. You see,
• 31:48
  Speaker 3: Tommy and John, they strive for the imprimatur of nonpartisanship,
• 31:50
  Speaker 3: yet foolishly choose to live in progressive enclaves like New York, Washington,
• 31:53
  Speaker 3: and my house. And so, like intrepid meteorologists, they leave
• 31:59
  Speaker 3: the calm harbors of blue America and head into the
• 32:01
  Speaker 3: turgid roiling waters of red America to show us how
• 32:04
  Speaker 3: the winds are blowing. But then at times, in effort
• 32:07
  Speaker 3: to prove to us sweet greens Americans how different life
• 32:09
  Speaker 3: really is for the people. Some key details are left out,
• 32:13
  Speaker 3: details that might paint a different and less representative picture.
• 32:16
  Speaker 3: First question. Glenn Miller is described as a Hillary Biden
• 32:19
  Speaker 3: voter and dad who spoke with New York Times reporter
• 32:21
  Speaker 3: Jeremy Peters about why he can stomach voting for the
• 32:24
  Speaker 3: Republican in Virginia's governor's race, saying, My problem with Trump
• 32:27
  Speaker 3: was I thought he was embarrassing. I just don't think
• 32:29
  Speaker 3: Youngkin is going to embarrass me or the state. Which
• 32:31
  Speaker 3: of the following facts about Glenn do you think is
• 32:34
  Speaker 3: real in addition to what was included in the piece?
• 32:36
  Speaker 3: Is it A, He donated to Mitt Romney, David Perdue,
• 32:39
  Speaker 3: Susan Collins, Kelly Loeffler, and Wynne Rett. B. Glenn Miller
• 32:43
  Speaker 3: published an article on the right-wing site Quillette about critical
• 32:46
  Speaker 3: race theory. C. He has a tag on the Fairfax
• 32:49
  Speaker 3: Republican websites for all of his blog posts. Or D,
• 32:52
  Speaker 3: all of the above.
• 32:53
  Speaker 2: All of the above. All of the above.
• 32:55
  Speaker 3: It was D. All of the above.
• 32:57
  Speaker 2: Not mentioned. We should have buzzers for this.
• 33:00
  Speaker 3: Next question. Another Times piece described Josephine Valdez as a
• 33:03
  Speaker 3: public school paraprofessional from the Bronx who is... Part of
• 33:06
  Speaker 3: a sizable, unwavering contingent across the United States whose resistance
• 33:10
  Speaker 3: to the vaccines have won out over paychecks or have
• 33:13
  Speaker 3: given up careers entirely. A public school paraprofessional. The paper
• 33:17
  Speaker 3: had to issue an editor's note, Tommy.
• 33:19
  Speaker 1: Why?
• 33:23
  Speaker 4: I don't know.
• 33:24
  Speaker 3: Take a guess.
• 33:25
  Speaker 2: Oh, why? Tommy doesn't get multiple choices. I have no choices.
• 33:28
  Speaker 4: God, I probably should have been listening.
• 33:31
  Speaker 3: Because she worked for the state Republican Party? No, she's
• 33:35
  Speaker 3: actually an anti-vaccine mandate activist. John, over to you. What
• 33:38
  Speaker 3: happened at an anti-vax rally she helped organize?
• 33:41
  Speaker 1: What?
• 33:41
  Speaker 2: This is so hard.
• 33:42
  Speaker 3: I know. Take a guess. What happened? I decided to
• 33:46
  Speaker 3: get rid of the clues. Might have been a mistake.
• 33:48
  Speaker 3: It's a gamble. It's a gamble. What happened? Take a guess.
• 33:52
  Speaker 3: Take a guess. What happened at a rally she helped organize?
• 33:54
  Speaker 1: Allegedly.
• 33:55
  Speaker 3: Allegedly. Get that in there.
• 33:56
  Speaker 2: I don't know. People did. People yelled that they didn't
• 33:58
  Speaker 2: want to take the vaccine.
• 34:00
  Speaker 3: This person, they destroyed a mobile COVID testing site.
• 34:07
  Speaker 4: They just tore it down.
• 34:08
  Speaker 2: They're like a terrorist?
• 34:09
  Speaker 3: Yeah, they just tore. I think it was a van.
• 34:10
  Speaker 3: I think they like tore apart the tent in front
• 34:13
  Speaker 3: of this van. They really made a mess of things. Anyway,
• 34:16
  Speaker 3: that's the person. Tommy, over to you. Final question. Thank you.
• 34:20
  Speaker 3: In an earlier piece about reluctant Trump voters, this is
• 34:22
  Speaker 3: from the midterms, Jeremy Peter's friend of the show, profiled
• 34:27
  Speaker 3: a group of just-your-average Republicans who, while not huge fans
• 34:29
  Speaker 3: of Trump, felt compelled to defend him against the, quote,
• 34:31
  Speaker 3: overblown criticisms against him. One of those Republicans was businesswoman
• 34:35
  Speaker 3: Gina Anders, an executive with, quote, not a stitch of
• 34:38
  Speaker 3: Make America Great Again gear in her wardrobe. She said,
• 34:41
  Speaker 3: all nuance and all complexity, and these are complex issues,
• 34:44
  Speaker 3: are completely lost. Maybe she's not a merch person, Tommy.
• 34:47
  Speaker 3: But she did work for Ron Paul's presidential campaign, trained
• 34:50
  Speaker 3: as a grassroots activist with the Foundation for Applied Conservative Leadership,
• 34:53
  Speaker 3: And worked as a consultant at a PAC dedicated in
• 34:56
  Speaker 3: part to what? What is the issue the PAC was
• 34:59
  Speaker 3: in part dedicated to? We'll go into one of you.
• 35:01
  Speaker 3: Shouts it out.
• 35:02
  Speaker 4: Returning to the gold standard.
• 35:04
  Speaker 3: Pretty close.
• 35:08
  Speaker 6: I don't know.
• 35:11
  Speaker 2: Returning to the gold standard. What's another bigger? Ron Paul stuff.
• 35:15
  Speaker 3: There's a couple correct answers. Abolish the Fed. It was
• 35:20
  Speaker 3: protecting Confederate statues.
• 35:22
  Speaker 2: That's not close to returning to the gold standard.
• 35:25
  Speaker 3: I don't know. It's 1850s shit. Did you... Like what?
• 35:30
  Speaker 4: Did you describe the country as turgid?
• 35:32
  Speaker 3: I described the waters as turgid.
• 35:34
  Speaker 2: Got it.
• 35:34
  Speaker 4: Okay.
• 35:36
  Speaker 2: Why?
• 35:36
  Speaker 4: Because I was Googling turgid and it seems like swollen, timid, bombastic, pompous.
• 35:42
  Speaker 3: But go one definition down. It has to do with
• 35:44
  Speaker 3: water and storms.
• 35:45
  Speaker 1: Storms.
• 35:46
  Speaker 2: Stormy water.
• 35:47
  Speaker 3: Isn't that a name from.
• 35:49
  Speaker 3: What's that movie?
• 35:50
  Speaker 2: Is this the game?
• 35:50
  Speaker 3: The game is already over.
• 35:52
  Speaker 2: We do have another segment.
• 35:53
  Speaker 3: Oh, right.
• 35:54
  Speaker 2: I thought this was the end of the show. It's
• 35:55
  Speaker 2: not the end of the show at all. I can
• 35:57
  Speaker 2: tell you spent a lot of time on that game.
• 35:59
  Speaker 2: When we come back, we'll talk to NYU Law Professor
• 36:03
  Speaker 2: Melissa Murray about oral arguments in today's Supreme Court case
• 36:07
  Speaker 2: on the Texas abortion law. The Supreme Court heard oral
• 36:19
  Speaker 2: arguments today on Texas's radical abortion law that would place
• 36:22
  Speaker 2: a $ 10, 000 bounty on anyone who aids or abets an
• 36:24
  Speaker 2: abortion after six weeks of pregnancy, which is before many
• 36:27
  Speaker 2: women even know they're pregnant. The court had previously split
• 36:30
  Speaker 2: five to four on an emergency order in favor of
• 36:33
  Speaker 2: allowing the law to go into effect on September 1st.
• 36:35
  Speaker 2: Joining us now to break down what happened in today's
• 36:38
  Speaker 2: arguments and much more, the co-host of the Strict Scrutiny podcast,
• 36:42
  Speaker 2: NYU professor Melissa Murray. Melissa, welcome back.
• 36:45
  Speaker 5: Thanks for having me.
• 36:46
  Speaker 2: Can you start by giving us a quick background on
• 36:48
  Speaker 2: today's case? How is it different from the last challenge
• 36:51
  Speaker 2: they heard on the Texas law?
• 36:53
  Speaker 8: Well, one, they were actually having oral argument, so that helps.
• 36:56
  Speaker 8: This is not a case that's being decided on the
• 36:59
  Speaker 8: shadow docket with very limited briefing and no oral arguments.
• 37:02
  Speaker 8: This was a case that was migrated from the shadow
• 37:05
  Speaker 8: docket to the court's regular merits docket and slotted for
• 37:08
  Speaker 8: oral argument. And there are almost two hours of oral
• 37:11
  Speaker 8: argument in these two arguments today. So To the extent
• 37:15
  Speaker 8: that Justice Sam Alito had bemoaned the prospect that the
• 37:18
  Speaker 8: court just didn't have enough time to really flesh out
• 37:21
  Speaker 8: some of these issues, there was no way that that
• 37:23
  Speaker 8: was going to be an issue today. They had plenty
• 37:25
  Speaker 8: of time to get into the nitty gritty on these questions.
• 37:28
  Speaker 8: And I think we will probably get something that is
• 37:31
  Speaker 8: perhaps a little lengthier than the paragraph that we got
• 37:34
  Speaker 8: back in September from the court. So more time to
• 37:37
  Speaker 8: work on this, perhaps more time to consider the fact
• 37:40
  Speaker 8: that the public has been really outraged about the fact
• 37:42
  Speaker 8: that Texans have have not had access to the same
• 37:45
  Speaker 8: constitutional rights as their counterparts elsewhere in the country. And
• 37:48
  Speaker 8: I think we saw a court that perhaps was feeling
• 37:51
  Speaker 8: the heat a little bit.
• 37:52
  Speaker 2: So what was your take on the justices' reaction to
• 37:56
  Speaker 2: today's oral arguments?
• 37:58
  Speaker 8: So there is very definitely a camp that views this
• 38:01
  Speaker 8: law as flagrantly unconstitutional. No surprises who will be in
• 38:06
  Speaker 8: that camp. It was Justices Sotomayor, Kagan, possibly Breyer on
• 38:10
  Speaker 8: a substantive measure, not necessarily on the procedural question. And
• 38:14
  Speaker 8: then there were those who really don't seem to care
• 38:17
  Speaker 8: if the law is constitutional or not because they're happy
• 38:20
  Speaker 8: with it going into effect. And they think that the
• 38:23
  Speaker 8: law's novel procedural irregularities is enough to sort of evade
• 38:27
  Speaker 8: judicial review on this question. And the three in that
• 38:30
  Speaker 8: camp were justices Samuel Alito, Clarence Thomas, and Neil Gorsuch.
• 38:35
  Speaker 8: And then there were the justices in the middle. And
• 38:38
  Speaker 8: I say in the middle, just because we typically group
• 38:40
  Speaker 8: them this way, but I'd say even the chief justice
• 38:42
  Speaker 8: seemed to be firmly in the camp that stare decisis,
• 38:45
  Speaker 8: the institutional legitimacy of the court, all of that seemed
• 38:48
  Speaker 8: to auger in favor of enjoining this law and having
• 38:51
  Speaker 8: some kind of considered discussion of its substantive merits. But
• 38:54
  Speaker 8: that left justices Amy Coney Barrett and Brett Kavanaugh as
• 38:58
  Speaker 8: the two justices who very much seem to be in
• 39:01
  Speaker 8: play today.
• 39:02
  Speaker 3: Were you surprised at all by how skeptical Roberts, Kavanaugh,
• 39:08
  Speaker 3: and Barrett seem to be, given that just a few
• 39:11
  Speaker 3: weeks ago, their same concerns over the fact that the
• 39:15
  Speaker 3: law is so novel and unique in its approach did
• 39:18
  Speaker 3: not require them to prevent it from going into effect?
• 39:22
  Speaker 8: Well, the chief justice had been with the liberals and
• 39:25
  Speaker 8: he was of the view that they should simply step
• 39:28
  Speaker 8: in and, you know, put this law on ice while
• 39:31
  Speaker 8: they determined whether or not it was constitutional. So he
• 39:34
  Speaker 8: was with the liberals on this back on September 1st.
• 39:37
  Speaker 8: But as you note, Justices Barrett and Kavanaugh were very
• 39:40
  Speaker 8: much part of that five justice block that allowed the
• 39:43
  Speaker 8: Texas law to go into effect. And it seemed that
• 39:46
  Speaker 8: maybe they had had a change of heart. And certainly
• 39:49
  Speaker 8: their questions seemed to suggest that they'd had a change
• 39:52
  Speaker 8: of heart, or at least they were open to the possibility.
• 39:55
  Speaker 8: There was some softening there. They asked a lot of
• 39:57
  Speaker 8: questions about whether or not the abortion provider suits against
• 40:02
  Speaker 8: the state court judges and county clerks could take on
• 40:06
  Speaker 8: the question of state action. So they invoked a couple
• 40:08
  Speaker 8: of precedents like Shelley versus Kramer. This is a case from,
• 40:12
  Speaker 8: I believe, the 1940s where there was a restrictive covenant,
• 40:15
  Speaker 8: one of these private agreements where homeowners say, I'm not
• 40:18
  Speaker 8: going to sell to Black people.
• 40:19
  Speaker 5: You can't sell to Black people.
• 40:21
  Speaker 8: And it avoided anti-discrimination laws because it's a private agreement
• 40:25
  Speaker 8: between the homeowner and the prospective buyer. And the court
• 40:29
  Speaker 8: stepped in and said, well, it may be a private agreement,
• 40:31
  Speaker 8: but you need our courts to actually enforce it. And
• 40:34
  Speaker 8: when the courts step in to enforce it, that's a
• 40:36
  Speaker 8: form of state action, and the state can't be a
• 40:39
  Speaker 8: part of your discrimination. And so Justice Kavanaugh seemed to
• 40:42
  Speaker 8: be invoking that same line of thinking, like, The fact
• 40:45
  Speaker 8: that the courts have to process these lawsuits, the county
• 40:48
  Speaker 8: clerks have to issue the various documents and whatnot to
• 40:52
  Speaker 8: get this moving through the system, isn't that a form
• 40:54
  Speaker 8: of state action? And doesn't that enmesh the state in
• 40:58
  Speaker 8: the enforcement of this law, even if the state is
• 41:00
  Speaker 8: formally prohibited from actually enforcing it?
• 41:03
  Speaker 3: One other point I believe Kavanaugh made and several of
• 41:05
  Speaker 3: the other justices made as well was that this might
• 41:08
  Speaker 3: give other states ideas, including liberal states, about how they
• 41:12
  Speaker 3: could say go after gun rights or make policy on
• 41:16
  Speaker 3: other issues that the right wing of the court might
• 41:18
  Speaker 3: not find as appealing. What was your reaction to that
• 41:21
  Speaker 3: line of argument?
• 41:22
  Speaker 8: So we've heard about this ever since this law came
• 41:25
  Speaker 8: into effect. Like, what if the blue states decided to
• 41:28
  Speaker 8: take a page out of Texas's book and start doing
• 41:31
  Speaker 8: the same thing with gun rights or whatever?
• 41:33
  Speaker 5: And that's always been, I think, a looming threat.
• 41:35
  Speaker 8: But I think the real crux of that question before
• 41:38
  Speaker 8: the court today was not aimed at what New York
• 41:41
  Speaker 8: is going to do or what California is going to do.
• 41:43
  Speaker 5: But what this actually means for the court.
• 41:46
  Speaker 8: Because at bottom, that line of questioning really points to
• 41:50
  Speaker 8: an existential crisis at the court itself.
• 41:52
  Speaker 5: What is the point of a Supreme Court?
• 41:55
  Speaker 8: What is the point of an entity that is supposed
• 41:58
  Speaker 8: to say what the law is if a rogue state
• 42:00
  Speaker 8: can just decide to delegate the enforcement of a law
• 42:04
  Speaker 8: to a private individual in order to avoid what the
• 42:07
  Speaker 8: Supreme Court has said on a particular issue? And so
• 42:10
  Speaker 8: I think that whole line of questioning was not so
• 42:12
  Speaker 8: much aimed at thinking about what states might do in the.
• 42:15
  Speaker 5: Future, but What is our point here? What are we
• 42:18
  Speaker 5: doing here?
• 42:18
  Speaker 8: And what does it mean for Texas to basically give
• 42:21
  Speaker 8: us the finger over and over again?
• 42:23
  Speaker 2: So what are your thoughts on the timing here of
• 42:26
  Speaker 2: what happens next? And what are the potential rulings and
• 42:30
  Speaker 2: effects that could come from this case?
• 42:33
  Speaker 8: So again, these were procedural issues that were being debated today.
• 42:37
  Speaker 8: And again, by saying that they are procedural, I don't
• 42:39
  Speaker 8: mean to suggest that they're not important. They're hugely important
• 42:42
  Speaker 8: and indeed, I think, go to this broader existential threat
• 42:46
  Speaker 8: to the legitimacy of the court itself. But we were
• 42:48
  Speaker 8: not getting any kind of question about whether there is
• 42:51
  Speaker 8: a right to an abortion that is implicit in the
• 42:54
  Speaker 8: Constitution that the court is obliged to protect. That's a
• 42:57
  Speaker 8: substantive question that really comes after we decide this threshold
• 43:01
  Speaker 8: question of whether these two lawsuits can even be in
• 43:04
  Speaker 8: federal court in the first instance. And I think we
• 43:07
  Speaker 8: saw perhaps between the justice, and I think Justice Kagan
• 43:09
  Speaker 8: was the one who was really pushing this, was perhaps
• 43:13
  Speaker 8: a kind of seed of a compromise being offered, whereas
• 43:16
  Speaker 8: they might allow the lawsuit brought on behalf of the
• 43:20
  Speaker 8: abortion providers against the state court judges and the county
• 43:23
  Speaker 8: clerks to proceed, while perhaps the consigning United States versus Texas,
• 43:28
  Speaker 8: the DOJ suit to the rubbish bin. There are a
• 43:31
  Speaker 8: lot of questions about whether the United States could bring
• 43:34
  Speaker 8: a suit like this, a lot of questions about a
• 43:36
  Speaker 8: precedent called Debs and how far Debs went and what
• 43:39
  Speaker 8: the logical stopping point would be for the United States
• 43:42
  Speaker 8: government to intrude upon a state sovereignty by suing it.
• 43:45
  Speaker 8: And so it may be the case that there's some
• 43:47
  Speaker 8: horse trading to be done here and the justices may
• 43:50
  Speaker 8: decide to pick one case but not the other. But
• 43:53
  Speaker 8: it seems like they have to do something and they're
• 43:55
  Speaker 8: going to do something. And I think they recognize that
• 43:58
  Speaker 8: a state of affairs where one state in the union
• 44:02
  Speaker 8: lacks the same constitutional rights as the other 49 states
• 44:06
  Speaker 8: is not something that can happen on their watch. So
• 44:08
  Speaker 8: we're definitely going to see something happen. And all of
• 44:10
  Speaker 8: this is shaking out amidst the looming prospect of a
• 44:14
  Speaker 8: month from now, they're going to hear oral arguments in
• 44:17
  Speaker 8: the Mississippi case, Dobbs versus Jackson Women's Health Organization. And
• 44:21
  Speaker 8: that question does put Roe directly in the crosshairs. So
• 44:25
  Speaker 8: it could be the case that when Dobbs is decided.
• 44:29
  Speaker 5: It either.
• 44:30
  Speaker 8: completely reorganizes the court's abortion jurisprudence to make viability no
• 44:35
  Speaker 8: longer an important marker in the court's restrictions on abortion
• 44:39
  Speaker 8: or state restrictions on abortion, or it could overrule Roe
• 44:43
  Speaker 8: and Casey entirely. Either way, that means that SB 8,
• 44:47
  Speaker 8: lives to fight another day because now we're actually trying
• 44:50
  Speaker 8: to figure out if a six-week ban on abortion is okay.
• 44:53
  Speaker 8: Or alternatively, SB8 is definitely okay because Roe v. Wade
• 44:58
  Speaker 8: and Planned Parenthood v. Casey don't exist anymore.
• 45:01
  Speaker 2: Is it possible that if they allow the lawsuit to
• 45:04
  Speaker 2: go forward in federal court that this ends up back
• 45:07
  Speaker 2: at the Supreme Court again?
• 45:09
  Speaker 5: Very possible.
• 45:10
  Speaker 2: So they eventually are going to decide the substance one
• 45:14
  Speaker 2: way or the other, whether it's the Mississippi case or
• 45:16
  Speaker 2: this case.
• 45:17
  Speaker 5: Well, I mean, so this is the question.
• 45:18
  Speaker 8: If they decide the Mississippi case on the merits first
• 45:21
  Speaker 8: and they take the sort of minimalist approach where they're
• 45:23
  Speaker 8: just sort of tinkering with what viability means, well, then
• 45:26
  Speaker 8: that sows confusion in the lower federal courts because now
• 45:28
  Speaker 8: we're trying to figure out, well, If Mississippi's 15-week ban
• 45:32
  Speaker 8: is fine, what about a 12-week ban or a 10-week
• 45:34
  Speaker 8: ban or what about a six-week ban? And suddenly we
• 45:37
  Speaker 8: have to take SB8 back up to the court. But
• 45:40
  Speaker 8: if they decide in Dobbs that there is no right
• 45:43
  Speaker 8: to an abortion nestled in the Constitution or any of
• 45:47
  Speaker 8: the constitutional rights that we've currently recognized, well, that's just
• 45:50
  Speaker 8: open season for the states and SB8 is fine.
• 45:53
  Speaker 3: Quite a compromise that says at some level, these kinds
• 45:56
  Speaker 3: of schemes are not acceptable to us. but don't worry,
• 46:00
  Speaker 3: you don't need them because over here in a broader way,
• 46:03
  Speaker 3: we're vastly limiting the constitutional right and empowering states to
• 46:07
  Speaker 3: do all kinds of other restrictions anyway.
• 46:09
  Speaker 8: I think this is the piece that doesn't get nearly
• 46:12
  Speaker 8: enough play. Um, We talk about SB8 as though it
• 46:16
  Speaker 8: was sort of like sprung fully formed from the mind
• 46:18
  Speaker 8: of Jonathan Mitchell and the Texas legislature. But obviously, it's
• 46:22
  Speaker 8: part of a concerted effort amongst the pro-life movement, the
• 46:26
  Speaker 8: anti-choice movement to sort of seed a series of challenges,
• 46:30
  Speaker 8: all of which are sort of meant to build on
• 46:32
  Speaker 8: and interact with each other. And that's really what you're
• 46:35
  Speaker 8: seeing here, like Dobbs and SB8. have nothing to do
• 46:39
  Speaker 8: with each other as a formal matter, but of course
• 46:41
  Speaker 8: have everything to do with each other.
• 46:43
  Speaker 5: And the way that they are sequenced.
• 46:45
  Speaker 8: At the court and the way it's going to play
• 46:46
  Speaker 8: out at the court will obviously have huge implications.
• 46:48
  Speaker 5: For each other.
• 46:50
  Speaker 3: So another issue that's come up, the Supreme Court agreed
• 46:52
  Speaker 3: to take on several cases challenging the administration's authority to
• 46:55
  Speaker 3: regulate greenhouse gases through the EPA. On the one hand,
• 46:58
  Speaker 3: there have been reactions, this was in the Times, that
• 47:01
  Speaker 3: described it as the equivalent of an earthquake around the country.
• 47:04
  Speaker 3: For those who care about the climate, that was a
• 47:06
  Speaker 3: professor at environmental law at Harvard. But then the administration's
• 47:10
  Speaker 3: posture has been more subdued, saying, you don't even need
• 47:13
  Speaker 3: to look at this one. We're not even using it anymore.
• 47:15
  Speaker 3: It doesn't matter. We're still editing it, basically. And then
• 47:19
  Speaker 3: the White House, the climate policy expert at the White
• 47:22
  Speaker 3: House said, that they expect the Supreme Court to uphold
• 47:26
  Speaker 3: the administration's authority to regulate climate. What is your reaction
• 47:30
  Speaker 3: to what has been unfolding?
• 47:32
  Speaker 8: When they granted cert on those cases on Friday, I
• 47:34
  Speaker 8: think I posted something on Twitter that was like, you know,
• 47:38
  Speaker 8: next stop 1934, because it seems like we are going
• 47:40
  Speaker 8: all the way back to the non-delegation doctrine. and the
• 47:44
  Speaker 8: fights that FDR and the New Dealers had with the
• 47:47
  Speaker 8: court over whether or not they would uphold the administrative
• 47:50
  Speaker 8: agencies and the authority, the delegated authority of the administrative
• 47:53
  Speaker 8: agencies in the New Deal. And we know that there
• 47:57
  Speaker 8: are certainly three justices on the court who are hostile
• 48:00
  Speaker 8: to the prospect of an invigorated administrative state. And we
• 48:05
  Speaker 8: know that the administrative state has sort of had some
• 48:07
  Speaker 8: narrow misses with the court just a couple of years
• 48:09
  Speaker 8: ago in a challenge to a sex offender registration. Justice
• 48:13
  Speaker 8: Elena Kagan, who is in the majority basically warned Congress,
• 48:16
  Speaker 8: like if you want to have your delegations of congressional
• 48:19
  Speaker 8: authority to administrative agencies upheld, you have to be really
• 48:23
  Speaker 8: clear about what the agency is supposed to do. It
• 48:26
  Speaker 8: has to be some kind of intelligible principle because these
• 48:29
  Speaker 8: guys over here, they're totally hostile to the prospect that
• 48:32
  Speaker 8: Congress can delegate any of its authority to an administrative agency.
• 48:36
  Speaker 8: And this sounds like such a dry issue, and it
• 48:39
  Speaker 8: really is a dry issue. Trust me, my students say
• 48:41
  Speaker 8: this all the time, but Can you imagine a world
• 48:44
  Speaker 8: without administrative agencies? Can you imagine having to go to
• 48:47
  Speaker 8: Congress to get a passport? Having to go to Congress
• 48:50
  Speaker 8: and ask them to do something about climate change? We
• 48:53
  Speaker 8: want experts who have real knowledge of these fields and
• 48:57
  Speaker 8: expertise in doing this, to actually do this. And that's
• 49:00
  Speaker 8: why we allow Congress to delegate its authority to these
• 49:03
  Speaker 8: administrative agencies within the executive branch to do this kind
• 49:06
  Speaker 8: of work. But then there are these folks on the
• 49:09
  Speaker 8: court who are skeptical of it, skeptical that Congress can
• 49:12
  Speaker 8: do that, skeptical that agencies that are technically part of
• 49:15
  Speaker 8: the executive branch should be allowed to exercise what is
• 49:19
  Speaker 8: essentially some kind of legislative authority. And so we've gotten
• 49:24
  Speaker 8: pretty far with this. And there are a number of conservatives,
• 49:28
  Speaker 8: I think, who have not been hostile to the administrative state.
• 49:31
  Speaker 8: Justice Scalia famously wrote a decision that upheld Congress's power
• 49:35
  Speaker 8: to delegate to the administrative agencies. But These newer justices
• 49:39
  Speaker 8: very much have been skeptical, if not deeply, deeply hostile
• 49:44
  Speaker 8: to the prospect of this. And I think this is
• 49:45
  Speaker 8: a real change in how we do government. And it's
• 49:47
  Speaker 8: going to be a big sea change, not just for
• 49:50
  Speaker 8: climate change, but basically everything that government does.
• 49:53
  Speaker 3: So you seem to be in the earthquake camp.
• 49:56
  Speaker 5: Oh, I mean, earthquake, conflagration.
• 49:59
  Speaker 8: I mean, like, imagine having to go to Congress to
• 50:03
  Speaker 8: do just some of the stupid things that we go
• 50:05
  Speaker 8: to administrative agencies to do.
• 50:06
  Speaker 2: These people can barely rename a post office. I mean,
• 50:11
  Speaker 2: forget about just having experts in the administrative state. You
• 50:13
  Speaker 2: also have people in the administrative state who can like
• 50:15
  Speaker 2: do their jobs every day.
• 50:16
  Speaker 5: I mean, that's the point.
• 50:19
  Speaker 8: I mean, like there are some things that Congress as
• 50:22
  Speaker 8: a large, cumbersome, multi-member, unwieldy body is just not well
• 50:26
  Speaker 8: equipped to do. And a smaller body with real expertise
• 50:30
  Speaker 8: is probably better suited. And, you know, that's, it seems
• 50:34
  Speaker 8: to be like something that many members of the conservative
• 50:37
  Speaker 8: legal movement are really hostile to, in part because I
• 50:39
  Speaker 8: think it facilitates the prospect of government regulation and who
• 50:43
  Speaker 8: wants that?
• 50:44
  Speaker 2: Right.
• 50:44
  Speaker 3: It does seem like some of it, obviously there's that
• 50:46
  Speaker 3: outcome that they don't want, which is an activist government
• 50:49
  Speaker 3: saving the planet, I suppose, which makes them uncomfortable.
• 50:52
  Speaker 5: Or just regulating business.
• 50:53
  Speaker 3: Or regulating business. But some of this really is, it
• 50:55
  Speaker 3: seems like it's not philosophical. It comes down to almost
• 50:57
  Speaker 3: like semantics or like What is the difference between Congress
• 51:01
  Speaker 3: passing a law that gives the administration power to enforce
• 51:04
  Speaker 3: it and the administration itself writing a refined version of
• 51:08
  Speaker 3: that law? We had this argument. We talked about this
• 51:09
  Speaker 3: the last time you were on the show when we
• 51:11
  Speaker 3: were talking about DACA, right? Whether or not DACA constitutes
• 51:14
  Speaker 3: some kind of legislative act. Like, how is that? How
• 51:17
  Speaker 3: do you think about that?
• 51:19
  Speaker 2: I mean.
• 51:20
  Speaker 8: All of this sort of comes back to this originalist
• 51:23
  Speaker 8: view of the Constitution and the idea that if the
• 51:25
  Speaker 8: Constitution doesn't explicitly say Congress can do it, then Congress
• 51:28
  Speaker 8: can't do it. And the point that you're making, the
• 51:31
  Speaker 8: logic that you're making, of course, there has to be
• 51:33
  Speaker 8: some kind of wiggle room here if we're allowing the
• 51:36
  Speaker 8: executive to enforce the law.
• 51:38
  Speaker 5: Maybe we should allow Congress.
• 51:39
  Speaker 8: To sort of give up some of that power so
• 51:40
  Speaker 8: the law can actually be enforced in a particular way.
• 51:43
  Speaker 5: And you know, I think there's play in the joints here.
• 51:45
  Speaker 8: The constitution's text, I think doesn't say everything in part
• 51:49
  Speaker 8: because it couldn't, right. I mean, they understood that they
• 51:52
  Speaker 8: weren't doing any, they weren't doing everything. They couldn't be
• 51:55
  Speaker 8: exhaustive and certainly not be exhaustive and have people be
• 51:58
  Speaker 8: able to read and understand what they were doing. So,
• 52:01
  Speaker 8: You know, I think there are going to be vagaries here.
• 52:04
  Speaker 8: You know, the whole idea of rights that are not explicit.
• 52:07
  Speaker 8: And note that whenever they're talking about these things that
• 52:10
  Speaker 8: are not in the Constitution, no one ever says anything
• 52:12
  Speaker 8: about executive privilege. They love executive privilege. Executive privilege is
• 52:15
  Speaker 8: nowhere written in the Constitution. But, you know, leave that
• 52:19
  Speaker 8: for another day. Again, all of this comes back to
• 52:22
  Speaker 8: this idea that we have to be bound by the
• 52:24
  Speaker 8: text in such a slavish way that common sense kind
• 52:27
  Speaker 8: of goes out the window. And we're making all of
• 52:31
  Speaker 8: these decisions as though we know what the framers would do.
• 52:33
  Speaker 8: When in fact, they too recognize the limits of their
• 52:36
  Speaker 8: own knowledge and how to deal with issues that they
• 52:38
  Speaker 8: couldn't even contemplate in that moment.
• 52:42
  Speaker 2: Melissa Murray, thank you as always for making us smarter
• 52:45
  Speaker 2: on all these issues. Uh, we appreciate it and come
• 52:47
  Speaker 2: back again soon.
• 52:48
  Speaker 5: Thanks for having me.
• 52:55
  Speaker 2: Thanks to Melissa Murray for joining us today. And, uh,
• 52:59
  Speaker 2: Enjoy the election returns tonight, everyone.
• 53:01
  Speaker 3: Enjoy the election returns tonight, everyone.
• 53:04
  Speaker 2: This is going to be.
• 53:06
  Speaker 4: Oh, this comes out on Tuesday, right?
• 53:07
  Speaker 2: Yeah, it comes out on Tuesday.
• 53:09
  Speaker 4: Do you think there's going to be like an MSNBC
• 53:11
  Speaker 4: countdown to the countdown?
• 53:12
  Speaker 3: Yeah, there'll probably be. Is there a needle?
• 53:14
  Speaker 2: Yeah, I hope there's a... Well, I'm sure there's a
• 53:15
  Speaker 2: clock up right now.
• 53:16
  Speaker 4: I hear a lot about turgid pros.
• 53:18
  Speaker 3: Turgid pros. Yes, swollen pros.
• 53:19
  Speaker 2: We're back to turgid. You guys might have forgotten about that,
• 53:22
  Speaker 2: but we brought it back.
• 53:22
  Speaker 3: Turgid waters.
• 53:23
  Speaker 2: Yeah, there he goes. All right. Well, bye, everyone.
• 53:27
  Speaker 4: Please win, Terry.
• 53:29
  Speaker 3: That game is just okay.
• 53:35
  Speaker 2: Pod Save America is a Crooked Media production. The executive
• 53:38
  Speaker 2: producer is Michael Martinez. Our senior producer is Andy Gardner Bernstein.
• 53:42
  Speaker 2: Our producer is Haley Muse and Olivia Martinez is our
• 53:44
  Speaker 2: associate producer. It's mixed and edited by Andrew Chadwick. Kyle
• 53:48
  Speaker 2: Sedlin is our sound engineer. Thanks to Tanya Somanator, Sandy Gerard,
• 53:52
  Speaker 2: Hallie Kiefer, Madison Holman, and Justine Howe for production support.
• 53:55
  Speaker 2: And to our digital team, Elijah Cohn, Phoebe Bradford, Milo Kim,
• 53:59
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• 54:03
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