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"Rebreyerment." · Pod Save America

• 0:00
  Speaker 1: Thank you.
• 0:20
  Speaker 2: Welcome to Pod Save America. I'm Jon Favreau.
• 0:22
  Speaker 3: I'm Dan Pfeiffer.
• 0:23
  Speaker 2: On today's show, Justice Stephen Breyer's retirement announcement gives President
• 0:27
  Speaker 2: Biden his first chance to fill a Supreme Court vacancy.
• 0:31
  Speaker 2: Former Obama White House lawyer Kate Shaw joins to talk
• 0:33
  Speaker 2: about potential nominees and what it's like to go through
• 0:35
  Speaker 2: a confirmation fight. And the week's worst punditry gets the
• 0:39
  Speaker 2: scorn it deserves in another round of Take Appreciator. And
• 0:45
  Speaker 2: Dan finally gets the big news day. He's been craving
• 0:50
  Speaker 2: on Pod Save America since the good news cycles have
• 0:54
  Speaker 2: kept falling to the Monday pod. Finally, you're back in business.
• 0:58
  Speaker 3: Finally. Thank you, Stephen Breyer, for your service to this
• 1:00
  Speaker 3: country and this podcast.
• 1:03
  Speaker 2: I heard he timed it for you. That's the rumor.
• 1:08
  Speaker 2: Before we get started, some incredibly exciting news. Two fantastic
• 1:13
  Speaker 2: podcasts will soon be joining the Crooked family. The first
• 1:16
  Speaker 2: is Hot Take, a no bullshit show about the climate crisis,
• 1:19
  Speaker 2: hosted by climate writer Mary Anise Hegler and award winning
• 1:23
  Speaker 2: investigative journalist Amy Westervelt. And the second is one you've
• 1:27
  Speaker 2: heard a lot about here on Pod Save America, especially today,
• 1:30
  Speaker 2: Strict Scrutiny, hosted by law professors Melissa Murray and Leah Lippman,
• 1:35
  Speaker 2: and our guest today, Kate Shaw. Strict Scrutiny will give
• 1:37
  Speaker 2: you all the info and brilliant, witty analysis you need
• 1:41
  Speaker 2: about the Supreme Court, its decisions, its personality, and the
• 1:44
  Speaker 2: broader legal culture that surrounds it. You'll be hearing much,
• 1:48
  Speaker 2: much more from both Hot Take and Strict Scrutiny across
• 1:51
  Speaker 2: your favorite crooked pods in the not-too-distant future. But in
• 1:54
  Speaker 2: the meantime, give them a follow on social and in
• 1:57
  Speaker 2: your podcast apps. Much more to share soon. Exciting. Also exciting.
• 2:03
  Speaker 2: We're going on tour. It's happening. We're back. There's a
• 2:07
  Speaker 2: pre-sale happening right now. Tickets go on sale to the
• 2:09
  Speaker 2: general public on Friday, January 28th. For all the tour
• 2:13
  Speaker 2: dates and ticket info, go to crooked.com slash events. We
• 2:17
  Speaker 2: will be hitting the road in April. If you don't
• 2:20
  Speaker 2: see your city on the schedule, not to fear, there
• 2:24
  Speaker 2: will be a second round of cities for the fall.
• 2:27
  Speaker 2: So there you go.
• 2:28
  Speaker 3: If you don't see your city, send as many angry
• 2:30
  Speaker 3: tweets as possible and we'll consider it.
• 2:33
  Speaker 2: Yeah, sometimes that works. Sometimes that works. It worked with Breyer.
• 2:36
  Speaker 2: It worked with Breyer. Speaking of which, let's get to
• 2:40
  Speaker 2: the unequivocally good news. 83-year-old Justice Stephen Breyer will retire
• 2:45
  Speaker 2: at the end of this term, paving the way for
• 2:47
  Speaker 2: Joe Biden to fulfill his campaign promise to nominate the
• 2:49
  Speaker 2: first black woman to the Supreme Court, a justice who
• 2:52
  Speaker 2: could maintain the current 6-3 split between conservatives and liberals
• 2:56
  Speaker 2: and potentially serve for decades. Possible nominees include 51-year-old Judge
• 3:02
  Speaker 2: Ketanji Brown-Jackson, who was just confirmed to the D.C. Court
• 3:05
  Speaker 2: of Appeals in June by a vote of 53 to 44,
• 3:09
  Speaker 2: Leandra Kruger, an associate justice at the California Supreme Court,
• 3:13
  Speaker 2: Judge Candace Jackson-Akawumi, who Biden appointed to the Seventh Circuit,
• 3:18
  Speaker 2: Judge Eunice Lee, who Biden appointed to the Second Circuit,
• 3:21
  Speaker 2: and U.S. District Court Judge Michelle Childs, a favorite of
• 3:24
  Speaker 2: Congressman Jim Clyburn. Senate Majority Leader Chuck Schumer said the
• 3:28
  Speaker 2: nominee will receive a prompt hearing and be confirmed with
• 3:31
  Speaker 2: all deliberate speed, with some Democrats telling reporters that he's
• 3:34
  Speaker 2: aiming for a timeframe similar to the Amy Coney Barrett nomination,
• 3:37
  Speaker 2: which was done in about a month. The president and
• 3:40
  Speaker 2: Justice Breyer officially announced the retirement at a White House
• 3:43
  Speaker 2: event Thursday morning, where Biden said he'd nominate a replacement
• 3:46
  Speaker 2: before the end of February. Here's a clip.
• 3:49
  Speaker 4: I've made no decision except one. The person I will
• 3:53
  Speaker 4: nominate will be someone with extraordinary qualifications, character, experience, and integrity.
• 4:00
  Speaker 4: And that person will be the first black woman ever
• 4:03
  Speaker 4: nominated to the United States Supreme Court. It's long overdue
• 4:07
  Speaker 4: in my view. I made that commitment during the campaign
• 4:11
  Speaker 4: for president, and I will keep that commitment.
• 4:13
  Speaker 2: Well, how about that? Is it safe for everyone to
• 4:16
  Speaker 2: go back to liking Justice Breyer now?
• 4:18
  Speaker 3: Did anyone stop liking Justice Breyer? Not me.
• 4:22
  Speaker 1: Huge.
• 4:22
  Speaker 3: I've been a huge Breyer guy for years.
• 4:25
  Speaker 2: So some might say that the billboards, uh, yelling at
• 4:30
  Speaker 2: him to retire, you know, may have been a little aggressive,
• 4:33
  Speaker 2: but clearly he drove by them and saw them. And
• 4:36
  Speaker 2: thus the announcement came today. I feel like there was
• 4:39
  Speaker 2: a direct line. You think he also probably read Twitter,
• 4:41
  Speaker 2: like all the, all the people that tweeted today would
• 4:44
  Speaker 2: be a good day for justice prior to retire. Do
• 4:45
  Speaker 2: you think he finally saw one of those tweets and said,
• 4:48
  Speaker 2: Oh shit, it's time.
• 4:49
  Speaker 3: I think, look, What happened with Manchin and Sinema over
• 4:52
  Speaker 3: the last few weeks was a real blow to the
• 4:55
  Speaker 3: mean tweet strategy for political activism, but it's having a comeback.
• 4:59
  Speaker 3: It's back.
• 5:00
  Speaker 2: Now it's back. So one hint the White House has
• 5:04
  Speaker 2: given about who Biden might nominate came from a source
• 5:06
  Speaker 2: who told Punchbowl that it won't be someone who is
• 5:09
  Speaker 2: not currently a judge. And the president himself today said
• 5:14
  Speaker 2: that Vice President Kamala Harris would be helping him through
• 5:16
  Speaker 2: the confirmation process. Why do you think they wanted that
• 5:18
  Speaker 2: piece of information out there, Dan?
• 5:20
  Speaker 3: How will she be helping him through the confirmation process?
• 5:23
  Speaker 3: She's going to Dick Cheney herself?
• 5:27
  Speaker 2: How many people get that reference, I wonder? Are we
• 5:31
  Speaker 2: that old?
• 5:31
  Speaker 3: A bunch of old people and someone who saw an
• 5:33
  Speaker 3: Adam McKay movie. Those are the options.
• 5:36
  Speaker 2: That's it. There were some rumors yesterday floating that he
• 5:41
  Speaker 2: might– choose Kamala Harris. I mean, Jeffrey Toobin floated this
• 5:46
  Speaker 2: a couple weeks.
• 5:46
  Speaker 3: Ago in a sort of bizarre post about Justice Brown
• 5:52
  Speaker 3: resigning and here are some of the people, much of
• 5:54
  Speaker 3: the people on the list you mentioned, that Kamala Harris
• 5:55
  Speaker 3: was mentioned. She is, in fact, a black woman. Simone
• 5:59
  Speaker 3: Sanders tweeted something I think is a piece of advice
• 6:01
  Speaker 3: we should all take. Last night, Simone Sanders, the former
• 6:04
  Speaker 3: chief spokesperson for the vice president, said that the Kamala
• 6:09
  Speaker 3: Harris to Supreme Court rumors are you know, generated by
• 6:12
  Speaker 3: the right wing trying to sow division in our party.
• 6:14
  Speaker 3: So we shouldn't give them attention because it's not happening.
• 6:17
  Speaker 3: And I sort of feel like that's good advice to take.
• 6:20
  Speaker 4: Yeah.
• 6:21
  Speaker 2: And also I think on the, it's not going to
• 6:24
  Speaker 2: be someone who's not currently a judge. That's just, you know,
• 6:27
  Speaker 2: it's not like without precedent that a president has nominated
• 6:31
  Speaker 2: a Supreme Court justice who wasn't currently a sitting judge,
• 6:34
  Speaker 2: but it is rare. Usually, like for all the like
• 6:37
  Speaker 2: fun parlor games about who he might nominate, like it's
• 6:41
  Speaker 2: going to be a judge. Most likely.
• 6:43
  Speaker 3: There's a practical reason for that too, especially if it's
• 6:46
  Speaker 3: someone who, and we talk about this with the individual candidates,
• 6:49
  Speaker 3: who has recently confirmed you have a record of people
• 6:52
  Speaker 3: in the Senate having voted for them or in a
• 6:55
  Speaker 3: demonstrated capacity to get to the 50 votes you're going
• 6:58
  Speaker 3: to need for confirmation.
• 6:59
  Speaker 2: Yeah. And so to that point of the names I
• 7:01
  Speaker 2: just mentioned who currently make up the rumored shortlist, and
• 7:03
  Speaker 2: I would say that the three Most mentioned names are
• 7:07
  Speaker 2: Judge Jackson, Judge Childs, and Judge Kruger. Is there anything
• 7:12
  Speaker 2: about their qualifications or backgrounds that might make one a
• 7:15
  Speaker 2: more likely or more confirmable nominee than the others?
• 7:19
  Speaker 3: Well, Judge Jackson got 53 votes just last year to
• 7:23
  Speaker 3: be confirmed to the D.C. Circuit Court of Appeals, which
• 7:25
  Speaker 3: is the second highest court of the land, the court
• 7:27
  Speaker 3: that hears all the cases, many of the cases, important
• 7:31
  Speaker 3: cases before they hit the Supreme Court. Also was previously
• 7:34
  Speaker 3: a public defender, which is something that the Biden administration
• 7:37
  Speaker 3: has really prized and have they tried to diversify the bench,
• 7:41
  Speaker 3: the federal judiciary writ large, not just in terms of
• 7:44
  Speaker 3: race and gender, but also in experience. Because for far
• 7:47
  Speaker 3: too long, there's been a premium put on prosecutors and
• 7:50
  Speaker 3: not enough on public defenders. So elevating someone who is
• 7:52
  Speaker 3: a public defender to the Supreme Court would be a
• 7:54
  Speaker 3: huge deal, I think.
• 7:57
  Speaker 2: And she clerked for Breyer. She's a former Breyer clerk.
• 8:00
  Speaker 2: And you mentioned that she was a public defender. I
• 8:03
  Speaker 2: think some criminal justice advocates are also excited about this
• 8:07
  Speaker 2: potential pick because she was on the sentencing commission under
• 8:10
  Speaker 2: President Obama, where she reduced a lot of sentences, particularly
• 8:13
  Speaker 2: around for drug offenses. And so in terms of criminal
• 8:17
  Speaker 2: justice reform, you know, there's there's a lot to like
• 8:20
  Speaker 2: with Katonji Brown-Jackson. Kate Shaw, who I talked to later,
• 8:24
  Speaker 2: brought this up, but she's new to the D.C. Circuit Court.
• 8:27
  Speaker 2: As you said, she got 53 votes, the three Republicans.
• 8:31
  Speaker 2: So she got all 50 Democrats. And then the three
• 8:32
  Speaker 2: Republicans she got were Susan Collins, Lisa Murkowski and Lindsey Graham. Still,
• 8:37
  Speaker 2: I still don't get the Lindsey Graham vote, but great.
• 8:40
  Speaker 2: So she's new there. So she doesn't have like a
• 8:42
  Speaker 2: ton of rulings on the D.C. Circuit Court to really
• 8:46
  Speaker 2: pick through. But one that's notable is she ruled that
• 8:50
  Speaker 2: former White House counsel Don McGahn had to comply with
• 8:52
  Speaker 2: a congressional subpoena and testify before Congress. And there was
• 8:56
  Speaker 2: a particular line in that ruling. The primary takeaway from
• 8:59
  Speaker 2: the past 250 years of recorded American history is that
• 9:02
  Speaker 2: presidents are not kings. You know, I read this piece
• 9:05
  Speaker 2: in The Atlantic. They said that line struck many Republicans
• 9:08
  Speaker 2: as overly confrontational. Oh, so what a crazy thing to
• 9:12
  Speaker 2: say that presidents aren't kings.
• 9:14
  Speaker 3: It's only the founding principle of the fucking country.
• 9:19
  Speaker 2: Like, they're standing up for kings. They're defending kings now. Hey,
• 9:24
  Speaker 2: don't be so hard on kings. Presidents should be kings.
• 9:27
  Speaker 2: But I do think like, look, so, you know, and
• 9:30
  Speaker 2: Kate makes this point too, D.C. Circuit Court is the
• 9:32
  Speaker 2: second most powerful court in the land, right? It is
• 9:35
  Speaker 2: head and shoulders above some of the other circuit courts. It's,
• 9:38
  Speaker 2: you know, after the Supreme Court, the next most powerful court.
• 9:41
  Speaker 2: So a lot of people have thought for a while
• 9:44
  Speaker 2: that Katonji Brown Jackson has sort of There's been a
• 9:47
  Speaker 2: plan all along to get her on the D.C. Circuit
• 9:50
  Speaker 2: Court and then to nominate her for Breyer's seat if
• 9:54
  Speaker 2: he retired. And also Biden met with her.
• 9:57
  Speaker 3: I wanted to bring that up because that seemed quite unusual.
• 10:00
  Speaker 3: to me for an appeals court pick to have interviewed
• 10:04
  Speaker 3: with the president for that. That is usually, if I
• 10:06
  Speaker 3: recall correctly, reserved for Supreme Court nominees.
• 10:11
  Speaker 2: Yeah. So that gives you a hint. I mean, what
• 10:13
  Speaker 2: do you think about the Clyburn thing on Judge Childs?
• 10:18
  Speaker 2: Do you think there's anything to like Biden thinks he
• 10:22
  Speaker 2: owes Jim Clyburn from the campaign. And so he's going
• 10:25
  Speaker 2: to take his favorite pick seriously. And we should say
• 10:27
  Speaker 2: that Judge Childs is from South Carolina, was a judge
• 10:31
  Speaker 2: in South Carolina, and has also been nominated to the D.C.
• 10:35
  Speaker 2: Circuit Court, though her confirmation hearing has not happened yet.
• 10:38
  Speaker 3: Well, I guess we'll see how much juice Jim Clyburn
• 10:40
  Speaker 3: has now, huh? I can't imagine the president is going
• 10:47
  Speaker 3: to– I mean, he will, I'm sure, listen to Congressman Clyburn,
• 10:50
  Speaker 3: as he always does, but is not going to make
• 10:52
  Speaker 3: his decision based on political favor or whatever he feels
• 10:57
  Speaker 3: he may owe Jim Clyburn. That seems impossible to imagine
• 11:00
  Speaker 3: to me.
• 11:01
  Speaker 2: Yeah. I think the important thing here is Biden has–
• 11:05
  Speaker 2: in this rumored shortlist and even some of the other names,
• 11:08
  Speaker 2: an extremely qualified group of people to choose from here,
• 11:13
  Speaker 2: which is very, very good news. And I think, and
• 11:16
  Speaker 2: he said this today, he said it will be someone
• 11:17
  Speaker 2: with impeccable qualifications and any of the people that we
• 11:21
  Speaker 2: mentioned have that in spades. And so I think that,
• 11:24
  Speaker 2: you know, that's a really good thing. Let's talk timing.
• 11:28
  Speaker 2: Schumer wants the nominee confirmed in about a month. Susan
• 11:31
  Speaker 2: Collins said there's no need to rush. and that the
• 11:34
  Speaker 2: Senate should take its time. She also mentioned that she
• 11:38
  Speaker 2: thought that the Amy Coney Barrett process was rushed and
• 11:41
  Speaker 2: that she doesn't want this one rushed. Dianne Feinstein released
• 11:44
  Speaker 2: a statement that said, with six months until Breyer departs,
• 11:48
  Speaker 2: the Senate will have, quote, ample time to hold hearings.
• 11:52
  Speaker 2: People on Twitter took that statement to be like, Dianne
• 11:55
  Speaker 2: Feinstein wants to drag this process out. I think there's
• 11:59
  Speaker 2: another way to read that, which was, you could imagine
• 12:03
  Speaker 2: Mitch McConnell or some Republicans doing, they're like, it's an
• 12:06
  Speaker 2: election year. We don't have time for, you know, we
• 12:09
  Speaker 2: don't have time to do hearings. We should just wait
• 12:11
  Speaker 2: for the midterms. And so she could have been pushing
• 12:13
  Speaker 2: back on that. But anyway, who knows what Dianne Feinstein's thinking.
• 12:17
  Speaker 2: But how important do you think speed is here?
• 12:22
  Speaker 3: Here is, I mean, I don't want to be grim
• 12:24
  Speaker 3: about this, but we're in a 50-50 Senate.
• 12:27
  Speaker 2: I know where this is going.
• 12:28
  Speaker 3: And there are 12 Democratic senators sitting in a state
• 12:31
  Speaker 3: with Republican governors. who could appoint their replacement. So there's
• 12:35
  Speaker 3: no real screwing around here. They got to get going.
• 12:37
  Speaker 2: Let's move. Let's move. Clock's a ticking.
• 12:40
  Speaker 3: Look, I think Biden is correct to do this in
• 12:44
  Speaker 3: a month. He's obviously been working on this for a
• 12:46
  Speaker 3: long time. This is not a surprise, right? There are
• 12:49
  Speaker 3: times when, like with Scalia, when there's an unexpected passing,
• 12:54
  Speaker 3: no one knows it's coming, then there's immediate effort to
• 12:57
  Speaker 3: do all the work. When Obama was in office, we
• 12:59
  Speaker 3: had expectations we were going to have vacancies. And so
• 13:03
  Speaker 3: the work was done to prepare for those in advance
• 13:05
  Speaker 3: so you could turn around and make your nomination quickly.
• 13:08
  Speaker 3: Biden has been preparing for this the entire time. I
• 13:11
  Speaker 3: think that all the vetting on these people has been done.
• 13:14
  Speaker 3: The books are prepared. He will meet with them. They
• 13:18
  Speaker 3: will talk. They will do the advice and consent with senators,
• 13:21
  Speaker 3: and then they will, and Congressman Clyburn, obviously, and then
• 13:24
  Speaker 3: they will move on and make a decision very quickly.
• 13:28
  Speaker 3: And that's right. Whether it's in a month, as Chuck
• 13:31
  Speaker 3: Schumer famous for adhering to all of his deadlines and
• 13:34
  Speaker 3: never missing them. Or sometime after that, you know, one
• 13:38
  Speaker 3: notable thing is, is that Breyer said he would retire
• 13:42
  Speaker 3: by Lee Lipman of strict scrutiny. Now the crooked family
• 13:45
  Speaker 3: excitingly said on Twitter, pointed out Twitter that Breyer said
• 13:49
  Speaker 3: that he will retire, will retire at the end of
• 13:51
  Speaker 3: the term. If someone has been confirmed to replace him.
• 13:56
  Speaker 3: So it's not, he's not going anywhere until they get
• 13:58
  Speaker 3: this done, but they should, there's no reason why they
• 13:59
  Speaker 3: can't get this done pretty quickly.
• 14:02
  Speaker 2: I'll also say I had a long list of problems
• 14:05
  Speaker 2: with the Amy Coney Barrett nomination. The speed of the process,
• 14:10
  Speaker 2: sort of at the bottom of the list. If we
• 14:13
  Speaker 2: had dragged that out for a couple more months, I don't,
• 14:15
  Speaker 2: you know, that's not.
• 14:16
  Speaker 3: You wouldn't be a really big supporter of hers?
• 14:20
  Speaker 2: Yeah, I mean, unless they wanted to drag it out
• 14:22
  Speaker 2: until right after they swore in John Ossoff and Raphael
• 14:27
  Speaker 2: Warnock and Joe Biden. That would have been, yeah, it
• 14:29
  Speaker 2: would have been nice to drag it out to then.
• 14:30
  Speaker 3: Here's a question for you. Do you think the Republicans
• 14:33
  Speaker 3: are going to fight on this?
• 14:36
  Speaker 2: So, you know, so far everything I've seen does not
• 14:41
  Speaker 2: make me think that they will, but they're Republicans and like,
• 14:45
  Speaker 2: this is what usually happens with them. They're Republican politicians
• 14:47
  Speaker 2: and Sort of like spit out statements like Lindsey Graham
• 14:50
  Speaker 2: kind of had a surrender statement out. He's like, I
• 14:53
  Speaker 2: imagine Democrats will stick together and we won't win this
• 14:55
  Speaker 2: fight kind of thing. Mitch McConnell, even for Mitch McConnell,
• 14:59
  Speaker 2: he was like, you know, it's a 50 50 Senate
• 15:02
  Speaker 2: and Joe Biden should not outsource this decision to the
• 15:05
  Speaker 2: radical left and blah, blah, blah. So I don't think
• 15:08
  Speaker 2: that the senators right now are all thinking that they're
• 15:11
  Speaker 2: going to put up a huge fight. But like, I
• 15:12
  Speaker 2: don't know, give Fox News a week to gin everyone
• 15:15
  Speaker 2: up and then we'll see what happens because they could
• 15:17
  Speaker 2: get pressure from their masters in the right wing media.
• 15:21
  Speaker 2: That's who they take marching orders from. So you don't
• 15:23
  Speaker 2: know what they're going to be like. But I don't know.
• 15:27
  Speaker 2: I think, look, if the president nominates Katonji Brown Jackson
• 15:32
  Speaker 2: and Democrats can say, OK, this is someone who literally
• 15:35
  Speaker 2: just got the vote of Lindsey Graham and Susan Collins
• 15:39
  Speaker 2: and Lisa Murkowski is Lindsey Graham part of the radical
• 15:41
  Speaker 2: left now. You know, I think it's going to be
• 15:44
  Speaker 2: harder for them to put up a fight, especially if
• 15:47
  Speaker 2: and this is what I want to get to next.
• 15:49
  Speaker 2: If it seems like Manchin and Sinema are on board,
• 15:51
  Speaker 2: I think if they can if they can they get
• 15:54
  Speaker 2: a whiff of division on the Democratic side. then they
• 15:57
  Speaker 2: might start going all in. And they might try to
• 15:59
  Speaker 2: make Manchin and Sinema feel like they are, you know,
• 16:04
  Speaker 2: confirming some far-left radical nominee. If they think they can
• 16:08
  Speaker 2: do that, they might make a push. But I think
• 16:11
  Speaker 2: if Manchin and Sinema sort of come out of their
• 16:13
  Speaker 2: initial conversations with the nominee early, saying positive things, then
• 16:18
  Speaker 2: I think you'll see Republicans back down. I don't know.
• 16:19
  Speaker 2: What do you think?
• 16:20
  Speaker 3: Yeah, I think there's going to be two levels to this.
• 16:22
  Speaker 3: I think the MAGA media will do everything they can
• 16:25
  Speaker 3: to demonize a nominee. There's nothing they like to do
• 16:29
  Speaker 3: more than demonize a black woman. And there will be
• 16:32
  Speaker 3: Republican senators who will take their lead from that, the
• 16:36
  Speaker 3: Tom Cottons and Josh Hawleys and Ted Cruz's. But I'm
• 16:39
  Speaker 3: not sure that they will be this giant fight because
• 16:42
  Speaker 3: they're either in the Republican Senate or the larger, very
• 16:46
  Speaker 3: well-funded judicial activism networks on the Republican side because the
• 16:49
  Speaker 3: ideological balance of the court is not at stake here
• 16:52
  Speaker 3: and the Democrats' chance of success seem quite high.
• 16:57
  Speaker 2: Yeah, I mean, if for some reason Clarence Thomas' seat
• 17:02
  Speaker 2: or Sam Alito's seat were to open up tomorrow, you'd
• 17:05
  Speaker 2: probably see a different kind of fight here. Also, to
• 17:08
  Speaker 2: your point about the right-wing media loves to demonize a
• 17:11
  Speaker 2: black woman. Right now, they are just demonizing the concept
• 17:15
  Speaker 2: of a black woman. They don't even have a specific
• 17:18
  Speaker 2: black woman to demonize. But they're all out there being like,
• 17:22
  Speaker 2: this is reverse racism and affirmative action, all this stuff. Like,
• 17:26
  Speaker 2: how could Joe Biden promise to nominate a black woman?
• 17:28
  Speaker 2: It's like, I don't know. Do you think it's strange
• 17:31
  Speaker 2: that in this country's 200 plus year history, there has
• 17:36
  Speaker 2: never been a black woman on the Supreme Court? Do
• 17:37
  Speaker 2: you think that's just a coincidence? It's just. You're going
• 17:42
  Speaker 2: to fight this now? That in 2022 we may get
• 17:47
  Speaker 2: our first black woman to serve on the Supreme Court?
• 17:49
  Speaker 2: That's going to offend you?
• 17:50
  Speaker 1: Okay.
• 17:52
  Speaker 2: That is, yeah, that is wildly offensive. And it's also,
• 17:55
  Speaker 2: and it's also, by the way, in saying, and a
• 17:58
  Speaker 2: lot of them are saying this, that like, oh, you know,
• 18:01
  Speaker 2: he's going to forget about qualifications because he's just going
• 18:03
  Speaker 2: to go and decide to pick a black woman because
• 18:05
  Speaker 2: he's decided on that. That is basically saying that there
• 18:08
  Speaker 2: are no black women in the country who have the
• 18:10
  Speaker 2: qualifications necessary to sit on the Supreme Court, which is
• 18:13
  Speaker 2: fucking outrageous.
• 18:14
  Speaker 5: Yes.
• 18:14
  Speaker 2: Particularly considering the nominees that Joe Biden is talking about
• 18:17
  Speaker 2: right now, who have sterling credentials.
• 18:19
  Speaker 3: Yeah, that is the exact point that, That in the
• 18:23
  Speaker 3: mind's eye of a lot of right-wing conservative types, you
• 18:28
  Speaker 3: cannot appoint a qualified person of certain credentials and appoint
• 18:33
  Speaker 3: a black woman because no such thing exists. Because there's
• 18:36
  Speaker 3: only one type of person who would be strolling and
• 18:39
  Speaker 3: qualified and all the above. It's the type of justices
• 18:42
  Speaker 3: that they appoint.
• 18:43
  Speaker 2: Right. Also, I will just say that it was well-known
• 18:47
  Speaker 2: that when Trump was thinking about a Supreme Court justice,
• 18:50
  Speaker 2: his third Supreme Court justice, that he was like, oh yeah,
• 18:53
  Speaker 2: we're going to pick a woman. And no one on
• 18:55
  Speaker 2: the right said anything about that.
• 18:56
  Speaker 5: No.
• 18:56
  Speaker 2: Interesting. White woman. Right. All right. So now for the
• 19:00
  Speaker 2: question on everyone's mind, what do we know about where
• 19:03
  Speaker 2: Joe Manchin and Kyrsten Sinema might land on this one?
• 19:07
  Speaker 3: You said something to folks internally at Crooked the other day,
• 19:12
  Speaker 3: which is, I'm not going to worry about this until
• 19:15
  Speaker 3: Manchin and Sinema give me a reason to worry, which
• 19:17
  Speaker 3: I think is the right approach we should take. They
• 19:18
  Speaker 3: have been historically good on Biden's judicial nominees. There's a
• 19:22
  Speaker 3: very different kettle of fish than either changing the filibuster
• 19:27
  Speaker 3: or the sort of policy parts of Build Back Better.
• 19:30
  Speaker 3: Not that their positions on that are not ridiculous, but
• 19:33
  Speaker 3: they did just vote for the person that most people
• 19:35
  Speaker 3: believe is the leading contender to be Biden's choice. They
• 19:39
  Speaker 3: just voted for him within the last year. So it
• 19:41
  Speaker 3: seems like we are starting off in a strong place.
• 19:44
  Speaker 3: I'm not saying don't wet the bed or anything above,
• 19:47
  Speaker 3: but I think this is Manchin and Sinema on the
• 19:51
  Speaker 3: president's nominees have taken a very different... Judicial nominees have
• 19:53
  Speaker 3: taken a very different approach than they have on other
• 19:55
  Speaker 3: parts of his legislative agenda. And that's worth noting as
• 19:57
  Speaker 3: we decide where we're going to direct our panic in this.
• 19:59
  Speaker 2: Day and age. Joe Biden has confirmed more judicial nominees
• 20:05
  Speaker 2: in the first year than any president in recent history.
• 20:08
  Speaker 2: And Manchin and Sinema haven't voted against a single one
• 20:11
  Speaker 2: of them. And so, you know, Manchin put out a statement.
• 20:14
  Speaker 2: I take my constitutional responsibility seriously, look forward to meeting
• 20:17
  Speaker 2: with and evaluating the qualifications of the nominee. If I
• 20:20
  Speaker 2: was Joe Manchin and I was ready to vote for
• 20:22
  Speaker 2: this nominee. being Joe Manchin, being from West Virginia, being
• 20:26
  Speaker 2: my Manchin-y self, I would put out a statement like that.
• 20:29
  Speaker 2: He's not going to put out a statement that's like, yeah,
• 20:31
  Speaker 2: whoever Joe Biden puts up, I'm in.
• 20:33
  Speaker 3: I mean, no one's going to do that, right?
• 20:35
  Speaker 2: No one does that.
• 20:36
  Speaker 3: That statement that Manchin put out is- Some.
• 20:38
  Speaker 2: Very liberal senators might do that.
• 20:39
  Speaker 3: But that is basically the statement that is circulated on
• 20:42
  Speaker 3: the Democratic Senate press secretary's listserv, so everyone can just
• 20:45
  Speaker 3: put their boss's name on it. That's what you're supposed
• 20:47
  Speaker 3: to say.
• 20:48
  Speaker 2: Yeah, and just for some history, Manchin did vote for
• 20:50
  Speaker 2: Gorsuch and Kavanaugh, and then he voted against Barrett because
• 20:54
  Speaker 2: he said the process was rushed for Barrett. So that's
• 20:56
  Speaker 2: one thing to keep in mind on the process. Sinema
• 21:00
  Speaker 2: hasn't been in the Senate that long. She voted against Barrett,
• 21:02
  Speaker 2: and she said she couldn't support Kavanaugh, but at the
• 21:05
  Speaker 2: time she was running for Senate and she wasn't in
• 21:07
  Speaker 2: the Senate. She was a House member. So that's just
• 21:09
  Speaker 2: some history on them. And of course, like we said,
• 21:12
  Speaker 2: Judge Jackson got three Republican votes. So, you know, I
• 21:15
  Speaker 2: think that's right, too. I think what's going to happen
• 21:17
  Speaker 2: is And this is where everyone has to be careful.
• 21:20
  Speaker 2: Reporters are going to want to cause trouble. Republicans are
• 21:24
  Speaker 2: definitely going to want to cause trouble. They're going to
• 21:26
  Speaker 2: want to divide Democrats. They're going to want to take
• 21:29
  Speaker 2: statements out of context to try to divide Democrats because
• 21:32
  Speaker 2: this could be a relatively quiet, maybe even boring confirmation process.
• 21:36
  Speaker 2: They're going to be just dying for Joe Manchin and
• 21:38
  Speaker 2: Kyrsten Sinema to say something that could freak everyone out
• 21:41
  Speaker 2: and overturn the process. So I would say, like, just
• 21:45
  Speaker 2: take everything with a grain of salt. Like, just, you know,
• 21:49
  Speaker 2: let this process play out and know that there are
• 21:52
  Speaker 2: a bunch of people who it will benefit them to
• 21:55
  Speaker 2: try to make this as difficult as possible and sow
• 21:57
  Speaker 2: division within the ranks. But you're right. Like every again,
• 22:01
  Speaker 2: anything could happen. Mansion Cinema have surprised us many times before.
• 22:05
  Speaker 2: So no guarantees. But everything they've said and done up
• 22:09
  Speaker 2: until this point should give us some degree of confidence
• 22:12
  Speaker 2: that they will not be big problems. Axios ran a
• 22:15
  Speaker 2: piece on the politics of this confirmation fight. Republicans, as
• 22:18
  Speaker 2: we were talking about, don't expect to win, but apparently
• 22:20
  Speaker 2: their strategy is to frame the nominee as too liberal
• 22:23
  Speaker 2: and then attack Senate Democrats who have tough midterm races
• 22:26
  Speaker 2: for supporting her. The piece also says that the pick
• 22:29
  Speaker 2: could be a, quote, a potential lifeline for the Democratic Party.
• 22:32
  Speaker 2: How much of a political effect do you think this
• 22:35
  Speaker 2: confirmation might have on the midterms?
• 22:38
  Speaker 3: Minimal is my guess. I don't think you're going to
• 22:40
  Speaker 3: have very much success attacking Senate Democrats for supporting the
• 22:44
  Speaker 3: president's nominee, who was a well-qualified person. I think that
• 22:50
  Speaker 3: the extent that it has a political impact is presuming
• 22:54
  Speaker 3: that Biden's nominee is confirmed, and it is a relatively
• 22:59
  Speaker 3: turbulence-free process, that this is a big win. And he
• 23:03
  Speaker 3: could very much use a win. And so it's not,
• 23:05
  Speaker 3: I don't think it's a game changer, but sort of
• 23:08
  Speaker 3: in the binary world of social media politics, you're either
• 23:11
  Speaker 3: winning or you're losing. And It's been a bit of
• 23:14
  Speaker 3: a losing streak because of Build Back Better and voting
• 23:16
  Speaker 3: rights for President Biden and the pandemic. And so, you know,
• 23:20
  Speaker 3: having a nominee who does well in her hearings gets confirmed,
• 23:24
  Speaker 3: I think that that is a positive step that will
• 23:27
  Speaker 3: help President Biden. You know, because a lot of when
• 23:29
  Speaker 3: we talk about his approval ratings, one of the places
• 23:31
  Speaker 3: there's a lot of low hanging fruit there among disappointed
• 23:34
  Speaker 3: Democrats that he may be able to get some of
• 23:36
  Speaker 3: those folks back with a successful confirmation if people see
• 23:39
  Speaker 3: him being successful. that sort of success begets success in
• 23:43
  Speaker 3: political politics and polling.
• 23:46
  Speaker 2: I talked to Kate about what the confirmation process looks
• 23:49
  Speaker 2: like from the point of view of the White House
• 23:51
  Speaker 2: Counsel's Office. You've been on the communication side of it,
• 23:55
  Speaker 2: these processes. If you were in the White House right now,
• 23:59
  Speaker 2: or you were advising some of these Senate Democrats who
• 24:01
  Speaker 2: are up in 22, what's your advice for how to
• 24:04
  Speaker 2: handle this nomination in a way to make sure it's
• 24:07
  Speaker 2: either a political win or at least not a political liability? Like,
• 24:10
  Speaker 2: is there anything they can do?
• 24:12
  Speaker 3: I think for the White House, it is obviously make
• 24:16
  Speaker 3: sure that whoever you nominate is fully vetted. There are
• 24:21
  Speaker 3: no surprises, can handle the confirmation hearings. And all the
• 24:23
  Speaker 3: people they're looking at are people that have already been
• 24:25
  Speaker 3: fully vetted and been through the confirmation process. So I
• 24:27
  Speaker 3: don't think that is even really an issue. You don't
• 24:29
  Speaker 3: want to end up with a Harriet Meyers situation, which
• 24:31
  Speaker 3: is where George W. Bush appointed his White House counsel,
• 24:34
  Speaker 3: who- was viewed by many to be unqualified for the
• 24:37
  Speaker 3: position and did not do well in her meetings and
• 24:41
  Speaker 3: hearings and was sort of a big loss for the
• 24:44
  Speaker 3: Bush administration. So you don't want that, obviously.
• 24:46
  Speaker 1: And you don't want what would happen with Trump and Kavanaugh,
• 24:51
  Speaker 1: where the allegations about him came out in the middle
• 24:54
  Speaker 1: of the process and therefore caused a whole bunch of
• 24:57
  Speaker 1: turbulence and should have led to him not being confirmed,
• 24:59
  Speaker 1: but unfortunately did not.
• 25:00
  Speaker 3: Thank you, Susan Collins. So for the Senate Democrats, really
• 25:05
  Speaker 3: the process breaks down as follows. You have the meeting
• 25:08
  Speaker 3: with the nominee. There's a photo spray. It's all, there's
• 25:11
  Speaker 3: nothing real substantive for it for the public. Then there's
• 25:14
  Speaker 3: the Judiciary Committee hearings. And those are very high profile.
• 25:15
  Speaker 3: They'll be carried live on cable TV and maybe elsewhere.
• 25:18
  Speaker 3: And for the Senate or Senate Judiciary Committee, that's an
• 25:20
  Speaker 3: opportunity to, you know, there may be some battle with
• 25:23
  Speaker 3: Republicans and other things, but then you vote. And so
• 25:25
  Speaker 3: I don't know that there's a lot here other than
• 25:27
  Speaker 3: playing it straight. It's sort of like do the Manchin
• 25:29
  Speaker 3: Statements feel like you're taking the process seriously and vote
• 25:32
  Speaker 3: for the president's qualified nominee. There are times when the
• 25:37
  Speaker 3: Supreme Court hearings have a huge political impact. I think
• 25:40
  Speaker 3: that happened with Kavanaugh. That happened with Coney Barrett. I'm
• 25:44
  Speaker 3: not sure this is one of those because the ideological
• 25:46
  Speaker 3: balance of the court is not at stake. And I
• 25:48
  Speaker 3: think the outcome is not really in jeopardy, presuming everything
• 25:52
  Speaker 3: goes right in the vetting and nomination process.
• 25:56
  Speaker 2: And right on cue as you were talking about Manchin's
• 26:00
  Speaker 2: statement sounding like it was just on the Senate Democratic
• 26:03
  Speaker 2: press secretary listserv, Sinema finally came out with her statement,
• 26:06
  Speaker 2: and it's almost the same. Yes. She said, look forward
• 26:10
  Speaker 2: to fulfilling her constitutional duty to providing advice and consent,
• 26:13
  Speaker 2: and she's going to examine the nominee based on three criteria,
• 26:16
  Speaker 2: whether the nominee is professionally qualified, believes in the role
• 26:18
  Speaker 2: of an independent judiciary, and can be trusted to faithfully
• 26:21
  Speaker 2: interpret and uphold the rule of law. Pretty standard. Doesn't
• 26:25
  Speaker 2: sound like a statement that is going to cause Biden
• 26:29
  Speaker 2: and Democrats any trouble unless, of course, things come out
• 26:32
  Speaker 2: in the vetting that we don't know about. Okay. So
• 26:37
  Speaker 2: when we come back, I will talk more about this
• 26:41
  Speaker 2: nomination fight with legal expert Kate Shaw from the Strict
• 26:46
  Speaker 2: Scrutiny podcast. We have the perfect guest joining us today
• 26:58
  Speaker 2: to offer an expert viewpoint on the confirmation battle to come.
• 27:02
  Speaker 2: Kate Shaw is a former clerk to Supreme Court Justice
• 27:04
  Speaker 2: John Paul Stevens. She was my colleague in the White
• 27:07
  Speaker 2: House where she served in the counsel's office as special
• 27:09
  Speaker 2: assistant to the president. She's now a professor at the
• 27:12
  Speaker 2: Cardozo School of Law at Yeshiva University and the co-host
• 27:16
  Speaker 2: of the best legal podcast there is now, soon to
• 27:19
  Speaker 2: be part of the Crooked Media family, Strict Scrutiny. Kate,
• 27:23
  Speaker 2: thanks for joining. Thanks, John.
• 27:24
  Speaker 5: We are so excited to be joining the family.
• 27:27
  Speaker 2: We are beyond excited. We feel like we've had you
• 27:29
  Speaker 2: guys on the pod so much now, and we have
• 27:31
  Speaker 2: all been such huge fans of strict scrutiny for so
• 27:34
  Speaker 2: long that it makes sense to join forces.
• 27:39
  Speaker 1: Absolutely.
• 27:40
  Speaker 2: So, big day. How did you feel when you first
• 27:44
  Speaker 2: saw the news? Relieved? Excited? Did you mutter to yourself,
• 27:48
  Speaker 2: it's about time?
• 27:49
  Speaker 5: You know, I think overriding sensation was relief.
• 27:53
  Speaker 2: Right.
• 27:53
  Speaker 5: So, you know, this is not giving President Biden an
• 27:56
  Speaker 5: opportunity to do anything transformational at the Supreme Court. But
• 28:00
  Speaker 5: the court is on the path, the conservative supermajority is
• 28:03
  Speaker 5: on the path to really burn down a lot of
• 28:05
  Speaker 5: American law. And that's with a 6-3 court. And I
• 28:09
  Speaker 5: think that Justice Breyer sticking around much longer really created
• 28:13
  Speaker 5: a possibility that we might be looking at a 7-2
• 28:16
  Speaker 5: court down the road. And a 6-3 court, you know,
• 28:19
  Speaker 5: is going to mean some fundamental changes in American law.
• 28:21
  Speaker 5: But a 7-2 conservative court? down the road, I think
• 28:24
  Speaker 5: could have been cataclysmic. So I think a tremendous sense
• 28:26
  Speaker 5: of relief that it does not look like that's going
• 28:29
  Speaker 5: to materialize anytime soon.
• 28:31
  Speaker 2: How much do you think that factored into his decision?
• 28:34
  Speaker 2: Do you think that's what he was weighing and that's
• 28:36
  Speaker 2: what did it? Because I know that it doesn't seem
• 28:38
  Speaker 2: like there were health considerations or anything else like that.
• 28:40
  Speaker 5: I think it has to have, right? So the court,
• 28:42
  Speaker 5: he knows what is happening behind the curtains at the
• 28:45
  Speaker 5: court right now. So if there is a draft opinion
• 28:47
  Speaker 5: that has already been circulated saying Roe versus Wade is
• 28:50
  Speaker 5: hereby overruled, And states have basically lost their ability to
• 28:54
  Speaker 5: regulate gun carrying in cities and, you know, other things.
• 28:59
  Speaker 5: He knows it. And I think that it does seem
• 29:01
  Speaker 5: like maybe he has seen the writing on the wall
• 29:04
  Speaker 5: and that this court is poised to go as quickly
• 29:06
  Speaker 5: as it can and in as dramatic a fashion as
• 29:08
  Speaker 5: it can to sort of change a lot of really
• 29:10
  Speaker 5: settled law and legal principles that he believes in. And
• 29:14
  Speaker 5: I think that he decided that projecting this kind of
• 29:16
  Speaker 5: nonpartisan appearance that his retirement decisions weren't going to be
• 29:20
  Speaker 5: timed by politics, that that was less important than creating
• 29:24
  Speaker 5: the chance for President Biden to replace him with a
• 29:27
  Speaker 5: like-minded jurist who wouldn't sign on to the kind of
• 29:30
  Speaker 5: agenda that the conservative supermajority seems to be pursuing right now.
• 29:34
  Speaker 2: We were just talking about a few of the most
• 29:36
  Speaker 2: talked about potential nominees, Judge Jackson, Judge Krueger. Judge Childs.
• 29:41
  Speaker 2: What do we know about each of their judicial philosophies
• 29:45
  Speaker 2: and where they might differ?
• 29:48
  Speaker 5: So Judge Jackson, I'll take first on the D.C. Circuit.
• 29:52
  Speaker 5: I don't think any of them is a radical, despite
• 29:54
  Speaker 5: the fact that they will likely be portrayed as such
• 29:56
  Speaker 5: by Republicans during the confirmation process. I think they're all
• 30:00
  Speaker 5: fairly pragmatic, left of center, but pretty moderate jurists. I
• 30:07
  Speaker 5: think that, you know, look, Judge Jackson has handled an
• 30:10
  Speaker 5: array of cases as a district court judge. She hasn't
• 30:11
  Speaker 5: been on the D.C. Circuit for that long. But, you know,
• 30:14
  Speaker 5: a couple of things I would say substantively. One, she
• 30:17
  Speaker 5: handed down a scathing rejection of Don McGahn's attempt to
• 30:20
  Speaker 5: assert absolute testimonial immunity in a case when she was
• 30:23
  Speaker 5: still in the district court, you know, wrote that presidents
• 30:25
  Speaker 5: are not kings. So I think that she definitely brings
• 30:28
  Speaker 5: a healthy skepticism about excessive assertions of executive power, which
• 30:32
  Speaker 5: I think is a really important perspective to have on
• 30:34
  Speaker 5: the court. This court has been very protective of, and look, like,
• 30:38
  Speaker 5: you know, presidential power is something that I do believe in,
• 30:40
  Speaker 5: but obviously constraints are really, really important. And I think
• 30:43
  Speaker 5: she clearly believes that. So I think we know that
• 30:45
  Speaker 5: about her, you know, Justice Kruger, because she's been on
• 30:48
  Speaker 5: the state court, we don't really know much about presidential power,
• 30:50
  Speaker 5: you know, what her views of presidential power might be
• 30:52
  Speaker 5: as a jurist. She was an executive branch lawyer. She
• 30:55
  Speaker 5: was in the Solicitor General's office and argued a dozen cases.
• 30:58
  Speaker 2: Before the court.
• 30:59
  Speaker 5: So, you know, protected executive branch prerogatives. So I think
• 31:02
  Speaker 5: probably does have a pretty broad view of presidential power,
• 31:05
  Speaker 5: but is viewed as kind of a moderate on the
• 31:07
  Speaker 5: California Supreme Court. And Judge Childs, I think we just
• 31:10
  Speaker 5: we know less about. She's got a very interesting background
• 31:13
  Speaker 5: in that she's been in state political office, you know,
• 31:17
  Speaker 5: comes from sort of not this Ivy League credential background.
• 31:21
  Speaker 5: She went to the University of South Carolina for law school.
• 31:24
  Speaker 5: And so that's a kind of experiential and educational diversity
• 31:27
  Speaker 5: that she would bring to the court. But they all
• 31:29
  Speaker 5: are extremely well-qualified jurists. You know, I think particularly Judge Jackson,
• 31:34
  Speaker 5: who most recently was obviously before the Senate and was
• 31:36
  Speaker 5: confirmed with some Republican support, would be kind of a
• 31:39
  Speaker 5: no-brainer in that it seems as though her confirmation would
• 31:42
  Speaker 5: be all but guaranteed, potentially even with some Republican support,
• 31:45
  Speaker 5: which I got to imagine the president would love, although
• 31:48
  Speaker 5: shouldn't be necessary in terms of making this election. Right.
• 31:51
  Speaker 2: Are there any other names you think might make the
• 31:54
  Speaker 2: shortlist or that people aren't talking about that could surprise us?
• 31:57
  Speaker 5: I mean, my co-host and I have been talking about
• 31:59
  Speaker 5: Sherilyn Ifill, who is a little older than sort of
• 32:03
  Speaker 5: the core demographic in terms of Supreme Court nominees. She's 59,
• 32:06
  Speaker 5: but she is the outgoing director and she's the outgoing
• 32:10
  Speaker 5: director counsel of the NAACP LDF, a career civil rights lawyer,
• 32:13
  Speaker 5: extraordinarily brilliant lawyer and tactician and would be an amazing
• 32:18
  Speaker 5: force on the court. So she is a name that
• 32:20
  Speaker 5: we have definitely been talking about and others have as well. But,
• 32:23
  Speaker 5: you know, right now it is so established that sitting
• 32:26
  Speaker 5: judges and typically sitting federal judges are the kinds of
• 32:29
  Speaker 5: nominees that presidents put up. And, you know, they're well vetted.
• 32:32
  Speaker 5: There are reasons for this, although it's I think it's
• 32:34
  Speaker 5: a development that has so narrowed the band of experiences
• 32:38
  Speaker 5: that justices bring to the court in a way that
• 32:39
  Speaker 5: is actually not really healthy for the development of the law.
• 32:41
  Speaker 5: So we would love to see the White House cast
• 32:43
  Speaker 5: a wider net.
• 32:46
  Speaker 2: You've been through Supreme Court confirmation fights during your time
• 32:48
  Speaker 2: at the White House. To what extent do you think
• 32:50
  Speaker 2: the White House staff, and particularly the counsel's office, has
• 32:53
  Speaker 2: been preparing for this? Like, do you think they already
• 32:56
  Speaker 2: had a shortlist? Do you think they've already started vetting nominees,
• 32:58
  Speaker 2: just thinking that Breyer might announce his retirement this year?
• 33:02
  Speaker 5: I mean, I think they've been prepared since before taking office, right?
• 33:05
  Speaker 5: So during the transition, preparations were, I mean, this is
• 33:07
  Speaker 5: just me thinking back, but I am quite sure that
• 33:09
  Speaker 5: the Biden team did the same thing, which is to
• 33:12
  Speaker 5: come into the White House very, very prepared with A
• 33:14
  Speaker 5: short list, a medium list, a long list. And to
• 33:17
  Speaker 5: the extent that some of these folks, again, to return
• 33:19
  Speaker 5: to Judge Jackson, have been through full vets, right? The D.C.
• 33:22
  Speaker 5: Circuit is not the Supreme Court, but it's not that far.
• 33:25
  Speaker 5: And so she has been very recently through a rigorous process,
• 33:28
  Speaker 5: both of White House vetting and FBI vetting and personnel vetting.
• 33:33
  Speaker 5: And so they've got a very full record on her.
• 33:36
  Speaker 5: And I am sure everyone else on the shortlist has
• 33:39
  Speaker 5: been pretty worked up as well. So if the White
• 33:42
  Speaker 5: House wants to move this quickly and the Senate is
• 33:44
  Speaker 5: on board, I mean, this could be done in a
• 33:45
  Speaker 5: month or two very easily.
• 33:47
  Speaker 2: So obviously, once a nominee is announced, and I think
• 33:49
  Speaker 2: Biden said today, the nominee will be announced before the
• 33:52
  Speaker 2: end of February. They do the thing where they meet
• 33:54
  Speaker 2: with senators for a bunch of conversations before the confirmation
• 33:57
  Speaker 2: hearings begin. What are those conversations usually like? And do
• 34:01
  Speaker 2: you have any tips that you'd give to the nominee?
• 34:03
  Speaker 2: specifically before her conversation with Joe Manchin and Kyrsten Sinema?
• 34:08
  Speaker 5: I mean, I have to say, you know, obviously Manchin
• 34:11
  Speaker 5: and Sinema have been a thorn in the White House's
• 34:13
  Speaker 5: side when it comes to legislation, but they have been
• 34:15
  Speaker 5: pretty supportive of the president's judicial nominees. So maybe this is,
• 34:20
  Speaker 5: you know, unwarranted optimism, but I actually feel pretty confident
• 34:24
  Speaker 5: that those meetings are going to go well. But I mean,
• 34:26
  Speaker 5: I think in general, making the personal connection can be helpful.
• 34:29
  Speaker 5: I mean, Justice Kagan promised to go shooting with several
• 34:33
  Speaker 5: senators when they talked about the Second Amendment. So making
• 34:36
  Speaker 5: these kind of personal connections and demonstrating a degree of
• 34:38
  Speaker 5: openness is obviously critical. And I think, you know, Judge Jackson,
• 34:44
  Speaker 5: just watching her confirmation hearing for the D.C. Circuit, it's
• 34:48
  Speaker 5: just like extremely warm and personable. And I feel like
• 34:51
  Speaker 5: those meetings would go very well. I think it's true
• 34:53
  Speaker 5: about Justice Kruger, too. I don't know Judge Child. But, um,
• 34:58
  Speaker 5: But I think that those one-on-one meetings are actually sometimes
• 35:03
  Speaker 5: more substantive. Obviously, there's a kind of choreographed theater quality
• 35:07
  Speaker 5: to the actual hearings that are before the Senate and televised.
• 35:12
  Speaker 5: And so I think there is a chance to obviously
• 35:16
  Speaker 5: have a genuine one-on-one interaction that sometimes can make a difference.
• 35:19
  Speaker 5: I mean, look, famously— now Justice Kavanaugh convinced Susan Collins
• 35:24
  Speaker 5: in that one-on-one hearing that he was open-minded when it
• 35:26
  Speaker 5: came to matters of abortion and Roe. And so, you know,
• 35:29
  Speaker 5: I think that they can make a difference.
• 35:30
  Speaker 2: Obviously, we'll see how. He really snowed her on that one,
• 35:33
  Speaker 2: didn't he? So activists, groups, media, Republicans, everyone will pour
• 35:42
  Speaker 2: over the record of a nominee. What issues do you
• 35:45
  Speaker 2: think will get a lot of attention based on both
• 35:48
  Speaker 2: the people who are potentially on the shortlist and and
• 35:51
  Speaker 2: just the political legal environment that we're in right now?
• 35:55
  Speaker 5: I mean, so it sounds dry, but like administrative power,
• 35:58
  Speaker 5: I think is really kind of an important question. So this,
• 36:00
  Speaker 5: you know, the Supreme Court in right now in a
• 36:03
  Speaker 5: fairly low profile way, but I feel like we, my
• 36:05
  Speaker 5: co-host and I are kind of trying to scream from
• 36:07
  Speaker 5: the rooftops about it. But whether we're talking about actually
• 36:10
  Speaker 5: curtailing the federal government's ability to respond in a meaningful
• 36:13
  Speaker 5: way to the COVID pandemic, or being poised to hobble
• 36:16
  Speaker 5: the Environmental Protection Agency's ability to actually meaningfully respond to
• 36:20
  Speaker 5: climate change. I mean, these are going to be hugely
• 36:23
  Speaker 5: pressing legal questions for this administration, for future administrations. And
• 36:29
  Speaker 5: Justice Breyer was very supportive of the power of the
• 36:32
  Speaker 5: federal government to address hard problems in creative ways and
• 36:36
  Speaker 5: of administrative capacity. And I think that's actually really, really
• 36:39
  Speaker 5: critical that a nominee, that any nominee sort of on
• 36:43
  Speaker 5: the record as supporting, because that's going to be so
• 36:45
  Speaker 5: important going forward. I mean, I also think criminal justice issues,
• 36:48
  Speaker 5: Justice Breyer was fairly moderate in certain respects. So you
• 36:51
  Speaker 5: do have a chance to change the court somewhat by
• 36:53
  Speaker 5: putting forth a nominee who is more protective of the
• 36:56
  Speaker 5: rights of criminal defendants, less generally deferential to police and
• 37:00
  Speaker 5: prosecutors than Justice Breyer sometimes was. And it's also, Justice
• 37:04
  Speaker 5: Breyer was very much a compromiser on issues of religious
• 37:08
  Speaker 5: liberty and kind of religion in the public square. And
• 37:11
  Speaker 5: so it might be possible for the White House to
• 37:13
  Speaker 5: put up a nominee, one of these three that we've
• 37:16
  Speaker 5: been talking about, who might be more concerned about excessive
• 37:19
  Speaker 5: entanglement of government and religion and more concerned about protecting
• 37:23
  Speaker 5: equality interests if they come into conflict with religious exercise claims.
• 37:27
  Speaker 5: And so I think those kinds of issues will probably
• 37:29
  Speaker 5: be front and center too. When it comes to guns, abortion,
• 37:31
  Speaker 5: I mean, I can't imagine a huge amount of distance
• 37:34
  Speaker 5: between any of these nominees and Justice Breyer. Justice Breyer
• 37:37
  Speaker 5: thought government should be able to regulate guns. He was
• 37:39
  Speaker 5: very protective of the right to abortion. He wrote the
• 37:42
  Speaker 5: most important recent abortion cases. And so I think that
• 37:47
  Speaker 5: those issues will come up, but I'm not sure there's
• 37:49
  Speaker 5: going to be much of a difference, except for symbolically
• 37:52
  Speaker 5: having the sort of three liberal justices on the court
• 37:56
  Speaker 5: be three women, two women of color. I think that,
• 37:58
  Speaker 5: you know, and maybe the three of them dissenting in
• 38:00
  Speaker 5: all these cases that we're talking about, Now, the abortion
• 38:02
  Speaker 5: case will probably come down by the end of the term.
• 38:03
  Speaker 5: But look, abortion might be illegal in 26 states by
• 38:07
  Speaker 5: this summer, right? Like this is, we're in a crisis moment.
• 38:11
  Speaker 5: And so, and this won't be the last case. There
• 38:13
  Speaker 5: will be more cases on abortion and contraception care. And
• 38:16
  Speaker 5: so I think that having a liberal bloc that is
• 38:18
  Speaker 5: all women, maybe speaking with one voice, is going to
• 38:21
  Speaker 5: be really, really important. And maybe in particular in focusing
• 38:23
  Speaker 5: the public's attention on the court, which, you know, I
• 38:26
  Speaker 5: really think that the public has been insufficiently attentive to
• 38:30
  Speaker 5: just how much this court is working to change at
• 38:33
  Speaker 5: a breakneck pace. And so I think maybe this could
• 38:37
  Speaker 5: change that dynamic.
• 38:39
  Speaker 2: You've talked about sort of some of the issues where
• 38:42
  Speaker 2: the nominee, potential nominee, may differ with Breyer. Obviously, the
• 38:46
  Speaker 2: nominee won't shift the ideological balance of the court. You know,
• 38:50
  Speaker 2: I'm wondering about sort of the intra-court dynamics. You know,
• 38:55
  Speaker 2: I read that Breyer was considered a pragmatic liberal who
• 38:59
  Speaker 2: did a good job of finding compromise arguments that may
• 39:02
  Speaker 2: have helped sway John Roberts in some cases, like the
• 39:08
  Speaker 2: verdict to uphold Obamacare. Do you agree with that? And
• 39:11
  Speaker 2: do you see the intra-court dynamics changing at all with
• 39:14
  Speaker 2: this nominee?
• 39:16
  Speaker 5: I think every nominee fundamentally changes the dynamics on the court,
• 39:19
  Speaker 5: so I think it's almost inevitable that there'll be some change.
• 39:21
  Speaker 5: And I do think that Pryor was more and less effective,
• 39:25
  Speaker 5: I think, at different points in reaching across the aisle.
• 39:28
  Speaker 5: The problem right now is that... even if you manage
• 39:31
  Speaker 5: to persuade John Roberts, which I think Breyer historically sometimes can,
• 39:34
  Speaker 5: you know, losing with four and losing versus three, you're
• 39:37
  Speaker 5: still losing. And so, but obviously it's important to take
• 39:41
  Speaker 5: the long view with the court. So someone who is
• 39:43
  Speaker 5: a dealmaker and a bridge builder, and I think Elena
• 39:46
  Speaker 5: Kagan is very much that way is going to matter
• 39:50
  Speaker 5: long term because this person, whoever it is, will be
• 39:52
  Speaker 5: on the court for 10, 20, 30, maybe more years.
• 39:56
  Speaker 5: And so I do think that having someone who is
• 39:59
  Speaker 5: able to work in that spirit of building bridges, but
• 40:02
  Speaker 5: also sometimes to scream from the rooftops when building bridges
• 40:07
  Speaker 5: isn't possible and actually getting the public to notice and
• 40:09
  Speaker 5: care what the court is doing is more important than
• 40:11
  Speaker 5: reaching across the aisle to build a bridge. I mean,
• 40:13
  Speaker 5: those are both, I think, important roles that someone in
• 40:16
  Speaker 5: the dissent on a 6-3 court can serve. And so,
• 40:19
  Speaker 5: or someone in the minority on a 6-3 court can serve.
• 40:23
  Speaker 5: And so, you know, I think that sometimes you need
• 40:25
  Speaker 5: to be able to build a bridge and sometimes you
• 40:26
  Speaker 5: need to be able to really scream from the rooftops.
• 40:28
  Speaker 5: And I would hope that the eventual nominee is skilled
• 40:32
  Speaker 5: in both.
• 40:33
  Speaker 2: Sometimes you need to build a bridge. Sometimes you want
• 40:35
  Speaker 2: to light that bridge on fire.
• 40:36
  Speaker 5: I couldn't quite get to the second metaphor.
• 40:39
  Speaker 2: I don't know if you want to.
• 40:40
  Speaker 5: Burn it down, but lighting the fire elsewhere, maybe.
• 40:43
  Speaker 2: You said 10, 20, 30, 40 years, maybe more. I
• 40:48
  Speaker 2: will take maybe more. Let's just, let's get as long
• 40:50
  Speaker 2: as possible. I want decades on this one.
• 40:53
  Speaker 5: I mean, I do know some very good second year
• 40:54
  Speaker 5: law students. So if the White House is really looking,
• 40:58
  Speaker 5: I mean, it is true. Like, you know, these nominees
• 40:59
  Speaker 5: are in their 40s and early 50s and, you know,
• 41:04
  Speaker 5: maybe a maximalist approach would be to go even younger.
• 41:07
  Speaker 5: But I mean, these are jobs where you want someone
• 41:09
  Speaker 5: who has some seasoning and has developed some experience in judgment.
• 41:12
  Speaker 5: So I think the White House is right to be
• 41:13
  Speaker 5: looking at this demographic, you know?
• 41:15
  Speaker 3: Yeah.
• 41:16
  Speaker 2: Anything else you learned from your experience doing Supreme Court
• 41:19
  Speaker 2: nomination fights that you might think would be helpful to
• 41:22
  Speaker 2: the Biden folks?
• 41:23
  Speaker 5: I mean, the one thing I would say that I
• 41:24
  Speaker 5: hope the Biden folks do that I'm not sure that
• 41:27
  Speaker 5: we did particularly well is keep putting up lower court
• 41:30
  Speaker 5: nominees while the Supreme Court fight is ongoing. Because the
• 41:34
  Speaker 5: Biden team has been extraordinary, both in the pace of
• 41:37
  Speaker 5: their nominations and the quality of their nominations and the diversity, right?
• 41:40
  Speaker 5: So Biden has nominated eight Black women to the federal
• 41:43
  Speaker 5: appeals courts. Every president before him combined nominated eight Black
• 41:47
  Speaker 5: women to the federal appeals courts like that. And that
• 41:49
  Speaker 5: is just one data point. So that has been amazing.
• 41:52
  Speaker 5: And yet there are many, many vacancies that need to
• 41:55
  Speaker 5: be filled in this precious space. time remaining between now
• 41:58
  Speaker 5: and the midterms. And so I hope and I do trust,
• 42:01
  Speaker 5: but I guess it's worth saying it's important for the
• 42:03
  Speaker 5: White House to be able to walk and chew gum
• 42:05
  Speaker 5: both to get the Supreme Court nominee confirmed, but to
• 42:08
  Speaker 5: continue to put up the same kind of nominees that
• 42:10
  Speaker 5: they have been for the lower federal courts so that
• 42:13
  Speaker 5: none of those vacancies remain open by the time we
• 42:16
  Speaker 5: get to next fall.
• 42:17
  Speaker 2: That's a very good, very good advice. Kate Shaw, thank
• 42:20
  Speaker 2: you for joining us. We are so excited about Strict
• 42:23
  Speaker 2: Scrutiny joining the Crooked family. Everyone listening right now, go
• 42:27
  Speaker 2: find Strict Scrutiny wherever you get your podcasts. Sign up now,
• 42:29
  Speaker 2: subscribe now, start listening, and then pretty soon it'll be
• 42:33
  Speaker 2: part of the Crooked family. And, you know, we'll have
• 42:36
  Speaker 2: you and newly tenured Leah Littman and Melissa Murray back
• 42:40
  Speaker 2: on Pod Save America and on all kinds of Crooked Pods.
• 42:43
  Speaker 2: just helping us navigate this crazy Supreme Court term and
• 42:47
  Speaker 2: all kinds of other legal issues. So we really appreciate it.
• 42:49
  Speaker 2: We're very excited.
• 42:51
  Speaker 5: So that sounds great. Thanks, John. Great to be here.
• 42:53
  Speaker 5: Take care.
• 43:02
  Speaker 1: All right.
• 43:03
  Speaker 2: Before we go, it is time for yet another round
• 43:07
  Speaker 2: of Take Appreciator with our chief take officer here at
• 43:10
  Speaker 2: Crooked Media, Elijah Cohn. Welcome back, Elijah.
• 43:14
  Speaker 3: Hey, John. Hey, Dan. Welcome back to the Take Appreciators.
• 43:17
  Speaker 3: I'm going to share some notably bad punditry with you.
• 43:20
  Speaker 3: The producers have seen these takes. John and Dan have not.
• 43:22
  Speaker 3: They'll give their reactions and then rate them on a
• 43:24
  Speaker 3: scale of one to four politicos. John and Dan, are
• 43:27
  Speaker 3: you ready?
• 43:29
  Speaker 2: So ready.
• 43:29
  Speaker 3: Born ready.
• 43:31
  Speaker 2: All right.
• 43:31
  Speaker 3: This first one is about Justice Breyer's retirement. It's a tweet.
• 43:35
  Speaker 3: Let's just get right into it. Quote, it's straightforward from here.
• 43:39
  Speaker 3: June 30th, court overturns Roe. July 1st, Breyer resigns, says
• 43:44
  Speaker 3: court needs aggressive progressive justices. July 4th, Biden picks Kamala
• 43:50
  Speaker 3: Harris for the court. Harris resigns as VP. July 5th,
• 43:54
  Speaker 3: Joe Biden picks Mitt Romney as VP, says national unity
• 43:58
  Speaker 3: needed for the world crisis. Fall, this is a bonus,
• 44:01
  Speaker 3: this is a thread, but I had to include the
• 44:03
  Speaker 3: second tweet. Fall, progressives are energized by the bitter Senate
• 44:07
  Speaker 3: fight to confirm Harris and fear state legislative battles over choice.
• 44:11
  Speaker 3: Centrists are reassured by the competent Biden-Romney national unity government.
• 44:16
  Speaker 3: November 8th, Democrats have the best midterm for party in
• 44:20
  Speaker 3: power since 1934. Anyone want to guess the author of that?
• 44:28
  Speaker 2: Dan, you go.
• 44:29
  Speaker 3: I know the author of this because who could miss?
• 44:32
  Speaker 3: This take is impossible to miss. This would be, one,
• 44:36
  Speaker 3: William Crystal? That is correct.
• 44:39
  Speaker 2: That is correct. That might be the perfect take.
• 44:44
  Speaker 3: Yeah, it is 100% for politicos.
• 44:47
  Speaker 2: And I will say that Bill Kristol has been around
• 44:50
  Speaker 2: long enough, and also on the never-Trump side of the
• 44:54
  Speaker 2: aisle long enough, that I am confident he knew exactly
• 44:58
  Speaker 2: what he was doing when he tweeted that. In fact,
• 45:01
  Speaker 2: it may have just been a fun joke or troll
• 45:03
  Speaker 2: in Bill Kristol's head that he decided to let out anyway.
• 45:06
  Speaker 2: I don't think he thinks that's serious. But it was.
• 45:10
  Speaker 2: Once you get to Mitt Romney... That's when the belly
• 45:13
  Speaker 2: laughs start right there.
• 45:15
  Speaker 3: It is a masterful troll of everyone. Oh, you want
• 45:22
  Speaker 3: to be mad? Let's put Kamala Harris on the court.
• 45:24
  Speaker 3: You think you're mad about that? Let's put Mitt Romney
• 45:27
  Speaker 3: on the ticket. I mean, just perfect. It's perfection, I
• 45:30
  Speaker 3: have to say.
• 45:32
  Speaker 2: Something else funny about that take is there was a
• 45:35
  Speaker 2: morning consult poll out yesterday that we probably would have
• 45:38
  Speaker 2: been talking about had Justice Breyer not retired. of the
• 45:43
  Speaker 2: race for the Republican nomination. And I believe Mitt Romney
• 45:45
  Speaker 2: had 1%. The man was the Republican Party's nominee for
• 45:52
  Speaker 2: president in 2012. And now less than 1% of Republicans
• 45:56
  Speaker 2: would vote for him for president. So the idea that
• 45:58
  Speaker 2: Mitt Romney has some constituency on the right that would
• 46:01
  Speaker 2: somehow be like, yeah, Joe Biden picked Mitt Romney for
• 46:04
  Speaker 2: a potential vice president. This is what we're looking for.
• 46:08
  Speaker 3: I don't, I mean, that's just, I mean, it's, it's
• 46:11
  Speaker 3: Sorkin-esque is what I'd say. I mean, it is a
• 46:13
  Speaker 3: West Wing episode embedded into two tweets. It's impressive.
• 46:16
  Speaker 2: Bravo.
• 46:16
  Speaker 3: Oh yeah.
• 46:17
  Speaker 2: So by the way, that's a full, that's a full playbook.
• 46:18
  Speaker 2: I'm giving it a full playbook.
• 46:20
  Speaker 3: I was struggling not to laugh the whole time reading it.
• 46:22
  Speaker 3: It's very sweaty fan fiction.
• 46:26
  Speaker 2: Very sweaty.
• 46:28
  Speaker 3: All right, well, get ready. This next one is a
• 46:30
  Speaker 3: hard turn. This is from a television hit on a
• 46:33
  Speaker 3: major news network about Omicron and COVID vaccines. I'm not
• 46:37
  Speaker 3: going to read it. We get to hear it. So
• 46:39
  Speaker 3: let's hear the clip. Whoa.
• 46:40
  Speaker 2: Wonderful.
• 46:41
  Speaker 3: The mRNA COVID vaccines need to be withdrawn from the
• 46:43
  Speaker 3: market now. No one should get them.
• 46:46
  Speaker 2: No one should get boosted.
• 46:47
  Speaker 3: No one should get double boosted. They are a dangerous
• 46:50
  Speaker 3: and ineffective product at this point against Omicron.
• 46:53
  Speaker 1: So.
• 46:54
  Speaker 3: The mRNA vaccines are dangerous. No one should get boosted.
• 46:59
  Speaker 3: Who was it? And bonus points, what show was it on?
• 47:03
  Speaker 2: I unfortunately saw this clip and I almost left my
• 47:09
  Speaker 2: body because I was so angry. It's Alex Berenson on
• 47:13
  Speaker 2: fucking Tucker Carlson. And we have talked a lot about
• 47:17
  Speaker 2: Fox and right-wing media personalities flirting with the anti-vax movement.
• 47:22
  Speaker 2: This is like just all in. And the idea that
• 47:26
  Speaker 2: there is any evidence whatsoever, anywhere in the fucking world,
• 47:30
  Speaker 2: that the mRNA vaccines are anything but life-saving. Millions of
• 47:36
  Speaker 2: lives saved. No serious side effects anywhere. What the fuck
• 47:42
  Speaker 2: are you talking about? The guy is just wrong in
• 47:45
  Speaker 2: every possible way. And not just wrong, but dangerously so.
• 47:50
  Speaker 2: It is like... Fox should be embarrassed. Of course, they're
• 47:54
  Speaker 2: not going to be embarrassed, but that was pathetic. That
• 47:56
  Speaker 2: is a pathetic, pathetic, pathetic thing. I don't even know
• 47:59
  Speaker 2: if I can give that a rating.
• 48:00
  Speaker 3: I think we can give it an Infowars rating when
• 48:03
  Speaker 3: we get to that point instead of a Politico rating.
• 48:06
  Speaker 2: Wow. Okay. I like that. I like having that out
• 48:09
  Speaker 2: there just in case we need it, the InfoWars rating.
• 48:11
  Speaker 1: Yeah.
• 48:11
  Speaker 3: I mean, I would encourage everyone to read a piece
• 48:13
  Speaker 3: Derek Thompson wrote last year about Alex Berenson that was
• 48:16
  Speaker 3: titled something like America's Most Dangerous Doctor or Most Wrong
• 48:19
  Speaker 3: Doctor or Most Wrong Expert or something like that. It'd
• 48:22
  Speaker 3: be Alex Berenson. Oh, yeah.
• 48:22
  Speaker 2: He's not a doctor. He's not a doctor.
• 48:24
  Speaker 3: Yeah, no. I should not say he's definitely not a doctor.
• 48:27
  Speaker 3: He's a former New York Times reporter.
• 48:29
  Speaker 2: Right.
• 48:29
  Speaker 3: Yeah. Which has made him an expert in science. And
• 48:32
  Speaker 3: he also delivered that on a network which has a
• 48:34
  Speaker 3: vaccine mandate. for its employees. Fox News.
• 48:37
  Speaker 2: Yeah.
• 48:37
  Speaker 3: I mean, I think a lot of people saw that
• 48:39
  Speaker 3: and were like, how? I mean, we see them toe
• 48:41
  Speaker 3: the line on vaccine rhetoric all the time. How does
• 48:43
  Speaker 3: something like that get to stay out there and they
• 48:46
  Speaker 3: don't face any kind of punishment?
• 48:48
  Speaker 2: Wild.
• 48:49
  Speaker 5: All right.
• 48:50
  Speaker 3: Do you guys want to give it an InfoWars rating? Yeah.
• 48:53
  Speaker 2: Oh, yeah. That gets our very first InfoWars rating.
• 48:56
  Speaker 3: Okay, great.
• 48:58
  Speaker 2: Settled.
• 48:58
  Speaker 3: Stamped.
• 49:00
  Speaker 2: All right.
• 49:00
  Speaker 3: Well, last one. I'm going to take you behind the
• 49:02
  Speaker 3: scenes here at Crooked Media. In our Pod Save America
• 49:06
  Speaker 3: production meeting yesterday, Dan was sad that he missed out
• 49:09
  Speaker 3: on Bitchgate, where Joe Biden was asked by Fox reporter
• 49:13
  Speaker 3: Peter Doocy if inflation was a political liability. And Biden
• 49:16
  Speaker 3: responded sarcastically by saying, it's a great asset, more inflation.
• 49:20
  Speaker 3: What a stupid son of a bitch. Don't worry, Dan,
• 49:24
  Speaker 3: we've got takes on this incident. Perfect. Here's a tweet. Quote,
• 49:29
  Speaker 3: I want Biden to say something that might make a
• 49:31
  Speaker 3: swing voter who's concerned about inflation feel better instead of
• 49:34
  Speaker 3: something that entertains partisan Twitter addicted Democrats who like seeing
• 49:38
  Speaker 3: a reporter from Fox bitch slapped. Any guesses as to
• 49:41
  Speaker 3: whose take that is? Is that Josh Barrow? Yes, it
• 49:46
  Speaker 3: is Josh Barrow. Well done. Can we just have this one,
• 49:49
  Speaker 3: Josh Barrow? It's been a tough month for us. We
• 49:53
  Speaker 3: didn't get Build Back Better. We didn't get voting rights.
• 49:56
  Speaker 3: Manchin and Simmer screwed everything up. Joe Biden's approval ratings
• 49:59
  Speaker 3: aren't going great. Fox is annoying. Peter Doocy is annoying.
• 50:02
  Speaker 3: We just have this moment. We just have this one
• 50:04
  Speaker 3: moment of... Peter Doocy getting smacked around by Joe Biden.
• 50:08
  Speaker 2: That's all we want.
• 50:09
  Speaker 3: We're not making it our message for the midterm. We're
• 50:11
  Speaker 3: not putting it on billboards. It's not going to a
• 50:13
  Speaker 3: TV ad. We're just going to fucking enjoy it for
• 50:15
  Speaker 3: one second without some internet contrarian coming after us to
• 50:19
  Speaker 3: shame us for it.
• 50:22
  Speaker 2: I will say one thing that will probably make me
• 50:23
  Speaker 2: a little unpopular with our listeners. I like a lot
• 50:26
  Speaker 2: of Josh Barrow's takes. I think he's very smart. Also,
• 50:30
  Speaker 2: I would be upset if Joe Biden did make a
• 50:32
  Speaker 2: comment that seemed to minimize the the problem of inflation. But,
• 50:38
  Speaker 2: and I said this on Monday's pod, he didn't do that.
• 50:41
  Speaker 2: That wasn't the comment. The comment wasn't minimizing the problem
• 50:44
  Speaker 2: of inflation. It was saying, he basically was mumbling, of course,
• 50:48
  Speaker 2: fucking inflation is a problem and a political problem for me.
• 50:52
  Speaker 2: Like he's had this like very facetious comment where he's like, yeah,
• 50:55
  Speaker 2: bad inflation, real asset for me, you know, or something
• 50:58
  Speaker 2: like that. Like he wasn't talking, he wasn't minimizing inflation
• 51:02
  Speaker 2: at all. Um, and again, it's like, it's a funny
• 51:07
  Speaker 2: hot mic moment where he calls him a son of
• 51:09
  Speaker 2: a bitch. It's not going to end the fucking world.
• 51:11
  Speaker 2: Bigger things to complain about.
• 51:12
  Speaker 5: Yeah.
• 51:13
  Speaker 3: I mean, I don't know whether Peter Doocy is stupid
• 51:17
  Speaker 3: or he plays stupid on TV like most people who
• 51:19
  Speaker 3: work for Fox do, but it was a totally fair comment.
• 51:22
  Speaker 3: I'm sorry. And we should know Joe Biden called and
• 51:25
  Speaker 3: apologized because he is Joe Biden and he is a
• 51:28
  Speaker 3: nice guy and he felt bad about it.
• 51:31
  Speaker 2: Yeah, which is great. Everyone's happy. Peter Doocy can continue
• 51:35
  Speaker 2: to ask stupid questions at the briefing room.
• 51:38
  Speaker 3: Do you guys think that presidential press conferences are effective
• 51:43
  Speaker 3: ways to message to swing voters?
• 51:47
  Speaker 5: No.
• 51:47
  Speaker 2: No, we do not. No, I do not. Unless, I mean,
• 51:52
  Speaker 2: I guess there are effective ways to message to swing voters.
• 51:54
  Speaker 2: If a reporter asks you a question, you ignore the
• 51:57
  Speaker 2: entire question, and then you just deliver the message that
• 51:59
  Speaker 2: you'd want to deliver if you were in a swing district.
• 52:03
  Speaker 2: That is the only way that there are effective ways
• 52:05
  Speaker 2: to deliver messages to swing voters.
• 52:07
  Speaker 3: They are a constituency management tool. It's like meeting with
• 52:11
  Speaker 3: members of Congress. Unfortunately, it has to happen on live television.
• 52:14
  Speaker 3: Politico rating?
• 52:17
  Speaker 2: I'm going to give it two. Yeah, I was going
• 52:19
  Speaker 2: to say two. I don't think he was even trying
• 52:22
  Speaker 2: that much to troll people. It only gets it two.
• 52:26
  Speaker 3: It's no Bill Kristol, I'll tell you that, right?
• 52:28
  Speaker 2: No, Bill Kristol had the take of the week. The
• 52:30
  Speaker 2: take of the week, for sure. All right, well, that's
• 52:33
  Speaker 2: take appreciator. Elijah, thank you as always for just giving
• 52:36
  Speaker 2: us the best worst takes of the week. We appreciate that.
• 52:42
  Speaker 2: And thank you to Kate Shaw for joining us from
• 52:44
  Speaker 2: Strict Scrutiny, soon to be part of their Crooked Media family.
• 52:47
  Speaker 2: We're very excited. And everyone have a good weekend, and
• 52:50
  Speaker 2: we will see you next week. Bye, everyone. Pod Save
• 52:57
  Speaker 2: America is a Crooked Media production. The executive producer is
• 53:00
  Speaker 2: Michael Martinez. Our senior producer is Andy Gardner Bernstein. Our
• 53:04
  Speaker 2: producer is Haley Muse, and Olivia Martinez is our associate producer.
• 53:08
  Speaker 2: It's mixed and edited by Andrew Chadwick. Kyle Sedlin is
• 53:11
  Speaker 2: our sound engineer. Thanks to Tanya Somanator, Sandy Gerard, Hallie Kiefer,
• 53:15
  Speaker 2: Madison Holman, and Justine Howe for production support. And to
• 53:18
  Speaker 2: our digital team, Elijah Cohn, Phoebe Bradford, Milo Kim, and
• 53:21
  Speaker 2: Amelia Montooth. Our episodes are uploaded as videos at youtube.com
• 53:26
  Speaker 2: slash crookedmedia.