Podcast Summary: "What Progressives Got Wrong About the Judiciary"

Amicus with Dahlia Lithwick | Slate Podcasts
Episode Date: October 10, 2020

Overview

This episode centers on progressive missteps regarding the judiciary and the resulting conservative dominance in shaping the federal courts, especially the Supreme Court. Host Dahlia Lithwick speaks with Robert Rabin, a senior Hill staffer and legal strategist, about the asymmetry between the left and right in treating judicial appointments as matters of political power. The episode also delves into contemporary issues like the rushed Amy Coney Barrett nomination, the Democrats’ response, and the political branding problems around terms like "court packing." In a second segment, Lithwick discusses the 25th Amendment and presidential fitness for office with Professor Brian Kalt, given President Trump’s hospitalization for COVID-19.

Key Discussion Points and Insights

1. The Judiciary as a Political Battlefield

The Central Asymmetry (07:11–09:45)

• Rabin asserts that conservatives and Republicans have long seen the composition of the federal judiciary as a political project—a way to entrench policy gains:
  • "Conservatives have treated the composition of the federal judiciary as a political question... For decades, conservatives have invested in the politics of the composition of the judiciary." – Robert Rabin (07:18)
• Progressives, meanwhile, have focused on values like diversity and integrity, not raw political power.
• Conservatives built a robust infrastructure, from the Federalist Society to think tanks, to prioritize judicial appointments. Progressives have not matched this intensity or organization.

Democrats in a Bind (05:43–07:10)

• Senate Democrats have condemned the rushed Barrett confirmation as illegitimate, yet continue to engage in standard confirmation practices.
• Dahlia Lithwick questions whether this approach is defeatist and asks Rabin to explain the apparent lack of an aggressive strategy.

2. Obama’s Appointments and Missed Opportunities

Obama and the Court's Depoliticization (09:46–11:02)

• Lithwick notes that Obama chose moderate justices (Sotomayor, Kagan) rather than ideological warriors, arguably missing a chance to counter conservative maneuvering.

• Rabin counters that lacking the political will on the left, more progressive nominees couldn't have been confirmed:

  • "Could Bryan Stevenson or Pamela Karlan have been confirmed by the then composed United States Senate? Not all of the Democratic senators are... interested in supporting a Democratic constituency on the question of the courts." – Robert Rabin (10:46)

• The infrastructure, not just individual choices or Senate leaders, is key to lasting political outcomes.

3. The Long Shadow of Robert Bork

The Bork Narrative and Right-Wing Branding (19:59–24:53)

• There’s a persistent narrative that Democrats "started it" by rejecting Bork, which conservatives use as political justification for subsequent actions.
  • “So yes, it all started with Bork. Bullshit. ... Nobody started anything. We’re fighting about power, and it matters.” – Robert Rabin (21:25)
• Rabin points to the right’s skill in political branding, comparing it to the "death tax" rebranding by wealthy families.

4. Progressive Messaging and Court Nominations

Failures of Messaging and Mobilization (25:05–29:28)

• Democrats release detailed policy briefs about nominees but struggle to mobilize the public or frame judicial fights in compelling terms.
• Rabin advocates for a more dramatic, Trumpian approach to cut through noise and mobilize mass action:
  • "Earnestness never beats bare knuckles, and that's what's going on." – Robert Rabin (27:28)
• The left rallies behind certain nominees (Sotomayor, RBG) but lacks a sustained infrastructure for ongoing judicial political work.
• Rabin recommends framing confirmations around visceral, tangible public issues rather than technical legal debates.

5. The Traps of Personal Attack and Framing

Personal Attacks Are Ineffective (29:29–33:07)

• Standard "monsterizing" approaches are especially futile with a nominee like Amy Coney Barrett, who is personally appealing.

• Rabin suggests focusing on the implications of her jurisprudence (“nice people in a bad regime”) rather than personal character.

  • "...what's a nice person like you doing in a regime like that? That would have been one way to handle it." – Robert Rabin (30:55)

• Questioning Barrett’s religious views is a political minefield; the right weaponizes accusations of anti-Catholic bias to stymie scrutiny.

6. Court Packing and Political Branding

How to Talk About Systemic Reform (34:27–39:36)

• Lithwick and Rabin discuss the "court packing" branding trap and how Republicans weaponize Democratic openness to systemic reform.
• Rabin argues for reframing:
  • "Call it structural reform. Call it court fairness, call it the death tax. I don't care what you call it, but stop calling it something that the polls and people tell you is pernicious." – Robert Rabin (37:30)
• He urges Democrats to characterize the current conservative strategy as the true court packing.

7. The Limits of Hope for Republican Moderation

On Bill Barr and the DOJ (39:36–42:20)

• Lithwick raises questions about whether Attorney General Bill Barr might be backing away from fully weaponizing DOJ for Trump.
• Rabin sharply dismisses liberal “magical thinking”:
  • “There you liberals go again, believing that wish and hope and magical thinking is a strategy. It’s so cute when you guys do that.” – Robert Rabin (40:55)
• He predicts Barr will continue supporting Trump until the end.

8. What Progressives Can Do Now

A Call to Real Activism (42:21–44:32)

• Activism, not hope, is the path forward.
  • “We will have an exceptionally better performing national politic on judicial issues, fairness, when people in a sustained and smart and sometimes chaotic way organize and get involved.” – Robert Rabin (43:22)
• Rabin encourages listeners: call representatives, organize, participate. The system responds to public engagement.

Notable Quotes & Memorable Moments

• On the right's success:
  • “As between an invested in political structure on the one hand and hand wringing and finger pointing on the other hand, it’s no surprise who’s winning. And that’s where we are today.” – Robert Rabin (08:46)
• On Democrats’ lack of organizing:
  • "The goal right now is not to surround Chuck Schumer and make him fight harder. Chuck's a fighter and he's fighting. A real political infrastructure would have us having rallies and texts and calls with Senator Rob Portman and Marco Rubio." – Robert Rabin (12:55)
• On political branding:
  • “They invented something called a death tax, which most of us... would call an estate tax. They called it a death tax.” – Robert Rabin (21:25)
• On the futility of sitting out:
  • "I actually don’t think it’s effective to sit it out. If I were senators, I would have interviewed her, and I would have gone to the microphones immediately and said... Trump and McConnell and Xi are putting her on the court to rip your health care from you." – Robert Rabin (28:06)

Segment 2: The 25th Amendment and Presidential Incapacity

(45:03–64:28)
Guest: Professor Brian Kalt (Michigan State University College of Law)

Key Points

• Pelosi and Rep. Jamie Raskin introduced legislation to create a congressional commission on presidential capacity under the 25th Amendment.

• Kalt explains Section 4: meant for clear-cut cases of incapacity (coma, extreme illness), not as a tool for political opposition.

  • “If the president says that he's okay, it's extremely difficult to sideline him.” – Brian Kalt (50:20)

• Protections: President can contest removal, requiring two-thirds of both chambers of Congress and consent of the vice president and cabinet/commission.

• The amendment is not for ambiguous or merely unpopular presidents, but rather for those clearly unable to discharge office.

• Kalt notes that polarization and lack of good faith erode the Constitution’s effectiveness.

  • “The Constitution rests on an assumption that the people we elect and appoint... will do so with the best possible motives in good faith... I think has never been weaker.” – Brian Kalt (59:02)

• Privacy and medical transparency remain issues; presidents often conceal health crises for political rather than personal reasons.

Important Timestamps

• [07:11] Rabin on strategic asymmetry between left and right regarding the judiciary
• [09:46] Obama's moderates versus conservative ideologues
• [19:59] The Bork narrative and political branding
• [25:05] Democratic strategy and limits of policy papers
• [27:28] Rabin on earnestness vs. "bare knuckles"
• [34:27] Reframing “court packing”
• [40:55] Rabin on “magical thinking” about Bill Barr
• [42:56] Rabin’s call for grassroots, sustained engagement
• [45:03] Start of 25th Amendment segment with Brian Kalt
• [50:20] Protections for the President in Section 4
• [58:48] Kalt on constitutional and practical limits of Section 4

Tone and Style

• The conversation is candid, wry, and sometimes caustic—especially from Rabin, who skewers what he sees as progressive naiveté and calls for hard-nosed political realism.
• Lithwick is reflective, questioning, and pragmatic, probing her guests for practical guidance.
• Kalt is explanatory and scholarly, focused on tempering speculation and clarifying what the law actually allows.

Conclusion

This episode offers a sobering analysis of how progressives have failed to build the political machinery necessary to compete on judicial appointments, in contrast to conservatives' longstanding, focused investment. Rabin urges listeners to abandon "magical thinking," organize, and approach the issue of the judiciary as a central political struggle. The second half, with Professor Kalt, demystifies the 25th Amendment, emphasizing its design and limitations, especially in a hyper-partisan era.

Summary curated by analyzing the original dialogue, key arguments, and quotes, with explicit attention to the structure and flow for listeners unfamiliar with the episode.