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Speaker 1: Hi, Brian, Hi, Katie. Well, it's been an extraordinary week

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Speaker 1: in America. Good day. It is now official, by a

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Speaker 1: to vote margin. The Senate has just confirmed Breck Cavanaugh.

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Speaker 1: Breck Cavanaugh was sworn in as Supreme Court justice. Has

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Speaker 1: a new Supreme Court Brett Kavanaugh will hear his first

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Speaker 1: arguments this morning. The confirmation of Bret Kavanaugh to the

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Speaker 1: Supreme Court capped off an emotional process that's left scars

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Speaker 1: and anchor on both sides of the debate. The already

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Speaker 1: deep divide in this country seems to have not only deepened,

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Speaker 1: but calcified. The testimony of Dr Christine Blassi Ford unleashed

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Speaker 1: a torrent of revelations by women across the country of

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Speaker 1: sexual assaults long kept secret. The rage and raw emotion

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Speaker 1: exhibited by Judge Kavanaugh seemed to be a vessel for

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Speaker 1: those who feel the me too movement has been transformed

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Speaker 1: into a political heat seeking missile. Collateral damage be damned.

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Speaker 1: And by the time it was over, Americans were at

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Speaker 1: each other's throats, both sides vowing to express their fury

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Speaker 1: at the voting booth. So what just happened? Well, today

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Speaker 1: we're going to try to figure that out, We're gonna

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Speaker 1: try to understand what unfolded and why and what impact

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Speaker 1: this is likely to have on the court and the country.

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Speaker 1: We'll hear from two people who can help us better

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Speaker 1: understand this moment in American politics and culture. Lawrence Tribe

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Speaker 1: teaches constitutional law at Harvard Law School. He's one of

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Speaker 1: the most influential and revered liberal legal scholars in the country.

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Speaker 1: And if you're a big fan of this podcast, you

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Speaker 1: might remember Rebecca tray Stir. We had her on way

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Speaker 1: back in those prehistoric innocent days the summer of and

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Speaker 1: we're very happy to have Rebecca back with us today

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Speaker 1: because she's out with a brand new book called Good

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Speaker 1: and Mad, The Revolutionary Power of Women's Anger, talk about

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Speaker 1: timely was oppression title. Anyway, hopefully they can both help

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Speaker 1: us make sense of this moment and the Rancor's times

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Speaker 1: were living in and what this could all mean in

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Speaker 1: our daily lives. So first, here's Rebecca tray Stir. Rebecca,

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Speaker 1: welcome back, Thank you. It's always a pleasure to be here.

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Speaker 1: So first we want to talk about Judge now Justice

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Speaker 1: Brett Havanaugh, and before we even get into the confirmation

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Speaker 1: hearings and what unfolded. What one word would you use

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Speaker 1: to describe how you felt after this was all over wrecked?

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Speaker 1: That's a terrible I felt absolutely wrecked. It has really

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Speaker 1: been a traumatic, um enraging, terrifying period from my point

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Speaker 1: of view the past few weeks. Can you elaborate on

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Speaker 1: on why. Yeah, because the stakes were so high first

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Speaker 1: of all, so a lot of When I described the

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Speaker 1: horror of what's just happened, I'm not talking just about

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Speaker 1: what's just happened over the past few weeks of testimony

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Speaker 1: and the coverage of it. I'm also talking about the repercussion.

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Speaker 1: He's now going to be a member of the Supreme Court.

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Speaker 1: He has a lifetime appointment. Um, you know, he's a

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Speaker 1: it's a partisan appointment, and to a court that has

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Speaker 1: within its power the ability to reverse the progress made

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Speaker 1: by previous generations of mass social movements that have worked

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Speaker 1: to enact change and increase equality. What that means is

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Speaker 1: not just the potential reversal of Row, which is what

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Speaker 1: a lot of people have talked about. It means further

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Speaker 1: gutting of affirmative action, of the Voting Rights Act, of

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Speaker 1: the ability to collectively bargain and organize the Supreme Court

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Speaker 1: has an enormous ability to suppress um the liberty and

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Speaker 1: freedom of the kinds of masses of people who are

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Speaker 1: now angry about power abuses. There there are all kinds

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Speaker 1: of mechanisms that are going to change. What a lot

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Speaker 1: of people saw when they looked at these hearings was

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Speaker 1: a repeat eat or reducts of the Clarence Thomas Anita

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Speaker 1: Hill hearings twenty seven years ago. Do you think we've

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Speaker 1: learned anything since then? Well, it's funny in some ways.

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Speaker 1: We saw the handling of the hearings by the Judiciary Committee,

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Speaker 1: and I didn't think it was possible to handle the

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Speaker 1: testimony of a woman who was coming forth with allegations

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Speaker 1: about a nominee to the Supreme Court any worse than

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Speaker 1: the Senate Judiciary Committee handled them in. And somehowen Republican

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Speaker 1: led Senate Judiciary Committee managed to do worse. Why do

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Speaker 1: you think it was worse? Christine blasi Ford testified that

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Speaker 1: there was a witness in Mark Judge. He was never

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Speaker 1: even called. We don't know enough about what the eventual

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Speaker 1: FBI investigation entailed, but it's certainly left very few people

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Speaker 1: who were not Republicans convinced that it had been a

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Speaker 1: thorough investigation. Dr Blasi Ford herself wasn't questioned by the FBI. UM,

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Speaker 1: we know that there were people who offered to talk

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Speaker 1: to the FBI who the FBI did not reach out to.

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Speaker 1: Is it worse? The open disdain for Anita Hill was

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Speaker 1: so profound, and it was coming in some ways from

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Speaker 1: the members of the Republican Party sitting on the Judiciary Committee.

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Speaker 1: But she was not defended by those on the Democratic side,

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Speaker 1: And in fact, Joe Biden didn't call the women who

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Speaker 1: were willing to corroborate her story back. So that is similar,

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Speaker 1: But there was more time, there was more investigation. Um,

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Speaker 1: there were I think twenty two witnesses called in in

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Speaker 1: the Anita Hill hearings. There was none of that here.

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Speaker 1: It was just they designed it to be. She said,

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Speaker 1: he said, without even calling on the voice. I mean,

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Speaker 1: in these kinds of cases, very often, one of the

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Speaker 1: reasons that harassment and assault cases are hard to bring,

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Speaker 1: and one of the reasons that women often don't tell

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Speaker 1: stories is because they know it comes down to he said,

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Speaker 1: she said, and the women's voices very rarely trusted. This

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Speaker 1: was a case where the woman telling the story claimed

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Speaker 1: there was another person in the room and that person

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Speaker 1: wasn't called, So you know, in that regard it was worse.

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Speaker 1: I think there are some differences. After the Anita Hill

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Speaker 1: Clarence Thomas Herring's public opinion polls showed that the majority

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Speaker 1: of Americans believed Clarence Thomas, and now the polls show

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Speaker 1: that a majority believe Christine Blasi for right, and so

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Speaker 1: through one lens, that reflects a kind of progress that

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Speaker 1: I do think twenty seven years of activism and engagement

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Speaker 1: on these issues mean that we are taking the stories

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Speaker 1: of women more seriously, and so there is some indication

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Speaker 1: that maybe we were taking Christine Blasi Ford's story more seriously.

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Speaker 1: But we also have to remember she is a white,

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Speaker 1: married woman by many measures, um within a government in

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Speaker 1: a power structure that is fundamentally a white patriarchy, the

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Speaker 1: kind of woman who Americans are more likely to believe.

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Speaker 1: Anita Hill wrote at the time after her hearing that

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Speaker 1: one of the reasons that she was incomprehensible to the

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Speaker 1: Senate Judiciary Committee she was black and she was unmarried,

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Speaker 1: and they couldn't square these things with her credentials as

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Speaker 1: an ivy educated lawyer and a peer of a Supreme

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Speaker 1: Court nominee. So we I think we have to take

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Speaker 1: into account, um, some of the racial realities around the

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Speaker 1: differences between Christine Blassie Ford and Anita Hill. Though I

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Speaker 1: would also argue that it is true, um, that we

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Speaker 1: do listen to women's stories differently at this juncture than

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Speaker 1: perhaps we did. I was struck by Anita Hill's piece

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Speaker 1: in the New York Times after Dr Ford came forward

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Speaker 1: bemoaning the fact that there still was not a process

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Speaker 1: in place. There isn't a protocol that would make it

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Speaker 1: a clear path to how you handle these kinds of

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Speaker 1: complaints or issues. Yeah, I I obviously I think that

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Speaker 1: that's that's a very fair assessment. I would also say

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Speaker 1: that the way that we react to women's stories makes

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Speaker 1: it very difficult for there to be a clear protocol.

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Speaker 1: You can see the risks involved. I read today that

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Speaker 1: Christine Blasi Ford still can't move back into our own

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Speaker 1: home because of the incessant death threats, and of course

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Speaker 1: that happened to Anita Hill too, terrible death threats and

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Speaker 1: rape threats for years afterward, which is a very depressing

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Speaker 1: thing and very upsetting to hear Let's talk about the

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Speaker 1: hearings themselves. Your new book is about women and anger,

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Speaker 1: and I know you were struck by the anger express

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Speaker 1: by not only Brett having off, but Lindsey Graham. Let's

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Speaker 1: take a listen. This confirmation process has become a national disgrace.

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Speaker 1: The Constitution gives the Senate an important role in the

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Speaker 1: confirmation process. But you have replaced advice and consent with

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Speaker 1: search and destroy. If you wanted an FBI investigation, you

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Speaker 1: could have come to us. What you want to do

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Speaker 1: is destroy this guy's life, hold this seat open, and

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Speaker 1: hope you win. You've said that, not me. Meanwhile, Christine

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Speaker 1: blasi Ford really, for the most part, maintained her composure.

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Speaker 1: She obviously was nervous and I think a little bit

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Speaker 1: weepy at times. Indelible in the hippocampus is the laughter,

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Speaker 1: the the uproarious laughter between the two and they're having

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Speaker 1: fun at my expense. What were your impressions watching the

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Speaker 1: two genders react. Well, I don't think that Christine blasi

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Speaker 1: Ford could have used anger on her own behalf, although

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Speaker 1: in my view she had a lot she could have

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Speaker 1: reasonably been angry about, from the assault itself to the

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Speaker 1: impact it made on her life, to the kind of

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Speaker 1: impact that having been brought into the public eye made

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Speaker 1: on her life and her family's life. Um, there was

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Speaker 1: plenty that she could have raised her voice about. But

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Speaker 1: we can't even begin to imagine a woman in her

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Speaker 1: position going in and raging or yelling or speaking in

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Speaker 1: loud tones about what had happen, and to her, it

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Speaker 1: would be immediately discrediting. People would say she came off

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Speaker 1: as crazy, or she was trying to play the victim,

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Speaker 1: or she sounded like a lunatic. I mean it just

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Speaker 1: I don't think we can fathom it really. Meanwhile, Brett Kavanaugh,

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Speaker 1: who is a powerful white man, was able to use

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Speaker 1: anger as a rhetorical tool to boost his case. And

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Speaker 1: that's the That is the thing. Women are told all

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Speaker 1: the time that if they speak in anger, it's not

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Speaker 1: just that it's not cute, it's that it will undermine

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Speaker 1: their position, it will damage their ability to be taken seriously.

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Speaker 1: But for men, anger can be read as fundamentally diagnostic.

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Speaker 1: It tells us what's really wrong because they're feeling it

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Speaker 1: so deeply that they raised their voice about it in

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Speaker 1: a kind of sign of strength and commitment. And it

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Speaker 1: worked for Brett Kavanaugh, I think by many measures. Uh,

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Speaker 1: You've seen a lot of coverage that has said it

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Speaker 1: was his willingness to get angry and Lindsay Graham's willingness

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Speaker 1: to get angry, which I think many people agree was

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Speaker 1: probably an audition for Donald Trump, who likes to see

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Speaker 1: the angry bluster of powerful men um in the face

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Speaker 1: of challenge from people who are not powerful white men. Now,

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Speaker 1: the women who did speak in anger, and who I

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Speaker 1: think did so to powerful effect were the protesters, including Anna,

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Speaker 1: Maria Archila, and Maria Gallagher who confronted Jeff Flake in

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Speaker 1: the elevator, And that was an incredibly powerful moment of

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Speaker 1: of watching and hearing women raise their voices and point

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Speaker 1: their fingers and insist that this powerful man look them

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Speaker 1: in their eyes. Well, tell me, when I'm talking to you,

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Speaker 1: you're telling me that miaself doesn't matter, what happened to

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Speaker 1: me doesn't matter. You're gonna let people look do these

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Speaker 1: things into power. I found it interesting that Mitch McConnell

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Speaker 1: and President Trump both described these groups of protesters as mobs.

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Speaker 1: What was your reaction to that? That is the way

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Speaker 1: whenever UM a power structure is challenged by the less

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Speaker 1: powerful entity. That challenge is um framed by the more

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Speaker 1: powerful entity that has and challenged as disruptive, dangerous mob.

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Speaker 1: You can see that in the language that people used

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Speaker 1: around me too, where the women telling the stories of

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Speaker 1: sexual harassment were described as part of a witch hunt

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Speaker 1: or part of mob justice, and where the men, some

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Speaker 1: of whom lost their jobs powerful jobs after accusations that

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Speaker 1: they had harassed or assaulted people, were described as having

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Speaker 1: had their lives ruined. In many cases, people talked about

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Speaker 1: them as if they had been killed or murdered, that

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Speaker 1: they had ceased to exist. The kind of disruption that

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Speaker 1: happens when power moves in the opposite way that it

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Speaker 1: usually does, when the less powerful make a challenge to

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Speaker 1: the powerful, that gets rendered as troublesome, disruptive, worrisome. Whereas

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Speaker 1: when the power moves the way it's supposed to move

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Speaker 1: um with any kind of violence or aggression coming from

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Speaker 1: the more powerful to less powerful, often we don't even

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Speaker 1: notice that it's not disruption. You know, the angry mobs

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Speaker 1: were the protesters, not the angry group of Republicans who

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Speaker 1: are having fits. A few jury in the Senate Judiciary Committee.

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Speaker 1: They were just as mad and cruel Donald Trump's mocking

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Speaker 1: of Dr Christine blasi Ford cruel and vitriolic and loud

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Speaker 1: and screaming in their anger on behalf of Brett Kavanaugh.

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Speaker 1: And yet they're not the angry mobs, even though they're

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Speaker 1: expressing anger that's just as intense. One thing that really

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Speaker 1: glad that Kavanaugh apologized to Amy Klobuchar, but beyond that,

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Speaker 1: she said, you know, if you're wrongfully accused of something

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Speaker 1: like this, I can understand why you'd be angry. What

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Speaker 1: was your reaction to that? Well, this is what I

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Speaker 1: was saying before about white men's powerful. White men's anger

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Speaker 1: is often a tool that they can use to make themselves,

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Speaker 1: in their case, more appealing and attractive and moving to

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Speaker 1: those who might be willing to support them, and Susan

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Speaker 1: Collins is one of those people. Susan Collins very clearly

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Speaker 1: wanted to support Brett Kavanaugh, and she found in his

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Speaker 1: anger a communicative strategy that worked to affirm her positive

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Speaker 1: feelings about him, and that's what she's giving voice to.

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Speaker 1: Anger really does have an ability to work for powerful

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Speaker 1: white men in a way that it doesn't from many

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Speaker 1: other kinds of people. Do you have any kind of

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Speaker 1: sympathy for what Kavanaugh's family has been through or Kavanaugh himself?

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Speaker 1: And do you have any doubt at all that he

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Speaker 1: sexually assaulted Dr? Ford? No, I don't. I believe Christine

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Speaker 1: Blassi Ford. Um, that doesn't mean that I don't have

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Speaker 1: sympathy for human beings, and certainly for a family. One

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Speaker 1: of the realities about the ubiquity of power abuse, you know,

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Speaker 1: gendered and racial, is that the people who have power

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Speaker 1: have lots of people who are dependent on them. And Um,

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Speaker 1: do I have sympathy for Kavanaugh's family, Sure, But like

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Speaker 1: the fact that our attention is drawn to that as

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Speaker 1: the ard party, rather than not only the family of

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Speaker 1: Dr Christine Blassie Ford who can't live in their own home,

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Speaker 1: rather than the families of the hundreds or thousands of

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Speaker 1: people who were there protesting telling their own stories of

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Speaker 1: having been assaulted or harassed or aggressed upon, whose families

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Speaker 1: also live with the kind of suffering that they've gone through,

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Speaker 1: not only via harassment, but then having their voices silenced, ignored,

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Speaker 1: and dismissed as a mob of loudmouths. I feel sympathy

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Speaker 1: for those families too. The Me Too movement is one

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Speaker 1: year old, right, and we've seen powerful man after powerful

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Speaker 1: man fall from grace. It seems to me that there

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Speaker 1: has been increasing sort of discomfort with this, not just

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Speaker 1: from powerful men or men in general, but I think

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Speaker 1: from other people who feel that perhaps it's being weaponized

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Speaker 1: and that, uh, it's overused, this kind of claim. And

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Speaker 1: then when you have an allegation that's thirty six years old,

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Speaker 1: no matter how credible, people are wondering, gosh, has it

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Speaker 1: gone too far? So I would argue this seems to

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Speaker 1: be a specific backlash against this reckoning we've witnessed over

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Speaker 1: the last year. Well, I think that the rhetoric used

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Speaker 1: about it, and this the arguments that you're citing that's

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Speaker 1: been in the culture for a while. I mean that

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Speaker 1: was that was Donald Trump was elected to the presidency

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Speaker 1: after having admitted on tape to grabbing women against their will.

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Speaker 1: I don't think that this Yes, there's a backlash, but

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Speaker 1: I also want to. I'm curious about whether it would

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Speaker 1: be popularly decided had we voted on Brett Kavanaugh. I mean,

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Speaker 1: polls that I've seen show that the majority of Americans

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Speaker 1: believed Christine Blasi Ford and that he had extraordinarily low

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Speaker 1: approval ratings that only dropped during his confirmation hearings. Yes,

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Speaker 1: the intensity of his defense amongst his right wing defenders

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Speaker 1: grew in in defensive response, and that's surely part of

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Speaker 1: that backlash mentality. But it was a fundamentally minority power

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Speaker 1: that installed him. But I think for some people who

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Speaker 1: are you know, just read my Instagram feed and you'll

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Speaker 1: see what I mean my Instagram comments. But but I

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Speaker 1: feel like I feel like it it reached a zenith

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Speaker 1: though with this, with with these Kavanaugh hearings, that somehow

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Speaker 1: people were like, enough is enough? You know, these crazy

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Speaker 1: women making these claims, and now you go back to

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Speaker 1: what a kid did at seventeen years old and saying,

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Speaker 1: what's going to happen to our sons and brothers? So

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Speaker 1: I feel I feel like, I don't know, for me

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Speaker 1: as an observer, and of course you're much more entrenched

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Speaker 1: in this than I am. Rebecca, this feels to me

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Speaker 1: like the moment, the backlash was heard loud and clear

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Speaker 1: across the country. But what does it mean that more

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Speaker 1: people believed her? Is that indicative of a mass backlash

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Speaker 1: or is that the rhetoric of back clash being weaponized

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Speaker 1: by a right wing that wanted to install their justice. Well,

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Speaker 1: that's fair enough, I mean, yeah, I can see that too.

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Speaker 1: And maybe mass isn't the right word, but allowed and

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Speaker 1: exploitive reaction to this movement, well on a faction of

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Speaker 1: the country that doesn't represent a majority, But that's pretty big,

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Speaker 1: just deciding, you know, I'm fed up and we're not

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Speaker 1: gonna We're not gonna take this anymore in a sense.

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Speaker 1: But but I want to talk about the subject of

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Speaker 1: your book, which is obviously connected to this conversation, women's anger. So, Rebecca,

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Speaker 1: a lot of the anger that you describe in your

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Speaker 1: book is directed at white men, but some of it

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Speaker 1: is directed at women themselves, specifically white women, you know,

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Speaker 1: many of whom supported Trump supported Kavanaugh. How do you

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Speaker 1: explain that, Well, inequity takes all kinds of forms in

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Speaker 1: this country. The country was built on all kinds of

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Speaker 1: forms of in equity. So there's racial inequity, gender inequity,

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Speaker 1: class inequality. So within coalitions that may exist um as

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Speaker 1: mass social movements, whether you're talking about the civil rights

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Speaker 1: movement or the women's movement, there are divergent opinions. There

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Speaker 1: is inequality, and women are angry at each other. Within

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Speaker 1: the movement, allies are angry at allies. This has always

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Speaker 1: been true. How do you explain white women's supporting Trump,

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Speaker 1: supporting Kavanaugh and turning their backs on these other women

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Speaker 1: who have been victims of sexual assault and who tell

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Speaker 1: these unbelievably herroin emotionally difficult stories. It's hard for me

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Speaker 1: to understand how they can just turn their back on

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Speaker 1: these other women. Well, there's a long history of white

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Speaker 1: women supporting the white men to whom they are most

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Speaker 1: closely connected by marriage, by social circles within their families,

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Speaker 1: um against critique or challenge. White women in this country

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Speaker 1: have um always voted Republican as long as as long

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Speaker 1: as they've been keeping track, except for two elections in

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Speaker 1: two and ninety six, And it's one of the things

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Speaker 1: that has created dissonance and um resentments within a women's

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Speaker 1: movement because there are all kinds of incentives offered to

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Speaker 1: white women who are willing to support white men and

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Speaker 1: their continued power, but that does set them at odds

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Speaker 1: with other women, some of whom are trying to challenge

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Speaker 1: the power of those white men, and it works to

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Speaker 1: divide women against each other. It's it's a very difficult

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Speaker 1: dynamic within a women's movement, and it's and race and um.

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Speaker 1: Racial inequality has been used to sort of cut off

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Speaker 1: a percentage of white women who are more invested in

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Speaker 1: supporting the continued power of white men than they are

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Speaker 1: in finding affiliation with other women. Where does the Me

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Speaker 1: Too movement go from here? Do you think this is

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Speaker 1: a setback or do you think it will galvanize the

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Speaker 1: participants of this movement? Well, you know, I have been,

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Speaker 1: actually for somebody who writes a lot about me Too,

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Speaker 1: I've been notoriously bad at predicting what's going to happen next.

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Speaker 1: It surprised me right from the start. I assumed that

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Speaker 1: the story about Harvey Weinstein would pass over within a

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Speaker 1: week or two, and instead it kept going, more stories

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Speaker 1: being told, and then I thought, oh my god, it's

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Speaker 1: been a month, and then it's been two months, and

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Speaker 1: then three months, and then four months, which was really

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Speaker 1: that peak in the fall of seventeen, and I couldn't believe,

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Speaker 1: as a person who studies women's anger, that it was

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Speaker 1: sustaining itself for four months. And it showed me the

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Speaker 1: intensity and the passion that was there and the desperation

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Speaker 1: to get these stories out. And then I sort of thought, Okay, well,

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Speaker 1: now it's receded. But then there were other iterations. There

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Speaker 1: was the revelation about Eric schneiderman Um just recently prior

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Speaker 1: to Kavanaugh. There were the stories about less Moon vest

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Speaker 1: which were just absolutely devastating, and the revelation that this

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Speaker 1: very powerful man is alleged to have committed kind of

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Speaker 1: Weinstein level assaults um throughout his career. Now, the question

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Speaker 1: whether what has just happened around Kavanaugh will be further

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Speaker 1: energizing or whether it will be deadening. I could see

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Speaker 1: it going either way. My My best guess is that

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Speaker 1: it will be ultimately energizing, that it will motivate that

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Speaker 1: women are angry, and while they may feel briefly defeated,

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Speaker 1: that their anger will propel them into continuing to be

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Speaker 1: determined to make to make these realities clear. I'm not

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Speaker 1: going to ask you to predict how this will play

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Speaker 1: out in the mid terms. But it is interesting that,

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Speaker 1: you know, the Republicans seem to be convinced that this

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Speaker 1: is really energized their base in a way that nothing

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Speaker 1: else has over the last couple of years. And the

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Speaker 1: Democrats are also convinced that this is going to energize

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Speaker 1: their base. I mean, how do you assess that? And

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Speaker 1: who do you think is going to prevail in this

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Speaker 1: sort of fight. I think there are two different factors

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Speaker 1: that complicate both of those claims. I think Republicans are

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Speaker 1: probably right that it is energized their base, but the

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Speaker 1: issue is that the Republican base is in fact smaller

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Speaker 1: than a Democratic base, and so it may have increased

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Speaker 1: intensity amongst the Trump base. But that Trump base, first

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Speaker 1: of all, was always smaller statistically than the Democratic base.

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Speaker 1: Remember he did not win the popular vote. So it

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Speaker 1: may well have increased the intensity and excitement amongst the

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Speaker 1: Trump base, But the question is isn't big enough? And

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Speaker 1: in that regard, I would say energy favors the Democrats.

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Speaker 1: But here's what doesn't favor the Democrats the way the

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Speaker 1: system is designed, and that's from jerrymandering and voter suppression efforts,

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Speaker 1: which have already been successful in many states. UM to

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Speaker 1: the basic ways that you know that that we apportioned

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Speaker 1: political power. I mean, one thing that's really notable, and

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Speaker 1: several people have have made mention of it, is that

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Speaker 1: the senators who voted against Kavanaugh represent millions of more

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Speaker 1: Americans because of the way the Senate is designed than

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Speaker 1: the senators who voted for him. And the fact is

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Speaker 1: that there could be more democratic enthusiasm, more UM activism,

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Speaker 1: more people out there casting votes, and it still might

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Speaker 1: not be able to overcome the deficits of gerrymandering and

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Speaker 1: voter suppression UM that Republicans have put in place. Even

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Speaker 1: setting that aside, you know, if if in every Trump

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Speaker 1: state they elected to Republican senators, the Trump States would

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Speaker 1: mean sixty Republican senators, right exactly. Well, that's what I

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Speaker 1: mean by the design of the Senate. You know, I'm

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Speaker 1: not a predictor, especially not after UM, but I think

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Speaker 1: you see a Democratic party changing and growing. Whether that

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Speaker 1: means success in a few weeks in the mid terms,

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Speaker 1: I can't tell you. But you see a Republican party

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Speaker 1: that I think is shrinking slightly, but their grip on

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Speaker 1: power is growing. Your party affiliation is crystal clear. I

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Speaker 1: never my journalism. I'm an opinion journalist that nobody ever

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Speaker 1: wonders about my party affiliation. Before we go, I just

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Speaker 1: want to ask one final, sort of broader question. Do

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Speaker 1: you think the treatment of Christine blasi Ford will have

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Speaker 1: a chilling effect on sexual assault victims and in terms

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Speaker 1: of their willingness to come forward? Because I was so

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Speaker 1: moved and actually somewhat surprised at the number of stories

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Speaker 1: that surfaced from people like Terry Hatcher and Connie Chung,

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Speaker 1: all these well known people, and of course people who

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Speaker 1: are not well known. It made me realize how pervasive

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Speaker 1: this problem is. So what do you think the impact

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Speaker 1: will be on survivors coming forward or victims telling their stories? Well,

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Speaker 1: I think that there are some people who react to

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Speaker 1: a story like this by saying, damn it. I'm going

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Speaker 1: to make it clear that this happened to me too,

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Speaker 1: by sort of being angry about the treatment, and that

432
00:25:52,680 --> 00:25:58,280
Speaker 1: anger um provoking them to tell their story almost in solidarity,

433
00:25:58,320 --> 00:25:59,800
Speaker 1: to say you might not have believed her, but it

434
00:25:59,880 --> 00:26:02,040
Speaker 1: happen to me as well, And this is a real thing,

435
00:26:02,080 --> 00:26:03,920
Speaker 1: and I'm going to insist on it. And I think

436
00:26:03,960 --> 00:26:07,359
Speaker 1: that's one possible psychological reaction. But the other, as you

437
00:26:07,440 --> 00:26:12,400
Speaker 1: point to, she was treated truly horribly. Her life is upended.

438
00:26:12,440 --> 00:26:15,320
Speaker 1: She'll never live the same life that she did before.

439
00:26:15,440 --> 00:26:18,320
Speaker 1: This has been true for Anita Hill as well. And

440
00:26:18,440 --> 00:26:21,080
Speaker 1: with nothing to you know, he's he's on the court.

441
00:26:21,160 --> 00:26:24,399
Speaker 1: He's going to be making laws about women's bodies and

442
00:26:24,480 --> 00:26:27,600
Speaker 1: voting rights deep into our future. And I think that

443
00:26:27,640 --> 00:26:30,240
Speaker 1: there are a whole host of other people for whom

444
00:26:30,280 --> 00:26:32,680
Speaker 1: that is certainly chilling. Who wants to go through that,

445
00:26:33,080 --> 00:26:36,679
Speaker 1: Who wants to expose so much and expose yourself and

446
00:26:36,720 --> 00:26:40,600
Speaker 1: your family to risk and to pain for nothing. I mean,

447
00:26:40,600 --> 00:26:43,280
Speaker 1: this is a country where women came forward and told

448
00:26:43,280 --> 00:26:45,399
Speaker 1: their stories about having been groped by Donald Trump, and

449
00:26:45,440 --> 00:26:48,040
Speaker 1: he got elected president the next month. This is not

450
00:26:48,119 --> 00:26:52,000
Speaker 1: the only example of this, but then it's worth thinking

451
00:26:52,080 --> 00:26:53,960
Speaker 1: about the fact that that did happen. In the fall

452
00:26:54,000 --> 00:26:57,280
Speaker 1: of you had more than a dozen women come forward

453
00:26:57,440 --> 00:27:00,200
Speaker 1: with their names and tell stories about Donald Trump as

454
00:27:00,480 --> 00:27:06,400
Speaker 1: as a sexual predator, and watched him win the presidency anyway,

455
00:27:07,160 --> 00:27:10,040
Speaker 1: and within a year you had a movement of thousands

456
00:27:10,040 --> 00:27:12,679
Speaker 1: of other women coming forward with their stories. So I

457
00:27:12,720 --> 00:27:15,640
Speaker 1: guess that recent history would suggest that it might not

458
00:27:16,280 --> 00:27:19,760
Speaker 1: deaden or or dampen the urge to come forward with

459
00:27:19,760 --> 00:27:24,920
Speaker 1: with stories. Well, we live in very interesting fraud times

460
00:27:25,040 --> 00:27:28,880
Speaker 1: to say the least. Rebecca trast is always We love

461
00:27:28,920 --> 00:27:31,639
Speaker 1: having you on the podcast and love hearing your perspective.

462
00:27:31,880 --> 00:27:34,200
Speaker 1: Thank you so much, Katie. It's really good to be here.

463
00:27:36,880 --> 00:27:39,040
Speaker 1: Time for us to take a quick break. Now, when

464
00:27:39,040 --> 00:27:42,600
Speaker 1: we come back, we'll talk with the legal scholar, Lawrence Tribe,

465
00:27:42,960 --> 00:27:45,960
Speaker 1: about where the Supreme Court will go from here. That's

466
00:27:46,040 --> 00:27:51,680
Speaker 1: right after this. Now let's get back to the show.

467
00:27:54,760 --> 00:27:57,840
Speaker 1: Let's turn out to Lawrence Tribe, a Harvard law professor

468
00:27:58,000 --> 00:28:01,640
Speaker 1: and an expert on constitutional law. We started off by

469
00:28:01,720 --> 00:28:05,200
Speaker 1: asking him why he was opposed to Bret havanas confirmation

470
00:28:05,640 --> 00:28:10,280
Speaker 1: even before Christine Blaussi Ford's allegations came to light. Well,

471
00:28:10,320 --> 00:28:15,080
Speaker 1: I actually knew him, liked him, and respected him. But

472
00:28:15,200 --> 00:28:20,440
Speaker 1: I believed that his views of executive power were so

473
00:28:20,600 --> 00:28:24,159
Speaker 1: broad that it was dangerous for the republic, and that

474
00:28:24,280 --> 00:28:27,359
Speaker 1: his views of individual rights were so narrow that it

475
00:28:27,440 --> 00:28:32,480
Speaker 1: was dangerous for all of us, especially women but really everybody,

476
00:28:32,560 --> 00:28:37,240
Speaker 1: And so reluctantly I was opposed. Can you explain when

477
00:28:37,240 --> 00:28:41,680
Speaker 1: you talk about his views towards executive power for the

478
00:28:41,800 --> 00:28:46,240
Speaker 1: non legal eagles in our audience. Well, unlike many of

479
00:28:46,280 --> 00:28:50,720
Speaker 1: the others on the shortlist that the Federalist Society and

480
00:28:50,760 --> 00:28:56,760
Speaker 1: the Heritage Foundation presented to President Trump, Judge Kavanaugh was

481
00:28:56,800 --> 00:29:02,120
Speaker 1: on record as expressing serious doubts about whether a sitting

482
00:29:02,200 --> 00:29:06,640
Speaker 1: president could properly be indicted, even if he had committed

483
00:29:06,680 --> 00:29:10,800
Speaker 1: a crime, could be forced to testify pursuant to a

484
00:29:10,880 --> 00:29:15,360
Speaker 1: grand jury subpoena. The others on the list really hued

485
00:29:15,600 --> 00:29:19,520
Speaker 1: to the right wing agenda on issues like abortion rights

486
00:29:19,560 --> 00:29:23,960
Speaker 1: and affirmative action and gay rights. But the one thing

487
00:29:24,040 --> 00:29:27,120
Speaker 1: that stuck out with respect to Judge Kavanaugh, who was

488
00:29:27,160 --> 00:29:31,160
Speaker 1: added to the list by President Trump in a kind

489
00:29:31,160 --> 00:29:34,880
Speaker 1: of second round, was that he alone was on record

490
00:29:34,920 --> 00:29:40,680
Speaker 1: as suggesting that presidents should be subject two shields from

491
00:29:41,040 --> 00:29:44,800
Speaker 1: legal accountability that put them above the rest of us,

492
00:29:45,120 --> 00:29:47,720
Speaker 1: and that troubled me a great deal. I know we're

493
00:29:47,720 --> 00:29:50,000
Speaker 1: not mind readers here, but do you think that that

494
00:29:50,120 --> 00:29:54,040
Speaker 1: was one of the things that made Trump select Kavanaugh? Well,

495
00:29:54,080 --> 00:29:59,840
Speaker 1: I certainly don't pretend to read anyone's mind, especially Donald Trump's,

496
00:30:00,360 --> 00:30:03,040
Speaker 1: but I find it hard to imagine that there was

497
00:30:03,120 --> 00:30:06,440
Speaker 1: anything else that made him stand out in a way

498
00:30:06,520 --> 00:30:11,600
Speaker 1: that was so distinctive, because, in fact, McConnell had warned

499
00:30:12,080 --> 00:30:15,520
Speaker 1: Donald Trump that Brett Kavanaugh had a longer and more

500
00:30:15,880 --> 00:30:21,160
Speaker 1: difficult paper trail than anybody else on the shortlist. McConnell

501
00:30:21,200 --> 00:30:24,720
Speaker 1: recommended that he not be the choice, but Trump went

502
00:30:24,720 --> 00:30:28,200
Speaker 1: ahead anyway, And the only thing I can imagine as

503
00:30:28,280 --> 00:30:31,440
Speaker 1: his reason was that this was a nominee who was

504
00:30:31,600 --> 00:30:36,720
Speaker 1: likely to protect Trump from the mounting legal problems that

505
00:30:36,800 --> 00:30:42,440
Speaker 1: he confronted with the Mueller investigation and all of the

506
00:30:42,480 --> 00:30:46,640
Speaker 1: indictments that it had already brought down. Do you worry

507
00:30:46,720 --> 00:30:50,440
Speaker 1: in general about how partisan this whole process has become

508
00:30:51,000 --> 00:30:55,600
Speaker 1: Democrats instinctively opposing Republican nominees and of course vice versa.

509
00:30:56,160 --> 00:30:58,320
Speaker 1: I mean, it wasn't so long ago and the Clinton

510
00:30:58,320 --> 00:31:03,520
Speaker 1: administration that Ginsburg and Briar were supported by huge bipartisan

511
00:31:03,600 --> 00:31:07,120
Speaker 1: majorities in the Senate. What happened? Yeah, For people who

512
00:31:07,120 --> 00:31:09,160
Speaker 1: haven't paid so much attention since then, how did this

513
00:31:09,200 --> 00:31:13,360
Speaker 1: all change? Well? It really has been very partisan for

514
00:31:13,520 --> 00:31:16,640
Speaker 1: a very long time since even before Robert bourke in.

515
00:31:18,400 --> 00:31:22,360
Speaker 1: And there have been short periods during which there was

516
00:31:22,400 --> 00:31:28,280
Speaker 1: not much point in opposing a relatively moderate nominee UM,

517
00:31:28,320 --> 00:31:33,000
Speaker 1: and in fact, despite her prominence in the women's rights movement,

518
00:31:33,400 --> 00:31:39,920
Speaker 1: Ruth Ginsburg was really moderate compared to flamethrowing far left candidates.

519
00:31:40,000 --> 00:31:43,560
Speaker 1: She was somebody who had expressed the view that Roe v.

520
00:31:43,800 --> 00:31:47,280
Speaker 1: Wade came too quickly and that the Court should have

521
00:31:47,320 --> 00:31:51,840
Speaker 1: moved more slowly. And Stephen Bryer was hardly a left

522
00:31:51,880 --> 00:31:58,200
Speaker 1: wing candidate. And those were times when opposition by the

523
00:31:58,440 --> 00:32:02,480
Speaker 1: GOP would have really been quite feutial. We had a

524
00:32:02,480 --> 00:32:06,920
Speaker 1: filibuster rule that would have required sixty votes. It was

525
00:32:06,960 --> 00:32:10,120
Speaker 1: not a time like this one in which the country

526
00:32:10,280 --> 00:32:15,240
Speaker 1: is so totally and profoundly divided, and in which McConnell

527
00:32:15,320 --> 00:32:19,960
Speaker 1: had already established a fifty vote rule so that anything

528
00:32:20,120 --> 00:32:23,000
Speaker 1: more than a majority would prevail. By the way, I

529
00:32:23,000 --> 00:32:26,040
Speaker 1: think there's an important thing for people to note that

530
00:32:26,280 --> 00:32:29,080
Speaker 1: Harry Reid often gets blamed for this. He lowered the

531
00:32:29,120 --> 00:32:33,120
Speaker 1: threshold from sixty votes to fifty for lower court judges,

532
00:32:33,160 --> 00:32:35,800
Speaker 1: Appeals court judges, and district court judges. But it was

533
00:32:35,880 --> 00:32:39,600
Speaker 1: McConnell who changed the rule so that Supreme Court justices

534
00:32:39,640 --> 00:32:43,239
Speaker 1: could not be filibustered. That's right, and when you are

535
00:32:43,320 --> 00:32:46,640
Speaker 1: dealing with a group of nine hundred or more lower

536
00:32:46,680 --> 00:32:50,080
Speaker 1: court judges to say that a mere majority should be

537
00:32:50,200 --> 00:32:53,880
Speaker 1: enough is not all that dramatic, although they called it

538
00:32:54,000 --> 00:32:57,760
Speaker 1: the nuclear option. The really dramatic move was the one

539
00:32:57,800 --> 00:33:02,280
Speaker 1: that was made for the first time by Majority leader McConnell,

540
00:33:02,520 --> 00:33:06,520
Speaker 1: who basically said that from now on, a mere majority

541
00:33:06,600 --> 00:33:11,240
Speaker 1: will suffice to confirm someone to the United States Supreme

542
00:33:11,280 --> 00:33:15,800
Speaker 1: Court for lifetime power over all of us. While we're

543
00:33:15,800 --> 00:33:18,920
Speaker 1: on the topic, larrea of Mitch McConnell, I mean, how

544
00:33:19,000 --> 00:33:22,600
Speaker 1: could he and the Republicans just decide they were not

545
00:33:22,640 --> 00:33:25,680
Speaker 1: going to even meet with Merrick Garland, which I think

546
00:33:26,080 --> 00:33:32,400
Speaker 1: really led to this extraordinary polarization we're witnessing. Now, How

547
00:33:32,400 --> 00:33:35,320
Speaker 1: can they do that? Well, the fact is that he

548
00:33:35,360 --> 00:33:37,520
Speaker 1: could do it because he did it. He could do

549
00:33:37,560 --> 00:33:40,240
Speaker 1: it because he had the power, But there was no

550
00:33:40,520 --> 00:33:43,959
Speaker 1: reasonable argument for it. He claimed that there was some

551
00:33:44,040 --> 00:33:47,760
Speaker 1: kind of precedent for holding a seat vacant for four

552
00:33:47,840 --> 00:33:50,840
Speaker 1: hundred days on the ground that it was in the

553
00:33:50,960 --> 00:33:54,200
Speaker 1: last year of a president's term. Well, you can be

554
00:33:54,320 --> 00:33:59,080
Speaker 1: sure that if some terrible tragedy befalls one of the

555
00:33:59,120 --> 00:34:03,680
Speaker 1: older just in the last year of Donald Trump's term,

556
00:34:03,760 --> 00:34:06,680
Speaker 1: that mix. McConnell is not going to say, well, we

557
00:34:06,720 --> 00:34:10,120
Speaker 1: have to wait until the election of In fact, he

558
00:34:10,160 --> 00:34:13,080
Speaker 1: already said that. He said that over the weekend that

559
00:34:13,160 --> 00:34:16,640
Speaker 1: he modified the McConnell rule so that it's only if

560
00:34:16,640 --> 00:34:19,960
Speaker 1: the Senate is of an opposing party as the president

561
00:34:20,239 --> 00:34:22,360
Speaker 1: that they would do nothing. If it's the same party,

562
00:34:22,400 --> 00:34:26,320
Speaker 1: they move forward. Right, And if you believe that there

563
00:34:26,360 --> 00:34:28,720
Speaker 1: is more than one bridge, I could sell you cheap.

564
00:34:29,080 --> 00:34:32,760
Speaker 1: The fact is that there is no rule. There's simply power,

565
00:34:33,200 --> 00:34:37,000
Speaker 1: naked power, and the idea that power should prevail over

566
00:34:37,080 --> 00:34:41,759
Speaker 1: any exercise of human reason is an idea that can

567
00:34:41,760 --> 00:34:44,680
Speaker 1: get us into profound trouble. I mean, whether you are

568
00:34:44,960 --> 00:34:47,440
Speaker 1: on the left or on the right, you really have

569
00:34:47,680 --> 00:34:52,160
Speaker 1: a stake in a functioning government, of functioning three branch

570
00:34:52,280 --> 00:34:57,280
Speaker 1: government with checks and balances, and with the reasoned argument.

571
00:34:57,640 --> 00:35:02,400
Speaker 1: There's a kind of inherent disadvantage for Democrats, who somehow

572
00:35:03,239 --> 00:35:07,880
Speaker 1: often subject to great criticism, feel constrained by the idea

573
00:35:07,960 --> 00:35:10,560
Speaker 1: that what we've got to have some principle here, we

574
00:35:10,640 --> 00:35:13,000
Speaker 1: have to have an argument. Well, the fact is, if

575
00:35:13,040 --> 00:35:16,760
Speaker 1: the other side doesn't think it needs an argument, then

576
00:35:17,000 --> 00:35:21,440
Speaker 1: feeling constrained by reason puts you at an inherent disadvantage,

577
00:35:21,880 --> 00:35:25,359
Speaker 1: and that's what liberals and progressives have faced. I think

578
00:35:25,400 --> 00:35:30,920
Speaker 1: it's a big mistake to treat the problem of profound

579
00:35:30,960 --> 00:35:36,520
Speaker 1: division as one in which both sides are to blame.

580
00:35:37,000 --> 00:35:39,920
Speaker 1: No one is perfect, that's true. But if what you're

581
00:35:39,920 --> 00:35:44,000
Speaker 1: saying is everybody is equally to blame, that's just that's

582
00:35:44,040 --> 00:35:46,200
Speaker 1: just not true at all. Larry, let me read you

583
00:35:46,560 --> 00:35:50,560
Speaker 1: something you recently tweeted at the White House swearing, and

584
00:35:50,760 --> 00:35:54,279
Speaker 1: Trump obscenely made the occasion a purely partisan one with

585
00:35:54,360 --> 00:35:58,440
Speaker 1: his ludicrous claim that Justice Kavanaugh had been quote proven

586
00:35:58,600 --> 00:36:02,520
Speaker 1: innocent end quote, and his misogynistic apology for the Senate's

587
00:36:02,600 --> 00:36:06,839
Speaker 1: even having listened to Dr Blasi Ford, can you tell

588
00:36:06,920 --> 00:36:10,560
Speaker 1: us how you really feel? Well? That is certainly how

589
00:36:10,600 --> 00:36:14,200
Speaker 1: I feel. It was a frankly nauseating thing to watch.

590
00:36:14,320 --> 00:36:18,120
Speaker 1: I felt really sorry for the two closest friends I

591
00:36:18,160 --> 00:36:22,000
Speaker 1: have on the court, Stephen Bryer and Elena Kagan, because

592
00:36:22,040 --> 00:36:26,359
Speaker 1: in order to help the institution, they obviously felt they

593
00:36:26,400 --> 00:36:30,160
Speaker 1: had to be part of this absolute, you know, charade,

594
00:36:30,560 --> 00:36:34,280
Speaker 1: in which they had to sit there and and be polite,

595
00:36:34,760 --> 00:36:39,319
Speaker 1: while President Trump made it into a completely partisan show.

596
00:36:39,400 --> 00:36:43,840
Speaker 1: He called out and praised all of the Republican members

597
00:36:43,920 --> 00:36:48,040
Speaker 1: of the Judiciary Committee and had nothing but contempt for

598
00:36:48,120 --> 00:36:51,440
Speaker 1: the others. He said that he was apologizing on behalf

599
00:36:51,440 --> 00:36:56,880
Speaker 1: of the nation to poor Brett Kavanaugh, and really perpetuated

600
00:36:56,960 --> 00:37:01,080
Speaker 1: his view which at first he had been persuaded to suppress,

601
00:37:01,800 --> 00:37:05,440
Speaker 1: that Dr Blasie Ford was somehow part of a hoax.

602
00:37:06,120 --> 00:37:09,920
Speaker 1: That's nonsense. Anybody who listened with a halfway open mind

603
00:37:10,400 --> 00:37:13,080
Speaker 1: to the testimony would know that she was telling the truth,

604
00:37:13,600 --> 00:37:16,799
Speaker 1: and the truth for Brett Kavanaugh would be I was

605
00:37:16,920 --> 00:37:20,960
Speaker 1: part of a bunch of frat guys who got blotted drunk.

606
00:37:21,040 --> 00:37:22,799
Speaker 1: I don't know what the hell I did that day,

607
00:37:22,840 --> 00:37:24,560
Speaker 1: and it didn't matter to me. That would have been

608
00:37:24,600 --> 00:37:27,840
Speaker 1: the truth. But I'm sure he was persuaded by Trump

609
00:37:27,880 --> 00:37:32,120
Speaker 1: and McConnell that that would lead them to pull his nomination.

610
00:37:32,239 --> 00:37:36,080
Speaker 1: He had to live big time, and I think it's

611
00:37:36,080 --> 00:37:39,279
Speaker 1: a shame that he did. As a law school professor,

612
00:37:39,719 --> 00:37:42,719
Speaker 1: it's I'd love you to address this whole notion of

613
00:37:42,760 --> 00:37:47,320
Speaker 1: innocent until proven guilty, because that has been used time

614
00:37:47,320 --> 00:37:51,520
Speaker 1: and time again by supporters of Brett Cavanaugh and detractors

615
00:37:51,560 --> 00:37:56,200
Speaker 1: of Dr. Ford. Why is that not an appropriate way

616
00:37:56,400 --> 00:37:59,200
Speaker 1: of looking at this, Well, to begin with, I can

617
00:37:59,239 --> 00:38:03,120
Speaker 1: say that it's not consistent with what Trump himself said

618
00:38:03,160 --> 00:38:06,200
Speaker 1: the other night, when he said, you've been proved innocent. Well,

619
00:38:06,239 --> 00:38:08,399
Speaker 1: that's not part of our system. If it really were

620
00:38:08,440 --> 00:38:12,880
Speaker 1: true that any reasonable doubt would have been enough to

621
00:38:12,920 --> 00:38:15,920
Speaker 1: put him on the court, then the most we have

622
00:38:16,520 --> 00:38:19,600
Speaker 1: is not that he was proved innocent, but that he

623
00:38:19,719 --> 00:38:23,760
Speaker 1: wasn't absolutely proven guilty. But in fact, we're not talking

624
00:38:23,800 --> 00:38:27,360
Speaker 1: about imprisoning somebody or depriving him of liberty or putting

625
00:38:27,400 --> 00:38:30,960
Speaker 1: him to death. We're simply talking about who should exercise

626
00:38:31,719 --> 00:38:36,839
Speaker 1: enormous power over our lives for really thirty five or

627
00:38:36,840 --> 00:38:40,719
Speaker 1: forty years. If there's serious reason to believe that the

628
00:38:40,800 --> 00:38:46,080
Speaker 1: person was really an attempted rapist and that he was

629
00:38:46,239 --> 00:38:49,360
Speaker 1: lying to get onto the court, we don't say that

630
00:38:49,440 --> 00:38:52,160
Speaker 1: because we're not sure he's a liar, we should simply

631
00:38:52,239 --> 00:38:55,200
Speaker 1: give up and put him in that position of power.

632
00:38:55,800 --> 00:39:00,239
Speaker 1: People don't have a right and entitlement to exercise the

633
00:39:00,320 --> 00:39:03,279
Speaker 1: judicial power over others. That's not the same as the

634
00:39:03,400 --> 00:39:07,000
Speaker 1: right We all have to be able to enjoy liberty

635
00:39:07,080 --> 00:39:10,520
Speaker 1: unless we are proven guilty. So the whole paradigm of

636
00:39:11,160 --> 00:39:14,080
Speaker 1: a presumption of innocence is misplaced. That has nothing to

637
00:39:14,160 --> 00:39:16,240
Speaker 1: do with what we're talking about. As some have said,

638
00:39:16,719 --> 00:39:19,719
Speaker 1: it's more like a job interview, except it's like, will

639
00:39:19,800 --> 00:39:22,440
Speaker 1: you hire this person to be not just a babysitter

640
00:39:22,920 --> 00:39:25,480
Speaker 1: for your kids, but a babysitter for your kids and

641
00:39:25,600 --> 00:39:31,120
Speaker 1: grands kids for life, someone who exercises power over everything

642
00:39:31,160 --> 00:39:33,879
Speaker 1: you care about? And if there's good reason to think

643
00:39:33,920 --> 00:39:38,360
Speaker 1: that that person is too partisan or two disrespectful of women,

644
00:39:39,120 --> 00:39:42,359
Speaker 1: you don't say, well, but we're not sure that he's

645
00:39:42,360 --> 00:39:46,800
Speaker 1: a terrible guy, and therefore he's entitled to exercise that power.

646
00:39:47,440 --> 00:39:50,160
Speaker 1: You rather say we're not sure, and therefore we better

647
00:39:50,200 --> 00:39:53,400
Speaker 1: look for someone else. Why do you think Dr Ford's

648
00:39:53,480 --> 00:39:56,239
Speaker 1: testimony didn't seem to matter to the outcome? I mean,

649
00:39:56,280 --> 00:39:59,000
Speaker 1: I can argue that, with one or two notable exceptions,

650
00:39:59,000 --> 00:40:01,480
Speaker 1: the vote was exact gale what it would have been

651
00:40:01,520 --> 00:40:06,120
Speaker 1: had Dr Ford never come forward. Sad but true, sad

652
00:40:06,160 --> 00:40:08,960
Speaker 1: but true. I mean, it seems to me that the

653
00:40:09,080 --> 00:40:15,400
Speaker 1: result was essentially predetermined when, for example, Senator Flake was

654
00:40:15,480 --> 00:40:20,640
Speaker 1: persuaded by Senator Coombs to call for an FBI investigation

655
00:40:20,719 --> 00:40:23,560
Speaker 1: that he had to know would be more a cover

656
00:40:23,680 --> 00:40:26,720
Speaker 1: up than a real investigation. I think it was simply

657
00:40:26,760 --> 00:40:30,080
Speaker 1: to give cover to the whole situation. It was shameful.

658
00:40:30,719 --> 00:40:34,200
Speaker 1: So Judge Kavanaugh is now Justice Kavanaugh, obviously, and you

659
00:40:34,239 --> 00:40:36,400
Speaker 1: wrote an op ed in the New York Times about

660
00:40:36,440 --> 00:40:38,760
Speaker 1: all the ways that he's going to need to recuse

661
00:40:38,840 --> 00:40:43,160
Speaker 1: himself in your view, from cases before the court. Can

662
00:40:43,160 --> 00:40:46,640
Speaker 1: you kind of walk us through your view about the

663
00:40:46,760 --> 00:40:50,759
Speaker 1: major conflicts of interests he faces. Certainly, it seems to

664
00:40:50,800 --> 00:40:56,080
Speaker 1: me that when someone wins confirmation after a kind of

665
00:40:56,880 --> 00:41:03,799
Speaker 1: long and impassioned speech identifying essentially liberal groups and the

666
00:41:03,840 --> 00:41:09,480
Speaker 1: Democratic Party and those who defend the Clintons and those

667
00:41:09,520 --> 00:41:14,480
Speaker 1: who oppose Trump as having destroyed their lives, when anybody

668
00:41:14,480 --> 00:41:17,400
Speaker 1: gets down to the court after that, it's hard to

669
00:41:17,480 --> 00:41:22,320
Speaker 1: imagine that such a judge could be regarded as fair

670
00:41:22,360 --> 00:41:25,279
Speaker 1: in dealing with any issue that involves those groups, and

671
00:41:25,320 --> 00:41:29,680
Speaker 1: that certainly is going to involve issues with regard to abortion,

672
00:41:29,760 --> 00:41:33,600
Speaker 1: issues with regard to gerrymandering, issues with regard to presidential

673
00:41:34,239 --> 00:41:39,160
Speaker 1: power and presidential immunity. I don't expect Judge Kavanaugh to

674
00:41:39,239 --> 00:41:44,040
Speaker 1: actually or now Justice Kavanaugh, actually bow out of all

675
00:41:44,040 --> 00:41:48,440
Speaker 1: those controversies, but an ethical course of action would require

676
00:41:48,520 --> 00:41:52,040
Speaker 1: him to do so. Respect for the Court's integrity and

677
00:41:52,120 --> 00:41:56,080
Speaker 1: its credibility would require him to do so. But to

678
00:41:56,200 --> 00:42:00,319
Speaker 1: get to specifics, it's rather complicated. Imagine, for example, that

679
00:42:00,440 --> 00:42:03,360
Speaker 1: a lower court has held that the President of the

680
00:42:03,440 --> 00:42:07,120
Speaker 1: United States cannot be forced to answer a subpoena from

681
00:42:07,120 --> 00:42:11,200
Speaker 1: a grand jury. The U. S. Supreme Court could easily

682
00:42:11,400 --> 00:42:16,160
Speaker 1: leave that decision in place and protect Trump, even if

683
00:42:16,520 --> 00:42:20,400
Speaker 1: in order to do so, Kavanaugh would have to recouse himself.

684
00:42:20,920 --> 00:42:24,239
Speaker 1: That is, there are times when recusal could kind of

685
00:42:24,280 --> 00:42:28,240
Speaker 1: make the point that he thinks he's impartial but wants

686
00:42:28,280 --> 00:42:33,840
Speaker 1: to respect those who find him biased. And yet the

687
00:42:33,960 --> 00:42:37,719
Speaker 1: result of a four force split would be believe the

688
00:42:37,760 --> 00:42:41,719
Speaker 1: decision of the lower court intact. So there are questions

689
00:42:41,719 --> 00:42:45,560
Speaker 1: of tactics and strategy that are going to be pervasive

690
00:42:45,680 --> 00:42:48,959
Speaker 1: throughout his service on the court. Larry, let me ask

691
00:42:49,000 --> 00:42:53,440
Speaker 1: you about Justice Kavanaugh moving forward, not just on conflict

692
00:42:53,480 --> 00:42:58,440
Speaker 1: of interest, but on that kind of intangible impact this

693
00:42:58,600 --> 00:43:02,600
Speaker 1: kind of bruising confirm nation could have on a justice.

694
00:43:03,120 --> 00:43:07,880
Speaker 1: It certainly harkens back to the Clarence Thomas confirmation hearings

695
00:43:08,080 --> 00:43:11,319
Speaker 1: twenty seven years ago. Let's listen to a clip from

696
00:43:11,360 --> 00:43:16,759
Speaker 1: that and from my standpoint as a Black American, as

697
00:43:16,760 --> 00:43:19,840
Speaker 1: far as I'm concerned, it is a high tech lynching

698
00:43:20,400 --> 00:43:24,239
Speaker 1: for uppity blacks who in any way deign to think

699
00:43:24,320 --> 00:43:33,160
Speaker 1: for themselves. Using Clarence Thomas as an example, will Justice Kavanaugh,

700
00:43:33,160 --> 00:43:37,680
Speaker 1: in your view, go more to the right or will

701
00:43:37,719 --> 00:43:43,680
Speaker 1: his opinions be somehow colored by his experience? You know,

702
00:43:43,800 --> 00:43:46,360
Speaker 1: I wish I had a crystal ball to answer that question.

703
00:43:46,440 --> 00:43:48,759
Speaker 1: I think it's going to depend on all kinds of

704
00:43:48,840 --> 00:43:52,719
Speaker 1: variables that are not yet determined. I think the Clarence

705
00:43:52,760 --> 00:43:56,840
Speaker 1: Thomas situation was quite different. He did not during his

706
00:43:56,960 --> 00:44:00,560
Speaker 1: testimony call out a kind of enemies list to people

707
00:44:00,640 --> 00:44:04,520
Speaker 1: that he blamed for destroying his life. His general comments

708
00:44:04,560 --> 00:44:08,279
Speaker 1: about a high tech lynching and about the unfairness of

709
00:44:08,320 --> 00:44:11,960
Speaker 1: the process did not put him in a situation where

710
00:44:12,320 --> 00:44:15,279
Speaker 1: he had a kind of presumption to overcome that there

711
00:44:15,280 --> 00:44:20,680
Speaker 1: were groups whose cases he would not hear Impartially, Unfortunately

712
00:44:20,760 --> 00:44:25,440
Speaker 1: for Justice Kavanagh, he is in that very situation. He

713
00:44:25,560 --> 00:44:29,840
Speaker 1: might bend over backwards in order to rule in favor

714
00:44:29,960 --> 00:44:33,040
Speaker 1: of groups that he called out as his enemies, in

715
00:44:33,160 --> 00:44:37,600
Speaker 1: order to prove a point. He might worry that it

716
00:44:37,640 --> 00:44:41,440
Speaker 1: looks like he's bending over backwards whenever he rules in

717
00:44:41,560 --> 00:44:44,279
Speaker 1: favor of planned parenthood or the a c l U

718
00:44:44,640 --> 00:44:48,360
Speaker 1: or the National Resources Defense Fund. I would hate to

719
00:44:48,360 --> 00:44:53,000
Speaker 1: be in his situation of not knowing what positions will

720
00:44:53,080 --> 00:44:56,640
Speaker 1: seem fair and be fair. But he's got all of

721
00:44:56,680 --> 00:44:59,840
Speaker 1: that to grapple with in a way that no justice

722
00:45:00,040 --> 00:45:02,279
Speaker 1: our history has ever done. What do you think are

723
00:45:02,320 --> 00:45:08,480
Speaker 1: the major issues now that Kavanaugh has replaced Kennedy where

724
00:45:08,560 --> 00:45:10,879
Speaker 1: the Court will move to the right. I mean, of course,

725
00:45:10,920 --> 00:45:14,040
Speaker 1: everybody talks about abortion rights, but the consequences are far

726
00:45:14,160 --> 00:45:17,600
Speaker 1: larger than just that. That's right. I think the issues

727
00:45:17,640 --> 00:45:21,680
Speaker 1: on which the Court is bound to tilt further right

728
00:45:22,040 --> 00:45:26,360
Speaker 1: with Kavanaugh than Kennedy include not just abortion, but all

729
00:45:26,400 --> 00:45:30,960
Speaker 1: of the surrounding issues of sexual autonomy and freedom and

730
00:45:31,080 --> 00:45:36,360
Speaker 1: personal liberty beyond those that are very narrowly and specifically

731
00:45:36,719 --> 00:45:43,280
Speaker 1: enumerated in the Constitution, issues about contraception, sexual choice, same

732
00:45:43,360 --> 00:45:47,040
Speaker 1: sex marriage, all of those questions, I think the Court

733
00:45:47,080 --> 00:45:49,840
Speaker 1: will turn to the right. It will certainly turn to

734
00:45:49,880 --> 00:45:54,600
Speaker 1: the right on religious exemptions from anti discrimination rules. It

735
00:45:54,640 --> 00:45:57,480
Speaker 1: will turn to the right on affirmative action based on

736
00:45:58,200 --> 00:46:03,960
Speaker 1: considerations like race. It will essentially eliminate, I think in

737
00:46:04,120 --> 00:46:09,800
Speaker 1: a legitimate use of race by government in enhancing diversity

738
00:46:09,960 --> 00:46:13,360
Speaker 1: or inclusion. It will also move to the right on

739
00:46:13,920 --> 00:46:20,440
Speaker 1: presidential power and the immunity of a president from legal accountability.

740
00:46:20,520 --> 00:46:24,200
Speaker 1: It's very likely to turn to the right on issues

741
00:46:24,280 --> 00:46:28,400
Speaker 1: of campaign finance and the use of free speech to

742
00:46:28,600 --> 00:46:33,040
Speaker 1: limit government regulation where information is part of the market,

743
00:46:33,719 --> 00:46:40,440
Speaker 1: and where there's an attempt to reduce disparities in wealth

744
00:46:40,680 --> 00:46:46,279
Speaker 1: and make wealth less determinant in political power. So on

745
00:46:46,360 --> 00:46:50,480
Speaker 1: every important question, the Court has bound to tie further

746
00:46:50,640 --> 00:46:53,960
Speaker 1: right under Kavanaugh. Do you think that Roe v. Wade

747
00:46:53,960 --> 00:46:59,000
Speaker 1: will be overturned? I don't think that we will ever see,

748
00:46:59,360 --> 00:47:03,360
Speaker 1: at least in the foreseeable future, a decision that uses

749
00:47:03,400 --> 00:47:07,440
Speaker 1: those words Roe v. Wade is hereby overruled. But the

750
00:47:07,480 --> 00:47:10,400
Speaker 1: Court wouldn't need ever to say that. In order to

751
00:47:10,600 --> 00:47:14,799
Speaker 1: essentially hollow out and gut the rights of women to

752
00:47:14,840 --> 00:47:19,840
Speaker 1: control their reproductive freedom. The Court could uphold every imaginable,

753
00:47:20,160 --> 00:47:25,640
Speaker 1: politically achievable restriction on abortion without ever actually overruling Roe v.

754
00:47:25,800 --> 00:47:30,560
Speaker 1: Wade and triggering a gratuitous backlash. So you're saying, in essence,

755
00:47:30,640 --> 00:47:35,080
Speaker 1: it would be overturned, but not in those words. I

756
00:47:35,120 --> 00:47:38,319
Speaker 1: think that's exactly right. I think that the rights of

757
00:47:38,400 --> 00:47:43,759
Speaker 1: women to control their own reproductive lives are very much

758
00:47:43,840 --> 00:47:47,359
Speaker 1: on the line, not in terms of a decision that

759
00:47:47,480 --> 00:47:51,440
Speaker 1: waves a red flag and says Row is overruled, but

760
00:47:51,560 --> 00:47:57,160
Speaker 1: in terms of decisions upholding restrictions on women that make

761
00:47:57,239 --> 00:48:00,279
Speaker 1: it impossible for all but the wealthiest women in the

762
00:48:00,320 --> 00:48:04,880
Speaker 1: most liberal states to control their lives. And that doesn't

763
00:48:04,920 --> 00:48:10,400
Speaker 1: mean only restrictions on abortion. People don't seem to realize

764
00:48:10,440 --> 00:48:14,280
Speaker 1: that this is a two sided coin. The same government

765
00:48:14,320 --> 00:48:17,200
Speaker 1: that has the power to tell a woman you must

766
00:48:17,360 --> 00:48:21,040
Speaker 1: remain pregnant, you can't have an abortion, may also end

767
00:48:21,120 --> 00:48:24,040
Speaker 1: up having the power to tell her we don't want

768
00:48:24,080 --> 00:48:26,719
Speaker 1: you to have this baby, you have to have an abortion.

769
00:48:27,320 --> 00:48:31,640
Speaker 1: That was one of the decisions that Justice Kevanaugh when

770
00:48:31,680 --> 00:48:34,680
Speaker 1: he was a judge on the DC Circuit, effectively upheld

771
00:48:35,360 --> 00:48:39,799
Speaker 1: when he said that women of limited intellectual capacity at

772
00:48:39,840 --> 00:48:43,960
Speaker 1: birth can be required to have elective surgery, and the

773
00:48:44,040 --> 00:48:49,520
Speaker 1: decision actually included abortion. So that this is not a

774
00:48:49,520 --> 00:48:54,840
Speaker 1: anti abortion justice alone. It seems to be an anti

775
00:48:54,960 --> 00:48:58,839
Speaker 1: choice justice, and it's a knife that people will learn

776
00:48:58,920 --> 00:49:03,680
Speaker 1: in time can cut both ways. Wow, Well, that's pretty

777
00:49:03,800 --> 00:49:07,640
Speaker 1: chilling Um one final question before we let you go. Um.

778
00:49:07,719 --> 00:49:12,040
Speaker 1: One of the things that Judge Kavanaugh mentioned during his

779
00:49:12,520 --> 00:49:15,480
Speaker 1: hearing was that he was really upset that he probably

780
00:49:15,520 --> 00:49:18,240
Speaker 1: wouldn't be allowed to teach at Harvard Law School again.

781
00:49:18,840 --> 00:49:20,600
Speaker 1: Do you think he should be allowed to teach at

782
00:49:20,640 --> 00:49:24,400
Speaker 1: Harvard Law School in the future. Well, no, that isn't

783
00:49:24,480 --> 00:49:28,000
Speaker 1: really an issue before is he decided himself not to

784
00:49:28,120 --> 00:49:32,600
Speaker 1: teach at Harvard next spring, next winter. Um, And I

785
00:49:32,640 --> 00:49:35,719
Speaker 1: have no idea what the future will hold. But if

786
00:49:35,760 --> 00:49:38,000
Speaker 1: a year from now he decided he wanted to come back,

787
00:49:38,040 --> 00:49:40,399
Speaker 1: would you have a problem with that? You know, I'd

788
00:49:40,480 --> 00:49:43,000
Speaker 1: rather not across that bridge until I come to it.

789
00:49:43,040 --> 00:49:46,600
Speaker 1: I don't believe we should be preventing anyone from teaching

790
00:49:46,640 --> 00:49:48,759
Speaker 1: who is as good and interesting a teacher as he

791
00:49:48,880 --> 00:49:52,479
Speaker 1: is just because we disagree with him. But in this case,

792
00:49:52,520 --> 00:49:55,200
Speaker 1: it's not just disagreement. I mean, I can easily see

793
00:49:55,280 --> 00:49:59,080
Speaker 1: students saying it's not a good example to have someone

794
00:49:59,120 --> 00:50:02,200
Speaker 1: who seems to have committed perjury to become a justice

795
00:50:02,360 --> 00:50:05,560
Speaker 1: to be on our faculty. It's not a good example

796
00:50:05,640 --> 00:50:10,680
Speaker 1: to have someone who probably committed attempted rape teaching our students.

797
00:50:11,280 --> 00:50:14,120
Speaker 1: I'm not saying that myself, but I would certainly have

798
00:50:14,200 --> 00:50:16,239
Speaker 1: a lot of sympathy for students who did say it,

799
00:50:16,520 --> 00:50:20,200
Speaker 1: for people listening to this podcast, Larry and Closing, who

800
00:50:20,280 --> 00:50:23,920
Speaker 1: believe in many of the things that now a five

801
00:50:24,080 --> 00:50:28,239
Speaker 1: for majority on the Supreme Court, that that majority does

802
00:50:28,280 --> 00:50:32,640
Speaker 1: not believe in. What would you advise the average American

803
00:50:32,760 --> 00:50:38,560
Speaker 1: citizen to do, who possibly feels powerless at this juncture.

804
00:50:39,400 --> 00:50:43,239
Speaker 1: I think citizens are only as powerless as they let

805
00:50:43,280 --> 00:50:47,799
Speaker 1: themselves become. I would advise people to vote. I would

806
00:50:47,840 --> 00:50:51,440
Speaker 1: advise people to urge others to vote. The number of

807
00:50:51,440 --> 00:50:54,320
Speaker 1: people who are registered to vote and then don't vote

808
00:50:54,400 --> 00:50:58,799
Speaker 1: is staggering in this country. Elections do have consequences. We

809
00:50:58,880 --> 00:51:02,360
Speaker 1: have seen it in a dramatic way. If that means

810
00:51:02,440 --> 00:51:06,319
Speaker 1: that people should take power back. If we have a

811
00:51:06,400 --> 00:51:10,400
Speaker 1: majority of both the House and the Senate and eventually

812
00:51:10,560 --> 00:51:13,759
Speaker 1: retake the White House, we will have power to do

813
00:51:13,800 --> 00:51:17,239
Speaker 1: a great many things. We will have power to change

814
00:51:18,040 --> 00:51:22,319
Speaker 1: a great many things by legislation carefully designed to be

815
00:51:23,120 --> 00:51:27,120
Speaker 1: as invulnerable as possible, even to the decisions of a

816
00:51:27,239 --> 00:51:32,239
Speaker 1: very conservative court. Some people are talking about changing the

817
00:51:32,360 --> 00:51:36,040
Speaker 1: terms of justices so that they serve for only eighteen

818
00:51:36,120 --> 00:51:39,200
Speaker 1: years on the court and then serve on the lower courts.

819
00:51:39,280 --> 00:51:43,040
Speaker 1: I think that's worth examining. The question of whether we

820
00:51:43,080 --> 00:51:47,160
Speaker 1: should have a larger court than just nine is worth examining.

821
00:51:47,760 --> 00:51:50,040
Speaker 1: But I think the first thing to do is vote,

822
00:51:50,560 --> 00:51:55,360
Speaker 1: and when we have political power, the options are unlimited.

823
00:51:55,520 --> 00:51:58,279
Speaker 1: On that note, Larry Tribe, thank you so much for

824
00:51:58,320 --> 00:52:00,680
Speaker 1: your time. It's great to talk up to you, and

825
00:52:00,719 --> 00:52:07,960
Speaker 1: thanks for your expertise on all these topics. So that

826
00:52:08,000 --> 00:52:10,520
Speaker 1: wraps it up for us today. Before we go, though,

827
00:52:10,560 --> 00:52:13,000
Speaker 1: we want to introduce you all to our new producer,

828
00:52:13,080 --> 00:52:16,800
Speaker 1: Emma more constern no relation to Rhoda, by the way.

829
00:52:16,960 --> 00:52:19,200
Speaker 1: We're very excited to have her on board and we

830
00:52:19,280 --> 00:52:22,480
Speaker 1: want to thank her for her work on this week's show. Also,

831
00:52:22,640 --> 00:52:25,400
Speaker 1: it means it's time to say goodbye to Gianna Palmer,

832
00:52:26,840 --> 00:52:30,480
Speaker 1: our outgoing producer of over two years, who's apparently onto

833
00:52:30,560 --> 00:52:33,960
Speaker 1: bigger and better things, well or smaller worse things, which

834
00:52:34,000 --> 00:52:36,400
Speaker 1: is what I choose to think anyway, Thanks as usual

835
00:52:36,480 --> 00:52:40,640
Speaker 1: to our associate producer Nora Richie, our audio engineer Jared O'Connell,

836
00:52:40,640 --> 00:52:42,880
Speaker 1: all the nice people who haven't left us. No I'm kidding,

837
00:52:43,719 --> 00:52:46,840
Speaker 1: Julian Nicholson and Mark Holden and Invisible Studios helped with

838
00:52:46,880 --> 00:52:51,719
Speaker 1: today's episode, as did Karin Smith at kpf A in Berkeley, California,

839
00:52:51,840 --> 00:52:55,840
Speaker 1: and Jen Stanley in one of my favorite places, Brookline, Massachusetts.

840
00:52:55,840 --> 00:52:58,359
Speaker 1: You're so good at the guilt thing, Brian. And where

841
00:52:58,400 --> 00:53:01,960
Speaker 1: would I be without my assistant Beth de Mos Probably summer.

842
00:53:02,080 --> 00:53:04,719
Speaker 1: I'm not supposed to be, that's for sure, So thank

843
00:53:04,760 --> 00:53:07,240
Speaker 1: you Beth. And a big thank you to Julia Lewis,

844
00:53:07,600 --> 00:53:11,080
Speaker 1: my social media right hand woman. Mark Phillips wrote our

845
00:53:11,160 --> 00:53:13,600
Speaker 1: theme music. You can find me on Twitter under at

846
00:53:13,680 --> 00:53:16,680
Speaker 1: Goldsmith B and you can find Katie on Instagram, Twitter,

847
00:53:16,800 --> 00:53:20,200
Speaker 1: all over the social media platforms under what Else Katie

848
00:53:20,200 --> 00:53:24,239
Speaker 1: Current pretty much Instagram Stories seven and as always, we

849
00:53:24,320 --> 00:53:26,640
Speaker 1: want to hear from you all. You can send us

850
00:53:26,640 --> 00:53:30,759
Speaker 1: an email or voice memo at comments at correct podcast

851
00:53:30,840 --> 00:53:34,239
Speaker 1: dot com or leave us an old fashioned voicemail by

852
00:53:34,280 --> 00:53:38,440
Speaker 1: calling nine to nine two to four, four six three seven.

853
00:53:38,600 --> 00:53:42,040
Speaker 1: I love hearing from you as always, Thanks so much

854
00:53:42,080 --> 00:53:44,560
Speaker 1: for listening, and we'll talk to you next week and

855
00:53:44,640 --> 00:53:48,640
Speaker 1: Gianna will miss you. Thank you for everything. We love you, Gianna.

856
00:53:48,760 --> 00:53:49,319
Speaker 1: Good luck