Pod Save America - “Can Youngkin escape Trump’s taint?”

Episode Date: November 2, 2021

Joe Biden tries to rally the world to save the planet while Joe Manchin is still holding up his climate agenda back home, Donald Trump wades into the final days of the Virginia gubernatorial contest, and NYU Law Professor Melissa Murray joins to talk about today’s Supreme Court oral arguments over the Texas abortion law.For a closed-captioned version of this episode, please visit crooked.com/podsaveamerica. For a transcript of this episode, please email [e-mail] and include the name of the podcast.

The Supreme Court has had a busy summer loosening gun restrictions in states, overturning Roe v. Wade, and severely threatening our Miranda rights. I'm Leah Lippman, and each week on Strict Scrutiny, I'm joined by my co-hosts and fellow law professors, Melissa Murray and Kate Shaw, to break down the latest headlines and the biggest legal questions facing our country. It's more important than ever to understand the repercussions of these Supreme Court decisions and what we can do to fight back in the upcoming midterm elections. Listen to new episodes of Strict Scrutiny every Monday, wherever you get your podcasts. Welcome to Pod Save America. I'm Jon Favreau.

I'm Jon Lovett. I'm Jon Vitor. You keep doing a new inflection every day. I don't think I am. It's keeping you on your toes. I appreciate that. It's the afternoon. On today's pod.

It's frisky. Today's frisky. On today's pod, Joe Biden tries to rally the world to save the planet, while Joe Manchin is still holding up his climate agenda back home. Donald Trump wades into the final days of the Virginia gubernatorial contest and NYU law professor Melissa Murray is back to talk about today's Supreme Court oral arguments over the Texas abortion law. But before we start, Lovett, tell us about your upcoming show in New York. It's almost here. It's almost here. Two weeks to Love It or Leave It at the Beacon Theater. Very exciting.

Where is that now? In New York City? It's in New York City. Listen, all I'm saying is we got a big confirmation on a guest today. Up until now, we had a lot of pretty exciting passes, but this is a yes. You finally landed Eric Adams? Yeah, we finally got that vegan mayor from out of town. Congratulations.

A vegan cop from out of town. New. A vegan cop from out of town. New York, you sure can't pick him. I'd like a seven foot tall guidance counselor who seems to like S&M followed by a vegan cop. Get me a tiny billionaire who hates soda. And before that, I'd like a person who's... I'm done. Did you pull a string?

Wow. I don't know where this is going. I like that a lot. Anyway yeah where can people buy tickets uh cricket.com slash events thank you the internet we have great it's gonna be great all right let's get to the news president biden spoke at a global climate summit in glasgow scotland on monday that opened with some pretty desperate warnings about what will happen to life on this planet if most world leaders don't do dramatically more than they're doing to reduce carbon emissions over the next decade. UN Secretary Antonio Guterres said that we're, quote, careening towards climate catastrophe

and, quote, digging our own graves. Even UK Prime Minister Boris Johnson compared the climate crisis to a doomsday bomb that's about to explode. And while the leaders of China and Russia, two of the biggest carbon emitters on the planet, refused to show up to the summit, Biden used the moment to apologize for Donald Trump's decision to pull out of the Paris Climate Accords and pledge more action from the United States.

Here's a clip. I guess I shouldn't apologize, but I do apologize for the fact the United States in the last administration pulled out of the Paris Accords and put us sort of behind the eight ball a little bit. This is a challenge of our collective lifetimes. The existential threat, threat to human existence as we know it.

And every day we delay, the cost of inaction increases. So let this be the moment that we answer history's call here in Glasgow. Apology tour, huh? It's still early, but so far I'd say that Glasgow doesn't feel as optimistic as the summit in Paris did back in 2015. What do you guys think about the coverage you've read so far and what's been going on there? That was a low point when Greta Thunberg threw a bucket of polar bear blood on Emmanuel Macron. That was weird. I want you to know that I was going to say Antonio Guterres,

which would have been a funnier name to use, but you threw him in the intro. Over to you, Tommy. I thought that was funnier. I liked both jokes. I think the coverage reflects the fact that

this is an urgent problem. But even the pledges that countries are bringing to this conference don't do enough to reduce emissions by the amount we need to reduce them to stay underneath the 1.5 Celsius temperature increase by the end of the century. Not to be dorky for a second, but that's the challenge. Even the pledges they're making don't meet the moment.

And these are just pledges. They are not backed by laws or policies in a lot of cases. So I understand the skepticism, but that's why you do the summit, right? I mean, the Paris Climate Accords kind of pulled a rabbit out of a hat. It was a really important moment. We need to build on that. We had Trump for four years who set us back, but emissions have gone down. You know what I mean? Like 80% of global emissions are produced by the G20 countries. And so we have to be the ones to solve it. So that's why we get together. G20 countries. And so we have to be the ones to solve it. So that's why we get together.

Yeah. It's tough when the pledges don't get you to 1.5 and that they're also not all living up to the pledges and the, that don't get you to 1.5. So there's a couple of problems that we're dealing with here. Yeah. It's a real, um, it's Thanksgiving is over. Everybody's full. There's dishes everywhere. And someone's like, Oh, someone should clean this up. Yeah. You know, and Biden's trying, like if it would be great if he could have brought to the table an agreement that had been passed that had 555 billion in climate funding, but hopefully he'll be able to say to them, look, this is on the table. Hopefully we'll get there. I don't know, by Christmas, we're going to talk about this later, but maybe that's the new deadline for Congress. And so that would be significant. And Gina McCarthy, EPA administrator, is noting there that even before we hopefully get this bill passed by Congress that has a half a trillion dollars in investment in clean energy,

the administration's embraced higher fuel efficiency standard for cars, advanced wind and solar projects. They've begun working to reduce emissions of potent greenhouse gases, such as methane and HFCs. So there's all the executive action they're taking as well. Some other hopeful news I thought from Monday was India pledges to get to net zero by 2070. Would be nice if it was 2050. Better than nothing. Better than nothing. You know that India is obviously a huge carbon emitter and them making that pledge was big. Tommy, what do you make of China and Russia just skipping the summit? I think it's pretty bad. I mean, China and Russia, I think, are number one and number four in terms of emissions per country, if you were to rank them.

So, you know, the consensus is that the world needs to get to net zero by 2050. And I think both Russia and China have proposed 2060 as their target. So they're already proposing to miss the targets. It gets a little weird. Like Xi Jinping hasn't left the country in almost two years. I think it's been 21 months since he's left the country. It was pre-COVID. So there's something weird and bigger going on with him.

Is he having one of those things where it's like tough to get back into society because you haven't been around crowds in a while? Yeah. He's like, hey, he's packing. Doesn't have to do small talk at a barbecue. That's exactly right. But, you know, China. What's up? Good.

Talk. You know, and again, like China, we need China to get on board and to stop burning coal specifically. But they have said that their emissions will peak right around 2030, whereas most countries are pledging cuts. So it's bad. right around 2030, whereas most countries are pledging cuts. So it's bad. Xi Jinping, the leaders of a lot of developing countries say, hey, America, hey, Europe, you guys have been belching out carbon for decades. You should pay us to take these steps to reduce our carbon emissions because that's how you grew your economy. How are we supposed to grow ours? I understand that. European leaders are trying to push Xi, Macron, and I think Boris Johnson talked to him last week. The Russia example is even more cynical, I think. I mean, a lot of cynics point out that like, yes, we all have a long term need to deal with climate change. But in the short term, some farmers in Siberia don't necessarily mind that it's melting. You know, the Arctic is also melting and opening new shipping lanes for the Russians.

So there's a lot of, you know, competing interests here. They have a lot of oil and gas. They're not necessarily looking for the prices that drop. So, you know, it's complicated, but it's not good that they're not there. I also do think they like correctly point to China as the world's number one emitter, but not per person. Still us. Right. You know, it's like.

Well, one thing that was common in all of the speeches today from world leaders or all the speeches so far from world leaders is that none of them really committed to getting rid of fossil fuels. Right. There's a lot of talk about net zero and hitting certain emissions targets in the middle of the century. But whether it's a rich country like the United States, whether it's China, whether it's India, like no one was talking about, it's time to get rid of coal, which is a huge problem because we're not going to get there without getting rid of fossil fuels. We're going to have to go like you can't see this, but I'm reaching up into the air and I'm pulling the carbon out of it. That will be a piece of it. Oh wow, Lovett's figured it out. Some good news. Pew

Pew's done a lot of polling about the interest in climate sentiment. And they have found that concern about climate change has risen dramatically in a lot of countries. In France and Mexico, it's been dramatic. I think more than 8 in 10 people in those countries now say climate change is a major threat. That's up 30 points from 2013. That sentiment is up 19 points in the United States.

So people are starting to care. You're seeing green parties doing well in Europe. So there's growing support. It's not as fast as it needs to be but it's happening it's out there yeah we have majority support here just uh majority support doesn't uh get anything done in this country anymore because uh minority rules we need a climate change inside of joe manchin's skull speaking of which uh as you mentioned tommy good segue you're welcome uh biden obviously wanted to be able to tell the world the United States just passed the most ambitious climate bill in history, which, again, the Build Back Better plan would be if it passed. But Joe Manchin had other ideas. Here he is at a press conference today that he said would, quote, clear up a lot of things.

I will not support the reconciliation legislation without knowing how the bill will impact our debt and our economy in our country. And we won't know that until we work through the text. I'm open to supporting a final bill that helps move our country forward, but I'm equally open to voting against a bill that hurts our country. And I've been very clear about that also. Is that clear enough for you guys? Super clear. I get it. Did you guys figure it out? I mean, just... That was... He seemed just annoyed about something else. It was like a subtweet.

I think something annoyed him. I decided to watch... Tommy, you told me it was on. I decided to watch it live and then not watch the reaction on Twitter because I was like, I'm just going to try to figure out Joe Manchin on my own. But we were texting about it. Tommy was like, So far this sounds bad Twitter because I was like, I'm just going to try to figure out Joe Manchin on my own. But we were texting about it. And I was like, so far, this sounds bad. And I was like, no, no, now he's turning. Now it sounds bad. Nope. Nope. Now it's bad again.

He just went like it was not. I don't understand. He's just a whiner. He's in his own head. Does anyone want to do optimistic take pessimistic take from this press conference? The optimistic take from it is take from this press conference? committed to or come out against supporting Build Back Better. It seems like there's he has concerns about the overall cost, but because it's through reconciliation, that's kind of the process of reconciliation is supposed to make sure it doesn't add to the debt in the long term. So it's all a bit confused and it seems like more like moral positioning than actual political positioning to me. I know he spent all his time up there like crying about civility in the process and how outrageous it was, but it really does, I i think validate the strategy by progressives to withhold

their votes on the infrastructure bill until he'll he figures out what the hell he wants otherwise you could see him just completely walking away from these negotiations weeks ago though i guess they're about to do that because jaya paul just said that she sees a vote on both bills this week and then she said she'll trust biden to get the 51 votes in the Senate if they pass Build Back Better and the infrastructure bill from the House. Over to you, Joe. I mean, I think that's strange about this. What Joe Manchin said today, I think what was so strange about it, it was very, very abstract, but we're out of the abstract point, right? Right. It's like one point he made in that kind of meandering press conference is, OK, you say it's one point seven five, but it's actually much more if you do a bunch of programs that sunset and then you're actually planning to put them to make them continue into the future. OK, well, which programs do you want to keep? Which do you want to lose? Do you want to make it? Do you want to make some of these bigger and cut some of these other things out? Because that's we're at one point seven five in the current framework that Joe Biden and you seem to be in favor of nary three days ago.

Yeah, I think. Well, so the pessimistic take on this is and I do think some of this is going on. The longer this takes, the more time Joe Manchin's Republican Senate colleagues, lobbyists, whoever else is annoying and in his ear. Time kills all deals. Right. They have more time to put, you know, fancy spreadsheets and numbers in front of him that I'm about fancy spreadsheet. Yeah. Which, well, I'm thinking like Joe Manchin, which is very simply, which can easily convince him that, oh, the Democrats are telling you that it's one point seven five trillion, but actually it's a lot more money. And I think he is easily persuaded by a lot of this, which is why what he wants is a congressional budget office score of the bill, which is why what he wants is a congressional budget

office score of the bill, which will tell you how much the bill adds to the deficit in the short term and the long term, whether it affects GDP, whether it affects inflation, all this kind of stuff. So we're going to get a CBO score anyway. Like you said, Lovett, you have to throw a reconciliation bill just to see the effect on the budget. But I think what Joe Manchin meant is you guys all wanted me to just say yes to the framework. I'm not going to say yes until I actually see the score and I can tell all the fucking people he needs to tell that this bill actually doesn't add to the deficit as much as, you know, people might be worried about. I also want one semi optimistic read on all this is that from Joe Manchin's point of view, Joe Manchin is desperately trying to

create compromise in a broken world and bring people together and then his coverage is just fucking dog shit. Like he's getting torched left and right in all these pieces and that's annoying. It's a real Kendall Roy issue. Yeah, the optimistic case, right, is he's just sick

of being told what to do. He's sick of being yelled at and he just wants to extract one last little pound of flesh before he gives him to do. He's sick of being yelled at. And he's just wants to extract one last little pound of flesh before he gives him his vote. Yeah, that's that's the hopeful. I mean, I definitely thought it was more telling than Manchin's press conference, which was not very telling at all, was the reaction to it from everyone else. So like the White House released a statement being like, we're fine. We think he's going to vote for it. Brian Schatz tweeted. None of what he said was new. Everything's fine. Jayapal declined to take a shot at him and was like, I trust Joe Biden when he says he's going to get Joe Manchin on board. So whether that's all true or not, at least the rest of the party still seems quite confident that they'll be able to get Manchin's vote in the end.

And clearly the House progressives do because they're willing this week now to vote on the infrastructure bill, vote on Build Back Better, send it over to the Senate, and let the Senate deal with the rest. We're still heading towards a parking lot where the progressives push the highway money forward and Joe Manchin pushes the climate money forward, and they kind of walk away. They're in the parking lot, you know, like in Ronan. I haven't seen that.

No, me neither. There's an exchange of, you know, kind of drug deals. Oh, I get it. Like a ransom kind of thing. You bring the climate money, I'll bring the highway money. I get it. That was what I was going for. Cool.

Nailed that. I like the reports over the weekend that Manchin asked about putting in place work requirements for paid family and medical leave, even though you have to have a job. Get the government's hands off of our Medicare. He's just not a bright guy. It's the Occam's razor of the whole thing. All right. Some political context here

for how the electorate feels about all this. Don't need a poll. Not great. But I'll dig into one anyway. What are these Fangolis seeing? ABC News poll over the weekend found that even though 55 percent of the public is following news about the budget negotiations closely 70 said they know

quote just some or quote little to nothing about what's in the infrastructure bill or the build back better bill and a new nbc news poll has biden's approval at 45 among registered voters with 52 disapproving that's down from his-48 approval rating in their poll from two months ago, with much of the drop coming from Democrats. Biden's favorable, unfavorable rating was almost the same as Trump's in the poll. And 71% of all Americans now say the country is headed in the wrong direction. What do you guys think's going on here? It's not good.

I don't know. What do you think's driving this? What do you think think's going on here it's not good i don't know what do you think's driving this congressional gridlock there's 2 000 ships filled with christmas presents stuck off the course of california every the the pandemic every every the pandemic doesn't seem to want to want to end yeah that's those are literally the that's the three possibilities i had to economy languishing pandemic mess in washington and i don't know exactly what combination of all three there, but I think it's all three. I think that the Afghanistan withdrawal back in August and the rise of the Delta variant ended what back in the day people called the honeymoon period for a president. For listeners who weren't paying attention to politics before Trump, that was when people from the other party gave you the benefit of the doubt for a few months. I also just think, though, that the Democratic coalition isn't as cult-like as the Republican party. We're far more willing to

criticize our own, as that section about Joe Manchin probably indicates to you all. And my sense is, I bet people are just so sick of COVID, not just the mask requirements, but just the continued conversation about it, the disruptions in their lives, the associated economic impact, the supply and trade stuff you talked about, Lovett, the inflation that's coming from it, just sort of bad mood music out there for Biden. And he's losing Democrats and losing independents because of it. I will say two moments when Trump started losing support, not just of Democrats, which he never had, or independents, but Republicans, is trying to repeal the Affordable Care Act, which he failed

to do, and trying to pass their tax cuts, which they ended up succeeding. But both were cases of huge mess in Washington, didn't seem like Republicans were going to be able to get it done, or Trump was going to be able to get it done. And so you started seeing erosion in his base in those moments. And I think that's partly what's happening now with Democrats. I think the other two issues are broader throughout the electorate beyond Democrats and dependents and Republicans are just pissed about the economy and the pandemic. Look, if you're paying attention, credit to you because this shit is boring as fuck. But yeah, you're probably not liking what you see.

Yeah. I was surprised that 55% are paying close attention. That's it's it's I'd like to see how they define 50 of them are fucking liars well but i'll say like that that to me tells you everything those two numbers that 55 are paying close attention and then 70 have no fucking idea what's in the bill which makes sense though because you could see paying attention meaning like i saw the headline about negotiations today and all it said was joe manchin and kirsten cinema fuck something up and said no to joe biden and everything's a mess I don't really know what it's about. I don't know what's in the bill. That makes sense. You see journalists who work in Washington whose job is to cover tweet things like, has anyone seen what's in the bill today? Like it has been very confusing. The other

piece of this, too, is it's absolutely true that there's a kind of now because we're all pundits, there's a partisan response to polling, even about like sort of basic economic indicators. But one thing that as we have seen over and over again is that partisan effect is more pronounced for Republicans and conservatives. So there is just going to be an economic tax on how people see the economy under Republicans versus Democrats are just more Republicans are more willing to say the economy isn't going well under a Democrat, even whatever, whatever the actual underlying conditions. to say the economy isn't going well under a Democrat, whatever the actual underlying conditions. The other piece of this, and we talked about this in the past, I remember we talked about this in 2009, that when the president is deeply involved in a political fight in Washington, there's a risk that they go from being the president to like a prime minister who's kind of in the scrum and in Washington and a part of the fight. And like, I, I don't think there's any way to kind of this, this underlying dynamic can't be changed with like a bus tour and like giving, giving optimistic speeches. But I think once we get to the other side of these negotiations and these bills are passed, he has to be like, he has to just be out there as like, you know, I,

this is gonna be the most James Carville thing I'll say today, which is, as you all know, as you know, I want America to get the third shot, right? All right? We got to get the third booster? Joe Biden's got to be the fourth booster. All right? We've got to get out there. I feel like that is,

if David Axelrod has not said that line yet, Memo. It shows that you learned under him for so long. Joe Biden. He'll be very proud of you for that line. David Axelrod, inspired, calling Joe Biden the fourth booster.

All right, so when Joe Biden goes to bed tonight in Glasgow and listens to Pod Save America, he's going to get that advice from Lovett. Tommy, do you have any advice for him? I don't even know what we're talking about anymore.

What do you want from me? Any advice for the Biden administration? What would you be right now if you know what that is? I just think that success begets success. And he's got to get these bills over the finish line and then things can start to pick up.

Yeah. I think once the bills pass, knocking on wood, once we get to the end of this year, he's just got to – this sounds like common sense, but focus exclusively every single day talking about the economy, how to improve the economy. Dan and I talked about this last week too, but you see in these polls, people say that like the most important issue is the economy and then like inflation is number two or three now. And then you ask them, well, what's Washington focused on and the economy inflation aren't up there or what Democrats are focused on and they're not up there. And I think for a whole bunch of reasons that we've all talked about, there is a disconnect between what Biden and the Democrats are focusing on in this Build Back Better legislation and the economy. And the Build Back Better legislation is supposed to be the economic plan. But for some reason, the public is not seeing it as the economic plan and they're not seeing it as a focus on the economy. And I think a real focus on the economy where every day he's out there connecting Republicans to favoring rich people and saying that Joe Biden and the Democrats are

on the side of everyone else and that's why they pass these bills and that's where they're going to keep fighting to lower inflation and all the rest of it. Like that has to be the message going forward in 2022. Yeah. And I also think one other piece of this, too, is like we've never come out of a global pandemic slowly before. Yeah. And we've never experienced this kind of trauma as a country before. And Joe Biden became president in part because he understood how to speak to people going through that. But I do think that like whatever the numbers, whatever the specifics, like this is a country that's been through a really hard and sad time. And like, I think you will see that in a lot of unexpected ways. And he just I think that like that boosterism is like it's I need it. I totally agree with you.

I mean, I think all the public health experts have told us we're going to have to learn to live with COVID as an endemic virus and not a pandemic. And I think that's probably right. I trust them on that. The Biden administration at some point and the president himself needs to talk to the country about what it looks like to live with COVID-19 as an endemic virus. Right. And say that it may never go away. It's going to be with us for a while, but there is hope ahead. The worst is behind us. Here's how we're going to I'd skip that first part. I mean, there's some truth talk. There's some truth telling that you have to do, too. I don't know.

Keep that in 2009. But I think right now, there's just a lot of confusion, right? Like, how long are there going to be indoor mask mandates in place? Is this going to be the last booster? Look, and there's a lot of answers that they're not going to have. But giving people some metrics, some guidance, here's how we're going to live. Here's how we're going to go forward. I think that's going to have, but giving people some metrics, some guidance. Here's how we're going to live. Here's how we're going to go forward. I think that's going to be important. Let's talk about Virginia. The hits keep on coming. You're probably listening to this Tuesday, which is election day. The polls say the governor's race is basically even, with maybe a slight edge to Glenn Youngkin.

The demographics of the electorate, which voted for Biden by 10 points in 2020 and Ralph Northam by 9 points in 2017, favor McAuliffe. The early vote shows high turnout and enthusiasm in both red and blue parts of Virginia. Beyond that, the only thing we could all be sure of is that Donald Trump would try to insert himself in the race at the very end. And that he has with two statements on Monday, a teller rally Monday evening. And this interview with Loudoun County wine mom, Janine Pirro. If I endorse somebody, they win. If I endorse somebody, they win. I think I'm 148 and two. That's a pretty good number. You endorsed Yunkin. And I did endorse Yunkin. And we're going to see. I hope it's not going to be three. OK, do you understand that? I did. I endorse him strongly. What do you think Trump is up to here and how excited do you think Glenn Yunkin is about it?

Yunkin, probably less so. I mean, I think the Washington Post poll said nine percent of Virginia voters say Trump's endorsement makes them more likely to support Yunkin. Thirty seven percent less likely. likely, 54% don't really care. So he's certainly not, I mean, maybe he can help turn people out, but a tele rally on Monday night before an election Tuesday, that is the most unhelpful option possible for the campaign. It will do nothing to turn out voters. It will do nothing to get you the media support from a good events. I think it's closed press, right? It's closed press. I don't know how you close press a phone call. I don't either. Especially when it's

Donald Trump, the entire Republican ticket, and they're going to close it to press? It's invite only. Gotta get the Zoom link. Pass along their invite. Yeah, so this is the worst case. This is Donald Trump trying to get credit for a Youngkin win, and of course he will write off a Youngkin loss. This guy ran away from me.

It's so predictable, right? It's the most predictable setup he if he if he felt young was going to win he'd be going if he felt young was going to lose he wouldn't be doing this it is the perfect middle ground yeah i mean but young can backed by 99 of trump voters in virginia so he doesn't really need this yeah he wants right he wants the trump base right he wants the trump base to turn out right and um but he doesn't want any of the Trump taint, right? Look, here's the thing I've said and once I've said it thousands of times. Nobody wants the Trump taint.

That's exactly right. That's why people listen to the show. That's the analysis you can't get anywhere else. Speaking of really stupid last-minute campaign stunts, the Lincoln Project organized a group of people on Friday to disrupt a Yunkin event by dressing like white supremacists from the Charlottesville rally and telling everyone that they were Youngkin supporters. What the fuck were they thinking, huh? Guys.

You get an email about volunteering at a campaign event, all right? And then they tell you you got to dress up like a white supremacist. You don't do it. No. Just say no. I'll go somewhere else on Saturday. I hope this was a dumb Twitter story and it didn't really resonate all around the state. But super PAC people, you're playing with live ammo here.

If you're going to do some dumb stunt, if you're going to run cable ads that are targeted at Mar-a-Lago, designed to bait Trump into doing something, he's going to respond. We know that about him. So you better hope it's a good idea. This was not a good idea. These are tried and true Republican campaign tactics. That's what you get. You get a bunch of ex-Republican strategists. They do Republican campaign crap.

Right, right. Until recently, you know, a lot of Democrats were like, Democrats need to play tougher and they need to punch harder. That's sort of like that MSNBC kind of zeitgeist and something like this. This is what you get. What are you thinking?

Yeah. You happy about that? Not sure it's going to work. Right. Like I don't like you said to me, I think it's probably a fucking Twitter story that doesn't really matter. I hope like I don't. It's just this is not really.

I mean, Terry McAuliffe is trying to tie Yunkin to Trump. That's been his closing message. The race generally has been more about like loudon county school boards and education i mean like that's what's been really talked about and and what you've seen popping in the polls lately so this was just an odd it's move it didn't work i don't know what it would have looked like if it did work i don't even actually understand what the takeaway it's so many so many too many steps it's a trunk it's a trunk it's a group of people getting together for a brainstorm and getting too far from the original idea it's a trunk it's a classic trunk uh how are you guys feeling about the closing days of this race any final thoughts before the results

start coming in all comes down to turnout i will say this the only poll that matters uh i was really glad and i was i appreciate how you and dan discussed it as well which is like i i feel like there's like this you know when it comes to issues around like critical race theory, like I think that there's like a very unhelpful Twitter conversation about it. And then there's been a lot of, I think, uncertainty and anxiety on the part of campaigns about how to deal with this, how to change the subject. ad that decided to go on and redefine it and make it about banning history, something I think we've all been talking about. And I don't know if it's going to work, but I appreciated that this was like finally a full throated message that it's like this is about banning history that didn't didn't take it on on their terms in their words and tried to make a new kind of argument. I don't know what's going to happen. I don't think anybody does. But that part of it, I was like, I was glad to see finally a Democrat figure out some language to tackle this ridiculous issue,

racist issue. I think it's really hard to separate the signal from the noise on this one and this whole race because there's just you know if you just pay attention to twitter and the media narratives it is all critical race theory and stuff like that and i just i can't get out of my mind the ms-13 scares from 2017 know, we talked about the final morning Joe panel on that race, right? Like, I don't know. I don't know. Oh, Twitter today.

I mean, Twitter today, Virginia is pre-lost. I mean, it's unbelievable. Yeah, and who knows? Like you said, we don't know what will happen. The only thing I'll say is no matter what happens,

I really hope that everyone has some humility about why it happened. Win or lose. Win or lose, right? Good luck with that, pal. I think you picked the only guaranteed outcome. No, and you know what?

And exit polls do not help with that, at least the first exit polls, right? Like sometimes they get fixed later when they're weighted correctly. But, you know, beware of instantaneous takes. Wait for all the data to come out. Wait for like good interviews and focus groups. I don't think there even has been

really extensive good reporting on like what voters in Virginia are thinking. No, I mean, the Post had a good piece today on that, but again, it's anecdotal. It's like they talked to 20 people outside a supermarket somewhere. I'm like, it's good reporting. It's helpful, but who knows?

It's not scientific. I mean, this could be a California recall example where there was one poll that freaked everybody out, right? In the California example, it was SurveyUSA, I think. In Virginia, it was this Fox News poll, which is either prescient or an outlier. We will find out. We do know that education has increased in salience in polling since September. And 15% of people said it was the most important issue to them in September. 24% said that in October. So that might tell us something.

But looking back over the last couple of recent elections, in 2014, Mark Warner and Ed Gillespie were scary close at the end. It was less than 1% margin, but no polls showed it that close. And then 2017, Ralph Northam beat Ed Gillespie by nine points, but polls had made it seem very close. So Virginia has been the site of a lot of big time polling misses, and we don't know what the electorate will look like this time. And they changed the early vote access. Right. So it's hard to compare early votes. It's weird. And even to the education numbers you just mentioned, that could be the result of two

things. One, education is suddenly a really big issue with a lot of voters in Virginia because Glenn Youngkin tried to make it so and talked about critical race theory. Or Glenn Youngkin made it a big issue with his Republican supporters. And because now all of them are saying it's a big issue, that's what that poll looks like. So we don't know. Again, we're not going to know until we actually see the results. And if you were hearing this on Tuesday, the organizer you talked to last week, one reason some people are undecided is a lot of people were not planning to vote, didn't know they had to vote. Like, there are still people that need to be reached. So if you are hearing this on Tuesday, I mean, we may win or lose this thing on Tuesday based on how successful we are at making phone calls and getting people to make sure their votes are in by Tuesday night. Absolutely right. And, Lovett, I think you might have a little game for us.

Oh, yes. But before we go, as you both mentioned, it's hard to get a feel for what's been happening on the ground. But that's why we turn to reporters, you know. Journalists for major news outlets have a problem. You see, Tommy and John, they strive for the imprimatur of nonpartisanship, yet foolishly choose to live in progressive enclaves like New York, Washington, and my house. And so, like intrepid meteorologists, they leave the calm harbors of blue America and head into the turgid roiling waters of red America to show us how the winds

are blowing. But then at times, in effort to prove to us sweet greens Americans how different life really is for the people, some key details are left out, details that might paint a different and less representative picture. First question. Glenn Miller is described as a Hillary Biden voter and dad who spoke with New York Times reporter Jeremy Peters about why he can stomach voting for the Republican in Virginia's governor's race, saying, my problem with Trump was I thought he was embarrassing. I just don't think Youngkin is going to embarrass me or the state. Which of the following facts about Glenn do you think is real? In addition to what was included in the piece, is it A, he donated to Mitt Romney, David Perdue, Susan Collins, Kelly Loeffler, and Wynne Redd.

B, Glenn Miller published an article on the right-wing site Quillette about critical race theory. C, he has a tag on the Fairfax Republican websites for all of his blog posts. Or D, all of the above. All of the above. All of the above. It was D. All of the above. Not mentioned.

I thought there was a, we should have buzzers for this. Next question. Another Times piece described Josephine Valdez as a public school paraprofessional from the Bronx who is part of a sizable, unwavering contingent across the United States whose resistance to the vaccines have won out over paychecks or have given up careers entirely. A public school paraprofessional. The paper had to issue an editor's note, Tommy. Why? I don't know. Take a guess. Oh, why? Tommy doesn't get multiple i got no choices i decided god i probably should have been listening um because she worked for the state republican party uh no she's actually an anti-vaccine mandate activist john over to you what happened at an anti-vax rally she helped organize what this is so hard i know take a guess what happened i decided to

give her the clues might have been a mistake it's a gamble it's a gamble what happened take a guess take us what happened at a rally she helped organize allegedly get that in there i don't know people did people yell that they didn't want to take the vaccine uh uh this person uh they they destroyed a mobile COVID testing site. They just tore it down. They're like a terrorist? Yeah, they just tore it. I think it was a van. I think they tore apart the tent in front of this van.

They really made a mess of things. Anyway, that's the person. Tommy, over to you. Final question. Thank you. In an earlier piece about reluctant Trump voters, this is from the midterms, Jeremy Peters, friend of the show, profiled a group of just-your-average Republicans who, while not huge fans of Trump, felt compelled to defend him against the, quote, overblown criticisms against him.

One of those Republicans was businesswoman Gina Anders, an executive with, quote, not a stitch of Make America Great Again gear in her wardrobe. She said all nuance and all complexity, and these are complex issues, are completely lost. Maybe she's not a merch person, Tommy. But she did work for Ron Paul's presidential campaign, trained as a grassroots activist with the Foundation for Applied Conservative Leadership, and worked as a consultant at a PAC dedicated in part to what? What is the issue the PAC was in part dedicated to? We'll go into one of you. Shouts it out.

Returning to the gold standard. Pretty close. I don't know i i returned to the gold standard what's another bigger um ron paul stuff um uh there's a couple correct answers abolish the fed uh it was protecting confederate statues that's not close to returning to the gold standard. I don't know. It's 1850s shit. Did you? Like what?

Did you describe the country as turgid? I described the waters as turgid. Got it. Okay. Why? Because I was Googling turgid and it seems like swollen, timid, bombastic, pompous. But go one definition down. It has to do with water and storms.

Storms. Stormy water. Isn't that a name from... What's that movie? Is this the end of the game? The game is already over. We do have another segment. This is a small talk. Oh, right. I thought this was the end of the show.

It's not the end of the show at all. I can tell you spent a lot of time on that game. When we come back, we'll talk to NYU Law Professor Melissa Murray about oral arguments in today's Supreme Court case on the Texas abortion law. The Supreme Court heard oral arguments today on Texas's radical abortion law that would place a ten thousand dollar bounty on anyone who aids or abets an abortion after six weeks of pregnancy, which is before many women even know they're pregnant.

The court had previously split five to four on an emergency order in favor of allowing the law to go into effect on September 1st. Joining us now to break down what happened in today's arguments and much more, the co-host of the Strict Scrutiny podcast, NYU professor Melissa Murray. Melissa, welcome back. Thanks for having me. Can you start by giving us a quick background on today's case? Like, how is it different from the last challenge they heard on the Texas law? Well, one, they're actually having oral arguments, so that helps. This is not a case that's being decided on the shadow docket with very limited briefing and no oral arguments. This was a case

that was migrated from the shadow docket to the court's regular merits docket and slotted for oral argument. And there are almost two hours of oral argument in these two arguments today. So to the extent that Justice Sam Alito had bemoaned the prospect that the court just didn't have enough time

to really flesh out some of these issues, there was no way that that was going to be an issue today. They had plenty of time to get into the nitty gritty on these questions. And I think we will probably get something that is perhaps a little lengthier than the paragraph that we got back in September from the court. So more time to work on this, perhaps more time to consider the fact that the public has been really outraged about the fact that Texans have not had access to the same constitutional rights as their counterparts elsewhere in the country. And I think we saw a court that perhaps was feeling the heat a little bit. So what was your take on the justices' reaction to today's oral arguments?

So there is very definitely a camp that views this law as flagrantly unconstitutional. No surprises who will be in that camp. It was Justices Sotomayor, Kagan, possibly Breyer on a substantive measure, not necessarily on the procedural question. And then there were those who really don't seem to care if the law is constitutional or not because they're happy with it going into effect. And they think that the law's novel procedural irregularities is enough to sort of evade judicial review on this question. And the three in that camp were justices Samuel Alito, Clarence Thomas, and Neil Gorsuch. And then there were the justices in the

middle. And I say in the middle just because we typically group them this way, but I'd say even the chief justice seemed to be firmly in the camp that stare decisis, the institutional legitimacy of the court, all of that seemed to augur in favor of enjoining this law and having some kind of considered discussion of its substantive merits. But that left justices Amy Coney Barrett and Brett Kavanaugh as the two justices who very much seem to be in play today. Were you surprised at all by how skeptical Roberts, Kavanaugh, and Barrett seemed to be, given that just a few weeks ago, their same concerns over the fact that the law is so novel and unique in its approach did not require them to prevent it from going into effect? Well, the Chief Justice had been with the liberals and he was of

the view that they should simply step in and put this law on ice while they determined whether or not it was constitutional. So he was with the liberals on this back on September 1st. But as you note, Justices Barrett and Kavanaugh were very much part of that five justice block that allowed the Texas law to go into effect. And it seemed that maybe they had had a change of heart. And certainly their questions seemed to suggest that they'd had a change of heart, or at least they were open to the possibility. There was some softening there. They asked a lot of questions about whether or not the abortion provider suits against the state court judges and county clerks could take on the

question of state action. So they invoked a couple of precedents like Shelley versus Kramer. This is a case from, I believe, the 1940s where there was a restrictive covenant, one of these private agreements where homeowners say, I'm not going to sell to Black people. You can't sell to Black people. And it avoided anti-discrimination laws because it's a private agreement between the homeowner and the prospective buyer. And the court stepped in and said, well, it may be a private agreement, but you need our courts to actually enforce it. And when the courts step in to enforce it, that's a form of state action and the state can't be a part of your discrimination. And so Justice Kavanaugh seemed to be invoking that same line of thinking, like the fact that the courts have to process these lawsuits, the county clerks have to issue the various documents and whatnot to get this moving through the system.

Isn't that a form of state action? And doesn't that enmesh the state in the enforcement of this law, even if the state is formally prohibited from actually enforcing it? is formally prohibited from actually enforcing it. One other point I believe Kavanaugh made and several of the other justices made as well was that this might give other states ideas, including liberal states, about how they could say go after gun rights or make policy on other issues that the right wing of the court

might not find as appealing. What was your reaction to that line of argument? So we've heard about this ever since this law came into effect. Like, what if the blue states decided to take a page out of Texas's book and start doing the same thing with gun rights or whatever? And that's always been, I think, a looming threat. But I think the real crux of that question before the court today was not aimed at what

New York is going to do or what California is going to do, but what this actually means for the court. Because at bottom, that line of questioning really points to an existential crisis at the court itself. What is the point of a Supreme Court? What is the point of an entity that is supposed to say what the law is if a rogue state can just decide to delegate the enforcement of a law to a private individual in order to avoid what the Supreme Court has said on a particular issue. And so I think that whole line of questioning was not so much aimed at thinking about what states might do in the future, but what is our point here? What are we doing here?

And what does it mean for Texas to basically give us the finger over and over again? So what are your thoughts on the timing here of what happens next and what are the potential rulings and effects that could come from this case? So again, these were procedural issues that were being debated today. And again, by saying that they are procedural, I don't mean to suggest that they're not important. They're hugely important and indeed, I think, go to this broader existential threat to the legitimacy of the court itself. But we were not getting any kind of question about whether there is a right to an abortion that is implicit in the Constitution that the court is obliged to protect. That's a substantive question that really comes after we

decide this threshold question of whether these two lawsuits can even be in federal court in the first instance. And I think we saw perhaps between the justice and I think Justice Kagan was the one who was really pushing this was perhaps a kind of seed of a compromise being offered, whereas they might allow the lawsuit brought on behalf of the abortion providers against the state court judges and the county clerks to proceed, while perhaps consigning United States versus Texas, the DOJ suit to the rubbish bin. There are a lot of questions about whether the United States could bring a suit like this, a lot of questions about a precedent called Debs and how far Debs went and what the logical stopping point would be for the United States government to intrude upon a state sovereignty by suing it. And so it may be the case that there's some horse trading to be done here,

and the justices may decide to pick one case but not the other. But it seems like they have to do something, and they're going to do something. And I think they recognize that a state of affairs where one state in the union lacks the same constitutional rights as the other 49 states, is not something that can happen on their watch. So we're definitely going to see something happen. And all of this is shaking out amidst the looming prospect of a month from now, they're going to hear oral arguments in the Mississippi case, Dobbs versus Jackson Women's Health Organization. And that question does put Roe directly in the crosshairs. So it could be the case that when Dobbs is decided, it either completely reorganizes the court's abortion

jurisprudence to make viability no longer an important marker in the court's restrictions on abortion or state restrictions on abortion, or it could overrule Roe and Casey entirely. restrictions on abortion, or it could overrule Roe and Casey entirely. Either way, that means that SB8 lives to fight another day because now we're actually trying to figure out if a six-week ban on abortion is okay. Or alternatively, SB8 is definitely okay because Roe versus Wade and Planned Parenthood versus Casey don't exist anymore. Is it possible that if they allow the lawsuit to go forward in federal court, that this ends up back at the Supreme Court again? Very possible. And so they might end up, so they eventually are going to decide the substance one way or the other, whether it's

the Mississippi case or this case. Well, I mean, so this is the question. If they decide the Mississippi case on the merits first, and they take the sort of minimalist approach where they're just sort of tinkering with what viability means, well, then that sows confusion in the lower federal courts because now we're trying to figure out, well, if Mississippi's 15-week ban is fine, what about a 12-week ban or a 10-week ban or what about a six-week ban? And suddenly we have to take SB8 back up to the court. But if they decide in Dobbs that there is no right to an abortion nestled in the Constitution or any of the constitutional rights that we've currently recognized, well, that's just open season for the states and SB8 is fine. Quite a compromise that says at some level, these kinds of schemes are not acceptable to us, but don't worry, you don't need them because over here, in a broader way, we're vastly limiting the constitutional right and empowering states to do all kinds of other restrictions anyway. I think this is the piece that doesn't get nearly enough play. We talk about SB8 as though it was

sort of like sprung fully formed from the mind of Jonathan Mitchell and the Texas legislature. But obviously, it's part of a concerted effort amongst the pro-life movement, the anti-choice movement to sort of seed a series of challenges, all of which are sort of meant to build on and interact with each other. And that's really what you're seeing here. Like Dobbs and SB8 have nothing to do with each other as a formal matter, but of course have everything to do with each other. And the way that they are sequenced at the court and the way it's going to play out at the court will obviously have huge implications for each other. So another issue that's come up, the Supreme Court agreed to take on several cases challenging the administration's authority to

regulate greenhouse gases through the EPA. On the one hand, there have been reactions, this was in the Times, that described it as the equivalent of an earthquake around the country. For those who care about the climate, that was a professor at environmental law at Harvard. But then the administration's posture has been more subdued, saying you don't even need to look at this one. We're not even using it anymore. Like, it doesn't matter. We're not even we're still editing it, basically. And then the White House, the climate policy expert at the White House said that they expect the Supreme Court to uphold the administration's authority to regulate climate. What is your reaction to what has been unfolding?

When they granted cert on those cases on Friday, I think I posted something on Twitter that was like, you know, next stop 1934, because it seems like we are going all the way back to the non-delegation doctrine. We are going all the way back to the non-delegation doctrine and the fights that FDR and the New Dealers had with the court over whether or not they would uphold the administrative agencies and the authority, the delegated authority of the administrative agencies in the New Deal. And we know that there are certainly three justices on the court who are hostile to the prospect of an invigorated administrative state. And we know that the administrative state has sort of had some narrow misses with the court just a couple of years ago in a challenge to a sex offender registration. Justice Elena Kagan, who is in the majority, basically warned Congress, like, if you want to have your delegations of congressional authority to administrative agencies upheld, you have to be really clear about what the agency is supposed to do. It has to be some kind of intelligible principle because these guys over here,

they're totally hostile to the prospect that Congress can delegate any of its authority to an administrative agency. And this sounds like such a dry issue, and it really is a dry issue. Trust me, my students say this all the time, but can you imagine a world without administrative agencies? Can you imagine having to go to Congress to get a passport, having to go to Congress and ask them to do something about climate change? We want experts who have real knowledge of these fields and expertise in doing this to actually do this. And that's why we allow Congress to delegate its authority to these administrative agencies within the executive branch to do this kind of work. But then there are these folks on the court who are skeptical of it, skeptical that Congress can do that, skeptical that agencies that are technically

part of the executive branch should be allowed to exercise what is essentially some kind of legislative authority. And so we've gotten pretty far with this. And, you know, there are a number of conservatives, I think, who have not been hostile to the administrative state. Justice Scalia famously wrote a decision that upheld Congress's power to delegate to the administrative agencies. But these newer justices very much have been skeptical, if not deeply, deeply hostile to the prospect of this. And I think this is a real change in how we do government. And it's going to be a big sea change, not just for climate change, but basically everything that government does. So you seem to be in the earthquake camp.

Oh, I mean, earthquake, conflagration. I mean, like, imagine having to go to Congress to do just some of the stupid things that we go to administrative agencies to do. These people can barely rename a post office. I mean, forget about just having experts in the administrative state. You also have people in the administrative state who can, like, do their jobs every day. I mean, that's the point. I mean, like, there are some things that Congress, as a large, cumbersome, multi-member, unwieldy body is just not well equipped to do. And a smaller body with real expertise is probably better suited.

And that's it seems to be like something that many members of the conservative legal movement are really hostile to, in part because I think it facilitates the prospect of government regulation. And who wants that? Right. Right. It does seem like some of it obviously there's that outcome that they don't want which is an activist government um saving the planet i suppose which makes them uncomfortable it's regulating business or regulating business but but some of this really is it seems like it's not philosophical it comes down to almost like semantics or like what is the difference between congress passing a law that gives the administration power to enforce it and the administration itself writing a refined version of that law? We had this argument.

We talked about this the last time you were on the show when we were talking about DACA, right? Whether or not DACA constitutes some kind of legislative act. Like, how is that? How do you think about that? I mean, all of this sort of comes back to this, like, originalist view of the Constitution and the idea that, you know, if the Constitution doesn't explicitly say Congress can do it, then Congress can't do it. And the point that you're making, the logic that you're making, of course, there has to be some kind of wiggle room here if we're allowing the executive to enforce the law. Like, maybe we should allow Congress to sort of give up some of that power so the law can actually be enforced in a particular way. And, you know, I think there is play in the joints here.

The Constitution's text, I think, doesn't say everything in part because it couldn't, right? I mean, they understood that they weren't doing anything. They weren't doing everything. They couldn't be exhaustive and certainly not be exhaustive and have people be able to read and understand what they were doing. So, you know, I think there are going to be vagaries here. You know, the whole idea of rights that are not explicit and note that whenever they're talking about these

things that are not in the constitution, no one ever says anything about executive privilege. They love executive privilege. Executive privilege is nowhere written in the constitution, but you know, leave that for another day. Like again, all of this comes back to this idea that we have to be bound by the text in such a slavish way that common sense kind of goes out the window. And we're making all of these decisions, though we know what the framers would do when, in fact, they, too, recognize the limits of their own knowledge on how to deal with issues that they couldn't even contemplate in that moment. Musamari, thank you, as always always for making us smarter on all these issues. We appreciate it and come back again soon. Thanks for having me.

Thanks to Melissa Murray for joining us today and enjoy the election returns tonight everyone. Enjoy the election returns tonight everyone. It's going to be... Oh, this comes out on Tuesday, right? Yeah, it comes out on Tuesday.

Do you think there's going to be like an MSNBC countdown to the countdown? Yeah, there'll probably be. Is there a needle? Yeah, I hope there's a... Well, I'm sure there's a clock up right now. I hear a lot about turgid pros. Turgid pros. Yes, swollen pros.

We're back to turgid. You guys might have forgotten about that, but we brought it back. Turgid waters. Yeah, there he goes. All right. Well, bye, everyone. Please win but we brought it back. Turgid waters. Yeah. There he goes. All right. Well, bye, everyone. Please win, Terry. I think that game was just okay.

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