Advisory Opinions - Supreme Court Fight Kicks Off

Episode Date: October 13, 2020

The Senate Judiciary Committee kicked off its confirmation hearings for Supreme Court nominee Amy Coney Barrett today with a predictably partisan spin. There were dog whistles from Republicans about religious tests and procedural complaints from Democrats in defense of the Affordable Care Act and against advancing Barrett’s nomination before November 3. But all things considered, the first day of the hearings was relatively uneventful, which may have come as a shock to those who watched the rather lively Brett Kavanaugh hearings in 2018. Our podcast hosts argue that boredom is a win for the Biden campaign’s Do No Harm strategy, as any sound bite attacking Barrett’s religion or character could depress the Democratic candidate’s current 10-point lead over Trump. David argues that if Democrats want to preserve Biden’s steady lead, they will do everything to avoid even “a single viral moment that puts them in the villain role” during these hearings. Check out our latest episode to hear David and Sarah discuss the Affordable Care Act’s lifespan, partisan judicial elections on the state level, and the Capitol Hill Baptist Church lawsuit. Show Notes: -FiveThirtyEight’s presidential polling average, and The Sweep: The Witching Hour. Learn more about your ad choices. Visit megaphone.fm/adchoices

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You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger coming to you from thedispatch.com. Our 30-day free trial is over, unfortunately. So if you want the full glory, and I do mean glory, Sarah, of our offerings, or is majesty perhaps a better term? Hard to say. So hard to pick just one word. Yes. If you want the full majesty of our offerings, unfortunately, you don't have a 30-day free trial anymore. You have to go to thedispatch.com and subscribe, and we'd urge you

to do that. But we're not going to talk about thedispatch.com today. Is anything going on that's in our wheelhouse? You know how like on those Supreme Court mornings in June, I told you like I was super excited to wake up and it was like my Christmas and Super Bowl and everything else wrapped into one. This morning I woke up and wondered if I could just go back to sleep. morning I woke up and wondered if I could just go back to sleep. Now, why is that? We have a Supreme Court nomination hearing today for a person who's by all, I mean, it's almost as inevitable as any legislative event can be that is going to be sitting on the Supreme Court maybe by election day. And you wanted to go back to sleep?

This confirmation hearing is the most abysmal combination of boring and unpleasant that I think one can have. But in all seriousness, I do wonder after watching all day today, David, I wonder whether post-Trump, whenever that may be, there will be this sense that we've gotten used to being so entertained by our politics that the normal level of inauthentic, boring, very predictable stuff like a Senate Judiciary Committee hearing will be sort of intolerable in a way. Like on the one hand, I think right away people will be like, oh, it's so nice to be bored, sort of like that vice presidential debate. But I wonder if that will quickly wear off and people will crave the enthusiasm or sorry, excitement, even negative excitement that they've been having for the last four years. Because today was really boring, David.

Well, I think by people who would crave the excitement is a micro slice of the american public i hope so yeah no i i i know what you mean and i think that it was pretty apparent that from what i saw of the hearings that there was every effort to make them boring like the the democrats were wanting to register their objection to all of this but in no way shape and form grant some sort of viral anti-Christian moment, some sort of moment that allows Republicans to pounce or seize, to use sort of like the media formulation there, that this was, we don't like this. We can't do anything really about it. We're going to explain that, but we're not really going to go after this person who's sitting in front of us.

And it was a lot of cliches. Yep. A lot of being on message, a lot of politician talk, which especially in 2020 comes off incredibly inauthentic. That is true. So I sort of came in, you know, the outcome is inevitable,

or at least unrelated to what was going to go on today, no matter what. So I was going to sort of pick political winners and losers and stuff, but there really weren't any. I mean, the Democrats all stuck to their, she's going to get rid of the Affordable Care Act, that's going to strip healthcare from millions of people line.

And they had posters throughout the hearing room of people who had preexisting conditions who they said were going to lose their healthcare. And then they told their stories a la State of the Union. You know, let me introduce you to so-and-so from this town. And she likes pizza and apple pie and loves her mother and has a pre-existing condition um again like it's sort of a 1996 tactic that was transported into 2020 and all of a sudden just felt very odd, I guess. And I don't think it was particularly effective, but in the do no harm

category, when your presidential candidates up by now 10 points in the polling averages, who cares? Like nobody paid attention to it. Only people who absolutely had to watch all day, like me, I think did. And that's a win for them. So sort of the same thing as the vice presidential debate, frankly. And, you know, the only moments that stuck out to me actually were these authentic moments where you could tell that the senators sometimes actually enjoyed each other's company, which was authentic and surprising. But there was this great little moment exchange between Maisie Hirono and Lindsey Graham, where they seem to be humans who actually maybe had a fondness for each other. And I was like, oh, that's nice. Maybe the Republic isn't dead yet.

the Republic isn't dead yet. Hopefully it's not dead yet in the sense of really alive instead of not dead yet in the Monty Python and the Holy Grail sense. I meant it more like Monty Python, but we'll see. But I mean,

from a legal standpoint, I can just read you some of the quotes from today. In fact, I've got three. I have Klobuchar, Harris, and Hawley teed up for you. And I think this will summarize the entire, however many hours I just sat doing that. I don't, oh, I can't believe we have more days of this. Okay. So Josh Hawley, I think this summarized all of the Republican talking points. It is an attempt to bring back an old standard.

The Constitution of the United States explicitly forbids, I'm talking about a religious test for office. Article 6 of the Constitution of the United States, before we even get to the Bill of Rights. Article 6 clearly says no religious test shall ever be required as a qualification to any office or public trust under the United States. That was big news in 1787. It would also have been, David, big news in this hearing because only Republicans brought up her religion. Wait a minute.

What you mean when, was it Senator Coons who brought up Griswold? That was, that wasn't a dog whistle? Not a dog whistle. Not a dog whistle. So then we had Amy Klobuchar. She had one strain of the Democratic talking points here. To all Americans, we don't have some clever procedural way to stop this sham, to stop them from rushing through a nominee. But we have a secret weapon that they don't have. We have Americans who are watching, who work hard every day, believe in our country and the rule of law, whether they are Democrats, Republicans, or independents. They note what this president and the public and party are doing right now is very wrong. In fact, 74% of Americans think we should be working on a COVID relief package

right now instead of this. Let me tell you a political secret. I doubt there will be a brilliant cross-examination that is going to change this judge's trajectory this week. No, it is you. It is you calling Republican senators and telling them enough is enough, telling them that it is personal, telling them that they have their priorities wrong. So do it. It is you voting, even when they try to do everything to stop you. It is you making your own blueprint for the future instead of crying defeat. So do it. This is not Donald Trump's country. It is yours. This should not be Donald Trump's judge.

It should be yours. So there was the procedural complaint. Yep. I thought Klobuchar did that very well, actually, by the way. Yeah. And then I'll use Senator Harris for the headline coming out. Not that hers was the headline, but that every Democratic senator really hit this hard. That is the big reason why Senate Republicans are rushing this process, trying to get a

justice onto the court to ensure that they can strip away protections of the ACA. If they succeed, it will result in millions of people losing access to healthcare at the worst possible time in the middle of a pandemic. 23 million Americans could lose their health insurance altogether. If they succeed, they will eliminate protections for 135 million Americans with preexisting conditions like diabetes and asthma or cancer, a list that will now include Americans who have contracted COVID-19. asthma, or cancer. A list that will now include Americans who have contracted COVID-19. Insurance companies could deny you coverage or sell you a plan that won't pay a dime towards treating anything related to your preexisting condition. You will once again have to pay for things like

mammograms and cancer screenings and birth control, more for prescription jugs. Young adults will be kicked off their parents' plans, et cetera, et cetera. You get the gist. Okay. Thank you for those. Thank you for those quotes. Can I ask you a question that's kind of bugging me? Yes. Okay.

So I think of the three comments, I mean, I agree with you that Amy Klobuchar stated the procedural complaint very, very well. I think Josh Hawley stated the argument, he made the rebuttal that Republicans want to make if the Democrats go after Judge Barrett's religion, which they did before. I mean, it did happen before. So, you know, you're not making up this concern, but not in this hearing yet. The Harris comment brings up two things for me. One is, do you think Democrats legitimately believe that the whole ACA is going to fall? I don't know. I'm honestly having a hard time finding anyone who believes the whole ACA is going to fall. I don't know. I'm honestly having a hard time finding

anyone who believes the whole Affordable Care Act is going to fall. And then number two, why did the Trump administration seek to destroy it all in the middle of a pandemic without a replacement? Like, doesn't that seem like a political own goal, like just a freebie? seem like a political own goal, like just a freebie? Why do that when it's not even going to happen? It's like the charge of the light brigade, judicial cannons to the left of them, judicial cannons to the right of them. Someone is blundered. What is going on? Help me, Sarah. I think that Donald Trump had this really intuitive sense of the Republican electorate in 2015 and 2016. And that included these talking points about immigration and about Obamacare that he just struck gold with. And it was very intuitive for him. This was not based on poll testing or focus groups.

And it was very intuitive for him. This was not based on poll testing or focus groups. He just felt it and he felt his way through it. And he was exactly right that Obamacare and immigration were more than the issues that they represented. However, fast forward four years and that skill, whatever created that ability within him in 2015 is has left him right now and so for instance the stuff on the durham report in russia i don't think has that same dog whistle stuff that it did even in 2017 um and similar stuff with obamacare it just doesn't have that um enthusiasm excitement it's sort of like, you know, when there's like a song from your high school years that was like super popular and on the radio

and kind of edgy, and they played it over and over and over again. And fast forward and you're in a TJ Maxx now, and it's like the Muzak and the TJ Maxx. And you're like, wait, I remember when, you know, Come Down on Bush's 16 stone was like, whoa, and dark, and you would not play it in a TJ Maxx. Um, I think that's a little bit what's happening here with the Obamacare repeal talking point. He thinks he's, you know, playing that same song, but it just has a totally different

tone now and everyone's heard it so much and it takes the edginess away from it. And instead, I'm picking out candles at a TJ Maxx. Yeah, you know, because it really puts Republicans in a weird spot because virtually every, I would say probably every senator on that committee knows Obamacare isn't going anywhere. The individual mandate may be struck down, but the individual mandate is a dead letter right now anyway. So that virtually every Republican knows that it's not going to be struck down. Yet how many of them are going to be able to stand up and say the Democrats are fear

mongering because this is not going to be struck down. Right. Because they don't want to undermine the position of the solicitor general and the Trump administration politically on the you know, as this argument approaches, it's it's a honestly, if I was a Democratic strategist and this is something I said after this, the VP debate, and I know that Kamala Harris had a couple of moments where she really tried to hammer this home. I would talk about this a lot, just a lot, that the formal position of the GOP is to strike down Obamacare with no replacement. And that means get rid of pre-existing conditions. That means get rid of Medicaid expansion. That means your older kids are knocked off your plan. And when would you not be talking about that? And yeah, in these hearings, I think it's shrewd politically of the Democrats to highlight

it, even if they probably know in their heart of hearts that this thing is staying. No, there's no downside. And, you know, let's take a quick cul-de-sac. I know we've talked about it before, but the current case before the Supreme Court on the ACA is about the constitutionality of the individual mandate after Congress zeroed out the tax penalty, whether it can still stand as a tax if there's no penalty, i.e., like, does the government telling you to do something by law make it a government mandate? law make it a government mandate? And if it's just like the honor system. And I think the answer is yes. There are things that are illegal in the country that I don't even know the penalty for, but I don't do them because they're illegal. And I don't think of myself as someone who does illegal things. Unlike murder, for instance, which I don't do, not because it's just illegal. So anyway, good, good, good, good, good. Check that box. Thought I should clarify.

But, you know, we've we've talked about this. Nothing has changed, in my opinion, that there is no world in which if the mandate is struck down, which I think it will be, but I'm far less sure of that than I am sure of this, David, it will be severable from the rest of the law. Yeah. And under current severability doctrine, that's become even more clear because they zeroed out the mandate,

which means that the whole law clearly does stand and Congress very much can even be said to have intended it to stand without the mandate because that's what they did when they zeroed out the mandate i am so confident sarah that this that the mandate will be separable from the law that if and mark this down, listeners, that if I'm wrong and the whole ACA is struck down, I will spend at least three minutes on an advisory opinions singing a self-composed ode to Christian Laettner, the most villainous basketball player of all time who crushed the heart of the Kentucky Wildcats in 1992 when he should have been thrown out of the game earlier for stepping on Aminu Timberlake. I'm trying to think.

Is he number one sports villain in the world? Anyway, maybe he might be my number one sports villain. But if I can think of a more villainous villain, I will sing a self-composed three-minute ode to their glory and majesty. Okay. If I'm wrong about this. Well, I've never really wanted

severability doctrine to just like poof, head in a totally different direction in particular. But now my incentive structure has changed. Yeah. It has.

It might even maybe make me sing a three minute song of of ode of glory to Trump's tweets. I don't know. I don't know. How about this? If it is severable, can we get a three minute ode to severability? No, no, it's got to be extreme circumstances before I'm going to ever sing in public. Yeah. Okay. I have one other thing on this hearing, David, before we go on to other topics that I did find interesting. And I just want to raise for you as the lady on this podcast to my feminist ally. I've been seeing some chitter chatter on the chitter chatter places about how much the senators the republican senators even the democratic senators and the reporters are talking about amy klobuchar as a

wife and mother amy klobuchar or amy coney barrett okay talking about how amy coney barrett uh is a wife and mother and and that during Scalia's confirmation hearing, no one was talking about work-life balance despite his oodles of children, and that this is some sort of further proof of sexism. And I just want to speak out in favor of my brand of feminism at this point. out in favor of my brand of feminism at this point uh damn right we should be heralding her as a wife and mother who's able to do all this uh and i don't care whether we did it for scalia and

in fact it kind of sucks to be a male in that situation where like you still have a lot of parenting responsibilities and no one's giving you credit for it. So I think it's fantastic. I don't think it's sexist except to the extent that like, yes, she is being treated differently because of her gender. But I think it is a positive change, not a negative one, that we're recognizing the difficulties of that, the trade-offs, the complications, and how important it is as a working mom that you find that time and that balance and, uh, all of that. So I think it's awesome. I, I understand why people, why it hits your ear funny when you're hearing it for the first time. But I think instead of having a knee jerk negative

reaction to it, instead we should be like, hell yeah, because 20 years ago, that would not have been the reaction. Instead it would have been like, oh, well, that means that she's too feminine. She's baking pies so she can't handle the law. It would have subtracted from her qualifications. And instead it is seen as a net addition to her qualifications. I think it's awesome. I'm for it. I hope we see more of it. So I'm not going to disagree with you as your ally, but I want to just say I'm waiting for the day

when a male nominee gets up there. And to quote LeBron James last night, did you see, by the way, the ghost? Mommy! I loved it no this is no this is this is uh even better because they he talks about how you know everyone needed respect and everyone needed respect and it he very ends it with this really emphatic declaration i just want my damn respect uh says leBron. Oh, I thought you were talking about when he's on the floor with a cigar calling his mommy. And he's just like, Mommy, were you watching?

And he's like, the locker room was too crowded, so I left to call you, Mommy. And I was like, oh, my God. Fast forward 30 years, and I can't wait for Nate to be saying that. fast forward 30 years and I can't wait for Nate to be saying that. I actually didn't see that because my oldest daughter's home with her husband. And so after the game was over, we just started talking. But I'm going to, if I'm ever nominated for something, which I will not be ever. So on Earth 2, if I was nominated for something, I'm just going to start talking about the fact that I'm a husband and father and then end my tale of putting the toilet seat down and babysitting my kids when necessary.

And see if anyone cares? And end it with, and I just want my damn respect. See if anyone cares. And end it with, and I just want my damn respect. So, I don't, I don't,

that's why I'm never going to be a nominee because, you know. I don't think that's coming. Yeah. No, it's not happening. But I actually love this brand of feminism where femininity is a part of the feminism.

And I think that we should make more of that and emphasize it more because it is a luxury that was not the case 20 years ago. You couldn't be both feminist and feminine because in order to make it in the boardroom or the workplace, et cetera, you needed to fit in with the guys because the guys were the majority. They were the ones making the promotion decisions, the hiring decisions and everything else. And to make them feel feel comfortable you had to act like them but you also had to look like them it's why we went through that whole pantsuit era and shoulder pads and all of that and uh i just

shout out to the women who wore those shoulder pads so that i can wear a dress and a scarf and call it a day feeling more comfortable at work and being myself instead of having to fit in with the guys all the time. Because now there are women in those positions who recognize that different is not always bad. Well, this is a shout back to conversations we had early in Advisory Opinions. Yeah. Before our audience was as vast as advisory opinions before our audience was as vast as it is and our reach was as long as it is. I think our first female president will be a sort of feminine female president as opposed to, yeah, I mean, some of the early female politicians,

I think, had to fit in with what voters thought a politician looked like, which was, of course, a masculine stereotype. And now we don't have that. Yay. All right. So before we move on from this, what are you looking for? What are you predicting? What are you looking for when it and for the rest of the hearing? What are we going to be saying about it on Thursday? I think I'll be saying that I was about as bored as I was today, less bored perhaps, but still pretty bored, and that that was a win for the Biden team. Yeah, I'm going to say the same. I think that if the Democrats are smart, they do not want a single soundbite from this hearing from them,

from them that is not this process is wrong and the ACA is in danger. They don't want a single viral moment that puts them in the villain role, if they're smart. And that would be my expectation is that if, you know, look, I don't have the campaign experience that you have, Sarah, but if I was on Team Biden, I might have tried to get people on Zoom and say, if you go after her Catholicism in this hearing in any way, shape or form, when I come into my power and awesome might, you will be frozen out. I will smite you. You will be on the outside looking in. You will be smote. I shall smite.

I shall smite thee if you do that. So I really don't expect it. And in a weird way, I mean, I think the Republicans are just are kind of hoping their own nominee gets mistreated. Oh, for sure. Yeah. Yeah. I mean, sure. Yeah, yeah. I mean, that sounds uncharitable,

but everyone's on high alert. They're on high alert because they know what the Kavanaugh melee did to help expand their Senate majority in 2018. I think the danger for the Republicans is that there will be something that comes relatively close to the line and that they overplay it, that it actually isn't over the line. They try to build it into something it wasn't. And that that not maybe backfires, but creates sort of a nationwide yawn eye roll. yawn eye roll. Yawn, right.

So I mean, I think it will be, I would hope Thursday we might have some interesting substantive constitutional law to discuss. Also unlikely. Also unlikely. Okay, so you're saying, what I hear you saying is in the middle of a Supreme Court

judicial nomination hearing on the eve of a presidential election, we're not going to have much to say about it. That's what I think. We'll see. Let's take a moment and thank our sponsor, Bills.com. Being in debt sucks. Credit cards, student loans, mortgages, doesn't matter what kind, being in debt is the worst. 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.

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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. Speaking of court packing, got an interesting question from a listener that I think is worth us addressing. If, for instance, the court were to be packed, quote unquote, they were to add justices to it, there's sort of a sense, I think from everyone, that the court would certainly be much more like a legislature and we elect legislatures. And so the court would, in a sense, feel much closer to these judges that are elected in states. And so the question from the listener was, what do we think of judicial elections in these states? Do we think it's a good idea a bad idea etc so i thought i'd give you some fast facts david about how judges are picked in a bunch of states yep so in

18 states judges are elected in partisan elections. And a handful more than that, they're elected in nonpartisan elections. And another handful, they hold retention elections. And only seven states do not elect their judges like we do for the federal bench, not elected. That's really interesting because you think of states as the laboratories of experiment and at least certainly the vast majority hold some form of election for their judges and we don't at the federal level. What do you think of that, David? I am very down on judicial elections.

This does not surprise me. Yeah. So, you know, one of the things that, there's a couple of reasons for this. One is that these judicial elections almost are the very definition of low interest, low information elections in the US. How many people have you ever gone, and chances are, if you're a listener, you've gone to the polling places and you've seen a judicial election. Unless you've had a case in front of the judge, how many of you know

one thing about the judge? And then if you've had a case in front of the judge, you know what you might know about the judge, whether he ruled for you or he didn't rule for you. And maybe on one of the most emotional, you know, most people when they go to court, it's not some mere academic exercise. It's one of the most important things in their life at that time. And I'll tell you, Sarah, I have practiced in front of elected judges, and there are circumstances where the popularity of the position is absolutely blazingly salient to the outcome of the case. Can I tell you a war story?

You know, it's been a while since we've had a war story. It's been a while, but this is a good one. Are you ready for this? Yeah. So I represented a coal company that was, they owned the mineral rights to the coal. So in other words, they owned the coal in the ground. And normally what often happens

is the owner of the mineral rights does not mine their own coal. They'll enter what they call a coal lease, which is odd because you're not actually leasing the coal. The coal is being removed and then sold. And the deal will be $25 a ton. I think it's our best recall that might've been the terms of the deal.

And this was going to be a mountaintop removal mining operation. So for those who don't know what mountaintop removal mining is, it's very self-explanatory. It is a massive industrial operation to chop the top off a mountain, scoop out this coal, and then try to

rehabilitate. There's a restoration process, but it's still not the same after mountaintop removal. So it's a dramatic thing. The negotiations break down, and we do not enter into a deal with the mining company. Well, the mining company decides that it doesn't matter. It's going to remove the mountaintop anyway, Sarah. And so it gets all of its equipment, rolls like in some sort of movie, rolls through gates, destroys the gates, and begins annihilating a mountain in Appalachia. So my law partner, the law partner, I was an associate, I was on vacation. And so it fell to me to stop the unlawful destruction of a mountain. So I go to this local courthouse in Eastern Kentucky, and we can't find the judge. Where is the judge?

He can't be located for us to try to get a TRO hearing. Turns out he's unavailable. Why is he unavailable, Sarah? Well, that whole workforce is part of his electorate. And so he can't be found. So he removes himself to where we literally cannot find a court to hear the TRO. But I'm a clever lawyer, Sarah, so what do I do?

I look up the Kentucky Rules of Civil Procedure, and I find out that if a judge is not available in the proper jurisdiction, you can get a TRO, temporary restraining order. I believe it was in the jurisdiction where one of the parties is, which happened to be the one right across the street, the courthouse that I go to every day. And we got a TRO that stopped

the mining and my local friendly judge. Well, suddenly the judge in the locality suddenly reemerges. He's found again after the preliminary injunction. And he says, well, I want to hear the injunction motion, which for complicated reasons he got to do. So guess what I did? I argue an injunction motion and in front of this guy with the entire workforce that I had just put out of work by enjoining their illegal mountaintop removal mining in the courthouse.

And I know, do you think I had a ghost of a chance, Sarah? I don't think you had much of a chance. I did not have a ghost of a chance, but I did have a marvelous moment in oral argument, if I don't say so myself. And I said, Judge, you know what this is like? It's like if I walked into your front yard and I started digging and you said, Judge, you know what this is like? It's like if I walked into your front yard and I started digging. And you said, what are you doing? And I said, Your Honor, I'm building a house in your front yard. And you said, you can't do that.

I don't give you permission. I said, it's fine. I'll pay you rent. I'll find a market rate and I'll pay it for you. You'll be out of pocket. No money. And he said, I said, that's what they're doing. They're saying we're going to permanently alter the landscape,

but it'll be fine because we're going to pay you something for it. And he says, that's a terrible analogy. And I said, it's a great analogy. He said, it's terrible and ruled against me. I will note that West Virginia is one of the 18 states that has partisan elections for their judges. You know, this was in Eastern Kentucky. Oh, you said Kentucky. Yeah. Why did I hear West Virginia? You heard coal country and you just made a stereotypical assumption.

I did. So Kentucky does nonpartisan judicial elections. Yeah. So anyway, I have just seen with my own eyes, especially at the trial court level, and I could go on and on. Sarah, do you want six more war stories? I don't, actually. Anyway, I could go on and on. And I just think there is a real problem. And I'm not saying all judges who are elected are like this. By no means. I have known saying all judges who are elected are like this by no means. I have known some fantastic judges who are elected. I just think it skews incentives.

I think it skews incentives that the law isn't what the people want the law to be, that their input on that is for the legislature. It's not to be interpreted the way the people want it to be interpreted. And I just think the electoral process opens up that kind of populism into judicial interpretation. And I do not like it. So my experience in Texas is that they're all waves, right? So we have partisan judicial elections in Texas. And if there's a blue wave in Harris County, it'll be all blue judges. And if it's a red wave, it'll be all red judges. And you end up with, for instance, right now, this is not rare, it's not unusual at all, but I just happened to know because a couple of my friends lost their elections in 2018, they were replaced by judges who had never practiced. They weren't trial judges. They had a law degree, but that's about it. Some of them are incredibly young, straight out of law school. Basically, they just put their name on the ballot and they won because they have the D

next to their name versus the R next to the other name. That's not great, but I'd be interested in the experience of the nonpartisan elections, because to me, then you have no clue what you're voting on. And I don't think that all of a sudden those people do a lot more research because it would take an enormous amount of time to do the research needed to know every single judge and their judicial philosophy on a nonpartisan judicial election ballot. So I'm wondering if that's even a less informed election or if people just drop off and don't vote on the lower ballots. That's my hunch, by the way. The retention election thing is interesting to me because it's sort of the combo platter, if you will. You know, they get appointed to the office, but then they have to stand for election.

So you sort of have that merit system where they get appointed and they have to have, you know, whatever committee or governor, et cetera, puts them there, but then they stand for retention. So it's a huge incumbent advantage, presumably. But also if someone doesn't like your outcome, I'm not sure I can see it being really easy to run an ad about the outcome of a case

while it being really hard as the judge who voted the right way on the law, but the outcome sucks. Really hard to defend that in a similar 30 second ad. Oh, I totally agree. I think retention elections are a bad idea i i would like gubernatorial appointments with eight like with 18 year terms that's what i'm wanting for the supreme court uh supreme court appointments for 18 year terms but so why do you think it doesn't happen why do you think so many the vast vast majority of states have some form of election

for their judges we show you know the federal system has existed this whole time they've been able to see that in action and they have rejected it in favor of elections you know i think the the way uh democracy kind of sprung up organically across the country was the default was we decide who does what by by electing them we we that just so the default even we decide who does what by electing them. Even early in the Continental Army, there were units that elected their officers, for example, which as a veteran, it's like, no, no, do not. That is not the way it should work.

But I think there was part of the grassroots democracy of the American experiment has been the default position is when we have a public official, they're an elected public official. was that they were kind of moving against the grain in some ways of the way, at least some of the colonies operated. There's some pretty radical democracies in some of the New England towns, for example. And so I think that, but I'm sure we have a historian listener too

who can well actually the heck out of this, and we would invite that but the one thing i'd also say about the nonpartisan elections is what ends up happening in that circumstance is that different elements of the bar were organized behind specific judges so in kentucky especially in like some of these rural areas you'd have the plaintiffs bar would organize behind a judge um and you know the defense bar would have, you know, if they had any strength at all in that jurisdiction, might have a different candidate. But so you then have the people who actually practice in front of the judge exerting vastly

disproportionate influence over who they're practicing in front of, which is, again, problematic. they're practicing in front of, which is, again, problematic. But with the appeals courts and the state Supreme Courts, again, the bar, the activist lawyers would have much more influence over the content of the court than really the public because the public doesn't know about these guys and their philosophy. So I'm down on it. I wanted very much to come into this podcast with some defense of judicial elections, and I couldn't come up with anything that I even remotely believed about it in the positive. So I too am a pure negative on partisan elections of the judiciary.

to am a pure negative on partisan elections of the judiciary here's here's another try litigating the eligibility of a star high school athlete in the home county in front of the home county judge on the thursday before a key friday football game and see about elected judges. I mean, but okay. So to be honest, like that's the best defense of elected judges where it is sort of like a hometown issue and the judge therefore really represents the local interest. And there is something to be said for that.

But in the current era where the law is complicated and these judges are hearing far more than the eligibility of, you know, the good old hometown boy before he throws some passes down the field. Yeah, if they were all those cases, I would actually be far more in favor of judicial elections. Sorry, you lost that one too. Well, my firm, I didn't do this work, but my firm represented the Kentucky High School Athletic Association. There would be blatant cheating, blatant. And there would be instances where a court, a judge would walk into the practice after practice, would stand in front of the team and before the hearing that was

going to take place the next day. And they'd be like, boys, don't you worry now. Billy's going to take the field. You're like, judge, can you at least go through the hearing before you publicly disclose how the case is going to come out? Yeah, I'm actually pretty down with that. So for listeners, if you live in Delaware, Hawaii, Massachusetts, New Hampshire, New Jersey, Rhode Island or Virginia. Oh, wait, I live in Virginia. I'm curious what you think of your if there are any complaints you have for non-elected judiciaries in your state that you think should be different from the federal system.

OK, David, we're trying to keep it short today because we delayed taping this so that we could watch the whole hearing that was boring and uneventful. So let's wrap with the Capitol Hill Baptist Church, a church that I know well and have even been to. You will be surprised to hear. The Capitol Hill Baptist Church, its reach is wide as well. So if it can even sweep in Sarah Isker on occasion. That's right. But before that, I have to get your opinion on something. Okay.

Just very briefly, the 538 average in the presidential polling is right now 10.6. 10.6. If that held, it would be the biggest popular vote margin since 84. What say you about that, Sarah? I still think that

it will tighten back up, but I am losing faith that I'm right. I think that election day will still be much tighter than that. But by much tighter, I really mean six or seven points, what we basically saw it at through the summer. Right. Right. I look at it and it's still and I have no reason to believe this, it's still, I don't believe my own eyes when I see that 10.6. Yeah. Now look, we've had 8 million ballots cast already this year. So unlike previous years where I would tell you like, yes, early voting has started, but

the vast majority of votes are not in yet. That is still the case, by the way. We're expecting around 130 million people to vote, 8 million, not that many, but a lot compared to previous cycles by this point. So yeah, I mean, that's fascinating. Now, of course, as a lagging indicator, that's telling you what the electorate snapshot was last week yep and even then that's probably a lagging indicator because people are responding to the news of the previous several days before the pollster called sort of that like you know an event happens then you talk about it with your family you maybe hear from some neighbors that sort of solidifies an opinion so that's why polls lag by quite a bit um so we're still probably getting results from the president's positive covid test yeah yep i'd expect in another week

that to revert back to its previous numbers if it does not if we're having this conversation next Monday and it's grown even more, then I will revisit my priors, if you will. So do you want to know, as of 4.01 p.m. Eastern Time, how many ballots have been returned and or in-person early votes have happened? Oh, how many? 9,749,646. There we go. And if listeners want to be as nerdy as us, I have found the golden website for tracking this, state by state.

And it is called electproject.github.io. Now, why it is not a rational URL, I do not know. But listeners, if you want to be as nerdy as us on turnout, electproject.github.io. So here's an interesting thing about that, by the way. So of that 9 million,

we're looking at a double digit, certainly, gap between Republicans and Democrats that has never been more than a two point gap in the past. Uh, and, uh, at least in polling, it's looking like 62% of Democrats plan to vote early compared to 28% of Republicans and the votes that have been returned. Uh, it was a little tighter than that truthfully. But nevertheless, obviously, more Democrats were voting early. And we don't know how they voted, of course.

This is based on their party registration. I think that's confused some people in the past. So we're talking about the ballots that were returned in states that have party registration and then sort of expanding that across the country, if you will. OK, so here's what's interesting from a tactical standpoint about that. It's not that that means Democrats are winning the election. All it means is that their voters are voting early. It's the same votes that you would have on election day.

You're just getting them early. So that doesn't mean that there's some Biden blowout happening. It means that his votes are coming in early, but that actually wildly helps the Biden campaign. Because if you have a hundred voters that you need to touch to get them to vote at all, you need to remind them to vote. You need to tell them where their polling place is. You need to, I mean, all this stuff that you do in a campaign, whether it's absentee chase, which is where you help them with their absentee ballot and getting it back in, or election day turnout operations. 62 of them voted before election day, you've only got 38 people to touch and you can maybe send twice as many phone calls to them since you have so few to touch. If the Republicans,

instead of 38 people to touch have in fact, you know, 62 people, sorry, no 72 people to touch, they have to spread their resources a lot thinner on election day. So each of those people only get one phone call

on election day or one knock on the door. And the Democrats are getting to really double up and their turnout operation can be a lot more concentrated. That's the difference that early vote makes and why so many GOP operatives were so annoyed at the president for poo-pooing early voting. Because if you've got a vote in the bag, you don't need to go chase it. Well, yeah. And the other thing is, if you've already voted,

your vote is there. Whereas if I'm waiting till election day, I might wake up with the flu. Your car breaks down. Your dog gets sick. Yeah. Yeah. There's so many things can happen. So here's some interesting numbers from Florida. And then we'll talk about Capitol Hill Baptist.

1.1 million, 669,753 returned ballots so far. That's a lot. 850, thousand Democrat. Four hundred and eighty seven thousand Republican and three hundred and twelve thousand no party affiliation. Yes. A two to one Republican, a Democrat registration. Yeah, it's really 50.9 percent to twenty nine point two percent right now. And then we don't know, of course, with the no party affiliation, 18.7. But it stands to reason that

right now the Democrats are banking a lead in Florida. They banked a lead in Florida as best I believe in 2016 and it didn't survive election day, but they are banking a lead. Yeah. Well, and I have a new newsletter

out today, The Sweep. So I run through some of this, some other stuff. Third party issues, really interesting this year. You know, some poll questions that were unusual. Stop on by, sweep.thedispatch.com. let's take a minute and thank our sponsor express vpn i'm not sure if you've seen the documentary the social dilemma on netflix if you haven't i recommend it i think i probably had about 15 listeners email me and say you talk about polarization all the time you got to see the social dilemma so i watched it really enjoyed it very thought-provoking and in that documentary tech insiders explain how social media is engineered to exploit users' data for profit. They call it surveillance capitalism. Look, I'm cool with normal capitalism where I'm a willing participant in the transaction, like every time I go to the store to buy food. But when my data is being harvested so tech billionaires can get even richer, that gives me pause. Every time you use the internet,

big tech companies mine your data by tracking your searches, messages, and video history. But when you run ExpressVPN on your device, it hides your IP address, which websites can use to personally identify you. That makes your activity more difficult to trace and sell to advertisers. You still need to be careful

with what you share on social media, but ExpressVPN can make your web browsing more anonymous. ExpressVPN also encrypts 100% of your data to keep you safe from hackers and prying eyes. Many VPNs slow down your internet, but not ExpressVPN. It's incredibly fast and easy to use. Just tap one button and you're protected. So if you don't like the idea of tech companies exploiting your personal information, then visit expressvpn.com slash opinions right now, All right, Capitol Hill Baptist. Listeners, if you've listened for a while, you know that we have talked a lot about pandemic law. And this case actually brings together a bunch of things we talk about.

Pandemic law, when do traditional legal doctrines start to reassert themselves? When does judicial deference begin to end in the middle of a pandemic? And also, this is also a really interesting and important point. How do you position yourself to win as an attorney representing a client? Or how does a client position himself to win a case? And this case brings together all of those elements. So on Friday night, Capitol Hill Baptist secured an injunction against the city of Washington, D.C., allowing it to meet outdoors, socially distanced, with masks to hold a worship service as one congregation for the first time in D.C. since the pandemic hit. And I thought it was a really fascinating case for two reasons, Sarah. One, it was making a point, the judge, Trevor McFadden, do you know him?

I do. Tell us about Trevor, Sarah. Trevor is great. He married a wonderful friend of mine named Kelly. I love this so much. I was a DOJ with Trevor as well before he was elevated to his robes. Yes. Well, tell your friend.

What's your nickname? T-Dog? You know, when Trevor left DOJ, Rod Rosenstein gave one of the best farewell toasts slash roasts I've seen in a long time. Just I'll leave it there. Yeah, it was really good. I think if my name was Trevor and I was going to be a federal district court judge, I would want my nickname to be T-Pain. Oh, yeah.

I think that obvious choice, obvious choice. Yeah. Yeah. Well, anyway, so he wrote an excellent opinion and you can tell him next time you see him. Yeah. Well, anyway, so he wrote an excellent opinion, and you can tell him next time you see him. And basically what he did is he said, look, we're moving past the time where blind deference to public officials, that courts are required to pay blind deference to public officials. Instead, we now must begin to apply standard religious liberty doctrine to public decisions that impact religious freedom. There was a line in there, and we'll link it in the show notes,

where he talks about what do we do when we understand and we begin to understand and know more about the dimensions of a pandemic, the reality of a pandemic, etc.? And he says, when a crisis stops being temporary and as days and weeks turn to months and years, the slack in the leash eventually runs out. And then citing the Sixth Circuit, he says, while the law may take periodic naps during a pandemic, we will not let it sleep through one. That's good legal writing right there. It is. Although I have to say, when I initially read that, I was like, wait, wait, we're letting the law take naps? I'm not sure I like that either. But I think it's really accurate. Yeah. Yeah, yeah. So essentially what happened is relying on case law that was developed prior to the modern era of First Amendment jurisprudence,

but developed during the old American era of frequent pandemics, the Supreme Court has granted incredibly wide deference to state and local guidelines. It has, in my view, too wide. But we all know that's not going to be permanent, that they're not going to be permanently remaking First Amendment doctrine. The question is, when do you begin to get traditional doctrine back? The question is, when do you begin to get traditional doctrine back? And Judge McFadden is saying, hey, yo, now is the time.

And I thought it was a really good opinion for that reason. And then the other thing is, man, I would like a client like Capitol Hill Baptist. If you're going to make your case in a difficult circumstance and you're a client and you, you know, you're, you fiercely believe your religious liberty rights are being trampled on, do it the way Capitol Hill Baptist did it. They said, we're going to apply best practices.

We're going to social distance. We're going to, we're going to mask. Um, we're going to request formal waivers from the university, from the city. And when they ignore us, we're going to request again. And then when we file suit, we're not going to ask for special privileges. We're just going to ask to be treated just like as well as anybody else. When they did those things together, they perfectly positioned themselves

to squarely address the key issue, which is how viable in this case was the Religious Freedom Restoration Act in the middle of a pandemic. I thought it was just marvelously well done. My friends, Sarah, my friends at First Liberty were counsel on the case.

I was just going to ask that. Kelly Shackelford, who I've known for years. It was his outfit. Yeah. So I have friends too. I will say one thing, though, that you were, when I saw that you'd written about this

and you were giving the church credit from sort of a moral standpoint for saying, we believe in the first amendment. And so it's not that we don't want those protests out there. We just want the same rights that you were like, ah, that's a sign of like, I don't know, whatever you described it as moral fortitude. No, they were just trying to prevent the legal outcome from being that everyone gets their rights takenitude. No, they were just trying to prevent the legal outcome from being that everyone gets their rights taken away. I thought that was just a strategic line,

not a waving the Bill of Rights line. Oh, they were waving those Bill of Rights. No, no. The pastor, Mark Deaver, he was like waving a right on the courthouse steps, just absolutely waving the bill of rights. It reminded me of that Montana case from in front of the Supreme Court where the Montana Supreme Court said, oh, see, it's not religious discrimination because now nobody gets the scholarship money. Well, you don't want that to happen. So if you're the next set of plaintiffs going up, you're like, just to be clear, we don't want to take away their money.

We just also want the money. That's sort of what they were doing here. But in the church's defense and the way I phrased it, just to be clear, I'm not naive, but the way I said it was that their position was free speech for thee and for me. Yes. Not free speech for me and not for thee. But there is a strain of thinking in some conservative legal minds that says that, oh, but in fact, religious speech should be dramatically favored. That may well be, but it's not a winning legal argument.

So if you'd like to win the legal argument, they made a good winning legal argument, not just a biblically sound argument. But it was. Sarah, let me have this. I don't know. I don't know. You got to let me have this. It was so good. All right. Your dog is sick. I'll let you have this. Okay. Thank you. Thank you. But I do think we should watch this case. The city may appeal. It's not the only case. That would be a dumb thing for the city to do.

Oh, I think so, too. Speaking of legal strategic thinking, that would be a dumb move. Yes, completely agree. Because they will make law on this, and it will not be in the city's favor, and it will impact a lot. Yes. But there are a number of cases in this vein, in this genre moving up through the system. And so I'm going to be very interested to see, it's not long before we have another injunction request that comes before the Supreme court. And I'm just going to go ahead and say,

if Amy Coney Barrett is on the court, um, the outcome, this is one of those areas where I think the outcome would be different with the, uh, with the, the pre Barrett nine. Interesting. I don't know, because I think that to judge McFadden's point, this has run its course and the slack and the leash is tightening quickly,

even for the justice is currently on there. And even for the chief justice. So I think he's probably about done with this too. You know, if last term was the hit parade case term, I think this term is going to be injunction junction. What is your function term? Because it's going to be a whole lot of TROs pre-election, potentially post-election pandemic law stuff. I just feel like that's going to be the stuff we remember OT24. And one thing to be very clear, and I wrote this, and it's very important to be clear about this when we're talking about judicial response to pandemic regulations. That is not saying that the time of pandemic regulations is over.

No. What it's saying is that the time in which there was no real judicial scrutiny of pandemic regulations should be over. Yeah, the pure deference. Pure deference is over. But it doesn't mean that there is not some ability of public officials to take into account that there's a pandemic. It just means they don't get to scramble around saying, shut it all down, all of it. I can't deal with religion versus what and balancing all of this. Now they're going to have to do some balancing and some, you know, remembering the rest of the Bill of Rights. Yes, exactly. Well, and before we go, because we're coming up on an hour and we want to keep this tight, I'm just going to preview that next time I'll talk about a fun little conversation that I got to have that Sarah did not. I'm so mad about this. I can't believe you just brought that

up. Did you know that I did not bring it up? And when you were asking me whether you could, quote, have this, I was pausing because I wanted to say, no, you can't have this because you did that interview without me. Oh my gosh. I can't believe you just threw that in my face. I'm okay. Listeners. I've been disgruntled this whole podcast and you should know that. And I was being so kind because his dog is sick and now all it's all balanced out. I don't even care that your dog is sick. That's how am I not allowed to end this podcast on a clear dunk? Like just no, just to clear LeBron one, like you, you've actually like good things, good things happened to you last night.

So we'll have a conversation about my conversation on Thursday. We will talk about the hearing and I'm sure we'll have more state of the race rank punditry. You know, we won't have, David? What? A debate. That is true, and that means no Dispatch Live. That's right. I'm kind of sad about it. I know. I enjoy those. I enjoy those.

But we will see you Thursday, and before then, please go rate us on Apple Podcasts. Five stars only, please. We will talk to you next time.