Amicus With Dahlia Lithwick: “And Now a Word from the White House”

Date: October 14, 2016
Host: Dahlia Lithwick
Guests: Brian Deese (Senior Advisor to President Obama), Neil Eggleston (White House Counsel), Jeffrey Fisher (Stanford Law School)

Episode Overview

This episode explores two major themes:

1. The ongoing nomination saga of Merrick Garland to the Supreme Court and the institutional crisis caused by Senate inaction. Dahlia Lithwick interviews two key White House insiders—Brian Deese and Neil Eggleston—about the unprecedented blockade, political calculations, and long-term ramifications for the Court and U.S. democracy.

2. A look inside recent Supreme Court arguments regarding racial bias in jury deliberations with Jeffrey Fisher, who argued a high-profile case about whether extreme racism in the jury room can override historic protections of jury secrecy.

Part 1: Inside the White House on the Garland Nomination

Guests: Brian Deese and Neil Eggleston
Timestamps: 00:56–21:13

The Disappearing Nominee?

[00:56–06:14]

• Lithwick asks if Merrick Garland is disappearing from public conversation and whether his nomination has ceased to be a galvanizing political issue.
• Brian Deese counters that public opinion remains aware and supportive of filling the vacancy:

  “Public opinion research … shows consistently, the American public is aware of the Supreme Court vacancy and they support generally by close to a 2 to 1 margin action to fill it … and are aware that Merrick Garland is the nominee.” (02:35)

• Deese emphasizes that the White House deliberately kept Garland's nomination above the political fray to focus on qualifications, not partisanship.

The Political Flip and Senate Races

[04:09–06:14]

• Lithwick asks if Senate obstruction shifted from potentially disqualifying to a Republican badge of honor.
• Deese: Most senators in tight races are not comfortable defending the blockade:

  “[This] has contributed to a pervasive sense that the Republican majority in the Senate has failed to execute its basic responsibilities.” (05:32)

The Supreme Court as a Voting Issue

[06:14–08:41]

• Lithwick inquires about the “enthusiasm gap”—why Democrats rank the Court lower as a voting issue than Republicans.
• Neil Eggleston:

  “I think in the last several years we've seen a series of quite significant cases … [so] there is much more attention by Democrats … on that outcome, who the president is going to be and who has the opportunity to get the next confirmation.” (07:16)
  He stresses historic precedent for confirming Supreme Court nominees in election years: “The Republicans in this case have acted in a way that is unprecedented in history … There have been a number of nominees in the last year of a president's term going all the way back to President Washington.” (07:55)

Messaging Challenges and Institutional Impact

[08:41–11:23]

• Lithwick notes the Court itself downplays dysfunction, complicating the White House's efforts to highlight the problem.
• Eggleston worries about the institution’s long-term health:

  “We saw last term, hopefully we won't see this term because Judge Garland will be confirmed quickly, but we saw the court essentially unable to fulfill its responsibility.” (09:53)

  • The Court has fewer cases and more 4-4 splits, harming its authority.

Should a Paralyzed Court Be Celebrated?

[11:23–13:52]

• Lithwick reflects that some progressives welcome a “minimalist” court.
• Eggleston disagrees:

  “There are an odd number of justices for a reason ... we're basically in a situation where the Fifth Circuit has made law ... because of a 4-4 court. I just think that's inappropriate.” (12:11)

Obama’s Strategy: Garland as the ‘Unimpeachable’ Nominee

[13:52–18:37]

• Lithwick presses on criticisms from progressives who wanted a more “rally-worthy” nominee.
• Deese defends the approach:

  “This reflects a broader approach ... [Obama] wanted to play it straight. I want to find the best possible person for this role at this time.” (14:54)

  • Garland’s unimpeachable credentials shifted the argument to Senate dysfunction, not partisan politics.
• Deese insists Garland’s support among progressives is robust.

What If a Deadlocked Court Decides the Election?

[18:37–20:58]

• Lithwick asks about fears of a “Bush v. Gore meltdown” with an eight-justice Court.
• Deese: Not top worry, but the greater danger is:

  “…the impulse that led to this unprecedented and historic obstruction is amplified rather than reduced in the country. … there’s already some talk among conservatives … maybe we could block for four years.” (19:25)

  • The long-term risk is normalizing indefinite Supreme Court blockade.

Part 2: Supreme Court Arguments—Racial Bias in Jury Deliberations

Guest: Jeffrey Fisher
Timestamps: 21:13–40:13

What's at Stake?

[21:13–23:05]

• Lithwick frames the case: Should courts ever probe the secrecy of jury deliberations if extreme, intentional racial bias is revealed?
• Fisher:

  “So at a high level … [the tradition is] to keep jury deliberation … private … but there have always been exceptions to the rule … and that’s why we say even though there are significant interests on the other side, they're not strong enough to override the countervailing interest in fighting against racial bias …” (22:17)

The Facts: Pena Rodriguez v. Colorado

[23:05–25:07]

• Fisher recounts:
  • Mr. Pena Rodriguez, a Hispanic horse trainer, convicted after a juror pressured others to convict because “Mexican men do whatever they want with women” and “you couldn't believe [the alibi witness] because he was an illegal.”
  • After trial, two jurors reported this racism; courts refused to grant a new trial, citing jury secrecy.

Why Protect Jury Secrecy?

[25:07–26:36]

• Fisher outlines three state interests:
  1. Full, frank discussion in the jury room
  2. Protecting jurors from post-trial harassment
  3. Ensuring finality of verdicts

The Lesser Evil?

[26:36–28:29]

• Lithwick: Is the Court choosing between two evils (jury secrecy vs. racism)?
• Fisher: Racism must always lose:

  “…when it comes to racial bias infecting the criminal justice system, there's such an overriding societal interest in ridding our system of that poison that … the lesser evil can never be racism.” (27:54)

  • Other doctrines recognize the need for “special medicine” to address racial bias.

Slippery Slope Concerns

[28:29–33:24]

• Chief Justice Roberts and Justice Alito question whether recognizing race bias would force the Court to do the same for religious or other biases:
  • Roberts: “Once we decide race … the next case is going to be religion … [Is there] a limiting principle?” (29:20)
  • Alito fantasizes about ‘policing’ all politically incorrect statements:

    “What would happen if one of the jurors has the sensibility of a lot of current college students and thinks that … something that's said falls into … a racial comment?” (29:59)

• Fisher responds: Courts regularly handle discrimination claims and can objectively distinguish true bias.

On Pretrial Safeguards and the Impossibility of Screening Out All Racism

[33:24–34:58]

• Fisher: It’s unrealistic to expect voir dire to ferret out all bias; racists don’t self-identify.

The Justices’ Perspective: Race Matters

[34:58–37:48]

• Justice Sotomayor:

  “I always thought the most pernicious and odious discrimination in our law is based on race.” (35:16)

• Justice Kagan:

  “We have like, screaming race bias in the jury room. … why would this category of cases be different from those other two [where the Court created rules to reduce race bias]?” (35:54)

• Fisher: The Court—and society—remain divided over how to handle race.

The Broader Context: Race, Law, and the 2016 Election

[38:18–39:57]

• Lithwick and Fisher reflect on the challenge of addressing racial bias in the midst of a politically and racially charged election season.
• Fisher: The lawyer’s job is to stay grounded in the law while recognizing the weight of the moment.

Memorable Quotes

• Brian Deese on Senate Inaction:

  “I think that this is an issue that has contributed to a pervasive sense that the Republican majority in the Senate has failed to execute its basic responsibilities.” (05:32)

• Neil Eggleston on Institutional Damage:

  "We saw the court essentially unable to fulfill its responsibility … and I worry about the impact on the court as an institution.” (09:53)

• Jeffrey Fisher on Racism vs. Jury Secrecy:

  “… the lesser evil can never be racism.” (27:54)

• Justice Sotomayor:

  “I always thought the most pernicious and odious discrimination in our law is based on race.” (35:16)

• Justice Kagan:

  “We have like, screaming race bias in the jury room. … why would this category of cases be different …?” (35:54)

Key Segment Timestamps

• 00:56 – Garland and the “disappearing” nomination question
• 02:35 – Deese explains public support for action
• 07:55 – Eggleston: historic precedent for election-year SCOTUS nominations
• 09:53 – Institutional impact of an 8-justice court
• 12:11 – Eggleston on why a 'minimalist' court isn’t good for justice
• 14:54 – Why Garland was chosen
• 19:25 – The lasting threat: normalizing obstruction
• 23:13 – The facts of Pena Rodriguez v. Colorado
• 27:54 – Fisher: “the lesser evil can never be racism”
• 29:20 – Roberts: slippery slope to religion
• 35:16 – Sotomayor: “the most pernicious … is race”
• 35:54 – Kagan: “screaming race bias”
• 38:53 – Fisher on the challenge of arguing race in a charged political climate

Tone and Style

• The tone is urgent, informed, and respectfully combative.
• Guests lay out institutional, legal, and political nuance directly and candidly.
• Notable moments include frank White House views and justices grappling openly with race.

Useful for listeners who missed the episode:
This episode offers a rare White House perspective on the political and constitutional stakes of the Garland blockade and a gripping look inside a Supreme Court argument at the intersection of racism, legal tradition, and American justice.