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- [00:00]
A
Hi everyone. Harry here coming to you Sunday night just before we publish this episode. The Senate just voted to approve a compromise that would end the government shutdown. It's a deal in which Democrats extracted some concessions and promises, but it falls far, far short of their full demands, especially on health care, which was their signature reason for holding out. The Sunday night drama came after we had already taped this discussion. So I'll have lots more to say about the deal in the Senate and what happens next in the coming days. Talk to you later. Welcome to Talking Feds, a roundtable that brings together prominent former federal officials and special guests for a dynamic discussion of the most important political and legal topics of the day. I'm Harry Littman. It didn't take long after polls closed on Tuesday for commentators to start jumping over each other to capture the magnitude of the night's Democratic victories. Wipeout. Blowout. Spectacular night for the Democrats. Big blue wave election Team Blue won not just the marquee races In New Jersey vs Virginia, New York City and California, but also small, unheralded contests across the country. In each state, districts that had swung to Donald Trump last year now voted against his party, often by surprisingly lopsided margins. Against this dramatic new political landscape, the effects of the government shutdown grew still more serious. With the White House fighting the courts all week over whether to pay SNAP food assistance and the FAA canceling hundreds of flights, more and more Americans started to feel the pain in the Senate. Both parties spent the weekend sizing up a deal to sift through a banner night for the Democrats, a shutdown that seems increasingly untenable and the longer term prognosis for next year's elections. We call on three terrific journalists and political commentators and they are Emily Bazelon, a staff writer at the New York Times Magazine. She also co hosts Slate's excellent political Gabfest podcast and she teaches at Yale Law School where she is the Truman Capote Fellow for Creative Writing and Law. Emily, thanks as always for joining.
- [02:43]
B
Happy to be here with all of.
- [02:44]
A
You and a first time contributor. Always fun to say that at Talking Fed's. David Weigel. Dave is a politics reporter for Semaphore, where he writes a weekly newsletter called Americana. Previously, he covered national politics for many years at the Washington Post, before that at Slate, Bloomberg and Reason magazines. Great to meet you and great to have you on Talking Feds. Dave.
- [03:10]
C
It's going to be reunited with Emily from our Slate original podcast days.
- [03:14]
A
There you go.
- [03:14]
C
She's a professional podcaster. I would occasionally, you know, come on A show and Wreck it, but yeah.
- [03:18]
A
And an excellent one, although. Okay, now let me ask you, I was gonna. What's the creative writing part of the Truman Capote fellowship?
- [03:26]
B
Oh my God, we're really getting into the weeds. I teach writing to law students. It's really more like essay writing than creative writing, but that was the title they came up with. Let's hope that Truman Capote is okay with it wherever he is.
- [03:40]
A
Yeah, he could be a little sensitive. Okay. And the Rick Wilson, a political consultant turned political writer. Rick is a co founder of the Lincoln Project. A lifelong Republican, he was an early critic of President Trump and has turned his expertise into a steady onslaught of online ads highlighting the 45th President's iniquity. He came to San Diego for a one on one conversation that brought the House down. Thank you again for that and thanks as always for being on Talking Feds.
- [04:14]
D
Great to be with you here.
- [04:15]
A
I think it's already being forgotten maybe how nervous Democrats were about several of Tuesday's elections heading into them. What's the first result or return you saw that made you realize this was going to be a blowout evening for the Dems?
- [04:34]
B
I think that it was the results in the governor's race in New Jersey because it seemed like the polls were kind of tight in Mikey Sheryl's race. And then she just really blew out her opponent. And so that suggested that the Democrats had a wider margin than at least I expected.
- [04:50]
A
Let's stick with Mikey Sherrill. It was, as you say, it was supposed to be especially tight and there was definite fingernail biting that she would come up just short. And she ended up having pretty much the same impressive margin as Spanberger in Virginia. Dave, you covered both races on the ground. How did they look to you and why do you think pollsters missed so badly?
- [05:16]
C
Well, before we had this conversation maybe two hours ago, I talked to the pollster for both campaigns and she'd actually worked with Sheryl and Spamberger through her whole career because they ran for Congress in 2018. They win. She didn't think, she didn't think her clients were gonna win by that much. Their polling was high single digits on a good day. So the landslide surprised everybody. It's nice when you get an election result. Well, maybe not nice because there have been some election results that are surprising and people listening to this didn't enjoy, but everyone was legitimately surprised that I was talking to on Tuesday. Wait, we didn't think this would happen. Wait, what happened to this? Wait. Why is this turnout so high. Which is fun to cover because the last time I was in Virginia was I went to the start of the session where their Democrats came back in session to start redrawing the map. That ball that Trump started rolling downhill. And I came up to Jersey for the final weekend to see Cheryl and Cittarelli when Obama was there. And Sheryl had the normal amount of energy for a Democrat.
- [06:12]
A
What's that mean?
- [06:13]
C
Go ahead. No, normally for a New Jersey Democrat, there are some states where there are still political machines, where maybe you go to a diner and not everyone loves you, but then you go to the machine city and there are 500 people handing out the same flyers and chanting the same thing. Newark, Newark, Communion City, all that. I was wondering how much of this is legit. One question all year has been, oh, what happened to the resistance? There's no Kings. Protest looks kind of old. Are these people actually organized? And you definitely saw people, Democrats who were more passionate about this than the Republicans. It was coasting almost was the mood. And a question I'm going to be interrogating from these elections is how much Trump made Democrats punch drunk in 2024 and wonder, okay, is our party just toxic? Are the polls always going to overestimate us? And how much Republicans said, well, we figured out our next four years of politics, which is do whatever Trump says. Cittarelli, I noticed on the trail was just not bring up Trump organically as much. When I saw him in June, he had a whole long story about when Trump called him from Air Force One and how exciting the endorsement was and how Trump was doing a great job and he was going to do doge for New Jersey. And I listened to him over the weekend. 12 minute campaign speeches did not mention Trump. It was all, I'm really from New Jersey. We're going to get rid of sanctuary cities. We're going to. It was a Trumpy message. But I did in my notebook say, interestingly, I think I circled Trump question mark and then a little line through it because I expected him to bring it up, but he never did. That was kind of a tell that actually there is gravity still. And the president was actually unpopular and it hurt Republicans.
- [07:41]
A
Yeah, well put, Rick. So what is your sense, do you think? There was a very late break for the Dems and against Trump generally? Were people wrong leading in or was there, in your sense, a really late break blue.
- [07:57]
D
So our internal polls at Lincoln were showing, you know, that both would win, but we did under, and we were very close on Spanberger, but we did undercount. Cheryl and I do think one of the things that's happening here is as these races came to a close, we were also starting to have people in the states feel the real impact of the shutdown. They were starting to really sense that the unspinnable nature of prices going up and the economy feeling much worse for people. And because Trump is the center of gravity of the entire Republican Party now, it's a lot harder for people to say, oh, well, you know, maybe my Republican candidate will be able to disconnect from Trump in some way. And it just hasn't been the case anymore. And so I saw a lot of these folks doing their very best to sort of separate at the very end, but it just wasn't gonna work. I mean, Sears and Cittarelli were both. Well, neither one of them could be said to have been like a hard Trump supporter in the race, but, you know, they didn't have the ability to wash it off. And so, you know, Trump's unpopularity and the deep unpopularity of both the shutdown and the tariffs, I think really helped both candidates at the close.
- [09:07]
A
There was an article in the Wall Street Journal that was really arresting. It seemed like the very cohort that, to people's surprise and chagrin, had for Trump in last election. They were the exact people who deserted. So almost as if we're back to where we were before.
- [09:26]
B
I just want to remind listeners that it's a smaller electorate, it's an off year election. It's. So it's not exactly the same people.
- [09:33]
A
Almost off off year. Right.
- [09:34]
B
Yeah. Off off year that traditionally benefits the party that's out of power. And we know from the last few cycles that Democrats take. Tend to do better when there's lower turnout at this point, which is kind of counterintuitive from the past, but is a shift that's going on. So anyway, just to add that to the stew.
- [09:53]
C
Yeah.
- [09:54]
A
Well, speaking of possibly sui generis elections, let's spend a few moments in New York City. People thought that Mamdami was gonna win, although record breaking. That's, I think, a general theme. The high turnout, but, you know, some very ugly attacks at the end and a sense of panic even to try to arrest what seemed like an inevitable and was an inevitable march to victory. Thoughts about the result and especially the final stretch.
- [10:27]
C
Two things. Yeah. And I was there Sunday, Monday, so right before the election, and you could. I was with Cuomo at a black church in a neighborhood he won in Woodlawn in the Bronx. And. And very polite. Yes, we're going to vote for you. And as he went out, there were people in the neighborhood coming to meet him and saying they missed him, they missed his dad, older people who. And he won them. That made sense. Mamdani. I only saw a little bit on the trail this time. I'd covered the primary and just surrounded by people just wanting to touch the hem of his garment. And you could tell there's been a Beatlemania around Zoran for six months. But so on turnout quickly. So Mamdani got more votes than any any candidate for mayor of New York since John Lindsay in 1965. But Cuomo got more votes than any candidate for mayor since Rudy in 1883. Cuomo ends up with 800 something thousand votes he broke. Any other year in the last decades that would have been enough to win. So this is sui generis. I agree with the way you were putting it. The turnout was not. Turnout was high everywhere and people are getting more involved. I think that's the nationalization of politics, the atomization of media, all the exciting things they were all scared of talking about. People were just hyper engaged in all these races in a way that it used to be harder to get people to care about. An off year election. And you're still getting less local news. But every Democrat I've talked to has had the same Mamdani answers. One Cuomo decided to run an Israel campaign just at the moment when Democrats were shifting hard, not like becoming anti Israel. Holy. I've actually seen Mamdani get protested by people who are more into Israel than he is, but that he picked an issue that was not central people's lives and Democrats didn't care. And then every Democrat was running Lake Mamdania on affordability. The smart ones were doing it on specific issues to their area. So in New Jersey, it was Mikey Sherrill. Her first ad was talking about lowering electricity costs and she did six months of that. Electricity rates in New York, it's everything. Everything costs too much money. The rent costs too much money, so he's going to freeze it. Groceries cost too much money. The city owned grocery stores. And Democrats don't want to run on the entire Mamdani agenda. But they do say, okay, this is it. Every state we're running. And now that we're not the party in power, we just say, here's a thing that's cost too much. Here's the thing I will do. And importantly, if the media says, but you can't do that, we'll say, yes, we can prove us Wrong. Trump says this all the time, almost explicitly. I mean, I interviewed Zoron over the summer and that was part of our conversation that Trump, whatever you think of him, has widened the boundaries of what candidates can, can promise. Because if you're willing to go in there and have the general counsel say, you can't do this and do it anyway, yeah, you can be a lot more ambitious. I think he has moved the entire all of politics toward a more like dreamy, ambitious position on what a politician can promise you. That might be bad in the long term, but that was definitely happening in New York.
- [13:10]
D
I think that's right.
- [13:10]
B
Forget about the lawyers.
- [13:11]
C
Yeah. No, nothing personal.
- [13:13]
B
We don't get it personally. I'm not a real lawyer anyway.
- [13:16]
A
We always have the moment in the show where people say, I am not a lawyer. But anyway, Emily, I want to follow up with you. This is, you know, looking ahead, but you said it'll be interesting to watch him actually govern. The track record for progressive mayors in New York is not great. And they, you know, butt heads with the powerful forces that in fact, were against him. You observed that he seems like he's, to quote you, making gestures toward real management and, you know, keeping Jessica Tisch, the police commissioner, who's considered more conservative. He's certainly tacked right or toward the center in some of his positions. So, you know, what, what's your sense of what awaits his tenure and is he on track to be another. I can think of a whole series of liberal New York mayors who got. Had a rough time.
- [14:09]
B
Well, I mean, why not start feeling hopeful because, um, he's such a good communicator. Why not root for him for the sake of the city? And it seems like the first.
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A
I wasn't not rooting.
- [14:21]
B
Yeah, I know that you weren't. I'm just saying I'm explaining my own feelings. I got it.
- [14:26]
A
Okay. Very good. That's what I told my daughter.
- [14:29]
B
There you go. Yeah, I live in the 10th borough in New Haven, so we gotta root for New York and it's well being. I mean, I think you start by showing that you can be a good manager. So much of being a mayor is this gargantuan task of administration. You have all these departments that work for you. People are looking to see, are you going to bring in good people who are going to, you know, weed out the people who don't really do any work and be fighting corruption and making sure that the trains run on time in various ways? I feel like that is consistent with really any policy agenda and super important. And then I think it'll be interesting to see what kind of policy flexibility he shows. You know. So he has promised this rent freeze that's only going to help people who live in rent controlled apartments. Does he go beyond that to really try to lower barriers to building more housing which is what's really essential for bringing down housing costs for everybody and is a key part of the affordability equation in New York. And then there are kind of a series of other challenges like that that lie before him in terms of what is realistic to do. You know, he made childcare a big priority and that is a huge cost for people. So do you start with the three year olds? There's already a lot of groundwork laid for that in New York or do you try to go all the way back to you know, a six week old baby which is his ultimate goal. So we're going to find out is he good at governance?
- [15:53]
D
I will say this, you know, having worked in city hall in New York for Giuliani and set all the craziness of the of the moment today with Giuliani aside, it is a job that every single day is less ideological and more hands on dealing with a thousand small crises every day. Because this is a city of 9 million people, 800 square miles. It is enormously complex and difficult and something is always going wrong somewhere. Somewhere in the city every day a building is collapsing, a water main is broken, a firefighter's been injured, a cop's been shot. And it is a city that demands of its mayor a lot of hands on high touch in the moment presence. I hope that his excellent communication skills will make him great in that space. I do worry that you know he will encounter a lot of the things in the city that are much less tractable to good communication and good tiktoks and more of the things that are just that are just a grinding frictional nature of being mayor.
- [16:59]
A
You know you hear this from mayors in general. We had a really interesting roundtable with Republican and Democrat around the country and they all say the number one thing do you for in the east anyway, do you pick up the snow? Are they are the snow plows out quickly when the snow comes down? All stuff like that. You are so accessible. It's also local but also these problems that are can seem intractable. So we'll see. And yes, Emily will, you know he seems like an amazing figure who may indeed flourish. Okay, so just closing out the night. You know Dems kind of won everything including different races. The AG who had some trouble in Virginia, pulled through my own native Pennsylvania. The three Supreme Court justices return. Are there any results we haven't talked about that you want to highlight as bellwethers or as just important in and of them themselves? Apart from the marquee races, I would.
- [18:00]
C
Quickly add Pennsylvania, where Josh Shapiro, governor of Pennsylvania, who very ambitious, like a lot of Democrats right now, invested early in these off year races that included retaining three Supreme Court justices. And two interesting things about that were one, Democrats did very well, they won those by landslides. They flipped a lot of swing counties. And two, Republicans did not engage very much. And that's the thing that came out, talking to Shapiro and his advisors. They were ready for Republicans to put more money in. They're ready for Trump to come and have a rally to boost people. And it never happened. And so they did better. They did some persuasion and they did good turnout among their own base, which is important in Pennsylvania. Democrats have been losing ground for years. But then also, what was up with Trump? How disengaged was he? How much was he focused on the ballroom versus anything relevant to his party? Very much. He was very focused on ballroom. Not at all in Pennsylvania. I think he wrote two true social posts the entire campaign for something that had he won, had Republicans gotten rid of those judges, would have made it easier for JD Vance to win in a couple of years.
- [19:03]
D
They also very much expected that Jeff Yass, who is a Republican mega donor and one of the owners of TikTok, was going to roll in there. I was told that they expected Jeff Yass to put in 30 to 50 million dollars and he put in about a million. So I don't know where that disconnect occurred.
- [19:19]
B
What's surprising about this is like these are such important races and in other states like North Carolina, Wisconsin, we've seen tremendous investment in state Supreme Court candidates and a sense that both parties understand the stakes are high. So I'm surprised to hear that.
- [19:34]
A
It's almost as if the Rs were thinking, this isn't our night and you know, we're keeping their head down. Trump, I think, didn't do all that Pennsylvania, but everywhere, you know, he's thought of as the party's strongest get out the vote tool. Was he just too interested and busy in the ballroom or did people kind of keep him off the hustings?
- [19:55]
C
I think the money that Rick talked about was more important and he only at the very end put some money into some races. How much does he care about the health of his party as president. Now, he has not been trying to recruit a challenger to Susan Collins or hurting the party like he did in the first term, but he did not show much sign of engagement. Now, it might be hubris because he won last year and he thinks Democrats are pathetic. Maybe he, Susie Wiles and the people in his orbit reboot after this, but no sign of that yet. It just was. I heard the same thing as Rick. It was very striking.
- [20:26]
D
Apparently Chris Lacivita, for the rest of the spring will be in Albania doing the Prime Minister's race, I kid you not. With Paul Manafort.
- [20:33]
B
Albania is a crucial swing state, Rick, come on.
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D
Yes, the crucial swing state of Skirt in Albania.
- [20:39]
A
There must be a tyrant there that would we we can get something from or appease.
- [20:43]
B
I mean, isn't there another possibility that he thought these candidates probably wouldn't win? And Trump hates being associated with losers. So, like, why put himself out there?
- [20:51]
D
I think in Virginia, Emily, that was very much the case in Virginia is Sears. They sense Sears from the beginning was problematic. And so therefore they weren't gonna. Weren't gonna let the stink of a loser candidate get on Trump.
- [21:04]
B
Can I ask one more question before we switch topics? The gerrymandering proposition in California, which is gonna presumably allow the Democrats to redraw the state map in a way that gains them potentially five more congressional seats. It's clearly going to matter in terms of the 2026 elections and the midterm results. Do you all think it's important? Maybe. I'll ask Dave this question for Gavin Newsom, who's clearly building his presidential campaign. And what do you think about that?
- [21:32]
C
Yes. For Newsom taking this risk when there were some Democrats who worried that you might lose a totally partisan ballot measure, he wasn't. Newsom is not that popular in California. This ballot measure was more popular than he is if you go by the favorable ratings. But him just saying. I am willing to ridicule Trump and beat him with my personal resources and my political network. Yeah, that is worth a lot. This is one reason I was talking to Shapiro this week is because other Democrats need to play catch up. If you're a senator, there's not much you can do to beat Trump right now. You can stop a terrible nominee for olc, but you can't break his political machine. It was great for Newsom, and I was, when I was with Newsom in South Carolina this year, expecting. I don't know what I expected, but he had huge organic crowds who loved that he was fighting Trump. And my Recent experience, Democrats are pretty careful with who they nominate. But yeah, he. He got a ton of chips from what he did.
- [22:25]
A
California boy here. Emily, for what it's worth.
- [22:27]
B
Wait, you just said native Pennsylvania. How many states are you going to claim?
- [22:31]
A
Well, anyone else have a. Not live where they were born? Anybody? Does that happen in. I think occasionally I give a shout. I lived in New York, too.
- [22:40]
B
Okay. Okay.
- [22:41]
A
All righty. But man, oh, man, I don't even watch much tv, but it was everywhere, like in the gym, et cetera, including a very strong anti campaign. And I would just add to what Dave said, not only you knew some. There's a sense of nothing succeeds like success. And he does have a bit of a golden aura now. And in particular, I think he staked out the same space as only Pritzker has so far, which is pugilistic, taking it to Trump, insulting him. He did have a kind of patrician feel of him before, and now he's definitely a street fighter. That's what he wants to be. And I think, you know, has decided that's the route to the nomination.
- [23:23]
B
I'm just going to sound a note of skepticism about whether liberal Californian, and he has a long liberal track record can win a presidential election. I feel like we have seen this movie run before and it has not gone well for Democrats.
- [23:37]
A
Yeah.
- [23:38]
D
As well as Newsom has done in terms of fighting out in this new environment of trolling and social media. It is an easy lift for Republicans when the word California is said for their base to salivate like wild animals and panic.
- [23:51]
B
And there are a lot of bills he signed and a lot of, you know, he's done that are going to back that right up, including back to San Francisco days.
- [23:58]
A
It's true. He is caricatural. All right, it is now time for a spirited debate brought to you by our sponsor, Total Wine and more. Each episode, you'll be hearing an expert talk about the pros and cons of a particular issue in the world of wine, spirit and beverages.
- [24:26]
C
Thank you, Harry.
- [24:27]
E
In today's spirited debate, we dig up the dirt on the agave plant to find out the difference between tequila and mezcal. So first things first. Tequila is a type of mezcal, much like bourbon is a type of whiskey. In general, tequilas are mezcals, but not all mezcals are tequilas. Allow me to explain. Tequila can only come from the blue agave plant in specific regions of Mexico, like the region Jalisco, where the city of Tequila is located. No coincidence. There Mezcal, however, can be made from many varieties of agave, specifically from the heart of the agave known as the pina. The distillery process for tequila and mezcal is also different. Tequila is produced by steaming the blue agave and then distilling it in copper stills for a toasty, clean taste. On the other hand, mezcal, which appropriately means oven cooked agave, is cooked in earthen pits with wood and charcoal before being distilled in clay pots. No wonder mezcal, which is typically consumed straight, has more of a smoky, earthy taste. Of course, the best way to get to know the differences between tequila and mezcal is to pick up a bottle of each from your Total Wine and more and pour hundreds of years of tradition right into your glass. Cheers.
- [25:45]
A
Thanks to our friends at Total Wine and More for today's A spirited Debate if you try to generalize what the races were about affordability, the East Wing ballroom, animosity toward Trump what in broad strokes do you think was going on with the Dems wave of victories around the country?
- [26:09]
B
The polls suggest that the problems people are having, paying for groceries and other things they need are really, really alarming to people and that they had faith in President Trump to fix them and now they're losing that faith. I think that the way that Trump has handled the shutdown, particularly with snap benefits and now with the airports, although that was too late to affect the election results, I just don't get it as a political tactic. It just seems like he is so out in front with all of this. The polls show that people are blaming Republicans more than him and I have to think that that helped feed in. I mean when you're have an order from a court telling you to send money to people to feed people and you're basically taking food out of their mouths by refusing to do it, that just seems over the top really.
- [26:56]
A
There were some judges statements that are like tailor made for campaign commercials, you cruel bastards.
- [27:03]
D
This was an election about an environment. This was an election about an unspinnable sense in the minds of Americans that the actions of the President's party and all candidates in his party are defined by this President were are increasingly harming families. And this is one of the reasons you saw in New York and New York is less surprising. But in New Jersey and in Virginia you saw about 10% of Republicans in our model go over across the line, the Lincoln Project Republicans we jokingly call them, but that also includes a lot of conservative independents that Trump and Republicans won in 2024 and I think that environmental thing that, as the kids say, the vibe, that sense that we are in a bad spot economically, that the country is being governed by people who are chaotic and who are indifferent to human suffering, has started to add up and has started to be a defining characteristic of the Republicans that offsets even some of the unpopularity of the Democratic Party as a generic whole.
- [28:10]
A
And I want to stick with you if I could for a moment, because you also made some thought. It brought home insights about the people who are still sticking with Trump. And to quote you from your excellent substack that everyone should subscribe to, by the way, thank you. The Rick Wilson says, every so often, the curtain pulls back and you see what MAGA actually is now. A coalition of people who hate the same enemies but desperately want to rule the kingdom themselves. Can you unpack that a little more for us?
- [28:46]
D
Trump is definitionally now a lame duck. His time as the singular defining feature of the Republican Party in an affirmative way. Look, it's still dangerous, and they will still be dangerous for a long time, Harry. But that idea that Trump is this singular figure who will command everyone at the expense of their own political future, that is starting to crack. That's why you see Ted Cruz out there trying to ring this alarm bell, we can't do this anymore. We can't do this anymore. Marjorie Taylor Greene. And is it performative on their parts? Of course it is. If he calls them on the carpet, will they go back down and bend the knee? Of course they will. But they're starting to understand that this is no longer a world where he will be there forever. And when he goes, the Civil War is gonna be, I think, a truly astounding.
- [29:40]
A
Emily, if you have views about this, what does it augur for? You know, what Rick just said about Cruz, and I wouldn't have expected Marjorie Taylor Greene to be in the vanguard of Trump deserters, but, you know, he governs on a razor's edge the whole time. Every, all of his terrible Cabinet nominees were skin of their teeth in part by a final terror campaign. On the other hand, and you wrote about, or you talked about this yourself in the Slate post election show, he still retains maybe more power to frighten them than to alienate the general electorate. But do you see some possibility of erosion of what is a really close governing coalition among what's been a totally supine Congress? Do you see any Republicans kind of tiptoeing away?
- [30:30]
B
Yeah, I mean, I think the examples you gave are some early indicators. It is still absolutely true that the dynamic of fearing a primary challenge from the right, from someone Trump enables is a real concern. But I want to go back to the word gravity that both Dave and Rick used earlier. It does feel like this is kind of normal politics that we've had this 10 months in which Trump has been so successful at just like bulldozing through everything, just like flooding the zone in so many ways. I mean, I can't even keep up with just like my legal part of the story. And this felt this week like the combination of the elections and the blowback from canceling, refusing to pay snap benefits and then also the Supreme Court oral argument in the tariffs case. I mean, I don't want to read too much into the questions, but it did seem like.
- [31:25]
A
No, no, no, let's read if, if Rick, if Rick doesn't mind.
- [31:28]
D
Yeah, that's fine.
- [31:29]
B
Yeah. Like, a couple of the conservative justices seemed deeply skeptical of the government, especially Justice Gorsuch. And he was making a really fundamental argument about Congress and the power of the purse and how if you take away the power to tax, which, you know, he was basically saying that a tariff is a tax, which is true, if you let the President take. Take the power to tax from Congress or you let Congress give that away, which is the Trump administration's reading of this statute, that Trump's relying on, this emergency statute, IPA for short, then Congress isn't going to be able to be a co. Equal branch. And also, and this was so crucial because it was so realistic. Gorsuch said this is a one way ratchet because in order to change this law.
- [32:15]
A
Stunning that he said this.
- [32:16]
D
Right?
- [32:17]
B
Stunning. In order to change this law, Congress would have to have veto proof majorities because no president is going to willingly give away this power that Congress has presumably given him. And I just was like, oh my God, they live in the same universe as me.
- [32:31]
A
Was it a Halloween thing?
- [32:32]
B
What, what happened exactly?
- [32:36]
D
It was surprising to watch Neil Gorsuch and Sotomayor essentially arguing the same exact angle on whether Congress even had the power to give him this on the basis of these sort of paper thin emergency declarations, whether Congress even had the power to do this. And I was like, which one of these has changed? I'm trying to figure it out.
- [32:58]
B
Well, Justice Gorsuch actually has cared about this for a while. Right. He has this idea of the anti delegation doctrine. There are limits to what Congress can give away. We've seen him say that before, however, previously, and Harry can correct me if I'm wrong. He was talking about administrative agencies Right. The sort of boogeyman of the deep state. This was the presidency and of course, you know, the President, it's all the executive branches.
- [33:22]
A
Article, one article, it's really true. And it had seemed with him that maybe it's all just a shill for more and more and more executive power. But no, that's not how they were going. Maybe they understood this was such a big moment. And, and it is true that you had the delegation non delegation doctrine that he's been interested in. Congress can't give it all away. And also their fur cocked major questions doctrine comes back at them because this is obviously a major question Congress didn't mention and the like. And I'll just say that like I somebody, you know, I was one of these shows like what's going to happen? And I said, you know, this really seems like a toss up to me. Steve Vladek said the same and there was a great piece in the Wall Street Journal tracing a kind of predictions market and it was 50, 50, 50, 50 or argument 80, 20. So I mean it was the very rare big case where it really felt different once you heard the or argument. And the same thing we're waiting with bated breath on in the Illinois case. You know, maybe they actually see where the stakes are huge.
- [34:29]
B
We'll see. I mean. Right, we should just caveat that.
- [34:31]
A
Totally, totally, totally.
- [34:33]
B
You can ask a lot of skeptical questions. An oral argument. Yeah.
- [34:36]
A
28 times, burn 29 times, silence.
- [34:39]
D
Right. It's not like we've got a great track record of underestimating their ability to bend the knee.
- [34:44]
A
Yeah, but I really appreciate that departure. I had what came into my house for a second. Okay, let me ask you another kind of future looking question. So the conventional wisdom, Rick, I think you've expressed this sort of idea is that the last time the Dems were, you know, had a sort of edge, they squandered it, especially with a lot of pretty left wing policies, you could say that splintered them, alienated the center. How do they avoid that now?
- [35:19]
D
It's that one word you said, Harry, it's policy. You know, as we were talking about earlier in the show, the idea that Democrats were now just asserting, okay, problem X is a real problem for families. I'm going to fix it by doing Y. Even if Y is impracticable or unaffordable or illegal or whatever it is, that assertion of power to do things for people is really important. And if you get into the whole, please read my energy policy paper, appendix 4, section 14 eyes will glaze over. So you've got a situation right now where they've got a simple set of code words that are in plain English for people about the economy, about affordability, about families and about the families prosperity and the economic world that they really live in if they get back into and by the way, the thing about affordability is really about climate change or what have you. They will lose. Republicans will turn the thing back onto the culture war track and it won't go well.
- [36:19]
A
Well, Emily, you talked about again, excellent Slate podcast everyone. Really check it out. But the discussion was in advance. Should there be should people be running like Spanberger or running like Cheryl or running like Mondami? And the litmus test was how much do you make the race about Trump? But then Democrats of all Hughes one convincingly. So you know, you had some interesting thoughts on this with your Slate colleagues. Do the results end some of that infighting and agita? Does the distinction matter less to voters than assumed? If it's all Trump, Trump, Trump. And you know, really that's going to be the defining factor, you know, going forward.
- [37:05]
B
I don't think making it all about Trump was successful in 2024 and I think it's trap for the most part. That isn't to say, I mean obviously they're gonna have to run against Trump in 26 and 28. But it seems pretty clear from the polling that for Democrats prioritizing these questions of affordability, health care, the things that are broadly popular and not prioritizing the things that are more niche that Rick was just talking about, like that's the lane. But I don't think these results are going to stop the fighting between the wings of the party because like you said, there's kind of something for everyone. I will say I think it's more.
- [37:44]
A
Everyone can claim victory for their it was because of us. No, it was because of.
- [37:48]
B
Yeah, yeah. I do think it's important though that there were no. Well, I'm exaggerating a little bit. There were few results from states that are actually purple or red that Democrats have to be competitive in and win rate, not nothing. I mean the Supreme Court races in Pennsylvania there are like those little utility.
- [38:08]
D
The Georgia Utility Commission races come on like nobody voted.
- [38:11]
B
Right. I mean that's, I just feel like if Democrats really want to be clear eyed about their chances for taking back the House or even gaining in the Senate, they need to broaden their appeal. They need to be thinking about how they win in parts of the country that they have been very weak in and I don't see a lot of at least public energy and thinking going in that direction. And look, one reason is there are a lot of things to be super outraged about. I mean, they are snatching people up off the streets. They are, you know, the Trump administration, the way it is federalized after they do. Yeah, yeah. Like, it's. I see why people are upset, but I think it is possible that the way that you actually win the election and address the things that are bothering you is not to talk about the things that are bothering you that don't compel a lot of Americans to go to the polls. Not like I'm talking about the people who really make these are up for grabs, which is a small number, and who are the people who might not turn out.
- [39:08]
D
That's exactly right. But it is a game of small numbers. It is a game of small numbers. And I think Emily's exactly right here. This is, you know, these clusters of voters that are gonna make all the difference in these races. The trick is not just to run against Trump. The trick is to run against the environment and the results of what he's done. And I think that is a much different chemical equation and can be balanced better than. This is all about Donald Trump. And I mean, and I say that as a guy who's written a lot about Donald Trump, but it is also the outrages, things like, you know, zip tying kids in the streets, those things are adding up as part of that overall environment where people are just rejecting it. They're just like, I'm done. I'm out. No more of this for me, thank you very much.
- [39:56]
B
Right. But there's a difference between these methods trouble me. And I'm tired of the chaos versus, like, Democrats imagining that people are feeling cheery about high levels of illegal immigration and that if they hand wage.
- [40:12]
D
Yeah, do not mistake why Trump held that number for so long.
- [40:15]
B
Exactly.
- [40:16]
D
Because Americans are not comfortable with illegal immigration. And there, There's. And I say this a lot, I don't think there's really a constituency in this country for criminals who are here illegally to be treated with, you know, as if they were were all just coming here to live the American dream that doesn't really exist. But I think it's very important that we understand that while Trump has gone too far, the solution is not to open the borders and welcome everyone. That's not going to work politically because, you know, a lot of the way Trump stole a bunch of Democrats in 2024 and in 2016 was to say to a lot of these more conservative older Democrats that they were going to have their jobs taken, have their lives put in danger, et cetera. And it worked. Whether it was true or not didn't matter. It worked.
- [41:03]
A
There are textbook errors to be made, I wanted to say. But I also, to Rick's point, not just Trump, but what he does and what the environment is. And I think that leads into the shutdown, which could be, you know, this term's Covid that really did affect things politically this week. Money for food assistance ran out and the courts just really excoriated the administration. FAA is canceling flights. There have been other sort of scandals and black eyes about what they're doing and how they're treating detainees and the like. So how do you, the election results change the political calculus on the shutdown? It does seem as, you know, as Rick's saying that Trump, for whatever reason and the Republicans thinking that they would have the upper hand, has proven really wrong. Do they have to quickly make some kind of deal? And what can they do short of giving the Dems all they've been demanding?
- [42:08]
D
Look, every survey now, and There have been 19 major surveys from reputable pollsters since the shutdown started that we've tracked all of them. We've done our own data on our own polling internally on the shutdown. In every single one of those public surveys, the Republicans take the blame. They take the blame at increasingly harsh levels and with increasingly greater certitude of who is to blame right now. The Republicans were already facing a big uphill climb in the House. The redistricting prank of Texas now is sort of offset by California. They are now going to have to go into a shutdown where they have taken food away from infants and kids. It's a bad look. While Donald Trump is having his degenerate Gatsby balls and is building a golden ballroom. The optics, and I hate that word in politics, but the optics of this are really bad for the Republicans. They know it. Their own pollsters are telling them in the National Republican Congressional Committee. Their own pollsters are telling them, get out. Stop. You've got to. You've got to end this. I don't think they felt enough pain yet to truly defy Trump on it. But that day is coming. John Thune is trying for another big push as we're recording this on Friday afternoon. I don't think he's going to break the Democrats on this. The brief Democratic capitulation talk from Peters and Shaheen was crushed with a tidal wave of opposition. So I think the Republicans have to give it up. But the evil political guy in me wants them to wait until Thanksgiving because Trump is about to destroy Thanksgiving for 300 million Americans by blowing up the airport system and by starving people. The political impact of that is one of those big symbolic moments where, as you said, it's like Covid, but it is a domestic 9, 11 at that point for people, they're going to be mad and hurt and they're going to feel like the guy who could control it sits in the White House. He could have done it anytime, and his guys in Congress could have done it anytime.
- [44:09]
B
There is just this fundamental contradiction between being the president who takes all the power, says I alone can fix it, and then tries to blame the other guys when the government doesn't work. Like it's your transportation on television saying that the airplanes aren't going to take off.
- [44:25]
D
Yeah, this idea, Emily, that is so smart and that is so on point because all the time, what do we hear from Congressman, they say, I'm not here to serve the third district of North Carolina. I'm here for Donald Trump. And whatever Trump says, I do. And Donald Trump goes out and says, I control Mike Johnson. I control the House. I'm the speaker of the House. Okay, well, speaker, turn the switch, stop the shutdown. And so, you know, I also think there's a weird ideological subset inside the White House. The Russell Vaughts, the Stephen Millers, who love the ideological high. They're getting off of hurting people and breaking the government.
- [45:05]
A
Right?
- [45:05]
B
Yes. Like, breaking the government is usually good for Republicans, but it's some.
- [45:09]
D
You didn't need a government. Look, we proved it right.
- [45:11]
B
I think we may be hitting the bottom of that.
- [45:13]
A
But I mean, hurting people. Can we go back to that, please? Because. And bringing in the law a little bit. We had a federal judge just excoriate the administration over the, over the snap over food and orders them to fund it for everyone. They could easily say, oh, we're stuck and we have to do it, etc. And the DOJ has filed now one of its emergency. God forbid everything will crumble if we have to give people food stamps. I, you know, I can't understand really why the administration's fighting so hard here. Talk about not a great. Look, Rick, all they have to do is just, you know, say, oh, we're being forced into it by a liberal judge. But they're really fighting.
- [46:00]
D
Right? Look, they can afford to give, they can afford to give ICE and DHS $30 billion to keep operating during the shutdown. But they can't afford six. Yeah, right, right. And $40 billion to Argentina and they can't afford $6 billion to feed hungry children.
- [46:15]
B
Aren't they behind too, in terms of how they're thinking about the recipients of the SNAP benefits? Like there's this idea, this is a Democratic program and it's only helping Democrats.
- [46:24]
D
And 65% of the people who are on SNAP are in red congressional districts.
- [46:29]
B
Exactly. We have a lot of non college educated white people who vote for Republicans who get SNAP benefits in Florida.
- [46:36]
D
In 67 of Florida counties, the people who are on SNAP in those counties range between 13 and 26% of the people in those counties. And Florida is a Trump state. In Miami, Miami Dade county, there are almost a million people on SNAP and almost a million people who are on ACA coverage plans. And they're all screwed right now. And they voted for Trump because you know why? Nostoy communista. Well, you might want a little of that communism now, right?
- [47:04]
A
Yeah. I mean, literally, food on the table. All right, we'll see how this plays out. And if this is the last talking feds during a shutdown, and it does seem like the pressure is much heavier on the Rs, we're about out of time. A great conversation. Thank you, everyone. But we do have time for our final feature. Just a minute of five words or fewer where we take a question and each of us has to answer in five words or fewer. And obvious candidate this week is sandwich guy Sean Charles Dunn, who they tried to indict. They couldn't. They took a misdemeanor charge. Now standing videos across the country, he was acquitted. So the question is, what sandwich will Subway create now for Sean Charles Dunn, Five words or fewer, Anyone?
- [47:58]
D
The Janine Pirro.
- [48:00]
B
Oh, I like it. Should we just say that's a U.S. attorney in D.C. case.
- [48:06]
A
That's the one who brought it. Right.
- [48:08]
D
Also known to many of our listeners as Judge Box of Wine.
- [48:13]
B
I was gonna say the Fighting Ice Hero. I feel like yours is better.
- [48:17]
C
I like it, actually. I like that.
- [48:18]
D
I like that because he's kind of a nerdy guy who turned out to be the hero of this amazing story of overreach.
- [48:26]
B
I mean, also hero First Subway sandwich. I couldn't resist.
- [48:30]
A
I had a different take on the question, which was its contents rather than its name. But I'm going with open faced mustard and relish. Thank you so much, Emily, David and Rick. And thank you very much, listeners for tuning in to Talking Feds. Just a quick note. As you may have noticed, David Weigel dropped out because of technical difficulties, so he wasn't with us for the second half or five words or fewer, and we'll hope to have him back on another talking fit. If you like what you've heard, please tell a friend to subscribe to us on Apple Podcasts or wherever they get their podcasts. And please take a moment to rate and review the show. You can also subscribe to us on YouTube where we are posting full episodes and and my daily takes on top legal stories. Check us out as well on substack@harrylitman.substack.com where I'll be posting two or three bulletins a week breaking down the various threats to constitutional norms and the rule of law. And Talking Feds has joined forces with the contrarian I'm a founding contributor to this bold new media venture committed to reviving the diversity of opinion that feels increasingly rare in today's news landscape, where legacy media seems to be tacking toward Trump for business reasons rather than editorial ones. Rest assured, we're still the same scrappy independent podcast you've come to know and trust, just now linked up with an ambitious project designed for this pivotal moment in our nation's legal and political discord. Find out more@contrarian.substack.com thanks for tuning in, and don't worry, as long as you need answers, the Feds Will Keep Talking Talking Feds is produced by Luke Cregan and Katie Upshaw Associate Becca Haveian sound Engineering by Matt McGardell, Rosie Dawn Griffin, David Lieberman, Hamsa Mahadranathan, Emma Maynard and Hallie Necker are our contributing writers and production assistants by Akshay Turbailu and Sebastian Navarro. Our music, as ever, is by the amazing Philip Glass. Talking Feds is a production of Deledo llc. I'm Harry Littman. Talk to you later. If we knew more about our sleep, what would we do differently? Would we go to bed at a consistent time or take steps to reduce interruptions to our sleep? With the all new Sleep Score, Apple Watch measures your bedtime consistency, interruptions and sleep duration. Then every morning it can it combines these factors into an easy to understand score from 1 to 100 so you'll know how to take the quality of your sleep from good to excellent. Introducing the new Sleep Score ON Apple Watch iPhone 11 or later required.