Tommy Vietor (2:39)

Thank you.

Jon Favreau (2:40)

Quick note before we start. If you are not a fan of right wing propaganda or podcast ads, do we have a deal for you? Become a crooked media subscriber@crooked.com friends so you can support our fight against the MAGA slop clogging our feeds and enjoy ad free episodes of all your favorite pods including this show Pod Save the World Offline and Love it or Leave it. Which amazing news is adding more episodes in a brand new studio. Tell us all about it. Love it.

Jon Lovett (3:07)

So Love it or Leave it by popular demand by me is going to two episodes a week. We're doing it a brand new studio with a live audience. Upcoming guest we have Melissa Etheridge coming on huge with Ann Wilson from Hart on on this week's show which will be two. You could maybe get a ticket if you really try, but crooked.com events come see a bunch of our shows we have coming up. Rachel Bloom will be on ton of guests that we're very excited about and we're excited about the new show.

Jon Favreau (3:33)

And again, crooked.com friends if you want to subscribe, absolutely. And we'd love it if you did. All right. The ceasefire in the Iran war has basically collapsed and oil prices are spiking again after Trump rejected Iran's latest offer to deal with the Strait of Hormuz before tackling the nuclear issue. The president then announced Project Freedom, his expertly crafted plan to have the U.S. military guide commercial ships through the Strait of Hormuz, which almost immediately ran into the minor issue of Iran launching missiles and drones at said ships from small boats. Despite Trump repeatedly assuring us that Iran's military capabilities have been destroyed. Iran also resumed attacks on the UAE in Oman. The US Sank Iranian boats in the strait. Emirati officials said they're expecting imminent US and or Israeli attacks on the Iranian mainland. And off we go. Trump, who continues to tell us that he holds all the cards, addressed the latest flare up at a White House event on Monday.

Donald Trump (4:28)

Our country is booming now despite the fact that we're in a, I call it a mini war. Can't let Iran have a nuclear weapon. We hit all new highs and I said we have to take care of business because we can't let that happen. So we did a little detour and it's working out very Nicely. Everybody was wrong. They thought that energy would be at $300. Right. $300 a barrel. And it's like at 100. They give me fake polls. They tell me about polls. And this, you know, it's. It's interesting. I did a poll on the war with Iran, and They said only 32% of the people like it. Well, I don't like it, and I don't like war at all. They said 32% of the people are against President Trump. Well, when you explain it, like, is it okay for Iran to have a nuclear weapon? It wouldn't be 32%. But even if you said that there'd be a 32% because the polls are fake.

Jon Favreau (5:24)

We watched that in our office, and it went on like that for about five hours. I think just.

Jon Lovett (5:28)

It was. It was a drone. It was an intermittent. Speaking of drone attacks, I mean, it was just like an unbelievable, like, monotone taking us through, in and out, weaving back and forth between Iran and the economy.

Jon Favreau (5:37)

And we've loved it.

Jon Lovett (5:38)

I know I said it and I regretted it, but the guy from Pawn Stars briefly showed up. He was gone. We were back to the spiel.

Jon Favreau (5:45)

It's weird. So Trump keeps telling us he's holding all the cards. What kind of a. What kind of a card game do you think he thinks he's playing?

Tommy Vietor (5:51)

Not a winning one. Yeah. So this plan, it. It's not that Navy ships are physically escorting other ships through the straighter Hormuz. Guiding you. Sounds like we'll give you directions and wish you luck. Like what?

Jon Lovett (6:03)

Right.

Tommy Vietor (6:04)

Based on what happened today. Because they're calling it a coordination effort to guide ships with real time information, safety guidance and coordination. So, like, I don't know, gps, what is this? So, but as we saw today, Iran is very willing to take shots at these vessels. They're willing to take shots at other targets in the region. The Pentagon can't guarantee that the straight of Hormuz isn't mined. So it seems like once again, more of a PR effort. They roll out over the weekend ahead of markets on Monday, but it didn't work this time because the price of gasoline shot up again. The average price is at 450 per gallon now in the U.S. but you've seen analysts say, like, there could be a break at some point pretty soon in the global economy and get us to seven or eight dollars a gallon. So he just seems stuck here. There's a lot of troops stuck in the Gulf trying to figure out what's next. Iran is not going to Backtrack. The bet seems to be that we can create enough pain for Iran that they buckle and they capitulate. I still think that's a flawed strategy because the IRGC doesn't give a shit about their own people and they have all the guns. But, yeah, yeah. In 10 days, Trump's supposed to go to China, which is by far the most important meeting of his entire second term so far. And now this is dominating the whole agenda. Not the trade deal or anything else he wanted to get done.

Jon Favreau (7:05)

It seems like they're. We're now begging China to help put pressure on Iran to open the strait, demanding. Which is exactly where you want to be, right? Love it. He said. Also today, in that thing, that event that we just saw, we're in. He's like, what is this? We're only in, like, the sixth week. It is the 10th week of war right now.

Jon Lovett (7:22)

Yeah, well, time flies when you're trapped in a conflict you thought would last a few days because you have advisors who like to drink in the morning. Allegedly, the. The Strait of Hormuz was open. There was a question around Iran's nuclear program. Now the Strait of Hormuz is closed, and there's a question about Iran's nuclear program. I don't know what kind of card game you're playing, where whatever number of cards you're holding, the situation keeps getting worse and worse all around you. I don't think he.

Jon Favreau (7:53)

I don't even know if he has a couple of twos.

Jon Lovett (7:55)

Right? Yeah, I don't. And I also, like, I, I. You know, he's holding all the cars, but he's playing uno. The point of Uno is to have no cards.

Tommy Vietor (8:01)

The goal is no cards. They literally tweeted that the more cards

Jon Lovett (8:05)

you have, the worse you're doing. Also, if you're holding a bunch of wild Uno cards, the game's over, my friend. You've won. You've won the game of uno.

Tommy Vietor (8:11)

Play those cards.

Jon Lovett (8:13)

Yeah. He's calling the blockade the greatest military maneuver or one of the greatest maneuvers in history. Then he sent a letter on Friday saying that we're actually no longer in any kind of a conflict. So don't worry about that. It's all resolved. Because we're saying that we haven't fired on each other in a while, but they're still sinking ships. He's saying if you attack our ships, then we will then destroy you, but then Iran has to go around and then fire at the ships that are in the strait because they can't legitimize that threat because they have to prove that that threat is empty. And we just keep doing this over and over and over again and also

Jon Favreau (8:49)

again, so people know the, the strait isn't like, green light, go red light, stop it. Like, this requires confidence among the different commercial vessels that are going through the strait before they actually go through the strait. So Trump just shitposting or telling everyone that, like, everything's fine and we're guiding ships and this and that. Like, what do you think happens when there's a few more explosions and boat. Even if, even if we're knocking down some of the drones and we're, you know, apparently we sunk six boats today, small boats. We're doing this. Even if we do some of that, what do you think that's going to do to the confidence of these, these ships and the companies that own the ships going through the strait? They're still not going to do it.

Tommy Vietor (9:26)

These are hundreds of millions of dollars of oil in a tanker, like the scariest thing imaginable. Having an RPG shot at your giant tanker full of oil. Yeah. I mean, there's no way these insurance companies are going to cover it or the captains are going to go through. And also, yeah, Pete Hag said was trying to claim that they were no longer in hostilities, so the War Powers act didn't apply. Well, so much for that argument, pal.

Jon Lovett (9:47)

Yeah, also, I just, I, I feel as though the Iranians are a bit like squirrels. Like, I don't think they know where the mines are at this point. So it's like they have no idea. Like, you know, you're, you work on a, on a commercial vessel, you're not in the military, you took a job, it had trade offs. One of the trade offs wasn't, I'm going to get blown up in the fucking straight o Hormuz. Like, I do this for money. I'm not, I'm not in the oil business for the love of the game.

Jon Favreau (10:08)

And again, these ships have to be insured. And who's going to give insurance on these ships? It also doesn't seem like the Iranians are taking Trump's threat that they will be, quote, blown off the face of the earth very seriously if they target US Ships right now.

Tommy Vietor (10:20)

No, I mean, obviously they probably prefer not to get bombed. But, you know, I suspect most of the Iranian leaders feel like they took the hardest punch that the US And Israel could deliver and that they are still standing and that the world sees that and that they survived it. And so the experts I've talked to they're not really sure what targets Trump could hit Now. I guess we could go back to like the war crime bucket, hit all the power plants, hit all the bridges. Maybe we talk about a tactical nuclear weapon, but that's just going to lead to mass civilian death and suffering and make the reconstruction harder. I don't think it's going to material change the thinking of the IRGC because again, they have the weapons, they're in control and it's existential and they're willing to send.

Jon Lovett (10:56)

I mean, it is just despicable what they're all like. What they are doing is despicable. Closing the Strait of Hormuz. They are sending people on small ships to their deaths for the purposes of like extracting economic pain from other countries. Like that is what they are doing right now.

Jon Favreau (11:11)

Yeah. And it's of course causing all kinds of havoc here at home. As you mentioned, Tommy, as you all saw over the weekend, Spirit Airlines formally ceased operations on Saturday. And I mean, that is a sort of a fancier term for just. It just shut down, just no longer

Tommy Vietor (11:26)

there, nobody at the counter.

Jon Favreau (11:27)

Not like we're not selling tickets anymore. Like thousands of flyers stranded. Everyone with a future Spirit ticket screwed. They said in a court filing on Monday that, quote, recent geopolitical events resulted in a massive and sustained increase in fuel prices. Driving isn't much of better. Average prices are now $4.45 a gallon above $6 in many places. Highest level since the pandemic. All time record high here in California and Washington State. And then experts are saying we could hit a national average of $5 a gallon by Memorial Day. I know some of you crass political types are trying to link these things to the new forever war that Trump started. But here's Transportation Secretary Sean Duffy and Treasury Secretary Scott Besant trying to explain just how wrong you all are. To be really clear, yeah, fuel prices have gone up. This story was not written because of the Iran war. This story was written years ago because of what Elizabeth Warren, Joe Biden, people to judge and the DOJ under Biden. What they did to prevent the merger from happening. What do they want? A nuclear Iran. In the Democrat world, the alternative is to have a nuclear Iran. I recognize that prices have come up, but they will start to go down, go down immediately once the Strait issues are resolved. We are cognizant that the, that this short term blip up in prices is

Tommy Vietor (12:45)

affecting the American people. But I am also confident on the

Jon Favreau (12:48)

other side of this, prices are going

Tommy Vietor (12:50)

to come down very quickly.

Jon Favreau (12:51)

I Think the Iranians are starting to believe their own propaganda.

Tommy Vietor (12:56)

Good button on that one.

Jon Favreau (12:58)

I just love the argument now that they've reached, which is like, yes, yes, prices are high now, but just think of what will happen when the war is over.

Jon Lovett (13:07)

It's very, it's, it's amazing, like the parallels to how, like when Trump's up there saying, like, my foreign policy is not popular, but actually if it was described properly, people would be more receptive to it. Like, he's doing Biden and then his people are out there going, actually, these are longer term causes of inflation. It's not because of this and it's not because of that and it's going to be okay. Like, the, the, the ways in which they're out there trying to kind of spin this just, it's very, it's just amazing how much it sounds like the way Biden was spinning this.

Jon Favreau (13:34)

I also think for so long there has been this, this thought that, like, well, you know, it seems bad and people are saying it's going to be bad, but, you know, the prices of oil kind of gone up and down and then they had come down recently and maybe it is going to be fine. But of course, it seems like right now it's all catching up. And it's not just the hostilities in the Gulf that have reignited on Monday. It's just like the, finally, the supply issues for oil and not enough oil going through the strait for the last 10 weeks is finally hitting oil prices and gas prices here especially really hard.

Tommy Vietor (14:10)

I mean, the price of jet fuel has nearly doubled in the last two months. The FT reported that global airlines have cut 2 million seats from their May schedules in the past two weeks. So you get planes increasing prices, the airlines are increasing prices, they're downsizing aircraft to be more efficient, the routes are all screwed up. And so I saw Delta cut 3.5% of its flights to save fuel. Lufthansa cut 20,000 flights between May and October. So, like, I don't know, I'm no expert on like, airline mergers. I know they're all blaming Biden for blocking this merger. But even if you blame Biden for blocking the merger, Spirit had gone into bankruptcy twice and they asked the Trump administration for a $500 million bailout, which they were denied, could have done that. Also, you see that Trump initially tried to blame it on Obama and said Obama blocked a merger with another airline that actually went out of business in 1987.

Jon Lovett (14:56)

Yeah, yeah. So the smoke on the planes, that

Tommy Vietor (14:59)

one didn't quite fly. So Spirit airline sucks. Like not my favorite to fly. But having them in markets was a really good thing because it pulled prices down. And there's a study that showed that, that markets with Spirit or discount airlines in them have 21% lower fares as compared to markets without them. So this sucks for all of us.

Jon Lovett (15:16)

So there were two mergers on the table. One was with Frontier, which is another ultra low cost carrier. And there was JetBlue. JetBlue offered more money. The CEO of Spirit at the time said we shouldn't do the JetBlue one because it's not going to get approved. And it wasn't going to approve because it was clear that if JetBlue were to acquire Spirit, all those ultra low cost routes would go away, which would eliminate something. Look, monopoly law, antitrust law has been really neutered. But one of the ways it was neutered was to say it had to. You have to show what the effect would be for consumers specifically. And there's all kinds of other effects that haven't been seen as important. But even JetBlue's own internal documents said this would cause costs to rise for consumers. Consumers, their own plans were basically to stop to make spirit part of JetBlue. If Frontier and Spirit and Spirit had merged, you'd have one bigger ultra low cost carrier and there'd be problems with that, but you would still have the competition that Tommy's talking about. The, the act like the CEO was aware of these regulatory problems. The judge who did it was a Reagan appointee. This was just a clear cut case where the judge came in and said the law is the law and this would hurt consumers. And there was a famous quote, if you remember from the time, which is like something I don't have in front had in front of me. I lost it. But it was something effect of Spirit may not be everyone's cup of tea, but it customers who love it, and I don't know who those insane people are, but it served a purpose. And so when it didn't get approved, one other point about this is Spirit could have said, hey, if you don't approve of this merger, we're gonna go out of business.

Jon Favreau (16:39)

And in fact, there's a provision in antitrust law this is called the failing firm defense. And they could have said that at trial. In fact, at the trial the CEO said the opposite, testified the opposite, that we have turned around and things are going well in Spirit now. And so didn't invoke the failing firm defense when they could have. So this whole Republic, this argument now made by Republicans and the fucking tech finance douches on Twitter that like this was all Elizabeth Warren's fault and people to judge and in the Biden DOJ that if only JetBlue had been able to buy Spirit then they could have turned around this failing company and blah blah, blah. That's not what the CEO was saying at the time under oath.

Jon Lovett (17:19)

And by the way, look, maybe if the shareholders had not had dollar signs in their eyes and decided to merge with Frontier instead of Jet Blue, would have been a bigger airline that could have survived this. Like stepping back, you know, one way to prevent airlines from going out of business is just to have one giant, one, one giant airline that you allowed all these guys to consolidate into. Bigger companies can weather financial difficulties more than others. Not saying that like a market with competition is not without trade offs. Right. Like there are all kinds of examples of, of, of bigger companies are able to kind of weather financial difficulties more than smaller ones. The purpose of having antitrust law is you weigh the costs and the benefits on behalf of consumers in a market that' and by the way, there is more turnover and more abilities for some companies rise and some fall. That's the nature of having a free market economy in which you protect against monopoly. But in this specific case it just doesn't apply because the judge who did it was a Republican and the deck was stacked against it from the beginning.

Jon Favreau (18:13)

The other thing you don't see people pointing out is that JetBlue is also hurting and they've lost money now for the last six years in a row. They've cut routes. There's a real argument that the merger could have led to two failed airlines instead of just one. JetBlue would have taken on three plus billion dollars in debt if they merged with Spirit. They're having trouble right now. Like we don't know what would happen. But like it's not like it was a clear cut case where JetBlue buying Spirit and taking on $3 billion in debt is. It's now cutting roots and losing money is like a big win for JetBlue either.

Tommy Vietor (18:44)

Yeah, all their costs went up. I mean it's just like what's a dumb thing we're even arguing about? Like obviously jet fuel costs is a huge driver here of the problem. What are we talking about?

Jon Favreau (18:51)

Yeah,

Jon Lovett (18:59)

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Tommy Vietor (22:42)

So if you look at the Cook Political Report, they basically have 192 seats that they marked as solid Democrat, 11 seats likely Democrat, 14 lean Democrats. That's 217 seats that are probably going to go to Democrats and 16 rated toss ups. But 13 of those are held by Republicans and three by Democrats. They're defending a lot more. That is good for us, but it's not great. Like that's not mopping up. That's not an ass kicking. And then to your point, like the redistricting fights complicate things. They'll probably net four seats from Florida. They could. States that might move before the midterms include Louisiana, Tennessee, Alabama and South Carolina. That would all create more Republican seats. There will be lawsuits that complicate all of this. As you said, Virginia is up in the air you know, longer term to 28. Some blue states could redistrict in ways that benefit us back, but it just, it feels closer than it should be with Trump at a 37 approval rating.

Jon Favreau (23:39)

To me.

Jon Lovett (23:40)

Yeah, if you get the, if you give the four seats from Florida, you get four seats potentially from this redistricting, and then you lose the four that you were going to gain in Virginia. That's a 12 seat swing that you could potentially see. But nobody really knows. I don't know. I've seen, like, different. People are nervous about the Virginia redistricting just because there's been no ruling yet. But at the same time, they've ruled against some of the other objections. So I'm not sure if it's just Democrats are nervous or if there's a legitimate chance it gets thrown out.

Jon Favreau (24:04)

So I'll go through the likelihood of sort of some of the recent developments that we saw. So Louisiana is like the most likely where we're gonna, where GOP will pick up some seats. Because, Louise, the case was about Louisiana, the voting rights case. And so the most likely result there is the Republicans get one to two extra seats in Louisiana. There'll be lawsuits there, but that is the most likely since it was directly impacted by the Supreme Court.

Tommy Vietor (24:27)

And the governor literally declared a state of emergency and delayed their primary, which should be happening right now. And they've kind of kicked it to July15 or until the legislature moves faster. So, yes, that process is very much rolling motion.

Jon Favreau (24:39)

So, yeah, the only thing that could stop that is lawsuits succeeding, but who knows, right? Tennessee wants to get a seat, wants to pick up a seat, the Tennessee Republicans. But they would basically be eliminating all Democratic seats in a black district, majority black district that has existed for decades. And their challenge is they have a timing issue since the candidate filing deadline has already passed and the primary is August 6th. And. And because they're dismantling the only black district that it's existed for decades, it under the weird ruling in the Voting Rights act, you could still have a Section 2 case there. And at the very least, you could have litigation that would take a while to play out. So, like, Tennessee is not a sure

Tommy Vietor (25:22)

thing, but their special legislative session starts this week.

Jon Favreau (25:25)

It does.

Tommy Vietor (25:25)

The day this comes out.

Jon Favreau (25:26)

Yeah, they will also. So they will have to change the primary date. They will also have to retroact the reason that it's more of a legal challenge there is they will have to retroactively change the candidate filing deadline that has already passed, which Louisiana doesn't have that problem. Louis is going to move the whole primary.

Jon Lovett (25:40)

Well, Louisiana has a problem, which is somebody already voted, right?

Jon Favreau (25:42)

Well, that is. That is. Yeah. So there's that Alabama could get a seat, is going to try to go for a seat. They have a bigger problem, which is they need SCOTUS to act on a separate case first and revert to old maps, not draw a new map. So the VRA thing was like, oh, if you're drawing new maps, whatever this they would have to get then the Supreme Court to act immediately, lift an injunction and go back to a 2023 map that the Supreme Court itself had already ruled was wrong. Was wrong. So. So they have a bigger hill to climb. South Carolina, very, very hard. And it doesn't seem like the appetite is there, but they're gonna try. But I think the timing issues for South Carolina are even worse. And in Georgia, Kemp has already ruled it out. So Georgia is not gonna go. So here's the Virginia problem, the worry there. I was looking into this. So the Virginia State Supreme Court is not like, it's not partisan like other courts where it's not like elected directly. It's a point. The legislature appoints the seats on the court and they're for 12 year terms. So it actually has a slight small C conservative lean right now, which is why everyone's a little bit nervous about how they're going to rule. They did allow the referendum to go forward in the first place.

Jon Lovett (26:52)

Right.

Jon Favreau (26:52)

But the, the issues now is people are raising procedural issues in the legislature, not necessarily the referendum itself. It was procedural issues to, like, there's some people are a little worried now because they're not. It's not like a liberal court. If it was. And it's not a very conservative court like Florida. Everyone thinks even though this could be a blatant violation of the Florida constitution, the Florida court is right wing enough that like Florida's gonna just say sure and give Ron DeSantis his four seats. If it was like New York or California, we would probably. The referendum would be fine. But because of the weird makeup of the Virginia court, I think that's why people are nervous about it.

Jon Lovett (27:25)

People are nervous about it. Yeah.

Jon Favreau (27:26)

Yeah.

Tommy Vietor (27:26)

Interesting.

Jon Favreau (27:27)

That's what's happening there. So all told, like, if Virginia and Florida both survive, it's basically we net out at Republicans picking up three seats in the redistricting war. Net. And if you know. And then beyond three, you get like maybe five to seven, depending on whether you get Louisiana plus Tennessee plus Alabama.

Jon Lovett (27:48)

So you're saying, sorry. So it is net Three across the entire redistricting fight we've just been fighting over the last year.

Jon Favreau (27:53)

If Virginia survives and Florida survives, and

Jon Lovett (27:56)

then there's a potentially plus four to Republicans through this, the post VRA things. So the.

Jon Favreau (28:01)

So basically the floor is much worse for Democrats after this. The ceiling, it all depends on sort of Virginia.

Tommy Vietor (28:08)

And then if you go out to 2028, a bunch of states.

Jon Favreau (28:12)

Oh yeah, then that's a real bad.

Tommy Vietor (28:13)

Illinois could decide to go nuts and be a 17.0Demul state. Like California could redistrict again. You could crack a bunch of Democratic districts, spread those voters all across. You could do it in New York, Maryland, New Jersey.

Jon Favreau (28:24)

New York's planning on it.

Tommy Vietor (28:25)

Washington, Oregon.

Jon Lovett (28:27)

The problem is if they Republicans move in 2026, we can't move until 2028.

Tommy Vietor (28:31)

Yeah, I mean, just the. Just. I guess what I'm getting is the overall estimate for how much the Supreme Court voting rights ruling will impact things. They're all over the place. Depending on where you look like, it's like from a dozen to two dozen seats could be impacted. To help Republicans and then fair fight, the Stacey Abrams group looked at a bunch of districts that Democrats could change to help us. So it's just like, it's a mess. It's impossible to know what's happening. None of this is good for democracy.

Jon Favreau (28:56)

No. I mean, you could. Someone just sort of posted this map as like a kind of a joke, I guess. But it's not really, which is you could end up by 2028 or beyond where if it's a red state with a governor and a legislature that is majority Republican, there are no Democratic seats left. And if it's a blue state with a governor, then there's no red seats, red seats left. So that's just talk about polarization on Louisiana. Trump posted on Sunday, quote, we cannot allow there to be an election that is conducted unconstitutionally simply for the convenience of state legislatures. If they have to vote twice, so be it. Any idea what he's actually saying there, Lovett?

Jon Lovett (29:32)

So it's unclear who the they is there. Does he mean the legislatures have to vote twice, as in approve new maps? Doesn't totally make sense. If this is because Louisiana is already voting and that's why there's some question as to whether the election could proceed. I think that's what it has to mean now. Like, who knows what the Supreme Court will do. But the idea that, look, the Supreme Court, this court is a huge fan of unleashing chaos and then being like, we can't Believe what's happening. We can't believe what you people are doing with our very obvious and simple ruling. But I do think it's a possibility that the Supreme Court would intervene in some way. To say we cannot have a bunch of states throwing out their maps and having people revote and all of this chaos in the run up before an election is a tradition of not disturbing election as it's already begun. And I think that's what Trump is worried about.

Jon Favreau (30:18)

Yeah. And it does seem like they're even. That's why when I was talking about Tennessee, it seems like they would be more likely to do that in Tennessee even than Louisiana. Because the Tennessee thing is really like throwing out the filing deadlines, doing a new primary, eliminating all the districts. It's like a, it's a pretty.

Tommy Vietor (30:34)

Yeah, there's supposed to be Supreme Court precedent. It's called the Purcell Principle that says you should not be changing elections or the election rules right before an election. Republicans often use that to screw Democrats procedurally. Hopefully it should protect everyone from like really terrible things happening right before an election or people getting disenfranchised. But I don't know. We'll find out, I guess.

Jon Favreau (30:55)

Yeah. So net net. I would say. I think however this ends up, I still think Democrats are favored to win the House, but this definitely could put a, A, a dent in the number of seats.

Tommy Vietor (31:08)

Yeah, for sure.

Jon Favreau (31:09)

That we pick up even if we do get a majority. So that's the House. Let's talk Senate. We've been talking about how the path to a Democratic majority in the Senate has been getting more realistic by the day, even though it would require defending every Democratic seat and then flipping for Republican seats. But there is another potential wrinkle that JVL at the Bulwark and Jonathan Martin at Politico just wrote about John Fetterman, specifically the rumors that Republicans are trying to persuade him to switch parties or at the very least become an independent, which would deny Democrats a Senate majority even if they pick up four seats. J Mart reported that Trump has offered, via Sean Hannity, to totally get behind Fetterman and raise a lot of money for him if he makes the switch. Fetterman told J Mart he's quote, staying a Democrat and that he'd be a, quote, shitty Republican. What do you guys think specifically? Is there anything Democrats can or should be doing about this possibility?

Tommy Vietor (32:02)

Just imagine a Democrat making this offer via Rachel Maddow.

Jon Favreau (32:07)

It's so crazy.

Tommy Vietor (32:10)

It just glosses this point. Sanity is so biased. But I mean this story look, the details are, like, Federman finds the online left really annoying. He's gotten close to Senator McCarthy.

Jon Favreau (32:20)

We've all been there.

Tommy Vietor (32:21)

Everyone's been there. He's close to his wife, did a Powell, Goldman Sachs executive turned meta executive, and then Katie Britton, her husband. As you said, Trump is offering him money and political support. It's not really clear what Fetterman wants politically. It's, like, nowhere in this article, I think. Look, hopefully the best case that Fetterman knows this conversation gives him leverage to get something tbd. I don't know. The guy I like find it very weird that his thing is just, like, being super pro Israel now and, like, that's fine on policy if you. If you believe in Israel and his right to exist and his right to defend itself. But he seems to take pleasure in trolling people that are worried about civilian casualties or the death toll. Like, obviously, this war is not good for anyone, not for Israelis, not for Palestinians, so. But it's more than just Gaza. Like, Fetterman also never seems to criticize Trump, which is an odd political choice when Trump's approval rating is rock bottom. He jumped out after the correspondence to, like, start defending the ballroom, which, again, is even more unpopular and even more stupid. So I don't know. It's like, some of this sounds personal. Like, Jonathan reported that Fetterman spends hours hanging out with Republicans in their cloak room, chatting them up. I get that. All personal. All politics is personal. I get that when people annoy you, you can get pushed out of their tribe. Presumably you run for office because you have beliefs and you want to do things to, like, turn those beliefs into policy or law. Maybe he does not. But I just. It's terrible. It's a tough situation. I hopefully. I mean, I think we should all just, you know, it does. It does remind you that constantly annoying the shit out of someone is not going to get them to come your way, but it doesn't mean anyone needs to, like, not say what they believed in.

Jon Lovett (33:59)

Yeah, there was a post by, like, the Monroe County Democrats that said he's a traitor to Democrats, traitor to Pennsylvania's, traitor to those who work tirelessly to elect him. And I. That's a defensible statement on some of these issues. But according to Fetterman's, you know, by. By Fetterman's counties and votes with Democrats, 93% of the time, he's pro gay, he's pro union, et cetera, et cetera. He's taking these heterodox views that I find Strange. And he's doing it in a state that is not more red than an Arizona, for example. We have people that have been much stronger against Trump. Now the, the, the, the stat that, that I saw, that I found, like, I didn't first, I couldn't believe it made sense mathematically. Harry Anton posted this that Fetterman has had a 108 point drop among Democrats. What do you mean? It means it's gone from plus 68 to minus 40among Democrats. Now, I don't know if Fetterman is going to run again in 2028, but it's very clear that he will have a huge problem if there is a primary challenge, and there almost certainly would be, given how weak he would be in a Democratic primary. The question is how to keep him on side until then. And I do think that's really, really important. Even, even Fetterman says in that piece, if Democrats get to 51, who do you think the 51st vote would be? And he's referring to himself. So he's seeing what Power Mansion had, what Kyrsten Sinema had, and he clearly enjoys being at the middle of things in a way that sort of feels vaguely familiar. So I, I don't think there's anything wrong with being incredibly critical of John Fetterman, but we have this way on our side of deciding that someone isn't on our side and then making it true. And I don't know that it's a balance. Right. Because of course he should be criticized and of course he should face pressure to do the right thing when it comes to say, like voting for, on Trump nominees, for example. But I do think we would rather have Fetterman caucusing with us if he ends up being that 51st vote, than we would rather have JD Vance making all the decisions.

Jon Favreau (35:49)

Yeah, just like we'd, I'm sure we would all rather have Joe Manchin in the Senate right now, still. And now he just retired. But like, like we have Jim justice who's voting with Republicans all the time. Joe Manchin pissed us off endlessly, but still voted with Democrats most of the time. Joe Manchin was in the Senate right now we'd only be needing, we'd be talking about picking up three seats and not four. We also wouldn't have had any of the investments that Joe Biden made in the Inflation Reduction act at all because it wouldn't have passed. I do think there's basically two points in the piece that I thought were worth it. One is that 93% number. And because Fetterman has been going around publicly and privately telling people he votes with the Democrats 93% of the time. Right. So that's on his mind. And then you guys have been, you know, summarizing this, but I loved the way J Mart wrote it. He says he's like, I've seen this a million times. The more one drifts from their political tribe, the more they're scorned and mocked by that tribe, often in personal terms. This only prompts the person drifting away to accelerate their turn and adopt the language, customs, and some positions of the other tribe with an I'll show them determination. Soon they're identifying somewhat or entirely with the new tribe. The path only goes in one direction now. Now you can say that that is incredibly immature, bad, whatever, like, fine, it's life. We have this guy till 2028. It's going to be in the Senate till 2028. That's the deal. And do you want him to stay a Democrat after 2026 or not? Because if he stays a Democrat after 2026, then we have a Democratic majority leader, and that means we're blocking Supreme Court appointments, all this other kind of stuff. Or at least we have a chance to do that. If we don't have a Democratic majority, then we have two years of just John Thune as leader. Right. And so then it's like, do you now, does that mean Democrats need to compromise their positions where they disagree? No, of course not. But, like, you don't have to be a dick to him, like, just for the fun of it and keep pushing him into the other side.

Tommy Vietor (37:36)

Yeah, it's a strange balance. And it's like, it's very clear from the piece and previous reporting on Fetterman that he's way too online and reads all the criticism and, like, takes it to heart and gets pissy about it. The good news is he says in the piece he knows that Trump demands 100% loyalty and he knows what will happen to you if you don't give it to him. Like, like Bill Cassidy or Thom Tillis.

Jon Favreau (37:55)

The.

Tommy Vietor (37:55)

Again, the weird thing to me is, like, in the olden days, John Federman would want a thing, an earmark for a bridge in Philadelphia or Pittsburgh. Like, what do you want, dude?

Jon Favreau (38:06)

Very unclear.

Tommy Vietor (38:07)

You just want to troll people over Gaza. Is that like your animating thing? Like, I understand, like, sort of taking positions where you punch left and punch right sometimes, and that could be good politics doesn't seem like it is currently in Pennsylvania for him, so. So I'm just sort of. I'M just confused by this.

Jon Favreau (38:20)

And again, we're not having a conversation right now about the 2028 Democratic primary in Pennsylvania and whether anyone should support John Fetterman. That's not what this is about. This is about from now till 2026, when he will be in office no matter what. Do you want to push him into the Republican Party or not?

Jon Lovett (38:35)

Yeah.

Jon Favreau (38:36)

Or do you want not to push him in, but do you want to do whatever it takes to stop him from getting into the Republican Party?

Jon Lovett (38:41)

Like, the fact that he can see to being a Republican, he's already flirting with it in his mind, even though he's sort of publicly saying that he's not considering at all. But actually, Trump's Republican Party is so unpleasant for anybody who's heterodox should tell us a little bit about how we should be dealing with people like this, stepping back. Also, we hear all the time about how we need to be a big coalition and that we don't have. People have to have all the same points of views. We need to be a party that kind of embraces all these things.

Jon Favreau (39:06)

Turns out that was just something we said, Lovett, after 2024, when we lost. And it doesn't seem like a lot of people mean that.

Jon Lovett (39:12)

And, like, and, and, But.

Jon Favreau (39:13)

And it goes both ways, by the way.

Jon Lovett (39:14)

It does go both ways, but part of it is like, okay, like, he has taken positions that we think are wrong on immigration and ice. He's taking positions that a lot of people in Democratic Party view are wrong on, say, funding Israel's military. Like, argue against those, fine. But when people reach a different conclusion and don't vote with you 100% of the time, what happens the next day? And it can't be that they're all traitors. It just can't be because.

Tommy Vietor (39:36)

Or that you're a bad person.

Jon Lovett (39:37)

Or that you're a bad person.

Jon Favreau (39:38)

Well, I remember, I mean, speaking of broadening the tent, we can bring up Hasan Piker, but I remember, like, the fight I had with Hasan on the pod, not the last pod, but the one before the bigger fight, was when he was like, yeah, you know what Joe Biden should have done to Joe Manchin? He should have, like, you know, threatened his daughter within a DOJ investigation. And it's like, whether or not you think, first of all, you can argue whether or not that's a good idea from a legal and constitutional perspective. But beyond that, like, do you think that would have scared Joe Manchin into voting the right way, or do you think that Would have maybe said to Joe Manchin, like, fuck you people, I'm leaving and I'm going to the Republican Party because it's human nature to be like, oh, you're gonna yell at me more and threaten me like, fuck you. I'm gonna go take my toys and go to the other party.

Tommy Vietor (40:21)

Yeah. Also, we do know that in the Republican Party, if you don't do everything Trump says, it ends with him telling a mob to hang you at the Capitol. So the downside risk is a little greater on their side.

Jon Lovett (40:31)

Need a bigger rope for Fetterman than for fucking Pennsylvania Pence.

Jon Favreau (40:33)

But you can see from the.

Jon Lovett (40:35)

You can big dude compared to Pence.

Jon Favreau (40:36)

It's a really good point.

Jon Lovett (40:38)

Buttress that. What do you call it? What's the thing you hang people from?

Jon Favreau (40:43)

Gallo Gallows. You can see from the piece too, like Katie Britt and. And what's his name, Dave McCormick. They're like working overtime to be nice to Fetterman because they think to themselves, oh, if we're nice to him, then maybe he'll do this.

Tommy Vietor (40:54)

It must be so obvious.

Jon Lovett (40:56)

Yeah.

Tommy Vietor (40:56)

Oh, you have one on one with me again.

Jon Favreau (40:58)

One would hope. Okay.

Tommy Vietor (40:59)

Katie.

Jon Lovett (41:00)

No, no. Katie Britt loves me. Loves hanging with me. Great. I'm John Fetterman. Pod Save America is brought to you by ZipRecruiter. Sometimes when you're trying to hire somebody, you're not just looking for somebody who's qualified, but also somebody who's genuinely interested in the role. When you find somebody like that, it makes all the difference because you find somebody who's both. Both has the right skills and the right experience, but also really wants to be part of what you're doing. That's what we're always trying to find.

Jon Favreau (41:30)

It's important.

Jon Lovett (41:30)

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Jon Favreau (42:09)

ZipRecruiter pod save America is brought to you by Americans United for Separation of Church and State. This hasn't gotten a lot of airtime, but President Trump's Religious Liberty Commission is reportedly meeting with a specific focus, advancing a Christian nationalist agenda rather than protecting universal religious freedoms. Religious freedom should be a shield for personal belief, not a sword used to harm others. Currently we're seeing this right being distorted by taxpayer funded agencies that discriminate against prospective foster parents. By imposing a religious litmus test, these organizations are prioritizing dogma over the well being and dignity of children in need of loving homes. This is exactly what has happened to some of America United's clients. Liz and Gabe Rutanram, a Jewish couple in Tennessee, were ready to foster to adopt a child until a state funded agency refused to work with them because they're Jewish. Amy Madonna, a Catholic mother of three, was rejected because she did not agree to an Evangelical Protestant statement of faith. Fatima Marouf and Bryn Espin were turned away because they're a same sex couple. If you believe religious freedom should protect everyone, we need you to join the fight now. Visit au.org crooked to learn more and become a member today. This fight is far from over and every one of us has a part to play. So in the category of Democrats being Democrats, there's also some new concerns swirling about the DNC after Ken Martin stellar performance on this very show last week

Jon Lovett (43:26)

after you threw him off that ship in the harbor, like Osama bin Laden's corpse. Is that okay to say?

Jon Favreau (43:32)

Look, he was a, he was a bit testy, I think, about his decision to not release the 2024 autopsy despite promising to do so, as well as the state of the DNC's finances, which are not great. Over the weekend, Lauren Egan at the Bulwark reported that some DNC members have recently considered trying to force Martin out, but that effort was, quote, put on hold after members failed to identify an alternative candidate willing to step into the role. Sort of like, sort of like trying to be the new ayatollah, I guess. Party members are also trying to force a resolution that would put constraints on Martin's spending and how he handles the budget. I can confirm the Bulwark reporting. I've also talked to DNC members and others around the DNC who have talked, said that there's real conversations, there's been real conversations about trying to potentially oust Martin. What do you guys make of how big of a problem this is?

Jon Lovett (44:21)

What is the. Here's what you don't understand. What do we want the DNC to do between now and November? Right? And seems to me like at this point, this November, This November, we wanted to raise a ton of money, right?

Jon Favreau (44:32)

But very, But. But even then, the DNC has very little to do with the midterms. So if we succeed in the midterms, Ken Martin's going to say, see, you're all a bunch of bedwetters and I'm amazing. And look at what the DNC did. That's going to be wrong because the DNC doesn't really have a lot to do with the midterms. If we fail at the midterms and people say, oh, this is why Ken Martin's off, that's also not. Doesn't really hold water because it's just the DNC plays the biggest role in presidential elections. So this is a 2028 issue, not a 2026 issue.

Tommy Vietor (45:01)

Look, I. Look, his performance, that interview was shockingly bad. And like, obviously I'm biased here. I'm, like, I'm a host of the show, I'm your friend. I'm friends with Ben Wickler. But, like, I didn't go into the interview feeling like, oh, I have beef with Ken Martin. I was just kind of like, what does this guy have to say? And. And I came away feeling like he was insulting my intelligence because, like, on the autopsy debate, specifically the 2024 DNT autopsy and why they haven't released it, nothing in that report could be as bad as the series of news cycles about spiking the report or going back on your promise to release it. Nothing. Nothing. And despite what he said, like, no one expected there to be a silver bullet in there. I did hope there would be a granular look at the efficacy of, like, voter contact, door knocking, phone calls, ad spending, like, issues that in hindsight move voters. If vendors or, like, you know, various individuals spent money poorly, we should name and shame them. But now we don't have any of that and everyone is filling the void left by the lack of information with their priors. Right? So the DNC defenders say, oh, it was all just inflation or Biden was too old, and the left says it was all Gaza, and we just argue in circles ad infinitum, and it just, it sucks. It's a terrible setup. And. And there was a DNC member saying on Twitter that the truth is the autopsy report just never really got done or never got completed and never will be, and that's why it wasn't released. And if that's true, that shows a lack of candor in previous statements and the interview with you that it's really bad and a problem. And so then the fundraising, like, the fundraising is not good. There's a bunch of big donors on the sideline who will not give to the dnc. I know that from personal conversations with them, and we can't pretend otherwise. So, like, this process about pushing him out or selecting someone new, like, I don't know how that would work. I also, I don't think you can constrain, like, you pick someone to lead the dnc. You pick them to lead the dnc. You can't constrain how they spend money. If you're at that point, you should get a new person in there. This person needs to be able to spend money. So I just. I came away shocked that, like, a political professional struggled that badly in just answering questions that I feel like were asked in good faith and could have been answered better, but just. It was a mess.

Jon Lovett (47:10)

It is now, like, accepted as a fact that the DNC covered up the autopsy because it showed that Kamala Harris lost because of Gaza. That is, like, on whole parts of the Internet, that is just a known thing that we all know about. The fact of this, of this report now, there has been reporting that that played a role, and I would like to know what that information is, but it just speaks to the damage done by either not finishing the report or not. And, like, the way in which saying, you're not going to release the port and not finish the port go hand in hand, is this thing kind of just sort of slowly, like, kind of ends with a whimper. Probably not going to put it out. The work, you know, everyone kind of slows down, the meetings get canceled, and all of a sudden there's no report and nothing to release. And so, like, part of the problem is there's no way to answer for that in an interview now, because what should happen is go back in time, aggressively finish the thing and get it out the door.

Jon Favreau (47:58)

Yeah. What I have heard, and like Tommy said, there was a DNC member on Twitter who said some of this. But then I've heard it from other people.

Tommy Vietor (48:07)

Yeah, I've heard it from others, too.

Jon Favreau (48:08)

Lots of other people citing just the tweet that Ken Martin had his friend Paul Rivera, who was unpaid, which is why Ken was telling me. He was like, oh, we didn't spend hundreds of thousand dollars on it. And I was like, oh, it's a free report. And he was like, well, so he got this guy to do it. The guy went around and talked to people. Didn't even talk to all the right people. A lot of people weren't interviewed at all. Did a shitty job. And Ken, the whole time was like, just letting him do his thing. And then when he came back and didn't have any of the good information, then they just wrote up the report, what they had. It was a garbage report. And then Ken realized they couldn't release it. And so instead of either saying, like, this was a bad thing, I'm gonna try another. We're going to try another autopsy, we're going to hire someone else, we're going to do it. Right. Has apparently just decided to not be honest about it.

Tommy Vietor (48:57)

Yeah, I've heard that from a bunch of people, too, and I can't confirm that it's true or not. It would certainly.

Jon Favreau (49:01)

We've heard from a lot of people who are like, in the know.

Tommy Vietor (49:03)

Yes, yes. But it certainly does a better job explaining why you would endure this torturous series of news cycles about a thing rather than just dump it out over Christmas or something and just, like, move on.

Jon Favreau (49:16)

I've also talked to people who have raised money at the highest levels for Democrats for a very long time, and they said that the finance situation is a disaster. And they're like, he can talk about state investments and this and that. The problem is he is spending more money than he is raising. That is very simple. And it is a mismanagement of funds. And so even if he was raising a lot more money and having more success there, if you're spending more than you're raising, it's still a problem. And, and to all of his talking points about investing in state parties, the portion that they're investing in state parties still, even if you take all that money, that nowhere near makes up the large gap between the fundraising and the spending that's going on at the DNC right now. So there is a mismanagement. Since that interview, I've heard from DNC members, from people inside the dnc, current and former officials, and heard from donors. And then those people have told me they've heard concern from party leaders, former DNC chairs, who are very upset about this and no one knows what to do because I guess, Tommy, to your point, like, the bylaws make it very difficult to actually oust Martin. And so people are sort of wondering what to do now, and look, I think Amanda Lippman, our friend who runs Run for Something, she made a good point about this. She put out a video about this on her Instagram. But. But the real challenge here is building trust in the Democratic national committee ahead of 2028. Because what the DNC does ahead of 2028 is they are going to set the primary calendar, which is obviously gonna be very contentious because depending on which states go first, that's gonna help different candidates. They are going to set the debate qualifications and who qualifies for debates. And so we are going to have a raucous primary in 2028. And the, you know, supposed to be the referee of that primary is supposed to be the dnc. And I do think that it's incumbent on all the candidates who are Gonna Run in 2028 and their campaigns to speak out publicly and get some transparency, more transparency than we've gotten from Ken Martin on what the rules are gonna be, how the process is gonna go, make it transparent. Whatever happened to the fucking autopsy? And what's your plan to be financially viable in 2028? Because it is important for the DNC to have money ahead of the presidential election in 2028.

Jon Lovett (51:31)

Yeah, I guess the thing is, I agree with all that. It's like right now the most important thing is that, like, every conversation we're having about the Democratic National Committee, like, it is important going forward, but for right now, it is, like, about Democratic Party problems that ultimately will have no impact on what happens in 2026. And that doesn't mean we don't have to have this fight in this conversation right now. The thing I.

Jon Favreau (51:56)

Well, yeah, no, because it's to that point, Lovett, like the folks I was talking to, said their biggest worry is 2026 happens, we do well, and then Ken Martin's like, see, you are all wrong. Bunch of bedwetters and blah, blah, blah, and we're moving on. And then suddenly you're in the primary in the 2028 primary, which happens right after the midterm elections. And by then it's too late to solve the problem.

Jon Lovett (52:15)

Right? The question, right, is the fight over who would be DNC chair, plus the sending money all over the world, combined with either the inability or refusal to release the autopsy, have together created this storm. And the question is, what are the. Those are two very specific problems that they may carry knock on effects into the next year, but they don't actually speak to whether or not he would be able to do those jobs, what he would do to Run the party in the next year. But what I took away from this is when we saw him at that party, I had always seen Ken Martin in these kind of talking point mode interviews, which I found generally frustrating, but not more or less than a traditional politician. But at that, at that meeting, he was so intense and direct, like in a way that I'd never seen, in a kind of public facing way. It was like, oh, like there's the real guy. He's like an operator, like an actual kind of like hard nosed guy who's like pretty upset about bad coverage, pissed about it, thinks it's unfair, wants to argue about it, wants to make his case. I thought like, oh, that's like an interesting kind of version of this person that I hadn't seen because publicly he does a kind of more traditional Democratic politician thing. And I think what I took away from the interview overall is like the era of that kind of talking point is over. Like, don't talk down to people like this. It doesn't fucking work. Certainly not solving your problem.

Jon Favreau (53:29)

It was direct, but he's also very, it's very defensive. And what you've heard from DNC people and people in the Democratic Party is that the relationship building element of the job, which is also important for the Democratic National Committee chair, is lacking in a bit. And so it's very insular. And he has not reached out to people or especially people who like supported any of his opponents in that race, you know, which is, is tough.

Tommy Vietor (53:53)

But also like, his whole point was like, we're looking forward, not backwards. It's like, well, none of us want to wallow in the past, but it's about learning from and correcting mistakes. And like, look at the Democratic Party right now. We have not learned from and corrected a lot of mistakes. Like, remember when voters were like, hey, you have a gerontocracy problem. Have we solved that beyond removing Joe Biden from the ticket? Absolutely not. When everyone, sorry, but he's doing this like Bill Belichick, we're on the Seattle, we're on the Seattle thing. It's like we want to figure out what we screwed up last time and fix it. And like, it just, it was very

Jon Favreau (54:26)

frustrating and his repeated point about lessons. We're releasing the lessons, the lessons. I encourage everyone to go onto the DNC website and sign up for the 200 page lessons report and see what it is. Because it's not really a lot of lessons. A lot of it is lessons from success in 2025. And then like various case studies from different groups that are just sort of pasted into the document, like. Like our friends at Swing Left who did a lot of that research door to door when they were. Which is great. We love it. But like, that's not. That's not an autopsy of 2024.

Jon Lovett (54:56)

No, it's not. Whenever someone says, like, we gotta look forward, we can't look towards the past. And it's like, okay, where do you learn from? Because I only. I face the past. The future is. But actually in a lot of ways behind me, I only find out what's gonna happen there when it becomes the past. The present is infinitely small. So I tend to live in this present that I can't really quantify everything. I know 100% of it actually comes from the past, which is interesting. So I don't know how you're supposed to learn from the future as before you've gotten there.

Tommy Vietor (55:25)

So I think the Marty McFly thing,

Jon Lovett (55:27)

yeah, past is a good place to look to find answers. I find. I find.

Jon Favreau (55:31)

Anyway, it's an issue. It's an issue. Looming over all these issues, though, is the fact that even though Trump and the Republicans are polling horribly, the Democratic Party isn't popular with voters either. Laksha Jane, at the argument had a piece last week pointing out that the collapse in Trump's approval ratings has not yet resulted in Democrats gaining by a corresponding amount on the generic ballot. So basically, in their analysis of polling, Trump has gone from negative 16 to negative 22 between July and April, but the Democratic generic ballot advantage has gone from plus six to plus six. And yet some Democratic candidates are still polling quite well against their Republican opponents. So that's good even in purple states. Maybe the most prominent example here is Jon Ossoff in Georgia, who has also gone all in on a corruption message. Here's his latest very good, very viral video. We're told a story.

Tommy Vietor (56:23)

Work hard, play by the rules, and you'll thrive.

Jon Favreau (56:27)

No matter who you are or where you start, the grind will pay off.

Tommy Vietor (56:31)

But for too many, this story just isn't true. The problem is a corrupt and failing political system. The problem is that the people's elected

Jon Favreau (56:40)

representative represent the people.

Tommy Vietor (56:43)

They represent the donors and special interests.

Jon Favreau (56:48)

Corruption is why things don't work for ordinary people

Tommy Vietor (56:54)

to fix it, we have to understand it. Corruption's impact isn't abstract. It shows up in our daily lives.

Jon Favreau (57:02)

Take prescription drugs. So he goes on there to talk about how, you know, when Bush passed Medicare, Part D prescription drug program in 2003, that's what stopped drug company or stopped the United States government from being able to negotiate for lower prices with the drug companies, just like other countries do. And that, like, I remember talking about this when we were like, back in the Senate, Billy Tauzen, who was the head of the House committee there, then left Congress to go be the lobbyist, the pharmaceutical company. And then, you know, then he used that to tell the story of how in the Biden administration, he helped lead the fight in the Senate to actually lower prescription drug prices for a lot of these prescriptions, which I thought was the way he told it was a more effective and better story than you ever heard from the actual Biden administration itself, even though they were very responsible for the win. But what did you guys think of that video? And also just whether Ossoff's message should be a model for other Democratic candidates.

Tommy Vietor (57:59)

I mean, I think the corruption message is really powerful because it's true. And it also gives you a why to explain why things are so broken. You're not just blaming the other side, you're blaming something more tangible. And I think it also speaks to the moment, which is the voters are furious. They want to burn down the system. That was true in 2016. Trump effectively channeled that fury. I think he's lost those voters now. But those voters are probably even more angry, right, because they're pissed off about prices and inflation. And so Obama ran against Washington, Bill Clinton, winner ran against Washington. And also, I think when you run, Trump did too. Trump did, too. And when you run on that kind of message, hopefully it creates a mandate to actually change some of the things that we're talking about in there. But it also, it does let us tell a story about Trump that it isn't just like, he's bad, because I think what Trump has done to like, personally charge the corruption in government is so far beyond Billy Towson becoming a pharma lobbyist.

Jon Favreau (58:52)

It's like good old days.

Tommy Vietor (58:54)

His kids follow him around on foreign trips and they make real estate deals in foreign countries afterwards. Like, we all watch. Remember that border piece of. Yeah, it was something like Egypt when the president of Indonesia was like, hey, Donald, should I call Don Jr. Or Eric to cut a deal? Right. Remember this? They're making billions off their crypto interests. They even sold half of it to this Emirati backed company. Eric Trump is advisor to a robotics company because he's a big robotics drone genius. Apparently he got a $24 million Pentagon loan. And Maria Bartiromo was like, hey, congrats, Eric. Well, well done that. Don Jr. Advises Cal and Polymarket, which these Trump officials are using to bet on. They are with insider information. Jared Kushner is negotiating with Russia, Ukraine, Israel, Iran, all these Gulf countries. 99% of the money he's raised in his investment fund is foreign. He's trying to raise 5 billion more from mostly foreign interests. He was doing so at the sideline of an event at Davos. He has not filed a personal financial disclosure form. So this story, it's very real. It tells itself. If you have some time and you have the ear of the person. And I think Ossoff has done a better job prosecuting that case than most because he's consistent.

Jon Favreau (60:06)

And one thing he says in that video that we didn't play, and I hear him say on the stump too, is, and look, both sides do it. Both sides do it, which is the scale of it on the right and especially with Trump, is just exponentially greater. But, like, it is important to voters to acknowledge that, like, yeah, Democrats aren't fucking perfect on this either.

Jon Lovett (60:24)

Yeah. I think there's two questions. It's like, what is the source of America's ills? And then what is the best message going into the midterms? I think the corruption message is great. I think this video is great. Democrats are corrupted by the money in politics because we're all people and money corrupts. And it has made it so that Democrats, when in power, do less, make less change, make more compromise. It takes more to get certain votes because those people are either they're explicitly in their own minds trying to protect their donors, or they've kind of of convince themselves they believe what it's financially best for them to believe. This happened when we were passing Obamacare. Everybody blames Joe Lieberman for killing the public option, but actually it was a bunch of Democrats in the Senate when we had 60 votes that stood in the way of having an option for people to get public health care like Medicare, because of lobbying, because of fear of negative ads, because Joe Lieberman had a bunch of insurance companies in his state. But even more after that, Joe Lieberman personally stopped a Medicare buy in for 55 plus. That would have made a huge difference for everybody. And he did that because he had donors in his state. And even though he was retiring, he did it at their behest. So these things do make a difference. And it is both sides. But we're in this mess. Why is this corruption tolerable just because Republicans are excusing it? Barack Obama wins in 2008. He is punished in part because he is paying for the consequences and economic fallout of the previous Republican administration. Joe Biden and Democrats are punished because of this mismanagement of the pandemic and the economic fallout that came after. After that pandemic. But when you elect Democrats, they tend to do things that are. That are more popular or more economically progressive. And when you elect Republicans, you end up with tax cuts for the rich and deregulation. It happens every time. Most of what our politics is is about obfuscating that for people. I think in a world in which people don't generally believe that instinctively, and they come to doubt and mistrust Democrats for reasons having to do with economic mismanagement, but also because of a whole ecosystem that exists to make Democrats look extreme and silly, and because some Democrats have taken stupid and embarrassing and unpopular positions. I think it is smart to have Democrats making an argument like this. But to me, the goal is for each Democrat to make the best argument. They can tell the best story. Because nobody votes for a generic Democrat. They vote for the Democrat on their ballot. And then how we address our broader problem with the electorate, where people mistrust us, don't believe us on the economy, but they don't believe that we'll do what we say on the economy, and they still believe we'll do what we said in 2020 on everything else. That, to me, is a fight we're gonna have to fight fight in the primaries in 2028.

Jon Favreau (62:57)

Yeah. I mean, to the broader question that Laksha raises in the argument piece about why Democrats aren't gaining on the generic ballot by as much as Trump's approval is falling. I do think there's probably a number of reasons.

Tommy Vietor (63:12)

Oh, definitely.

Jon Favreau (63:12)

But I do think that there is just a severe lack of trust in the Democratic Party and the Democratic brand that comes from. I mean, it comes from decades, but it also comes, like, specifically from everything that happened at the end of the Biden administration. Joe Biden running is part of it. Laksha points out the Democratic position on crime is a big part of it, or at least what the perception of the Democratic position on crime is, which was unfortunately hurt by the defund the police discussion, which of course, none. You didn't have Democratic candidates saying defund the police. But enough activists were that the perception became that Democrats want to defund the police.

Jon Lovett (63:54)

Most Democrats didn't, but a few did.

Jon Favreau (63:55)

Few did. Few did. And those were the voices that were elevated by some, often by the other side. Yes, I think some of the positions on border security and immigration contributed as well, there's some cultural issues as well. So, like, there's a lot going on, but I think even beyond all those individual issues, because I do think if you take an unpopular position on an issue because you really believe in that position and you sell it and you say, I'm sorry that I'm not on your side on this, but this is just what I believe. That is one thing. There's a perception that Democrats are just like, maybe I'll be on this side of this issue, but then maybe I'll change if somebody's unpopular. And the wishy washiness, which is another version of corruption, that's not just money, it's power and fame corrupting as well. Right. I like my position of power and I don't want to lose it. And so I'm going to say whatever I think is popular.

Tommy Vietor (64:40)

There's lack of faith in the political system generally, which I think spreads to everyone. And I think on the Democrats, to look inward, I think that, you know, voters had high hopes for Obama that they didn't feel were met. Right. That's an area where we all look inward on, on the Biden administration. Like, this is why it's so annoying to hear see Hunter Biden running around and blaming everyone but himself for his father's political standing because he did more to nullify the Democratic Party's position on waging this corruption message against Trump than literally anybody else because of his scummy business dealings. And, yes, they're nothing compared to what Don Jr. And Eric Trump do on a given Tuesday. But still, he was a huge problem, and that's why it's so, like, galling to him out there. But, yeah, I mean, I think there was a broader trust thing with Joe Biden where we as a party were like, no, no, he's not too old. He's totally fine. And then he ran again and voters firmly rejected it. Then there were the pardon issues you were talking about. That said, I do think, like, like, I'm worried about us not doing better in the generic ballot rating, but we have no leader, we have no standard bearer.

Jon Favreau (65:38)

That's a huge part.

Tommy Vietor (65:39)

Like, we are, yes, we are offsides where the electorate is on some issues. Like, the Washington Post just had a poll out this week, and it found 53% of voters think Democrats are too liberal, but a similar number thought the Republicans were too conservative. Right. So, like, people just maybe don't like the other side. What gives me some hope for the midterms, I think they're going to be a referendum on Trump and the party in charge. I also think it's a turnout election and if we can turn out our far more motivated base, then we will win. And in that Same Post poll, 73% of Democrats say voting this fall is more important than previous midterms, versus 52% of Republicans. So our side is, is considerably more motivated to go out right now.

Jon Favreau (66:16)

I have now heard from a few people who've just like asked me advice on who to support, what Democrats to support, where to put their money, their time. And a thing that I keep hearing is, you know, who I want to support this time around because of the state of the politics of the party, first time candidates, new candidates. And there is something, and like the, this is where like the Joe Biden issue and the Ken Martin issue are somewhat connected because there is a, like, don't piss on our leg and tell us it's raining kind of thing where you look at Democrats and it was very obvious that Joe Biden was too old. And then a bunch of people in the party were like, no, no, he's fine, everything's great. The debate performance was fine, no big deal. And then Ken Martin's like, well, we told us you would release the autopsy and you're not releasing the autopsy. And he's like, we are releasing it. We have been releasing it. You know, just like it's like when you're, when you, when someone tells you something that obviously seems dishonest because we all have eyes and ears that like you lose a level of trust in that person in that institution that it's hard to get back, you know, and I think that's, that's part of the issue as well.

Jon Lovett (67:15)

Yeah, I think that's right. The age thing is a stand in though for. Cause like if you look at who were the people that were the most behind Joe Biden, even towards the end, it was actually, it was, it wasn't ideological even like Bernie and AOC were the ones that like were behind.

Tommy Vietor (67:26)

It's a lot of progressives actually.

Jon Lovett (67:27)

But, but people really know what Bernie stands for. They really know what AOC stands for. And I don't think AOC or Bernie particularly pay a political price for that position in part because they're deep right kind of values are so clear. And what Ossif to me is doing with these kinds of anti corruption messages with the story he's telling is he's trying to have an ideologically kind of broad story that kind of can represent a vision for what Democrats stand for, what they care about. And to me, what I worry about, what does it mean to care about corruption? Because if we can win, and then all of a sudden we're talking about whether or not to do hearings. Right, right. There's gonna be a ton of pressure from polling when, because when you ask people, you know what the polling is gonna say, do you want people to look backwards? You wanna look forward? Oh, I want people to go forward. Do you want people to investigate Trump or do you want them to focus on issues that are affecting your family? I want them to focus on issues affecting my family. And I worry that that kind of like simple reading of what the polls will certainly say will lead people to think, oh, we shouldn't, we gotta just focus. I'm not focused on what Trump did. And we gotta, that was bad and I hate it. You know, I've always been against it, but we gotta focus on my plan. And I get that. But one way you prove to people that you really care about, about something, that you really stand for something, is you say, look, we gotta get to the bottom of this for the future. We gotta do this even if the polls say it's bad. We gotta make sure we root out this corruption to protect our country from a future Trump, whatever it sounds like. But we have to be willing to actually, like, kind of put real, kind of put our shoulders behind an actual anti corruption agenda when we're in power.

Jon Favreau (68:49)

Yeah, I agree. All right, when we come back, I'll talk to Strict Scrutiny's Melissa Murray about the latest rulings on abortion, medication, the Voting Rights Act. In her new book. That's Right, when we come back,

Jon Lovett (69:10)

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Jon Favreau (70:35)

Melissa, welcome back.

Melissa Murray (70:36)

Thanks for having me.

Jon Favreau (70:38)

Congrats on your new book.

Melissa Murray (70:39)

Thank you. It's going to be coming out on Cinco de Mayo. I think the best thing to do to celebrate is to pour salt all over it, lick it, maybe do some body shots.

Jon Lovett (70:48)

I don't know.

Melissa Murray (70:48)

What do you think?

Jon Favreau (70:49)

You know, people will be hearing this on Tuesday on Cinco de Mayo. And I'm gonna be doing that. That's what I'm gonna grab. My card.

Melissa Murray (70:56)

I mean, Taco Tuesday, Taco President, Cinco de Mayo. This is perfect.

Jon Favreau (71:01)

The book is the US Constitution, a comprehensive and annotated guide for the modern reader. I wanna ask you a few questions about that, but first I just wanna start with a little legal news. Specifically, the latest legal news on mifepristone, the abortion medication responsible for about 65% of abortions in the U.S. can you walk us through both what the 5th Circuit ruled on Friday in the Louisiana versus FDA case and what the Supreme Court did on Monday?

Melissa Murray (71:32)

Sure. So let me roll back a little bit. Some of your listeners will remember, and if they're strict scrutiny listeners, they'll definitely remember that there was a case a few terms ago in the court called FDA versus the alliance for Hippocratic Medicine. And I had such a hard time with the name of this case because I kept saying hypocritical medicine. It's something of a Freudian, I was gonna say. Yeah, right. So these are a group of pro life doctors that were challenging the FDA's approval of mifepristone. And that case was argued before the Supreme Court. The court, in an unexpected decision in advance of the 2024 election, said that there was no jurisdiction to hear the case because the doctors who were part of the alliance for Hippocratic Medicine lacked standing, which is to say that their professed injuries because of the FDA's approval of mifepristone were too attenuated to actually sustain federal court jurisdiction. So the case was thrown out. Although the court obviously didn't answer important questions regarding the FDA's approval of mifepristone, its authority to approve mifepristone, nor did it weigh in on the absolute, like, ridiculousness of some of the claims that the alliance for Hippocratic Medicine were making. In any event, a new group group filed a lawsuit, this time in Louisiana. That was honestly the biggest surprise, that they didn't go back to Amarillo and Judge Matthew Kaczmarek to file this case. They instead filed it in Louisiana. And Last Friday, the 5th Circuit issued a decision on the case where they effectively issued a nationwide ban on nifepristone, basically saying that the FDA had not done what it needed to do in approving it and that there were questions regarding the FDA's approval of mifepristone that required staying the distribution of the telehealth aspects of the restrict of the protocols for distributing mifepristone. So I just want to emphasize, like the Fifth Circuit did this, but they got a real assist from the Trump administration. So the Trump administration has been at great pains to stay out of abortion, likely because they recognize it's a really bad issue for them. The whole idea of women dying in parking lots doesn't sell well even in the red states. So the administration has been pretty hands off on abortion and reproductive rights. But the FDA under Secretary Bearjuice, aka RFK Jr. Has been making some statements about mifepristone, though. For example, they've challenged or questioned whether the FDA's approval of mifepristone was appropriate. They've challenged or said that some of the of the requirements for distributing mifepristone via telehealth or through the mails should be questioned or reexamined. So in making those kinds of statements and concessions about the efficacy and safety of mifepristone, the administration basically laid the groundwork for the Fifth Circuit. And indeed, the Fifth Circuit cited many of these statements from administration officials at the FDA in making its decision. So they relied on those statements. So. So this wasn't issued by the Trump administration. They didn't put a ban on mifepristone, but they certainly gave the 5th Circuit a glide path for doing so. So the 5th Circuit stay or the 5th Circuit basically had this nationwide ban that went into effect on Friday. They Issued it at around 4 o' clock central time, 5 o' clock in the east, and it is a nationwide ban. And on Monday, the Supreme Court through the circuit justice who is assigned to the Fifth Circuit, I think this is Justice Alito. So interesting. Yeah, he stayed the ruling. This is obviously important because a stay means that mifepristone is now available again on a nationwide basis. But one of the things that our friend of the pod, Steve Vladek, noted in his substack and on Blue sky is that Justice Alito will issue stays in cases that come to him on an emergency basis. But in cases where he's more sympathetic to the causes, the stays are usually indefinite. For cases where he's not particularly sympathetic to the causes or the issues underlying the case, he makes the stay time limited. And in this case it was a time limited stay. So this sets up a schedule for briefing and whatnot, and this will be back before the court, but the stay will not be finite. There's going to be a timeline on this.

Jon Favreau (76:05)

So in this new case, I noticed the manufacturers of mifepristone filed a brief that basically says Louisiana's standing theory is an even more attenuated version of exactly what the court already rejected. Do you buy that argument? And more to the point, do you think the court will.

Melissa Murray (76:23)

Well, I do buy the argument. Again, the arguments that were made and rejected by the court in FDA versus the alliance for Hippocratic Medicine talked about the, you know, like, you have to, like, when people are using mifepristone, the doctors are denied the aesthetic privilege of watching babies born. It was just like, oh, okay, so it's like really fanciful stuff. And I don't know that it's that much better here. I mean, they're basically arguing in very fetal person forward terms that the state of Louisiana is prevented from protecting unborn life because mifepristone is available nationwide and can be distributed via telehealth and through, through the mail. Hard to make that as a specific injury to Louisiana specifically. You know, there's also a discussion of the whole question of the safety of mifepristone. And they note that there are two people in Louisiana who suffered ill effects from the use of mifepristone. But they also say that, you know, over thousands of women have been using mifepristone since Roe vs. Wade fell in Dobbs. So, I mean, make that make sense. You know, thousands of women are using it. Two women experience ill effects, therefore it's a safety concern. And that's one of the predicates under which they're bringing this lawsuit. So I don't buy their claims of injury. I don't know that the court will be as skeptical this time of those claims as they were when this case first came or a case like this came before the court. Again, when FDA versus the alliance for Hippocratic Medicine was before the court, it was right before a really consequential election. It was just after the Supreme Court overruled Roe versus Wade and Dobbs. I think the court knew that the galvanization of abortion fervor was not great for the court, also not great for the Republican Party. I don't know if they're thinking that the same kinds of popular conditions exist right now. The abortion. Abortion question for a lot of people may have fallen to the wayside right now just because the administration hasn't done anything explicit or obvious as an overture toward abortion rights. People are worried about other things. The economy, the war in Iran, on and on and on. This might actually be a moment where the court is like, you know, nothing to see here. No one's paying attention in the way that they were between 2022 and 24. And this could be the moment.

Jon Favreau (78:57)

I mean, even if the court buys the standing argument this time around, wasn't a big line of legal reasoning in Dobbs that the states must decide this. This cannot be a federal issue. And if they rule against mifepristone here, doesn't that make. Doesn't that just a national, effectively a national ban on all abortion medications?

Melissa Murray (79:23)

Look at you making constitutional claims, Jon Favreau. It's almost like you read Brett Kavanaugh's concurrence. Let the states decide what they want. Federalism for everybody. Yeah, I guess it's true that this question certainly could be decided on federalism grounds, like Louisiana has made a choice for itself. And certainly they could address the question of the. The importation of mifepristone into its borders for use by Louisianans. But the broader question of a nationwide ban like that seems to be a question that's asked and answered by the whole concept of federalism. Whether this court will do that. I mean, it's basically the bottom line is will this court be principled about its prior stances on questions like federalism, the sovereignty of individual states, including blue states that may want to allow for access to abortion, and. And just. Or whether they'll just do what they want to do? Because they can. And they have a super majority of six. And when you have six, they let you do what you want.

Jon Favreau (80:31)

Let's say, let's, let's take the optimistic view and say that SCOTUS does the right thing here. The Trump fda.

Melissa Murray (80:38)

Are you Kate Shaw? Well, what's going on here?

Jon Favreau (80:42)

Don't worry, I'm going to bring us back to bring us back to earth soon. This is more of just an exercise size. The Trump fda, as you pointed out, is still doing its own review of mifepristone prompted by a debunked Project 2025 report. So is there a case to be made that the legal fight is it may be beside the point at this stage? Like, could we just see the FDA itself, you know, cause us to lose telehealth and mail order mifepress down either way.

Melissa Murray (81:12)

So any agency action I'm sure would be challenged by reproductive rights groups, reproductive justice groups. So certainly the, the FDA could move ahead of this case and go forward. And again, the whole question, the timeline of this case may be upended, like whether this, you know, this is an emergency appeal that was made to Justice Alito in his capacity as circuit justice. So that sort of while the litigation is pending. But the next step for this litigation anyway would have been the Supreme Court. So this is an initial stay. There's going to be a question about whether the court takes this up. Something could obviously happen at the FDA that possibly could moot this case. But I think anything the FDA does would likely to be challenged.

Jon Favreau (81:53)

But it does seem like this is a tricky one in which if the court rules for Louisiana, like what does that mean for someone in California or New York or Massachusetts trying to get a mifepristone prescription?

Melissa Murray (82:08)

I think it depends on how this decision rights. You know, if this is a decision that takes seriously the question of federalism, as you alluded to earlier, then there is probably an opening for someone in California. It just may limit the importation of miprofistone to states that have very robust restrictions on abortion. It wouldn't necessarily, depending on how it's written, it wouldn't necessarily prevent people from Louisiana from leaving the state unless Louisiana wrote a law that, you know, made it impossible for people to leave the state. Although I think that could be challenged on constitutional grounds regarding the right to travel. Brett Kavanaugh mentioned that in his concurrence in Dobbs as well. So there are a lot of open avenues. I think one thing that is really interesting and deeply implicated by this case and the questions it raises is what happens to physicians in blue states who prescribe mifepristone. And then the prescriptions are going to people in other places, whether it's Louisiana or whatnot. And those are big questions and likely to implicate the spate of shield laws that have been enacted in the wake of Dobbs that haven't really been tested at the Supreme Court yet.

Jon Favreau (83:23)

Let's move to another cheery topic. The other big court ruling from the other week is Calais, which was about the Voting Rights Act. It was a 6:3 decision again, with our friend Alito writing for the majority. What did the court do there, and what is the actual practical consequence gonna be, do you think, over the next two, four, six years?

Melissa Murray (83:47)

Well, what did the court do there? So what does the court tell us it's doing and what does the court actually do? May be two very different things. And maybe we should parse that for a little bit. The court in that case said that it was doing no more than realigning the terms of section 2 of the Voting Rights act of 1965 with the jurisprudence that it has issued. Anytime the court says it's realigning something, it's pretty much either eviscerating it or overruling it. So they are presenting this as a kind of modest change or update. But as Justice Kagan said in her dissent, it is effectively the evisceration of Section 2 of the Voting Rights Act. And to understand what she means by that, I think you have to understand the procedural posture of this case and what the case is actually about. One thing to note here was that back in 2023, the court took up a very similar case called Allen vs. Milligan. It was about Alabama's congressional map that was drawn in the wake of the 2020 census. Alabama essentially passed, packed its black citizens into one district. That map was challenged as an impermissible racial gerrymander under section 2. A lower court agreed it was an impermissible racial gerrymander, and it ordered Alabama to draw a new map with more representation for African Americans. And so Alabama drew a map with two voter opportunity districts where minority voters would have the opportunity to elect the candidates of their choice. Fast forward to October term 2022. But June 2023, when the court issued its decision in Allen v. Milligan, the map that had been drawn, the second map with the two voter opportunity districts, had been challenged as itself an impermissible racial gerrymander because they were thinking about race when they were trying to remedy the racial discrimination of the initial map. Which seems right. Like, you have to think about race if you're trying to vindicate the interest interests of minority voters after the state has screwed over the minority voters with the first map. And the court in that case said this map is fine by a 6 to 3 vote. So they upheld the new map with the two minority opportunity districts. Subsequently, the same thing happened in Louisiana, So it's a virtually identical case. Louisiana draws its maps after the census. It makes one opportunity district for black voters, even though know black voters comprise about a third of the Louisiana electorate. A court says it's an impermissible racial gerrymander, orders the state to draw two new districts. The state does that. A group of non African American voters challenge the new map with the two opportunity districts as an impermissible racial gerrymander on the view that in trying to remedy the discrimination done by the first racial gerrymander, the state has now engaged in more, more racial discrimination. And the second round of racial discrimination is racial discrimination against white voters. And in the decision that was issued last week, Justice Alito said, yeah, that sounds right. Even thinking about race in the context of trying to remedy past racial discrimination is itself a racial violation. So this is basically applying to the context of voting rights. The same logic that this court has used in the context, context of affirmative action like the Constitution does not see race at all. If you're even thinking about race, even if it's for remedial purposes, that is suspect and should be invalidated. And if you are going to use race as a remedy, the only context where it will be applicable and permissible is in circumstances where you can prove intentional discrimination, which is really, really hard to do, especially in the context of voting where and especially in the south, often race and political affiliation run together. So most black voters in the south are going to be Democrats. So if black voters say, hey listen, you just totally diluted our voting power. This is a racial discrimination issue. It's a racial gerrymander. The state just has to say no, we were doing this because we were trying to consolidate partisan advantage. And that's probably true, but it doesn't mean it's also not racial discrimination. The court says full stop. You've got to have absolute proof that this was intentional racial discrimination. Most states are not dumb. Most state officials aren't dumb. They're going to figure out how to do this without making it look intentional. And they're going to keep doing it. And that's really the danger of this case. We're going to see more and more districts being drawn in ways that disadvantage minority voters and voters of color. We are going to see More and more states try to to consolidate partisan advantage. Marsha Blackburn of Tennessee reportedly said that this decision leaves the state legislature of Tennessee free to make Tennessee a red state in perpetuity. All of this is unbelievably anti Democratic, but it's also deeply, deeply anti multiracial Democratic. Right. This is how you kill a multiracial democracy.

Jon Favreau (88:54)

So how did the court differentiate its ruling in the Louisiana case case from its ruling in the Alabama case, where I believe Roberts and Kavanaugh voted with the liberals in that case?

Melissa Murray (89:05)

Well, I think part of how they did this was that they created a new question to be asked. So the case Louisiana vs Calais was actually first taken up in October term 2024. There was oral argument. The court was expected to issue a decision by June 2025. In June of 2025, it said, Wait a minute, we're going to hold this case over till the next term. They ordered another set of oral arguments, and then they instructed the litigants to answer a new question that the litigants didn't even ask. So this is a question the court was supplying. And the question was whether the use of race in the context of remedying this racial Gerrymander violated the 14th and 15th Amendments. Nobody asked them to brief that. Nobody wanted that. The court wanted it, and they wanted to get to that question. And part of how they're distinguishing is because of that question and the unique circumstances around.

Jon Favreau (89:55)

So that question was not even asked or answered in the Alabama case. And this was just a way to. Okay, cool, cool, cool. If the goal was to just gut section 2, which it functionally does, why dress it up in the way that Alito did? Is that just his style, or do you think there was a strategic reason to do that?

Melissa Murray (90:13)

Well, I think there's two strategic reasons. One redounds to the benefit of the court. The other redounds to the benefit of non African American litigation against. Let me explain the court benefit first. This is a court that for almost every year that it has had a conservative super majority, has overruled some precedent. So Roe versus Wade in 2022, the affirmative action precedents in 2023, Chevron in 2024. I think if they had actually gutted the Voting Rights act, basically overruled Jingles, which was the jurisprudence that really laid out the factors for drawing these minority majority, minority districts, that would have raised some eyebrows from a lot of people who think this court is really on one and probably needs to be curbed. So there's that issue. I don't think the court could say we're just completely throwing out the Voting Rights act. And for understandable reasons, it would have really galvanized, I think, popular antipathy against the court. The other thing, though, that symbol simply preserving Section 2 does, is that it leaves Section 2 available to be used by non African American litigants every time a state tries to remedy. So blue states trying to draw opportunity districts. Now non African American litigants can come in and say, that violates my rights. So in California, for example, this new redistricting effort that is being done to counteract what is happening in Texas and in other red states, states, if non African American voters say that the state has drawn this for the purpose of consolidating racial minority groups political power, then all of a sudden you have a Section 2 claim that can be brought and that the court is probably going to look at and they're probably not going to think that it's an effort to consolidate partisan advantage. They're really going to focus on the racial aspect of it.

Jon Favreau (92:15)

All right, the happier news, your new book, which when people hear this, will be out, called the U.S. constitution, a comprehensive and annotated guide for the modern reader. Obvious question. First, there are a lot of books about the Constitution. Why this one? Why now?

Melissa Murray (92:30)

First of all, this is for the modern reader. And.

Jon Favreau (92:32)

All right, I don't.

Melissa Murray (92:33)

Yeah, think about it. Who are you? If you're a modern reader, this is for you. If you're Sam Alito, it's probably not for you. You're not a modern reader. Why now? Because I think we need to engage with the Constitution perhaps now more than ever. Right. This is a document that was meant to be read. It was meant to be debated. And if you ask most Americans, I think very few people have read the Constitution cover to cover, in part because some of it's just really boring. Trust me, I read it and I wrote about it and I was like, there are times I was like, whoa, Article one's really long. But I did it so you don't have to. And I go through and I explain what I every single clause is doing, what it's for, what they were animated by when they decided to include it. There's all kinds of really fun stories about the Constitution that you probably didn't even know that are in this book and detailed here. Ordinary people who make claims on the Constitution and managed to affect constitutional change, like that's important to know right now. We live in a world where we act like the Supreme Court is the final word on our And I guess that's kind of true unless we take seriously the idea that we can be constitutional change makers in our own right. And in fact, there are people in our history who have done exactly that and have changed the Constitution and made it more responsive to we the people.

Jon Favreau (93:51)

Talk about the project of explaining the Constitution to a. A general audience, the modern reader, if you will, in a. In a moment when its meeting is this conflict.

Melissa Murray (94:02)

So this is not what I would have done on strict scrutiny. So, you know, one of the things my editor and I talked about at length was whether this was going to be as forthright about my particular take on things as we are on strict scrutiny. And we decided that maybe it was just better to sort of explain things, really focus on the history of certain things and do a kind of. One group says this one group does that in order to give people of all stripes the tools that they need to dive deeper, make their. Draw their own conclusions. And I think that was probably the right choice. I think there are certainly some places where my own views come into play in shaping the book. For example, one of the things that I felt very strongly about was being absolutely forthright about all of the ways in which slavery is literally all over the original Constitution, even though the document never says the word. But there are all of these compromises, not just the three fifths compromise, but lots of different compromises about whether or not this is going to be a free nation or whether we're going to allow half the country to own people. And that literally shapes this document. It shapes some of the amendments that we have, and it certainly shapes the way this country tries to knit itself back together after the American Civil War. So those are choices.

Jon Favreau (95:19)

You do such a great job of making the Constitution in the law feeling sort of real and alive to people who do not have legal degrees. You do that on strict scrutiny. You do that on tv. And now in this book, what's one thing you want? Just a regular layperson with no law degree, maybe, like myself, who picks this book up and reads it to sort of walk away understanding about the Constitution, both in what the founders intended when they wrote it and what it means to today?

Melissa Murray (95:52)

Well, let me say two things. One for the reader like you, who doesn't have a law degree, and maybe one for the reader like John Lovett, who thinks he has a law degree. And for you, Jon Favreau, I'm going to offer this origin story about the project itself. So there was a time, you'll remember, this time when I was in these Twitter streets quite a lot. And I really was. And Twitter was fun back then. It used to be fun. Anyway, I was in the Twitter street streets. And Luther Campbell, you may know him as Luke Campbell. I am from Florida and I grew up in the 90s in the Dirty South. So I know Uncle Luke as the lead rapper of 2 Live Crew. And he was out here in these Twitter streets talking about all of the things that Joe Biden should be doing. President Joe Biden should do this. President Joe Biden should lower the price of gas. He should do this. He should do that. And I was just reading this litany and I was like, wow, Uncle Luke has never read the Constitution because Joe Biden can't do anything of these things. Like, oh, my God. And that was sort of the origin story of this project. I think I wanted Uncle Luke to know what the President can do, especially now that he's running for Congress. I really hope he'll buy this book and read it, because if he's going to be an elected official, I think this is critically important right now for him.

Jon Favreau (97:05)

He is the audience. He is the primary audience for this book.

Melissa Murray (97:08)

Maybe not primary. Tertiary perhaps. I think this is a book for all Americans. This is the document that scaffolds our government and indirectly our lives. Lives. You should know what it says and what it doesn't and what it authorizes and what it does not. You should know that this is a trauma informed document. When these guys sat down to write the Constitution, they were going through it. They had this period, this colonial period where England was literally on their necks constantly. So they wanted to have rights and they wanted to be able to have a society where they were free to do things. But then they'd also just had this revolutionary war against the biggest global superpower in the world. And they were basically trying to fight them with what. Which was a government that was made up of like friendship bracelets. And they're like, we actually need a strong central government, but not one that's so strong that it becomes despotic. Like, that's the tension. And they try to structure this government that is limited. And we need to remember that. And this is now for John Lovett, this is a government right now that doesn't feel that limited and in being unlimited and even excessive in certain ways, that's not in keeping with what they were trying to do. And what we have continued to try to do and what this book reminds us is that there have been times where the people have just said, I'm not having it I'm not doing this anymore. I want something different. And they've actually stepped up and they've made constitutional change Fantastic.

Jon Favreau (98:30)

I'm excited to read this, especially as we head into, you know, America's 250th birthday. I think it's probably a good time to take a look at that constitution and see where we started and where we are now.

Melissa Murray (98:42)

I think the 1776 Commission's gonna look. Love it.

Jon Lovett (98:45)

Not going to lie.

Jon Favreau (98:46)

You think Trump's going to maybe hold it up at the White House in one of the at the UFC celebration? You think that?

Melissa Murray (98:51)

I think it might be in the gift bag, the swag bag.

Jon Favreau (98:55)

The book is the US Constitution, a comprehensive and annotated guide for the modern reader. Everyone go pick it up, please. It is I, I, you know, know from talking with you and being a strict scrutiny fan that it's going to be fantastic and you're going to learn a lot and you're going to enjoy. So take a look. Melissa Murray, thank you as always for joining Pod Save America.

Melissa Murray (99:14)

Thank you for that great windup. All I will add to it is we'll be wild. Thank you for having me.

Jon Favreau (99:20)

Bye. That's our show for today. Thanks to Melissa for coming on. Dan and I will be back with a new show on Friday. Pod save america is a crooked media production. Our show is produced by audience austin fisher, saul rubin, mckenna roberts and farah safari with reed cherlin, elijah cohn and adrian hill. Our team includes matt de groot, ben hefcote, jordan kanter, charlotte landis, carol pel? Aviv, david towles, mia kellman, ryan young and naomi sengel. Our staff is proudly unionized with the writers guild of america east.