← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
What Progressives Got Wrong About the Judiciary
01:05:20
Politics, power, and the Supreme Court.
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- [00:02]
Robert Rabin
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.
- [00:17]
Brian Kalt
Even if Section 4 isn't appropriate now, people turn to that and say, well, what happens if the President is really sick? What happens if he gets worse?
- [00:30]
Dahlia Lithwick
Hi and welcome to Amicus. I am Dahlia Lithwick and I cover the courts and the law for Slate. There is a whole lot happening. Even as we are taping, there's a lot happening. So buckle in and let's get to it. Next week, confirmation hearings begin for Amy Coney Barrett. And if Senate Republicans, some of whom still refuse to be tested for Covid, if they have their way, it will be quick and painless and in person and done. Senator Mike Lee, one of the Judiciary Committee members who has the virus, was tweeting this week that democracy is overrated. Sure looks that way. We're going to talk to Robert Rabin, a former senior Hill staffer who's been running the Rabin group in Washington, D.C. since 2002. He's been my Judiciary Committee Yoda for a long time and he's going to just tell us whether Senate Democrats are blowing this. And of course, Donald Trump has been off the campaign trail all week. He was at Walter Reed for several days being treated for the coronavirus and then in semi quarantine at a hollowed out White House where he has taken to both Twitter and to calling into cable news shows to opine on, you know, the usual presidential things, locking up his rival and his predecessor and Hillary Clinton's emails and Kamala Harris and his glowing House.
- [01:56]
Robert Rabin
Yeah, I just saw the doctors today.
- [01:58]
Dahlia Lithwick
They think I'm in great shape.
- [02:00]
Brian Kalt
I'm in great shape.
- [02:01]
Dahlia Lithwick
His current electoral strategy appears to consist of not much more than wanting to cough on Joe Biden in person at.
- [02:08]
Brian Kalt
The next debate because absentee ballots, excuse me, absentee ballots are fine.
- [02:16]
Dahlia Lithwick
Do I sound flip? I don't mean to be, but if you were, say, a Martian tuning into Fox News on Thursday night, you might find yourself wondering whether the leader of the free world was still fit to continue in office. Now, on Friday, Nancy Pelosi unveiled legislation that would create a commission to allow Congress to intervene under the 25th Amendment. The President from his executive duties. We have Talked about the 25th Amendment before on this show with Representative Jamie Raskin. He has been advocating for just such a commission for years now. So in a little while, we will be talking to Professor Brian Kalt of Michigan State University College of Law, author of the Law Politics and limits of Section 4 of the 25th Amendment. And we're going to talk about what the 25th Amendment does and does not say and what it can mean to us in this troubled moment. Now, Slate plus members are also going to get to hear our usual check in with Slate's own Mark Joseph Stern on the start of the Supreme Court term this week, on Clarence Thomas and Samuel Alito and marriage equality and on a not super great week week for voting in the federal courts. If you are not a Slate plus member yet, check out all the benefits of membership and sign up for a free trial@slate.com amicus plus to the Senate and the Supreme Court then Senate Democrats, as we have said before on this show, are just in a bind. They are claiming that these rushed hearings for Amy Coney Barrett taking place while voters are going to the polls. They're saying the hearings are not legitimate, especially now that several members of the Senate Judiciary Committee slated to start proceedings Tuesday are testing COVID positive. Having said the process is not legitimate, these same Democrats are nonetheless all in. And some of the members of the Judiciary Committee have met with Judge Barrett this week. So have they already blown it? Well, a lot of frustrated court watchers say yes. Susan Hennessy, who's appeared on this show before, tweeted on Thursday that, quote, if the press is getting it miserably wrong, congressional Democrats have only themselves to blame. The other party is attempting an 11th hour power grab and ignoring Covid relief over huge public opposition. And all you've got is some scattered messaging on Roe. Good grief. End quote. Now here's where I confess that I too have been puzzling out the Democrats game plan or whether indeed any kind of plan for this quote, game automatically normalize the norm, trampling anti Democratic impulses that we are seeing from the Republicans yet again. So I am turning to one of my favorite Hill whisperers. Robert Rabin is a former senior Hill staffer serving as counsel to Congressman Barney Frank, as Democratic counsel to subcommittees of the House Judiciary Committee, and as assistant attorney general at the Department of Justice under former President Bill Clinton. Since 2002, Robert has run the Raymond Group. He's also, in his ample spare time, formed Hispanics for a Fair Judiciary, Friends of the Museum of the American Latino, Green 2.0 Committee for a Fair Judiciary. Oh, it goes on. So Robert, welcome to amicus. Thank you for joining us. I need you to explain all the things.
- [05:43]
Robert Rabin
Dalia, thank you so much for having me.
- [05:45]
Dahlia Lithwick
Robert, I think I want to just start with this. And this really has been made manifest even on this podcast. Having condemned the Amy Coney Barrett process, parenthetically new disclosures on Friday of speeches that she did not turn over to the Judiciary Committee. Having condemned this process as completely illegitimate, Senate Democrats have now rushed to prepare their questions, and some have even raced to hold meetings with the nominee. I want to be really clear, not one Republican senator met with Merrick Garland when he had been nominated for the Supreme Court. And I remember this strategy from Neil Gorsuch, and I think I even talked about it with you at the time of the Gorsuch nomination. You say it's illegitimate, you rail against it, and then you behave the way you've behaved at every other hearing. Now, I know let's stipulate that Democrats are in a bind. There's not much they can do. But the fact that they are already acting like this is just another ordinary nomination and they're going to grind Judge Barrett down with questions about stare decisis and precedent. They're acting like they're going to lose, and it's making some of my colleagues on Twitter exceptionally crazy. So can you talk us through this box and help us understand what is the game plan, if any, and what am I missing?
- [07:12]
Robert Rabin
You asked how to make sense of it, and I think there's only one way to make sense of it, which is to accept and then do something about an asymmetry that we have been engaged in for several decades now. And that asymmetry is that I'm going to say the conservatives, not the Republicans. Conservatives have treated the composition of the federal judiciary as a political question. It is a manifestation and exercise of political power. If you care about policy, then you care about judges, and policy is formed in politics. And if you want to validate and reify your policy, you have to care about the composition of the judiciary. For decades, conservatives have invested in the politics of the composition of the judiciary. Progressive. What we now call ourselves progressives. We were liberals for a minute. We're now progressives. We have invested in the diversity of the judiciary, the integrity of the judiciary, and seeing the judiciary as fearless but independent protectors of liberty. What you did not hear me list are the politics. What you are seeing this and next week is a symptom of that problem. So I will let's talk about sort of what the Dems can and should be doing this week and more importantly, what your listeners, what we all should be doing. The Dems can't sort of save democracy. That's our responsibility. But we are in the position that we are in with the court potentially being six to three, very conservative. Because the conservatives invested in the politicization of a political question. They built an infrastructure to identify, support and push for a particular type of judge. And guess what? It worked. And the liberals, now the progressives, in the guise of Democrats, exercised a strategy of talking about how mean the conservatives were 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.
- [09:46]
Dahlia Lithwick
So that's really useful because it answers one question, which is Barack Obama, given the opportunity to rectify this in a very political way, chose to put centrist moderate Sonia Sotomayor, centrist moderate Elena Kagan on the court. He didn't put Bryan Stevenson on the court. He didn't put Pam Karlin on the court. And what you're saying is it doesn't make sense to look at that through the lens of, you know, Obama didn't do the right thing. What he did was make a decision to not treat the court as a third political branch. He was doing something else. And for those of us who gnashed our teeth because he was not answering in kind what it meant to put a Sam Alito and a Clarence Thomas on the court, your point is, and I think this is descriptively right, Robert, Obama just didn't think of the court in terms of chess pieces.
- [10:46]
Robert Rabin
Well, I was with you till the last sentence. I mean, he's a consummate chess player. My suspicion is under no circumstances, given the lack of investment in politics on the left, could Bryan Stevenson or Pamela Carlin could have been confirmed by the then composed United States Senate. Not all of the Democratic senators are hegemonically interested in supporting a Democratic constituency. On the question of the courts, we have a hard time sort of corralling everybody. But then you'd have to get some Republican support too. And those two would have been tough. But there's no individual that one can point to and say, but for had Obama done this, had Chuck Schumer done this, I mean, you can say that McConnell has been exceptional, but he's been exceptional, building upon decades of the hard work that conservatives and Republicans did to allow him to be successful. Exceptional. One of the saddest political forensics I've ever seen. The Governor of Alabama, Kay Ivey, explained why she would be supporting the serial child molester predator Roy Moore for the United States Senate when that primary was on because of her concern about the Supreme Court. She was going to vote for a serial child predator, someone who tracked girls in malls as a United States Senator, over Doug Jones, the U.S. attorney, because of her strong support for a Supreme Court which followed the law. That is the depth to which, or I should say the peak, to which the conservative now Republican machine over years has cultivated a voter to say the courts matter, and here's why they matter. And the Democrats have simply not done it. And we can talk about sort of the details of that. But the asymmetry of treating this as a political question on the right, but not on the left is reaping sad rewards. Now, I'll just sort of, for people who don't instinctively see what I'm talking about, look at what the left does on climate change. There are dozens and dozens of well funded organizations making the accurate case about climate change, its cause. What we need to do about it, we've come up with the language. It went from Al Gore's PowerPoint to now literally dozens of organizations. I don't count the money, but I'm sure it's tens of millions of dollars appropriately invested in making climate change the norm, talking about it, pushing for it. It has become a station of the cross for progressives and now moderates and soon to be conservatives. That's how you run a political operation. The right has done that on judges. Every single major institution on the right, from the Heritage foundation to the Chamber of Commerce, it's not just the Federalist Society. Every single major institution on the right is on board with the priority. It is to connect with voters about the composition of the judiciary. And on the left, it is a wasteland. And how does that play out? Democratic senators sort of going through their business right now. And let's talk about the details of what, what we're going to see starting on Monday. It's only fascists and Donald Trump who do what they want. Everybody else operates in a political system of carrots and sticks and rewards. The Democratic senators in 2020, given the history I've just told you, they can't magically create an impassioned constituency of voters who are picking up the phone or texting or having rallies, and not just in Democratic offices. 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, etc. Etc. Etc. Anybody who saw the late Senator John McCain dramatically put his thumb down on the Senate floor to save the Affordable Health Care Act. Anybody who sees Susan Collins or Lisa Murkowski say right off the bat they're not going to support this process is seeing the result of what core organizing and advocacy and messaging in politics looks like. These things don't happen. As your attorney listeners would say, sua spontane. Elected officials happen to operate in a system of representative democracy. And when we weigh in, they respond.
- [16:05]
Dahlia Lithwick
Here's a question. We did a show a couple weeks ago, Ellie Mistel, Mark Stern, all three of us agreed this is not a legitimate process. We should not legitimate it, which is how I started with you. And slightly irate listener wrote in and said it's perfectly legitimate process. Maximalist power. Republicans control the process. Republicans get to have their hearing. Ginsburg seat is vacant. Why shouldn't this maximalist power view of the world play out? And what you're telling me is, yes, as a political matter, you can't say it's illegitimate. As a political matter, it is perfectly legitimate, as was what happened four years ago to Merrick Garland, which was legitimate as a political matter. So I think one of the things, one of the grooves I'm stuck on on this record, for listeners who are not my age, a record was a way one once conveyed music. One of the grooves I'm stuck on, Robert, is what do you do then if you're in a world in which you're ostensibly talking about this lofty oracular cord and lifetime appointments and the Constitution, but in fact what you're really talking about is maximalist exercises of political power, in which case Democrats lose?
- [17:19]
Robert Rabin
Well, we do keep losing. We will win. When we invest in maximal power, political power, and we exercise it. It's very hard. I mean, it's conceptually impossible and practically therefore impossible to say something is illegitimate. And then I want 17 million Americans to weigh in with the Republicans about why they shouldn't go forward. So, you know, if when my daughter dated a boy that I didn't like, sitting on the sidelines and not saying something may not have been the most effective thing for her health and welfare. This is, you know, when she was 16, not when she was 26. It's very, very, very hard to mobilize people to get involved when your organizing principle is this shouldn't be happening. So one could imagine a way to mobilize people about getting involved was to have as witnesses, you know, Jorge Ramos from Unovision, or to have President Barack Obama come and defend the affordable health care. If your Organizing principle during the hearing is that Judge Barrett is going onto the court because Trump, McConnell and Barrett want to take your health care from you. Then let's hear from Barack Obama defending the Affordable Health Care Act. If this is about speaking to millions of Americans about why this is put aside, illegitimate, why this shouldn't be happening, sort of the standard issue, let's have legal beagles come in and talk about her stare decisis. That's going to be a snooze. That's not going to accomplish the goal of getting millions of people involved about why this is a disaster. Robert Bork was defeated because millions of people saw something that appalled them and they weighed in and they did something about it. It's unlikely for that to be the case next week if sort of the hearing is a standard issue. Oh, she's so mean and this is so mean. But we'll see. We'll see. The Democrats are fired up. I was going to say they have the attention of the American people. The truth of the matter is it's now page 17 news. For those of you who still read a hard copy of the newspaper, page 17 followed page 16 and it meant it was sort of deep, deep. It's not front page news right now. We have an erratic president, we have a pandemic and we have a national election. So I think people are going to have a problem getting real traction, but they're going to bust their ass to try.
- [20:00]
Dahlia Lithwick
And at the risk of both talking about Bork and our teenage children, your formerly teenage daughter, my 17 year old son who is a keen consumer of news on a walk this past week said, well, you know, Dem started it. They started it with Bork and this is just payback. And he's a smart kid, but he full on believes that if Ted Kennedy hadn't given his Robert Bork's America speech and the Democrats hadn't killed the filibuster and all the bad things that the Dems did that this wouldn't be happening. And I'm really struck by how two parts of this. One is how salient the this starts at Bork narratives. Everyone buys it, including apparently my son. And two, the magical thinking around that Bork seat for conservatives. I mean, I think there's really a feeling that Bork should have gotten this seat. He didn't get it. Kennedy took it. He betrayed us. There's a sense in which the Bork moment is a turning point that I don't fully understand.
- [21:04]
Robert Rabin
Well, congratulations for having a 17 year old who engages with you on those conversations. So this. I'm smiling. You can't see it on radio. And I have such a dour demeanor. People may not be able to pick it up, but I'm smiling at the prowess and the efficacy of people who brand around politics. So let me tell you a little side story. Eight families in the United States, McClatchy, Gallo, some of the wealthiest family, the Walton family were. And Walmart, they banded together some years ago because they don't like taxation on capital gains, and they want to be able to give their hundreds of millions or billions of dollars to their children and not be taxed on it. So they invented something called a death tax, which most of us, if we even thought about it, not that we're eligible, we would call an estate tax. They called it a death tax. And they paid a good amount of money to brand to the American public the horrors of the death tax. And they pretended that it affected small family farms. And it got to the point where George Bush was running for reelection and he would yell at a rally to construction workers, hard hats making $48,000 a year. And we're going to eliminate the death tax. And the hard hats would scream, yeah, we're going to eliminate the death tax. So that's an example of brilliant branding and hammering a message home. So, yes, it all started with Bork. Bullshit. We had senators killing each other on the Senate floor in the 1800s, and they caned each other. And we've had assassinations, and we've had people exposing presidential infidelities and children born out of wedlock. So nobody started anything. We're fighting about power, and it matters. The composition of the court really matters. And people have invested an enormous amount of resource and attention into explaining to the American public why this matters. And the right has candidly done a much better job on the left. Here's where the left does great. We rallied gorgeously around an exceptional minority nominee. I ran the outside effort to get Sonia Sotomayor on the court, and it was fantastic, and it was glorious. We can rally on defense when there's sort of a judge who feels like he came right out of the White Citizens Council and he's offensive. And we come together to point out how awful William Pryor is. So there are certain things we know how to do on the political side. We support an exceptional minority candidate, sometimes a woman. Ruth Bettergins versus celebrity. That doesn't just happen. That's a branding matter. But what we don't have and why the whole is less than the sum of the Parts on the left is a consistent, sophisticated infrastructure that worries about the entire composition of the judiciary the day in and day out nomination. I'll say something that you're your listeners may not have any reason to know. A judge, when she's nominated and sent to the Senate is assigned a bill number, she is put on the Senate calendar. They hold a hearing, they hold a markup, they vote on her, she then pens on the Senate floor, on the Senate calendar. I'm saying all of this to say it is a political question and we've had a immature attitude on the left for years. Let's take politics out of it. Taking politics out of a political question is absurd. You are saying to the right you win and they're winning.
- [25:05]
Dahlia Lithwick
Let's return to our conversation with Robert Raven. He's founder of the Rabin Group and former senior Hill staffer and Assistant Attorney General at the Department of Justice under President Bill Clinton. So here we are, hearing's about to start. Dems on the Hill have been releasing 47 page policy papers all week and having, I guess press conferences about them saying, you know, Amy Coney Barrett is going to help kill the ACA and Amy Coney Barrett is going to destroy LGBTQ freedoms. My God, Clarence Thomas and Sam Alito are on board for that. We learned this week Amy Coney Barrett is bad for reproductive rights, she's bad for workers. We get these 47 page briefing documents. They're very good, by the way. I'm not sure that they are if your branding model is correct. I'm not sure that this has built any brand other than what I just quoted Susan Hennessy saying. Releasing a bunch of talking points saying that Roe is in peril may not be doing the trick. I guess I want to ask a, is that the strategy releasing these briefing papers and B, if Robert Brabin were in charge of this branding exercise, what would it have been?
- [26:23]
Robert Rabin
The briefing papers are terrific and we have some incredibly competent and passionate and smart people involved, which is an absolute blessing. Now there is a strategy and the strategy is to lift up real people you're going to be seeing in the hearings questions directly and then indirectly through senators from compelling powerful American citizens who represent what will be victims of direct threats from Judge Barrett if she's on the court and it's around health care and Pre existing conditions, etc. Etc. So the, the strategy is to try something compelling and different, which is to not just hear from senators about will you commit to and sort of go through what T.S. eliot calls the rending pain of reenactment when yet another justice, through sheer banality, says nothing, and then victory.
- [27:23]
Dahlia Lithwick
Super duper. Precedent. Yes.
- [27:25]
Robert Rabin
Super duper. I'm. Yes. Balls and strikes.
- [27:27]
Dahlia Lithwick
Yep.
- [27:28]
Robert Rabin
So we are. They are going to try something different, and they're going to have real people ask real questions and see what happens. That's not what I would do. I'm supportive of it, and I think it's going to be terrific. Were I engaged, the starting point would be earnestness never beats bare knuckles, and that's what's going on. And in order to beat this, you had to be Trumpian and you had to sort of do dramatic things which feel unprecedented to the American public and to the system. I am sympathetic to the senators. Sort of the plea on the left to boycott and filibuster, and the rules don't actually permit us much leverage. We're down to the point where there's very little that you can do. 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, I just heard Trump and McConnell and Xi are putting her on the court to rip your health care from you and put them in a position of saying, no, we didn't discuss that. Sort of set the frame and make them be defensive about it. So I would have much more dramatic action. I would bring in celebrity. I think that the good senators, who are institutionalists, feel like that is sort of a watering down of the process. But if the goal is to communicate to the American public the importance of this nomination in the context of what else is going on, I think that's your best choice. I wouldn't have brought in Cardi B. Although she'd be great. She has more viewers than anybody in the Senate. I would have brought in whomever it takes to communicate to Jane and Joe and Juan and. And want a citizen. What's at stake here. Because what's at stake here is just awful.
- [29:29]
Dahlia Lithwick
And you've just circled and landed the plane on what I think is the trap. The trap is that she's very nice and that senators who met with Judge Barrett have come out and said, democrats have said, what am I gonna do? Am I gonna try for the frozen trucker? The approach that Al Franken tried with some success. Right. It was, as you said, it was very media savvy. It was better than what almost anyone else did with Neil Gorsuch is just say, you know, he was gonna let someone freeze in the cab of his Truck. He's a monster. And I think what you're saying is any attempt to do this person is personally a monster with her seven children and beloved in her communities, that's not gonna work. So you gotta do something else. And the act of sitting down with her and finding out she's not a monster was never going to get you to where you might have wanted to go.
- [30:24]
Robert Rabin
Yeah, and it can be worse than that sometimes. People on the left have played footsie for their own personal game. We've had in several of these tough nominations of very conservative people, leading thinkers on the left, writing op EDS and putting out their. Oh, they're lovely. And they're so misunderstood. And I worked with them and, you know, they're really, really nice. And they called my mom when my mom was sick. There's all that storytelling which is generally self interested. Yeah, I think I mean colloquially the way that you do that. And I would have done it with Vice President Pence in the debate the other night. You know, you seem like a lovely person. What are you doing in a fascist and horrible regime like that? Why would an amazing mom, woman of faith, talented legal scholar, want to go to the court and rip health care from people with breast cancer? That's sort of the framing that it stipulates that they're nice people. So what's a nice person like you doing in a regime like that? That would have been one way to handle it. And I credit them. I mean, they are shrewd. If you don't do anything but praise her, then you're anti Catholic. They're not the only people in the world to have invented sort of a hair trigger for criticism as a way of, you know, the best defense is a good offense, which is what's going on. But it has absolutely stymied the Democrats on the Judiciary committee from going deeper onto the question of what is the role of her faith? How are they separable? So the right has kicked our ass and put them in a box about their ability to ask legitimate questions.
- [32:27]
Dahlia Lithwick
And just to follow up quickly on that, Robert, is there. I've got to say, I've spent since 2017 when her hearings for the 7th Circuit played out as they did. I've spent since 2017 giving speeches and trying to craft the line of questions that probes this issue. You know, thank you, Judge Barrett. You have written enthusiastically and expansively about the intersection of faith and judging and how to think about it. I don't know how you frame that question without being, you know, drawing back a bloody stump and being called anti Catholic and biased. So I don't know what that line of questioning looks like.
- [33:07]
Robert Rabin
Yes, it's a tough one. I'll point out that the context is completely political. If she were a member of the Nation of Islam and worshiped at the Farrakhan Il Mohammad Mosque on 183rd street, and nobody would have had any problems asking questions. So the challenge is not the framing of the question. The challenge is, can you stand the heat when someone slaps back and says, you're whatever? I've been Jewish for 5781 years. I am not unfamiliar with the ability of my people, no matter what the question, to come out of the box and say, you're anti Israel. Well, no, I'm trying to have a conversation with you about the Palestinian question. No, no, you're anti Israel. So this is not specific to her. But this is a question of raw politics. And it's only people of faith who have political power who can actually raise the bar against criticism so high that you can't ask any questions. It's the minority religion that I want to worry about.
- [34:27]
Dahlia Lithwick
I want to ask you one more thing under your umbrella, Robert, of no, this is a branding problem, and that is this thorny issue of court packing. I think this week was the first week that I went all in on and I think Susan Hennessy, who I quoted at the top of the show, all in on court packing. This is a branding problem. We shouldn't be calling it court packing. I like to call it systemic structural court reform or something similarly anodyne. Vols and Strikesy. What does it mean that talk about putting someone in a box. Both Mike Pence and Donald Trump seem to believe they're going to win this election. I think Fox News agrees. If they can just get Biden to admit that he's got a really, really elaborate court packing plan that he's not telling anyone. And that issue has come up now twice in debates. Joe Biden has, I think, said fairly reasonably, it's a distraction. I don't want to talk about it now. But I think for both sides, it's clearly not a distraction. One side wants a pledge and, oh, the other side wants a pledge, too. How do you market this issue of, again, there's a trap here, right? Biden is being asked pledge to do the thing that justifies the nihilist thing we're doing now. Like, that's the trap. And Biden is not stupid. And so he says, I don't want to talk about the nihilist. Thing. Also, it's not my job as president to back the court. How do we talk about this in a way that is better than the current discourse, which seems to involve both sides screaming that they want a promise that it would make no sense for Biden and Harris to give?
- [36:10]
Robert Rabin
It's a great question. I'm actually both intellectually and professionally fascinated by how we get through it because I'm eager to work hard on exactly what you said. I think after this election, no matter who wins, I am going to dive into the deep end of looking at structural reform, something I too, was not interested in or aggressively opposed for 20 years. Mostly because I don't think you. I generally don't think. I think it's lazily to either change the rules or change the structure when you're losing politically, the harder work is to go win politically. It's to do what I've been saying for 40 minutes, which is to get out there and invest in explaining to the American public the importance of the court, the importance of elections around the Corps. Win that. But we have found ourselves in a place, paradoxically, where the conservatives have effectively packed the courts. They have done what they were entitled to do and then some. Nobody thought that they were entitled to run two nominees in an election year to block Merrick Garland and then to run Barrett so close to an election, but they're doing it. And what I would do if I were Biden and everybody else, number one, that's packing. That's packing. So turn the question back on the opponent and explain to people how the conservatives, in this case, the Republicans, have, either through the rules or by bending the rules, put themselves in a position where they own the courts and it's just unfair and it's wrong. And so you're responding to a crappy situation. Second, and these are sort of purists on the left, stop calling it court packing. I have zero patience, as you can tell from the petulance in my voice, for people who insist in the face of data and anecdotal evidence, that people don't hear you to keep saying it. We actually don't call abortion fetal destruction, and we don't do that for a reason. And the right called them freedom fighters, not guerrillas. Etc, Etc, Etc. The world is filled with examples of where there's a phrase that you use and it turns the people you want to turn on off. And you insisting that they're stupid and that they're misunderstanding you is ridiculous. So stop calling it court backing. That's one. 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. And on this sort of thing with Pence and Biden, that's what we're down to. Pence, that's your straw to sort of make sure you win the vice presidency. Whether or not Biden answers on court packing, I take that as good news. It means that sort of, you know, that everything else isn't working as well as you hope. I do wish. And we're going to have to do our work. I do wish Biden in the next couple of weeks would say what I just said. You're the court packers. And my job when I'm in there is to unpack and to do what we can to restore fairness to the American public.
- [39:36]
Dahlia Lithwick
Last question. You and I have been proceeding as though the problem is Mitch McConnell and slightly sidelining the fact that the president is in the White House calling for indictments of Hillary Clinton and his opponent.
- [39:52]
Robert Rabin
And about to shed virus, apparently on.
- [39:56]
Dahlia Lithwick
Rallygoers wanting to cough on America. That's the other plan. Get Biden to commit to court packing and cough on Americans. But I do want to ask because I sense there's a little bit of a fault line suddenly emerging between Bill Barr, who has been all in, all in on all of it, on weaponizing the DOJ to go after Trump opponents, on parroting the ridiculous language of vote suppression and, you know, mail in ballots as fraudulent. Bill Barr has been all in. Something's happening now, and I don't know if it's the Durham Report, you know, news that's emerging Friday morning that the Durham Report is not going to be the October surprise. Some sense that Barr is not willing to go all the way to where Donald Trump wants him to go. Do you have any sense? We've done a couple of shows, probably more than we should on what Bill Barr is willing to do. Do you have a sense that Bill Barr is peeling off?
- [40:55]
Robert Rabin
Now 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. The gentleman has given you all the evidence you can stand that he is the personal counsel of Donald Trump, that he and Rudy Giuliani are in a cage match for who can be more of an inappropriate bender of the law for the political will of the president. But all of a sudden on October 9, because of your prayer, he's going to say, you know what? I've had it wrong this whole time. It really was a mistake for me to politicize the judiciary. It's really a mistake for me to go after Yale and Princeton for race discrimination. All of these things. Let me stop because my causticity is going to corrode the wires. I was impressed that there seemed to be a milliliter of light between what Trump demands and what Barr lap dogs. But it's only October 9th. Give it till October 10th. I am 100% certain that Barr will come up with something in appropriate.
- [42:22]
Dahlia Lithwick
I'm going to let you go, but I feel like I, I want to ask you what I have forgotten to ask you or more appropriately, what you want to tell an awful lot of people who are very, very anxious both about this nomination, the prospect of a 6, 3 court, their health care, their reproductive care, their basic civil rights. A lot of people who listen to this show very worried and also, I think, a president who's increasingly behaving erratically and out of control and the possibility that their ballot's going to get thrown out. What's the ballast here, Robert? What are we telling people to do?
- [42:56]
Robert Rabin
Thank you, Dalia. So listen to Dalia and make sure that you tell everybody else to listen to Dalia. Your shining light and your intellect and your heart and your sense of humor are just keepers. You know, I'm a person of faith. I'm a Jew who goes to church. I love the Lord and I'm very, very optimistic. I also love this country and we're a representative of democracy. And I keep wanting to say to my friends on the left, in a representative democracy, you have to represent a word which has changed in meaning over the time. On gun safety, we're mad at the NRA because they're so powerful. Well, here's an idea. Get off your couch, call your member of Congress and say, I want the following. Gun safety People on the left don't march and organize and vote around gun safety. Well, that's true around a lot of issues. 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. Call your member, write your member. When we can again, go to a town hall, get your friends to vote. It works. And you will have the system you want when you do your part. And that's what I'm excited about. I think it's coming again.
- [44:32]
Dahlia Lithwick
Robert Rabin is a former senior Hill staffer, serving as counsel to Congressman Barney Frank and as Democratic counsel to subcommittees of the House Judiciary Committee and an assistant attorney general of the Department of Justice under Bill Clinton. Since 2002, he has run the Raymond Group. And since around then, he has been one of the people I look to when I am feeling confuzzled, which I am. Robert, thank you so, so, so, so much for being with us this week.
- [45:01]
Robert Rabin
Thank you so much. Appreciate you.
- [45:04]
Dahlia Lithwick
And now to the 25th Amendment, which was passed by Congress and ratified in 1967 to ensure continuity of power after President John F. Kennedy's assassination. The 25th Amendment provides that the vice president and a majority of principal officers of the executive department can, by law provide a declaration to Congress that the president is unable to discharge the powers and duties of his office. At that point, the vice president would assume the powers of acting president. Now, Section 4 of the 25th Amendment allows Congress to legislate that, quote, some other body can substitute for the Cabinet. And that is what Jamie Raskin's legislation unrolled on Friday by Nancy Pelosi, would seek to achieve. Now, this is all very confusing and we keep Talking about the 25th Amendment as though it's some kind of break the glass if he's crazy moment, but it's just not that simple. Joining us to discuss this is Brian Cult, professor of law and the Harold Norris Faculty Scholar at Michigan State University College of Law. He's the author of the Law, Politics and limits of Section 4 of the 25th Amendment, Oxford University Press. And Brian Cult, welcome to AMIC. Good to be here and thank you for your time. I know you've been hopping this week, but I wonder if we can just start very briefly with Donald Trump's behavior. Just in the last couple of days we have had, you know, a diagnosis of COVID a not super safe ride around Walter Reed, some very erratic tweeting, some very erratic interviews. And I want to start with the caveat that you're not a doctor. I'm not a doctor. The Goldwater rule would preclude us, even if we were mental health professionals, from diagnosing him. So we are talking as sort of legal thinkers, not as diagnosticians. But I wonder if you can just talk for one minute about why this 25th Amendment conversation is coming up now when we are dealing with someone who has, in point of fact, been tweeting erratically for four years now.
- [47:18]
Brian Kalt
Well, I think the sudden surge in interest is because the president's hospitalization is the most serious presidential health episode since probably Reagan was shot in 1981 or maybe Reagan's cancer in 1985. So even if Section 4 isn't appropriate. Now people sort of turn to that and say, well, what happens if the President is really sick? What happens if he gets worse? It's sort of an arcane procedure, and it's best if people think about how everything works in advance instead of trying to figure these things out on the fly. So I think people are just reading the rule book at this point.
- [47:58]
Dahlia Lithwick
And again, to be very clear, because I know you've been asked questions in the press this week about dementia and about mania and other mental health incapacitation, but I think what you're saying is actually this would be an appropriate conversation if any president was diagnosed with lethal disease and went to Walter Reed and was on mega doses of steroids. In other words, we can disaggregate this conversation from the one that is being had about his erratic behavior and just talk about the fact that effective Thursday night, he was still coughing his way through interviews.
- [48:39]
Brian Kalt
Yes, again, I think it's important for people to understand what the rules are. And the rules are the same whether the President is a Democrat or a Republican, whether the President is someone we like or don't like. They're the same rules. And it's hard to have those conversations. I mean, I've seen this anytime I comment on it, most of the responses are about Trump or about Biden. And that's almost never what I'm actually talking about when I'm setting out how these procedures work or the history of them.
- [49:10]
Dahlia Lithwick
Well, let's talk about the history of them because I think it's very useful. And I think folks who don't understand the genesis of why the 25th Amendment came to be do think there's a kind of gotcha quality, that this is a kind of hook that we can use when we don't like a President. That's actually not the backstory at all.
- [49:31]
Brian Kalt
Exactly. And they about talk took pains to make sure that it protected the President so that it couldn't be used that way. So the backstory is that the original Constitution said that the Vice President steps up if the President is suffering an inability to discharge his powers, but it didn't provide any standards or procedures for that. And it also didn't make it clear whether the President would take power back if and when he recovered. And the result was that vice presidents never stepped up. And so when President Garfield was shot and lingered for 79 days afterwards, the Vice President didn't do anything. And we were effectively leaderless during that time. When Wilson had his stroke in 1919, a severe stroke, same thing. The Vice President, despite being urged even by some members of Congress to step up, didn't step up. So the point of 25th Amendment Section 3 and 4 is to fill in that gap, to provide standards and procedures so that it's clear that the vice President can step in and then when the President recovers, that the President can step back in to power, but at the same time to make it clear that the President is supposed to be elected for four year term. The bar for ending that or interrupting that is extremely high. And so the process really is set up to swiftly transfer power if the President is clearly completely incapacitated, like in a coma or something, but otherwise to basically protect the President and to say if the president says that he's okay, it's extremely difficult to sideline him.
- [51:14]
Dahlia Lithwick
What you're describing is an attempt to kind of recalibrate the balance of power to bolster the Vice President and the Cabinet, if they're teetering, if they're not clear on what they should do. And it seems like what Nancy Pelosi is proposing on Friday, aided by Jamie Raskin's bill, would be to spread that power even more broadly. Right. To give Congress a meaningful role in the vague language, the inchoate language as it is now codified, to say Congress too should have some kind of formal authority to step in if the other entities are teetering about doing this.
- [51:57]
Brian Kalt
Yeah. So the commission that the bill Pelosi and Raskin are introducing, the commission would be appointed by the leadership in Congress and it would be bipartisan. The majority and the minority party would have equal, equal say, and they would create a commission that would. Then the members itself would select someone else to lead it. And it does give Congress a power to inquire, and it does it in ways I'm not sure are safe from constitutional arguments. I don't know. I would feel more comfortable if they had adopted a mechanism that there's no possible constitutional arguments against it, because the only time someone would raise those arguments would be in the middle of an episode when we don't want to have to litigate. But it's also important to note that it doesn't change the fundamental architecture of Section 4. So it would just take the Cabinet's role and swap it out for this commission. But you would still need the vice president to sign on to displace the President. You would still need the vice president and this commission and two things, thirds in the House and Senate to disagree with a President who says that he's fine in order for the President to be sidelined. So the bill would involve Congress in the process more. It would involve this commission in the process more. But it's not like it would create some mechanism whereby some unaccountable commission or Congress could get rid of the President. The protection section 4 offers are still in place.
- [53:33]
Dahlia Lithwick
If this is invoked against the President, what are the protections that are detailed that the President can then invoke to protect himself?
- [53:41]
Brian Kalt
So Section 4 says, Whenever the President declares to the speaker of the House and the President pro tem of the Senate that he is no longer unable to discharge his powers, he sends that declaration. The Vice President stays in charge while this is all hashed out. But once he does that, the Vice President and Cabinet or commission, if they set this commission up, but always the vice President, they have four days to disagree. And if they disagree, then it goes to Congress. If they agree that he's fine, then he takes power back. If they disagree, it goes to Congress, they have 21 days. And only if both the House and the Senate vote by two thirds majorities that they agree with the Vice President and the Cabinet or commission does the President stay sidelined. So the biggest protection there is if he says he's okay. Basically, all of these ducks have to be in a row against him. And so that means not only his own vice president, but substantial members of his own party in Congress, more members of Congress than would be needed to impeach and remove him. So again, this can't be used just to get rid of someone because they're doing bad things or something like that. It really is meant to be for complete or near complete incapacitation.
- [55:02]
Dahlia Lithwick
And remind me if this is correct, Brian, but this is in part because everybody looks around after JFK is shot and they go, holy cow. We don't have a procedure, but it's largely been invoked when a President is going in for surgery, when a President knows that something is coming. In other words, this is been. It's not been deployed against a sitting President. It's been a sitting President saying, you know, you have the reins because I'm going to be on the table for a few hours. Right, Right.
- [55:33]
Brian Kalt
So we have Section three, which is the President just declaring himself unable, usually in advance, as you said, of a medical procedure. And then when he declares that he's better, he takes power back immediately. He doesn't have to get everyone else signing off on it, as in Section 4. So President Reagan for his cancer surgery, President George W. Bush for two colonoscopies invoked at Section 4 has never been invoked except for in a lot of TV shows and movies.
- [56:02]
Dahlia Lithwick
You say there are real constitutional issues with the bill that Representative Raskin and Nancy Pelosi are putting forward. What are the constitutional sticks points for you?
- [56:14]
Brian Kalt
Well, looking at it this morning, I was struck by a couple of things. One, they have the commission appointed by Congress. I think that's arguably okay. The 25th Amendment might make it wide open like that as to as to how the other body is appointed. But someone could argue no, these are people wielding extremely significant power under the Constitution. People like that are considered officers of the United States. They have to be appointed by the President and confirmed by the Senate, or if they're not quite that powerful, appointed by the President without the Senate, or by executive or judicial bodies, not by Congress. So the appointment power is a little troubling. And then there's also this provision where Congress, by a concurrent resolution, can sort of order the commission to get moving, right. To have the President submit to an examination, things like that. That I don't think it's clear that they can do that. And they say the vice president, if he disagrees, he has to give them an explanation for why he disagrees. The 25th Amendment was designed to give Congress the role on the back end if there's a disagreement between the President and the vice president and Cabinet or this commission not to sort of inject itself in at the beginning. And I think that this bill kind of runs afoul of that. And again, maybe it's fine constitutionally, but maybe it's not. And if the only way to find out is in the middle of an actual case to have a court have to intervene, then we've defeated the whole purpose of having this swift, certain procedure.
- [58:06]
Dahlia Lithwick
So that's the thing I've been wondering about, reading your Twitter feed, is I think you would be the first to concede there are real problems with Section four. And I think you're also the first to say this is not the environment under which we rush into action to change Section four, that these conditions, you know, doing it kind of on the fly is the worst possible way to think about this. So it does raise for me this question of, Brian, if you could rejigger section 4 to make it more functional in a future emergency, not doing it this week on the fly, what would that look like to you?
- [58:49]
Brian Kalt
Honestly, I think that the framers of Section 4 did a pretty good job. I think the real problem is not with Section four, it's with the system in general. Because everyone said, and this is true of the entire Constitution. The Constitution rests on an assumption that the people we elect and appoint to run the government will do so with the best possible motives in good faith. And I think everything has gotten so polarized, so politicized, and it's not because it's not just about Trump or Biden. It's just in general, this assumption that everyone is going to do what is best for the country instead of what is politic at the moment, I think has never been weaker. And so when we say the vice president and the Cabinet are the ones that start off this process, the response that I see from people who want Section 4 invoked on President Trump is they say, oh, well, the Cabinet, they're just a bunch of sycophants. And people think a lot of them are acting secretaries, which isn't true. There is one acting secretary, but that's it. And it doesn't really matter. That's not what Section four is about. Right. If he is completely incapacitated, then the president is going to face a Section 4 action. If he's in a coma, it doesn't matter how sycophantic the Cabinet is. They're going to recognize that this is what Section 4 is about. They're going to invoke it. If it's a more ambiguous case where we're worried that the President is sort of not incapacitated, but impaired, and people say, oh, well, maybe we should think about Section 4. Again, Congress is there as the backstop. And so what troubles me is that it used to be you say, well, if you need 2/3 of the house and 2/3 of the Senate, it would have to be a pretty clear case. The difference now is that you watch the different cable news channels and you get totally different versions of reality from one as from the other. And so, again, this isn't about Trump or Biden. Whoever the president is, they would have to be completely, obviously incapacitated to the satisfaction of members of his or her own party in both versions of reality. And it's a darn rare thing these days to have both versions of reality agree on what's happening. So I think the system is the problem. And there's no way that we could write Section four that would get us past that fundamental problem.
- [61:17]
Dahlia Lithwick
I love that. I think it could be the tagline for this whole show is that the Constitution just doesn't do the work if folks are not operating in good faith. And I think that's right. I think the only other thing I want to ask you, and maybe this is one jump outside your lane. But I'm curious about these questions of privacy and claims that the public just doesn't have a right to know. You know, when the President was last tested, the public doesn't have a right to know details of the drugs that he's currently taking. And I guess I just want to know how this sort of larger medical conversation about privacy inflects on your concerns around Section 4. In other words, I think Section 4. 4 does require some level of disclosure that we're never going to get any more because of the reasons that you said because of polarization. So what do you do? We assume that section 4 only works if the privacy rules and the medical privacy rules are suspended.
- [62:19]
Brian Kalt
Well, the framers of Section 4 assumed that when the Vice President and the Cabinet made these decisions, they would have medical advice if need be. Right. If the President's in a coma, you don't really need medical experts to tell you what that means. And in an ambiguous case, it might not be enough. The question is, can he function in the role, or are we left with an unmanned helm? That's not usually going to require medical information, but we do want them to have good medical information in these ambiguous cases. We want to know, like, how bad is he? When's is he going to get better if the President is sick? I think privacy is an issue, but I think when you're President, you give up that right to privacy. I think the bigger issue has been this has been an issue before the 25th Amendment. After the 25th Amendment, with only a few exceptions, Presidents tend to cover up whatever is going on with them physically. It's always been that way. It's always been an issue. And you can look at every single episode of this, with maybe two exceptions in the last century, and say the public didn't know and it's not for privacy. It's generally because the President doesn't want to upset the stock market or he doesn't want to appear weak. Something along those lines that we could call political considerations rather than personal ones. So it was ever thus. I don't think that there's any good way to change that other than presidential leadership. Right. President Eisenhower is very forthcoming about his many health conditions, and I think that helped, and I think that led us to having the 25th amendment. He really got that process going. So a future President, I think, could make a big difference just by setting an example. But it's hard to change norms and patterns. So it would maybe take a few presidents in a row to do that. But you never know.
- [64:13]
Dahlia Lithwick
You never know. Brian Cult, professor of law and the Harold Norris Faculty Scholar at Michigan State University. He's the author of the Law, Politics and limits of Section 4 of the 25th Amendment. Thank you so, so much for being with us on short notice this week.
- [64:29]
Brian Kalt
Oh, thank you again.
- [64:32]
Dahlia Lithwick
And that is a wrap for this episode of Amicus. Thank you so much for listening and thank you so very, very much for your letters and questions. We are trying to get to them all. You can keep in touch@amicuslate.com or you can always find us@facebook.com Amicus Podcast. Today's show was produced by Sara Burningham. Gabriel Roth is editorial director, Alicia Montgomery is executive producer and June Thomas is senior managing producer of Slate Podcasts. And we will be back with another episode of Emma very possibly as soon as next week. Until then, please take good care, take care of each other and hang on in there.