Pod Save America - “Fight like hell.”

Episode Date: June 28, 2018

Supreme Court Justice Anthony Kennedy retires, Trump and McConnell look to fill the seat before the midterms, and Congressional candidate Alexandria Ocasio-Cortez wins a major upset in the New York primary. Then Nevada Senator Catherine Cortez Masto joins Jon and Dan to talk about the Supreme Court fight and her recent trip to a detention center on the border. 

Welcome to Pod Save America. I'm Jon Favreau. I'm Dan Pfeiffer. In studio, we have Dan Pfeiffer here in Los Angeles. Here in LA. We're going to be doing a book event tonight. Yes, we are. What's the name of the book, Jon? The name of the book is Yes, We Still Can. Yes, got to get that out of the way early here.

Now you've got me nervous that I'm going to forget it. I've been reading it. I just stayed up late last night almost finishing it. Later in the pod, we'll talk to Nevada Senator Catherine Cortez Masto about the upcoming Supreme Court fight, as well as her recent visit to the border to observe the humanitarian crisis caused by Donald Trump. Fun stuff. Yes. A lot of fun topics.

It's going to be a real light pod today. Speaking of the border a reminder that this saturday june 30th there will be rallies and marches in dc and all over the country to protest trump's immigration policies tommy lovett and i will be at the one in la with our friend addy barkin and others please join us or find one near you you can go to act.moveon.org and put in your zip code and you'll find a march or rally near you. They're all over the country, so come join. And here's some good news. Hysteria, our new podcast from Crooked Media, launches today. By the time you're listening to this, it'll probably be out, so go

check it out and subscribe if you haven't already. This is a podcast hosted by Aaron Ryan with a rotating set of co-hosts, including the wonderful Alyssa Mastromonaco, Blair Imani, Grace Parr, Kieran Deal, Megan Gailey, and Ziwe Fumido. Fantastic podcast. And, Dan, your book is out. It is out. As we know. Yes, we still can. Yes, we still can.

Say it again. Say the title. And so we had some exciting news yesterday. We heard that thanks to the wonderful community of Friends of the pod yes we still can we'll debut at number one on the new york times non-fiction that is amazing that's very exciting it's sort of a bittersweet thing because i got the news right as we i was sort of processing the terrible news about justice kennedy's decision that we're going to talk about on this pod but that got me thinking and per usual i had an idea but that idea Mastromonaco. Hysteria co-host. Hysteria co-host, best friend

of the pod, overall life coach. And she had the suggestion that I was trying to think about how to think about my book and continuing to promote it in a world where so much of what we care about is at risk now that Justice Kennedy has retired. And Mitch McConnell is going to try to jam through some sort of horrible human being to take that role. And so what we're going to do is for the next two weeks, a portion of proceeds from Yes, We Still Can, we donated to NARAL. Because the thing that is perhaps most at risk – more at risk than any time in my life in politics is women's right to choose. risk, more at risk than any time in my life in politics is a woman's right to choose. And NARAL is doing amazing work, both nationally and at the state level, to push back on these efforts to restrict women's reproductive freedom. And so I would like to see if we can do this in two weeks, if we could get to 5,000 books

sold, and we will donate my portion of the proceeds to NARAL if we do that. So hopefully this will be a way in which we can at least make a small bit of difference as we think about the book in the context of what's happening in the country right now. That is very good of you and a very good idea for Melissa. Pretty usual. So everyone go buy Yes We Still Can. All right, let's jump right into the news. I'd argue that June has been the worst month of the Trump presidency. and I think yesterday may have been the worst day of the worst month. Yeah, I agree with that. Yesterday was a gut punch. It was a gut punch. Supreme Court Justice Anthony Kennedy, a conservative who still voted with liberal justices on issues like abortion, gay marriage, affirmative action, and other civil rights issues, announced on Wednesday that he'll be retiring from the Supreme Court this summer.

And Donald Trump, shortly afterwards, announced that he intends to replace him before the midterm elections. Senate Democrats only have 49 votes, which is not enough to block the nomination. Dan, on a scale of one to oh shit, Hillary just lost Michigan, where does this fall? Worse than Hillary lost Michigan. Where does this fall? Worse than Hillary lost Michigan. Because we could have lived in a world where Donald Trump was president and he was a national embarrassment who did terrible things. But he did not change the balance of the court because he replaced – even though the seat was stolen, he got to replace a conservative justice who was already one of the four in the 5-4 balance of the court for so many things we care about.

But Kennedy, the most important justice, resigned under Trump. And now the balance of the court will shift or will likely shift in a really terrible direction for decades. And it is – this is the worst thing by far that has happened to the progressive causes that we care about under Trump's presidency. Yeah. I mean, to me, maybe the worst thing about this is looking at the ages of some of the potential replacement justices. And some of them are in their forties. Some of them, I mean, I think last night at a rally, Trump said, I'm going to nominate someone who can serve for 40 years, which means he is thinking about one of the people in their 40s. I forgot until I looked

yesterday, too, that fucking Gorsuch is 50. I mean, this is, it's a long, long time that we're gonna have to live with this. We should mention here that Kennedy's retirement comes after a particularly awful week of Supreme Court decisions already with him on the court. I know, this was the good court. Right. I was like, we're going to talk about the issues where Kennedy's retirement really is going to make a big impact. But there are some issues where it's not going to make a huge impact because he was already

on the conservative majority. Donald Trump's Muslim ban was upheld. There was a ruling that may destroy public employee unions and reduce their membership by a third. There are teachers, government employees, firefighters, police officers. There was a ruling that said crisis pregnancy centers do not have to provide women information about contraceptive services or abortion. There was a ruling that upheld gerrymandered Texas districts that diluted the power of black and Hispanic voters, which came after last month's ruling that Ohio was allowed to purge people from voting lists if they haven't voted recently.

And all of these decisions, I think all of these decisions were 5-4 with Kennedy in the majority. So looks like that stolen Supreme Court seat has already paid off big time, huh? Yeah. I mean, it is the – someone said this on Twitter. It's the greatest theft of – political theft in history and with the greatest consequences because these consequences will last, as you mentioned, decades. Because this would have been a 5-4 court the other direction if Merrick Garland had been approved. And then if Kennedy had decided to resign, we would have reverted back to where we were, to status quo basically, which is not awesome, as you just laid out. But on some of the things we cared most deeply about, that 5-4

majority that has really been around for decades because neither Obama nor Bush nor Clinton changed the ideological balance of the court. Liberal justices replaced liberal justices and the point of conservative justice replaced conservative justices. And so this is the first time we've had a shift. And so the consequences of the Garland, the stolen seat by Mitch McConnell, will haunt us for the rest of our lives. Chris Murphy tweeted yesterday, even before the Kennedy announcement, let's call it like it is, the Supreme Court is turning itself into a political arm of the Republican Party. There's a lot of truth to that. I mean, there was a time when a Democratic president could appoint a justice and a Republican president could appoint a justice, and you didn't know for sure how that justice would rule.

And in some examples, you have justices on the court, still on the court, that were appointed by presidents of a different party or different political persuasion, and they end up being a surprise. It doesn't seem like that's the case anymore. No, everyone knows what everyone is going to do. And I had the opportunity to work on the Sonia Sotomayor nomination both in – as part of the team that was helping President Obama get a list of nominees and think about who was – who would make the best justice and who would be – I was not – as a non-lawyer, I was not really figuring out the legal part of this. But I was helping understand the confirmation politics of various people. And you don't ask the questions, right? You don't ask the litmus test questions. I suspect in this case, on the Republican side, where all the sort of normal norms have been blown up, they ask those questions. And I'm sure we'll talk about this as we go

forward, but the court could have reached this place of incredible beyond the pale politicization when the court ruled 5-4 in Bush versus Gore, essentially handing the presidency to George W. Bush. But it bounced back in the sense that Democrats did not – they did not try to tear the court down after that. They thought that that was not the decision they wanted. The consequences for the country and the world were horrendous. But we needed the court to continue to play its important role as a third branch of government.

And it's hard to see how that happens where we have taken the process of appointing justices and done it with the most cynical political hackery in the history of mankind. Yeah. I mean what's awful right now is depending on who gets nominated, it seems very likely that John Roberts is the swing vote on the court now. Yeah. And look, John Roberts famously was a vote to uphold the Affordable Care Act. He has been, you know, pretty much probably a couple clicks to the right of Anthony Kennedy on just about everything else. But that is the swing vote on the court now. And John Roberts would not be appointed by Donald Trump at this point.

Donald Trump is making sure. I mean, the list is out of the people. He promised he would pick from a list of however many justices. And you can look through all those justices and their records. They're all in the mold of Gorsuch, which is a real fucking problem. Yeah. They're all ideologues. And the thing that's interesting about this is this is the only sort of normal thing that Trump does.

Right, because it's an easy one. Yeah, Trump is going to pick the same person that Marco Rubio, Jeb Bush, or John Kasich would have picked. Because it's like, why not? I saw some takes on Twitter like, is he going to pick Giuliani or Sessions or Jeanine Pirro? He's like, he doesn't have to do that with us. What he wants to do is to placate the conservatives because there's a bargain in this whole fucking thing where it's like we turn away when you steal an election and collude with Putin and say crazy shit on Twitter and jail toddlers.

But you give us some Supreme Court justices in exchange. Yeah. That's the deal. Yeah. Tax cuts and Supreme Court justices is all we want. And we will cover up or enable anything you want. Don't embarrass us with the deal. Tax cuts and Supreme Court justice, this is all we want, and we will cover up or enable anything you want. Don't embarrass us with the pick. I do remember because Obama was an attorney, was president of the Harvard Law Review and a law professor.

I thought he was just a community organizer. Post-community organizing, he really stepped up his game. And he read all the briefs of the people. Like the books he would get were like stacks of binders. He would take them. He would read all the arguments to understand the judicial approach of the people he was thinking about pointing. Now we know Donald Trump is not doing that, right? I mean he basically – I think he just probably has them come in, makes them like run in place for a little bit to see how healthy they are, checks the age on their ID, and is like, is Mitch McConnell cool with you?

Great, you got this seat. He wants to see how they look on TV. Yeah, do they look the part exactly? Which Gorsuch looked the part, right? So let's talk about what is at stake with this nomination. As soon as it was announced, Jeff Toobin, legal analyst at CNN, tweeted out, abortion will be illegal in 20 states in 18 months. So that was a gut punch, to say the least.

Dylan Matthews in Vox wrote a piece, a court without Kennedy is substantially more likely to overturn Roe v. Wade and allow states and maybe the federal government too to ban most or all abortions, reject challenges to capital punishment and solitary confinement, rule in favor of religious challenges to anti-discrimination law, and perhaps in an extreme case, reverse some past Supreme Court rulings on gay rights. Kennedy was also more moderate in the areas of voting rights, criminal justice reform. You know, he helped protect some of the environmental decisions like the Clean Air Act,

the Clean Water Act, the Endangered Species Act. So all of those areas seem to be at risk. Did I miss any? Species Act. So all of those areas seem to be at risk. Did I miss any? I'm sure there are things that will be destroyed that we had even, they haven't even occurred to us yet that they will fuck up. So that is possible. Yeah. The abortion issue is perhaps the most frightening. And I mean, Alyssa talked about this at one of our shows, but there are only, I believe, 17 states right now that have laws protecting abortions and the rest have trigger laws where if Roe v. Wade is overturned, abortion

will immediately be illegal in those states. Some people think, some legal analysts think, you know, it could be threatened by as soon as someone's on the court and there's a challenge, someone who's in the court and there's a challenge, they could overturn Roe v. Wade. Others think Roberts and some of these other people will just chip away at Roe v. Wade with many different cases and slowly just keep restricting abortion rights. Either way, it seems pretty fucking awful. Yeah. This has been the thing that has kept everyone up at night for a long time, which is like so many of these other things, they can be sort of

fixed in law. And here is something that has been essentially 5-4 since the original decision, which I think was not 5-4. But in the time since then, since the 80s at least, it's been a 5-4 majority in favor of upholding Roe v. Wade. And that is what has held it together all this time and we've always been one justice away. And we've just been fortunate that that did not happen when Bush was president and it all comes back to Mitch fucking McConnell because if Obama had been able to, as he should have been, fulfill the Scalia seat, then we would be in a better place today. We'd be in the same place we were before.

Now this is very scary, and it's very scary for a lot of women. Like Alyssa was saying on Twitter, her direct message on Twitter being blown up by women asking what this means, because they're very worried. Because it is worth noting that there are many states in this country which, even in a world where Roe v. Wade still stands, you have the right to an abortion, but they have restricted access to abortion to a point where it's almost impossible. And that's where we are now. And so now we're in danger of something much worse that has just dramatic consequences for so many people.

Yeah, especially poor women, women of color, like people who live in these states, a lot of them very deep red states, that have already threatened abortion rights, that have rolled back reproductive rights. And I think the threat to reproductive rights even before Kennedy was probably greater than at any time in decades in many states around the country. And now it's very, very scary. Let's talk about the reaction in Congress. Mitch McConnell said he wants to vote this fall and that he expects the nominee to be treated fairly he actually had the gall to tweet that or say that this is despite his insistence in 2016 about how it's unfair to consider a scotus nominee in an election year because voters should have a say and who gets

to be on that bench dan does mitch mcconnell give a flying fuck if we think he's the most shameless hypocrite to ever walk the halls of the Senate? No, he wallows in his shamelessness. He fucking loves it. It is so, like yesterday, we still have everyone just, look what a hypocrite Mitch McConnell is.

Yeah, no kidding. He doesn't fucking care if you think he's a hypocrite. That's the whole point. He gets stronger with every tweet that calls him a hypocrite. And Mitch McConnell, this is not to his credit. This is to the opposite of credit, whatever that would be, to his blame. the whole point he gets stronger with every tweet that calls him a hypocrite in mitch mcconnell this is not to his credit it is to the opposite of credit whatever that would be to his blame i don't know but he has no illusions about who he is right he knows he is the super villain here

he is not trying to be he's not he's not paul ryan he's not paul ryan i had a reporter asked me this the other day. Why do you guys hate Paul Ryan so much and not Mitch McConnell as much? Why does Paul Ryan get more shit? And I'm like, because Mitch McConnell just wallows in what a supervillain he is. He loves it. He doesn't care. He doesn't pretend to be anything else than a power-hungry maniac who's trying to win.

That's who he is. He'll tell you that. Paul Ryan's like, no, I'm a... I care about poverty. I'm a sunny conservative in the mold of Jack Kemp. Okay, fucking asshole. Mitch McConnell watches Game of Thrones

in Roots for the Night King. Okay, so that's Mitch McConnell. He is playing... He knows what power power is and he uses power what can democrats do most senate democrats have said that mcconnell should delay the vote until after the election so that's good some of the red state democrats up in 18 like joe donnelly and joe mansion have said they'd like to meet with the nominee first what did you think of the democratic reaction so far and like what what's our play here? I think it's important for everyone to be aware the Democrats have very little leverage here.

If Mitch McConnell wants to jam this person through and he can get 50 Republican senators to vote for them, it doesn't matter what Joe Manchin does. It doesn't matter what Chuck Schumer does. He can just do it because not having the majority in the Senate is devastating in this front. And we know that this is the exact opposite of Mitch McConnell didn't want to have a hearing for Merrick Garland, so he couldn't. And there was nothing that Harry Reid could do to make him do it. I don't have an objection to Democrats being willing to meet with the nominee if Trump nominates someone.

Like, I think that's fine. I don't think that matters. I think they should all on principle vote against him. I think they should raise holy hell about this. I think they should walk out of hearings. I think someone should go to the Senate floor and stay there until they collapse. Everything we can possibly do to draw attention to this fight, draw attention to the stakes here and what matters, so that at least the Republican senators who vote to confirm this justice, the voters will know what they have voted

to do. That's right. That's exactly right. Every voter should know that every Republican senator will be responsible for voting to outlaw abortion in the united states that's what the vote will be and you can't get i mean you can see already so susan collins ostensibly pro-choice republican senator has voted that way in the past lisa muskowski from alaska same thing they've been interviewed yesterday they're basically the only hope here to the extent that there's hope and they say you know susan Collins said, I consider Roe v. Wade settled precedent. I want a Supreme Court justice that recognizes settled precedent. And so I'll be looking at that. You know, Lisa Murkowski said there's gonna be a very high bar for me. This is important to me, blah, blah,

blah. So not that we should place all of our bets on these two, but they are at least right now, they haven't decided that they're definitely going to vote for this person yet so that's where all the pressure should be and i think as much pressure as we can bring to bear on like you're right the first thing we have to do is make sure that all the democrats are on board is saying no and if donnelly and heidkamp and all these people for whatever appearance whatever else, want to go through the motions of saying, yes, we'll meet with the person. Yes, we'll consider the person. We'll give them a fair hearing so they can go tell voters that they were fair.

Whatever. Whether I agree with that strategy or not, leave that aside. As long as at the end of the day they're telling Chuck Schumer right now we're going to be there as a no vote. Because if you get all 49 Democrats as no's, then you need Murkowski and Collins, because they have two defections, they lose it. So then it's a question of how much pressure can be brought to bear on those two senators, I think, right? I think that's exactly right. And there is a principle here. And we're in this place because of a stolen Supreme Court seat. So if you vote to confirm right-wing ideologue X that Trump will nominate, then you are giving bipartisan cover to this historic political theft.

And you are okaying it. And we cannot do that. And I think that is incredibly critical. And it is going to be hard and painful. And there's going to be pressure on all of the red state senators who are up this time. The Koch brothers have already said they're going to spend millions upon millions of dollars on this. There will be ads and we have to be tough. And I think tough is still, even in these red states, the right politics because people are going to be devastated. Progressives, you need to turn out in the swing left in individual chapters in West Virginia, in Indiana, in North Dakota, they will feel betrayed if Democrats put their imprimatur of approval on this nominee. And so I think we have to do that. It may – we can all do

that and still end up with Trump getting this person through. That is very possible, maybe even likely, because counting on Susan Collins and Lisa Murkowski, we've been down this path before and it hasn't worked every time. But if Joe Donnelly or Joe Manchin or whoever else, any, not to pick this two out, but any two Republican, red states senators come out in the next week or so and say they would be, or come out right after the nominee and say they're for it, takes all the pressure off them. And that's a huge mistake. And by the way, outlawing abortion completely is like a 20%

position in this country. You can get into red states and find people who have mixed feelings on this, who might want some restrictions on abortion. But the idea that Roe v. Wade would be completely overturned, opening up to completely eliminating reproductive rights, that is a position, that is a very minority position in this country, even in some of these states where a lot of these red state senators are at. Well, it's worth remembering. It's one thing to say they're going to outlaw abortion. There's another way to think about it is that you are going to criminalize abortion

and that women who have abortions will be put in jail in this country. Even Donald Trump in the campaign had to walk that back. So even our biggest right-wing troll felt uncomfortable in that position. And so one, we have the moral side of the argument because this is the right thing to do. We also have the high side of the political argument and we have to make that. And if we fold right away, I really worry about what that's going to mean, not just in those states for those red state senators, but across the country, because it's going to be the people who've been marching in airports at the women's march everywhere else, the March for Lives are going to feel betrayed. And if they feel betrayed and they think, well, what the fuck difference does it make

with a Republican or a Democrat? They may stop knocking doors. They may stop making phone calls. They may not turn out to vote. And then we're not going to take the House back either. And well, that's – I was going to say, like if you're a red state Democrat, the other thing you have to think about is like do you want volunteers in your race? Do you want the people who are registered Democrats who are hardcore activists in your state to come out to vote? Because you're going to need them. You think you need swing voters, but you're going to need the base too in a big way. And what someone does in a red state is going to affect what happens in a blue state.

We don't live like – we live in the internet age. Everyone knows what happens. And so like Democrats betraying our principles in a red state is going to affect turnout in a blue state. I saw someone online, Tofer Spiro, said that right now there should be a Democrat in Maine who announces a 2020 challenge to Susan Collins. You know, like there's got to be – it can't be just like please and, you know, to these senators. Like we've got to put real pressure on them. Like Susan Collins has to be scared that she might lose her job.

Yeah. Lisa Murkowski should be scared that she might lose her job. Lisa Murkowski should be scared that she might lose her job. So if you're in Maine, Alaska, you know people in Maine, Alaska. Again, we went through this with ACA. It worked for ACA. It might be harder on this one, but you need to pressure them. Let's talk about what else Democrats can do tactics wise. There was a piece in Vox that was written before this announcement that said that Democrats could shut down the Senate by refusing to participate in roll call votes since the Senate can't do anything without a majority of its

members participating in a vote. I think like you said, like we should try everything. I wonder, Mitch McConnell runs the Senate. He makes the rules. He has all the power. I wonder that even if Democrats try to shut down the Senate, if he can't just change a rule and keep going. Yeah. I mean you and I both worked in the Senate for a long time. We really didn't learn the rules of the Senate when we were there. So I don't really know. I don't think the people in the Senate know the rules of the Senate well.

Yeah, most people don't. Mitch McConnell does unfortunately. So I think he probably can change rules. It's worth remembering that when Obama was president, the rules were – originally you needed 60 votes for all nominees. We changed that rule for executive nominees because we literally couldn't get our cabinet through. Our CIA director, our labor secretary, our EPA administrator were being blocked. And just in a world where you only have 50-some senators, you can't run a government. Then that rule was changed for judges.

But they left it for Supreme Court justices. Mitch McConnell changed that rule to get Neil Gorsuch through because he could not get 60 votes for it. And so Mitch McConnell will change any rule that will help him accumulate or maintain power. So that's the thing. I have a way of thinking about how Democrats – what Democrats can do because this – look, this is dark and it is painful and we sound dark and pained here and we are. This is not – we're not putting – we're not acting here. But there are things we can do. And so I think about this as like what can we do in the short term, the medium term, and the long term to deal with this massive problem? So short term is blow up the fucking phone lines at the Senate. Yeah. Show up at offices. Do it in Maine. Do it in Arizona. Do it in Alaska, but also do it everywhere. And even if Democrats you think

are going to be with you, show them that you care that they're with you, right? Like Chris Murphy said all the right things. People should be outside Chris Murphy's office applauding Chris Murphy, right? So that's short term. And part of that is just the more noise we make, the more the public will be aware about what's at stake here. So even if, as we said, if Republicans get this through, the public will know the horrible thing they just did. Right. Otherwise, they're just going to sneak it through in between Trump tweets and stories about Russia.

No one's going to have a fucking clue. That's a good point. Like, we did well when media coverage was saturated with the fight over the Affordable Care Act, the fight over the tax bill. And when the media coverage is saturated with Donald Trump's tweets and Russia and, you know, all these fights that he picks with everyone, it's messier and voters turn out and people don't care as much. Like, make this a fight that people cover day in and day out for the next couple of months. So that's short term. Here's the medium term thing, which is we

have an opportunity all across this country this fall to win governor's mansions and state legislatures because what we have to do is put in place progressive governing majorities in as many states as possible who can pass laws to protect women in those states from what the Supreme Court does. It's not going to solve all the problems, but we need – we can still make progressive policy and do the best we can if we have the people there to do it. Republicans have been chipping away at a woman's right to choose for years by winning state legislators, winning governor's office, and passing onerous, horrendous, misogynistic laws. We can do the opposite. Yeah. Daniel on Twitter had a great thread about this. He said, you know, we can elect governors who will veto abortion restrictions and gerrymanders. State lawmakers who will expand labor and reproductive rights. Secretaries of state who will replace aggressive purges with voting rights agenda. He used the example like this whole voting rights purging case was in Ohio.

So that's it's horrible. Right. But there's right now a secretary of state race in Ohio. And if the Democrat wins, that Democrat won't be purging anyone from the Ohio voter rolls. And so that Supreme Court ruling won't matter that much in that state. That's right. DAs, district attorneys will refrain from cruel punishments like the death penalty. Missouri on the ballot, there's going to be a right to work referendum if you didn't like the public union ruling. In Florida, there's a voters rights restoration amendment. The Supreme Court fucked up the Medicaid expansion for the Affordable Care Act. Well, now it's going to be on the ballot in Idaho because people got the signatures and they're going to try to expand Medicaid in Idaho. So you're right. The Congress is awful and nothing good is ever coming out of this Congress. We're going to hopefully change that in November. But we also want to change all these other offices from DAs to secretaries of state, all these – like it really, really matters. And then so here's my long-term thing. Yeah.

Democrats should make it a core part of our platform for statehood for DC and Puerto Rico. Yeah. Like one, that is the moral right thing to do because these are American citizens who are underrepresented in our government. They have no say in what happens in Washington and they're being affected. I mean, in particular, Puerto Rico in the wake of the hurricane. But it's the right thing to do, but also we should be pushing for it. It could take decades to solve that problem, but we should start now. Yeah. So let's talk about who this motivates in November to turn out because there's a lot of hot takes flying around about this yesterday. I think a lot of people, and this was before McConnell and Trump announced they wanted to get this nominee through before the midterms, were like, oh, this is a huge gift to Republicans. It's going to motivate Republican voters like never before.

I think there's a good case for that if the hearing was going to be after the midterm elections. But if they already get them through, I don't know that this motivates the Republican base as much as it motivates Democrats. I should sure as hell hope it motivates the fuck out of Democrats because this – you need no better example. Like we have been arguing for a year and a half now that 2018 is the most important election in American history. It is even more important now because of what is at stake here. And it's not just that this issue may be resolved in the worst way possible before the election. It's also that it is a reminder of how fragile the things we care about are. And when we lose elections, everything is at risk. And not just for two years or four years or six years, but maybe for 40 years. And so if we cannot use the theft of a Supreme Court seat, the potential criminalization of

abortion, the gutting of unions, voter suppression laws, everything that has happened in the last week, and it could happen going forward because of this, because of the change in the Supreme Court, to turn out the progressive majority in this country, then we have failed in a horrible way. That's exactly right. And look, let's be very clear why we're in this situation right now and why McConnell was able to steal a Supreme Court seat. It is because of the 2014 midterm elections. Ezra Klein wrote a piece about this, said when the votes were counted weeks later, the

turnout was 36.3% in the 2014 midterms, the lowest it had been in 72 years. And Republicans, as a result, picked up nine Senate seats. They took control of the Senate for the first time since 2006. And it mattered in a big way because 400 and something days later, Scalia died. McConnell was able to steal the seat. And that was that. later, Scalia died, McConnell was able to steal the seat, and that was that. So anyone who thinks that a midterm doesn't matter, or that showing up doesn't matter, or that elections don't matter, they fucking matter. Because that election in 2014, which didn't seem to a lot of people like

a very big deal, potentially changed the course of this country for generations because of what happened. Look, this is really tough because I worry Democrats have to do everything they can to fight this. But we also know in the back of our heads that there are 49 votes and they're not going to definitely be able to stop it. And I am worried that if we can't stop it, if Democrats can't stop it in the Senate, then everyone who's been excited and motivated since Trump won on our side is going to think, fuck these Democrats, they couldn't do anything. I might as well just stay home and not vote. And let me tell you, voting in this November, voting this November is, we've said this before, now it's really fucking true, literally the most important election of our lifetime, ever, more than a presidential election at this point. This is like the last call for democracy. That's what he said on the last poll.

Because here's how the Supreme Court thing shakes out. Kennedy is replaced by a conservative. The next two seats that are possibly up are Ruth Bader Ginsburg, who is 85 years old. And after her, the next oldest justice, oh, then Breyer is like 80. Two liberals on the court. And then you've got the next conservative that we have that we could possibly replace to change the balance of the court. You've got Clarence Thomas at 70, 71. And if we get a Democratic president in 2020, hopefully, then if they can hold out, or at least if we have the Senate, then we have the possibility of replacing Ginsburg and then maybe Thomas with liberal justices.

And if we get to replace Thomas with a liberal justice, then we're back to a 5-4 majority. This is all, by the way, like a 20-30% chance of happening, but we at least have to act like that's what we're shooting for here, is to hope that for the next conservative retirement, which is probably Clarence Thomas, that we have a Democratic president in place, that we haven't lost any more justices,

and we can return it to 5-4. It seems like it's really far off, and it's really fucking hard, and it's like a low chance of it happening, but we have to work like that's what we're going for right now. And we have to have the Senate, because let's say that President Tommy Vitor is sworn in. Tommy!

I was going to do love it, but that would be a thing. So it's better. So President Tommy Vitor is sworn in in January of 2021. The next day, Clarence Thomas announces he's retiring for whatever reason. If Mitch McConnell

was the Senate leader, he will not put a justice through. Yeah. I'm sorry to everyone who's crying about the loss of norms, but we are now in a situation where a president

cannot nominate a Supreme Court justice unless a member of his party controls the Senate. Yeah. That is where we are. That is thanks to Mitch McConnell and the Republican Party.

We can decry the loss of civility and norms and institutions in this country. It is very sad. I agree with that. But that's where we fucking are. And so we've got to play that game too. Right.

I think... Because you know what? Norms are great. People's lives are at stake at this point we were people who believed in norms we're institutionalists we worked for Barack Obama and I believed it then and I want to believe it now

but the Republican Party like so crazy liberals have radicalized Republican voters and stuff like that Republican Party has radicalized me you know, Republican voters and stuff like that. Republican Party is like radicalized me. Because it is all a game. It is a game to take power and use that power. That's who they are.

That's at least the Republicans in Washington, Republican politicians. We can have another conversation about voters in this country. But the people who are in Washington, the Republican Party is in Washington, is all about taking and keeping and using power at any expense. Norms, institutions be damned. And the reason this is so hard is they care about two things and only two things. I mean obviously owning the libs is the main reason they come to work every day. But other than that, what it is, the balance of the courts and tax cuts for rich people.

And this is where it gets so hard because on all the crazy Trump shit, they'll let it go because of the courts and tax cuts. And they will have a black stain on their soul for the rest of time for that. But they're not enthusiastic about it. They do what Marco Rubio does. They send like sad plaintiff tweets for whatever reason. Or Paul Ryan just looks sad as he's doing it. But here, this is where the entire – this is why the tax cut bill passed. The entire machinery of the Republican Party and the conservative wing, the establishment wing, unites with the white nationalist Breitbart white identity politics wing to push through this stuff. And we're going to have to fight.

And I – like this is why the takes about this are so bad, is maybe it'll help Republicans, maybe it'll help Democrats. We get to decide that. Right. Right? That is up to Democratic elected officials and Democratic voters to decide.

We have a set of facts now. A Supreme Court seat is open. There's going to be a fight for it. And the balance of the court's at stake. What are we going to do with that information? Are we going to be sat and hiding under the fucking table? Are we going to fight like fucking hell for it and be rewarded by voters who will turn out en masse to throw these people out of fucking power?

And that's what it, like, don't listen to the pundits. Just make it happen. We are masters of our fate here. That's right. Speaking of November, let's talk about Tuesday night's primary upset. In the New York 14th Congressional District, Alexandria Ocasio-Cortez, a 28-year-old organizer who was a bartender just last year, defeated Joe Crowley, the fourth-ranking Democrat in the House who is considered to be a frontrunner to eventually replace Nancy Pelosi as the Democratic leader. Ocasio-Cortez is a former Bernie Sanders organizer

who supports Medicare for All, a job guarantee, and abolishing ICE. The last time Crowley faced a primary challenge, Ocasio-Cortez wasn't even old enough to vote. Dan, what happened? Why do you think she won? I think everyone has tried to draw national lessons from this, and it's too early to know anything. Here's what happened. The better candidate... Do you mean to say that people irresponsibly drew huge national conclusions from one race? This is a thing, John, that a lot of people don't know, but... And did those conclusions match those people's

specific political and policy preferences? On all sides? This is the thing people need to understand to understand how political punditry works is you have a take quota.

You have to get like a dozen takes by noon. And so you just got to throw them out there. Like, here's what happened. The better candidate who ran the better race, who is a better fit for her district ideologically and issue-wise won the race. That's right. Maybe it will say something more about a anti-establishment for her within the party beyond this district.

It very well may. We will know that. We haven't seen that yet in the primaries to date. We may see it in the ones to come. But someone who was undoubtedly going to be a star in the party ran an incredible race and won. So we'll see what all of that means. And I think there are models for – lessons people can learn from her race. And they may apply differently from district to district or state to state. But being a really good authentic candidate who campaigns passionately for what you believe in is a model that applies whether you're in a district that Hillary won by 10 or a district that Trump won by 10.

Yeah. And I would say that her – if you've seen her video, her video was outstanding. And what she does in that video is it's not just a bio spot, an incredibly compelling bio spot because she's got an incredibly compelling biography. But she was also very clear on the issues, right? She's a democratic socialist, but basically what she talked about in the video was very simple, bold, progressive policy solutions. Medicare for all, federal jobs jobs guarantee criminal justice reform and it wasn't like it was an interesting mix of talking about issues in a very like morally clear way without taking off some laundry list of proposals it was like a few very big ideas and i do think i don't have a ton of evidence for this but i do think that isn't very compelling to people. Obviously, the district was a good fit for her, but I think it's just

compelling in a broad sense too. Yeah. I mean, there is a recent model of this, which is it's very similar to how Bernie Sanders ran. Right. And for whatever grievances or tension still exists in 2016, from the 2016 primary, we would be fools as a party not to look at how Bernie Sanders ran his race. And it's not just that he did very well. It's that he built a movement and he got people fired up to campaign for him. He made that campaign feel like a cause. And he did that by making a moral argument around simple policy issues. He did not talk like a pollster wrote his talking points. He did not try to split the difference and try to explain why climate change is important by talking about the number of green jobs in the district. He talked about saving the planet.

And Ocasio-Cortez is the same way. She had the best quote when someone interviewed her after she found out she won. And they said, oh, what do you say about people who say that some of your positions are pretty radical and she said there's nothing radical about moral clarity in 2018 yeah it's like put that in a fucking bumper sticker yeah and i think so some of the lessons that democrats can learn one is i think is like don't be if we say this all the time don't be afraid don't run afraid be bold and be confident in who you are and what you believe in and don't try to trim your sails because you're worried about some what a fucking poll says we talked about bold simple ideas i would also say organizing over money joe crowley had so much money and raised an incredible amount

of money in this race she had almost no money she spent like a couple hundred thousand dollars i think but what she did have because she's an organizer, is an incredible organizing network. And she went out and she found voters. And also, she found voters who hadn't voted before. And she said, people told me, you have to go to the people who voted in the last three primaries in this district. And I said, that's crazy.

I should go out and find new voters. And she did it. Because they voted for Crowley if they voted in the last three primaries. Right. Any other lessons that you took from that? Well, I think those are all exactly right in that she just ran a really great race. So I'd say a couple things about Joe Crowley, which is he's a good human being.

He is. Like maybe he – And he's progressive. It's not like she was running against a centrist. Yeah. He's pretty progressive. Yeah. And I mean he clearly was complacent in this. Not showing up to the debate was a huge mistake. But he's been a good Democratic member of the Congress and a good guy, and he could not have been classier in his defeat. And here he – he's an excellent musician apparently, and he played guitar.

Born to run. Born to run for her, which I think – Dedicated to her. He probably had no idea he was going to lose, and he handled it like a great human being, and I think that's worth noting. Some people have mentioned to me when I tweeted about this yesterday and some of our listeners said, you guys never talked about this race on the pod. Did you miss something?

And maybe. Perhaps. Yeah, I think that's true. I noticed there was a few – it was in sort of the periphery. I mean there's so many races going on. It was sort of in the periphery and I noticed it in the last couple of weeks because people started saying, is it possible that Crowley might lose? And so I was looking at it.

They intercepted some great reporting on that they were there first and i did i had seen the video a week or two before the race and i was like this is a fucking great video yeah i also think there's something and i i tweeted about this but the media especially dc media tends to equate being further to the left with being angrier and more strident. And so, you know, they think, oh, is the party being taken over by people who are just angry and hate Trump and stuff like that? She was inspiring, galvanizing, optimistic, hopeful during this campaign. And some people on the left, you know, corrected me and said she was also angry too. That's right. I think there is a difference between being angry on behalf of people and angry because of injustice in the world and being angry only at your opponent or at Donald Trump and just like slinging the best sick burn you can find against your opponent that someone gave you for a debate or something versus having a passion and an anger about sort of inequality and the injustices you see. And I think that latter

type of anger and passion is galvanizing and optimistic too. And in a way, it's optimistic. You know, some people, you know, the people who mentioned to me that we had not mentioned this race said, does that indicate some sort of pro-establishment bias on your part? And my answer to that is I don't know, maybe. I think in this case, like you, I tuned into this one very late and I've spent most of my energy and time with my daughter. When I can hold her and hold my phone in the other hand, the races I have been looking at are the ones that are – where democrats are taking republican seats or trying to hold seats against republicans as opposed to safe districts. But I do think it is worth paying attention to these primary challenges because they could mean all kinds of things. They could mean something very specific about Joe Crowley, very specific about this district. They could also mean something that we sort of know to be true.

And it's a question of when, not if. We get a new generation of leadership, particularly in the congressional wing of the party. Right. I mean, like the statistics. We need it. We need young. There are a lot of like really young, great members who have come to Congress the last few years who are making names for themselves. But there are a lot of really great young candidates out there who are doing it.

And some of them are doing it by challenging Republicans, like Beto O'Rourke. And some of it are doing it by challenging Democrats. And you see a similar thing here in California with Kevin DeLeon challenging Dianne Feinstein. If Kevin DeLeon were to win that, which I think is very challenging based on how the primary went, he would be a very exciting new figure in Congress. And I see the same thing happening in the race we just saw on Tuesday. Yeah. No, I think this was about her and not about Joe Crowley, too. I like Joe Crowley, but I found myself very happy that she won because I was like, that is someone who should be in Congress. That's right. Because that energy, that message, that kind of inspiration that she's

offering, this party could use a lot of that. That's right. When we come back, we will have Nevada Senator Catherine Cortez Masto. On the pod today, we have Senator Catherine Cortez Masto of Nevada. Senator, how are you today? I'm doing great. How are you? We're pretty good. We're pretty good. Let's talk about the awful news from yesterday. Two years ago, when Barack Obama nominated Merrick Garland to an open Supreme Court seat, Republicans refused to even hold hearings to consider him. Trump now has an opportunity to nominate another justice. How are you planning to approach this nomination process? Do you think Democrats should approach this with the same attitude Republicans took when

the last seat opened up? Well, a couple of things. First of all, it's hypocritical, right? I mean, of course, if the Republican leadership and Mitch McConnell were going to be true to their word, then they would say, let's wait till after this election. We'll have new members in Congress. This is a lifetime appointment and they should be able to weigh in. But we know that's not going to happen. We also know that they're in leadership. So they literally, and Mitch can set this hearing if he wanted to next week. And so to me, that's the hypocrisy of what I have seen with the Republican leadership. But I also know, and I think you both know this, Mitch McConnell's legacy is stacking

the federal bench, including the United States Supreme Court, with these conservative right-wing judges. And he's going to continue down this path. And he's got control of the agenda because they're in leadership, and he gets to do so. And the only, really, one of the ways that we need to put a stop to this is take back control of the Senate or the House. Senator, I'd like to ask you about what you feel is at stake here with this seat. Jeffrey Toobin tweeted yesterday that he believed that abortion would be legal in 20 states within 18 months. Do you agree with that? And how are you thinking about this nomination yourself? Oh, I absolutely agree. I think a woman's right to choose is absolutely on the line right now. I mean, you know, in Nevada, think about this. In Nevada in the 70s, we had women who codified Roe v. Wade by initiative petition.

So we have fought to protect it. Now we have a governor's race where the Republican candidate, who is a Trump supporter, is talking about taking away a woman's right to choose. And it's unbelievable to me in this day and age that we are still trying to limit women's access to health care and take away their choices, but that's what we continue to see with Republicans. And we know that it is happening with this administration

and Republican Congress. We see it all the time. I bump up against it all the time, where these poison pill amendments, where they want to continue to take away a woman's right to choose about her health care. And so, yes, I discrimination, all of the things that we have fought for and those protections we have put in place over the last 30, 40 years, everybody should be concerned about those being rolled back.

Senator, we were just talking about, you know, obviously Democrats only have 49 seats, but, you know, a lot of Democrats and a lot of Democratic voters and activists have been saying, you know, the Senate's got to fight this. Democrats in the Senate have to fight this. What is the strategy here? What is the plan to fight this nomination? Oh, I think you're going to see that this fight full on. We are not only going to be united, but we're going to galvanize the base.

Similar to what we did when they tried to repeal the health care. I think it's, you know, we are in the minority, but it's good that we have 49 Democrats. That means we only need one or two Republicans to support us and come our way. We were able to do that when we fought back the repeal of the Affordable Care Act. I think this issue, particularly when we're talking about a woman's right to choose in health care, I know there's some of my Republican colleagues who will stand up and fight against taking away the right to choose. So I think this is an effort to really galvanize our base, be vocal, get out and talk like we did against the repeal of the Affordable Care Act, make sure that the country understands what's at stake. For personally, for senators, I think we're going to use every tool and procedure that we can to fight this and to continue to shine a light on it from the Judiciary Committee, along with each individual senator, as you well know, that has the opportunity to talk to these nominees, question these nominees, and highlight the concerns if we have those with the nominee who's ultimately chosen.

Senator, do I hear in you some confidence that your colleagues from the states that Trump won, who may be up for re-election this fall, will stand with the rest of the Senate Democrats in opposition to this nomination? I cannot guarantee what they're going to do in the future. I can only tell you what they've done in the past. And they have what I have watched over the course of at least the year and a half that I've been here. There are some on the other side of the aisle who have stood up for women's rights and health care and women's right to choose. Senator, we've all watched in horror as more and more stories have come from the border, where Trump's zero

tolerance immigration policy resulted in thousands of children being separated from their families. You went down to Texas this week. Where did you go and what answers were you looking for? Well, you know, first of all, the answers I'm seeking is because I could not get a straight answer from these federal agencies. No data, no information about where the children are, why are they separating the families? Are they still separating the families? How come they cannot first bring these parents and the families in to process them. And then I went from there to the Isabel detention facility where after they're made to plead either guilty or not guilty to a criminal charge and separated from their children, then the adults are sent to this detention facility. I also tried to get into one of the

facilities where they actually take the children to care for them. It is called Casa Presidente and could not get in. I wanted to see these tender age children because I've not seen anything having to do with the young children, where they are, where the girls are. I wanted to see the conditions, but there was a refused entry. What reasons did they give you for not being let inside? What reasons did they give you for not being let inside? First of all, let me just say, it was a locked entry. So you literally had to buzz to be able to try to get in. It's a glass door, so I could see right into the reception area, and they could see me, but they weren't going to open the door to let me in. So I buzzed and said, I'm a United States senator from Nevada, and I would like to talk to the manager, somebody in charge here,

because I would want to see the children, the conditions they're held in. And I have a few questions because I'm not getting answers from HHS or any of the federal agencies. So they said, well, we can't let you in, but we'll send somebody out to talk with you. And then a few minutes later, they sent out a doctor who runs a facility, allegedly. And he said, I can't talk to you and handed me a piece of paper, which listed the communications director's name, as well as a phone number of the individual who works for this private company, Southwest Key, and said, you have to call this individual. I cannot say anything. And I stood there trying to question the doctor about, well, how long have you even worked here? What are you seeing? And he kept saying, I cannot talk to you. I cannot talk to you. And then he went back inside, wrote a number and a name on a sticky post-it, came back out and said, oh, and by the way, here's another person

you should call. And I said, well, who's this person? Because it didn't say even who they're affiliated with or their title. He said, I don't know. I just know I can't talk to you. And here's this information. So we called that number. And of course, that's somebody with HHS, indicating that members of Congress are not allowed in and we have to give them two weeks notice before we could get in. And my question to this individual is, are you telling me that you have to do a background check on members of Congress? I have the highest security possible. And you're telling me I have to do some sort of background before I can go in and see these children. Oh, no, no, no, we don't say that. We just we're limiting and trying to coordinate all of the visits. So we're going to give you dates when members of Congress can go. And we're going to tell you which facilities you can go to. And by the way, you can't go to this facility that's

in southern Texas, you can go to the one in New York. I mean, it was just outrageous. If we lived in a world with a functioning majority in Congress, this would be the sort of issue that would be the subject of oversight, where oversight would mean more than one senator showing up at a facility, there would be hearings and subpoenas and using the power of Congress to demand answers from this administration. I hesitate to ask this question because I'm afraid the answer is going to disappoint me. But do you see any indication that some of your Republican colleagues are willing to use that authority to try to get some answers so we can learn more about these children and

try to push the administration to reunite them with their parents sooner rather than later? No, not at all. In fact, we've been demanding hearings and can't get them. So that's why Jeff Merkley, Senator Merkley, organized a shadow hearing yesterday that we all attended. Because only the Democrats were willing to really focus and figure out how we address this issue and force this administration to stop zero tolerance, reunite the parents, and show the impact it's having long term, not on just the parents, but these children and how traumatic it is. It's outrageous to me. You're absolutely right. I think under any other administration, this would be an outcry by Congress as well, wanting answers and to stop this policy of separating families. But you both know

this administration, this is a dog whistle for their base. I mean, this is his political, this is how he uses these families and these children for some sort of political gain. And it is inhumane. It's outrageous. I mean, you know, I had the opportunity when I was at the detention facility to meet with some of these mothers. There were six mothers that I sat down with. Every single one of them came to this country seeking asylum because they were being persecuted, meaning they came with their children because of death threats or being raped or extorted. And when I said to them, well, why don't you go to the police and seek help from the police? They said, the police are part of the problem. You can't go to the police because they're part of the gangs or they're part of the criminality that's going on and they won't help you. And so these mothers said,

the only thing we knew is if my child's life was on the line or my life, we just knew we had to run. And I said, why did you come to America? And every single one of them said, because we know that in America, there is the opportunity that you have a helping hand, you're welcome, and there's the opportunity to be safe. And I can't tell you how heartbreaking it was, because when I talked to these women, and one of them, her name was Anna, she was telling me how she crossed, what, over 3,000 miles of rough terrain, dangerous terrain, with a five-year-old. They'd never been separated. And when she got here and she thought, oh my gosh, I finally made it. She saw the border patrol. She waved them down. I'm going to be safe. What do they do? They bring her in. They arrest her. They lock her up. And then they take away her child and don't tell her why they're doing this. And this is the first time she and her child have ever been separated.

She has no idea where her child is. She hasn't had contact. And these women, and along with all of them that are in this jail, are not given information. They were asking me what was going on on the outside. Do you know where our children are? Do you know how we can, what's going to happen next? They had no idea. I mean, you know, you walk into what's going to happen next? They had no idea. I mean, you know, you walk into this Isabel detention facility where these parents are being held,

it is, it looks like a prison. I mean, if I walked into a state prison, and I know them very well in Nevada as attorney general, prior attorney general there, it looked like a prison that you would see in a state, a facility in a state. And I just do not understand why, how this is going to be a deterrent and why we would treat people that are seeking asylum, the laws that we have created to help people who are victims, why we would want to turn them into criminals and then go further and separate them from their children. Every single one of these women had children that were tender age under the age of 12. Senator, do you think the uproar over this issue, the family separation policy, has changed the politics around immigration? I'm wondering how you think Democrats should be talking about immigration in this election. Obviously, you're in a state where Jackie Rosen

is trying to defeat Dean Heller. So we have another Democrat in the Senate. You have a very large immigrant population in Nevada. How do you think Democrats should talk about this issue in the fall? I think by coming out and being outraged like we are about the family separation. Because, you know, I was just in my home state, and there were so many people that came up to me that were so upset what was happening, because they imagine something like that if that were ever to happen to them and their children, what they would do and how they would feel. There were so many people that came forward and said, I want to be involved. I don't know what to do, but please tell me. Let me know how I can be active because this just

is outrageous me and this is not what our country is about. And that was whether you're a Democrat or Republican or independent, I think it crossed those party lines in that sense from the people that I talk to. And so this is the issue that I think many of us should be talking about because it is about what's in the best interest of these children. It is about reuniting these families and keeping them together. That's the focus here. What gets lost in all this conversation is we forget our laws in this country, our child welfare laws, the laws that we pass are always looking out for the best interests of children. And I don't care whether they're American children or children from foreign countries or from Honduras or Guatemala or El Salvador, we always look out

for the best interests of children. Yeah. Senator Cortez Mastro, thank you so much for joining us today. And thank you for going down to the border so we can all hear what's been going on down there. We appreciate you stopping by. Thank you, Dan and John. Thank you so much. Enjoy the show. Thank you. Keep up the good work. Thank you again to Senator Cortez Masto for joining us today next week holiday schedule john and tommy and i will be doing our usual recording monday night for a tuesday pod and then dan and i will be recording a mailbag podcast on tuesday that will go out on thursday july 5th because of the fourth weekend so we will send out email and on social media, not an email, we'll send out... These people emails?

What am I, what is it, the 90s? Anyway. We will page all of you. We will tweet for questions on Facebook and everything else so we can answer some of your questions on Tuesday. And yeah, and then otherwise we'll see you on Monday. Talk to everyone next week. Bye.