Speaker 1: Hi, I'm Molly John Fast and this is Fast Politics,
Speaker 1: where we discussed the top political headlines with some of
Speaker 1: today's best minds and Marjorie Taylor Green mark September eleventh
Speaker 1: by suggesting Red States seceed from the US and calling
Speaker 1: President Biden a trader. We have such a great show
Speaker 1: for you today. The Texas Tribunes Patrick spy Tech stops
Speaker 1: by to tell us all about Texas Attorney General Ken
Speaker 1: Paxton's impeachment hearing and the comic relief it has provided us.
Speaker 1: Then we will talk to Brennett Center for Justices Michael
Speaker 1: Waldman about all the fuckery and the Supreme Court. But
Speaker 1: first we have the author of the Big Lie pod
Speaker 1: Save Americas, Dan Pfeiffer. Welcome back to Fast Politics.
Speaker 2: Dan, good to be here.
Speaker 1: We needed you asap and I was literally like, this
Speaker 1: is an emergency. This is a Dan emergency, and you
Speaker 1: were writing about it, and you were talking about it,
Speaker 1: and you were you about it, and you've also been here before.
Speaker 1: So we are going through the worst news cycle ever,
Speaker 1: which is the national polls have Biden close to Trump
Speaker 1: news cycle. Biden must drop out discuss well, I actually was.
Speaker 3: This has caused me to think back to a very
Speaker 3: dark period of time in my life, which was this
Speaker 3: exact period in twenty eleven when Barack Obama was in
Speaker 3: a tie with the generic Republican in public polling but
Speaker 3: losing to a generic Republican and are much more precise
Speaker 3: and better internal campaign polling DC. We didn't freak out
Speaker 3: at the same level back then because twenty sixteed had
Speaker 3: not yet happened, but people were freaking out. Doug shown
Speaker 3: in Pat Caddell to one time Democratic polsters wrote in
Speaker 3: up ed in The Wall Street Journal calling on Barack
Speaker 3: Obama to drop out in favor of the much more
Speaker 3: electable Hillary Clinton, which is something that has amazing The
Speaker 3: main argument in that was it a Hiler Clip was
Speaker 3: more electable, would be that Republicans liked her better, so
Speaker 3: they'd be more willing to work with her if she
Speaker 3: was elected president than Obama.
Speaker 1: Wait, I just fainted. I'm sorry.
Speaker 3: Yeah, I mean, it's really an artifact of its time.
Speaker 3: But so this is not an unusual situation. In fact,
Speaker 3: Chris Hayes pointed this out on his show last week,
Speaker 3: that Reagan was tied with Mondale at this exact point
Speaker 3: in his presidency and Clinton was tied with Dole at
Speaker 3: this exact point that president's see and so there is
Speaker 3: precedent for incumbent presidents being in this polling position than
Speaker 3: winning in fact, quite large landslide victories like Reagan who
Speaker 3: ended up winning forty nine states. I always want to
Speaker 3: find a way into situations like us to fit somewhere between.
Speaker 3: You don't want to be complacent about it, because there
Speaker 3: are some real warning signs here that all of us
Speaker 3: should take heat of, but also not panicking because we're
Speaker 3: fourteen months out from the election and we've been here before.
Speaker 1: Tell me what the warning signs are.
Speaker 3: If you look at the polls right now, there are
Speaker 3: three or four things that I think are worth otting.
Speaker 3: One is Joe Biden's age is a big concern. It
Speaker 3: is a big concern for a lot of voters. Now,
Speaker 3: is that a solible concern? You would like to think so,
Speaker 3: you know, he will have fourteen months to prove that
Speaker 3: he is doing the job well now it can continue
Speaker 3: to do it for four years. And how he performs
Speaker 3: on the campaign trail, particularly in high leverage moments like debates,
Speaker 3: in convention speeches and stay of the union will go
Speaker 3: a long way there. So that's point one. Point two
Speaker 3: is that and Nay codn wrote a really good piece
Speaker 3: of all the starchives, is that Joe Biden is currently
Speaker 3: underperforming with voters of color, particularly black voters and Latino
Speaker 3: voters without a college education. There is not really a
Speaker 3: path to an electoral college victory without improving on where
Speaker 3: he is today. He doesn't have to get to where
Speaker 3: Barack Obama was in twenty twelve or two thousand and eight,
Speaker 3: but he's got to be doing better than next is
Speaker 3: young voters. Biden is struggling with young voters, and the
Speaker 3: biggest issue is not someone is not that they're going
Speaker 3: to vote for Trump, that is not happening, but that
Speaker 3: they are either expressing significant openness to a third party
Speaker 3: candidate or are stating as of right now that they
Speaker 3: will not vote if the choice is Biden indro And
Speaker 3: even among voters twenty five to thirty nine in the
Speaker 3: New York Times poll, sixteen percent of them would either
Speaker 3: not vote or vote for someone other than Joe Biden.
Speaker 1: And that is where a Green Party can today. Yes,
Speaker 1: like Cornew West, who's camp, who's my first cousin, Peter
Speaker 1: dw who I recently unfollowed on Twitter is working for
Speaker 1: and he will suck up that vote.
Speaker 3: Yeah. In fact, there's an Emerson College poll of Iowa
Speaker 3: that is out today, you know, sometime this week came
Speaker 3: out this week that where Cornell West is getting five
Speaker 3: percent of the vote and for that for those five
Speaker 3: points are coming away coming from Biden. Now does that
Speaker 3: matter in Iowa? No, I don't think four points is
Speaker 3: going to be the difference in Iowa. But you know
Speaker 3: one point is a difference in six states.
Speaker 1: Right, So tell me what are the reasons to feel
Speaker 1: like we shouldn't drive the car off the road and
Speaker 1: end it all?
Speaker 3: I mean, the reasons we should drive the car to
Speaker 3: be hyperbolic Arnie, Right, Robbian, That's basically where a lot
Speaker 3: of people are right now is as they're freaking out,
Speaker 3: they are looking for other candidates. They're lamenting wh I
Speaker 3: know and ran against Biden. Here's the thing. You have
Speaker 3: to look at these polls this far out not as
Speaker 3: a prediction of the election, but a roadmap of how
Speaker 3: you get to where you want to be on election.
Speaker 3: And I believe that this will be an incredibly close election.
Speaker 3: You know, my tortured, tired metaphor is that we should
Speaker 3: prepare as if this election will be decided across four
Speaker 3: or five states by fewer people than attended a Tailor
Speaker 3: Swift concert. Like that's how it is, right, It was
Speaker 3: sixty thousand and forty thousand people this time, sixty thousand
Speaker 3: people the time before. This is going to be incredibly close.
Speaker 3: You would probably rather be I think in that scenario,
Speaker 3: Joe Biden, as we see here today, is the slightest
Speaker 3: of favorites in that essentially coin flip with Trump, and
Speaker 3: that for a couple of reasons. One incompacy matters. It
Speaker 3: is a huge advantage.
Speaker 1: And that's one of the reasons that Republicans really want
Speaker 1: by now, is because they'd rather have someone who's not
Speaker 1: the incumbent.
Speaker 3: They would rather have twenty nine Democrats averaging each other
Speaker 3: for the next six months as opposed to Joe Biden
Speaker 3: spending you know, taking these polls and we're all freaking
Speaker 3: out about I imagine since the Biden campaigns on the
Speaker 3: air and the primary Biden superback us on the air,
Speaker 3: their polls say something similar to what we're seeing publicly,
Speaker 3: and they so they now they know we have fourteen
Speaker 3: months to bring these bring the Biden coalition back into
Speaker 3: the fold to rebuild the majority that one in twenty
Speaker 3: twenty and one in twenty twenty two. That is a
Speaker 3: much prefer for You'd rather be doing that than either
Speaker 3: Biden being challenged by someone and running around Iowa, New
Speaker 3: Hampshire for the next few months or this free for
Speaker 3: all battle. I mean, does anyone want to revisit the
Speaker 3: twenty twenty Democratic primary?
Speaker 1: Republicans?
Speaker 3: Right?
Speaker 1: Exactly?
Speaker 3: None of us do, right, And so that's one. Two
Speaker 3: we don't really know, and I think this is why
Speaker 3: we all need to bring some significant humility to using
Speaker 3: past precedent and how we talk about these things is
Speaker 3: we just don't know how much things have changed over
Speaker 3: the last election or two because of sort of the
Speaker 3: rise of magic extremism, sort of a hyper speeding up
Speaker 3: of polarization since twenty sixteen, and the pandemic. And so
Speaker 3: reason number two that you would feel good or slightly
Speaker 3: better about Biden is the economy as it looks today,
Speaker 3: for as unhappy as people are about it, and there
Speaker 3: are some sciences that people are starting to feel a
Speaker 3: little bit better, is consistent with the sort of economy
Speaker 3: that incumbents get reelected. It Now, obviously the polling shows
Speaker 3: that Biden has to do a lot to convince people
Speaker 3: about what he's done to take advantage of that. But
Speaker 3: that is there. And you'd much rather be running for
Speaker 3: reelection in an economy with historically low unemployment, wages that
Speaker 3: are creeping up, in costs that are creeping down, and
Speaker 3: an economy that's growing than the opposite, right, And that
Speaker 3: seemed like the opposite seemed like a real possibility six
Speaker 3: or nine months ago. And the map is slightly more
Speaker 3: favorable to Biden. Right. The states that Biden needs to win,
Speaker 3: the six battleground states, with the exception of twenty sixteen,
Speaker 3: voted for Democrats most of the time, are particularly Arizona
Speaker 3: and Georgia, are trending demographically in a more blue direction,
Speaker 3: and they performed well in twenty twenty two. And that's
Speaker 3: a very positive sign because that means that there was
Speaker 3: not a lot of times you see states like oh,
Speaker 3: you know, Obama one Indiana and North Carolina in two
Speaker 3: thousand and eight, and those states immediately snapped back Republican
Speaker 3: right afterwards, and that did not happen in Georgia, Arizona.
Speaker 3: They re elected Democrats in the midterms and what should
Speaker 3: have been a very tough election of Democrats fighting just
Speaker 3: simply has more paths to two seven. So he has
Speaker 3: structural advantages that you don't see in the polls. But
Speaker 3: the thing here is that this is we all just
Speaker 3: have to recognize, and I think a lot of people
Speaker 3: are coming to terms with it now because these polls
Speaker 3: are out, is that Donald Trump can absolutely win this selection.
Speaker 3: He absolutely can. He can do it with ninety one
Speaker 3: and felony indictments. He can do it with several felony
Speaker 3: convictions if he's not serving from prison. That is the reality.
Speaker 3: And I think a lot of people really hoped that
Speaker 3: one he could not win after everything he did, and
Speaker 3: then that we would not live in a country where
Speaker 3: a man with ninety one felony indictments related to trying
Speaker 3: to violently overturn an election and steel classified documents could
Speaker 3: be a flip from the presidency. And that's sort of
Speaker 3: where we are. That's probably where we always were, just
Speaker 3: now we've now we're now we're aware of it.
Speaker 1: I want to take you back for a minute and
Speaker 1: just talk about how unprecedented it would be to remove
Speaker 1: an incumbent president from office and have a primary contest
Speaker 1: right now. I mean there is no roadmap for this.
Speaker 1: Talk about that for a minute, yeah.
Speaker 3: I mean you mean removed as if for Biden, for
Speaker 3: someone to try to take on Biden and beat him.
Speaker 1: Right it says, well, you know, he's overperformed in the
Speaker 1: midterms in twenty twenty, we've seen these special elections. He's overperformed.
Speaker 1: But because he's three years older than Trump, let's do
Speaker 1: a full primary contest.
Speaker 3: Jonathan Chait in New York Magazine wrote this piece over
Speaker 3: the weekend that was sort of like, why hasn't a
Speaker 3: mainstream Democrat challenged by not RFK Junior or Mary Williamson,
Speaker 3: but someone like Keavin Newsom, JB. Prisker, Kreshian Witmer, Elizabeth Warren,
Speaker 3: Bernie if someone who has a credible case to actually
Speaker 3: win a Democratic primary. And the reason these people have
Speaker 3: not done it because they all want to be president,
Speaker 3: some of them have run for president before, some of
Speaker 3: them will certainly run for president in the future, is
Speaker 3: that they would almost certainly lose, almost certainly lose Joe Biden.
Speaker 3: For all of everyone's panic and worry and talks about
Speaker 3: how he's how you know, the need for a Promray
Speaker 3: and all of that is Joe Biden is, and this
Speaker 3: is I think this would blow people away because we
Speaker 3: talk about Trump as if he is the cult leader
Speaker 3: who can lead Republicans off a cliff. Right now, in
Speaker 3: the polls, Donald Trump's approb rating among Republicans is seventy
Speaker 3: seven percent. Joe Biden's approble rating among Republicans, and the
Speaker 3: New York Times well was also seventy seven percent.
Speaker 1: That is unbelievable.
Speaker 3: Yes, so, and you're seeing on the Republican side how
Speaker 3: hard it is to run a primary campaign against someone
Speaker 3: who nearly eight and ten party members like you wouldn't
Speaker 3: win that race. I don't think any of these people
Speaker 3: could beat Joe Biden. That's why they're not running. And
Speaker 3: they're not running because no one wants to lose. If
Speaker 3: you lose, your career is probably over. But also, people
Speaker 3: have a belief, based on history, that a primary challenge
Speaker 3: makes it more likely that the combent will lose in
Speaker 3: the general election. We believe that because and I will
Speaker 3: stipulate that every presidential election analogy suffers from a small
Speaker 3: sample sized problem. But the three incumbents have lost reelection
Speaker 3: in modern American history. Two of those three, Jimmy Carter
Speaker 3: and George Wish did so after a very divisive ideological
Speaker 3: primary challenge. The only one who did was Donald Trump,
Speaker 3: who brought his own set of promos to the table.
Speaker 3: But so this belief is if you challenge, you probably
Speaker 3: can't beat Biden. And if you try, then you will
Speaker 3: probably make it more likely that Trump wins. And no
Speaker 3: one who cares about the country, cares, or even cares
Speaker 3: about their own political career would do such a thing.
Speaker 1: Yeah. I think that's a really important data point that
Speaker 1: those people who are having anxiety attacks need to remember,
Speaker 1: is that this is not doable. The thing that I
Speaker 1: keep thinking about is this idea that like, we've spent
Speaker 1: so much time obsessing about polls. I mean, you'll remember,
Speaker 1: right before the mid terms, we were told that Republicans
Speaker 1: were going this is going to be the biggest Republican
Speaker 1: blowout ever. I just don't really trust polls. Of is
Speaker 1: this my moral failing discuss.
Speaker 3: No, it's I don't think it's a moral failing on.
Speaker 3: I think if someone wants to say I don't care
Speaker 3: about polls, this far out for because polls have been
Speaker 3: wrong a lot of times recently, and they change a lot.
Speaker 3: And I just gave you know earlier in this three
Speaker 3: examples of incumbent presidents who won reelection with relatives who
Speaker 3: were at this exact same place in the polls, and
Speaker 3: that's probably a healthy way of going about life. My
Speaker 3: argument is we should look at polls seriously, not The
Speaker 3: point here is not that Joe Biden is up by
Speaker 3: one or he's down by one. What the polls tell
Speaker 3: us are this is going to be a close race.
Speaker 3: The Trump's legal problems are not going to be a
Speaker 3: deal breaker for a large part of his electorate. Biden
Speaker 3: has some real work to do to rebuild his coalition
Speaker 3: to be able to win. He's underperforming with people that
Speaker 3: he got in twenty twenty. He's got to fix that.
Speaker 3: And he absolutely can win. And there's no evidence in
Speaker 3: the pulse that either that Biden can't win or that
Speaker 3: some other person would be necessarily be better than because
Speaker 3: Biden's electibility argument is quite strong because he beat Donald
Speaker 3: Trump last time, and then, as you pointed out, in
Speaker 3: every political test since then, Democrats have done well with
Speaker 3: him at the top of the ticket. So that makes
Speaker 3: it even another reason why it'd be hard for someone
Speaker 3: else to come in and try to make the opposite case.
Speaker 3: The thing I will say about twenty twenty two because
Speaker 3: a lot of people have responded these poles saying, well,
Speaker 3: the polls predicted a red wave that didn't come, and
Speaker 3: so the polls must be missing something post Dobs that
Speaker 3: Dobbs awakened, which Dobbs definitely did awaken political movement in
Speaker 3: this country. But if you really go back and look
Speaker 3: at the poles in twenty twenty two, they actually were
Speaker 3: historically accurate. The problem was the analysis of the red wave.
Speaker 3: The problem is analytical, not mathematical. Everyone looked at the economy,
Speaker 3: the map, history, Joe Biden's approval ratings, and then believed
Speaker 3: that the red wave would happened anyway, even though the
Speaker 3: polls were quite close. If you want to ignore the poles,
Speaker 3: ignore them. If you want to look at them and
Speaker 3: pay attention to them, you should not find ways to
Speaker 3: dismiss them to fit our more desired narrative. Because I
Speaker 3: think the polls do paint an accurate picture of where
Speaker 3: this race is today, and they offer us a road
Speaker 3: wrap on how to get it where we want it
Speaker 3: to be. Fourteen months from now.
Speaker 1: Let's talk about a Republican who is helping the Democrats
Speaker 1: right now. His name is Kevin McCarthy.
Speaker 3: Yes, yes, yes, yes, and.
Speaker 1: He is ready to impeach Joe Biden for dot dot
Speaker 1: dot dot.
Speaker 3: Oh, he's going to find out eventually, he's.
Speaker 1: Going to find out. But let's talk about this. The
Speaker 1: thing I am struck by is Nancy Belosi was anxious
Speaker 1: about impeaching Trump because she remembered nineteen ninety eight eight. Obviously,
Speaker 1: Kevin McCarthy does.
Speaker 3: Not or remember twenty eighteen or twenty nineteen.
Speaker 1: Tell me your hot take on what is happening here.
Speaker 3: Kevin McCarthy is throwing everything against the wall that he
Speaker 3: possibly can to save his job. Kevin McCarthy is putting
Speaker 3: I mean not to mention in sort of the integrity
Speaker 3: of our fundament of our governing system at stake, but
Speaker 3: he's putting his majority and the Republican Party's chances in
Speaker 3: the twenty twenty four presidential election at risk, or to
Speaker 3: keep his own job. Because you know, as the reason Ny,
Speaker 3: Nancy post was exactly right to be nervous about embarking
Speaker 3: on peachment. It was the morally correct thing to do,
Speaker 3: and I think Democrats would have suffered if they had
Speaker 3: walked away from that moral obligation. But politically, Donald Trump's
Speaker 3: numbers went up during impeachment, and I my suspicion is
Speaker 3: that Republicans continue to go down this path, that Joe
Speaker 3: Biden's numbers will go up in part because he's underperforming
Speaker 3: with people who like him and voted for him before.
Speaker 3: And so what more, what is you know? I it'd
Speaker 3: be hard to imagine a better way that to bring
Speaker 3: Democrats home to Biden than a Marjorie Taylor Green ordered
Speaker 3: in Peachman inquiry over nothing.
Speaker 1: Yeah, it does seem incredible. I would also want to
Speaker 1: point out Republicans have this House of Representatives by four seats.
Speaker 1: It seems like there's a Santos Plea deal in the works,
Speaker 1: so that would mean a special in a Biden knee district.
Speaker 1: McCarthy is also talking about something that makes a party
Speaker 1: wildly popular, a government shutdown discuss.
Speaker 3: Well, I mean the original Kevin McCarthy. I mean, I
Speaker 3: really think he is one of the dumbest human beings
Speaker 3: to ever serve in a position of high political leadership
Speaker 3: of the United States. And that's saying a lot because just
Speaker 3: all the ways in which he screwed this up. Are
Speaker 3: serve unbelievable. His original the only original reason he opened
Speaker 3: the impeachment can of worms was to keep the government open,
Speaker 3: because he was going to go to the far right
Speaker 3: and say, look, I know you're you don't want to
Speaker 3: vote to keep the government open, but if you have
Speaker 3: to do that, because otherwise we have to shut down
Speaker 3: this in peachment in query, you care so much about it,
Speaker 3: Except Kevin McCarthy either didn't realize didn't think the MAGA
Speaker 3: Republicans read the fine print. Because the impeachment query does
Speaker 3: not have to shut down. If they shut down the government,
Speaker 3: one person in the House Representives gets to decide what
Speaker 3: stays open to what doesn't, and that person is Kevin McCarthy,
Speaker 3: and so they can pressure him to do that. Just
Speaker 3: think about how this plays out. Right, They embark on
Speaker 3: this impeachmenticquarerer, they hold high profile hearings, they go looking,
Speaker 3: they find nothing, and so they don't even hold the vote,
Speaker 3: which seems like a pretty good talking point for Biden
Speaker 3: when he's pushing back on Republican accusations of corruption and
Speaker 3: a hunter bullshit or whatever else. Or they hold a vote,
Speaker 3: vote fails, seems even worse for Republicans. Hold the vote
Speaker 3: passes on a party line vote over nothing, and that
Speaker 3: also helps Biden, as it probably helped Trump in twenty twenty.
Speaker 3: And there are nineteen, maybe eighteen, if George Santos Hesseliva's seat,
Speaker 3: nineteen Republicans in Biden's seats, and those nineteen Republicans have
Speaker 3: to decide between voting to impeach Joe Biden. And they're
Speaker 3: going to need to get people who vote Biden at
Speaker 3: the top of the ticket to vote for them to
Speaker 3: keep them in the House or vote against impeachment, or
Speaker 3: walk away from impeachment and repose it and infuriate the
Speaker 3: Republican basis turnout. They also there is no way in
Speaker 3: which this turns out well for Kevin mcarthy. He is
Speaker 3: just in galaxy, braided himself into a corner.
Speaker 1: Yeah all right, well, I like it, love to see it.
Speaker 1: Thank you so much, Dan for joining us.
Speaker 3: Of course, happy to do it as always.
Speaker 1: Patrick's Vitech is a political correspondent at the Texas Tribune.
Speaker 1: Welcome to Fast Politics, Patrick cevi Tech, Thank you so
Speaker 1: much for having me, so delighted to have you. You
Speaker 1: are covering what is perhaps not the trial of the century,
Speaker 1: but in my mind it is so explain to our
Speaker 1: listeners a little bit about what this trial is, how
Speaker 1: it came into being, and whatever backstory you want to
Speaker 1: give us.
Speaker 3: Yeah.
Speaker 4: So this is the Texas Senate impeachment trial of Ken Paxton,
Speaker 4: who is currently the suspended Attorney General of Texas. The
Speaker 4: state House voted to impeach him in and the way
Speaker 4: it works in Texas is once the House votes to
Speaker 4: impeach you, you're immediately suspended from office. And so this
Speaker 4: Senate trial will determine whether he is permanently removed from office.
Speaker 4: The governor has appointed in term attorney General in the meantime,
Speaker 4: but this Senate trial is all about the whether Ken
Speaker 4: Paxton will be permanently removed from office. He faced twenty
Speaker 4: articles of impeachment in the House. Much of the case
Speaker 4: against him goes back to twenty twenty, when several of
Speaker 4: his top deputies at the time reported him to the
Speaker 4: FBI and reported concerns they had about his relationship with
Speaker 4: a man named Nate Paul, who is at the time
Speaker 4: was an Austin real estate investor and in twenty eighteen
Speaker 4: had been a kind of mid level campaign donor to
Speaker 4: Ken Paxton, and the allegations basically boiled down to Paxton
Speaker 4: and Paul got too close, and there's alleged bribery in
Speaker 4: that relationship. There is an alleged extramarital affair between Paxton
Speaker 4: and a woman that is also tied up in that
Speaker 4: relationship with Nate Paul, and so much of the case
Speaker 4: we're hearing against Paxton does center on that relationship that
Speaker 4: was reported to the FBI in twenty twenty by those
Speaker 4: former copy deputies in his office.
Speaker 1: Okay, I want to stop you and go back for
Speaker 1: a minute. Is Texas estate where Republicans, where one party
Speaker 1: impeaches the age of that same party, or now give
Speaker 1: us this sort of backstory here.
Speaker 4: This is unprecedented in that it's an impeachment of the
Speaker 4: attorney general. We've never had an impeachment of the attorney
Speaker 4: general before. This is just the third time that we're
Speaker 4: having an impeachment trial in Texas's one hundred and fifty
Speaker 4: year plus history.
Speaker 3: So it is a very historic moment.
Speaker 4: You know, it is the first trial I think we've
Speaker 4: had in more than a quarter of a century. There's
Speaker 4: very high stakes here, and I think that we have rarely,
Speaker 4: if not seldom, in modern political history in Texas have
Speaker 4: we seen the ruling party try to hold one of
Speaker 4: their own accountable like this. It is just that politically
Speaker 4: is just un her model political history in Texas.
Speaker 1: Yeah. Now let's talk about Ken Paxton's wife, Angela Paxton.
Speaker 1: She is a Texas State Senator but cannot vote in
Speaker 1: these proceedings. Just explain to me a little bit. This
Speaker 1: seems like this marriage might be in trouble.
Speaker 4: Well, the way that the two of them tell it,
Speaker 4: or the way that the people close to them tell it.
Speaker 4: You know, Ken Paxton confessed to this affair to his
Speaker 4: top aides back in late twenty twenty. Angela Paxton, his wife,
Speaker 4: was at his side at the time that he did that.
Speaker 4: And I believe that they have since then tried to
Speaker 4: present a united front. And I know that you know,
Speaker 4: to a lot of people that feels unnatural and awkward,
Speaker 4: but it does seem like something that they have worked
Speaker 4: out in their marriage. Of course, this trial is putting
Speaker 4: all these really painful details back on full display, and
Speaker 4: so I don't want to claim to have any insight
Speaker 4: into the state of their marriage as of this moment,
Speaker 4: right because this is a very painful experience for both them,
Speaker 4: and I assume especially for her.
Speaker 1: But sort of more importantly, they've stayed married.
Speaker 4: They have stayed married, and they did both appear at
Speaker 4: a political event in their home county on the Saturday
Speaker 4: before this trial started, and you know, in my view,
Speaker 4: made a very deliberate show of affection and made a
Speaker 4: point of appearing jointly at that event and embracing one
Speaker 4: another and showing that they were a united front going
Speaker 4: into this.
Speaker 1: And again, she cannot vote in these proceedings because I
Speaker 1: guess of her marital status or her involvement in this story.
Speaker 1: But she is a member of the body that will
Speaker 1: vote to remove him.
Speaker 3: That is correct.
Speaker 4: Yeah, she has been a state senator since, oh, I
Speaker 4: believe twenty seventeen, twenty eighteen, in this Senate, and there
Speaker 4: was when the Senate passed the trial rules back in June.
Speaker 4: They passed a recusal rule that didn't mention her by name,
Speaker 4: but basically said, anybody who's a spouse of a party
Speaker 4: the impeachment who serves in this chamber cannot vote in it,
Speaker 4: but they can't attend. And under my reading of the
Speaker 4: law and constitution, they have to attend. There is a
Speaker 4: I believe it's either in the state law or in
Speaker 4: the state constitution that during an impeachment proceeding in the Senate,
Speaker 4: every senator has to be present. And so the Rules
Speaker 4: Committee in the Senate, the committee that was coming up
Speaker 4: with these rules, was kind of in this unenviewable position
Speaker 4: because there was such a glaring conflict of interest in
Speaker 4: their ranks. But at the same time, you know, I
Speaker 4: think the law requires that each thirty one senator has
Speaker 4: to be there.
Speaker 1: I want to pull back from and talk about Ken
Speaker 1: Paxton's role in Trump world. He was sort of the
Speaker 1: most trumpy aga. Can you talk about some of the
Speaker 1: ways in which he expressed his undying field date to Trump.
Speaker 4: Yeah, he actually was, you know, to take it even
Speaker 4: farther back, he was actually in the twenty sixteen presidential
Speaker 4: election cycle. You know, he was, I believe, a line
Speaker 4: with Ted Cruise until you know, the summer of twenty sixteen,
Speaker 4: you know, and he was actually, you know, I think
Speaker 4: among statewide office holders one of the people who held
Speaker 4: out longer back then. I mean, you know, Texas was
Speaker 4: still Ted Cruz country back then. Ted Cruz was probably
Speaker 4: a bigger star in Texas back then than he is
Speaker 4: today in terms of the Republican primary electorate. Paxton, though
Speaker 4: ultimately gone on board with Trump when he became president,
Speaker 4: worked to defend or be supportive of different Trump policies
Speaker 4: when they went to court. And of course, you know,
Speaker 4: it all leads up to in twenty twenty his most
Speaker 4: you know, probably his most famous, you know lawsuit on
Speaker 4: the national level, which was that lawsuit he filed trying
Speaker 4: to get the US Supreme Court to reverse the Trump's
Speaker 4: reelection loss in for battlegrout States. And so that lawsuit
Speaker 4: in twenty twenty, I think really cemented his status as
Speaker 4: you know, one of the most pro Trump Attorneys general
Speaker 4: out there. And you know, it continued. The embrace of
Speaker 4: Trump continued into his re election race in twenty twenty two,
Speaker 4: when he was facing a number of prominent challengers, including
Speaker 4: the Land Commissioner at the time.
Speaker 3: George P.
Speaker 2: Bush.
Speaker 3: George P.
Speaker 4: Bush was the first major challenger to declare against Paxton
Speaker 4: back in twenty twenty one, and for a while there,
Speaker 4: Trump kind of teased the idea that he could actually
Speaker 4: endorse George P.
Speaker 2: Bush.
Speaker 4: I mean, he made a statement saying that he was
Speaker 4: you know, watching the race and likes Ken Paxton. But
Speaker 4: I'll have a decision soon. But ultimately, you know, Trump
Speaker 4: endorsed Ken Paxton for reelection in that twenty twenty two primary,
Speaker 4: and even though it went to a runoff against Bush,
Speaker 4: Paxton defeated him saldly. And you know, I do think
Speaker 4: Trump's endorsement early on in that race was pretty critical
Speaker 4: to that primary not being that competitive at the end
Speaker 4: of the day for Paxton.
Speaker 1: But Ken Baxton did try. He was one of the
Speaker 1: attorneys generals who tried to overturn the twenty twenty election.
Speaker 4: Yeah, and like I said, I mean that is I
Speaker 4: think a lot of people got introduced to him nationally
Speaker 4: with that lawsuit he filed in December twenty twenty. I
Speaker 4: believe obviously was you know, unsuccessful personally, it endeared him
Speaker 4: to Trump even more. There was a lot of speculation
Speaker 4: at the time that he was so endeared to Trump
Speaker 4: as a result of that that maybe Trump was going
Speaker 4: to parton him on his way out of office or
Speaker 4: something like that. Because just various legal problems Ken Paxson
Speaker 4: has had over his career, So that really I think
Speaker 4: endeared him to Trump. And I do think it was,
Speaker 4: you know, a political ploy to you know, really cement
Speaker 4: himself in some ways as you know, a new rising
Speaker 4: figure and kind of the pro Trump, you know, mega movement.
Speaker 1: I know I shouldn't be so obsessed with Ken Paxton's lawyer,
Speaker 1: but I'm a little bit obsessed with Tony Busby. First
Speaker 1: of all, I know that Tanning is a choice, and
Speaker 1: he has made this choice to tan very intensely. But
Speaker 1: he also says kind of incredible, incredible stuff that like
Speaker 1: feels like it's right at a saturn end lot. I've
Speaker 1: imagined if we impeached everyone in Austin who'd had an affair,
Speaker 1: we'd be impeaching people for the next hundred years. We
Speaker 1: also heard him say imagine what did he say? Something
Speaker 1: like if taking a campaign contribution were illegal, you'd all
Speaker 1: be in jail. Talk to me, I mean he feels
Speaker 1: like a performer.
Speaker 3: Yeah, absolutely so.
Speaker 4: Tony Busby is a very prominent criminal defense attorney also
Speaker 4: practices on varias, but an attorney out of Houston, long time,
Speaker 4: known as a big personality. He ran and he's no
Speaker 4: stranger to politics. I should say, he ran for Houston
Speaker 4: mayor in twenty nineteen. He ultimately lost, but he self
Speaker 4: funded his campaign and brought the incumbent mayor at the time,
Speaker 4: Sylvester Turner, to a runoff. And so it was a
Speaker 4: contentious and you know, relatively competitive race. And even before that,
Speaker 4: people in politics probably knew him as Rick Perry's defense attorney.
Speaker 4: When Rick Perry was indicted in in fourteen twenty fifteen
Speaker 4: for abusive office, you know, for some some funding he vetoed.
Speaker 4: Buzzby successfully defended Perry in that case, and Perry got
Speaker 4: the indictment dismissed. So this Buzzby is someone who has
Speaker 4: been known for years both in the political and legal
Speaker 4: worlds in Texas, especially.
Speaker 3: In the Houston area.
Speaker 4: And as you point out, I mean he's known for
Speaker 4: his showmanship, being bombastic, potentially getting a rise out of people.
Speaker 4: And I think you're you know this, this trial I
Speaker 4: think actually gives him kind of the you know, the
Speaker 4: biggest sandbox for it. You know, Yet, because you don't
Speaker 4: necessarily have the traditional guardrails around lawyers, you know, rhetorical
Speaker 4: flourishes that you may have in a an actual formal
Speaker 4: courtroom setting, I mean, Buzzby I think has definitely been
Speaker 4: able to take advantage of some of the looser parameters
Speaker 4: of this trial to really let his you know, to
Speaker 4: really just be himself, I think, and be a big
Speaker 4: personality and be propocative.
Speaker 1: Yeah. I mean, it really does seem like he's kind
Speaker 1: of the star of this trial.
Speaker 4: For the average person tuning in, I do you think
Speaker 4: he may stand out as the star? So yeah, for
Speaker 4: those of us who've been watching politics for a while
Speaker 4: in Texas, you know, we know he's This is to
Speaker 4: be expected with him. And I should note as far
Speaker 4: as his political life is concerned, he's also actively running
Speaker 4: for a seat on the Houston City Council in the
Speaker 4: November twenty pre election while he is dealing with this
Speaker 4: case in the Senate, so he's got a lot on
Speaker 4: his plate.
Speaker 1: First, I want you to talk us through what, because
Speaker 1: not all of us are completely versed in the laws
Speaker 1: of the Texas state government, what happens now in this trial.
Speaker 4: So this trial is going to probably wrap up the
Speaker 4: end of this week Thursday or Friday, because there are
Speaker 4: time limits on each side. So there's a finite amount
Speaker 4: of time each side gets to make their case, and
Speaker 4: you know, at that point the case will go to
Speaker 4: the jury, which are the thirty senators who get a vote,
Speaker 4: excluding Angela Packson because she doesn't get vote, and she
Speaker 4: also doesn't get to participate in jury deliberations. So at
Speaker 4: that point, those thirty senators, they're going to start deliberating
Speaker 4: this behind closed doors. You know, that was one of
Speaker 4: the stipulations in the trial rules that all jury deliberations
Speaker 4: will be private, So they're not going to be debating
Speaker 4: this out in the open for us to see their
Speaker 4: thought process. So they're going to go behind closed doors.
Speaker 4: The Lieutenant governor has said that he's going to keep
Speaker 4: the senators in Austin until they come up with a verdict.
Speaker 4: They're not going to, you know, break for the weekend
Speaker 4: that I assume, you know that they'll break up the
Speaker 4: end of the day, go home and go to sleep,
Speaker 4: but this is, you know, it's going to be through
Speaker 4: the weekend until they come up with a verdict, and
Speaker 4: at that point they'll come back to the court room
Speaker 4: and it'll you know, I do think it'll resemble what
Speaker 4: you typically see in a high profile, you know, criminal trial,
Speaker 4: where you know, there'll be a somber reading off of
Speaker 4: the individual charges in this case, the individual articles of impeachment.
Speaker 4: There'll be an announcement of the vote to convict Paxton
Speaker 4: on any article of impeachment requires two thirds of the
Speaker 4: total body, so that Angela Paxton does count towards the
Speaker 4: denominator of that, so that is two thirds of thirty one.
Speaker 4: So that means they need twenty one votes to convict
Speaker 4: him on an article. There are twelve Democrats in the
Speaker 4: State Senate, and then there are, as we just talked about,
Speaker 4: there are eighteen who can vote, So that means if
Speaker 4: all twelve Democrats vote, you know, want to convict him,
Speaker 4: half the remaining Republicans have to side with the Democrats
Speaker 4: to get to I believe twenty one.
Speaker 1: Does that seem like it's possible.
Speaker 4: I do think it's possible. So we had a series
Speaker 4: of pre trial motions to dismiss before this trial all
Speaker 4: got started, and those only required a majority vote, and
Speaker 4: Paxton lost his efforts, you know, on all of those,
Speaker 4: and we only saw depending on how you look at it,
Speaker 4: a four or ceiling, but six Republican senators who consistently
Speaker 4: voted for the pre trial motions to dismiss, and so
Speaker 4: to me.
Speaker 3: That suggested a lot of softness. You know.
Speaker 4: That's again six out of eighteen who were firmly on
Speaker 4: Paxton's side in the pre trial motions to dismiss so
Speaker 4: at a minimum, that to me suggests, you know, obviously
Speaker 4: a lot of people wanted to you know, a majority
Speaker 4: of the Republican Caucus wanted to proceed to trial and
Speaker 4: at least see the evidence and hear the testimony. So
Speaker 4: that that suggested to me, there's a lot there was
Speaker 4: a good amount of softness within the Republican Caucus that
Speaker 4: there are a number of votes that are up for
Speaker 4: grabs here. So I do think it's possible. It should
Speaker 4: be noted that to be permanently removed from office, he
Speaker 4: just has to be convicted on one of those articles
Speaker 4: they're going to vote on, you know, article by article,
Speaker 4: but is if he gets a two thirds vote, If
Speaker 4: one of those articles gets a two thirds vote, he
Speaker 4: is convicted and he's permanently removed from office. And then
Speaker 4: there would be an additional vote on whether to disqualify
Speaker 4: him from state office ever again, so he could not
Speaker 4: run for his old job in the next selection.
Speaker 1: Let me just ask you, now, what do you think
Speaker 1: the larger implications are for this in Texas? Like could
Speaker 1: this help a Senate candidate or does this help Republicans
Speaker 1: I mean where I feel like Texas is one of
Speaker 1: those places where if you don't live there, you don't
Speaker 1: know what the fuck is going on.
Speaker 4: But like I said at the beginning, I think this
Speaker 4: continues to be striking for just how big of an
Speaker 4: act of self policing this is by Texas Republicans. I
Speaker 4: think that if he is convicted, primarily removed from office,
Speaker 4: and even disqualified from running for state office again, that
Speaker 4: will send the message that in this one party dominated
Speaker 4: state that has at times grown too big a dominant,
Speaker 4: you know, for its own good, that there is still
Speaker 4: some real accountability to be had when one of their
Speaker 4: leading figures has long running and well documented legal problems.
Speaker 4: And so I think it will be somewhat of a
Speaker 4: proud moment for the Texas Republican Party in that regard.
Speaker 4: But as far as politics is concerned, it's hard for
Speaker 4: me to see Paxton going away. Politically, of course, if
Speaker 4: he is acquitted, he is more politically empowered than ever.
Speaker 4: People are talking about him, you know, running for governor.
Speaker 4: You know, he will be a huge star on the
Speaker 4: pro Trump right. But even if he's convicted and permanently
Speaker 4: removed from office, he could still have a political future.
Speaker 4: And I believe that boat on disqualification only applies to
Speaker 4: state office, so he could run for federal office. And
Speaker 4: his supporters have already made you know, noise about him
Speaker 4: potentially challenging US Senator John Hornan in twenty twenty six.
Speaker 4: I guess to put it, you know, if the bottom
Speaker 4: line is big picture, it would be an incredible act
Speaker 4: of holding one of their own.
Speaker 3: Texas Republicans holding one of their own accountable.
Speaker 2: When it comes.
Speaker 4: But when it comes to politics, I don't see this
Speaker 4: meaning either way that he goes away anytime soon.
Speaker 1: Okay, good, I mean not good. And the national implications
Speaker 1: it's just too soon to say.
Speaker 2: Yeah.
Speaker 4: I mean, I think you know the national implications are.
Speaker 4: I think you look for you look at it through
Speaker 4: the lens of Trump. I mean, you know, Packson has
Speaker 4: been such a stodge ally of Trump and so right.
Speaker 1: So it'll help him in a Republican partner, right.
Speaker 4: I would imagine that next year, regardless of whether he's
Speaker 4: convicted or not, Paxton is going to be a loyal
Speaker 4: surrogate for Trump no matter what. So someone you would
Speaker 4: you would see in the camp danger.
Speaker 1: Of incredible stuff.
Speaker 3: Thank you, Patrick, Thank you so much for having me.
Speaker 1: Michael Waldman is President and CEO of the Brennan Center
Speaker 1: for Justice at the NYU School of lawd Welcome to
Speaker 1: Vast Politics.
Speaker 2: Michael, great to be with you.
Speaker 1: Let's start by talking about exactly where we are right
Speaker 1: now with the Supreme Court, because I feel like we
Speaker 1: sort of are seeing scandal after scandal and unfold in
Speaker 1: a kind of incredible way, and I was hoping you
Speaker 1: could explain to us a little bit about how we
Speaker 1: got to where we are with the Supreme Court.
Speaker 3: Yeah.
Speaker 2: You know, it's a big moment in the history of
Speaker 2: the Court, and for those of us who care about
Speaker 2: the Constitution and things like that, it's a big moment.
Speaker 2: On all of that, We're now two years into this
Speaker 2: super majority of six very conservative justices dominating the Court,
Speaker 2: the court that has nine members, and this is unusual.
Speaker 2: This was the product of yt Hence politicking and organizing
Speaker 2: by the Federalist Society and other very well funded groups
Speaker 2: to produce this supermajority, and they're now moving the Court
Speaker 2: and the way it interprets the Constitution and therefore the
Speaker 2: country in a very abrupt direction to the right, and
Speaker 2: it's coming at a time when people are increasingly angry
Speaker 2: about the decisions they're making, but also seeing them more
Speaker 2: and more as a political body. And public trust in
Speaker 2: the Court, by all the polls has collapsed to the
Speaker 2: lowest level ever recorded. It's a real crisis of legitimacy
Speaker 2: brought on the Court by its own actions.
Speaker 1: Can you sort of take us back historically, because this
Speaker 1: is not the first time that we see in a
Speaker 1: very politicized court out of step with the rest of
Speaker 1: the country. Can you talk about.
Speaker 3: That You're absolutely right.
Speaker 2: I mean, the Supreme Court has the power it has
Speaker 2: because we give it that power. As a lot of
Speaker 2: people say, it doesn't have an army, It can't really
Speaker 2: enforce its own decisions. It only is able to act
Speaker 2: as it does because we give it that trust. And
Speaker 2: the part of the Constitution dealing with the federal courts
Speaker 2: and the Supreme Court is only one tenth the length
Speaker 2: of the part dealing with Congress and the President, the
Speaker 2: elected branches. The idea that it's become this sort of
Speaker 2: super legislature over these other branches has taken a long
Speaker 2: time to happen. Now, the truth of the matter is,
Speaker 2: when you look at the history of the country. Most
Speaker 2: of the time, the Supreme Court basically reflects the consensus
Speaker 2: in the country at the time, or at least the
Speaker 2: elite consensus, the elite political consensus. It sort of hugs
Speaker 2: the middle, and that's partly how it has kept its
Speaker 2: credibility with people. But there were a few times, not many,
Speaker 2: but a few times when it was extreme or unduly
Speaker 2: activist or partisan, and then there was a really fierce pushback,
Speaker 2: a really fierce, often very political response. It happened after
Speaker 2: the dread Scott decision in eighteen fifty seven, which said
Speaker 2: that Congress could not bar slavery from the territories and
Speaker 2: even worse, that black people could not be citizens. The
Speaker 2: response was so outraged that it elected Abraham Lincoln to
Speaker 2: the presidency then ultimately helped bring on the Civil War.
Speaker 2: He saw something similar when the Court at the beginning
Speaker 2: of the twentieth century. The justices of that time, the
Speaker 2: elitos of that court, they thought their job at a
Speaker 2: time of industrialization and rising inequality, they thought their job
Speaker 2: was to stop government and being able to do anything
Speaker 2: to protect them. It was a huge fight, not just
Speaker 2: we all kind of know about FDR in the end
Speaker 2: when they were about to strike down social security in
Speaker 2: other parts of the New Deal. But for years before then,
Speaker 2: it was a big controversy when Teddy Roosevelt ran as
Speaker 2: a third party candidate in the nineteen twelve election, and
Speaker 2: it's this kind of storied election where he was challenging
Speaker 2: his handpicked successor at Taft and Woodrow Wilson was the
Speaker 2: Democrat and there was a socialist Teddy Roosevelt's big issue
Speaker 2: was an attack on the Supreme Court and em and
Speaker 2: right wing and reactionary rulings. And then the third time
Speaker 2: where there was a backlash where the court was out
Speaker 2: of step with the country eventually was the Warrant Court.
Speaker 2: And that's you know, I like the decisions of the
Speaker 2: Warrant Court. It began with Brown versus Board of Education,
Speaker 2: but it did go very far, very fast at a
Speaker 2: time of great social upheaval in the country, and it
Speaker 2: did produce it's eventually a backlash, and that backlash is
Speaker 2: what we're living into this day. I think we're seeing
Speaker 2: something similar now where what this court is doing is
Speaker 2: going to produce a massive political backlash that can help
Speaker 2: reshape the country and the elections.
Speaker 1: So let's talk about what it means to have sort
Speaker 1: of the state we're in right now, where the court
Speaker 1: has a lot of controversy and also a sort of
Speaker 1: secret organization that's not that secret anymore, but that has
Speaker 1: really unlimited financing. Will you talk to me about the
Speaker 1: Federal Society and a little bit about how that sort
Speaker 1: of came out of nowhere and there's not much of
Speaker 1: a precedent for it.
Speaker 2: I can't really think of any present for something like
Speaker 2: this in our country's history. You have basically a faction
Speaker 2: of a faction has captured this branch of government, and
Speaker 2: it's the branch of government with the least accountability because
Speaker 2: they have lifetime terms, they're not elected. There's not necessarily
Speaker 2: all that much you can do about it, although there
Speaker 2: are things you can do about it. The Federalist Society
Speaker 2: started as a student club back in the eighties when
Speaker 2: there were conservative law students who thought that they were
Speaker 2: kind of marooned in the liberal and progressive world of
Speaker 2: law schools. But it's grown to become this very well oiled,
Speaker 2: very effective political machine, grooming judges, pushing them toward the bench,
Speaker 2: urging them to act in a very specific and I
Speaker 2: would argue reactionary way, and you know, I said, it's
Speaker 2: a well oiled machine. And yeah, I always used to
Speaker 2: look at it and say, oh, you know, it's really
Speaker 2: interesting how effective they are. But they don't seem to
Speaker 2: have that much money. Well that was wrong. It turns
Speaker 2: it turns out that a couple of years ago somebody
Speaker 2: gave Leonard Leo, who's the force behind the Federalist Society,
Speaker 2: one point six billion with a B dollars secretly of course,
Speaker 2: to use for this project. And if not only funds
Speaker 2: the Federalist Society, it funds other groups, you know, many
Speaker 2: of which share in office address, running tens of millions
Speaker 2: of dollars of ads to get these justices and judges
Speaker 2: who at the system on the bench, running ads praising
Speaker 2: Congress for refusing to consider the nomination of Merrick Garland,
Speaker 2: creating organizations to file the suits to produce these right
Speaker 2: wing rulings.
Speaker 1: So I just want to stop you for a second,
Speaker 1: file the suits to produce the right wing rulings. Why
Speaker 1: don't you take a case on last year's docket. I'm
Speaker 1: thinking of three zero three creative, because that's a case
Speaker 1: where the plaint if she had never made a wedding website, right,
Speaker 1: that case, three or three Creative, she wanted to discriminate
Speaker 1: against gay people if she ever made a wedding website,
Speaker 1: which she never had. That's a kind of plaintiff, right,
Speaker 1: that's the kind of plaintiff we're talking about here.
Speaker 2: Yeah, and I don't know about you know, lanlliar Leo's
Speaker 2: involvement in that one in particular.
Speaker 1: Say, right, but these are plaintiffs crafted for a kind
Speaker 1: of outcome.
Speaker 2: You're seeing a bunch of cases where justices are supposed
Speaker 2: to be a court, right, they're supposed to be hearing
Speaker 2: what they call a case in controversy, meaning that like
Speaker 2: it's an actual dispute between people with an actual problem.
Speaker 2: Increasingly and disturbingly, you're seeing these effectively made up institutions,
Speaker 2: are made up back patterns brought before the court. So
Speaker 2: three or three Creative, as he said, they said, Oh, this,
Speaker 2: this person wants to not have to do websites for
Speaker 2: her wedding website business for same sex couples, and this
Speaker 2: is terrible. She's being threatened. Well, she didn't even claim
Speaker 2: that she had ever been prosecuted or stopped from doing it,
Speaker 2: but her papers did say that there was somebody who'd
Speaker 2: asked her to do it after the case was basically
Speaker 2: being heard. I think it was the day before it
Speaker 2: turned out that the person whose name was in the
Speaker 2: papers said what me, I'm married. Actually I'm straight. So
Speaker 2: you know, it seemed like it was kind of made up.
Speaker 2: And this isn't the first time an even cases like
Speaker 2: the affirmative action case where you have one guy named
Speaker 2: Ed Blum who created a group of allegedly representing Asian students,
Speaker 2: having struck out previously in other cases with a woman
Speaker 2: and before that with a white man. Now it's Asian students.
Speaker 2: And it's again this kind of synthetic and manufactured legal crusade,
Speaker 2: very well funded, leading to these abrupt outcomes. And again
Speaker 2: when you kind of look at the first two years
Speaker 2: of this supermajority, look at the big cases they ruled
Speaker 2: out abortion, guns, affirmative action, and in the regulatory cases
Speaker 2: the interests of the fossil fuel industry. That doesn't sound
Speaker 2: like a court, that sounds like an RNC caucus. So
Speaker 2: you know, it's just a very different thing than what
Speaker 2: we've seen before.
Speaker 1: Yeah, no, it's really true. I think that's a really
Speaker 1: good point and I also think one of the things
Speaker 1: we're talking about, one I've talked to before was this
Speaker 1: idea that I mean, if you look at the last
Speaker 1: three cases from the last season, it was Dobbs, it
Speaker 1: was the EPA versus West Virginia, which again is the
Speaker 1: EPA right limiting the scope of the EPA, and then
Speaker 1: the Bruin case, which is states rights when it comes
Speaker 1: to things that Republicans like, like guns. So these are
Speaker 1: really radical remaking of the country.
Speaker 2: Right in three days, in three days in June. Decades
Speaker 2: of conservative social policy enacted by these public officials. That's
Speaker 2: what they are. They're not wizards. They they wear robes.
Speaker 2: They're not clergy, you know, even though they pretend to
Speaker 2: be just reading the ruins of the past. They're public officials.
Speaker 2: And it's hard to find any branch of the federal
Speaker 2: government that has jammed as much ideologically charged policy into
Speaker 2: being in such a short time in memory. And the
Speaker 2: other thing that really bothers me, that concerns me is
Speaker 2: not only the outcomes of these cases, but the way
Speaker 2: they say they're doing it, because that really rings loudly
Speaker 2: in other courts. They say they are following originalism. That's
Speaker 2: this idea. You know that.
Speaker 1: Yes, I was about to ask you about originalism.
Speaker 2: Yeah, no, I mean they say they're following originalism. That's
Speaker 2: this idea that the only legitimate way to read the
Speaker 2: Constitution is to ask what it meant to the people
Speaker 2: who ratified it at the time. And that means, in
Speaker 2: practical terms, people in seventeen eighty seven who are seventeen
Speaker 2: ninety one most of the time. So literally, even if
Speaker 2: you get the history.
Speaker 1: People who own slaves and whose wives were not allowed to.
Speaker 2: Vote, and who used leeches for medical cares, and it
Speaker 2: literally means that the property owning white men of the
Speaker 2: seventeen hundred, their social views, must govern us now. And
Speaker 2: that is a crazy way to run a modern country.
Speaker 2: And by the way, it's not how any Supreme Court
Speaker 2: has ever done this before. It's not how other countries
Speaker 2: do it. I mean, think about it. In Great Britain,
Speaker 2: someone doesn't propose some gun regulations, say or something like that.
Speaker 2: They would say, oh, that's really interesting. This might be
Speaker 2: a good idea, but the big question is what did
Speaker 2: King George the Third think about it? Because that's really
Speaker 2: what matters today. It's nutty and you might say, oh,
Speaker 2: you know, it's kind of isn't this how it's always been?
Speaker 3: No.
Speaker 2: Really, until twenty twenty two, they've only been four really
Speaker 2: major cases in the country's history that just were relying
Speaker 2: on this originalism. The first one was dred Scott. It
Speaker 2: discredited it so much that they didn't really try it
Speaker 2: again for you know, over a century. A case in
Speaker 2: two thousand and eight called Heller, which was the first
Speaker 2: time the Supreme Court ever.
Speaker 1: Said yeah, the gun rights, Yeah, that the.
Speaker 2: Second Amendment reflects an individual right to gun ownership for
Speaker 2: self protection. That was the first time. And Dobbs, and
Speaker 2: then this Brewing case on the Second Amendment, which was
Speaker 2: by far the most extreme such case that we've ever had.
Speaker 2: I wrote a book about the Heller case. Heller said
Speaker 2: there was an individual right. I think they got the
Speaker 2: history wrong, but anyway, Heller said explicitly, look, but you
Speaker 2: can still have strong gun rules, and actually listed a
Speaker 2: bunch of them. Heller was written by Antonin Scalia, and
Speaker 2: Scullia was asked, what's the difference between you and Clarence Thomas,
Speaker 2: and he said, well, I am an originalist, but I
Speaker 2: am not a nut. Thomas wrote the Bruined Decision. It
Speaker 2: says that you, in effect that you cannot take into
Speaker 2: consideration current public safety concerns when looking at whether a
Speaker 2: gun law is constitutional, only quote history and tradition literally, Like,
Speaker 2: did they have a rule like this in the seventeen hundreds,
Speaker 2: which is causing dozens of gun laws to be challenged
Speaker 2: or knocked down all over the country. And the Supreme
Speaker 2: Court actually took a case that they're going to hear
Speaker 2: in November. Well, they might try to pull back on
Speaker 2: this just because the implications are so extreme.
Speaker 1: Right, Oh, interesting, why do you think that?
Speaker 2: Well, so, the way this has played out, Supreme Court
Speaker 2: is one court, but there's dozens and dozens of other
Speaker 2: federal courts and they listened to what the Supreme Court says,
Speaker 2: and they most cases don't get up to the top court.
Speaker 2: And the way judges have been interpreting how to look
Speaker 2: at gun laws after this really extreme decision. Give you
Speaker 2: an example in New York State when New York, which
Speaker 2: had its gun laws struck down, had to pass a
Speaker 2: new law, and a federal judge in Upstate New York said, well,
Speaker 2: history and tradition for it to be history and tradition.
Speaker 2: Two examples from the colonial era that's a mere trend.
Speaker 2: For it to be a traditional, you need three and
Speaker 2: I can find I can find no tradition of laws
Speaker 2: banning guns at sleep away summer camps. So therefore that's unconstitutional.
Speaker 2: Let alone, you know, subways, because they hadn't invented that
Speaker 2: for one hundred years. It sounds like a parody, but
Speaker 2: that's literally.
Speaker 1: We've opened the door to peak crazy here.
Speaker 2: Peak crazy. And then the one that really bothered people
Speaker 2: the most, I think was in Texas, no surprise maybe,
Speaker 2: where the Court of Appeals said, the very conservative Fifth
Speaker 2: Circuit Court of Appeals said, well, the law saying that
Speaker 2: you can take a gun away from somebody who has
Speaker 2: an adjudicated record of domestic violence, that's unconstitutional, right.
Speaker 1: Because you didn't have domestic violence in the seventeen hundreds,
Speaker 1: so it was just.
Speaker 2: Marriage or was a good thing. You didn't haverhibitions on
Speaker 2: domestic violence, and therefore there's no history in tradition. And
Speaker 2: people are you know, understandably horrified by that. And the
Speaker 2: Supreme Court took that case. It's called RAHEMI who knows,
Speaker 2: but they could have just let it stand. I have
Speaker 2: a feeling that took the case to kind of say
Speaker 2: this is too far, it's still gonna be pretty extreme
Speaker 2: the overall outcome.
Speaker 1: So my man, and he's actually not my man, Sam Alito,
Speaker 1: you know him.
Speaker 2: He's a big listener to the podcast. I'm sure.
Speaker 1: Oh yeah, he's a big fan. Unless it's a clip
Speaker 1: on Fox News. I don't think Justice Alito is going
Speaker 1: to see it. But just as Alito in the news
Speaker 1: because he says Congress has no authority to regulate the
Speaker 1: Supreme Court, Congers actually really could theoretically if they wanted
Speaker 1: to regulate the Supreme Court.
Speaker 2: Oh, unambiguously. I mean for someone who claims to be
Speaker 2: a textualist, he needs, you know, better reading texts. I
Speaker 2: mean yeah. And Elena Kagan and part of this highly
Speaker 2: controversial moment is they're now all going out and giving
Speaker 2: speeches criticizing each other. She went out and said that's absurd.
Speaker 2: Of course, Congress has the ability to regulate. Congress has
Speaker 2: regulated the Court, as it has the right to do
Speaker 2: on many different things, whether ethics rules, the size of
Speaker 2: the court, it's jurisdiction. All this is given that power
Speaker 2: to the Congress by the Constitution, and more broadly, those
Speaker 2: of us who care about the Court and the country
Speaker 2: and the Constitution. We should be urging Congress to act.
Speaker 2: I mean, the easiest, the lowest hanging fruit, is kind
Speaker 2: of what Alito was responding to. The Supreme Court, as
Speaker 2: you know, is the only court in the country without
Speaker 2: it binding ethics code, the only one. And nobody is
Speaker 2: so wise that they should be the judge in their
Speaker 2: own case. It's kind of a very basic principle. But
Speaker 2: that's the situation here, and we keep seeing these scandals
Speaker 2: over and over again, with the billionaires whisking these justices
Speaker 2: off to their luxury layers and then them not revealing
Speaker 2: it or not recusing from the cases. Congress emphatically can
Speaker 2: pass an ethics code for these judges, as they have
Speaker 2: for other judges, and there's bipart in the legislation to
Speaker 2: do it, and you know, I have a feeling that
Speaker 2: there's division within the Supreme Court on this. Kavanaugh recently said, oh,
Speaker 2: we're going to do something, but we'll see. I also
Speaker 2: think there's even more basic structural changes that can be made.
Speaker 2: I'm strongly in the group I lead, the Brendan Center
Speaker 2: for Justice. We're strongly for an eighteen year term limit
Speaker 2: for justices. Nobody should have too much public power for
Speaker 2: too long. George Washington, you know, when he limited his
Speaker 2: own term to two terms, he kind of reflected that insight.
Speaker 2: And the thing about term limits. It's interesting is I
Speaker 2: think a lot of people don't realize this. It's really popular.
Speaker 2: It's really popular among conservatives and liberals and Democrats and Republicans.
Speaker 2: I was a member of the Commission on the Supreme
Speaker 2: Court that Present Biden appointed in twenty twenty one. And
Speaker 2: you know, these commissions, they don't do that much often,
Speaker 2: and we were actually instructed at the beginning not to
Speaker 2: reach conclusions, and we didn't. You know, we've a garment
Speaker 2: agency that works as intended. But it was really pretty interesting.
Speaker 2: We heard from dozens of public witnesses from left and right,
Speaker 2: and they had all different views on all different stuff.
Speaker 2: Some were for court expansion, others were against it. Some
Speaker 2: were foreign Ethics code, others were against it. Over and
Speaker 2: over they said, oh, but I'm for term limits. Of course.
Speaker 2: I think there's a national consensus on this that we
Speaker 2: don't even realize is there. Now. That doesn't mean it
Speaker 2: happens without controversy. People will get polarized. It certainly could
Speaker 2: be done by a constitutional amendment. I think it could
Speaker 2: be done by a statute as well, So you know,
Speaker 2: I think it's an idea whose time has come, and
Speaker 2: that's the kind of thing that can help brank some
Speaker 2: accountability structurally to the court.
Speaker 1: Yeah. Absolutely, thank you so much for joining us. We've
Speaker 1: gone over because it was so fascinating.
Speaker 2: But thank you, my pleasure, no moment.
Speaker 5: Jessie Cannon, Molly jung Fast. Let me tell you, Republicans
Speaker 5: are in disarray. Things are just going so good for
Speaker 5: Speaker of the House, Kevin McCarthy.
Speaker 1: Kevin McCarthy has a Donald Trump problem. Unfortunately, he only
Speaker 1: has one solution, which is a Donald Trump solution. He
Speaker 1: has a situation where Donald Trump really wants him to
Speaker 1: impeach Joe despite the fact that there's nothing really to
Speaker 1: impeach Joe Biden on, and despite the fact that impeaching
Speaker 1: Joe Biden will fundamentally hurt moderates in the party and
Speaker 1: perhaps lose Republicans of the House.
Speaker 5: And he had all this time to write a statement
Speaker 5: and still like everything that came out when he made
Speaker 5: it was like total bullshit, Like they can't even be
Speaker 5: bothered to put the effort in here.
Speaker 1: Kevin McCarthy made six claims in support of his call
Speaker 1: for an impeachment inquiry, most pre date twenty twenty one.
Speaker 1: Several don't involve Joe Biden at all, and one was
Speaker 1: flatly untrue for being a complete sociopath and sycophant. Kevin
Speaker 1: McCarthy's quest to impeach hist in quest to impeach one
Speaker 1: Joe Biden is our moment of fuck array. That's it
Speaker 1: for this episode of Fast Politics. Tune in every Monday,
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Speaker 1: make sense of all all this chaos. If you enjoyed
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