Latest / Pod Save America / “51 and Done.”

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“51 and Done.” · Pod Save America

• 0:20
  Speaker 1: Welcome to Pod Save America. I'm Jon Favreau.
• 0:22
  Speaker 2: I'm Dan Pfeiffer.
• 0:23
  Speaker 1: On today's show, Democrats will have 51 Senate seats after
• 0:26
  Speaker 1: Raphael Warnock wins the final election of the 2022 midterms.
• 0:31
  Speaker 1: Donald Trump racks up more losses and legal troubles. And
• 0:34
  Speaker 1: strict scrutiny's Kate Shaw joins us to break down two
• 0:37
  Speaker 1: major cases heard by the Supreme Court this week on
• 0:40
  Speaker 1: gay rights and democracy. But first, Crooked Coffee's best-selling coffee
• 0:45
  Speaker 1: accessory is back in stock. The cold brewer helps make
• 0:48
  Speaker 1: cold brew coffee easy and affordable. Dan, what's so funny?
• 0:52
  Speaker 1: And every order supports Register Her, an organization working to
• 0:55
  Speaker 1: register millions of women to vote. Head to crooked.com slash
• 0:59
  Speaker 1: coffee to grab yours before they sell out again. I
• 1:02
  Speaker 1: know you want to get some cold brewers for your
• 1:06
  Speaker 1: family for Christmas, Dan. I know that's on your Christmas list.
• 1:09
  Speaker 2: It absolutely is on my Christmas list. I am a
• 1:10
  Speaker 2: Crooked Coffee subscriber. We love it in our house. It's great.
• 1:14
  Speaker 1: Well, fantastic. That's great to hear. That's great to hear.
• 1:17
  Speaker 1: All right, let's get to the news. It's a good
• 1:19
  Speaker 1: news day here. It's a great news day. Brittany Griner
• 1:23
  Speaker 1: is coming home from Russia. That was great news. The
• 1:26
  Speaker 1: house just passed. a bill that will protect same-sex and
• 1:30
  Speaker 1: interracial marriage. And Georgia Senator Raphael Warnock this week won
• 1:36
  Speaker 1: his fifth election in two years, defeating Republican Herschel Walker
• 1:40
  Speaker 1: in a runoff by nearly three points, 51 to 48 percent,
• 1:44
  Speaker 1: which means Democrats will not only hold but increase their
• 1:47
  Speaker 1: Senate majority by one seat, an incredible accomplishment in a
• 1:51
  Speaker 1: midterm where most voters disapproved of the president and the
• 1:54
  Speaker 1: state of the economy. After the race was called, Senator
• 1:58
  Speaker 1: Warnock delivered one of the best victory speeches I've heard
• 2:01
  Speaker 1: in a long time. Here is a clip.
• 2:03
  Speaker 3: And after a hard-fought campaign... Or should I say campaigns?
• 2:22
  Speaker 3: It is my honor.
• 2:26
  Speaker 3: To utter the four most powerful words ever spoken in
• 2:31
  Speaker 3: a democracy. The people have spoken. I am Georgia. I
• 2:49
  Speaker 3: am an example and an iteration of its.
• 2:53
  Speaker 1: History.
• 2:56
  Speaker 3: Of its pain and its promise of the brutality and
• 2:59
  Speaker 3: the possibility. But because this is America, because we always
• 3:06
  Speaker 3: have a path to make our country greater against unspeakable odds,
• 3:14
  Speaker 3: here we stand together. Thank you, Georgia.
• 3:20
  Speaker 1: What do you think, Dan? How did Warnock pull this
• 3:22
  Speaker 1: off for the fifth time In two years. Four general elections,
• 3:27
  Speaker 1: one primary.
• 3:29
  Speaker 2: I mean, here's what I hope more than anything else.
• 3:31
  Speaker 2: The man gets a vacation.
• 3:33
  Speaker 1: I know.
• 3:33
  Speaker 2: He has been running for office for four straight years,
• 3:37
  Speaker 2: facing the voters all the time. Brutal attacks. Just I
• 3:40
  Speaker 2: hope he has a nice, relaxing holiday. This is a
• 3:44
  Speaker 2: very interesting result because it's what was expected. On paper,
• 3:52
  Speaker 2: this is what most of the pundits thought, what the
• 3:54
  Speaker 2: polls predicted. The polls were, dare I say, correct again
• 3:58
  Speaker 2: or correct-ish again.
• 4:01
  Speaker 1: Even more correct, I think. I think the polls really
• 4:04
  Speaker 1: nailed the runoff.
• 4:05
  Speaker 2: But then it's– you take a step back and you
• 4:07
  Speaker 2: say a Democrat won a Senate seat in Georgia in
• 4:14
  Speaker 2: the first year of a president of his party's midterms.
• 4:19
  Speaker 2: When inflation is high, gas prices are high, and sentiments
• 4:22
  Speaker 2: about the economy are down, that's an amazing feat. It's
• 4:26
  Speaker 2: an absolutely amazing feat. And it says a lot about
• 4:30
  Speaker 2: Raphael Warnock, which I know we'll talk about. It says
• 4:31
  Speaker 2: a lot about the state of American politics. It says
• 4:34
  Speaker 2: a lot about the mistakes the Republicans made. But he
• 4:37
  Speaker 2: did it by building a coalition that included strong turnout
• 4:42
  Speaker 2: from Democratic voters, a coalition that modeled the post-Trump Democratic
• 4:47
  Speaker 2: coalition with incredibly strong results in the suburbs. And he
• 4:51
  Speaker 2: did it by persuading a decent number of Republicans and
• 4:55
  Speaker 2: Republican-leading independents who may have preferred Republicans to be in
• 4:58
  Speaker 2: charge of Congress, but did not think that Hershel Walker
• 5:01
  Speaker 2: was the person for that job.
• 5:03
  Speaker 1: Yeah. So NBC News did a story on how Warnock won,
• 5:07
  Speaker 1: where they interviewed his campaign manager and his deputy campaign manager.
• 5:13
  Speaker 1: The deputy campaign manager said, that we did this by
• 5:17
  Speaker 1: creating a permission structure for soft Republicans, swing voters, and
• 5:21
  Speaker 1: independents to support Reverend Warnock. It was key to our strategy,
• 5:24
  Speaker 1: and it was why we highlighted things like working with
• 5:26
  Speaker 1: Ted Cruz or standing up for peanut farmers. We asked
• 5:30
  Speaker 1: him about the Ted Cruz thing when he was on
• 5:32
  Speaker 1: the pod a month ago. His campaign manager said there
• 5:36
  Speaker 1: could have been other campaign operatives or another campaign that
• 5:38
  Speaker 1: could have said, okay, Herschel Walker has all this baggage,
• 5:41
  Speaker 1: so we're just going to run to the left and
• 5:42
  Speaker 1: just try to turn out as many of our voters
• 5:44
  Speaker 1: as and just let Republicans eat their own. We didn't
• 5:47
  Speaker 1: do that. I thought that was interesting because the two
• 5:50
  Speaker 1: people that helped run the campaign and devise the strategy
• 5:53
  Speaker 1: were very specific in crediting the victory to making sure
• 5:57
  Speaker 1: that Reverend Warnock and their campaign appealed to the broadest
• 6:02
  Speaker 1: possible coalition. And sure enough, that's what they did. They
• 6:06
  Speaker 1: got a lot of sort of Republican-leaning voters, voters who
• 6:09
  Speaker 1: in other races in the past and in this cycle...
• 6:13
  Speaker 1: voted for Republicans for other statewide offices, and yet decided
• 6:18
  Speaker 1: to vote for Raphael Warnock for Senate.
• 6:21
  Speaker 2: I mean, it's incredibly impressive. And their strategy is obviously
• 6:24
  Speaker 2: dictated by the math of the state. You absolutely need,
• 6:27
  Speaker 2: that's the only way you can win. It's how Biden
• 6:29
  Speaker 2: won in 2020. It is how John Ossoff and Raphael
• 6:32
  Speaker 2: Warnock won in 2021, I guess, when they won the runoff.
• 6:36
  Speaker 2: And it's the only strategy available. And it's, what is
• 6:39
  Speaker 2: notable about it, and this goes to, I think, what
• 6:44
  Speaker 2: is a replicable strategy for Democrats running in purple states
• 6:47
  Speaker 2: going forward is that Warnock was able to appeal to
• 6:51
  Speaker 2: moderate Republicans without compromising his principles. He didn't adopt mushy
• 6:57
  Speaker 2: middle centrism or performative attacks on Democrats or looking for
• 7:02
  Speaker 2: ways to show himself to be an opponent of President Biden.
• 7:07
  Speaker 2: He did it by being broadly appealing Suggesting that he
• 7:10
  Speaker 2: was willing to work with people he disagreed with without
• 7:14
  Speaker 2: changing his views and did it in a way that
• 7:20
  Speaker 2: was very authentic to himself and to the state.
• 7:23
  Speaker 1: And it's a.
• 7:23
  Speaker 2: Real– like this is all– this seems very basic, but
• 7:26
  Speaker 2: not enough people do this. And he did it incredibly well.
• 7:30
  Speaker 1: Well, I remember you and I– After the Obama-PSA interview,
• 7:37
  Speaker 1: we're sitting around. It was the night of the debate
• 7:39
  Speaker 1: between Walker and Warnock, and we didn't watch the debate
• 7:42
  Speaker 1: because we had done the interview, but we were looking
• 7:44
  Speaker 1: online at the.
• 7:45
  Speaker 2: Because we'd done the interview, it was so funny. We
• 7:47
  Speaker 2: had done some work that day, and we were out.
• 7:49
  Speaker 1: Yeah, look, it doesn't usually happen. Usually, we're just in
• 7:52
  Speaker 1: front of our screen.
• 7:52
  Speaker 2: We were at a book party for our friend Cody Keenan.
• 7:54
  Speaker 1: That's right, yeah, yeah. But we were watching the Twitter
• 7:57
  Speaker 1: reaction for the debate. Because we're losers. Because you and
• 8:02
  Speaker 1: I just had a hard day's work. We sat down.
• 8:04
  Speaker 1: We ordered a drink at the bar. And then we
• 8:06
  Speaker 1: started looking at our Twitter feed. But there was all
• 8:10
  Speaker 1: this online angst that Warnock didn't hit Walker hard enough
• 8:14
  Speaker 1: during the debate. That he didn't attack more. That he
• 8:18
  Speaker 1: missed all these opportunities. He should have been more of
• 8:20
  Speaker 1: a fighter. He's letting the whole thing slip away. Later
• 8:23
  Speaker 1: in the campaign... There was some angst that he didn't
• 8:26
  Speaker 1: spend enough time talking about abortion or running ads about abortion,
• 8:30
  Speaker 1: even though he said clearly he's pro-choice and would have
• 8:33
  Speaker 1: voted to codify Roe if Democrats got the House back.
• 8:37
  Speaker 1: And it just turns out that all of that angst
• 8:39
  Speaker 1: was wrong. And Warnock and his campaign were right. Their
• 8:43
  Speaker 1: strategy was correct.
• 8:46
  Speaker 2: One thing that is true, and Warnock's campaign was clearly
• 8:49
  Speaker 2: very aware of this and navigated very carefully, is that
• 8:53
  Speaker 2: There are strategies available to white male candidates. They're not
• 8:57
  Speaker 2: available to candidates of color or women candidates. And this
• 9:01
  Speaker 2: is something that Obama had to deal with in all
• 9:02
  Speaker 2: of his races.
• 9:03
  Speaker 1: I was going to say, we dealt with this in 2008.
• 9:05
  Speaker 2: The attacks are interpreted by the press and the electorate
• 9:08
  Speaker 2: differently when they come from women or candidates of color.
• 9:11
  Speaker 2: And so when people say, well, why can't he be
• 9:14
  Speaker 2: like Tim Ryan when Tim Ryan is just flailing J.D.
• 9:16
  Speaker 4: Vance?
• 9:17
  Speaker 2: And put aside the result of that campaign because I
• 9:18
  Speaker 2: don't think it has anything to do with debate strategies.
• 9:20
  Speaker 2: because that would be treated very differently for Raphael Warnock
• 9:23
  Speaker 2: than it would Tim Ryan or even a John Fetterman.
• 9:25
  Speaker 2: And that's a very important thing that I think not
• 9:27
  Speaker 2: enough people who observe politics pay attention to.
• 9:31
  Speaker 1: I also would not underestimate the appeal in Georgia of
• 9:36
  Speaker 1: running as the pastor of Martin Luther King's church.
• 9:41
  Speaker 2: Oh, really? You wouldn't underestimate that?
• 9:44
  Speaker 1: It was just something that's not like talked. It's like,
• 9:48
  Speaker 1: You know, that's a pretty big deal in Georgia. And
• 9:51
  Speaker 1: I think that makes you broadly appealing in a way
• 9:55
  Speaker 1: that other Democrats may have been sort of, you know,
• 9:58
  Speaker 1: put in a box. as your traditional Democratic partisan. Like
• 10:02
  Speaker 1: when you are the pastor of Martin Luther King's church,
• 10:05
  Speaker 1: it sort of rises above just your own base. And
• 10:08
  Speaker 1: especially in a state like Georgia.
• 10:10
  Speaker 2: Yeah. And it makes his personal story and his and
• 10:14
  Speaker 2: being a pastor. gave him outsider credentials at a time
• 10:19
  Speaker 2: in which people hate politics. I think it probably also
• 10:22
  Speaker 2: made– and this also has to do with his personal
• 10:25
  Speaker 2: demeanor and his style in the campaign trail– made it
• 10:26
  Speaker 2: harder for Republicans to paint him as an extremist, to
• 10:30
  Speaker 2: use the same strategies that they used against Mandela Barnes
• 10:33
  Speaker 2: to use against Raphael Warnock. Now, these are two very
• 10:35
  Speaker 2: different states, two very different opponents. But his personal story,
• 10:41
  Speaker 2: I think, and his personal demeanor insulated him from some
• 10:44
  Speaker 2: of those attacks or allowed him to navigate them in
• 10:46
  Speaker 2: a way that maybe other candidates could not.
• 10:49
  Speaker 1: Well, I also think he had some practice navigating them.
• 10:52
  Speaker 2: Because he's had to run for office nonstop for half
• 10:55
  Speaker 2: a decade.
• 10:56
  Speaker 1: So they clearly knew that those attacks were coming. And
• 11:00
  Speaker 1: that's why they had all those ads at the beginning
• 11:02
  Speaker 1: as far back as 2020 of like, yeah, he's the
• 11:05
  Speaker 1: pastor of Martin Luther King's church, who's also walking his
• 11:09
  Speaker 1: dog in the suburbs and and also talking about all
• 11:13
  Speaker 1: the issues that voters really care about, right? The much
• 11:16
  Speaker 1: maligned kitchen table issues. Most of his ads were about that.
• 11:21
  Speaker 1: He was the senator most responsible for making sure that
• 11:25
  Speaker 1: the $ 35 cap on insulin ended up being included in
• 11:29
  Speaker 1: the Inflation Reduction Act, which is probably one of the
• 11:32
  Speaker 1: most popular provisions in the bill. So yeah, he knew
• 11:35
  Speaker 1: what he was doing. Now, on the other side of this,
• 11:38
  Speaker 1: how much of this outcome was about Herschel Walker and
• 11:44
  Speaker 1: or Donald Trump. I saw a lot of Georgia Republicans
• 11:47
  Speaker 1: point out correctly that their party won every other statewide
• 11:52
  Speaker 1: race but this one.
• 11:54
  Speaker 2: The answer is both. They are correct. Herschel Walker was
• 11:58
  Speaker 2: a terrible candidate who did less well than all the
• 12:01
  Speaker 2: other statewide Republicans. This was a year that Republicans should
• 12:04
  Speaker 2: have won And they won the governor's race. They won
• 12:07
  Speaker 2: the attorney general's race. They won the secretary of state's race.
• 12:09
  Speaker 2: Republican House candidates did well on the state. But here's
• 12:14
  Speaker 2: the thing that I think is really interesting is the
• 12:17
  Speaker 2: results of this election are almost exactly the same as
• 12:23
  Speaker 2: the results of the runoff that happened on January 5th, 2021.
• 12:28
  Speaker 2: And that's an important thing to remember because in that election,
• 12:31
  Speaker 2: Warnock was not running against Hershel Walker. That election took
• 12:35
  Speaker 2: place before the January 6th insurrection, took place before Trump's
• 12:39
  Speaker 2: second impeachment, before inflation came, before gas prices went up,
• 12:42
  Speaker 2: before Russia invaded Ukraine. I mean, we've had a decade's
• 12:46
  Speaker 2: worth of news in these two years. Pandemic spikes, vaccines,
• 12:50
  Speaker 2: all of that. And yet the results are almost exactly
• 12:52
  Speaker 2: the same. Not a single county flipped from the 2021
• 12:55
  Speaker 2: to 2022 election. in these results. And that is sort
• 13:00
  Speaker 2: of mind boggling. It speaks to the thing that you're,
• 13:02
  Speaker 2: that Lynn Vavrick, who you had on offline, the potential
• 13:04
  Speaker 2: professor called calcified politics is that everything happened in this
• 13:07
  Speaker 2: race looks almost exactly like one that happened with a
• 13:10
  Speaker 2: different opponent, not a great opponent, but certainly someone better
• 13:13
  Speaker 2: than Herschel Walker. And you get the same result. And
• 13:17
  Speaker 2: that's just something that says something about the state of
• 13:19
  Speaker 2: our politics.
• 13:21
  Speaker 1: And I think the key point about calcification, which is,
• 13:24
  Speaker 1: and Lynn was on offline, she's been on the wilderness before.
• 13:28
  Speaker 1: They did 500,000 interviews with voters after the 2020 elections.
• 13:32
  Speaker 1: That's quite a good sample size. The deal with caliphification
• 13:34
  Speaker 1: is that it started in 2016. It started when Trump
• 13:40
  Speaker 1: won in 2016. And 2016, 2018, 2020, 2022, regardless of
• 13:46
  Speaker 1: what the polls said ahead of each election or the narrative,
• 13:50
  Speaker 1: they all ended up being extremely close elections where there
• 13:54
  Speaker 1: wasn't much movement between them. Now, before 2016, you had
• 13:57
  Speaker 1: all kinds of changes, right? Like, Steve Kornacki had a
• 14:00
  Speaker 1: chart up on Twitter and on MSNBC just showing how
• 14:04
  Speaker 1: many counties in Georgia have swung towards the Democrats over
• 14:08
  Speaker 1: the last decade or so. But once you hit 2016,
• 14:11
  Speaker 1: the changes are, and the maps that you just referenced,
• 14:14
  Speaker 1: the 2021-2022 maps, no counties flipped. You could see some
• 14:18
  Speaker 1: of the blue counties get slightly bluer, some of the
• 14:21
  Speaker 1: bluest counties get slightly bluer, and then some of the
• 14:24
  Speaker 1: reddest counties get gets slightly redder, and that's about it.
• 14:27
  Speaker 1: So you get the polarization continues in all these counties.
• 14:30
  Speaker 1: The red gets redder, blue gets bluer, but really nothing
• 14:33
  Speaker 1: else much happens. So I think for all the Walker stuff,
• 14:38
  Speaker 1: like there are, look, there are swing voters. There are
• 14:41
  Speaker 1: split ticket voters. Persuasion is probably made all the difference
• 14:44
  Speaker 1: in this election, but that is happening among a shrinking
• 14:49
  Speaker 1: slice of voters. Doesn't mean it's any less important. It
• 14:52
  Speaker 1: actually means it's more important because- It's so close and
• 14:55
  Speaker 1: so closely divided. But so many of these elections are
• 14:59
  Speaker 1: just start from a base where people are just doing
• 15:03
  Speaker 1: the same thing they did for the last several years.
• 15:05
  Speaker 2: The interesting thing about calcification is most people look at
• 15:09
  Speaker 2: the fact that politics has been stuck and that nothing
• 15:12
  Speaker 2: has changed things dramatically. Not a pandemic, not Trump, not impeachment,
• 15:15
  Speaker 2: not insurrection. They say, lol, nothing matters. But that's the
• 15:20
  Speaker 2: opposite of the truth. Calcification means everything matters because there's
• 15:24
  Speaker 2: a small segment of voters, either people who are moving
• 15:28
  Speaker 2: from party to party, or more likely people are moving
• 15:31
  Speaker 2: from not voting to voting. And in that sense, that
• 15:35
  Speaker 2: should tell us that everything matters. Every single thing we do,
• 15:38
  Speaker 2: everything we say, every single voter we talk to could
• 15:41
  Speaker 2: be the difference. Remember, Biden only won the state by
• 15:44
  Speaker 2: less than a percent in 2020. One other thing about
• 15:48
  Speaker 2: this that I think is just notable about this result
• 15:53
  Speaker 2: is I think after 2020, there was a question about
• 15:57
  Speaker 2: whether the 2020 result in Georgia was an aberration. In 2008,
• 16:04
  Speaker 2: Obama won three Republican states, Indiana, North Carolina, and Virginia.
• 16:08
  Speaker 2: And Indiana went right back to being super Republican. In fact,
• 16:11
  Speaker 2: it's now much more Republican in 2022 than it was
• 16:13
  Speaker 2: in 2008. North Carolina Democrats have not won a federal
• 16:17
  Speaker 2: statewide race there since then. It has remained competitive, but
• 16:21
  Speaker 2: not that competitive since then. And Virginia became a truly
• 16:25
  Speaker 2: purple state leading blue, where Democrats have won every presidential
• 16:29
  Speaker 2: race since then, most of the governorships, and have both
• 16:31
  Speaker 2: Senate seats. I think it's fair to say that we
• 16:34
  Speaker 2: now know because of the 2022 results that Georgia is
• 16:37
  Speaker 2: a purple state, that it is going to be a
• 16:39
  Speaker 2: battleground state.
• 16:40
  Speaker 1: I would say it's probably between Virginia and North Carolina.
• 16:44
  Speaker 1: It's probably Virginia 2012.
• 16:45
  Speaker 2: Virginia 2012 was quite competitive up until the very end.
• 16:49
  Speaker 2: People thought we were probably going to lose it. What
• 16:52
  Speaker 2: I think is in that Steve Kornacki chart you talked about,
• 16:55
  Speaker 2: this is a really interesting stat, that the 10 counties
• 16:58
  Speaker 2: that make up the metro Atlanta area have moved 42
• 17:02
  Speaker 2: points in the Democrats' direction since 2004. And that is
• 17:06
  Speaker 2: emblematic of the shift in our electoral coalitions, much of
• 17:10
  Speaker 2: that change has happened since 2016. And that is why
• 17:17
  Speaker 2: Georgia is now a battleground state. But what is interesting
• 17:21
  Speaker 2: about it is that shift where you are essentially trading
• 17:25
  Speaker 2: suburban voters for rural voters is great for a state
• 17:29
  Speaker 2: like Georgia. It's very good for a state like Arizona.
• 17:33
  Speaker 2: It may be helpful in Texas one day. But nationally...
• 17:37
  Speaker 2: That is a problem because this nation does not look
• 17:41
  Speaker 2: like Georgia in terms of rural versus suburban. And because
• 17:46
  Speaker 2: of the Electoral College and the Senate, the voters that
• 17:49
  Speaker 2: we are losing are actually much more politically impactful than
• 17:52
  Speaker 2: the ones we're gaining.
• 17:54
  Speaker 1: Yeah, well, it depends on the state because we have
• 17:56
  Speaker 1: talked a lot about sort of demographic groups of voters,
• 17:59
  Speaker 1: but the geography is probably more telling than anything else.
• 18:03
  Speaker 1: And states with large population centers, Atlanta- the Phoenix metro area,
• 18:10
  Speaker 1: especially large population centers that are growing, that are getting younger,
• 18:14
  Speaker 1: that more college educated voters are moving from other states
• 18:20
  Speaker 1: to live there. This is across the Sunbelt, like you said,
• 18:22
  Speaker 1: Texas as well. Those states are going to end up
• 18:25
  Speaker 1: that trade between suburban and rural is going to be
• 18:28
  Speaker 1: better for us. But in states without large population centers
• 18:32
  Speaker 1: like Wisconsin, it's a little tougher. And I think that's
• 18:36
  Speaker 1: the big difference. I also think it's why like Michigan,
• 18:38
  Speaker 1: for example, sort of bounced back faster than Wisconsin did
• 18:42
  Speaker 1: for us because you've got Detroit and the suburbs around
• 18:45
  Speaker 1: Detroit that have been good for us. But I do think, look,
• 18:49
  Speaker 1: the question hanging over all of this, which we're going
• 18:51
  Speaker 1: to talk about in a second, is how much Trump
• 18:53
  Speaker 1: has to do with all of this. Because the other
• 18:56
  Speaker 1: interesting stat was that Trump endorsed a bunch of statewide
• 18:59
  Speaker 1: candidates in Georgia. All of them lost their primary except
• 19:03
  Speaker 1: for two. One was Herschel Walker and the other was
• 19:06
  Speaker 1: the lieutenant governor candidate, who ran worse than anyone else
• 19:09
  Speaker 1: but Herschel Walker. So, like, is this a Trump thing?
• 19:13
  Speaker 1: If Trump's not on the ballot, what happens in these states?
• 19:16
  Speaker 1: Is this sort of a Trump calcification era or not?
• 19:19
  Speaker 1: That we're going to have to find out. And I
• 19:22
  Speaker 1: also think, back to the original question about Walker, like,
• 19:24
  Speaker 1: I think Walker being such a dogshit candidate gave Warnock
• 19:30
  Speaker 1: the opportunity, but Warnock still had to run a campaign
• 19:33
  Speaker 1: to seize that opportunity. Like, I think that if Warnock
• 19:36
  Speaker 1: wasn't the candidate that he was, it wasn't automatic that
• 19:42
  Speaker 1: anyone running against Herschel Walker was going to win. You really,
• 19:44
  Speaker 1: really had to run a great campaign. So I don't
• 19:46
  Speaker 1: know if this is a blessing or a curse for Warnock,
• 19:48
  Speaker 1: but political play... wrote that with his win, a democratic
• 19:53
  Speaker 1: political star was born. What's next for the senator? What
• 19:56
  Speaker 1: would you advise him to do?
• 19:58
  Speaker 2: Get a podcast.
• 20:02
  Speaker 1: Please don't do that.
• 20:03
  Speaker 2: Ralphio Warnock is, he's awesome. He is, he is great.
• 20:08
  Speaker 2: He has been on pod save America like three times
• 20:11
  Speaker 2: in the last six weeks. I mean, he would be
• 20:12
  Speaker 2: very good at a podcast for that reason. I hope he,
• 20:15
  Speaker 2: you know, some people will be like, you should run
• 20:17
  Speaker 2: for president. I have no idea if he should do that.
• 20:19
  Speaker 2: We don't, I mean, I'm presuming Joe Biden's probably going
• 20:21
  Speaker 2: to run. It doesn't really matter. I just hope that
• 20:23
  Speaker 2: he is out there speaking on behalf of our party
• 20:27
  Speaker 2: as often as possible, you know, you know, On the shows,
• 20:30
  Speaker 2: do the Sunday shows, do cable, but just be out there.
• 20:33
  Speaker 1: Why do you hate him so much? I thought you
• 20:35
  Speaker 1: liked him.
• 20:37
  Speaker 2: Congratulations on your reelection. Have brunch with Chuck Todd.
• 20:42
  Speaker 1: After you're done with Margaret Brennan and on your way
• 20:45
  Speaker 1: to George.
• 20:45
  Speaker 2: You know what, Raphael Warnock? Call me when you've done
• 20:47
  Speaker 2: the full Ginsburg, all right?
• 20:49
  Speaker 1: Sorry, and Jake. Sorry, Jake.
• 20:53
  Speaker 2: Oh, George, we forgot one of them.
• 20:55
  Speaker 1: No, I said you're right.
• 20:57
  Speaker 2: I think he's great. I hope he is out there
• 21:00
  Speaker 2: a lot. I think he is a model for Democrats,
• 21:02
  Speaker 2: particularly Democrats running in the South. He is a very
• 21:05
  Speaker 2: compelling messenger. We need more compelling messengers delivering the message
• 21:08
  Speaker 2: more often. I think he is great.
• 21:11
  Speaker 1: Yeah, I'd get out there, start giving speeches nationally and
• 21:14
  Speaker 1: think about running for president in 2028. That's what I
• 21:16
  Speaker 1: would do. And I think that he hasn't been out
• 21:18
  Speaker 1: there as much over the last couple of years just
• 21:20
  Speaker 1: because he knew this election was coming and he's been
• 21:22
  Speaker 1: in campaign mode. And the most important thing was to
• 21:26
  Speaker 1: win the state of Georgia and all the elections that
• 21:29
  Speaker 1: he had to win there, which is more than most
• 21:30
  Speaker 1: people do in the Senate. But now that he's got
• 21:33
  Speaker 1: six years, I think now it's time to sort of
• 21:35
  Speaker 1: raise his national profile. And I don't just say that
• 21:37
  Speaker 1: for like for his sake, but like you said, he
• 21:39
  Speaker 1: is a fantastic speaker and he knows how to win
• 21:44
  Speaker 1: in a very, very competitive state without sacrificing any of
• 21:48
  Speaker 1: his principles, values or policy positions. So and that is
• 21:51
  Speaker 1: rare in this party. And he should go out there
• 21:54
  Speaker 1: and speak for the party as much as he can.
• 21:56
  Speaker 1: So Walker conceded, Herschel Walker conceded, saying there's no excuses
• 22:00
  Speaker 1: in life and I'm not going to make any excuses
• 22:01
  Speaker 1: now because we put up one heck of a fight.
• 22:04
  Speaker 1: So that means every major Republican candidate across the country,
• 22:09
  Speaker 1: with the exception of Carrie Lake, has now conceded in
• 22:13
  Speaker 1: a midterm where a lot of proud election deniers ran
• 22:17
  Speaker 1: for office. What do you make of that? Why do
• 22:18
  Speaker 1: you think that happened?
• 22:20
  Speaker 2: That Donald Trump Is a unique form of sociopath.
• 22:27
  Speaker 3: Yeah.
• 22:28
  Speaker 2: It just– what he did truly required sociopathic tendencies. I'm
• 22:34
  Speaker 2: sure I'm going to be actually by a lot of
• 22:36
  Speaker 2: people who are experts in that subject. But just to
• 22:41
  Speaker 2: be able to, against all evidence, against all truth, to
• 22:45
  Speaker 2: be able to claim an obvious lie and stick to
• 22:47
  Speaker 2: it to the point that you could incite a violent
• 22:50
  Speaker 2: insurrection is truly– unique behavior. And it only works if
• 22:56
  Speaker 2: you have the leader of the party pushing it. It
• 22:59
  Speaker 2: hasn't even really worked for Carrie Lake. The people aren't
• 23:01
  Speaker 2: rallying to her defense. It's not really getting a ton
• 23:04
  Speaker 2: of attention. It only works with Trump, which it should
• 23:07
  Speaker 2: give us some tiny measure of comfort that only Trump
• 23:13
  Speaker 2: does this in a truly dangerous way, But we should
• 23:17
  Speaker 2: also remember that he is almost certainly going to be
• 23:20
  Speaker 2: the Republican nominee and is a coin flip away from
• 23:22
  Speaker 2: being president of the United States again. So the threat
• 23:25
  Speaker 2: to democracy that existed before this election still exists in
• 23:29
  Speaker 2: almost the exact same way as it did whether Hershel
• 23:31
  Speaker 2: Walker and Blake Masters conceded or not.
• 23:35
  Speaker 1: Yeah, it does seem like it was easier to embrace
• 23:39
  Speaker 1: the big lie than create one of your own, the
• 23:41
  Speaker 1: lesson I take. And that a lot of these folks,
• 23:44
  Speaker 1: some of them are– true crazies. But I think a
• 23:48
  Speaker 1: lot of these folks embraced the big lie, maybe never
• 23:52
  Speaker 1: really believed Trump's election denials, but knew that that was
• 23:56
  Speaker 1: the only path to victory in the Republican party, not
• 23:59
  Speaker 1: to excuse them. It's still horrific to do that. But, um,
• 24:02
  Speaker 1: I think that explains that when they lost, why they
• 24:05
  Speaker 1: just conceded and sort of faded away as opposed to, um,
• 24:09
  Speaker 1: to stay in and to, to do what Carrie Lake
• 24:11
  Speaker 1: is doing right now. Um, Senate Democrats will now have
• 24:14
  Speaker 1: 51 votes instead of 50. What will that change in
• 24:17
  Speaker 1: a Congress where Republicans will also control the House?
• 24:21
  Speaker 2: A couple of things. One, it means that Democrats have
• 24:25
  Speaker 2: a true majority. In a 50-50 Senate, you have to
• 24:28
  Speaker 2: negotiate with the Republicans on the organizing resolution. You have
• 24:31
  Speaker 2: equal numbers on committees. Here, Democrats have a true majority.
• 24:34
  Speaker 2: They can organize the Congress. They can set up the
• 24:37
  Speaker 2: committees without having to deal with Mitch McConnell. That matters
• 24:39
  Speaker 2: a lot. And this, I think, gets lost because we
• 24:42
  Speaker 2: have this view that's like we're going to get two
• 24:44
  Speaker 2: more anti-filibuster senators and then we will never think of
• 24:48
  Speaker 2: Joe Manchin and Kyrsten Sinema again. That did not happen, obviously.
• 24:52
  Speaker 2: And even if we did do that, we don't have
• 24:53
  Speaker 2: the House, so it's not like we could be passing
• 24:54
  Speaker 2: a whole bunch of legislation that is subject to the filibuster.
• 24:57
  Speaker 2: But what I think gets lost is that Manchin and
• 25:01
  Speaker 2: Sinema are difficult, but they're often difficult for different reasons. Hmm.
• 25:05
  Speaker 2: On the various iterations of the Build Back Better bill,
• 25:08
  Speaker 2: there were lots of things that Joe Manchin was willing
• 25:10
  Speaker 2: to do that Democrats love, like raise taxes on corporations
• 25:13
  Speaker 2: that Kyrsten Sinema wouldn't do. On some climate stuff, there
• 25:15
  Speaker 2: are things Kyrsten Sinema will do that Manchin won't. Kyrsten
• 25:18
  Speaker 2: Sinema will do things in terms of gun safety laws
• 25:22
  Speaker 2: that Manchin won't. And now you only need one of
• 25:24
  Speaker 2: the two of them if you're in a position. And
• 25:27
  Speaker 2: that may not end up mattering in legislation because obviously
• 25:29
  Speaker 2: we don't have the House. But in terms of nominees,
• 25:30
  Speaker 2: the fact that we can now lose one matters a
• 25:34
  Speaker 2: lot it's going to make joe biden's life easier it's
• 25:36
  Speaker 2: going to make chuck schumer's life easier frankly going to
• 25:38
  Speaker 2: make our lives easier which is not for nothing.
• 25:41
  Speaker 1: And and it's going to make your listening easier because
• 25:44
  Speaker 1: uh we won't spend the next two years talking about
• 25:46
  Speaker 1: joe mansion all the time.
• 25:47
  Speaker 2: Yeah like we like you don't like that and the
• 25:49
  Speaker 2: downloads prove it we we don't like.
• 25:53
  Speaker 1: Doing it no one is going to look back at
• 25:56
  Speaker 1: the joe mansion era fondly yes so maybe joe mansion
• 26:09
  Speaker 1: All right. Other big loser out of Georgia, as we've mentioned,
• 26:13
  Speaker 1: Donald Trump. Trump's endorsement record for all statewide candidates. We
• 26:16
  Speaker 1: talked about his record in Georgia. For all statewide candidates
• 26:20
  Speaker 1: across the country in the midterms is now two wins,
• 26:23
  Speaker 1: 14 losses. Not a great record. And still, still. Walker's
• 26:29
  Speaker 1: loss was not the worst thing that happened to Trump
• 26:31
  Speaker 1: on Tuesday. His company, the Trump Organization, was found guilty
• 26:34
  Speaker 1: on 17 counts of tax fraud, scheming to defraud, conspiracy,
• 26:39
  Speaker 1: and falsifying business records. This is the case where Trump's
• 26:42
  Speaker 1: chief financial officer, Allen Weisselberg, already pled guilty but refused
• 26:46
  Speaker 1: to implicate Trump himself, though prosecutors did repeatedly tell the
• 26:50
  Speaker 1: jurors that the former president personally approved the illegal scheme,
• 26:55
  Speaker 1: something he, of course, denied in a series of truths. So, Dan,
• 26:59
  Speaker 1: the penalty here is only about a million and a
• 27:01
  Speaker 1: half dollars, though the Manhattan D.A. is reportedly still investigating
• 27:06
  Speaker 1: Trump now for the Stormy Daniels hush money payments. How's
• 27:10
  Speaker 1: that for a deep cut? Forgot about that one, huh?
• 27:13
  Speaker 1: But do you think that Trump running a business convicted
• 27:17
  Speaker 1: of fraud will become an issue in the 2024 campaign,
• 27:22
  Speaker 1: primary or general?
• 27:24
  Speaker 2: That's a tough question, John. I think I'm basically dancing
• 27:33
  Speaker 2: around the prediction zone here, so it's very worrisome to
• 27:37
  Speaker 2: start making predictions this close to New Year's resolution time.
• 27:40
  Speaker 2: But I think it is more likely to be an
• 27:43
  Speaker 2: issue in a primary than a general. We know from
• 27:49
  Speaker 2: the 2020 election that there is a lot of things
• 27:53
  Speaker 2: that nearly half of Americans are going to look past.
• 27:56
  Speaker 2: to elect a candidate they think is more aligned with
• 27:59
  Speaker 2: their political or cultural interests, whether that is managing a pandemic,
• 28:03
  Speaker 2: extorting Ukraine, just being a general doofus, all of the
• 28:06
  Speaker 2: things that Trump did.
• 28:07
  Speaker 1: Inciting an insurrection. You know, and is.
• 28:09
  Speaker 2: This that different than the Trump University case that happened
• 28:14
  Speaker 2: right before the 2016 election? So I think, I don't
• 28:17
  Speaker 2: know the fact that Donald Trump is a really sketchy
• 28:20
  Speaker 2: business person is new information that's going to shift a
• 28:22
  Speaker 2: ton of votes in a general election. In a primary election,
• 28:27
  Speaker 2: were there to be one, which as we should know,
• 28:29
  Speaker 2: Trump currently has no primary opponents and is running unopposed
• 28:31
  Speaker 2: for the Republican nomination, it is another piece of evidence
• 28:36
  Speaker 2: that Donald Trump is a chaotic mess who could be
• 28:41
  Speaker 2: a drag on the ticket. That is not because all
• 28:43
  Speaker 2: of a sudden Republican voters have developed real moral opposition
• 28:49
  Speaker 2: to corporations stealing. This will be because another example that
• 28:54
  Speaker 2: he could lose. It's a political weakness, a reminder of
• 29:00
  Speaker 2: all of the bad behavior and just general nonsense that
• 29:03
  Speaker 2: they believe cost them the Senate in this election and
• 29:06
  Speaker 2: cost them the large House majority they thought they were
• 29:09
  Speaker 2: going to have. This is a piece of evidence to
• 29:11
  Speaker 2: that that could be utilized against him in a primary.
• 29:15
  Speaker 1: One of the great debates of the Trump era has
• 29:20
  Speaker 1: been how to brand Trump, how to define Trump. There's
• 29:23
  Speaker 1: a lot of targets. Is he extreme? Is he a
• 29:26
  Speaker 1: con man? Is he a liar? I do feel like
• 29:29
  Speaker 1: over the last several weeks, month, the loser frame, a
• 29:35
  Speaker 1: lot of people coalescing around that, our party, the other party,
• 29:39
  Speaker 1: never Trump. newly never Trumpers, probably Trump, but not in
• 29:44
  Speaker 1: the primary people. They're all sort of coalescing around the
• 29:47
  Speaker 1: loser frame. And I think this, you can, like you said,
• 29:50
  Speaker 1: throw it into the loser bucket. And it, look, of course,
• 29:54
  Speaker 1: Republicans aren't doing this out of some, you know, they
• 29:57
  Speaker 1: didn't have some moral awakening here. But who cares? We
• 30:01
  Speaker 1: saw the power of the electability argument on our side
• 30:05
  Speaker 1: of the primary in 2020. I think it could have
• 30:09
  Speaker 1: that same power, if not greater, on their side in
• 30:15
  Speaker 1: 2024 if Trump gets opponents who will actually prosecute the case.
• 30:20
  Speaker 2: That is a big freaking if, John.
• 30:22
  Speaker 1: That is a big if. We also learned this week
• 30:24
  Speaker 1: that the January 6th committee does plan to issue criminal
• 30:27
  Speaker 1: referrals to the Justice Department. And CNN reporter Jamie Gangle
• 30:31
  Speaker 1: said she's been told that Trump will be on the
• 30:34
  Speaker 1: list of criminal referrals as well as some of his allies.
• 30:38
  Speaker 1: The committee is reportedly targeting December 21st for the full report.
• 30:43
  Speaker 1: We will see. We thought maybe we'd get some news
• 30:46
  Speaker 1: before we were recording, but of course it'll come after.
• 30:49
  Speaker 1: But anyway, it seems like he's going to be on
• 30:52
  Speaker 1: the list. We've talked a lot about how a referral
• 30:54
  Speaker 1: from the committee wouldn't really affect DOJ's decision one way
• 30:58
  Speaker 1: or the other. So what do you make of all this?
• 31:01
  Speaker 1: Is this just going to be like a couple headlines
• 31:03
  Speaker 1: and then that's it? And then we're just going to
• 31:04
  Speaker 1: wait for DOJ?
• 31:06
  Speaker 2: Basically, yes. I think we would see more headlines if
• 31:10
  Speaker 2: the committee shut down without making criminal referrals than if
• 31:14
  Speaker 2: they do make criminal referrals. So it's the right thing
• 31:16
  Speaker 2: to do. He committed crimes. You did this very serious investigation.
• 31:19
  Speaker 2: You spent a lot of time and effort successfully making
• 31:24
  Speaker 2: the case of the country about this investigation. And if
• 31:27
  Speaker 2: your conclusion is that Trump committed crimes, which It certainly
• 31:30
  Speaker 2: seems like you did. You should tell some people that.
• 31:32
  Speaker 2: And what you don't want to do is– I hope
• 31:35
  Speaker 2: Jamie Gangel is right. She is very wired up with
• 31:39
  Speaker 2: Republicans of a certain era. She was the favored reporter
• 31:42
  Speaker 2: of the Bush family. And so I imagine– I'm guessing
• 31:46
  Speaker 2: that means she is familiar with a certain resistance hero
• 31:49
  Speaker 2: related to a former Republican vice president. I think it
• 31:54
  Speaker 2: would be problematic if your choices are no referrals– referrals
• 31:59
  Speaker 2: for individuals not other than Trump and or Trump, the
• 32:04
  Speaker 2: worst case scenario there is referrals of people and not
• 32:08
  Speaker 2: including Trump on the list because he will use that
• 32:10
  Speaker 2: as a piece of evidence.
• 32:11
  Speaker 1: I'll jump into the prediction zone on that one. That's
• 32:13
  Speaker 1: not happening.
• 32:16
  Speaker 2: Elijah, mark this. Mark this time. I know.
• 32:20
  Speaker 1: We don't keep these recordings, do we? So, okay.
• 32:24
  Speaker 2: This isn't on Snapchat. These don't go away.
• 32:26
  Speaker 1: So anyway, it's probably, here's our, here's our shrewd political analysis.
• 32:30
  Speaker 1: Probably not good for Trump if he gets a criminal
• 32:32
  Speaker 1: referral from the generation. Yeah.
• 32:33
  Speaker 2: It's not, once again, it's not changing lots of people's minds,
• 32:37
  Speaker 2: but when you're drawing up the first few weeks of
• 32:40
  Speaker 2: your campaign, this is not, not what you're thinking here.
• 32:44
  Speaker 1: So here's how the team, the Trump team planned the
• 32:47
  Speaker 1: campaign kickoff. One, cost Republicans the midterms. Two, dine with
• 32:52
  Speaker 1: Nazis at your beach club. Three, propose terminating the Constitution. Four,
• 32:56
  Speaker 1: cost Republicans one last Senate seat in Georgia. Five, roll
• 33:00
  Speaker 1: out a series of convictions and criminal referrals. Six, boom,
• 33:04
  Speaker 1: right back at the White House.
• 33:07
  Speaker 2: And the most depressing thing is.
• 33:08
  Speaker 1: Straight forward from here.
• 33:10
  Speaker 2: Maybe... We're like at a 48% to 49% chance that
• 33:12
  Speaker 2: could work. We don't know.
• 33:15
  Speaker 1: I mean, what do you think? Is this Could this
• 33:18
  Speaker 1: be the beginning of the end or is this just
• 33:21
  Speaker 1: like the hundredth time that we've said that it might be?
• 33:24
  Speaker 2: A hundred is dramatically underestimating the number of times that
• 33:29
  Speaker 2: has been said in political discourse. I don't know whether
• 33:33
  Speaker 2: this is the beginning of the end or not. It
• 33:34
  Speaker 2: does feel like there is a real shift and a
• 33:37
  Speaker 2: real opportunity for someone, anyone willing to step up and
• 33:43
  Speaker 2: do something. to defeat Trump in this– for a Republican
• 33:46
  Speaker 2: to push Trump aside in this case because prior to
• 33:50
  Speaker 2: this midterm election, I think all of Trump's outrageous behavior,
• 33:55
  Speaker 2: the crimes, the corruption were almost a reinforcement of his
• 34:00
  Speaker 2: political strength as he would do this terrible stuff and
• 34:03
  Speaker 2: suffer apparently no real consequences for it. He could have
• 34:07
  Speaker 2: the Access Hollywood tape. He could attack the Gold Star
• 34:11
  Speaker 2: families in 2016 and then win and then get impeached
• 34:15
  Speaker 2: and side with Nazis and side with Putin, do all
• 34:17
  Speaker 2: these things and then almost win in 2020. Then he
• 34:22
  Speaker 2: incited a violent insurrection. Most of the party threw him
• 34:25
  Speaker 2: aside and then he rose back to power like in
• 34:27
  Speaker 2: 12 minutes. He had this political invincibility that Republicans– who
• 34:32
  Speaker 2: had a real loser complex since losing to Obama twice,
• 34:36
  Speaker 2: thought they were not capable of. But I think that
• 34:39
  Speaker 2: has changed. I think it is clear to a lot
• 34:41
  Speaker 2: of people that the emperor has no clothes, that Trump
• 34:43
  Speaker 2: is a liability, not an asset. Now, you're going to
• 34:46
  Speaker 2: have to make that case. Someone is going to have
• 34:48
  Speaker 2: to do that. But the opportunity is there. And that
• 34:51
  Speaker 2: is different. All the other times where there was all
• 34:55
  Speaker 2: these outrages about Trump, it was in the context of
• 34:58
  Speaker 2: his surviving amid similar things. For the first time ever,
• 35:01
  Speaker 2: there's real evidence that Trump is worse, is more politically
• 35:07
  Speaker 2: weak than the rest of the Republicans. He gives them
• 35:09
  Speaker 2: less of a chance to win than others. And that
• 35:11
  Speaker 2: is a problem for running for the nomination of a
• 35:14
  Speaker 2: party that cares about political power above all else.
• 35:17
  Speaker 1: Yeah. Again, if Trump is the party's nominee, all these
• 35:22
  Speaker 1: people who are speaking out against him now are questioning
• 35:25
  Speaker 1: him and the Republican Party. They're all going to fall
• 35:26
  Speaker 1: in line. Most like 95 percent of them are all
• 35:29
  Speaker 1: going to fall in line who are who aren't already
• 35:31
  Speaker 1: never Trumpers. So we're not questioning that. But you're right.
• 35:34
  Speaker 1: In a primary context, the number of people who are
• 35:38
  Speaker 1: either calling him a loser or insinuating that he might
• 35:40
  Speaker 1: be a loser is probably higher than it's been in
• 35:43
  Speaker 1: quite some time. Of course, we have to wait till
• 35:46
  Speaker 1: the first votes are cast in the first Republican primary
• 35:49
  Speaker 1: in 2024 to know, because even if Trump is at
• 35:52
  Speaker 1: two percent in the polls most of next year, the
• 35:57
  Speaker 1: guy could still come back and actually win some primaries
• 36:00
  Speaker 1: and then win the nomination. So, like, we'll have him
• 36:02
  Speaker 1: for a year and not know for sure his actual
• 36:05
  Speaker 1: strength or weakness until people start voting. But you've got, like,
• 36:09
  Speaker 1: you know, Cornyn, Thune in the Senate are like, I
• 36:13
  Speaker 1: don't think we can win. And Lindsey Graham, his buddy,
• 36:16
  Speaker 1: the other day said, oh, he's still very popular in
• 36:17
  Speaker 1: the party. People appreciate his presidency. They appreciate his fighting spirit.
• 36:21
  Speaker 1: But there's beginning to be a sense, can he win?
• 36:25
  Speaker 1: That's from Lindsey. Laura Ingram the other night started. She's
• 36:29
  Speaker 1: turned on Trump, one of the big Republican media stars. So, look,
• 36:33
  Speaker 1: I think it's I would put it this way. I
• 36:35
  Speaker 1: think it is time for all of us on the
• 36:38
  Speaker 1: Democratic side to start defining Ron DeSantis for who he is,
• 36:43
  Speaker 1: which is a right wing radical. I think there's time
• 36:45
  Speaker 1: to start doing some work on Ron DeSantis just in case.
• 36:48
  Speaker 2: For sure. Or someone else that could be– everyone should
• 36:53
  Speaker 2: read Mark Leibovich's piece on Ron DeSantis and the Atlantic
• 36:55
  Speaker 2: from a week or so ago because it's very possible
• 36:59
  Speaker 2: Ron DeSantis is going to fall flat on his face
• 37:01
  Speaker 2: because he seems to have the interpersonal skills of a
• 37:04
  Speaker 2: banana slug, which does it in a personality-based media and
• 37:11
  Speaker 2: political environment that doesn't seem great because you really can't
• 37:14
  Speaker 2: run for president without speaking to other humans and seems
• 37:17
  Speaker 2: to be something he– something resembling charisma for a lot
• 37:21
  Speaker 2: of people, and Ron DeSantis may have none, and that'd
• 37:23
  Speaker 2: be problematic. But there is a possibility. I think for
• 37:27
  Speaker 2: the first time, Trump seems like a loser, and that
• 37:29
  Speaker 2: is the worst thing that can happen to him.
• 37:32
  Speaker 1: Yeah, I agree. So do you think DeSantis or other
• 37:35
  Speaker 1: potential 2024 hopefuls should be kicking the shit out of
• 37:39
  Speaker 1: Trump right now? Or do you understand their strategy right now?
• 37:42
  Speaker 2: I understand there are individual strategic decisions, but much like 2016,
• 37:48
  Speaker 2: the Republican Party, and all through the Trump presidency, the
• 37:51
  Speaker 2: Republican Party has had a collective action problem when it
• 37:53
  Speaker 2: comes to Trump. It is in all of their collective
• 37:56
  Speaker 2: interests for Trump to go away, but it is in
• 37:58
  Speaker 2: none of their individual interests to be the one who
• 38:00
  Speaker 2: tries to make Trump go away, because the first person
• 38:02
  Speaker 2: who comes out against Trump is a sacrificial lamb. I
• 38:08
  Speaker 2: completely understand why Ron DeSantis right now thinks it is
• 38:10
  Speaker 2: in his interest to have meetings with donors, be in
• 38:15
  Speaker 2: the background, be the generic alternative to Trump. But in
• 38:20
  Speaker 2: making that individual decision for himself, an opportunity is being
• 38:24
  Speaker 2: missed collectively to take advantage of this moment of weakness
• 38:29
  Speaker 2: for Trump, to go after him before he can gather strength,
• 38:32
  Speaker 2: to stop him from regaining momentum in the new year
• 38:36
  Speaker 2: in some way, shape, or form. And were he to
• 38:39
  Speaker 2: be indicted at some point early next year, you could
• 38:42
  Speaker 2: see a situation in which he could turn that to
• 38:44
  Speaker 2: his advantage, much like all the Republicans rallying to his
• 38:49
  Speaker 2: side after the FBI visited his beach house to reclaim
• 38:52
  Speaker 2: the nation's greatest secrets. So you need someone who is
• 38:57
  Speaker 2: not a Romney, not a Cheney, not an Adam Kinzinger,
• 39:00
  Speaker 2: not a Republican welcomed on the MSNBC primetime to make
• 39:05
  Speaker 2: a case against Trump. Understanding that that person is unlikely
• 39:09
  Speaker 2: to be the nominee and you're not going to do
• 39:12
  Speaker 2: it through subtweeting and implicit criticism.
• 39:15
  Speaker 1: Yeah, though I think that the implicit criticism thing– I
• 39:18
  Speaker 1: think there's something else going on here, which is if
• 39:21
  Speaker 1: you're going to win the Republican primary, you– like there's
• 39:25
  Speaker 1: Trump fans. There's the diehards who are just going to
• 39:27
  Speaker 1: vote for Trump and they're probably lost to you. But
• 39:30
  Speaker 1: then there's probably a pool of Republican voters, probably a
• 39:34
  Speaker 1: critical pool of Republican voters who like Donald Trump very much,
• 39:39
  Speaker 1: but are open to voting for someone else in the
• 39:42
  Speaker 1: primary in 2024.
• 39:42
  Speaker 4: And I.
• 39:45
  Speaker 1: I think there's probably legitimate concern among the other Republican
• 39:48
  Speaker 1: candidates that you don't want to piss those voters off
• 39:51
  Speaker 1: by shitting on Trump all the time and taking too
• 39:54
  Speaker 1: hard of a hit at Trump. I mean, we, there's
• 39:58
  Speaker 1: a lot of things that are very, very different, but
• 40:00
  Speaker 1: like we dealt with this with Hillary Clinton in 2008
• 40:04
  Speaker 1: and that primary and that very long primary, like we
• 40:06
  Speaker 1: knew that there was a lot of people in the
• 40:07
  Speaker 1: party who had very fond feelings towards Hillary Clinton, liked
• 40:10
  Speaker 1: Hillary Clinton. And the reason that we, that most of
• 40:14
  Speaker 1: Obama's criticism of Hillary was implicit throughout most of the
• 40:17
  Speaker 1: primary is because we didn't want to piss those voters
• 40:19
  Speaker 1: off and we wanted them to be open to voting
• 40:20
  Speaker 1: for us.
• 40:21
  Speaker 2: I think there are a couple of distinctions here that
• 40:25
  Speaker 2: are important, which is the Republican primaries are winner take all.
• 40:31
  Speaker 4: Right.
• 40:31
  Speaker 2: So you have to actually beat Trump in a multi-candid field.
• 40:35
  Speaker 2: If he's winning with 18, 19, 21%, he's getting all
• 40:36
  Speaker 2: the delegates. We could navigate that in 2008 against Hillary
• 40:41
  Speaker 2: because if we came in second, we were netting almost
• 40:43
  Speaker 2: as many delegates as she did so we could get
• 40:45
  Speaker 2: to more favorable territory. The Republican primary, I think, demands
• 40:49
  Speaker 2: more aggressive earlier action. It doesn't mean that time is
• 40:52
  Speaker 2: right now, but they're going to have a different strategic
• 40:55
  Speaker 2: calculation if you were going to defeat Trump, depending on
• 40:58
  Speaker 2: how many people run, if it is DeSantis v. Trump
• 41:00
  Speaker 2: or some other Republican v. Trump in a one-on-one. But
• 41:03
  Speaker 2: the exact argument you made about not pissing off their
• 41:06
  Speaker 2: voters is is the exact argument that the Jeb Bush
• 41:10
  Speaker 2: super PAC used to spend $ 80 million or whatever it was,
• 41:14
  Speaker 2: not attacking Trump, going after Rubio instead of Trump and
• 41:18
  Speaker 2: all of that and allowing him to gain strength. And
• 41:19
  Speaker 2: so someone, it could be in this situation that real
• 41:23
  Speaker 2: people will spend real money. Trump is, I think, in
• 41:25
  Speaker 2: some ways insulated against some of this stuff in a
• 41:29
  Speaker 2: way that other candidates would not be because he has
• 41:30
  Speaker 2: a fundraising base. He doesn't need endorsements. Even if all
• 41:33
  Speaker 2: the billionaires line up behind Ron DeSantis, Trump probably needs
• 41:36
  Speaker 2: less money because he is so good at getting media attention.
• 41:40
  Speaker 2: But I think the fair assessment here is that Trump
• 41:43
  Speaker 2: is as weak as he has been since the immediate
• 41:45
  Speaker 2: aftermath of January 6th. And we'll see if anyone learned
• 41:48
  Speaker 2: the lessons about what happened after January 6th. Are you
• 41:51
  Speaker 2: going to actually take aggressive action to try to stop
• 41:54
  Speaker 2: him now? Or are you going to wait until it's
• 41:56
  Speaker 2: too late?
• 41:58
  Speaker 1: He was a great president, absolutely can't win this time.
• 42:01
  Speaker 1: I think that's why they all land on the electability argument.
• 42:04
  Speaker 2: Oh, for sure. He's popular still.
• 42:06
  Speaker 1: It is the way to not piss off Trump voters,
• 42:10
  Speaker 1: but to really go after him hard on, we need
• 42:13
  Speaker 1: to win, we've been losing, and this guy is not
• 42:15
  Speaker 1: the way to win.
• 42:16
  Speaker 2: Donald Trump's a great president. Jon Favreau, December 8th, 2022.
• 42:19
  Speaker 2: Flip it, flip it. Get it out there, Elijah.
• 42:22
  Speaker 1: All right, when we come back, Strict Scrutiny's Kate Shaw
• 42:24
  Speaker 1: talks to Dan. about the Supreme Court's oral arguments this week,
• 42:29
  Speaker 1: two big cases around gay rights and democracy.
• 42:41
  Speaker 2: This week, the Supreme Court heard arguments on two very
• 42:43
  Speaker 2: important cases that will affect American life and American politics.
• 42:46
  Speaker 2: Joining us now to help us understand them is a
• 42:48
  Speaker 2: co-host of Crooked Media's Strict Scrutiny, Kate Shaw. Kate, welcome
• 42:52
  Speaker 2: to the pod.
• 42:53
  Speaker 1: Hey, Dan. Thanks for having me.
• 42:54
  Speaker 2: It's great to see you.
• 42:55
  Speaker 1: Okay.
• 42:56
  Speaker 2: Two important cases this week. It feels like they're back
• 42:59
  Speaker 2: when it comes to Supreme Court. It doesn't seem like
• 43:01
  Speaker 2: that long ago they were taking away rights from millions
• 43:05
  Speaker 2: and millions of Americans. And now there are two very
• 43:08
  Speaker 2: consequential cases before us. I want to start with the
• 43:11
  Speaker 2: first one, which is from Colorado, which involves a graphic
• 43:14
  Speaker 2: designer who wants to advertise for working on wedding websites,
• 43:19
  Speaker 2: but does not want to serve same-sex couples. This seems
• 43:23
  Speaker 2: very familiar, I think, to myself and to a lot
• 43:25
  Speaker 2: of our listeners of a case from about five years
• 43:27
  Speaker 2: ago involving a baker. Could you help us understand what
• 43:31
  Speaker 2: is at stake in this case and how is it
• 43:34
  Speaker 2: different from the previous case?
• 43:37
  Speaker 4: That's exactly right, Dan. So this is kind of a
• 43:38
  Speaker 4: sequel to Masterpiece Cake Shop, which was the case about
• 43:41
  Speaker 4: the baker who didn't want to bake wedding cakes for
• 43:43
  Speaker 4: a same-sex couple. So swap out baker for web designer,
• 43:47
  Speaker 4: and that's 303 Creative, this case. So she says she
• 43:50
  Speaker 4: doesn't want to make wedding websites for same-sex couples. She
• 43:53
  Speaker 4: says she doesn't believe in gay marriage. And she says
• 43:55
  Speaker 4: her custom websites are a kind of artistic expression. Actually,
• 43:58
  Speaker 4: the baker in Masterpiece Cake Shop, Jack Phillips, said the
• 44:00
  Speaker 4: same thing about his cakes. And she says the First
• 44:03
  Speaker 4: Amendment protects her from being told to whom she must
• 44:05
  Speaker 4: sell that kind of expressive or artistic service. Well, Colorado
• 44:10
  Speaker 4: has a state law that says if you provide commercial
• 44:13
  Speaker 4: goods or services, you can't discriminate on the basis of
• 44:15
  Speaker 4: characteristics like sexual orientation, right? In addition to things like
• 44:18
  Speaker 4: race and disability. And I should say this Colorado law, like,
• 44:22
  Speaker 4: isn't unique. It is an example of the kind of
• 44:24
  Speaker 4: law we have in many states, in the federal government, right?
• 44:28
  Speaker 4: These public accommodations laws. And, you know, we have them
• 44:31
  Speaker 4: because in many states before we did, you know, before
• 44:33
  Speaker 4: the civil rights era, you had businesses like hotels and
• 44:36
  Speaker 4: restaurants that literally refused to serve black customers. So that's
• 44:40
  Speaker 4: the origin of these laws. And honestly, that's kind of
• 44:43
  Speaker 4: what's at stake if the court sides with this web designer, right?
• 44:46
  Speaker 4: Like whether government can guarantee that people won't be denied service.
• 44:50
  Speaker 4: In the public marketplace because of who they are.
• 44:54
  Speaker 2: I know listening to the arguments is never a perfect
• 44:58
  Speaker 2: science to figure out what's going to happen, but what
• 44:59
  Speaker 2: did you take away from some of the questions that
• 45:02
  Speaker 2: were asked and some of the things that Justice has
• 45:03
  Speaker 2: said about where this case may be going?
• 45:06
  Speaker 1: Yeah.
• 45:07
  Speaker 4: And I should say that the justices are still live
• 45:08
  Speaker 4: streaming arguments. So, you know, people can, like if your
• 45:11
  Speaker 4: blood pressure can handle it, you can just sit at home.
• 45:13
  Speaker 2: Mine cannot. Mine can absolutely not.
• 45:14
  Speaker 4: I have a lot of practice and I still struggle.
• 45:16
  Speaker 4: But yeah, you can listen either in real time, like
• 45:18
  Speaker 4: at 10 a.m. Eastern on the argument days or like
• 45:20
  Speaker 4: later in the day with a glass of wine. I
• 45:22
  Speaker 4: actually think it's really good that they've kept that pandemic
• 45:24
  Speaker 4: practice of letting the public listen to their deliberations.
• 45:27
  Speaker 2: It's informative.
• 45:28
  Speaker 4: And actually, in this case, I think it was pretty terrifying, honestly.
• 45:31
  Speaker 4: So in terms of how this is going, I think
• 45:33
  Speaker 4: that this web designer, Lori Smith, is all but certain
• 45:36
  Speaker 4: to win this case. And it's just a question of
• 45:38
  Speaker 4: how she wins and what the justices say about other
• 45:41
  Speaker 4: cases that might be impacted. So, you know, this is
• 45:44
  Speaker 4: kind of a weird case because Lori Smith hasn't been
• 45:46
  Speaker 4: asked to design a wedding website for a same-sex couple.
• 45:49
  Speaker 4: So it's like an entirely speculative case. And I think
• 45:52
  Speaker 4: because of that, there were all of these weird hypothetical
• 45:54
  Speaker 4: questions that the justices were throwing out. Like what if
• 45:56
  Speaker 4: the website, you know, design service was just like a
• 45:58
  Speaker 4: template that you just put your name into? Would the
• 46:00
  Speaker 4: First Amendment protect her from having to type in like
• 46:03
  Speaker 4: Mike and Luke if that's the couple getting married? She's like,
• 46:05
  Speaker 4: maybe not, but this is a, you know, custom building
• 46:08
  Speaker 4: websites and that's artistic. And then, you know, things, you know,
• 46:12
  Speaker 4: so Justice, then Katonji Brown-Jackson, the newest member of the court,
• 46:14
  Speaker 4: who I should say is like a true force of
• 46:16
  Speaker 4: nature in these oral arguments. She has been incredible. So
• 46:19
  Speaker 4: even if your blood pressure can't handle the full like
• 46:20
  Speaker 4: three hours, like it's worth dipping in to hear her
• 46:22
  Speaker 4: questions because they're so good. And she asked a really good,
• 46:26
  Speaker 4: I think, question, which is about like a photography business
• 46:28
  Speaker 4: at a shopping mall. So she says, say it's the
• 46:30
  Speaker 4: holiday season. There's a photographer who wants to like photograph
• 46:33
  Speaker 4: scenes with Santa and wants to express this photographer's own
• 46:37
  Speaker 4: views of like Christmas nostalgia from the 1940s and 50s
• 46:40
  Speaker 4: and says, we're going to have a Santa and kids
• 46:42
  Speaker 4: can interact with Santa. We can take these like sepia
• 46:44
  Speaker 4: toned photos, but we only want white kids in the pictures.
• 46:48
  Speaker 4: And You know, it was a great hypo because I
• 46:50
  Speaker 4: think if you protect this web designer, it's hard to
• 46:52
  Speaker 4: see how you don't also protect this racist photographer, right?
• 46:55
  Speaker 4: And so she poses this really good hypothetical. And I think,
• 46:58
  Speaker 4: you know, the Lori Smith lawyer really struggled with answering it.
• 47:02
  Speaker 4: And then things got really weird because Sam Alito, who
• 47:05
  Speaker 4: is this honestly kind of a master gaslighter in oral
• 47:08
  Speaker 4: arguments– started trying to make the argument that the court
• 47:11
  Speaker 4: basically has to side with the web designer in order
• 47:15
  Speaker 4: to protect the values of pluralism and diversity. And he
• 47:17
  Speaker 4: did this by saying, okay, so say you have a
• 47:19
  Speaker 4: mall and you have a black Santa in the mall
• 47:22
  Speaker 4: and then you have kids dressed up in Klan outfits.
• 47:25
  Speaker 4: Shouldn't that black Santa get to refuse to take the
• 47:27
  Speaker 4: picture with these kids? Which is like, so weird in
• 47:30
  Speaker 4: so many ways. First, like kids in Klan outfits, like where,
• 47:33
  Speaker 4: what deranged mind, like, you know, from which springs these
• 47:37
  Speaker 4: kinds of ideas. And then second, like as Justice Kagan
• 47:41
  Speaker 4: jumped in to say very clearly, you know, protection on
• 47:44
  Speaker 4: the basis of your costume, like your Klan outfit, that's
• 47:46
  Speaker 4: not a characteristic that's protected under Colorado law. But, you know,
• 47:51
  Speaker 4: he's laughing the whole time he's asking this hypo. It's
• 47:53
  Speaker 4: like actually kind of diabolical. But, you know, I think
• 47:57
  Speaker 4: that it actually does make clear that this case is
• 48:02
  Speaker 4: not just about this one-off with a web designer, right?
• 48:04
  Speaker 4: We have these longstanding laws, again, state and federal, that
• 48:08
  Speaker 4: protect people against discrimination when they are just going out
• 48:11
  Speaker 4: to secure some good or service in the marketplace. And
• 48:14
  Speaker 4: carving out an exception for somebody because they have an
• 48:17
  Speaker 4: objection to providing a service for a couple on the
• 48:20
  Speaker 4: basis of sexual orientation, I think opens up the possibility
• 48:24
  Speaker 4: that all kinds of people could face discrimination that they've
• 48:27
  Speaker 4: been able to, you know, exist in public spaces really
• 48:30
  Speaker 4: free from for many, many years. So this has the
• 48:32
  Speaker 4: potential to be incredibly destabilizing. Now, the court might try
• 48:35
  Speaker 4: to write an opinion that says, you know, these services
• 48:38
  Speaker 4: are artistic and so they're different. And this doesn't extend
• 48:40
  Speaker 4: to like denying service at a restaurant or a hotel.
• 48:43
  Speaker 4: But as again, the brilliant Justice Jackson was offering up hypos, well,
• 48:46
  Speaker 4: what if I'm saying like my menu, I'm using my
• 48:49
  Speaker 4: grandma's recipes and I'm trying to stay true to her vision.
• 48:52
  Speaker 4: And she had a vision that like only Protestants should
• 48:54
  Speaker 4: eat her food. Like that was the hypo that Jackson offered.
• 48:57
  Speaker 4: And so it's easy to see how finding for this
• 49:00
  Speaker 4: web designer who doesn't want to make websites for gay
• 49:02
  Speaker 4: couples all of a sudden means rampant discrimination in the
• 49:05
  Speaker 4: public sphere. And it's happening, if I'm right about what
• 49:09
  Speaker 4: the court is likely to do, it's happening at the
• 49:11
  Speaker 4: worst possible moment, right? You have lawmakers in many states
• 49:14
  Speaker 4: demonizing LGBTQ people, particularly trans people. You have Trump inviting
• 49:19
  Speaker 4: white supremacists to Mar-a-Lago. And the court here is poised
• 49:22
  Speaker 4: to say, the First Amendment protects your ability to discriminate
• 49:25
  Speaker 4: in the provision of commercial goods and services. I think
• 49:29
  Speaker 4: all of this is a pretty dangerous combination, but that's
• 49:31
  Speaker 4: very likely to me where this decision is headed.
• 49:34
  Speaker 2: As you said, no one asked, there were no same-sex
• 49:37
  Speaker 2: couples who asked this web designer, which that, tell me
• 49:39
  Speaker 2: if I'm reading this correctly, that the fact that the
• 49:42
  Speaker 2: court could have easily dismissed this case on standing, correct?
• 49:44
  Speaker 2: So the fact that they took it suggests that there's
• 49:47
  Speaker 2: some collection of those justices who are looking for a
• 49:50
  Speaker 2: way to go further than they went in the Baker
• 49:53
  Speaker 2: case five years ago. Is that right?
• 49:55
  Speaker 1: Totally.
• 49:55
  Speaker 4: So, you know, they didn't have to take the case
• 49:57
  Speaker 4: in the first place. It's an entirely manufactured case in
• 49:59
  Speaker 4: which typically there's like a live dispute between parties, right? Somebody,
• 50:03
  Speaker 4: you know, has been injured in some way. And it's
• 50:06
  Speaker 4: just hard to see how that exists here. So I
• 50:08
  Speaker 4: think it is almost certainly the case that some justices
• 50:11
  Speaker 4: were unsatisfied with what happened in the cake case. And,
• 50:14
  Speaker 4: you know, in that case, the court kind of took
• 50:16
  Speaker 4: an off ramp, didn't basically issue this big, broad First
• 50:19
  Speaker 4: Amendment ruling that says this baker is protected, doesn't have
• 50:22
  Speaker 4: to bake cakes for anybody he doesn't want to. Instead,
• 50:25
  Speaker 4: they basically looked at the state proceedings and said it
• 50:27
  Speaker 4: looked like there were state officials who were biased against
• 50:30
  Speaker 4: Jack Phillips, this baker, and biased against religion. And so
• 50:34
  Speaker 4: they sent the case back by kind of taking this
• 50:36
  Speaker 4: off ramp. So here you had some justices who clearly
• 50:38
  Speaker 4: were like, we are eager to reach this question. And
• 50:39
  Speaker 4: so they took this really weird case in order to
• 50:42
  Speaker 4: reach it. And there had been previous cases involving other,
• 50:45
  Speaker 4: you know, so you had a cake case. This is
• 50:46
  Speaker 4: a website case. You had a wedding florist case. You
• 50:48
  Speaker 4: had a photographer case. There have been other cases that
• 50:51
  Speaker 4: before you had this newly constituted, you know, conservative supermajority,
• 50:55
  Speaker 4: those cases just kind of came up and the court
• 50:57
  Speaker 4: didn't take them. But there really is an appetite. And,
• 50:59
  Speaker 4: you know, you actually heard a couple of times Gorsuch
• 51:02
  Speaker 4: in particular reference the cake case. And he mentioned, I mean,
• 51:06
  Speaker 4: he's clearly still kind of like smarting from that case.
• 51:09
  Speaker 4: He mentioned Jack Phillips, the baker, having been required to
• 51:12
  Speaker 4: attend a re-education program is how he described it, which
• 51:16
  Speaker 4: is like, wow, is that an offense? I mean, literally
• 51:19
  Speaker 4: what Phillips had to do is like, you know, go
• 51:21
  Speaker 4: through some training on anti-discrimination law in Colorado. Like we
• 51:24
  Speaker 4: have to do lots of, you know, trainings on the job.
• 51:26
  Speaker 4: Like it's pretty routine. but, you know, to analogize an
• 51:30
  Speaker 4: anti-discrimination kind of, you know, training to re-education camps, right?
• 51:35
  Speaker 4: Like literally like, you know, communist labor camps. It was
• 51:38
  Speaker 4: a pretty, it sort of revealed something about the kind
• 51:40
  Speaker 4: of ecosystem that Gorsuch, I think, who asked that question
• 51:43
  Speaker 4: kind of moves in. So yeah, that was unfinished business
• 51:47
  Speaker 4: in the 2018 Masterpiece Cake Shop case. And I think
• 51:49
  Speaker 4: the court is likely to go maybe even further than
• 51:52
  Speaker 4: it would have gone back then, because again, that was
• 51:54
  Speaker 4: a different court. You still had Justice Kennedy on the court.
• 51:56
  Speaker 4: You still had Justice Ginsburg on the court. This is
• 51:58
  Speaker 4: a really different court.
• 52:00
  Speaker 2: The other case that the court heard this week was
• 52:03
  Speaker 2: one called Harper v.
• 52:04
  Speaker 1: Moore.
• 52:05
  Speaker 2: I think a lot of progressives out there have been
• 52:08
  Speaker 2: told to be very worried about this case. It is
• 52:12
  Speaker 2: a grave danger to democracy. I don't think a lot
• 52:15
  Speaker 2: of people understand why they're supposed to be worried about it.
• 52:17
  Speaker 2: Could you explain this case and what the independent state
• 52:21
  Speaker 2: legislature theory is that everyone's being told to be so
• 52:25
  Speaker 2: afraid of?
• 52:26
  Speaker 4: Sure, absolutely. And I think it's right that when the
• 52:28
  Speaker 4: court agreed to hear this case, it was the end
• 52:31
  Speaker 4: of June when it announced it was going to take
• 52:32
  Speaker 4: the case up. It seemed really ominous because, you know,
• 52:36
  Speaker 4: the case is basically, it's about this idea called the
• 52:39
  Speaker 4: independent state legislature theory. And, you know, it's got all
• 52:43
  Speaker 4: kinds of like Trumpy qualities to it, right?
• 52:46
  Speaker 2: This idea.
• 52:47
  Speaker 4: So the intellectual architect in modern times anyway of this idea,
• 52:51
  Speaker 4: at least one version of it is John Eastman, right?
• 52:52
  Speaker 1: If that tells you something.
• 52:54
  Speaker 4: So, you know, and in some ways I think it's
• 52:56
  Speaker 4: right that this is, this theory is kind of a
• 52:59
  Speaker 4: polite and more legally palatable sounding way to undermine or
• 53:03
  Speaker 4: reject democracy than just like rejecting it outright. There's like, oh,
• 53:06
  Speaker 4: this is a theory and there is some support you
• 53:09
  Speaker 4: can cobble together for it. And maybe it's kind of
• 53:12
  Speaker 4: plausible sounding enough. You could get a bunch of justices
• 53:14
  Speaker 4: to sign onto it. And it really does have very
• 53:16
  Speaker 4: profound anti-democratic implications. So I think that's why people were
• 53:19
  Speaker 4: so worked up about it. But I think it's right
• 53:21
  Speaker 4: that people aren't even totally sure what it's about or
• 53:22
  Speaker 4: what's at stake. So this idea is basically just that
• 53:26
  Speaker 4: The state legislature and only the state legislature gets to
• 53:29
  Speaker 4: regulate federal elections. So if state courts are reading their
• 53:32
  Speaker 4: state constitutions and saying the state constitution has a fair
• 53:36
  Speaker 4: elections clause or a first amendment or an equal protection
• 53:40
  Speaker 4: clause and the state law is somehow inconsistent with the
• 53:43
  Speaker 4: state constitution, well, constitutions control. And that happens kind of routinely.
• 53:48
  Speaker 4: State courts read their constitutions in ways that help facilitate voting.
• 53:52
  Speaker 4: But this theory says, no, no, that's actually unacceptable because
• 53:55
  Speaker 4: the federal constitution says only the state legislature can set
• 53:58
  Speaker 4: the rules for federal elections. So if a state executive
• 54:02
  Speaker 4: branch official or a state judge does anything to touch
• 54:04
  Speaker 4: federal elections, that's inconsistent with this part of the federal
• 54:07
  Speaker 4: constitution called the elections clause. And this whole idea kind
• 54:10
  Speaker 4: of comes from a concurrence in Bush versus Gore. And
• 54:13
  Speaker 4: it sort of was dormant for about 20 years. And
• 54:16
  Speaker 4: then it got raised and embraced by some justices during
• 54:19
  Speaker 4: the pandemic because there were some state courts involved. and
• 54:21
  Speaker 4: state election officials that were kind of easing ordinary rules
• 54:25
  Speaker 4: and deadlines around voting because of this once-in-a-century pandemic. And
• 54:28
  Speaker 4: so some of these challengers who are looking to find
• 54:31
  Speaker 4: ways to make it harder to vote were like, no,
• 54:33
  Speaker 4: you don't have the power to make election rules at all,
• 54:36
  Speaker 4: you court or you state executive branch official, because only
• 54:40
  Speaker 4: the state legislature gets to make those rules. And so
• 54:43
  Speaker 4: that's kind of the sort of theory at the heart
• 54:46
  Speaker 4: of this case. And I should say, I mentioned Eastman before,
• 54:49
  Speaker 4: it's related to another idea, which is that Only the
• 54:52
  Speaker 4: state legislature gets to basically set rules for picking presidential electors,
• 54:57
  Speaker 4: and that's up to and including deciding they're unhappy with
• 55:00
  Speaker 4: what the people of the state have done in a
• 55:01
  Speaker 4: presidential election so that they could throw out those votes
• 55:04
  Speaker 4: and just appoint electors themselves. That's obviously what Eastman and
• 55:07
  Speaker 4: others were trying to get state legislatures in places like
• 55:09
  Speaker 4: Georgia and Arizona to do. Okay, so that's sort of
• 55:12
  Speaker 4: the backstory. In terms of this case, You know, this
• 55:15
  Speaker 4: was a kind of a routine case in which the
• 55:17
  Speaker 4: North Carolina legislature drew a map after the 2020 census.
• 55:20
  Speaker 4: It was a badly gerrymandered map. Some people filed a
• 55:23
  Speaker 4: challenge and said, you know, this gerrymander is unconstitutional under
• 55:26
  Speaker 4: the North Carolina Constitution. And they won. The North Carolina
• 55:29
  Speaker 4: Supreme Court agreed that this map was an impermissible partisan gerrymander.
• 55:34
  Speaker 4: And so it sent the case back down and a
• 55:36
  Speaker 4: group of special masters drew a new map. But then
• 55:39
  Speaker 4: these proponents of this theory said, asked the Supreme Court
• 55:42
  Speaker 4: to step in and said what the state Supreme Court
• 55:43
  Speaker 4: did when it threw out that map, that's impermissible because
• 55:46
  Speaker 4: only the legislature gets to regulate elections, including drawing maps.
• 55:50
  Speaker 2: Can I ask a question about this?
• 55:51
  Speaker 4: Yeah, of course.
• 55:52
  Speaker 1: Which is, I.
• 55:55
  Speaker 2: Think I have this right, but it's very possible I don't.
• 55:57
  Speaker 2: We're going to put aside the John Eastman, pick your
• 55:59
  Speaker 2: own electors piece of this, which has a lot of
• 56:01
  Speaker 2: Democrats worried. A reason why a lot of non-active insurrectionist
• 56:06
  Speaker 2: Republicans care passionately about this is because the federal courts
• 56:10
  Speaker 2: have said they have no role in partisan gerrymanders. Is
• 56:14
  Speaker 2: that correct? Exactly. Because of a ruling of the John Roberts.
• 56:16
  Speaker 2: So the only way in which, the only check against
• 56:19
  Speaker 2: partisan gerrymanders by state legislatures, which are overwhelmingly controlled by
• 56:22
  Speaker 2: Republicans right now, are state courts. And state courts threw
• 56:26
  Speaker 2: out very Republican maps in places like North Carolina, Ohio,
• 56:30
  Speaker 2: and elsewhere. So this is a way to solve that problem.
• 56:33
  Speaker 2: If they win in this case, at least by the
• 56:38
  Speaker 2: independent state legislature theory, then they can partisan gerrymander as
• 56:42
  Speaker 2: much as they want, and no one can stop them
• 56:44
  Speaker 2: other than the voters who just had their votes discounted
• 56:46
  Speaker 2: because of gerrymandering. Correct?
• 56:48
  Speaker 1: That's exactly right.
• 56:49
  Speaker 4: The one additional piece of this is the other check
• 56:52
  Speaker 4: on gerrymandering legislatures are independent commissions. And the same logic
• 56:56
  Speaker 4: that would say the state court can't throw out maps
• 56:58
  Speaker 4: might be extended to say those commissions are also unconstitutional
• 57:01
  Speaker 4: because only the legislature can do things like draw maps.
• 57:03
  Speaker 4: So yeah, so it's very much It is all about gerrymandering.
• 57:07
  Speaker 4: And I think that's why you're right. Some non-insurrectionist Republicans
• 57:11
  Speaker 4: are still on board with some version of the ISLT
• 57:13
  Speaker 4: because it would empower state legislatures to gerrymander without a
• 57:18
  Speaker 4: lot of meaningful checks because the US Supreme Court has
• 57:20
  Speaker 4: said that the federal courts can't constrain gerrymandering, that partisan
• 57:24
  Speaker 4: gerrymandering is a non-justiciable political question. So OK, so I
• 57:28
  Speaker 4: think that going into the argument, a lot of reason
• 57:31
  Speaker 4: to be very concerned. I think that the maximalist version,
• 57:36
  Speaker 4: like the Eastman or Eastman-adjacent version of the ISLT, did
• 57:40
  Speaker 4: not seem to have much support. Maybe Sam Alito, like
• 57:43
  Speaker 4: maybe Gorsuch and Thomas, but that's the most, and maybe
• 57:46
  Speaker 4: not even those three. So that is, I think, good news.
• 57:49
  Speaker 4: And I think that if you're spending a lot of
• 57:51
  Speaker 4: time near the Supreme Court these days, it's an unfamiliar
• 57:53
  Speaker 4: feeling to come out of an argument being like, that
• 57:55
  Speaker 4: could have gone worse, actually. And that is, I think,
• 57:59
  Speaker 4: one big important takeaway. But I also think there was
• 58:02
  Speaker 4: a lot of playing with like a compromise solution. Like
• 58:06
  Speaker 4: what might that look like if, you know, there were
• 58:08
  Speaker 4: some limits on state courts' ability to, you know, regulate
• 58:13
  Speaker 4: when it comes to federal elections, maybe including and striking
• 58:15
  Speaker 4: down gerrymandered maps. And even if it's like framed in
• 58:19
  Speaker 4: a modest and compromised way, and maybe even it gets
• 58:21
  Speaker 4: like a Democratic appointee vote or two, I think that's
• 58:25
  Speaker 4: still a really consequential and potentially really problematic result because
• 58:29
  Speaker 4: the court has never before asserted that federal courts get
• 58:33
  Speaker 4: to second guess what state courts do when they interpret
• 58:35
  Speaker 4: their own constitutions. Like the idea of federalism is really
• 58:38
  Speaker 4: that states, you know, get to run the show in
• 58:41
  Speaker 4: certain respects. And when it comes to interpreting state constitutions,
• 58:44
  Speaker 4: federal courts have basically stayed out of it. And this,
• 58:47
  Speaker 4: I think, would be something new to say the federal
• 58:49
  Speaker 4: constitution in this one part of Article One gives federal
• 58:51
  Speaker 4: courts the power to second guess state courts interpreting their
• 58:54
  Speaker 4: own constitutions. And I could, I think, mean that, you know,
• 58:57
  Speaker 4: In the hands of this Supreme Court, they might find
• 58:59
  Speaker 4: in the future, oh, this state Supreme Court decision that
• 59:02
  Speaker 4: threw out a gerrymandered map, you know, they went too
• 59:05
  Speaker 4: far and thus we're going to reverse it under this
• 59:07
  Speaker 4: modest but still important version of this ISLT. So I
• 59:10
  Speaker 4: do think that having a new standard that's articulated in
• 59:14
  Speaker 4: this case that gives more power to the federal courts
• 59:17
  Speaker 4: going into the 2024 presidential election is actually really pretty
• 59:20
  Speaker 4: problematic and that it might actually give some ammunition for
• 59:24
  Speaker 4: individuals who want to, you know, file lawsuits challenging things
• 59:27
  Speaker 4: that state courts have done or that other election officials
• 59:30
  Speaker 4: have done. And they will have had the kind of
• 59:32
  Speaker 4: imprimatur of the Supreme Court on this theory, again, even
• 59:35
  Speaker 4: if it's not the biggest, boldest possible version of the theory.
• 59:38
  Speaker 4: So I'm not, you know, that sanguine about a compromise
• 59:41
  Speaker 4: solution being fine. I do think that it wouldn't, I mean,
• 59:44
  Speaker 4: the court could, you know, end democracy literally with this
• 59:47
  Speaker 4: case if it wanted to, and I don't think that's
• 59:48
  Speaker 4: going to happen. But I still think it could be
• 59:50
  Speaker 4: a really dangerous precedent depending on how it's written and
• 59:53
  Speaker 4: what is made of it.
• 59:55
  Speaker 2: That is my fear as well, based obviously on a
• 59:58
  Speaker 2: lot less expertise. But the understanding that Dobbs notwithstanding, under
• 1:00:03
  Speaker 2: the history of the Roberts court, what generally happens is
• 1:00:06
  Speaker 2: Roberts finds a way to come to an opinion that
• 1:00:10
  Speaker 2: avoids the worst headline, but gets the same result. We're
• 1:00:13
  Speaker 2: not going to overturn the Voting Rights Act. We're just
• 1:00:15
  Speaker 2: going to gut it with an inch of its life.
• 1:00:17
  Speaker 2: So you get functionally what the right wants without but
• 1:00:22
  Speaker 2: still allowing people to say, oh, John Roberts saved the
• 1:00:24
  Speaker 2: day again. So just if we end up in that place,
• 1:00:29
  Speaker 2: is there a specific set of things that are concerning
• 1:00:32
  Speaker 2: to you? Do you have a view of where that
• 1:00:34
  Speaker 2: could go? What should we be watching for when we
• 1:00:37
  Speaker 2: get this opinion in June? Is that correct? Is that
• 1:00:39
  Speaker 2: when we'll get this opinion? Most likely?
• 1:00:41
  Speaker 4: Yeah, by the end of June, and I think very
• 1:00:43
  Speaker 4: likely not until then, the end of the term. I mean,
• 1:00:46
  Speaker 4: it'll turn a little bit on the details. If basically
• 1:00:49
  Speaker 4: what the Supreme Court says is, State constitutions can't enforce
• 1:00:53
  Speaker 4: vague or open-ended state constitutional provisions about voting rights and
• 1:00:57
  Speaker 4: fair elections and things like that because that was an
• 1:00:59
  Speaker 4: argument that these North Carolina legislators were making. That, I think,
• 1:01:04
  Speaker 4: is an enormous blow to the actual meaningful participation of
• 1:01:08
  Speaker 4: of state citizens in elections that are administered by states,
• 1:01:11
  Speaker 4: because state constitutions actually have pretty good protections for voting,
• 1:01:14
  Speaker 4: actually much, much better than the federal constitution. And if
• 1:01:17
  Speaker 4: there's explicit limitations on state courts' ability to actually enforce
• 1:01:21
  Speaker 4: those provisions of state constitutions, whether that comes, you know,
• 1:01:24
  Speaker 4: when it comes to actually that, you know, exercising the
• 1:01:26
  Speaker 4: franchise or things like, you know, maps, that, that I
• 1:01:29
  Speaker 4: think will be really problematic. If what the court does
• 1:01:32
  Speaker 4: is it doesn't say anything about how some state constitutional
• 1:01:34
  Speaker 4: provisions are like too vague or general to be enforced,
• 1:01:37
  Speaker 4: just says there are limits if a state court issues
• 1:01:40
  Speaker 4: an opinion that has really jumped the shark and doesn't
• 1:01:42
  Speaker 4: seem to be doing meaningful lawmaking. Maybe that's a narrow
• 1:01:47
  Speaker 4: kind of standard, but it just honestly, anything but a
• 1:01:49
  Speaker 4: complete rejection of this ISLT is going to make me
• 1:01:53
  Speaker 4: pretty nervous, both because of what it might give ammunition
• 1:01:57
  Speaker 4: for litigants to do, but also state legislatures are paying attention, right?
• 1:02:01
  Speaker 4: And if they think that, oh, the Supreme Court has
• 1:02:03
  Speaker 4: basically blessed this idea that we have a special status
• 1:02:07
  Speaker 4: under the federal constitution and that other state entities don't
• 1:02:11
  Speaker 4: really get to do much. It's really kind of for
• 1:02:13
  Speaker 4: us to run the show. That, again, does not explicitly
• 1:02:18
  Speaker 4: say that they could do something like the Eastman theory,
• 1:02:21
  Speaker 4: just appoint electors outright. But there could be some broad
• 1:02:25
  Speaker 4: support for that that they could read into a Supreme
• 1:02:27
  Speaker 4: Court opinion. So anything short of a complete rejection, I think,
• 1:02:30
  Speaker 4: has the potential to be pretty dangerous.
• 1:02:32
  Speaker 2: Well, on that ominous note, we will leave it there.
• 1:02:35
  Speaker 2: Kate Shaw, thank you so much for joining us. It
• 1:02:40
  Speaker 2: is always great to talk to you.
• 1:02:41
  Speaker 1: Thanks, Dan. Good to talk to you. All right. Thanks
• 1:02:49
  Speaker 1: to Kate Shaw for joining us today. Everyone have a
• 1:02:51
  Speaker 1: great weekend and we'll talk to you next week.
• 1:02:53
  Speaker 2: Bye everyone.
• 1:02:58
  Speaker 1: Pod Save America is a Crooked Media production. The executive
• 1:03:01
  Speaker 1: producer is Michael Martinez. Our senior producer is Andy Gardner Bernstein.
• 1:03:05
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• 1:03:08
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• 1:03:11
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• 1:03:14
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• 1:03:18
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