Advisory Opinions - Death of a Supreme Court Giant

Episode Date: September 21, 2020

Ruth Bader Ginsburg died on Friday, rocking the nation and setting the stage for a blistering Senate confirmation fight  should the Senate Judiciary Committee go through with the hearing process before the election. Today, our podcast hosts walk us through the history of SCOTUS vacancies, reflect on the legendary friendship between Justice Ruth Bader Ginsburg and Justice Antonin Scalia, and offer some rank punditry about what this SCOTUS vacancy means for the future of our republic. The question on everyone’s mind is: What happens next? Will Senate Republicans go through with the Supreme Court nomination process? Should they? Sarah and David have some thoughts. What’s clear is that Trump will fight tooth and nail to get a nominee through as a last ditch effort to energize his base. “The more the Democrats threaten him, his brand is that he cannot give in to threats,” explains Sarah. “It’s the ultimate ‘owns the libs’ move to fill the Ginsburg seat and enrage the left.” But who will president Trump nominate? Judge Barbara Lagoa of the 11th Circuit  is in the running, but 7th Circuit judge Amy Coney Barrett’s cult of personality on the right—especially within the pro-life community—will likely give her the winning ticket. “If RBG is Michael Jordan,” Sarah explains, “ACB is Lebron James.” Stick around for a deep dive into the filibuster’s life expectancy, the possibility of a Democratic court packing scheme, and the likelihood of an Electoral College split this November. Show Notes: -David’s new book, Divided We Fall: America's Secession Threat and How to Restore Our Nation, Judge Jeffrey Sutton’s conversation with Justice Scalia about his friendship with RBG, and Sarah’s Sweep newsletter, “Yep, This Changes Everything,” and “Replacing Justice Ginsburg: Politics, Not Precedent” by Andrew McCarthy in National Review, the upcoming Dispatch Live with Sarah and David this Wednesday. -David’s piece on the battle over Ginsburg's seat and don’t forget to take advantage of our 30 day free trial of The Dispatch. Learn more about your ad choices. Visit megaphone.fm/adchoices

A fresh voice can speak to you and open your ears and your mind to new views and new perspectives. The call of the wild, a crescendo of culture. Listen as a chorus of fresh voices moves you, taking you to greater heights. Add your voice to the mix and let fresh answer back with perfect harmony in pure Michigan. Keep it fresh at Michigan.org. This ad for Fizz is only 25 seconds long, but we had to pay for 30. Those leftover five seconds shouldn't just disappear, right? It's kind of like what happens to your unused mobile data at the end of each month. Except at Fizz, your unused data from the end of the month rolls over so you can use it the next month. Hey, you paid for it, so keep it. Try the other side. Get started at PHYS.ca.

If you need some time to think it over, here's five seconds. Ah, do, da-da-dee-da, do-da-do-do. Certain conditions apply. Details at PHYS.ca. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. Wow, we have a lot to talk about, Sarah. A lot to talk about.

We almost did an emergency podcast on Saturday, but we thought we would sort of let everything percolate over the weekend because Monday was coming up soon enough. I'm glad we did. Yeah. Yeah. I'm glad we did. I'm glad we did.

For those just tuning in, this is David French and Sarah Isker with the Advisory Opinions podcast. Before we get to the news, the big news, the news that Advisory Opinions was literally born to dissect, I want to just just say let me take a moment and say this is the week sarah my book launches it specifically launches tomorrow which if any listeners have ever written a book there are a few things more um a combination of joyful hum uh humbling and terrifying than a book launch week because you work on it and you work on it and you think it's good you're proud of it but then you're putting it into the public square and you just don't know you just don't know how people

are going to respond but it's called divided Fall. And the reason I'm particularly kind of nervous about it is it's got a provocative thesis that our divisions are growing so profound and so deep and so wide, and there's no real prospect of them narrowing, that we need to wake up to the possibility that our mutual anger and hatred and enmity could actually split this country. So it's kind of a culmination of a lot of things that I've been writing about for the last several years, just kind of trying to wake people up to the threat and the danger of mutual hatred and rage in this country. And Sarah and I are going to do a Dispatch Live for members. So if you're not a member of thedispatch.com, go to thedispatch.com and become

a member. We're going to do a dispatch live Wednesday night, 8.30, Sarah. That's right. Eastern time. Wednesday night, 8.30. We're not only going to talk about my book. We're also going to talk about the Supreme Court and Justice Ruth Bader Ginsburg. So again, that's Divided We Fall. Comes out tomorrow. Please order it. And with that, Sarah, let's move on to the news of the day. So back up to the beginning of this administration, you had the Scalia seat, a staunchly conservative member of the court that was being replaced right then you had the kennedy seat the swing vote on the court being replaced and now you have

a liberal icon on the court and a democratic nominee being replaced. I think that that's a really interesting thing to keep in mind as we talk about fairness and politics and strategy and who's going to be motivated and who's going to stay home and all of these things. Always bear in mind what the context around that is. Right. And Ruth Bader Ginsburg was not just Justice Breyer or... I mean, this was the notorious RBG. People dress up their babies as her for Halloween or not for Halloween, just for funsies.

There's an emotional connection here between Ruth Bader Ginsburg and folks on the left that's very similar to the emotional connection between Justice Scalia and folks on the right. I mean, Justice Scalia was an absolute icon. He was the closest thing that a Supreme Court justice can be to being like a rock star. On the right, it was Scalia. There was the closest thing that a Supreme Court justice can be to being like a rock star. On the right, it was Scalia. There was a bond. And it's the same thing with Ginsburg on the left, which is very interesting. There's also this interesting reality that both Scalia and Ginsburg were the best of friends. They weren't just right and left they were the icons the icons of right and left in the american judiciary and they were very close and had been for years and they were friends

as i understand it even before justice ginsburg got on the supreme court they were friends on the dc circuit because they served there together as well. One of my favorite things I saw this weekend was a cartoon of Justice Scalia welcoming Justice Ginsburg into heaven and his arms outstretched in her enthusiasm hands. And it warmed my heart. And I liked thinking this weekend a little bit of the conversation they're having right now. You know, it was, and you know, I tweeted this, I wrote this in my Sunday newsletter, and I just really hope that their passings, both Scalia in 2016 and Ginsburg in 2020, are not also the end of an era. That, you know, we, as I said at the very start of this, we have just an immense amount of partisan enmity. And you talk to folks on the Hill

and who've been there a long time and they will say again and again and again, it's not like it was. It's not like it was, that there's something, a sense of fellowship that is being lost right now. And I don't know what to- I'm sure you saw this. Chris Scalia, Justice Scalia's son,

tweeted a few thoughts over the weekend. And one of them was a portion of Judge Sutton, a Justice Scalia clerk, who's also a well-known judge in his own right, what he had written. And it's worth reading because I love this. And it goes exactly to your point. During one of my last visits with Justice Scalia, I saw striking evidence of the Scalia-Ginsburg relationship. As I got up to leave his chambers, he pointed to two dozen roses on his

table and noted that he needed to take them down to Ruth for her birthday. Wow, I said, I doubt I have given a total of 24 roses to my wife in almost 30 years of marriage. You ought to try it sometime, he retorted. Unwilling to give him the last word, I pushed back. So what good have all these roses done for you? Name one 5-4 case of any significance where you got Justice Ginsburg's vote. Some things, he answered, are more important than votes. I let him have the last word. I love that. And that's your point. It wasn't politics. It wasn't strategic.

He was bringing her roses because it was her birthday. That's all. Yeah. Yeah. I mean, just a simple human gesture of friendship. No hidden agenda. No hidden motive. And I saw that as well.

And I just absolutely loved that anecdote. You know, one thing i wrote uh i i one thing that um i i wrote this weekend was that it was i disagreed with as a conservative someone with an originalist uh and and textualist sort of viewpoint about the law i disagreed with justice ginsburg a ton um But I respected the heck out of her. You know, she was somebody that was easy to disagree with as a conservative. But I think if you're looking at her legacy and her life in good faith, it's hard to disrespect her. She was, as you said earlier, she was like a, she was a liberal lion with a quite inspiring life story. And the interesting thing is I actually came around to her viewpoint more as time wore on on amendments three through eight. Wait, three?

I mean, sorry, four. I'm forgetting the Justice Ginsburg quartering of soldiers hot take, but maybe it was there. Maybe I missed it. I would say that we probably agreed on that, on the Third Amendment. I think we probably agreed. No, four through eight. I mean, she, you know, along with some of the other progressive justices, helped, you know, reading their jurisprudence helped revive my interest in the totality of the Bill of Rights. I wish some of them had more regard for Amendments 1 and 2, but that's another whole discussion. But yeah, she had an inspiring life story. She was a person of fierce conviction and an incredibly influential jurist. And, you know, as I said in my piece, America needs a healthy left and it needs a healthy right. As I said in my piece, America needs a healthy left and it needs a healthy right. And both Scalia and Ginsburg were symbols of that healthy left and healthy right.

Very true. Where were you Friday night when you heard the news? So Friday night when I heard the news, I was just getting ready to watch a Lakers game. So I was just getting ready to watch the NBA playoffs. And I can't remember what we were doing, but I heard, I got a text message and I thought, no, no, this is not right. And then I immediately just typed in Justice Ginsburg into the Google app and saw, and it was all these stories that populated with the dateline of two minutes ago, um, saying that she had passed away.

And, you know, two, two things sort of go through your mind at once. I mean, sadness, uh, for her family, uh, sadness for, you know, those millions of fellow citizens who viewed her as a, as a hero and a role model. And then almost immediately, and I felt like there was an awful lot of other people, this sort of sense of almost existential dread at what's about to come in the American body politic. Yep. That here in 2020, this was not the escalation that we needed

and not the escalation that we're prepared for. And you could almost feel in sort of amongst the American political class, sure, some people were like girding for battle already. Like, okay, bring it on. Let's fight, let's fight. But a lot of the more thoughtful folks, you could almost feel it,

this sort of sense, no, no, no, please, no. Let's, can we not, you know, this is not what we need. And, you know, so those two things I felt were happening at the exact same time. Yeah, I was, normally Scott puts the brisket to bed,

but for whatever reason on Friday, I've decided for the first time basically that i would do it i was sort of holding him at the time and he started getting sleepy i guess it's like the game of hot potato i ended up with the potato and i don't want to check my phone because i don't want to i don't want to get in the habit but i also don't want him to i don't't know. I know he's three months old. Yeah, I understand. So I had my phone on the little table next to me as I'm rocking him. And my phone is blowing up. It keeps lighting up and it's actually annoying me because I have the room nice and dark. We've got our little nature sounds on. But I stick to it and I don't look at my phone. And he finally goes to sleep. It's been about nine minutes of my phone blowing up, maybe seven, seven or nine minutes. Anyway, I get back to 27 text messages.

And the second I shut the door and I picked up my phone and I gasped and Scott thought something like Scott did not know. And he basically thought something was very wrong with me or the baby. Oh my goodness. So, but no, I think that's exactly what I felt, though. The, oh, my God, for her family, and then the, oh, my God, for our country. Yeah. Yeah. And, you know, I think that I rarely do you see sort of a universal or a near universal

emotional reaction to an event, but it struck me as near universal. Sort of only the most callous voices were like, okay, let's go, let's fight. Even people who are highly partisan, who are going to fight tooth and nail, who are going to raise the national temperature, no question about it, you kind of got this sense of, I can't believe I have to do this, you know, or I can't believe that this is going to happen, but I'm going to do it anyway, but I can't believe it's going to happen. And so, yeah.

So should we move into that? What's going to dominate? So Sarah, you have a sweep out today. Subscribe at thedispatch.com where you break down the possibilities and you break down sort of what might happen next. And so let's talk about, let's kind of put this in various buckets. Number one, the politics of this, which will be probably most of the bucket. And then number two, the politics of it, what you think should happen, what I think should happen.

And then let's talk about the jurisprudential and political ramifications of a potential successor. So let's just kind of put it in those two boxes. So let's just start the politics of this. Where do you see things going from here? So, yeah, let's break this down, advisory opinion style. All right, everyone is a hypocrite this weekend. There's no, I don't want to hear it about how the Republicans have found some way

that actually this is totally different than 2016. It's not, but you know what Democrats it's also not totally different than 2016 in that case, in which case all the things you said about how important it was to fill the seat also still hold. So, uh,

everyone sucks. Um, and as I said in the sweep, uh, for all the Republicansans and democrats let me introduce you to your chickens they've come home to roost but i think this was a really important point and perhaps these two partisans who are incredibly partisan on twitter i actually thought said it best and they weren't being snarky and so let me just read you what Matt Iglesias wrote. Okay.

And he was acknowledging that like, yep, the Republicans have the power to do this in the Constitution, and there is nothing that the Democrats really can do to stop it. And Republicans now are acknowledging that this was always about power, so be it. And he says, you know, that's their argument. Them's the rules. So he writes, if Democrats win a majority in 2021

and use it to end the filibuster, adopt D.C. and Puerto Rican statehood, ban partisan gerrymandering, create a 17 justice court with 17 year term limits, expand lower courts on pace with population growth. Them's also the rules rules and i think that's something worth considering but conservatives want to have this anti-majoritarian read on the constitution and they are exactly right yes the constitution was intended to prevent that at the same time a lot of that can be undone through the constitution it's it would be entirely constitutional what iglesias is talking about and so you know if they're going to push this and say we have the power to do it i i agree that they do and then democrats have the power to do what

they want to do also uh josh holmes responded to that threat Why would a Republican be the least bit concerned with the threat of something they've already said they're going to do? They shot the hostage before the standoff. Can I raise a point about that? Yeah. I see this all over. That's, you can, okay, so are there Democrats who have threatened court packing? Yes, so are there Democrats who have threatened court packing? Yes, there are. Has the Democratic presidential candidate, the nominee of the party,

who would sign a court packing bill, threatened court packing? To the contrary. So I think that Republicans are doing a little bit, they're playing a little bit of sleight of hand here because you can find in a big party, somebody who said virtually anything to justify your preemptive strike. But David, if you had asked me on Thursday last week, what were the chances of the filibuster surviving into June of 2021? Right. I would have said narrowing in on zero.

To quote Mean Girls, the limit does not exist. So yes, court packing is on the extreme of the wish list. And now I think it has become more likely. Yeah. Though still not all that likely in my view. I don't think we've reached 50% in my view, but the filibuster was gone before it started. So threatening to end the filibuster to me, I agree with Josh. They shot the hostage before the standoff. DC Puerto Rican statehood. Yeah. for the standoff. DC Puerto Rican statehood?

Yeah, that hostage was at least bleeding out. Ban partisan gerrymandering? I would say slightly wounded. That hostage was slightly wounded. You think slightly wounded? Okay. Only roughed up a bit. Oh, okay. I think that hostage only, you know,

I think that hostage needed a blood transfusion. Medical attention ASAP. And partisan gerrymandering. Yeah. Again, hostage bleeding out on the ground. I would say court packing the hostage was, you know, had been maybe like punched, you know, had a black eye, but, but was not mortally wounded in any way. So, so that's where things stand. I think politically in terms of sort of the, So that's where things stand, I think, politically in terms of sort of the, what has been going on since Bork and what the Democrats would say was going on before that,

but the ever escalating judicial confirmation wars. By the way, I think the Pelosi, we will impeach the president again thing is one of the sillier things I've seen this weekend. I don't understand what that would do, why it would do any good whatsoever, or why even bring it up. It looks odd for all of the things that they could have impeached him over. Filling a Supreme Court seat is a weird one, but okay. Yeah. One other thing worth mentioning, David, and on the political side, which no one really paid a lot of attention to before because it frankly didn't matter much. But when we've talked about the Senate majority and Republicans have a 53-47 majority in the Senate right now and all of these Senate races coming up in November and we've talked about Arizona, but Arizona is actually not a class two Senate seat. And we've talked about Arizona, but Arizona is actually not a class two Senate seat. You know, when we talked about my favorite parts of the Constitution and I said something that I wouldn't have thought of was the different classes of the Senate.

So lo and behold, just a few days later, this becomes really relevant because this is a class two Senate election year and Arizona is not a class two Senate seat. It is actually the John McCain Senate seat, which was interim filled by John Kyle, who then resigned and the governor appointed Martha McSally. And so that seat is up for election to fill the remainder of John McCain's term. That means under Arizona law, you are not seated with the class two Senate class on January 3rd, 2021. According to Arizona law, the winner can be seated as soon as the election results are certified and the election results can be certified as soon as November 30th. Now, Mark Kelly, the Democrat, is running six to eight points on average ahead of Martha McSally. There's actually, I don't know,

half a dozen polls that show him double digits ahead of Martha McSally. That means that the Republican Senate majority could go down to 52 votes with Mike Pence as the tiebreaker on December 1st. So if that Senate seat isn't filled and you have Collins and Murkowski wobble wobbling over in the corner, if you lose Romney, that's the ball game, assuming that this Senate seat in Arizona is already lost. So that's the ballpark, ball field. I don't know. I watched a lot of football yesterday. That's the stadium we're walking into. Well, and so let me back up a little bit and let's just talk about sort of statements and norms for a minute. So I have a piece coming out later this afternoon for Time Magazine,

walking through a lot of the statements and norms. And so first, is there a norm here that comes, a norm that would say what should be done? And the answer is that for 80 years, there is a norm, and that norm is wait for the election. It's not been since FDR in 1940 when a, and the vacancy actually arose in January of the election year. So, you know, 11 months before the election, a vacancy rose in 1940. And this is also notable because this was after the switch in time that saved nine. So there is sort of FDR is operating it as sort of like peak apex predator with the Supreme Court right now. He's bullied it and cowed it into his will. He's sort of the dominant political figure in leading the dominant political party. And in 1940,

early in the election year, he gets his nominee and he gets it through lickety split, like lickety split fast. We don't really remember it because it wasn't a controversy. That has not happened again since 1940. Wait, are you saying we don't remember it because we're not as old as you are? Well, you know, we don't need to go into age. Because I don't remember it because I wasn't born. I was tweeting about it in 41. But David, there's a huge, huge difference. The Supreme Court didn't have the cultural, political relevance that it has today. Right, right. No, it didn't. Well, except that, I mean, we did just come out of the court packing controversy, which was big, which was big, but you're correct. But as far as a

norm in play, if someone's saying that the norm is that a presidential, a president gets his nominee in when his party controls the Senate, you have to go back to 1940 for that. And so as far as norms go, what did the Republicans say the norm should be? And this is where it just gets like, I mean, we're in the festival of hypocrisy. You mentioned it. I just want to give a few specifics. And we'll do Republican and Democrat. I mean, here's Lindsey Graham. If an opening comes in at the last year of President Trump's term and the primary process has started, we'll wait to the next election. Okay. That one's the most like on point where it's actually future projecting. Ouch.

Yeah. Yeah. When Marco Rubio came close, I don't think we should be moving on a nominee in the last year of this president's term. I would say that if it was a Republican president, Ted Cruz, it has been 80 years since their Supreme Court vacancy was nominated and confirmed in election year. This is a long tradition. You don't do this in an election year. And then, you know, you've got Senator Christopher Murphy. He says, the president fulfilled his constitutional obligation today. Now the Senate must fulfill ours. If Senate Republicans refuse to consider the president's nominee, they'll be violating the spirit of their sworn oath. Pretty strong. Chuck Schumer, Republicans need to do their job and hold hearings so America can make its own judgment as to whether Merrick Garland belongs on the court.

I mean, so we had a lot of back and forth on this. And at the end of the day, what has kind of been reduced to is Republicans recognizing that all of the things that they said in the past have either sort of done one of two things. all of the things that they said in the past, he either sort of done one of two things. One of them is say, well, the Democrats have proven they're terrible people since we said this in 2016 by the way they treated Kavanaugh, for example, which is-

Which I've seen that argument being made. Yes, Lindsey Graham made that argument. That was Lindsey Graham's argument. Yep. So therefore, I'm relieved, sort of washed my hands of my previous promises because the Democrats are so bad. And then others who I think are more sort of just getting to the heart of it. I mean,

Andy McCarthy had a piece in National Review said, look, it's just politics. You know, elections have consequences. Republicans hold the presidency. They held the Senate. They can do this. This is just about wielding political power. They can do it. They will do it. is just about wielding political power. They can do it. They will do it. Too bad. So sad. If you don't like it, win your own election. And the problem you have with this is, okay, if we're going to say, it's just power now, y'all. It's just power. And when the people decide, I use all the power I can use. And then when called on that use of power, even if that use of power is incredibly divisive, even if that use of power raises the cultural

and political temperature of this country to dangerous degrees, and your argument is too bad, so sad, win the election the next time, I'm not sure at all that that is best for the country. In fact, I'm pretty convinced it's not best for the country. So I have an alternative, and I want to run this by you, Sarah, and get your thoughts. And this alternative is sort of, let's just call it, hold them to their word as much as you can.

So I have a few steps. Step one, Trump's going to make his pick, probably this week. We've had conflicting information as to whether it's going to be by Wednesday or by the end of the week, but he's going to make his pick. Second, let's follow the Schumer principle.

Schumer says, let's have a hearing, okay? Let's give the nominee a hearing. This will have some benefits. It will let the American people see a more complete picture of the qualification and philosophy of the nominee. But third, then let's apply the Graham-Rubio-Cruz rule and don't vote before the election. Let the people weigh in. If Trump wins, vote on the nominee. But if Trump loses, what comes into play? And here, let's let Joe Biden's

words be the guide. He said in October 2019 Democratic debate, I'm not prepared to go on and try to pack the court because we'll live to rue the day. We add three justices. Next time around, we lose control. They add three justices. We begin to lose any credibility the court has at all. And so after, if Trump loses, have a compromise. Biden will make his pick. And also there will be an agreement that there will be no court packing for whether it's throughout Biden's presidency or for X number of years.

And it wouldn't be unilateral disarmament that partisans hate so much because both sides would be shedding like a bit of Machiavellianism here. They would both be shedding the ability to do what they have the power to do if and when they win. And that's the essence of a compromise that lowers America's political temperature, which we really, really need right now.

And I happen to believe, honestly, Sarah, some of the arguments Republicans made in 2016. I made some of them myself that when we're this close to a presidential election, it could be destabilizing. It could be dangerous for the credibility of the court to just ram somebody through right here in front of an election, right before an election. I do think that's a problem. I think there's good reasons why it hasn't happened. And so that's my proposal. So let me make a different angle, I guess, to think about all of this, which goes back to the seat that's being filled part of the reason that i think conservatives were so upset and and despondent over the idea of obama filling a seat in an election year

was that it was scalia's seat and that would have you know basically quote unquote taken a seat away from a republican appointed seat. Kennedy's seat being in the middle, same thing. That was more of like control of the court. And this is a Ginsburg seat. And that's why Democrats are so despondent over the idea of Donald Trump, of all people, filling Ruth Bader Ginsburg's seat. Okay. But let's look forward. ginsburg seat okay but let's look forward let's think for a second that joe biden gets eight years in office he will most likely get to fill justice thomas's seat right um if that is the case, does that change your opinion on the RBG seat? It totally depends on when, if the Thomas seat comes open, when that comes open. I mean, if it comes open in the middle of Biden's first term or the middle of his second term, if he wins a second term, but if we'd have to compare apples to apples,

if we're talking about a 2024 vacancy, I like the general rule. Let's wait for the election. We're talking about a lifetime seat here. We're talking about something that's incredibly consequential. And when it happens during an election year, I think waiting on, I think that's a good principle. It's not a legal principle. it's not a constitutional principle but for the sake of what is best for the country that it's a prudent principle see this is where i think we diverge actually because i think that that's a principle without a rule with it meaning like is it the election year january 1st what about december 31st of the year before like, is it the election year, January 1st? What about December 31st of the year before? Like, what if it's a year before the election? Is it within the year? Is it within

the calendar year? And I think that what happened here, unfortunately, is that Republicans were so upset about the possibility of Obama filling the Scalia seat. They've screwed this up. Obama should have been able to fill the Scalia seat. Trump should be able to fill the RBG seat. And Biden should be able to fill the Thomas seat. You don't own the seat. The seat isn't by a political party. It was never that way beforehand,

but unfortunately we've gotten so wrapped around the axle in Supreme Court opinions and conversations and that with Congress broken and Supreme Court basically fixing the laws for us, opinions and conversations and that you know with congress broken and supreme court basically fixing the laws for us um they're like an elected body and i don't know what you do when to go back to our original analogy the first hostage was already shot we can't undo the problem and so then to have your sort of, let's make this fair for everyone compromise. Now we have to adopt some sort of rule like that, which I don't think has particularly

like it has any limiting principle. Um, and I think it just ends up in this fight every single time because what's an election year. Um, so I think this is unfortunate because now I do think that the seats are going to be held by a political party, so to speak, and I don't know how you fix that. Yeah, I understand the line drawing issues for sure. I think Lindsey Graham said something that was an interesting line to draw, which was the primaries start,

which actually is before like a calendar election year often. Well, no, not really. It's depending, usually within 11 months or so. Depends what you mean by start. Do you mean going to the Iowa State Fair and the Iowa, you know, corn caucus?

I mean, we've already had polling on the 2024 republican primary there is a um there is a line drawing issue when you're talking about the say the lindsey graham rule but whatever line you would draw this would fit in because there's actual voting that has started in this current presidential election um this is so, if the Scalia seat came open and there was an argument that this is too close to the election and Republicans made it,

I think many of them in good faith at the time. So it's interesting how we should think through the arguments that you make in sincere conviction and good faith and all the ramifications thereof. But if the Scalia argument was valid, it's double valid now. This is within that line. Whatever line you're going to draw, this is within that line. And that's one of my concerns. I totally agree with you, Sarah,

that when you're talking about not legal, but sort of political norms and principles, you're always going to be at the of political norms and principles you're always going to be at the boundaries facing definition problems i would say this is not that case and if the argument that the republicans made with scalia was not that case then this is definitely not that case um and and my problem is you have a and we're also entering into a political world where they treat it as if somebody has threatened to shoot the hostage, the hostage is already shot. And so therefore, what we then end up doing is behaving and conforming exactly to our opponent's, we live down to their expectations. And our justification for it is, well, we know you would have lived down to their expectations. And our justification for it is, well, we know you would have lived down to our expectations. And there's no limiting principle there at all.

There's just no limiting principle. If I can find a Democratic senator or a couple of senators who've articulated the worst possible outcome, I can say, see, boom, I get to do what I want to do. And this is part of a cycle and a spiral in our politics that I think is just terrible for the country, just terrible for this country. And the last thing before I end this little mini rant is the other thing that makes it terrible for this country is because politicians rarely,

although maybe some of them are getting more like this, just go full Machiavelli. Rarely publicly do they just go full, I can do it. F you. You know, I have the power. I'm going to do it. Which sort of a subset of the base is like, yeah, but most Americans look at politics, even if naively, with a little bit more of a high mind, through a more high-minded lens, that there should be a reason that you can articulate that is for sort of the common good or for the good of the American people for what I'm doing. What you end up doing is you have a bunch of Machiavellis running around trying to act like James Madison. And after a while, Machiavelli's running around trying to act like James Madison. And after a while,

the disconnect is so profound, it just continues to lead to bitterness and cynicism about our politics. Speaking of bitterness and cynicism, can we take off our countryman hat and do pure political strategy on the options? Sure. So I think that the Trump campaign has three options, make nomination and vote before November 3rd, make the nomination but don't vote before November 3rd, your preferred method perhaps. Although in this scenario, they still confirm the nominee just in the lame duck. And three, don't even make the nomination until after the election. So just some thoughts on what they're probably considering. First of all, it looks like they're going with at least numbers one or two. They're certainly going to make the nomination now. So let's start with number three, the scenario that they're not going to take, which is don't make the nomination. The only reason I would see doing that is if they had some numbers that were so hard and fast that showed that even naming a name would turn out more Biden voters than Trump voters. would turn out more Biden voters than Trump voters.

But, and I run through a lot of this in the sweep, I wouldn't trust a single poll that you're seeing right now. I wouldn't trust, certainly wouldn't trust any Supreme Court polling that you saw before Friday. It's meaningless. Set it on fire. But I wouldn't even trust, there were polls, you know, snap polls from this weekend of people don't want a nomination

or people want a confirmation or people care about the Supreme Court. Like, nope, nope, nope, nope, nope, nope. Both sides are mobilizing right now and they're getting their message out. Let that message percolate for a little bit and then you can take a poll. Then let's see where things lie. There is no point in asking on a Saturday morning, which is what at least one of those polls did. So I'm not surprised they ditched number three. I think a different president could have gone with the number three option, the don't make a nomination until after the election, and turn it on his opponent and be the statesman figure,

et cetera. but that's not this election so we don't need to spend much time on that um so the the choice between forcing the vote before november 3rd and simply discussing the nominee or even having a hearing on the nominee but not having the vote until after November 3rd. I think that turns on a fairly Machiavellian, if you will, question, which is, is the Trump campaign willing to make that implicit threat, vote for me or you lose the seat? And we'll see. vote for me or you lose this seat. Mm-hmm. And we'll see. I think there's a lot of reasons why

the Trump campaign, that would be, I think there's a lot of reasons why, depending on the nominee, which we can get to. Right. Let your people fall in love with the nominee. All those wobbly Republicans

who, they don't like Trump personally. They don't want to vote for him. They would like to stay home. They're looking for a reason to stay home. If they've already got that sixth Supreme Court seat, boy, you could bake cookies that day instead of going to vote because Trump's a jerk. You could bake cookies that day instead of going to vote because Trump's a jerk. But if you fall in love with, and we'll talk about Amy Coney Barrett versus Barbara Lagoa in a little bit, but if you fall in love with the nominee and you see the hearings and you hear Democrats continue to talk about, you know, how they're going to pack the court and all these, you know, quasi potentially destabilizing what you would view as potentially destabilizing things as a Trump disliking,

but Trump, but non Biden voter. Um, that's pretty big incentive to show up to vote. And is the Trump campaign willing to give that away because Mitch McConnell wants to fill the seat for sure because things can go wrong. If you wait until after November 3rd, it doesn't take much to get that delay until December 1st. Now you're down to 52 votes and then something else happens

and then you lose one more vote and all of a sudden you've lost the seat, which you intended to always have. You just wanted to get your voters to turn out. It's a dangerous game to play and I don't think Mitch McConnell wants to play it, but Donald Trump might. You know what book I'm reminded of

as you walk through this, Sarah? Dune. Oh, God. Yes. Listeners, I'm so sorry that I did this to you. Listeners are with me because there's this phrase that's used to describe the political maneuvering in the Dune universe, plans within plans. And I feel like if there's old Nikolai Machiavelli is either looking down or looking up where not sure where old Nikolai is. There's an interesting argument that says that if your goal is the presidency,

if that's the, if that's the goal, if, if all you're looking at 2020 at the only lens is there's a world in which delay the vote is, as you said, in Trump's interest, have the vote before the election is in Biden's interest.

Yes. In a way, because he could then sit there and say, look at these norm-busting, power-mad maniacs. Look at the power grabs. Look at the contention in this country. Look at the division. Look at what they're trying to do. Look how they lied in the past. Time for adult leadership, time to end this madness. So there's a world in which the hold the seat open, which the progressive side desperately wants to happen compared to the conservative side of the partisan aisle, helps Trump hurts Biden and fill the seat, helps Biden hurts Trump.

But let me add another wrinkle to this, which is I phrase this as the Trump campaign strategic interest for a reason, because this is not how Donald Trump thinks. Right. A, everyone around Donald Trump is telling him to fill the seat because he's hearing it from Mitch McConnell.

Mitch McConnell, I love this write-up from the New York Times. Mitch McConnell's one true credo, leave no judicial vacancy behind. Mitch McConnell believes this is his legacy and there is no election more important than probably any judicial seat, frankly, but certainly not than a Supreme Court seat. Mitch McConnell would trade, I believe, the Republican majority in the Senate for a Supreme Court seat. I think that's a tough call for him, but I think he'd do it. So he is telling the president and giving him all sorts of reasons why they need to fill it now. I think White House counsel's office, who cares about the Supreme Court, I think they're telling

him to fill it now. So he's getting all this advice about filling it now. But there's also the Trumpian instinct. And here's the instinct, which is the more the Democrats threaten him, his brand is that he cannot give in to threats. He can't be seen to be giving in to threats. He can't look afraid of the threats. And it's the ultimate own the libs move to fill the Ginsburg seat and enrage the left. He thinks that energizes his base and he is not interested in arguments that it energizes their base more because in 2016 it worked and he was right. To your point, I think this is different than 2016 2016 and i think that yes um filling the seat ahead of time lets those wobbly republicans there's some argument that they'd be like oh see trump stands by his word we should vote for him again because you never know but it's people are motivated um

you know we know this there's risk aversion They've already gotten what they want. It's just less motivating than anger and fear on the left. So I think in this case, his brand and everyone around him will push him to at least try to get that vote before November 3rd. And I say try. They absolutely can do it. The other problem with the don't vote before November 3rd strategy, which is that it has to be a strategy. You can't say it out loud. Right. And it will leak. And if it leaks, it undoes the whole point largely. Yeah. Yeah. I mean, you know, and here's another thing that let's throw in this additional wrinkle. We go through all of these judicial contortions.

We go through all of this incredibly explode, all of these incredibly explosive hearings. We ramp up the political partisanship to 11. hearings we ramp up the political partisanship to 11 under a series of assumptions that time and time again have not been borne out in the jurisprudence of the justices that are actually nominated and conferred and so that's another point for my position which is you're playing with both sides are sitting here playing with extremely inflammatory, extremely inflammatory series of political moves based on assumptions about judicial nominations that time and time and time and time again prove not to be warranted. Like how many times do we have to go through this? You know, we've talked about it in the abortion context. Right now,

Amy Coney Barrett, who's probably the likely nominee, she is not on record, y'all, saying that she would vote to overturn Roe. She's not. Her most salient comment about Roe is that she says she doesn't think it'll ever be overturned. That's her most salient comment about this. And people are going to absolutely go to the freaking barricades believing that she would overturn Roe. Now, let's also look at that on the composition of the court.

As I've said a million times, one, one, I'm holding up my one finger for emphasis in Zoom, one of the nine justices has said they'd overturn Roe since they've been on the court. One. And so we're going to have this incredible death match about Roe when the justice who's being nominated has not said she'd overturn Roe, when her main comment about it is that it probably won't be overturned, and that even if she comes in and assumes the

Clarence Thomas position, then all we know for sure is that two out of nine would be willing to overturn Roe. And we're going to have this fight. Remember, the Democrats filibustered Gorsuch. The origin of the destruction of the filibuster at the Supreme Court level is they filibustered Gorsuch, who wrote the Bostock opinion extending Title VII to LGBT Americans. I mean, this kind of stuff is constant in recent American judicial history. And yet, what do we do? We always say, well, this time we know how the justice is going to rule, and this time I know I'm going to hate it, or this time I know I'm going to love it, and it's going to change America. And this time I know I'm going to hate it or this time I know I'm going to love it and it's going to change America. And so we just rip each other to shreds.

And then 18 months later, we're like, huh, how did that happen? Like, you know, fool me once, shame on you. Fool me twice, shame on me. Fool me nine times, shame on us all. And so I've had a couple of rants here, Sarah. I can't help it. I like your rants. There's some other what-ifs that are probably worth going through that people are hyperventilating over. Can we just go down a what-if cul-de-sac? A cul-de-sac away. Let's knock down some what-if houses. Yeah. An election-related lawsuit could go to the court in December, and it would be a 4-4 split, and our country would fall apart.

No, no, no, no, no. So first of all, these are not automatons on the Supreme Court. They know that there's only eight of themselves right now. They're not going to four-four split on something that will rip apart the country. Justice Roberts, Chief Justice Roberts, if no one else, will not let that happen. He was an institutionalist on Obamacare, but you think somehow he's going to be the, you know, horseman of the apocalypse on the Civil War of the United States?

No. So, first of all, the court, to the extent, you know, we'll use shorthand here. The court was 5-4 with Republican appointees on Friday morning. It is now 5-3, not 4-4. And to go back to our Bush v. Gore conversation, Bush v. Gore was only 5-4 on the remedy. Bush v. Gore was only 5-4 on the remedy. It was 7-2 on the constitutional problem. So, yeah. I actually don't think it's out of the question at all for an election-related dispute to go to the Supreme Court.

It is out of the question that it will be 4-4 if it's an eight-person court. Not concerned. Okay, so we've knocked down that house. It's in ruins. Well, and even if it is 4-4, even if for some reason Justice Roberts decides, woo, I'm going to be a cultural pyromaniac and it's going to be 4-4, it's not a deadlock. There's a decision in the case. It's the decision from

the prior court. So it's not like everyone throws their hands in the air and says, We don't even know. We don't know. We don't know. To use football here, the ruling on the field stands unless a majority of the refs on the Supreme Court say otherwise. So you have to have five votes to overturn an appellate court's opinion. So when we say five, four opinions, all we mean is that they overturned the lower court's opinion. If they don't have a majority to overturn the lower court's opinion, the lower court opinion stands. The end. Yes. Okay. House demolished. Second house. This Obamacare case, I'm getting very annoyed, very annoyed with all of the reporters who suddenly became Supreme Court

experts and think that because there's an oral argument on November 10th, that that means that the Obamacare case is being decided on November 10th. What the what hot takes Twitter? I mean, advisory opinion listeners already know this, so I guess we don't need to spend much time on it, except my annoyance is so high. Okay, first of all, once again, as I've said, that case is already decided, y'all. That case is the mandate is going down, and it's severable from the rest of the law. So Obamacare stands. The mandate, which didn't have a penalty anyway and didn't exist, falls. There was actually a great article late last week. I don't remember where it was,

but we'll put it in the show notes about with the mandate gone, why it hasn't mattered to Obamacare. They said it was a three-legged stool in order to make Obamacare function. The mandate was important to make it a mandate, mandatory. And for some reason, even though now the mandate isn't mandatory, Obamacare is still just fine. And why is that? Really fascinating. I tend to subscribe to the belief, this is now a cul-de-sac within the cul-de-sac, it's the driveway of the house, but I tend to subscribe to the belief that people don't know the mandate isn't mandatory and therefore that it's basically still a mandate but regardless um yeah that was not going to be a five four opinion with ruth bader ginsburg is the swing vote what no no and it was justice roberts wasn't going to switch sides yeah the the mandate was the wonkery of obamacare the heart of it was pre-existing conditions and the medicaid expansion that was the heart of it and the mandate was the wonkery um and it was a thing for us to fight over right right the mandate was the thing to for us to fight over yeah um and and with the mandate gone, people as a general rule

still want insurance. As a general rule, yes. As a general rule. Now on the margin, some people will go, woo, let's roll the dice and go without it. But as a general rule,

they still want insurance. And so the mandate was a marginal impact. It was the sort of the wonks, the way wonks try to adjust human behavior by a little penalty here and a little incentive there and we're going to kind of be like the you know the the rat in the maze who smells the cheese um i think it's a lot more simple than that i think it's like hey people

liked having more medicaid when they were near the poverty line and people like the fact that pre-existing conditions are now covered yep therefore obamacare is politically that's why that's the reason why politically uh republicans have not been able to do anything beyond remove the penalty for the mandate yep so i think that not only so i think it's five four on the mandate being unconstitutional i think it's like seven might be eight votes on severability but we've had a severability conversation a few times so if you want severability nerddom it's out there folks we can we can you can find that in advisory opinions lore okay uh house demolished last house This isn't even really a house. This was a shanty to begin with.

If there's a 269 electoral college split, that somehow the Supreme Court's involved? Nope, nope, nope, nope, nope, nope, nope. So, by the way, this is also the driveway of this house. Do you remember that from Sesame Street? The aliens would come down and they'd go, yep, yep, yep, yep, yep, yep, nope, nope, nope, nope, nope, nope, nope. Yep. Vaguely. Yeah. Yeah. Okay. So I was talking about this with Scott feeling a little punchy in bed on Saturday morning and definitely played, like found that on YouTube and played it for the

brisket. We've never shown him a television. It just, it's not like we're strongly against it or anything like that. It's just like, he's a baby. It hasn't come up. Like, so I played this in bed with him. He was fascinated. Oh, that's amazing. So Sesame Street is amazing. Still, you know, 35 years later.

Anyway, 269 electoral college split. That's the 12th amendment. and it goes to the house of representatives it is not just a simple vote of the house though david as we know it is the state delegations of the house of representatives so all of the members from texas get one vote and all of the members from new york get one vote and california so the Supreme Court has nothing to do with that except to resolve who those members are in the delegations, if there were a dispute over that, I suppose. And by the way, just because it's 2020, the probability, not certainty, the probability is if it's 269, 269, the probability is that Trump would lose the popular vote in that circumstance.

But the Republicans would have a majority of the congressional delegations. That's the probability, not the certainty, but it's the probability. It's the probability. And you would hear so much anger about Montana casting that in, that the conservative party, it makes perfect sense to me that the conservative party is the anti-majoritarian party. Very Burkean, makes perfect sense. But how then the anti-majoritarian party became the populist party, I'm not sure I follow that line. line. I'm glad you said that because it seems more like it's not truly a populist party because under no circumstance does it's under no presently foreseeable circumstance does it seem as if Donald Trump will be actually popular enough that the people a majority of those who vote will want him to come back. But it's the populism, it's sub-populism. It's populism within one wing of the American political divide.

It's not populism writ large. It's the populists within the red states win and then rely on counter-majoritarianism to prevail. Yeah, interesting. Maybe we should have a pod on just counter-majoritarianism. We've talked about the electoral college, maybe just, I mean, boy, boy is our constitution counter-majoritarianism. And all of a sudden in 2020, I feel like we're running into all of the ways in which it is, which it's a little dangerous to happen all at once. Well, and that's, you raise a really good point about that. And let's, let's preview that pod for a minute. Two things, as is so often the case, two things can be true at once. One is that, yeah, these, not one of these presidential candidates

are running with the strategy of winning the popular vote. They're trying to win the electoral college. They better be. That would be malpractice of the- Yeah, the absolute malpractice. So one set of well-actuallys has a point when they say, well, actually, we don't know who would win the popular vote because no one's trying to win the popular vote.

Correct. Frankly, it's my well-actually I've well, actually that quite a bit. Oh, I have well, actually the heck out of that. Like I've said that it's like looking at the Super Bowl after the Falcons lost to the Patriots and saying, well, actually, the Falcons had more total yards than the Patriots. Well, that wasn't the measure. Okay. Nobody's trying to win the total yards race, even though yards matter in football. So there is a well actually there that really has a big core of truth to it. But here's another well actually. Well, actually, it's just when you have an increasing departure between the will of the people as manifested in millions of votes and the outcome of an election, it causes human beings in the real world to lose confidence in this process.

And that's true. That is true. And so I just wish the people who well actually the truth of, well, we're not trying to win the popular vote, would acknowledge the truth that of, well, we're not trying to win the popular vote, would acknowledge the truth that, you know, when the more you have a departure between the popular vote, not on a inconsistent basis, once every 50 years, but this is how Republicans win basis, it creates real tensions with real people. And that's an actual problem that we should deal with. And I was talking to somebody who was on the Bush 04 campaign, and Bush had lost narrowly the popular vote in 2000. And they said, you know, we actually did try to win the popular vote. It was our main strategy was to win the electoral college. But we also did take strategic steps to try to goose our popular vote

because we wanted to win both. And I said, really? Like, well, really? But he said, yeah, really. And guess what? It's the only Republican presidential candidate since 1988 to have won both. And so, yeah.

So in hindsight, it's like, hey, Gamble paid off. In the moment, I would have been white-knuckling that sucker. But it does end up being a problem if this becomes a regular part of the American election cycle. I agree with that. Let's take a moment and thank our sponsor, Bills.com. Being in debt is the worst. Credit cards, student loans, mortgages, doesn't matter what kind.

Being in debt flat out sucks. You can tell that to my law school self who was both having law school loans and had discovered the joys of a credit card. So yes, I know being in debt is bad. Well, there is a way to defeat your debt. Thanks to bills.com. If you're losing sleep over maxed out credit cards or stressed out thinking about your

mortgage payments or student loans, bills.com can help you take back control of your life. The first step to lowering your monthly payments and becoming debt-free is to get a free debt assessment. It only takes a few minutes and could save you hundreds or even thousands of dollars each month. From debt settlement to personal loan consolidation to student loan or mortgage refinancing, bills.com has you covered. They're part of the Freedom Financial Network, which has been in business since 2002 and settled over $10 billion in debt. Take the first step to defeating your debt. Get your free debt assessment today. Go to bills.com slash opinions. That's bills.com slash opinions. Bills.com slash opinions. Should we move on to who the pick will be?

Yes. So, very pleased with myself. Can I do a little pat on the back, David? A little pat time? Yes. A little self-massage? So, we talked about the SCOTUS list, the short list that Trump put out

that's not short anymore. It's like a zillion people long. But we talked about this latest one and the reasons, the political reasons why you might put that out. And I said it was an easy press release, no downside, you know, gins up your voters a little, just political good move. And I said, but there was one other reason why you might have to put out 10 names. If there's only one name that why you might have to put out 10 names. If there's only one name that's come up since you put out your last list that you need to add, but you don't want to put out one name because then it's like very obvious that you have a crush on that girl. So instead you're going to throw out 10 names. And I said, I think that's

might be what's happening here. And the name that's on this list is Barbara Lagoa. Yeah. I'm feeling smart, David. Feeling real smart. You should feel smart. You should feel smart. Because I think the smart money says it's down, that the two frontrunners are the original frontrunner, Amy Coney Barrett,

and the new sort of dark horse coming down the stretch, Barbara Lagoa. So let's talk pure politics, and then I want you to talk legally about it. Pure politics. On paper, it looks like Lagoa's the better choice because, you know, she has this incredible story. She's the daughter of Cuban immigrants

who fled Castro from Miami, which is, spoiler alert, David, Florida's a very important state this time around. Yep. And it's almost like picking a vice president at this point. Like, why would you not pick the vice president from Florida instead of Indiana? Although technically, uh, ACB was born in Louisiana, but it doesn't matter. Point still stands. Um, so Lagoa is Cuban. She's from Florida.

She was, uh, the first Hispanic woman and the first Cuban-American woman appointed to the Florida Supreme Court. So she was also a prosecutor. So when we're talking about law and order, she fits every narrative that the president could possibly want. And, you know, we know that the president is starting to creep into Biden's lead with Hispanic voters in Florida. I don't think population in Florida that she was picked. And it could gin up some more enthusiasm and turnout from some of those wobbly Rs who, again, they weren't going to vote for Biden, but they don't like Trump and they were thinking of staying home. And then he picks Lagoa. Sure. I think there's a real argument for that. Here's the problem. All of that makes so much political sense on paper,

but you're forgetting Amy Coney Barrett's aura within the conservative movement writ large. She's not RBG in terms of icon status. I don't think anyone could be. RBG gets to retire that jersey number. But ACB is second. Like if RBG is Michael Jordan, you know what I'm going to say, David, ACB is LeBron James. She's following in footsteps that were done before her. And I would argue that we're, that we're better at it at that, at the icon stuff. But you know, uh, the dogma lives loudly within you. There's like mugs and

t-shirts and all sorts of things you can buy with Amy Coney Barrett's picture that, I mean, there was a time when every conservative lawyer's house that I went into, they were sipping their coffee out of that mug. Uh, she is well known within the movement. Her nomination hearing went incredibly well. That's what the swag comes from, was her doing very well at her nomination hearing for the Seventh Circuit. She got Manchin's vote, Donnelly's vote, and Tim Kaine's vote out of Virginia. She has the entire pro-life community rooting for her. They do know who she is. And she will resonate with Catholic voters as well.

Guess where there's a lot of Catholic voters, David? The Midwest. Yes. So I think politically the edge goes to Amy Coney Barrett for all those reasons, but you couldn't ask for a better head to head politically than I think Barbara Lagoa and Amy Coney Barrett. And there's, but, but that's all politically. We haven't talked about the legal case for both. And that one I don't think is particularly close. And what's your position on that?

Amy Coney Barrett by a landslide. Yeah, I mean, so I've written about her jurisprudence since she's been on the Court of Appeals. It's very solid. It's very solid. She's getting criticism I've seen on the left today for her ruling in a campus sexual assault case. I would ask those progressives who are criticizing her to read the facts of that case and to see the absence of due process that was afforded the accused student in this case. I mean, wow. Wow. But no, I so I would say. There are a lot of things, there are a lot of factors that if you just sort of back up and you look at this dispassionately, this is if I'm Donald Trump and I want to be president United States for another four years, there are a lot of with white voters, but I have made surprising gains with Hispanic voters and having a huge fight where the Democrats go after a,

just a, you know, a person who by all accounts is a really great person, super smart, super accomplished. And the Democrats are going after her with both barrels. That's a fight I want to have. And it's a fight I want to have,

especially because she's in Florida and I got to have Florida. And it's a fight I want to have, especially because she's in Florida, and I've got to have Florida. And there's a lot of sort of short-term political thinking. But as you said, all of that really doesn't acknowledge the hold that Amy Coney Barrett has on a part, an important part. Now, I'm not saying millions and millions and millions. No. No, this is within the sort of conservative political,

the Christian conservative political slash legal slash activist class of people. Amy Coney Barrett has a real following. And it was the dogma lives loudly within you. And it's also the fact that people aimed at her with both barrels in large, in part because of her faith, which then caused her life to come under greater scrutiny.

And here's the really important thing that I think a whole lot of people in the political glass don't recognize. Her life came under scrutiny in parts of the press, not all of the press, but parts of the press. And when it did, a lot of American Christians who are paying attention to this saw themselves in her. They saw themselves, a person with a big family, a person part of a very close-knit religious community that engaged in exactly the kinds of things that other American

Christians engage in, these Bible studies and retreats, et cetera. And they looked at her, she's not from the Ivy league. She's from Notre Dame. And they said, I totally identify with this person. I totally identify. She's like an, the judicial avatar of like, you know, uh, half the people I know at my church. And seven children, two, one with special needs. And David, when you talk about like, well, millions and millions of people don't know her, that's true. But in the same way that when they announce a nominee,

you and I will both get texts from friends who don't pay attention to this, who ask what we think of it. There's like the spoke hub relationship. The important spokes, sorry, the important hubs know who she is and they will then be telling

all of their spokes this was the right pick. And that, and especially in Wisconsin, Michigan, and Pennsylvania, that could be really important. And legally speaking, you just know Mitch McConnell, Mitch McConnell does not want to take a risk.

Barbara Lagoa may be solid as the day is long, but we don't know. She doesn't have the same judicial, philosophical track record that ACB has. And so there's a bit of a risk there. There's always a risk when you're picking a Supreme Court justice. And you know, David, Supreme Court justices with track records have been picked who don't turn out

the way that the right wants them to, that's for sure. So maybe the tea leaves just aren't readable. But Mitch McConnell is going to say, you pick the horse that's run the race a few times. Yeah. And that's ACB. Another important thing to note, just from a process standpoint, is if you want to get this done by November 3rd, your nominee needs to have all of their papers together to be able to get this all done.

And ACB's nomination hearing was far more contentious than Lagoa's. And so a lot of that is already ready to go. And that will also, just from a process standpoint, I think McConnell will make the point that they're ready to go on ACB in a way that Lagoa would take not much more time, but a little more time. And she's also been heavily scrutinized for all of her controversial rulings since she's been on the bench. But she's always been a frontrunner. To the extent, by the way, you think Donald Trump just likes surprises and he'll want the

reality TV show reveal. I thought that a little bit around Kavanaugh. Kavanaugh was the frontrunner and I thought maybe at the last minute he'll switch it out because he wants the grand reveal. Nope. He picked Kavanaugh. He does listen to McConnell and I think he liked the Kavanaugh fight.

So I think, if anything, that turned out to be a good move for him, at least for the Senate, because the Kavanaugh fight, arguably, is what's going to allow them to have the votes to put in Amy Coney Barrett. I mean, the Kavanaugh fight, and you've laid some of this out in the sweep,

the Kavanaugh fight is one of the reasons why the Senate is the way the Senate is right now, that it's 53. The Kavanaugh fight is if you're talking to the most reluctant Trump voters, some of those who are just most holding their nose. The Kavanaugh fight is one of the tipping points. And I guarantee you this. There will be if Amy Coney Barrett is the nominee nominee, there will be people who will go after her personally. They will exist. Now, it may not be the bulk of the Democratic Party, but what we have seen is if you can find anybody on the Democratic side who crosses the line the way our partisan media works. That means the Democrats have crossed the line. And there will be a lot of incentive to hype that and hype that as look at the politics

of personal destruction applied to this mom of seven who is a Christian believer and lives out her faith the way you do, Jane and Jim, in Lancaster County, Pennsylvania, the way you do in Birmingham, Michigan, the way you... And so you can... And look, I mean, if that happens, the Democrats who do it will deserve an immense amount of blowback if they try to pull this dogma lives loudly within you kind of stuff again. Fascinating piece by Tim Alberta and Politico this weekend by the way.

Actually, it might have been late last week, but you know, he's been traveling around the country talking to voters and he just writes these fantastic pieces usually from the conservative angle about what voters are thinking. And so he went to the wow counties is what we call them. That's the suburban, the counties that surround Milwaukee, Waukesha, Washington. And I always

miss Oziki. No, I'm married to someone from Wisconsin. Why am I bad at this? Okay. Anyway. And I mean, he is talking to these voters and almost some of them like trump but not many most of them really dislike trump and you know what topic every single one of them brought up abortion um it's just a heavily catholic part of the country uh and you know i pulled a lot of the quotes in the sweep this week, but it was striking to me that, you know, they would bring it up on their own. Alberta was not asking about it. And you look at the polling on this, and it's something I like to tell my college students all the time. If you poll people about whether climate change is important or immigration

or criminal justice reform, healthcare, the economy, it will always outpoll abortion, for instance. But if you ask people if they're single-issue voters, there just is not an issue like abortion. 30% of those in the pro-life camp are single-issue voters, meaning it doesn't matter if they hate Trump. It doesn't matter whether Joe Biden is the second coming, ironically. Yeah. They're single issue voters. And that number, that 30% has doubled, according to Gallup, since 2008. So that's quick. So it went from 15 points to 30 points since 2008. So it's becoming more salient to voters. So again, ACB and Lagoa, from a political perspective, it's a close race, but you add in the legal stuff and that hub spoke mentality of everyone's friend group has someone who follows the court type thing.

Yeah. ACB pulls ahead by quite a bit in my view. Yeah, I think it would be. I mean, given all those, I think, circumstances that you've laid out, I think it would be malpractice, actually, not to pick Amy Coney Barrett. I think there would be a palpable sense of disappointment. Even if people otherwise have a high degree of respect for Lagoa, it's just kind of hard to overstate amongst... And they do, by the way, and she's fabulous.

And, like, this, you know, Barbara Lagoa is a fantastic judge. It's just, I think, going to happen to be, you know, there's only one seat. Right, exactly. And, you know, she could be in a Trump second term next up in the bullpen. That's right. But there has been an awful lot of people who've

been waiting expectantly as they watch amy coney barrett throwing those pitches to the catcher in that bullpen and her fastball looks sharp her curve like you know breaks really hard right at the batter's knees i mean she's got skills and and they want to see her take the field. And I think it would be malpractice if Trump doesn't select her as his nominee. And he would be. And the other thing is she's very she was very poised in her in her hearing. And, you know, if she has a hearing before the election. And I'm Donald Trump. I want to roll into an election with America seeing her as sort of the face of the first big act of his second term would be the vote of her vote and confirmation. It would seem to me to be very much in his political interest that that be the dynamic.

Yeah. But we'll see. We'll see soon. We might see by our Dispatch Live Wednesday night. That would be something. That would be a fun Dispatch Live. I'm really looking forward to it. Although, David, you said you're nervous about putting the book out into the world. Can I tell you why I'm nervous about Dispatch Live? Yeah, please.

The brisket has been sleeping through the night. Knock on every single thing. Last night, he slept from seven to seven, David. No interruptions. Oh my God. Yeah, I know. Very proud. I'm the proudest mother I've ever been. But Scott is traveling for work for the first time since the pandemic. So I will be alone with the brisket. So really hoping that there will not be a brisket sighting during our Dispatch Live, but there might be. Well, if there is, we'll just set up three Zoom pictures. Yeah, yeah.

We'll have the live input from the brisket. And that will be the most popular part. I mean, let's just, I mean. That's right. I'll, you know, forget anything about my book. It'll be brisket time. He's doing a lot of, you know, a lot of goo-goos these days.

A goo, a goo to you too. So he'll have a lot to say. Yeah, that's a magical time. Yeah. All right. Well, so the next time you'll hear from us will be Wednesday night. And we're still, because look,

the people demand their advisory opinions. We'll still be here on Thursday also. And if you're not a member, so you're not getting the Dispatch Live invite, you can sign up for the 30-day free trial just to join Dispatch Live on Wednesday night and then cancel afterwards if you want. But it is open to members

only, but it is now free to become a member and then join Dispatch Live on Wednesday. We'll be taking your questions of all of David's terrible hot takes. All of the gems. They're not hot takes. They're pearls

of wisdom. Uh-huh. What are you going to wear, David? Have you picked out your outfit? It's so rare that people see us. I know. Some NBA shirt. Ugh. Yeah.

So probably, well, no, I don't have a good Lakers shirt, even though I'm for the Lakers of the final four. Yeah, undetermined. Nobody will care. Oh, David, you'd be so proud I'm not gonna wear

this t-shirt on Wednesday night but I'll tell you the t-shirt that I would wear if I were going to wear a t-shirt on Dispatch Live for Wednesday night oh let's hear it I'm actually not

the biggest Star Wars fan in the world I like the originals fine I don't like any of the new ones but I thought the Mandalorian was just so so

so good so good and there's a meme online that combines The Mandalorian was just so, so, so good. So good. And there's a meme online that combines The Mandalorian and Mean Girls. And it's, get in, loser, we're getting chicky nuggies with Baby Yoda. And so I have a t-shirt that has Baby Yoda, get in, loser. We're getting chicken nuggies. There's no reason not to wear that. Have you ever been prouder of me than that I now own that t-shirt? That's so good.

There is no reason at all. I was just going to get boring. The more I thought about it, I'll just wear some dispatch swag. Oh. Because I have a dispatch pullover. It's kind of nice. But David, if they're watching, they're already members. You don't need to. That's true. But they may not have the swag. Oh, good point. Yeah. Yeah. Sarah, it's upsell. You got to upsell.

You know, that dispatch membership plus the swag is like going to the restaurant and ordering the margarita with the top shelf tequila. the restaurant and ordering the margarita with the top shelf tequila. Yeah. Okay. I mean, I did wear my hat. We did a little newborn, me and my two other new mama friends. We took all of our newborns and partners for a hike. And I was in charge of the hike. Three hours later, we made it back. This was meant to be like a 45-minute hike, best pops. We got so lost that we ended up parking on a fallen log and basically thinking about whether we were just going to have to hunt and build a house at that point. But I was wearing my dispatch hat and I thought to myself, well, if this is where we die, they'll be able to figure out who I am when they

start looking back for the dispatch hat law and order style, you know, of like now the dispatch, let's find that. And then they go to the website and like, yep, that's her.

All right. Well, this was a short episode. Well, but the flaw is by the time they found you, because if you're well and truly lost, it was going to take years to find you. Everyone will be wearing dispatch hats.

So that's the flaw. Good point. Yes. All right. So we will see members who want to join in, join 30-day free trial. We've lowered the barrier of entry. Go to thedispatch.com. We'll see you all Wednesday.

Everyone else, we will also see you all on Thursday. So this has been advisory opinions and please go to apple podcasts and rate us and also remember this is release week of my book divided we fall go to amazon.com check it out and please order it will ship starting tomorrow and we will see you wednesday you