Advisory Opinions - Veeps Make Their Case

Episode Date: October 8, 2020

Sen. Kamala Harris and Vice President Mike Pence faced off Wednesday evening for their first and only vice presidential debate. But analysis of the candidates’ performance was disrupted by Trump’s announcement Thursday morning that he will not participate in the October 15 virtual debate against Joe Biden. Is the president bluffing? Or is he simply trying to hide his COVID-19 symptoms from the American public? The president has released a series of videos via Twitter this week in which he assures the American public of his recovery. But these videos are produced by the White House, meaning they can do multiple takes and edit out any evidence of the president’s lingering symptoms. “You can’t do that when in a debate,” Sarah points out, reminding us that any of the president’s coughs or bouts of heavy breathing would instantly go viral if caught on-screen. After some punditry about what this means for the Trump campaign’s reelection strategy, tune in for Sarah and David’s thoughts on the forthcoming Amy Coney Barrett Senate confirmation hearings, the strategic ambiguity of Biden’s court packing comments, and the criminal allegations against Texas attorney general Ken Paxton. Show Notes: -30 day free trial at The Dispatch and Divided We Fall by David French. Learn more about your ad choices. Visit megaphone.fm/adchoices

With Ancestry, putting together your family story is made easy. Using an intuitive family tree builder, you could discover and preserve new details, photos, and stories about your ancestors. Uncover new relatives and branches of the family with automated Ancestry hints. Connect the dots with access to millions of historical documents. And then share what you find in one central place. Visit Ancestry.ca and start discovering your family story today. This episode is brought to you by New Balance Running. New Balance believes if you run, you're a runner. Whether you're going for your first ever run around the park or going for your

personal best in a marathon, speed, strength, stamina. Whatever goal you're working toward, New Balance has the running shoes, clothes, and accessories to push your run further and help you run your way. Find yours at newbalance.ca slash running. New Balance. Run your way. You ready? I was born ready. Welcome to the Advisory Opinions Podcast.

This is David French with Sarah Isker asking, which vice presidential debate? Did a vice presidential debate just happen? Because there's already more news, Sarah. It's already receding. It's already so far in the rearview mirror. I don't know if I can see it, but because we're thorough and because we care about American civics, we are going to talk at least a little bit about the vice presidential debate. We've got a lot to cover. We're going to talk about what are the political implications of the president apparently, possibly backing out of the next presidential debate. We're going to talk about any lingering questions or hangovers related to the campaign on the vice presidential debate. We're going to give you a preview of the Amy Coney Barrett hearings. We're going to talk about the court packing debate and why I think the Democrats politically are smart not to commit one way or the other on this. And then we're going to end by asking a question that so many of us have asked for so long, Sarah. What's the matter with Texas?

We got some problems this week, man. You got some problems down there in the Lone Star State, but we're not getting ahead of ourselves. Let's start with the big news. I remember we finished a dispatch live last night. And let me just use that as an opportunity to say, I'll remind everyone, this wonderful, marvelous podcast is, but the smallest portion of the fantastic offerings of the dispatch found at the dispatch.com. So check us out. But we got off of Dispatch Live last night, which for those who

don't know, it's a members event that we hold, live video analysis of the debate. And there was kind of an assumption that the president was going to make some news, probably today, that kind of stomped all over any lingering effect of the VP debate where, frankly, Mike Pence did pretty well. And I didn't know it was going to happen so fast. But what it what appears and I'm just going to say appears because it's not done until it's done. It appears that that Donald Trump has rejected the debate commission's demand that the next debate occur virtually and that he would rather hold a rally than attend a virtual debate. and B, if he's not bluffing and he does go ahead and not show up for the debate, what does it matter? Does it matter at all?

So good question. First of all, when I saw that this morning, my first reaction was, oh God, poor Steve Scully and Kristen Welker, the two future moderators of those debates who have been no doubt preparing and doing mock debates and all of this time and hours spent that is now for not potentially. But look, Trump wants to always build up in a reality TV style to any event. And so what's a great way to get people to tune into the debate, say the debate's not going to happen, and then have people wondering if the debate's going to happen. And then at the last minute, the debate's happening and everyone wants to know how that's going to go down. So I would not count the debate totally out at this point. That being said, the president had some problems for the next debate. One, these videos that he's been putting out have been produced by the White House, and they can do multiple takes, they can edit it. And so if he coughs, for instance,

no problem. They just do another take or edit that out. You can't do that in a debate. And so there was always this lingering, like, how is this going to work with a debate where he wants to say he's not at all sick if he has any sort of lingering problems? Then there's the virtual part. I don't know about you, David. I was not looking forward to a virtual debate. I mean, you and I do this over Zoom and I have the utmost respect for you, and I think vice versa. And we step on each other sometimes just because we're not in person. You don't have the sort of body language cues of how conversations normally work. What if, I mean, oh, God, a virtual debate.

Yeah. So it probably was not going to be a good format for him either. So you add the health issues potentially lingering with a format that is not going to be great. And yeah, I won't be shocked if it doesn't happen, but I'm also not convinced it won't happen. What do you think? Yeah, my biggest concern about the debate was simply going to be, is he actually going to be clear of coronavirus? And if he's clear of coronavirus, is he going to be clear of any lingering effects of coronavirus that would be visible? So, you know, there are people who get

over the virus, but because of lung damage or whatever complicating effects from the virus, they continue to cough or they have stamina issues. And so I've always thought that this next debate was very iffy. And it could very well be the case that the president knows that he might not be over it all the way or sufficiently to go ahead and debate for 90 straight minutes, which for him would be considering the image of strength that he's wanting to project compared to the image of weakness for Joe Biden, that would not be good for him. virtual demand is kind of a good out for him because it gives him an opportunity to not participate without sort of showing lingering physical weakness. So that was actually my first thought. My first thought was it's kind of a gift to him in the sense that it just gives him more time to get better. In fact, in sort of a more rational political moment, that middle debate probably should have already been canceled. Just because most people, especially people who've had severe enough disease to for 90 minutes and do it without any real physical wear and tear. So it feels like that could kind of be a little bit of an out for him is one of my first thoughts.

a little bit of an out for him is one of my first thoughts. To your point, I had a friend who was one of the sort of early coronavirus contractors who ended up in the ICU. And so, you know, early meaning April. And he just now, I mean, this is a very athletically fit person, you know, just a couple of years older than I am. So young, we're going to call that young. Yeah, it's very, it's extremely young. Extremely young. And he just a couple of weeks ago was able to run a mile. Wow. Yeah. No, I keep hearing that. I mean, I've talked to people who five weeks after the virus was supposedly over,

were having trouble going up two flights of stairs still. Five weeks after the virus was over where they don't have any positive tests for the virus at all, would have heart palpitations, would, their mind would wander. I mean, it's a serious, serious disease, but it doesn't affect everyone the same. So it's entirely possible that he could be fully, completely recovered by the middle of next week. I would say it's possible, but it doesn't strike me as super likely. And anybody who's ever done any kind of intense debate knows that it's actually kind of tiring. Oh, yeah. Physically tiring. Yeah, it's physically tiring. I've done a few of them in the last year or so. And you really are, you're the mental energy required to stay on top of your game the whole way through.

It's actually tiring. So, I don't know. It feels like it could be kind of a gift to him and probably something that should have been done from from the moment he went to the hospital um but politically speaking what's so odd is you know how the things he has said and how he has been behaving over the last 48 72 hours has been politically somewhat baffling like the idea that you want to hold a rally instead of going to this debate uh canceling the coronavirus talks which are now kind of back on tons of tweeting about russia and the largest political scandal in history in his tweets

indictments are coming all this stuff. His base is with him. There's just no sense that he's trying to turn out voters who maybe don't like him, maybe think he's erratic, but really don't like Biden. And there's just no effort to get those people on board whatsoever.

Yeah, it just seems like there's no effort to arrest or stop the momentum of their race. There's no tactical change. There's no message change. And you sort of know, you always know it, but when he retreats to sort of the talking points that have been dominating primetime Fox or MAGA Twitter for the last few years, which is Russia. Russia is his safe space. And there sort of seems to be this desperate desire that the Comey letter of 2020 would be a Durham indictment. That seems to be perhaps the thought. Is that the hope? Is it sort of that thing? Because, you know, for those few listeners who don't remember, October 2016 was a wild month. It had the Access Hollywood tape.

It had WikiLeaks document dumps. And it had the Comey letter reopening the Hillary Clinton email investigation that occurred after the Access Hollywood tape, which was probably the thing that in an election that close was sort of like the last straw that cost Hillary the election. And perhaps they're thinking that a Durham indictment is the Comey letter? Is that the hope? I do not think it will have any effect on this race if it were to happen before the

election. Right. I mean, I think if you indict some FBI or CIA official who Americans haven't heard of outside of MAGA Twitter, I don't think that it's going to move the needle at all. Well, and imagine if they indicted, this is not going to happen. Imagine if they indicted Andy McCabe and Jim Comey and the whole FBI senior leadership team. I think it would have the reverse effect. Oh, totally. Totally. It would be seen as total politicization of the DOJ. So there's no world coming out of the Durham report that actually changes the dynamics of this race in a meaningful way. Not to mention that the number of people who have voted this

point is so many magnitudes greater than this point in 2016. They're going to run out of voters here in just a couple of weeks in terms of the tipping point needed probably to win this election. just a couple weeks in terms of the tipping point needed probably to win this election. Right. Yeah, that is interesting. I think, you know, by what we should, it would be interesting for us by, I would say, another week, two weeks to try to quantify this for listeners. How many people, what is the data that we have as to who, how many people have voted? What's the data available as to how many are Democrats, how many are Republicans, or how many are independents. In Florida, for example, it's really clear that as of right now, Joe Biden is banking a giant pile of Democratic votes. Now, that doesn't mean they can't be swamped by Republicans showing up in person.

It's not banking such a large lead that they can't swamp it with in-person voting. But it's very clear that right now, if this is sort of halfway through the first quarter of an NBA basketball game, Joe Biden has like a 10-point lead with a lot of game left to play. At this point, we have over 5 million Americans who have already voted.

And I don't know about your world, but like I have been surprised, I've only talked to whatever it is, uh, you know, I've seen rather, uh, you know, a dozen people or so. Um, and several had already voted. I was stunned. Uh, and our numbers right now in Gallup are saying 62% of democratic voters plan to vote early compared to only 28% of Republican voters. So you take that 5 million and you can assume that it's a pretty heavy Democratic advantage heading into the vote early. Then it matters when you count the votes. Florida,

of course, will start counting next week and Pennsylvania won't. So, you know, banking the votes, oddly, I would count Florida's early votes as banked in terms of what we will know an election night and pennsylvania is not but like this is in terms of changing people's minds or getting them motivated or you know they say the best way uh the best predictor of voting behavior is that that person has a plan of how to vote. They know where they're going to vote. They know when they're going to vote. You know, it takes time to form that plan a little bit. So anyway, I just, I don't know what's going to change the trajectory of this race in the next four weeks. No doubt there will be some massive news events, but that's different than trajectory changing events. Right. That's different from

the sweepers in the curling ring, figuring how to sweep harder or sweep less. Oh, man. Are we moving to the vice presidential debate? Did one happen yesterday? Yeah. So I made this. We had several sports analogies. So I made this, we had several sports analogies. You had a football one. I had a basketball one. And I put my basketball one on Twitter. And our friend of the pod,

the coach of the USA men's curling team, translated my basketball metaphor into a curling metaphor, which just slayed me. It made me so happy. I can't even tell you. So this was my metaphor. And then I think we should do your metaphor. So in the last 60 seconds of a basketball game where one team is up by six points, where one team is up by six points, the team that is winning, you can tell when they have the ball

is like, whatever we do, do not, do not foul the other team. The last thing we want to do is give them the ball or let them take free throws. If they have the ball, we'd rather miss our own shots or even let them make a shot

than get that foul. And so you, in some sense, lose the battle of that possession in order to win the war of the score of the game. That, to me, was the vice presidential debate last night. Kamala Harris,

who is known for, you know, shivs and arrows and whatever other war metaphor you want to use, zingers, held back last night, I thought. And she missed some opportunities. And I didn't think she was as focused and as policy-oriented and as angry and as hard as she could have been on Pence. And some people are saying, well, that shows that she was a weak debater last night. No, no, they're up by seven. They don't want to foul. They don't want to gin up enthusiasm on the Republican side. And so, yeah, they were willing to quasi lose this battle or have a tie,

a draw, whatever, versus risking giving Pence free throws and Trump free throws. And so when you're up by seven, yeah, you don't throw sharp elbows. You don't really get in to draw those charging, you know, whatever. So anyway... Draw those charging whatever. Those charging fouls, etc. So that's what I think of that. So that's what I think of that. I think you're spot on. I mean, my comparison was to the prevent defense in football where maybe you're rushing two, three linemen,

and you've got your linebackers are back in coverage. You've got your secondary way back. And you're going to let them complete those sort of dinky passes down the middle. And the quarterback who comes in in garbage time and, you know, complete some of those passes down the middle looks pretty good. Look at that, you know, five yard gain here, seven yard gain there. But the goal is to prevent the big gain. And I felt like that the whole time. I felt like I was watching her playing that prevent defense. And I think your basketball analogy is spot on. Slow down, avoid fouling at all costs, extend your possession.

I mean, it was very much a do no harm strategy. And I also think it was a strategy that was her biggest audience. her it's her biggest audience um and i think there was a lot to be said for a strategy that doesn't turn her into sort of an attack dog uh you know because a lot of the biden strategy is right to be we're not gonna be that we are we're a change we're a difference. And so the whole VP debate was actually a massive change in tone. Just massive change in tone. Because Pence's whole role on the campaign is to make people, especially evangelical voters who are very queasy about Trump, feel okay. Because if Pence is okay

and look at that gentleman, Mike Pence, he's there, he's part of this whole thing. That's his whole role. If he was a big attack dog, he would be essentially removing his reason for being on the ticket. Because there is but one alpha attack dog on that ticket.

So I think they both did exactly what they wanted to do. Pence gave the Trump team a good night. Harris gave the Biden team the sort of, you know, holding action, prevent, you know, played the defense that she needed to play. and played the defense that she needed to play. And the race goes on until the morning when Trump calls into office. And for those who are curious what the curling analogy is from Coach Phil, for those of you looking to put my analogy into curling terms, Kamala Harris ran the VP out of stones tonight.

Oh. I think that's like, yeah. I'm not totally sure. Kamala Harris ran the VP out of stones tonight. Oh. I think that's like, yeah. I'm not totally sure. Another, by the way, fun, you know, correction that I received this week, by the way, David. A little off topic. Can we go on a little cul-de-sac here? Sure.

Yesterday on the Dispatch podcast, I asked who you would each put on a stamp and i said that i would put octopuses on a stamp and jonah last night also mentioned octopi and i corrected him and said octopuses and we received an email from a listener thank you joe and we received an email from a listener thank you joe who noted that the reason that octopi is wrong and the reason that i corrected jonah was because octopus is not a latin word and therefore the plural is not octopi you would have to latinize it and then octopi it and that's silly so i use octopuses because that is the Englishization of the Greek word. But this person pointed out that if you really wanted to do it correctly, you would do plural in Greek, which looks like the word octopode, but is actually pronounced, wait, I get it wrong, octopodes octopodes octopodes is the technical plural

of octopus according to joe but also several online dictionaries including miriam's that i looked at now they are clear that you will sound like an ass if you use that in common parlance and no one will know what you're talking about miriam's in fact points out that octopodes rhymes with don't say that please you know that reminds me of some other like uh pronunciations that immediately sort of make you sound like a jerk when you do them including Yeah. Including some when you're talking about, like you're just talking in normal standard American English and then you get to, you know, you're talking about the way in which you pronounce some countries.

So let's say I went on vacation in Nicaragua. Yes, yes. There's the most amazing SNL skit ever where Jimmy Smits does that. And he's like a local news broadcaster. And so they're having regular conversations like off air. And every single time he gets to a word like that, he like over pronounces it. He's like, what are you thinking for lunch? I don't know. Inshallah. but that was the thing i remember back back in the 80s you had you know everyone's watching the same the same uh three one of the same three broadcast news outlets and you would always have someone coming coming to you live from managua nicaragua i mean i'm butchering the pronunciation. Anyway. Anyway, cul-de-sac. All right. So, bottom line, the race rolls on after VP debate. And I'm looking right now at the 538 average.

It's really separating at this moment. A week ago, it was 8.2. One week ago, it was 7.6. Right now, it is 9.8 in the 538 average. We had those two polls that really had that big, big, double-digit, yawning stretch. I don't think that will hold. I don't think those will be the final results at all.

Polls are a lagging indicator also, so we're really seeing the results, sort of the Big Bang later type thing. We're seeing the results of the coronavirus and the debate still. And I think it'll tighten back up. So Sarah, I'm looking at the 538 average and in the polling.

And one week ago, the average was a plus 7.1 for Biden. Now the average as of today is a plus 9.8. And I'm going to read through the margin on the polls added today. Okay. Biden plus 11, plus 12, plus 11, plus 15, plus 18, plus 14, plus 13, plus 14. Yikes. Yeah. I think the lingering, first debate and the the effects of the first debate and the coronavirus news have now sort of washed through the public and this is what this is the impact i'm surprised i i am surprised that we're even seeing that much of a difference. I don't think it will last. I think those numbers will come back down. And I, but A, you never know.

And B, there could be something else that shifts in the news, which will mean we will never know whether the numbers would have come back down. Yes. And the state polling does look different than that. That is still the national polling. Although, as we've talked about before, if you have a, let's call it an 11 point tied

nationally, it's just going to be hard to then make the argument that, you know, Florida is tied. Yeah. Yeah. At that point, it doesn't seem credible. And to put that like the present, the 9.8 gap that we see right now, to put that in a historical context, you have to have a hard time seeing that holding. That we would be between a 1980 and

a 1984 scenario. That would really surprise me. Which we didn't even think was possible anymore, given the sort of negative partisanship and polarization that people were going to stick with their team no matter what. It would be kind of wild

to go back to the time when people were willing to switch teams, so to speak. And I could actually see the vice presidential debate bringing those numbers closer together, not because anyone was particularly swayed or impressed by the vice presidential debate, but it was almost a reminder to Republicans potentially about their team. Remember your team, remember the policy issues, because Pence, there was a lot of tone and demeanor things that I would critique him on. But substantively, it was a 2012 Republican playbook. Here are the issues we care about. Here's what we're going to do.

And so if you're a conservative voter who's been around a long time, you might have felt nostalgia for that and been like, well, you know what? Yeah, I can't. I can't not support this. But the problem will be, of course, that with four weeks left to go, we barely remember that debate from last night to day. Right. And, you know, I'll say this. And again, I completely agree with you. My prediction is that this thing tightens. But if it doesn't, if it doesn't, well, it's going to settle the argument

for once and for all as to whether Trump and Trumpism is the future of the Republican Party. Because if it's a loss between 80 and 84 levels, um, the GOP consensus is, only way that they're going to be that far off is if, in fact, Trump voters, not secret Trump voters, not that they're lying to pollsters, but that, in fact, pollsters are no longer able to reach Trump voters because Trump voters refuse to participate in what they see are fake polls, fake news, et cetera, then I think that will solidify Trumpism in the GOP.

Oh, for sure. I mean, if he comes back and wins, I mean, he is the alpha and the omega of the GOP. I mean, it would be a greater surprise than him winning in 2016 by some orders of magnitude. And the message to the polling industry would be, I would just do a tweet if Trump wins. I, David A. French hereby call for a total and complete shutdown of

the polling industry until we can figure out what is going on. Yeah. It would be a big problem for pollsters, but I don't think it's going to happen. I, yeah, I, I, I agree with you. But you know what? We're going to find out in less than four weeks. Woo-hoo! Will we? Will we? Will we? Well, that's good. Looking at you, Pennsylvania.

We're looking at you. Let's take a moment and thank our sponsor, Gabby Insurance. When you've had the same car insurance or homeowner's insurance for years, you get kind of trapped into paying your premiums and not thinking about it. That makes it really easy to overpay and not even realize it. I did that for a long time. I had the same car and homeowner's policy and realized I'd been overpaying for almost a decade. So this ad is important for you. Stop overpaying for car and homeowner's insurance. See about getting a lower rate for the exact same coverage you already have, thanks to Gabby.

Gabby takes the pain out of shopping for insurance by giving you an apples-to-apples comparison of your current coverage with 40 of the top insurance providers like Progressive, Nationwide, and Travelers. Just link your current insurance account, and in just minutes, you'll be able to see quotes for the exact same coverage you currently have. Gabby customers save $825 per year on average. If they can't find you savings like they have done for so many others, they'll let you know so you can relax knowing that you have the best rate out there and they'll never sell your info. So no annoying spam or robocalls. It's totally free to check your rate and there's no obligation. Take a few

minutes right now and stop overpaying on your car and home insurance. Go to Gabby.com slash advisory. That's G-A-B-I.com slash advisory. Gabby.com slash advisory. Well, let's talk about briefly about the Amy Coney Barrett hearings. They're going to start up on Monday, and this is going to be one of those events, brilliant mom of seven who had already shot to fame because Democrats unfairly attacked her religion. And my theory is that the Republicans are desperately hoping in some way that she's treated unfairly next week. And if the Democrats are smart, they will not treat her disrespectfully. They will complain about the process. They'll complain about the timing. They might have questions about her judicial philosophy.

But if they try to attack her, if these senators try to go after her personally, they have to know that will be rebroadcast and rebroadcast and rebroadcast to say, however bad you think Trump is, look at what they're like. And it would be political malpractice of the highest order if they go after her as a person. But this is where the individual incentives of senators diverge from the incentives of their party sometimes. Right. Now, I think in this time, because we are so close to an election and the Democrats are in the minority, that actually the incentives are more aligned than usual.

But an individual senator wants to make a name for themselves, wants to get headlines, wants to be the go-to guest for Sunday shows. That raises more money from national donors outside of your state. It puts you in leadership track if you are a name. Therefore, sometimes, you see senators, despite what the overall interests of the party are, just go bonker bananas. This, by the way, happens at both parties. This is not a Democrat-only thing by any means. They're just the ones that are in the hot seat for next week on this. So won't be shocked if one goes rogue. But again, because they want to get that majority back and because they can taste it,

it's within their grasp. I could see a little bit more discipline than usual. But you just wait. I bet someone thinks this is their moment to shine. But I don't think that person, by the way, will be Kamala Harris. To exactly the reasons we talked about for the debate. And if you think you're about to become vice president, your incentives are quite aligned. Do not change the trajectory of this race. Do not give them free throws when you're ahead. Yeah. I mean, if I'm Kamala Harris, I'm getting all of my colleagues on a Zoom call beforehand. Don't screw this up for me, guys. Exactly. I am reading them the riot act. And I'm saying, do you realize we're less by the time this starts, this is going to be rolling into three weeks before a pivotal election where not just the White House is at stake, but the Democrats have a real shot at taking the Senate. And they would be, well,

I mean, we've seen political malpractice all over the place before. And as you say, like the individual incentives of matter here a lot. But at the same time, it's very interesting to me, at least some of these, Amy Klobuchar is on the committee. They showed some discipline before and after the South Carolina primary, unlike anything that the Republicans showed in 2016. So there is maybe some party discipline there. But my prediction, Sarah, and I could be totally wrong, is my prediction is that they will spend their time complaining about the process

and then try to have as little Amy Coney Barrett TV time as possible. That'd be smart. That's my prediction. I have a feminist thought bubble. As my feminist ally, do you want to talk about some Amy Coney Barrett feminism hashtag brand?

Yeah, let's do it. Let's do it. So in her speech at the White House, the Rose Garden, the famous super spreader event now, she gave a good speech accepting the nomination. And in it, she talked about baking birthday cakes for her kids and being a mom. It is not unusual to see women in power mention their kids or that they're proud to be moms. But the emphasis was a little unusual and the Supreme Courtiness juxtaposition to that was a little unusual. Because I think we generally think of judges and what we want from judges as these very stoic, serious, you know, to the extent you have a personal life, it almost feels sort of faux as if you're just having the personal life to show that you're also human, but we don't want

you to be that human. And so it was really interesting. I don't think I've seen another speech like that recently. And I was talking to a friend who mentioned that for her, this was really inspiring. She's a partner at a law firm. And she says when she needs to get off a client call, for instance, or a conference call, because she needs to get to her son's soccer game or whatever it is, she often just says, oh, hey guys, I need to drop off, which is totally professional, totally acceptable. But she says she very intentionally doesn't ever say

why she needs to get off the phone because she doesn't want it to be seen as a weakness that she's a mother who's involved in her kids' lives, even though she stays up till 2 a.m. working so that she can have dinner with her kids, do bedtime, and then she starts working after they go to sleep and she said that that speech for her really inspired her to rethink that and that maybe she does want to start telling people like hey guys it's you know bath time dinner time over here i'll be back online at 10 p.m see you later not only to her fellow partners but so that the associates see that as

well and that you not only can have a life as a mother, but also that you should and that it's fulfilling and that just being a partner at a law firm is not her only thing in life and it is not fulfilling enough for her. She enjoys her kids, thankfully. And that's going to be interesting at the hearing, whether I think that brand of feminism comes through and how it is received, because I think it will be received very differently in the media than it will be to, for instance, a high-powered female partner at a law firm who doesn't live on the coast? You know, I know quite a few conservative women who look at Amy Coney Barrett as a very impactful and meaningful role model for them, as somebody who has achieved at the top

of her profession and maintained a commitment to traditional religious values and has a large family. And she has a connection in sort of that section of the conservative Christian world that pays attention to judges, that section of the culture. She has a real connection there. But I have a question for you. It's really interesting to me because for a long time, there was a critique of feminism from conservative women that says, feminists, you are fooling women because you're telling women you can have it all.

Yep. That you can have the great career and the great family. So you're fooling women. You're telling them something that they can't have, and you're putting an unacceptable burden on them. You're going to have to at some point choose. Doesn't Amy Coney Barrett Elevation send a different message that, hey, wait a minute, you can have it all. Seven kids, a great marriage, and a seat on the Supreme Court of the United States. Isn't that about as having it all

as you can concoct on this earth? Well, look, that's like saying to you, like, doesn't Tom Brady make it look like you can have it all? Like, you're not sitting there watching Tom Brady throwing touchdowns and thinking like, well, if I just put my nose to the grindstone and managed my time a little better, I too could be Tom Brady. So I don't look at Amy Coney Barrett and think, boy, I've been

selling myself short. If I just pulled it together and really looked at some recipes, I too could make birthday cakes for seven children while being elevated to the Supreme Court. No, I'm not Tom Brady and I'm not Amy Coney Barrett. Sarah, if you not in three years from now, you're not on the Sixth Circuit Court of Appeals with three children, I'm going to be very disappointed in you. Not on track. Not on track. On that though, I got some interesting advice from some women along the way on that front, because it is a hard, like work-life balance is something that lawyers, particularly when I was going through law school, just, you know, it was all just being hammered in like work-life balance.

Does your law firm support work-life balance and yada, yada. Um, but I have found this so true in my own life, partly because of what I do in campaigns. Um, you know, and yada, yada. And I have found this so true in my own life, partly because of what I do in campaigns. And I've talked about that lifestyle that you work incredibly hard for 18 months and then you sleep for six months. And so it really resonated with me when someone said this, which is it's not work-life balance hour to hour or even day to day. It's work-life balance in chapters of your lives. And there's going to be times where you're putting more of your time and energy and thought and concentration on your career. And there's going to be chapters where you're putting a lot more of it on your family. And that's not going to be between 9 a.m. and 1 p.m. that those are going to switch all the time.

And that's okay. And you give yourself permission knowing that the next chapter is going to come. And I found that to be really comforting advice from some women who really have, to me, look like they have it all, to hear them say like, no, no, no, I don't have it all at once. I have it here and then I have that there. And it moves and it changes and it shifts. And that was super awesome. And I wonder if Judge Barrett would say something similar. And also, you know, to carry our sports analogy, LeBron James needs his Anthony Davis. Yes.

Steph needs his Clay. And I think that, you know, if you were going to talk to them and put them on like truth serum, they would say, this happened because we have a uniquely good and cooperative marriage in a way that, you know, a lot of marriages,

for lots of reasons that are not, say, the fault of one or the other. Say somebody has health issues. It can still be good marriages, by the way. Still be good marriages. But, you know, I like your Tom Brady analogy. We're on a sports role. Yeah, we are. On this podcast, by the way. So, you know, it's not just sort of the Tom Brady of legal talent and the Tom Brady of momming talent. It's like the, I don't know, I don't know how good Tom Brady and Giselle's marriage is. It seems pretty good. Whatever. From the outside, it seems good. Yeah. There's this combination here that where all of the pieces sort of seem to fit,

that they would probably look at it and say, look, guys, we're just ridiculously blessed. Like we're really, really blessed. And, and you shouldn't look at the fact that I'm going to be on the Supreme court with seven children with a good marriage and say, yeah, this is the path. This is the path. You know, another part that even though it is inspiring, another part that's worth mentioning is, uh, you know, oh, well, Amy Coney Barrett, that is the correct feminism. And Ruth Bader Ginsburg is the incorrect feminism or even Elena Kagan. I think that's untrue also. I don't think you get an Amy Coney Barrett without a Ruth Bader Ginsburg.

You had to have women who I think did not get the opportunity to have work-life balance in chapters or hours or anything else. Because they did have to prove that they could work and not put their family first frankly um and could put work first when it was required of them every time it was required of them so that the rest of us me and amy coney barrett included could then bring back the family part and that balance and some things that bring us joy. And it opened up the world a lot more to a lot more women because they walked through that door first. So I just want to make clear that Amy Coney Barrett is the beneficiary and I am the beneficiary of all these women who sacrificed a whole lot to show that a career was even possible for a woman, let alone a family and a career.

Well, and I have a very successful wife. Nancy has written multiple New York Times bestselling books. And sometimes what you do when your wife's career is on an upward trajectory, and she's got to really invest time in it, is you say, okay, I'm canceling some of my travel. I am pulling back and I'm going to be the one that is picking the kids up at school at three. I'm going to be the one who's taking the kids to all the practices. And you go, you do what you need to do.

And it's just like this give and take. It's this, you know, and then there are times where like she would have to say, I'm going to have to delay starting on this project because I'm having to go all over the place. Do you remember back in the days when people would go all over the place, Sarah? No. I don't either. Yesterday, Scott came to me with just the enthusiasm of a puppy and said, do you want to go for a car ride to get my emissions tested? And I said, is this a metaphor? And he said, no. Virginia has put out emissions boxes so that you can do contactless emissions testing if you drive by the emissions box. And so we were thrilled to go out to drive approximately three miles from our house

to said emissions box. And then David, I'm going to tell you something crazy we did on the way back. We stopped by the UPS store to drop off an Amazon return. Whoa, man. Yeah. So that was a big outing. Yeah. Yeah. That's, that's a lot Yeah, yeah. That's a lot for one day. That's a lot. Don't worry. I didn't put on real pants or anything. No hard pants on a Wednesday. So can I tell you why I think the Democrats would be crazy to,

or the Biden-Harris campaign would be politically crazy to come out on a definitive position on court packing one way or the other right now. Yes. And then you can tell me what's the matter with Texas. Yes. If we have enough time for you to really go into all of that. So I totally get that Republicans want to pin Biden down on this, on the court packing question. And because they know that if the electoral, the one clear electoral wrong answer, well, let me put it this way. If he says no, that does two things. One, it's dispiriting to some aspect of his base. things. One, it's dispiriting to some aspect of his base. Will they still turn out? Yeah, but will he endure a wave of internal dissent that, frankly, you don't really want to have to deal with in the run-up to an election? Yeah. Will you then totally vindicate the McConnell

strategy? Yes. You would energize Republicans to say, we totally did the right thing. This push to nominate and confirm Amy Coney Barrett was exactly right. See, we called their bluff. It will energize Republicans. It would be dispiriting to some part of the Democratic base. If he flips it around and says, heck yeah, I'm going to court PAC. Well, it might energize the Democratic base, but you know who it's going to energize as well? Some Republicans who might otherwise be wavering. It's going to lend

credence to one of the principal Republican attacks on Biden that says, oh, he's really a wolf. He's a radical wolf in sheep's clothing. So what does he do? He goes with strategic ambiguity. And it has, in my own view, is if you're whining to not just win the election, but also have some influence over the court going forward, over the court going forward, strategic ambiguity is the way to go. It is to hold the possibility of court packing over the court's head, like the sword of Damocles, and sort of have this kind of unspoken little threat,

like nice little nine-person court you got there while you're thinking about an abortion case or while you're thinking about X or Y kind of Obamacare. Nice little nine-person court you got there. It'd be a shame if something happened to it. And history tells us that that can work. So that's what I thought. I think that Obama put the Supreme Court front and center in his election in the spring as the Obamacare case was, you know, being considered. And I think that it's hard not to say that that affected Roberts pretzel like twist to find that the individual mandate was a tax. Well, and I think Roberts has had, and now Roberts is going to be less important once Barrett is on the court, but I think Roberts has had one eye on the institutional reputation of is most likely to give it the narrowest scope if he thinks that that would help allay fears. Yeah. So my general thought is there are really, really good political reasons why Republicans want to pin down Biden one way or the other. And there are really good political reasons why Biden will refuse to be pinned down throughout the election.

And I think that's going to be the status quo until November 3rd is my thought. Absolutely true until November 3rd. Post-November 3rd, whether they will do it or not, you are missing one thing because actually those political considerations adhere post-election as well, maybe even more so. But for one problem, the Supreme Court will strike down a lot of Biden's actions as an unconstitutional use of executive power, as they did with Obama's. So that will... And Trump. And Trump.

And Trump. And that will increase the water temperature, if you will, to do something about this. or any number of administrative agency actions, especially as the court is leaning towards getting rid of Chevron or deference to administrative agencies, our or otherwise, they need that in order to get through a lot of their agenda items. So I think the pressure will actually continue to increase. I think they politically will continue

to not want to have their hand forced to do it. Certainly not to say that they're going to do it. But the question will be whether there is some tipping point, something that the court strikes down where they're like, nope, we can't abide that. Yeah. Yeah, that's the question. Now, let me ask you a Mitch McConnell nine-dimensional chess question.

Cocaine Mitch. Okay, here's my Mitch McConnell nine-dimensional chess question. Cocaine Mitch. So, okay, here's my Mitch McConnell nine-dimensional chess question. Last question before Texas. Let's assume for the sake of argument, certainly not certain, but let's assume Joe Biden wins and let's assume that the Democrats gain control of the Senate.

Neither one of those things, the die is not cast in either one of those things, but let's just assume. Joe Biden comes forward with a coronavirus stimulus package and his healthcare plan, his public option. Does Mitch filibuster or does he let these go to a vote? Oof. Because if he filibusters, I think the filibuster is just gone. It's just done. Does he let the first like one or two big items of the Biden agenda go to a vote and try to sort of hang on to that Senate institution as long as possible, at least till the next set of midterms and to preserve at least a theoretical ability to block.

Is that nine-dimensional chess or am I overthinking it? Or does he want them to be the ones to blow up the filibuster a la Harry Reid blowing up the judicial filibuster? Yeah. Hard to say. Yeah. Very well. So, you know, it's so funny, Sarah.

I think of, I feel like I just want the voting to end so we can like move on to the next fights. Don't worry. Because they're so. They'll come soon enough. I feel like that's what I say about the baby. Like, I just want him to be able to hold his own bottle. And people are like, okie dokie, be careful what you wish for. Yeah, exactly.

Yeah, as the dad of a senior in college, a sophomore in college, and a sixth grader, yeah, it happens fast, fast. It sure is nice that he can hold his head up, though. Like, you don't have to support his neck all the time. That opens up a whole world of being able to hold the baby while holding other things. That's nice. Yeah. And the feeling of decreasing fragility is very nice. Yes. Yeah. All right. Texas, what is happening to the most powerful attorney general

in red America? All right. So on October 3 3rd saturday we saw a letter that was publicly released that was dated october 1st which was thursday which references that the letter was in fact served on wednesday september 30th so i'm just laying out these dates but we got the letter publicly saturday Here's what the letter says. This letter is intended to serve as notice to the Office of the Attorney General that on September 30th, we, the undersigned individuals, reported to an appropriate law enforcement authority a potential violation of law committed by Attorney General Paxson, the Attorney General of Texas. We have a good faith belief that the Attorney General is violating federal and or state law, including prohibitions related to improper

influence, abusive office, bribery, and other potential criminal offenses. Each signatory below has knowledge of facts relevant to these potential offenses and has provided statements concerning those facts to the appropriate law enforcement authority. Who signed this letter? law enforcement authority. Who signed this letter? Glad you asked, David. It's basically the seven most senior people at the Texas Attorney General's office that are not named Ken Paxton, the Attorney General. It includes his first assistant, who resigned. It includes the Deputy Attorney General for Policy, the Deputy Attorney General for Civil Litigation, the Legal Counsel for policy, the deputy attorney general for civil litigation, the legal counsel for administration, deputy first assistant. This is hilariously bad. Hilariously bad. Hilariously bad. Worth noting, by the way, my husband was the solicitor general of Texas

when Ken Paxton was attorney general, but long gone since this. Also, one of the signatories of the letter, Ryan Vassar. Now, this is just a small world. He was my neighbor back in 2009, long, long before I think he even knew who Ken Paxton was. Okay. So all of us, you know, phones start blowing up for Texas legal eagles of what does this mean? This is obviously a huge deal to have your own senior staff turn state's evidence. I mean, movies don't have this happen. So a lot of pondering over the weekend. I mentioned it on Monday that we didn't quite know what was going on. Oh, but David, we know so much more on a Thursday. Oh my. Tell us, Sarah. So there's this guy and his name is Nate Paul. He is a real estate developer and he is a donor

to Ken Paxton. We know he's given $25,000 to Ken Paxton's campaign. His office was raided by federal authorities last year. Our understanding now is that Nate Paul did not like being raided by the FBI. He didn't. He didn't. He did not care for it, David.

Huge if true. And so, he claims that they did not show him the warrant. That's not okay. You do have to show the warrant. But of course, that's just his claim, that they didn't show him the warrant, that they somehow disabled his Wi-Fi while they were doing the search, which I'm not sure that's a problem at all,

that they disabled his security camera and maybe broke it, hard to say from the allegation, and that they detained him for 90 minutes before telling him that he was not being detained. So that would be a seizure, of course. Again, all allegations, all, by the way, things, David, I don't know if you've worked on many run of the mill criminal cases, but pretty normal things for a criminal defendant to say. They are normally considered frivolous without any other evidence because the FBI, they're pretty good at their jobs. Generally speaking, they do this all the time. So that'd be a pretty dumb screw up if they did it.

But don't worry, because oddly, and again, this is based on some news reports and some other things that we're piecing together. Ken Paxton goes with Nate Paul. So the Texas Attorney General goes with one of his donors to the Travis County, that's in Austin, the Travis County DA's office with these allegations. So that the Travis County DA will then send a referral for the Texas Attorney General to investigate this. so they also add in the public integrity unit, the Department of Public Safety, the State Securities Board, and all things that are under Ken Paxton's sort of purview, so that

Ken Paxton then signs a contract personally with a criminal defense lawyer, whose last name is Kamek, to be paid $300 an hour to investigate the criminal allegations made in the complaint and compile a report about any criminal charges that should be brought. Well, this is odd. Nobody else in the Attorney General's office appears to have known about this, so much so that then one of Ken Paxton's deputies sent a cease and desist letter to this private criminal defense attorney who had already gone out and gotten a bunch of subpoenas, I think 27 subpoenas. So he sent a cease and desist letter to the attorney saying, you have no authority to be saying that you represent the state of Texas. And in fact,

what you're doing may be unlawful. And he sent that letter to the federal magistrate to cancel, void those subpoenas that had been received by Kamek purporting to be working on behalf of the attorney general. Kamek, of course, is then like, I have a letter signed by the Texas attorney general personally, a secret letter that only Ken Paxton signed. This appears to be the precipitating cause of the letter of the seven folks saying Ken Paxton has abused his office. By the way, in case you were curious, this is not a independent counsel by any means that Ken Paxton assigned. This attorney reported directly to Ken Paxton about the investigation. No independence whatsoever, according to the authorizing letter that again, Ken Paxton typed up on his computer and just signed and handed over. Okay. Why is this all interesting if you don't live in

Texas? I mean, first of all, weird story, right? But the Supreme Court, if you remember Bob McDonald. Yep. The Supreme Court in former governor, Virginia, former governor, Virginia was arrested for bribery and very similar, at least stated allegations under the Hobbs Act, which is the federal way that you do this. And the Supreme Court overturned his conviction. And this has been used now since then on a lot of things. Men menendez that was his name right new jersey senator senator menendez yeah uh it now has become really hard to prosecute these guys these office holders for abuse of power and hobzack violations bribery etc and so there was like this wow the mcdonald case has kind of really allowed corruption public corruption at a whole nother scale.

if you're worried about McDonald and this level of corruption, if all of these allegations are true and we're assuming that there is actually some money or something else that changed hands, most likely beyond this $25,000 because in McDonald, there were two problems with McDonald's conviction. One, you had to show an official act and two, it, the official act had to involve um uh like a a specific

problem if you will so in mcdonald's case the supreme court more or less said uh an official act cannot include just arranging a phone call or a meeting and the specific matter can't just be economic development of Virginia or something like that. Right. But for instance, what would be an official act is investigating the FBI, the Department of Justice, the Office of Public Safety, a federal magistrate judge about a specific and criminal investigation that they're bringing against the guy who again we're assuming gave him money to do this uh nate paul by the way is worth just under a billion dollars so and just to put it into sort of super plainly for folks why why would it be so weird to

hire an outside counsel to investigate this federal action? Well, that just saying that out loud sounds a little weird. But remember, the attorney general of Texas commands a vast army of lawyers, hundreds and hundreds and hundreds of lawyers at his command in the attorney general's office. And so why, if this was so obviously an abuse of power by federal authorities in the state of Texas, is he not using his army of lawyers to investigate it? Instead, he's going out and doing a personal contract with another lawyer. That's highly unusual. He says in his statements that members of the attorney general's office

were trying to impede his investigation. It now appears that, and that's why he needed the counsel, but it now appears that that refers to them quashing those subpoenas by letting the judge know that this private attorney actually had no authority to act to get subpoenas on behalf of the state of Texas.

So really interesting post-McDonnell corruption case that we'll see. So far, Governor Abbott has said that he is seriously concerned or something, but the attorney general is elected separately as a statewide officer. So Ken Paxton has to resign or be removed from office, impeached. Right. And then he would be replaced by Abbott, but Abbott can't actually remove him. Well, and the other reason why this is important is because there's sort of a pattern that has emerged in recent years, and that is whenever a Democrat or Republican is in office, sort of the leader of the legal resistance against that president is going to be sort of the attorney general of the biggest state controlled by the opposing party because they have huge resources. They have lots of lawyers. So if you go back to the Obama era, the Texas attorney general became a quite potent force

in opposing Obama era regulations. And if you go to the present era, the California attorney general has just lobbed dozens of lawsuits against the Trump administration. And so what you're talking about here is, you know, arguably if Biden wins, the most powerful conservative legal officer in the land here is embroiled in scandal. Yeah. Yeah.

Just imploding. Really good point. Yeah, so it'll have political implications, definitely legal implications because of McDonald. And also just the sort of seedy scandal that makes for pretty decent headlines of this billionaire real estate developer who was on the verge of bankruptcy, getting raided by the FBI. And then all of a sudden showing up at the Travis County District Attorney's Office with the Texas Attorney General wanting to investigate the FBI, a federal magistrate,

the Department of Justice. I mean, weird. Sarah, your cynicism is just showing. You know full well that any resident of Texas who's a little bit worried about the terms of a search warrant can go and meet with the attorney general of the state and get a massive, a highly unusual investigation initiated. And get 27 subpoenas against, you know, information and documents from the FBI. Crazy. Have you not heard of an open door policy? I mean, come on. So that's our fun little legal scandal of the week.

Yeah. Well, we'll keep an eye on that for you listeners. And as we will keep an eye on all things of interest. And we will be back on Monday. We are going to probably push recording a little bit to get a flavor for the start of the Amy Coney Barrett hearings

and to give you our analysis. And I'm sure there is going to be about 19 different news cycles between now and then that we'll summarize and cover and weigh and analyze for you. So until then, thanks so much for listening.

This has been the Advisory Opinions Podcast, and we will see you next time.