Pod Save America - “51 and Done.”

Episode Date: December 8, 2022

Democrats will have 51 Senate seats after Raphael Warnock wins the final election of the 2022 midterms, Donald Trump racks up more losses and legal troubles, and Strict Scrutiny’s Kate Shaw joins to break down two major cases heard by the Supreme Court this week on gay rights and democracy. For a closed-captioned version of this episode, click here. For a transcript of this episode, please email [e-mail] and include the name of the podcast. 

Welcome to Pod Save America. I'm Jon Favreau. I'm Dan Pfeiffer. On today's show, Democrats will have 51 Senate seats after Raphael Warnock wins the final election of the 2022 midterms. Donald Trump racks up more losses and legal troubles. And strict scrutiny's Kate Shaw joins us to break down two major cases heard by the Supreme Court this week on gay rights and democracy. But first, Crooked Coffee's best-selling coffee accessory is back in stock. The cold brewer helps make cold brew coffee easy and affordable. Dan, what's so funny? And every order supports Register Her,

an organization working to register millions of women to vote. Head to crooked.com slash coffee to grab yours before they sell out again. I know you want to get some cold brewers for your family for Christmas, Dan. I know that's on your Christmas list. It absolutely is on my Christmas list. I am a Crooked Coffee subscriber. We love it in our house. It's great.

Well, fantastic. That's great to hear. That's great to hear. All right, let's get to the news. It's a good news day here. It's a great news day. Brittany Griner is coming home from Russia. That was great news. The House just passed a bill that will protect same-sex and interracial marriage and um georgia

senator rafael warnock this week won his fifth election in two years defeating republican herschel walker in a runoff by nearly three points, 51 to 48 percent, which means Democrats will not only hold but increase their Senate majority by one seat. An incredible accomplishment in a midterm where most voters disapproved of the president and the state of the economy. After the race was called, Senator Warnock delivered one of the best victory speeches I've heard in a long time. Here is a clip. And after a hard fought campaign or should I say campaigns? It is my honor to utter the four most powerful words ever spoken in a democracy. The people have spoken.

I am Georgia. I am an example and an iteration of its history, of its pain and its promise, of the brutality and the possibility. But because this is America, because we always have a path to make our country greater against against unspeakable odds. Here we stand together. Thank you, Georgia. What do you think, Dan? How did Warnock pull this off for the fifth time in two years? Four general elections, one primary. I mean, here's what I hope more than anything else. The man gets a vacation. I know.

He has been running for office for four straight years, facing the voters all the time, brutal attacks. Just I hope he has a nice, relaxing holiday. This is a very interesting result because it's what was expected on paper. This is what most of the pundits thought. It's what the polls predicted. The polls were, dare I say, correct again or correct-ish again. Even more correct, I think. I think the polls really nailed the runoff. But then you take a step back and you say, a Democrat won a Senate seat in Georgia in the first year of a president of his party's midterm. When inflation is high,

gas prices are high, and sentiments about the economy are down. That's an amazing feat. It's an absolutely amazing feat. And it says a lot about Raphael Warnock, which I know we'll talk about. It says a lot about the state of American politics. It says a lot about the mistakes the Republicans made. But he did it by building a coalition that included strong turnout from Democratic voters, a coalition that modeled the post-Trump Democratic coalition with incredibly strong results in the suburbs. And he did it by persuading a decent number of Republicans and Republican-leading independents who may have preferred Republicans to be in charge of Congress, but did not think that Hersel Walker was a person for that job. Yeah. So NBC News did a story on how

Warnock won where they interviewed his campaign manager and his deputy campaign manager. The deputy campaign manager said that we did this by creating a permission structure for soft Republicans, swing voters, and independents to support Reverend Warnock. It was key to our strategy and it was why we highlighted things like working with Ted Cruz or standing up for peanut farmers. We asked him about the Ted Cruz thing when he was on the pod a month ago. His campaign manager said there could have been other campaign operatives or another campaign that could have said, okay, Herschel Walker has all this baggage, so we're just going to run to the left and just try to turn out as many of our voters and just let Republicans eat their own.

We didn't do that. I thought that was interesting because the two people that helped run the campaign and devise the strategy were very specific in crediting the victory to making sure that Reverend Warnock and their campaign appealed to the broadest possible coalition. appealed to the broadest possible coalition. And sure enough, that's what they did. They got a lot of sort of Republican-leaning voters, voters who in other races in the past and in this cycle voted for Republicans for other statewide offices and yet decided to vote for Raphael Warnock for Senate. I mean, it's incredibly impressive. And their strategy is obviously dictated by the math of the state. You absolutely need – that's the only way you can win. It's how Biden won in 2020. It is how John Ossoff and Raphael Warnock won in 2021, I guess, when is a replicable strategy for Democrats running in purple states going forward, is that Warnock was able to appeal to moderate Republicans without compromising his principles. He didn't adopt mushy middle centrism or performative attacks on Democrats or looking for ways to show himself to be an opponent of President Biden. He did it by being broadly appealing, suggesting that he was willing to work with people he disagreed with without changing his views, and did it in a way that was very authentic to himself and to the state. This seems very a real, like, this is all,

this seems very basic, but not enough people do this. And he did it incredibly well. Well, I remember you and I, after the Obama PSA interview, we're sitting around, it was the night of the debate between Walker and Warnock, and we didn't watch the debate because we had done the interview, but we were looking online at the- Because we'd done the interview, it was so funny. We had done some work that day and we didn't watch the debate because we had done the interview but we were looking online at the because we've done the interview was so funny we had done some work

that day we were out yeah look it doesn't usually happen usually we're just we were in a we were in a book party for our friend cody keenan that's what that's right yeah yeah but we were watching the twitter reaction for the debate because because yeah that's you and i just we had a hard day's work we sat down we ordered a drink at the bar and then we uh started looking at our twitter but there was all this online angst that warnock didn't hit walker hard enough during the debate that he didn't attack more that he that he missed all these opportunities he should have been a more of a fighter he's letting the whole thing slip away later in the campaign, there was some

angst that he didn't spend enough time talking about abortion or running ads about abortion, even though he said clearly he's pro-choice and would have voted to codify Roe if Democrats got the House back. And it just turns out that all of that angst was wrong. And Warnock and his campaign were right. Their strategy was correct. There is one thing that is true, and Warnock and his campaign were right. Their strategy was correct. There is one thing that is true, and Warnock's campaign was clearly very aware of this and navigated very carefully, is that there are strategies available to white male candidates. They're not available to candidates of color or women candidates. And this is something that Obama had to deal with in all of his races. Yeah, I was going to say, we dealt with this in 2008. The attacks are interpreted by the press and the electorate differently when they come

from women or candidates of color. And so when people say, well, why can't he be like Tim Ryan when Tim Ryan is just flailing J.D. Vance? And put aside the result of that campaign, because I don't think it has anything to do with debate strategies, because that would be treated very differently for Raphael Warnock than it would Tim Ryan or even a John Fetterman. And that's a very important thing that I think not enough people who observe politics pay attention to. I also would not underestimate the appeal in Georgia of running as the pastor of Martin Luther King's church.

Oh, really? You wouldn't underestimate that? It was just something that's not like talked. It's like, you know, that's a pretty big deal in Georgia. And I think that makes you broadly appealing in a way that other Democrats may have been sort of, you know, put in a box as your traditional democratic partisan. Like when you are the pastor of Martin Luther King's church, it sort of rises above just your own base, and especially in a state like Georgia. Yeah. And it makes his personal story and being a pastor gave him outsider credentials at a time in which people hate politics. I think it probably also made it, and this also has to do with his

personal demeanor and his style in the campaign trail – made it harder for Republicans to paint him as an extremist, to use the same strategies that they used against Mandela Barnes to use against Raphael Warnock. Now, these are two very different states, two very different opponents, but he – his personal story, I think, and his personal demeanor insulated him from some of those attacks or allowed him to navigate them in a way that maybe other candidates could not. Well, I also think he had some practice navigating them a couple years ago. Because he's had to run for office nonstop for half a decade. Right.

Yes. And that's why they had all those ads at the beginning as far back as 2020 of like, yeah, he's the pastor of Martin Luther King's church, who's also, you insulin ended up being included in the Inflation Reduction Act, which is probably one of the most popular provisions in the bill. So, yeah, he knew what he was doing. Now, on the other side of this, how much of this outcome was about Herschel Walker and or Donald Trump. I saw a lot of Georgia Republicans point out correctly that their party won every other statewide race, but this one. The answer is both. They are correct. Herschel Walker was a terrible candidate who did less well than all the other statewide Republicans. This was a year that Republicans should have won, and they won the governor's race, they won the attorney general's race, they won the secretary of state's race. Republican House candidates did well on the state. But here's the thing that I think is really interesting, is the results of this election

are almost exactly the same as the results of the runoff that happened on January 5th, 2021. And that's an important thing to remember because in that election, Warnock was not running against Hershel Walker. That election took place before the January 6th insurrection, took place before Trump's second impeachment, before inflation came, before gas prices went up, before Russia invaded Ukraine. I mean, we've had a decade's worth of news in these two years, pandemic spikes, vaccines, all of that. And yet the results are almost exactly the same. Not a single county flipped from the 2021 to 2022 in these results. And that is sort of mind boggling. It speaks to the thing that you're,

that Lynn Vavrick, who you had on offline, the put called calcified politics is that everything happened in this race looks almost exactly like one that happened with a different opponent, not a great opponent, but certainly someone better than Herschel Walker, and you get the same result. And that's just something that says something about the state of our politics. And I think the key point about calcification, which is and Lynn was on offline, She's been on the wilderness before they did 500,000, regardless of what the polls said ahead of each election or the narrative, they all ended up being extremely close elections where there wasn't much movement between them. Now, before 2016, you had all kinds of changes, right? Like I had Steve Kornacki had a chart up on Twitter and on MSNBC just showing how many counties in Georgia has swung towards the Democrats over the last decade or so.

But once you hit 2016, the changes are in the maps that you just referenced, the 2021-2022 maps, no counties flipped. You could see some of the blue counties get slightly bluer. Some of the bluest counties get slightly bluer. And then some of the reddest counties get slightly redder. And that's about it. So you get the polarization continues in all these counties. The red gets redder, blue gets bluer. But really nothing else much happens. So I think for all the Walker stuff, like there are look, there are swing voters. There are split ticket voters. Persuasion is probably made all the difference in this election. But that is happening among a shrinking slice of voters. It doesn't mean it's any less

important. It actually means it's more important because it's so close and so closely divided. But so many of these elections just start from a base where people are just doing the same thing they did for the last several years. The interesting thing about calcification is most people look at the fact that politics has been stuck and that nothing has changed things dramatically, not a pandemic, not Trump, not impeachment, not insurrection. And they say, lol, nothing matters. But that's the opposite of the truth. Calcification means everything matters because there's a small segment of voters, either people who are moving from party to party or more likely people are moving from not voting to voting. And in that sense, that should tell us that everything matters. Every single thing we do, everything we say, every single voter we talk to could be the difference. Remember, Biden only won the state by less than a percent in 2020. One other thing about this that I think is just notable about this result is I think after 2020,

there was a question about whether the 2020 result in Georgia was an aberration. In 2008, Obama won three Republican states, Indiana, North Carolina, Virginia. And Indiana went right back to being super Republican. In fact, it's now much more Republican in 2022 than it was in 2008. North Carolina, Democrats have not won a federal statewide race there since then. It has remained competitive, but not that competitive since then. And Virginia became a truly purple state leading blue, where Democrats have won every presidential race since then, most of the governorships, and have both Senate seats. I think it's fair to say that we now know because of the 2022 results

that Georgia is a purple state, that it is going to be a battleground state. It's probably, I would say it's probably between Virginia and North Carolina. It's probably Virginia 2012. Virginia 2012 was quite competitive up until the very end. People thought we were probably going to lose it. What I think is in that Steve Kornacki chart you talked about, this is a really interesting stat, that the 10 counties that make up the metro Atlanta area have moved 42 points in the Democrats' direction since 2004. And that is emblematic of the shift in our electoral coalitions.

Much of that change has happened since 2016. And that is why Georgia is now a battleground state. But what is interesting about it is that shift where you are essentially trading suburban voters for rural voters is great for a state like Georgia. It's very good for a state like Arizona. It may be helpful in Texas one day. But nationally, that is a problem because this nation does not look like Georgia in terms of rural versus suburban. And because of the Electoral College and the Senate, the voters that we are losing are actually much more politically impactful than the ones we're gaining. Yeah, well, it depends on the state because we have talked a lot about sort of demographic groups of voters. But the geography is probably more telling than anything else. is probably more telling than anything else. And states with large population centers, Atlanta, the Phoenix metro area,

especially large population centers that are growing, that are getting younger, that more college-educated voters are moving from other states to live there. This is across the Sunbelt, like you said, Texas as well. Those states are going to end up that trade between suburban uh and rural is going to be better for us but in states without large population centers like wisconsin it's a little tougher um and i think that's the big difference i also think it's why like michigan for example sort of bounced back faster than

wisconsin did for us because you've got det Detroit and the suburbs around Detroit that have been good for us. So but I do think, look, I think the large the question hanging over all of this, which we're going to talk about in a second, is how much Trump has to do with all of this. Because the other interesting stat was that Trump endorsed a bunch of statewide candidates in Georgia. All of them lost their primary, except for two. One was Herschel Walker, and the other was the lieutenant governor candidate who ran worse than anyone else, but Herschel Walker. So like, is this a Trump thing? If Trump's not on the ballot, what happens in these states? Is this sort of a Trump calcification era or not? That we're going to have to find out. And I also think on the back to the original question about walker like i think walker being such a dog shit candidate gave warnock the opportunity but

warnock still had to run a campaign to seize that opportunity like i think that if warnock wasn't the candidate that he was like it just it it wasn't automatic right that that anyone running against herschel walker was going to win really, really had to run a great campaign. So I don't know if this is a blessing or a curse for Warnock, but Political Playbook wrote that with his win, a Democratic political star was born. What's next for the senator? What would you advise him to do? Get a podcast. Please don't do that.

Ralphio Wardock is, he's awesome. He is, he is great. He has been on pod, save America like three times in the last six weeks. I mean, he would be very good at a podcast for that reason.

I hope he, you know, some people will be like, you should run for president. I have no idea if he should do that. We don't, I mean, I'm presuming Joe Biden's probably going to run.

It doesn't really matter. I just hope that he is out there speaking on behalf of our party as often as possible. You know, on the shows, do the Sunday shows, do cable, but just be out there. Why do you hate him so much? I thought you liked him. Congratulations on your reelection. Have brunch with Chuck Todd.

After you're done with Margaret Brennan and on your way to George. You know what, Raphael Warnock? Call me when you've done the full Ginsburg, all right? Sorry, and Jake. Sorry, Jake. Oh, George. We forgot one of them. No, I said you. Yeah, okay. Anywho, it doesn't matter.

I think he's great. I hope he is out there a lot. I think he is a model for Democrats, particularly Democrats running in the South. He is a very compelling messenger. We need more compelling messengers delivering the message more often. I think he is great. Yeah, I'd get out there, start giving speeches nationally and think about running for president in 2028. That's what I would do. And I think that he hasn't been out there as much over the last couple of years just because he knew this election was coming and he's been in campaign mode. And the most important thing was to win the state of Georgia and all the elections that he had to

win there, which is more than most people do in the Senate. But now that he's got six years, I think now it's time to sort of raise his national profile. And I don't just say that for like for his sake, but like you said, he is a fantastic speaker and he knows how to win in a very, very competitive state without sacrificing any of his principles, values or policy positions. So and that is rare in this party. And he should go out there and speak for the party as much as he can. So Walker conceded, Herschel Walker conceded, saying there's no excuses in life and I'm not going to make any excuses now because we put up one heck of a fight. So that means every major Republican candidate across the country, with the exception of Carrie Lake, has now conceded in a midterm where a lot of proud election deniers ran for office.

What do you make of that? Why do you think that happened? That Donald Trump is a unique form of sociopath. That Donald Trump is a unique form of sociopath. Yeah. But just to be able to, against all evidence, against all truth, to be able to claim an obvious lie and stick to it to the point that you could incite a violent insurrection is truly unique behavior. And it only works if you have the leader of the party pushing it. It hasn't even really worked for Carrie Lake. The people aren't rallying to her defense. It's not really getting a ton of attention. It only works with Trump, which it should give us some tiny measure

of comfort that only Trump does this in a truly dangerous way. But we should also remember that he is almost certainly going to be the Republican nominee and is a coin flip away from being president of the United States again. So the threat to democracy that existed before this election still exists in almost the exact same way as it did whether Hershel Walker and Blake Masters conceded or not. Yeah, it does seem like it was easier to embrace the big lie than create one of your own, the lesson I take. And that a lot of these folks, some of them are true crazies. But I think a lot of these folks embraced the big lie, maybe never really believe Trump's election denials, but knew that that was the only path to victory in the Republican Party, not to excuse

them. It's still horrific to do that. But I think that explains that when they lost, why they just conceded and sort of faded away as opposed to staying and to do what Carrie Lake is doing right now. Senate Democrats will now have 51 votes instead of 50. What will that change in a Congress where Republicans will also control the House? A couple of things. One, it means that Democrats have a true majority. In a 50-50 Senate, you have to negotiate with the Republicans on the organizing resolution. You have equal numbers on committees. Here, Democrats have a true majority. They can organize the Congress. They can set up the committees without having to deal with Mitch McConnell. That matters

a lot. And this, I think, gets lost because we have this view that's like, we're going to get two more anti-filibuster senators, and then we will never think of Joe Manchin and Kyrsten Sinema again. That did not happen, obviously. And even if we did do that, we don't have the House, so it's not like we could be passing a whole bunch of legislation that is subject to the filibuster. But what I think gets lost is that Manchin and Sinema are difficult, but they're often difficult for different reasons. is that Manchin and Sinema are difficult, but they're often difficult for different reasons. On the various iterations of the Build Back Better bill, there were lots of things that Joe Manchin was willing to do that Democrats love, like raise taxes on corporations that Kyrsten Sinema wouldn't do. On some climate stuff, there are things Kyrsten Sinema will do

that Manchin won't. Kyrsten Sinema will do things in terms of gun safety laws that Manchin won't. And now you only need one of the two of them if you're in a position. And that may not end up mattering in legislation because obviously we don't have the House. But in terms of nominees, the fact that we can now lose one matters a lot. It's going to make Joe Biden's life easier. It's going to make Chuck Schumer's life easier. Frankly, going to make our lives easier, which is not for nothing. And it's going to make your listening easier because we won't spend the next two years

talking about Joe Manchin all the time. Yeah, like you don't like that and the downloads prove it. We don't like doing it. No one is going to look back at the Joe Manchin era fondly. Yes. Maybe Joe Manchin.

All right. Other big loser out of Georgia, as we've mentioned, Donald Trump. Trump's endorsement record for all statewide candidates. We talked about his record in Georgia. For all statewide candidates across the country in the midterms is now two wins, 14 losses. Not a great record. And still, still, Walker's loss was not the worst thing that happened to Trump on Tuesday. His company, the Trump Organization, was found guilty on 17 counts of tax fraud,

scheming to defraud, conspiracy, and falsifying business records. This is the case where Trump's chief financial officer, Allen Weisselberg, already pled guilty but refused to implicate Trump himself, though prosecutors did repeatedly tell the jurors that the former president personally approved the illegal scheme, something he, of course, denied in a series of truths. So, Dan, the penalty here is only about a million and a half dollars, though the manhattan da is reportedly still investigating trump now for the uh stormy daniels hush money payments how's that for a deep cut forgot i forgot about that one huh but do you think that uh trump running a business convicted

of fraud will become an issue in the 2024 campaign primary or general that's a tough question john i i think i'm i'm basically dancing around the prediction zone here so it's very it's very worrisome to start making predictions this close to new year's resolution time but i think it is more likely to be an issue in a primary than a general. We know from the 2020 election that there is a lot of things that nearly half of Americans are going to look past to elect a candidate they think is more aligned with their political or cultural interests, whether that is managing a pandemic, extorting Ukraine, just being a general doofus, all of the things that Trump did. Inciting an insurrection. You know, and is this that different than the Trump University case that happened right before the 2016 election? So I think, I don't know the fact that Donald Trump is a really sketchy business person is new information that's going to shift a ton of votes in a general election.

business person is new information that's going to shift a ton of votes in a general election. In a primary election, were there to be one, which as we should note, Trump currently has no primary opponents and is running unopposed for the Republican nomination, it is another piece of evidence that Donald Trump is a chaotic mess who could be a drag on the ticket. And that is not because all of a sudden Republican voters have developed real moral opposition to corporations stealing. It is – well, this will be – because another example that he could lose and it's a political weakness, a reminder of all of the bad behavior and just general nonsense that they believe cost them the Senate in this election and cost them the large House majority they thought they were going to have. This is a piece of evidence to that that could be utilized against him in a primary.

One of the great debates of the Trump era has been how to brand Trump, how to define Trump, right? There's a lot of targets. Is he extreme? Is he a lot of targets. Is he extreme? Is he a con man? Is he a liar? I do feel like over the last several weeks, month, the loser frame, a lot of people coalescing around that. Our party, the other party, never Trumpers,

newly never Trumpers, probably Trump, but not in the primary people. They're all sort of coalescing around the loser frame. And I think this you can, like you said, throw it into the loser bucket. And look, of course, Republicans aren't doing this out of some, you know, they didn't have some moral awakening here. But who cares? We saw the power of the electability argument on our side of the primary in 2020. I think it could have that same power, if not greater, on their side in 2024, if Trump gets opponents who will actually prosecute the case.

That is a big frickin' if, John. That is a big if. We also learned this week that the January 6th committee does plan to issue criminal referrals to the Justice Department. And CNN reporter Jamie Gangle said she's been told that Trump will be on the list of criminal referrals as well as some of his allies. The committee is reportedly targeting December 21st for the full report. We will see. We thought maybe we'd get some news before we were recording, but of course it'll come after. But anyway, it seems like he's going

to be on the list. We've talked a lot about how a referral from the committee wouldn't really affect DOJ's decision one way or the other. So what do you make of all this? Is this just going to be like a couple headlines and then that's it? And then we're just going to wait for DOJ? Basically, yes. I think we would see more headlines if the committee shut down without making criminal referrals than if they do make criminal referrals. So it's the right thing to do. He committed crimes. You did this very serious investigation. You spent a lot of time and effort successfully making the case of the country about this investigation. And if your conclusion is that Trump committed crimes, which it certainly seems like he did, you should tell some people that. And what you don't want to do is, I hope Jamie

Gangel is right. She is very wired up with Republicans of a certain era. She was the favored reporter of the Bush family. And so I imagine, I'm guessing that means she is familiar with a certain resistance hero related to a former Republican vice president. I think it would be problematic if your choices are no referrals, referrals for individuals not other than Trump or Trump. the worst case scenario there is referrals of people and not including Trump on the list because he will use that as a piece of evidence. I'll jump into the prediction zone in that one. That's not happening. Elijah, mark this. Mark this time.

I know. We don't keep these recordings, do they? This isn't on Snapchat? These don't keep these recordings, do we? This isn't on Snapchat? These don't go away? So anyway, here's our shrewd political analysis. Probably not good for Trump if he gets a criminal referral from the generation. Yeah, it's not. Once again, it's not changing lots of people's minds. But when you're drawing up the first few weeks of your campaign, this is not what you're thinking here. So here's how the team the

trump team planned the campaign kickoff one cost republicans the midterms two dine with nazis at your beach club three proposed terminating the constitution four cost republicans one last senate seat in georgia five roll out a series of convictions and criminal referrals six boom right back at the White House and the most depressing thing is from here like in a 48 for 48 to 49 percent chance that could work we don't know

I mean what do you think is this it could this be the beginning of the end or is just this just like the hundredth time that we've said that it might be a hundred is dramatically Iimating the number of times that has been said in political discourse. I don't know whether this is the beginning of the end or not. It does feel like there is a real shift and a real opportunity for someone, anyone, willing to step up and do something to defeat Trump in this – for a Republican to push Trump aside in this case because prior to this midterm election, I think all of Trump's

outrageous behavior, the crimes, the corruption were almost a reinforcement of his political strength as he would do this terrible stuff and suffer apparently no real consequences for it. He could have the Access Hollywood tape. He could attack the Gold Star families in 2016 and then win, and then get impeached, and side with Nazis, and side with Putin, do all these things, and then almost win in 2020. Then he incited a violent insurrection. Most of the party threw him aside. And then he rose back to power like in 12 minutes. And he had this political invincibility that Republicans, who had a real loser complex since losing to Obama twice, thought they were not capable of. But I think that has changed. I think it is clear to a lot of people that the emperor has no clothes,

that Trump is a liability, not an asset. Now, you're going to have to make that case. Someone is going to have to do that. But the opportunity is there. And that is different. All the other times where there was all these outrages about Trump, it was in the context of his surviving amid similar things. For the first time ever, there's real evidence that Trump is worse, is more politically weak than the rest of the Republicans. He gives them less of a chance to win than others. And that

is a problem for running for the nomination of a party that cares about political power above all else. Yeah. Again, if Trump is the party's nominee, all these people who are speaking out against him now are questioning him and the Republican Party. They're all going to fall in line. Most like 95 percent of them are all going to fall in line who are who aren't already never Trumpers. So we're not questioning that. But you're right. In a primary context, the number of people who are either calling him a loser or insinuating that he might be a loser is probably higher than it's been in quite some time. Of course, we have to wait till the first votes are cast in the first republican primary in 2024 uh to know because even if trump is at two percent in the polls most of next year uh the guy could still come back and and actually win some primaries and then win the nomination so like we

will have him for a year and not know for sure his actual strength or weakness until people start voting. But you've got like, you know, Cornyn, Thune in the Senate are like, I don't think we can win. And Lindsey Graham, his buddy the other day said, oh, he's still very popular in the party.

People appreciate his presidency. They appreciate his fighting spirit. But there's beginning to be a sense. Can he win? That's that's from Lindsay. Laura Ingram the other night started. She's turned on Trump, one of the big Republican media stars. So, look, I think it's I would put it this way.

I think it is time for all of us on the Democratic side to start defining Ron DeSantis for who he is, which is a right wing radical. I think there's time to start doing some work on Ron DeSantis for who he is, which is a right-wing radical. I think there's time to start doing some work on Ron DeSantis, just in case. For sure. Or someone else that could be, you know, Ron DeSantis, everyone should read Mark Leibovich's piece on Ron DeSantis in The Atlantic from a week or so ago, because it's very possible Ron DeSantis

is going to fall flat on his face because he seems to have the interpersonal skills of a banana slug, which does it in a personality-based media and political environment that doesn't seem great. Because you really can't run for president without speaking to other humans and seems to be something he – Trump has something resembling charisma for a lot of people and Ron DeSantis may have none. That'd be problematic. But there is a possibility. I think for the first time, Trump seems like a loser,

and that is the worst thing that can happen to him. Yeah, I agree. So do you think DeSantis or other potential 2024 hopefuls should be kicking the shit out of Trump right now? Or do you understand their strategy right now? I understand their individual strategic decisions, but much like 2016, the Republican Party, and all through the Trump presidency, the Republican Party has had a collective action problem when it comes to Trump. It is in all of their collective interests for Trump to go away, but is in none of their individual interests to be the one who tries to make Trump go away.

Because the first person who comes out against Trump is a sacrificial lamb. I completely understand why Ron DeSantis right now thinks it is in his interest to have meetings with donors, be in the background, be the generic alternative to Trump. But in making that individual decision for himself, an opportunity is being missed collectively to take advantage of this moment of weakness for Trump, to go after him before he can gather strength, to stop him from regaining momentum in the new year in some way, shape, or form. Were he to be indicted at some point early next year, you could see a situation in which he could turn that to his advantage, much like all the Republicans rallying to his side after the FBI visited his beach house to reclaim the nation's greatest secrets. So you need someone who is not a Romney, not a Cheney, not an Adam Kinzinger, not a Republican welcomed on the MSNBC primetime to make a case against Trump.

Understanding that that person is unlikely to be the nominee. And you're not going to do it through subtweeting and implicit criticism. Yeah, though I think that the implicit criticism thing, I think there's something else going on here, which is if you're going to win the Republican primary, there's Trump fans, there's the diehards who are just going to win the Republican primary, you like there's there's there's Trump fans. There's the diehards who are just going to vote for Trump and they're they're probably lost to you. But then there's probably a pool of Republican voters, probably a critical pool of Republican voters who like Donald Trump very much,

but are open to someone voting for someone else in the primary in 2024. to someone voting for someone else in the primary in 2024. And I, I think there's probably legitimate concern among the other Republican candidates that you don't want to piss those voters off by shitting on Trump all the time and taking too hard of a hit at Trump. I mean, we, there's a lot of things that are very, very different, but like we dealt with this with Hillary Clinton in 2008 and that primary and that very long primary, like we knew that there was a lot of people in the party who had very fond feelings towards Hillary Clinton, liked Hillary Clinton. And the reason that we, that most of Obama's criticism of Hillary was implicit throughout most of the primary is because we didn't want to piss those voters off and we wanted them to be open to voting for us. I think there are a couple of distinctions here that are important, which is the Republican primaries are winner take all. So you have to actually beat Trump. In a multi-candidate field, if he's winning with 18%, 19%, 21%, he's getting all the delegates. We could navigate that in 2008 against Hillary because if we came in second, we were netting

almost as many delegates as she did so we could get to more favorable territory. The Republican primary, I think, demands more aggressive earlier action. It doesn't mean that time is right now, but they're going to have a different strategic calculation if you were going to defeat Trump, depending on how many people run, if it is DeSantis v. Trump or some other Republican v. Trump in a one-on-one. But the exact argument you made about not pissing off their voters is the exact argument that the Jeb Bush super PAC used to spend $80 million or whatever it was not attacking Trump, going after Rubio instead of Trump and all of that and allowing him to gain strength. And so someone, it could be in this situation that

real people will spend real money. Trump is, I think, in some ways insulated against some of this stuff in a way that other candidates would not be because he has a fundraising base. He doesn't need endorsements. Even if all the billionaires line up behind Ron DeSantis, Trump probably needs less money because he is so good at getting media attention. Yeah. But I think the fair assessment here is that Trump is as weak as he has been since the immediate aftermath of January 6th. And we'll see if anyone learned the lessons about what happened after January 6th. Are you going to actually take aggressive action to try to stop him now? Or are you going to wait until it's too late?

He was a great president. Absolutely can't win this time. I think that's why they all land on the electability argument. Oh, for sure. He's popular still. It is the way to not piss off Trump voters,

but to really go after him hard on we need to win, we've been losing, and this guy is not the way to win. Donald Trump's a great president. Jon Favreau,

December 8th, 2022. Get it out there, Elijah. All right. When we come back, Strict Scrutiny's Kate Shaw talks to Dan about the Supreme Court's oral arguments this week, two big cases around gay rights and democracy.

This week, the Supreme Court heard arguments on two very important cases that will affect American life and American politics. Joining us now to help us understand them is a co-host of Crooked Media's Strict Scrutiny, Kate Shaw. Kate, welcome to the pod. Hey, Dan. Thanks for having me. It's great to see you. Okay. Two important cases this week. It feels like they're back when it comes to the Supreme Court. It doesn't seem like that long ago. They were taking away rights from millions

and millions of Americans. And now there are two very consequential cases before us. I want to start with the first one, which is from Colorado, which involves a graphic designer who wants to advertise for working on wedding websites, but does not want to serve same-sex couples. This seems very familiar, I think, to myself and to a lot of our listeners of a case from about five years ago involving a baker. Could you help us understand what is at stake in this case and how is it different from the previous case? That's exactly right, Dan. So this is kind of a sequel to Masterpiece Cake Shop, which was the case about the baker who didn't want to bake wedding cakes for a same-sex couple. So swap out baker for web designer, and that's 303 Creative, this case. So she says she doesn't

want to make wedding websites for same-sex couples. She says she doesn't believe in gay marriage. And she says her custom websites are a kind of artistic expression. Actually, the baker in Masterpiece Cake Shop, Jack Phillips, said the same thing about his cakes. And she says the First Amendment protects her from being told to whom she must sell that kind of expressive or artistic service. Well, Colorado has a state law that says if you provide, you know, commercial goods or services, you can't discriminate on the basis of characteristics like sexual orientation, right, in addition to things like race and disability. And I should say this Colorado law, like, isn't unique. It is an example of the kind of law we have in many states, in the federal government, right? These public accommodations laws. And, you know, we of what's at stake if the court sides with this web designer, right? Like whether government can guarantee that people won't be denied service in the public marketplace because of who they are. Based on the, I know listening to the arguments is never a perfect science to figure out what's

going to happen, but what did you take away from some of the questions that were asked and some of the things that justices said about where this case may be going. Yeah. And I should say that the justices are still live streaming arguments. So people can, if your blood pressure can handle it, you can just sit at home. Mine cannot. Mine can absolutely not. Yes. I have a lot of practice and I still struggle, but yeah, you can listen either in real time, like at 10 a.m. Eastern on the argument days, or like later in the day with a glass of wine. I actually think it's really good that they've kept that pandemic practice of letting the public listen to their deliberations. It's informative. And actually, in this case, I think it was pretty terrifying, honestly.

So in terms of how this is going, I think that this web designer, Lori Smith, is all but certain to win this case. And it's just a question of how she wins and what the justices say about other cases that might be impacted. So, you know, this is kind of a weird case because Lori Smith hasn't been asked to design a wedding website for a same-sex couple. So it's like an entirely speculative case. And I think because of that, there were all of these weird hypothetical questions that the justices were throwing out. Like what if the website, you know, design service was just like a template that you just put your name into? Would the First Amendment protect her from having to type in like Mike and Luke if that's the couple getting married? She's like, maybe not, but this is a custom building websites and that's

artistic. Justice then Katonji Brown Jackson, the newest member of the court, who I should say is a true force of nature in these oral arguments. She has been incredible. Even if your blood pressure can't handle the full three hours, it's worth dipping in to hear her questions because they're so good. She asked a really good, I think, question, which is about like a photography business at a shopping mall. So she says, say it's the holiday season. There's a photographer who wants to like photograph scenes with Santa and wants to express this photographer's own views of like Christmas nostalgia from the 1940s and 50s and says, we're going to have a Santa and kids can interact with Santa. We can take these like sepia toned photos, but we only want white kids in the pictures. And, you know, it was a great

hypo because I think if you protect this web designer, it's hard to see how you don't also protect this racist photographer, right? And so she poses this really good hypothetical. And I think, you know, the Lori Smith lawyer really struggled with answering it. And then things got really weird because Sam Alito, who is this honestly kind of a master gaslighter in oral arguments, started trying to make the argument that the court basically has to side with the web designer in order to protect the values of pluralism and diversity. And he did this by saying, okay, so say you have a mall and you have a black Santa in the mall, and then you have kids dressed up in Klan outfits.

Shouldn't that black Santa get to refuse to take the picture with these kids? Which is like so weird in so many ways. First, like kids in Klan outfits, like where, what deranged mind, like, you know, from which springs these kinds of ideas. And then second, like as Justice Kagan jumped in to say very clearly, you know, protection on the basis of your costume, like your Klan outfit, that's not a characteristic that's protected under Colorado law. But, you know, he's laughing the whole time he's asking this hypo. It's like actually kind of diabolical. But, you know, I think that it actually does make clear that this case is not just about

like this one-off with a web designer, right? Like we have these longstanding laws, again, state and federal, that protect people against discrimination when they are just going out to secure some good or service in the marketplace and carving out an exception for somebody because they have an objection to providing a service for a couple on the basis of sexual orientation, I think opens up the possibility that all kinds of people could face discrimination that they've been able to, you know, exist in public spaces really free from for many, many years. So this has the potential to be incredibly destabilizing. Now, the court might try to write an opinion that says, you know, these services are artistic,

and so they're different. And this doesn't extend to like denying service at a restaurant or a hotel. But as again, the brilliant Justice Jackson was offering up hypos, well, what if I'm saying like my menu, I'm using my grandma's recipes and I'm trying to stay true to her vision. And she had a vision that like only Protestants should eat her food. Like that was the hypo that Jackson offered. And so like it's easy to see how finding for this web designer who doesn't want to make websites for gay couples all of a sudden means rampant discrimination in the public sphere. And it's happening, if I'm right about what the court is likely to do, it's happening like at the worst possible moment, right? Like you have lawmakers in many states demonizing LGBTQ people, particularly trans people. You have Trump inviting white supremacists to Mar-a-Lago, right?

And the court here is like poised to say the First Amendment protects your ability to discriminate in the provision of commercial goods and services. I think all of this is a pretty dangerous combination, but that's very likely to me where this decision is headed. As you said, no one asked, there were no same-sex couples who asked this WebEx Center, which that, tell me if I'm reading this correctly, that the fact that the court could have easily dismissed this case on standing, correct? So the fact that they took it suggests that there's some collection of those justices who are looking for a way to go further than they went in the Baker case five years ago. Is that right? Totally. So, you know, they didn't have to take the case in the first place. It's an entirely manufactured case in which typically there's like a live dispute between parties,

right? Somebody, you know, has been injured in some way. And it's just hard to see how that exists here. So I think it is almost certainly the case that some justices were unsatisfied with what happened in the cake case. And, you know, in that case, the court kind of took an off ramp, didn't basically issue this big, broad First Amendment ruling that says this baker is protected, doesn't have to bake cakes for anybody he doesn't want to. Instead, they basically looked at the state proceedings and said it looked like there

were state officials who were biased against Jack Phillips, this baker, and biased against religion. And so they sent the case back by kind of taking this off ramp. So here you had some justices who clearly were like, we are eager to reach this question. And so they took this really weird case in order to reach it. And there had been previous cases involving other, you know, so you had a cake case. This is a website case. You had a wedding florist case. You had a photographer case. There have been other cases that before you had this newly constituted, you know, conservative

supermajority, those cases just kind of came up and the court didn't take them. But there really is an appetite. And, you know, you actually heard a couple of times Gorsuch in particular referenced the cake case. And he mentioned, I mean, he's clearly still kind of times Gorsuch in particular referenced the cake case. And he mentioned, I mean, he's clearly still kind of like smarting from that case. He mentioned Jack Phillips, the baker, having been required to attend a re-education program is how he described it, which is like, wow, is that an offense? I mean, literally what Phillips had to do is like, you know, go through some training on anti-discrimination law in Colorado. Like we have to do lots of, you know, trainings on the job. Like it's pretty routine, but you know,

to analogize an anti-discrimination kind of, you know, training to re-education camps, right? Like literally like, you know, communist labor camps. It was a pretty, it sort of revealed something about the kind of ecosystem that Gorsuch, I think, who asked that question, kind of moves in. So yeah, that was unfinished business in the 2018 Masterpiece Cake Shop case. And I think the court is likely to go maybe even further than it would have gone back then. Because again, that was a different court. You still had Justice Kennedy on the court. You still had Justice Ginsburg on the court. This is a really different court. The other case that the court heard this week was one called Harper v. Moore.

I think a lot of progressives out there have been told to be very worried about this case. It is a grave danger to democracy. I don't think a lot of people understand why they're supposed to be worried about it. Could you explain this case and what the independent state legislature theory is that everyone's being told to be so afraid of. Sure, absolutely. And I think it's right that when the court agreed to hear this case, it was the end of June when it announced it was going to take the case up. It seemed really ominous because, you know, the case is basically it's about this idea called the independent state legislature theory. And, you know, it's got all kinds of like Trumpy qualities to it,

right, this idea. So the intellectual architect in modern times, anyway, of this idea, at least one version of it is John Eastman, right, if that tells you something. So, you know, and in some ways, I think it's right that this is, you know, this theory is kind of a polite and like more legally palatable sounding way to undermine or reject democracy than just like rejecting it outright. There's like, oh, this is a theory. And there is some, you know, support you can cobble together for it. And maybe it's kind of plausible sounding enough, you could get a bunch of justices to sign on to it. And it really does have very profound anti-democratic implications. So I think that's why people were so worked up about it. But I think it's right that people

aren't even totally sure what it's about or what's at stake. So this idea is basically just that the state legislature and only the state legislature gets to regulate federal elections. So if state courts are reading their state constitutions and saying the state constitution has a fair elections clause or a first amendment or an equal protection clause, and the state law is somehow inconsistent with the state constitution, well, constitutions control. So, and that happens kind of routinely. State courts read their constitutions in ways that, you know, help facilitate voting. But this theory says, no, no, that's actually unacceptable because the federal constitution says only the state legislature can set the rules for federal elections. So if a state, you know, executive branch official or a state judge does anything to touch federal elections, that's inconsistent with this part of the federal constitution called the Elections Clause. And this whole idea kind of comes from a concurrence in Bush versus Gore. And it sort of was dormant for about 20 years. And then it got raised and embraced by some justices during the pandemic because there were some state courts and state election officials that were kind of easing ordinary rules and deadlines around voting because of this once-in-a-century pandemic.

And so some of these challengers who were looking, you know, to find ways to make it harder to vote, were like, no, you don't have the power to make election rules at all, you court or you, you know, state executive branch official, because only the state legislature gets to make those rules. And so that's kind of the sort of theory at the heart of this case. And I should say, I mentioned Eastman before, it's related to another idea, which is that only the state legislature gets to basically set rules for picking presidential electors and that up to and including deciding they're unhappy with what the people of the state have done in a presidential election so that they could throw out those votes and just

appoint electors themselves. That's obviously what Eastman and others were trying to the state have done in a presidential election so that they could throw out those votes and just appoint electors themselves. That's obviously, you know, what Eastman and others were trying to get state legislatures in places like Georgia and Arizona to do. Okay, so that's sort of the backstory. In terms of this case, you know, this was a kind of a routine case in which the North Carolina legislature drew a map after the 2020 census. It was a badly gerrymandered map. Some people filed a challenge and said, you know, this gerrymander is unconstitutional under the North Carolina Constitution. And they won. The North Carolina Supreme Court agreed that this map was an impermissible partisan gerrymander. And so it sent the case back down and a group of special masters drew a new map. But then these proponents of this theory asked the Supreme Court to step in and said what the

state Supreme Court did when it threw out that map, that's impermissible because only the legislature gets to regulate elections, including drawing maps. Can I ask a question about this? Yeah, of course. Which is, I think I have this right, but it's very possible I don't. We're going to put aside the John Eastman, pick your own electors piece of this, which has a lot of Democrats worried. A reason why a lot of non-active insurrectionist Republicans care passionately about this is because the federal courts have said they have no role in partisan gerrymanders. Is that correct? Exactly. Because of a ruling

of the John Roberts. So the only way in which, the only check against partisan gerrymanders by state legislatures, which are overwhelmingly controlled by Republicans right now, are state courts. And state courts threw out very Republican maps in places like North Carolina, Ohio, and elsewhere. So this is a way to solve that problem. If they win in this case, at least by the independent state legislature theory, then they can partisan gerrymander as much as they want, and no one can stop them other than the voters who just had their votes discounted because of gerrymandering. Correct? That's exactly right. The one additional piece of this is, you know, the other check on gerrymandering legislatures are independent commissions. And the same logic that would

say the state court can't throw out maps might be extended to say those commissions are also unconstitutional because only the legislature can, you know, do things like draw maps. So, yeah, so it's very much, it is all about gerrymandering. And I think that's why you're right. Some non-insurrectionist Republicans are still on board with some version of the ISLT because, you know, it would empower states, state legislatures to gerrymander without a lot of meaningful checks because the U.S. Supreme Court has said that the federal courts can't constrain gerrymandering, that partisan gerrymandering is a non-justiciable political question. So okay, so I think that coming out of, you know, going into the argument, a lot of reason to be very concerned. I think that the

maximalist version, like the Eastman or Eastman adjacent version of the ISLT, did not seem to have much support. Maybe Sam Alito, like maybe Gorsuch and Thomas, but that's the most and maybe not even those three. So that is, I think, good news. And I think that if you're, you know, spending a lot of time near the Supreme Court these days, it's an unfamiliar feeling to come out of an argument being like, that could have gone worse, actually. And that is, I think, one big important takeaway. But I also think there was a lot of playing with like a compromise solution, like what might that look like if, you know, there were some limits on state courts ability to, you know, regulate in federal when it comes to federal elections, maybe including in striking

down gerrymandered maps. And even if it's like framed in a modest and compromised way, and maybe even it gets like a Democratic appointee vote or two, I think that's still a really consequential and potentially really problematic result. Because the court has never before asserted that federal courts get to second guess what state courts do when they interpret their own constitutions. Like the idea of federalism is really that states, you know, get to run the show in certain respects. And when it comes to interpreting state constitutions, federal courts have basically stayed out of it. And this, I think, would be something new to say the federal constitution in this one part of Article One gives federal courts the power to

second guess state courts interpreting their own constitutions. And I could, I think, mean that, you know, in the hands of this Supreme Court, they might find in the future, oh, this state Supreme Court decision that threw out a gerrymandered map, you know, they went too far, and thus we're going to reverse it under this modest but still important version of this ISLT. So I do think that having a new standard that's articulated in this case that gives more power to the federal courts going into the 2024 presidential election is actually really pretty problematic, and that it might actually give some ammunition for individuals who want to, you know, file lawsuits challenging things that state courts have done or that other

election officials have done. And they will have had the kind of imprimatur of the Supreme Court on this theory, again, even if it's not the biggest, boldest possible version of the theory. So I'm not, you know, that sanguine about a compromise solution being fine. I do think that it wouldn't, I mean, the court could, you know, end democracy literally with this case if it wanted to, and I don't think that's going to happen. But I still think it could be a really dangerous precedent depending on how it's written and what is made of it. That is my fear as well, based on a lot less expertise, but the understanding that Dobbs notwithstanding, under the history of the Roberts court, what generally happens is

Roberts finds a way to come to an opinion that avoids the worst headline, but gets the same result. We're not going to overturn the Voting Rights Act. We're just going to gut it with an inch of its life. So you get functionally what the right wants, but still allowing people to say, oh, John Roberts saved the day again. So just if we end up in that place, is there a specific set of things that are concerning to you? Do you have a view of where that could go? What should we be watching for when we get this opinion in June? Is that correct? Is that when we'll get this opinion? Most likely? Yeah, by the end of June, and I think very likely not until then, the end of the term. I mean, you know, it'll turn a little bit on the details. Like if basically what the Supreme Court says is state constitutions can't enforce vague or open-ended state constitutional provisions about, you know, voting rights and fair elections and things like

that, because that was an argument that these North Carolina legislators were making, that I think is an enormous blow to the actual meaningful participation of state citizens in elections that are administered by states because state constitutions actually have pretty good protections for voting, actually much, much better than the federal constitution. And if there's explicit limitations on state courts' ability to actually enforce those provisions of state constitutions, whether that comes, you know, when it comes to actually that, you know, exercising the franchise or things like, you know, maps, that, that I think will be really problematic. If what the court does is it doesn't say anything about how some state constitutional provisions are like too vague or general to be enforced, just says there are, you know, limits if a state court issues an opinion that has like really jumped the shark and doesn't seem to be doing meaningful like law making, maybe that's a narrow kind of standard. But it just honestly, anything but a complete rejection of this ISLT is going to make me pretty nervous, both because of what it, you know, might give ammunition for, you know, litigants to do, but also like state legislatures

are paying attention, right? And if they think that, oh, the Supreme Court has basically blessed this idea that we have a special status under the federal constitution, and that other state entities don't, you know, really get to do much, it's really kind of for us to run the show. You know, that, again, does not explicitly say that they could do something like, you know, the Eastman theory, just appoint electors outright. But there could be some broad, you know, support for that, that they could read into a Supreme Court opinion. So anything short of a complete rejection, I think, has the potential to be pretty dangerous. Well, on that ominous note,

we will leave it there. Kate, thank you so much for joining us. It is always great to talk to you. Thanks, Dan. Good to talk to you. it is always great to talk to you. Thanks, Dan. Good to talk to you. All right. Thanks to Kate Shaw for joining us today. Everyone have a great weekend and we'll talk to you next week.

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