Pod Save America - “Kavanuts.”

Episode Date: July 10, 2018

Trump nominates Judge Brett Kavanaugh to the Supreme Court, escalates his trade war with China, and gets played by North Korea. Then former Supreme Court clerk and White House lawyer Karen Dunn talks to Jon, Jon, and Tommy about how Democrats should approach the coming Supreme Court battle.

Welcome to Pod Save America, I'm Jon Favreau. I'm Merrick Garland. I'm Jon Lovett. Today on the pod we'll get a reaction to Trump's Supreme Court pick from Karen Dunn, a lawyer who clerked for Justice Breyer and helped shepherd the nominations of Justices Sotomayor, Kagan, Merrick Garland. So, you know, two out of three is not bad. When she was in Obama White House counsel. This is Tommy. I'm not really Merrick Garland.

Tommy's here, not Merrick Garland. We are also going to talk about the political wisdom of... McConnell wouldn't really Merrick Garland. Tommy's here, not Merrick Garland. It's Monday. We are also going to talk about the political wisdom of... McConnell wouldn't let Merrick Garland come here. Couldn't get him a spot. Barred the door. He's in the parking lot. We're also going to talk about the political wisdom of Trump's intensifying trade war and Secretary of State Mike Pompeo getting owned by the North Koreans. Housekeeping.

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thewildernesspodcast.com to check out episode titles, descriptions. Subscribe to it. And all the guests that we have on this wonderful podcast. So that's The Wilderness. Any Pod Save the World or Love It or Leave It announcements to talk about? Let's get to the show. Great. I was going to say we had a great Love It or Leave It.

You should check it out. But if I move on, once in a while, you know, it's okay. Keep going. Okay, we'll cut that part. Anyway anyway uh okay let's get to the news uh president trump nominated to the supreme court brett kavanaugh a 53 year old judge who currently sits on the united states court of appeals for the district of columbia circuit kavanaugh spent most of his life in republican politics he worked as staff secretary for george w bush before that he worked Ken Starr in the 90s, where he investigated whether Vince Foster's death was really a suicide and helped write the report to Congress that led to Bill Clinton's impeachment.

Blast from the past. Going to be fun for everyone. Since then, however, he's also said that indicting a sitting president would ill-serve the public interest. 538.com ranked the ideologies of these potential nominees, and Kavanaugh ranked as more conservative than Kennedy, Roberts, Alito, and Gorsuch. Basically, as right-wing as Clarence Thomas. Gentlemen, first reactions to this pick. I mean, I think we all just, this has been a bad day for everybody, and I think we all just need to be honest that this is a seismic shift in the makeup of the court. We've now gone from Kennedy is the center swing to John Roberts is the center of the court.

He is the swing vote to the extent that there is one, which shows you how much it's shifted. And like, I hate to give the Trump White House credit, but they've done an effective job of managing this process. They did so with Gorsuch. They prevented leaks. They're selling their nominee in a primetime address. But it's also an example of Trump being fully owned by these interest groups. I mean, thinking back during the campaign, Trump sort of floated his sister as maybe being on the Supreme Court. Remember? And then Ted Cruz kicked the shit out of him for it and called her a radical pro-abortion extremist.

She'd be better than Kavanaugh. It's a thing. It's a nice thing you say about the current president's sister. And so weeks later, they released a list of judges generated by the Heritage Foundation. And then later on, it was added to with this Federalist Society list run by a creep named Leonard Leo. And so, I mean, the whole goal of this list in this process to make sure there's not another Kennedy, there's not another moderate. this list in this process to make sure there's not another Kennedy, there's not another moderate. So we need to worry that everything we care about from Roe v. Wade to the right to organize in a union to the Affordable Care Act is at risk. I mean, this is a monumental,

brutal day for people who care about what we care about. Love it. Yeah, I think that's right. yeah i think that's right yeah i guess i mean i just say it's not you know what a surprise trump chose a right-wing white guy uh who hates the clintons and doesn't believe a president should be indicted so i mean what a well what a twist yeah let's talk about what a twist choosing cavan i mean like you said tommy it's crazy that we got to a point where we have a Republican president who's just going to automatically pick from a list that a

far right wing group put together that a special interest group that demanded he pick a certain justice. So that's crazy. And it's well, it speaks also to it speaks to the dirty deal at the heart of the Trump administration, the dirty deal of Republicans will look past the corruption and chaos and vulgarity and racism and misogyny to get the fucking judges. This is this is it. So, of course, he does. He's like, you mean they'll tolerate me if I just choose a judge from this list and they'll love me? OK, I'm done. I don't care.

Right. Well, it also and let's talk about among the four finalists. He could have picked Hardiman, who was the runner-up last time, to Gorsuch. Hardeman, though, had a background that wasn't quite as defined, didn't have as much writing. Some people thought maybe on certain issues Hardeman might be more moderate. Some at the base was a little worried that he might be a judge suitor, who was famously picked by a Republican president and then turned out to be more moderate than they thought. Amy Barrett, another possibility.

Also, people didn't know exactly what her rulings were. So this is definitely the most, it's probably the most partisan pick, because this person was, Kavanaugh was in Republican politics for a very long time. was in Republican politics for a very long time, has the most opinion... He has a paper trail that's just miles long from when he was staff secretary in the White House. To the point where McConnell is worried about, apparently, that paper trail. Well, that's the point here. McConnell, apparently, over the weekend told Trump

that he was more nervous about Kavanaugh being the pick because he thought that there was a longer paper trail. He said that he was concerned about the volume of documents Kavanaugh created during his 12 years on the Court of Appeals, as well as his role in the Ken Starr investigation, as well as his role in the Bush White House. And McConnell was worried that Kavanaugh could help the Democrats delay the nomination until after the new court session begins in October. I want to talk about the Bush White House years for a minute, because when you work at the White House, every email you send or every document that you work on is part of the Presidential

Records Act has to be stored and kept. So Kavanaugh's emails are sitting somewhere at the, I guess, the Bush Library. The archivist controls them. And so when the Obama White House put forward Alana Kagan to be our Supreme Court nominee, they went through all the emails down to Little Rock. They were the Clinton Library from her time in the Clinton administration and released them. And so Democrats and the press need to demand that Kavanaugh's emails all be released. And they should all be placed online. They should not be in some box, faxed somewhere. People fly down there.

It should all be on a website like kagan's are right now because that's the precedent yeah um and it's well so what is it what do we think it says about trump that he went with what is potentially the riskiest nominee to get through the senate what what was it about brett kavanaugh that he likes so much more than Hardeman or Barrett or Kethledge or some of the other possibilities? One thing could be that Kavanaugh wrote a briefing once that said that the President of the United States should have, quote, absolute discretion to determine whether and when to appoint or fire a special counsel, and that a president should not be criminally indicted no

matter what evidence of wrongdoing is uncovered yeah we were talking about these when we were when the names were first coming out we were talking about them at the office and and and it was always like oh people are saying that kavanaugh is not the smart pick because all these other people can get through easy eat more easily and kavanaugh has this record of saying this thing around investigations and it's like well it's not the smart pick unless you're a fucking criminal. Then it's a really smart pick to pick the guy that will protect you. Yeah, I think that's probably a piece of it. I also think that Trump just wants a fight.

He doesn't like his. He likes fights. His operating principle at this White House is to fight about fucking everything, whether it's tariffs or the courts. So this guy or people tell him he can't pick this guy. I'm going to pick this guy. Also, I mean, apparently he had some problems with Kavanaugh's ties to the Bush administration because he just treats all things Bush like they're an enemy. But we don't know.

We can't get inside this bozo's brain. I mean, I'm sure. People got him over that. I think that these special interest groups probably told him who they wanted him to pick. And this has been a foregone conclusion for a long time. Let's talk about some of the other issues, what we know about Kavanaugh. On the Affordable Care Act, he's argued that even if the Supreme Court upholds a law, a president can refuse to enforce some of it.

So that's great news for people who care about the Affordable Care Act. He has declared the Consumer Financial Protection Bureau unconstitutional. On Roe v. Wade, during his D.C. Circuit confirmation, he said he played the game where he said he'd respect precedent and declined to share his personal views. So we can expect that anyone on this list that Leonard Lihot put together is going to try to overturn Roe v. Wade. But I think it's going to be up to Democratic senators to try to probe during the hearings to try to get something out of him.

Yeah, this is a simple one. There's a huge difference between someone saying, as a lower court judge, I will respect a precedent, and someone who is going to be on the Supreme Court saying they're going to respect a precedent. Respecting a precedent at a lower court level is a totally different matter. So I already see that being put out there by people trying to kind of, I assume, get to Collins and Murkowski. But it's a totally unrelated point. Yeah. The other thing we know about him is when he was nominated to the Circuit Court of Appeals, it was held up for a long time because Democrats thought he was too extreme back then, back in the early 2000s.

Remember when we could hold things up because somebody was too extreme? What a time. We should note that Collins and Murkowski both voted for him in 2006. But Collins put out a statement already and Murkowski saying it was him in 2006. But Collins put out a statement already and Murkowski saying it was a very sort of bland statement. We're going to meet with him. We're going to hear his views. We look forward to the confirmation hearing. So they're not giving anything up yet.

I mean, the other thing, Tommy, to your point that Trump wants a fight, it is both distressing, annoying, fucking infuriating that we are now going to spend the summer reliving the political fights of the 1990s. That we're going to go through the Ken Starr investigation again. That we're going to talk about the Clintons again.

And then we're going to be treated to reliving the Bush years again since he was staff secretary in the Bush White House. That's too soon for that. That's too soon. That's like bringing Spider-Man back. Just like two years. Andrew Garfield was Spider-Man two seconds after Tobey Maguire, you know? I really, I hope that this doesn't focus too

much on the Ken Starr stuff. I don't know. Maybe if there's something useful that we should talk about there. I mean, I'm sure that in his Bush administration emails, he weighed in on some really touchy things like the Iraq war, Gitmo, surveillance, torture, surveillance, right? So there could be some real interesting things he's said or done that we should The Iraq War, Gitmo, torture, surveillance.

Right. So there could be some real interesting things he's said or done that we should talk about. The thing that drives me crazy about Republicans versus Democrats on these judicial discussions is that they've done this masterful job of branding their judges and their judicial philosophy as conservative or constitutionalist or, you know, whatever. Like original textist. I forget the whole fucking thing. Original textist. They're like original textist. He's still on Instant Messenger. He's not named.

They're like GOP, erogenous zone terminology. But it's total bullshit. I mean, the minute these judges get named to a court, they are activists. They are exactly what they claim not to be. They find novel ways to overturn decades-old precedent, as this court is doing right now. So I don't know how we fix that messaging fight, because we've gotten rolled for decades on this front. But we need to do a better job. I think what we've seen so far is that Democrats have, at least in the preparation for this announcement, has sort

of prepared for that and are now talking about these Supreme Court picks as basically, you know, an extension of the Republican Party. I mean, that was like one senator said that, right? Which is, well, no, I mean, it's pretty much like Schumer's message. I mean, it's all their messaging right now, which I think is good. They just need to keep that up. It's not named Merrick Garland. What's that?

It's not named Merrick Garland. That's that's not named merrick garland that's not our message right yeah no kidding i i i think that this is a good i think your point is right i actually think this fight is a good place to do a better job i can see us getting drawn into conversations about the ken star investigation uh and the kind of salacious questions that Kavanaugh wanted to ask Bill Clinton. And it's all very interesting. But then I think there's really two... What were those things you're referencing? There's two. I feel like there's... what?

I was sincerely just trying to have you give the listeners the gist of what he said. Look, it was about where Bill Clinton's gist went, frankly. I'm sorry you asked. I don't want went, frankly. I'm sorry, you asked. I don't want to say it. I don't want to say it. Anyway, the point is... Specific sexual things. Specific sexual things.

The point is, we shouldn't talk about that because there's two goals in this fight. One is to stop Kavanaugh. And that is really, really hard. Go to stopkavanaugh.com. Is that a real website?

It's up. Cool. Someone good running it? Yeah. You got a good webmaster on that thing? It's Brian Fallon's group. Oh, cool. All right, great.

Yeah, go there. So anyway, there's two goals. Goal number one is to do everything we can to stop Kavanaugh. That's really, really hard. The second goal is to make sure that the fight we have on Kavanaugh is a fight that helps us politically in the fall and in judicial fights to come. And that's a fight we have to win. And it's a fight we can win, that we have better odds of winning that fight. And that fight is best fought on unions, regulation, choice, and health care, and the issues of what Kavanaugh's radical, originalist, right-wing judicial philosophy, what that will mean for actual people. So this idea that we're

going to get dragged into the Bush years, unless there's really important stuff about his record, I think, or the Clinton years, certainly, I think will be a bad path to go. And I think so far, actually, we'll see what happens. But I think Senate Democrats certainly understand that because they've been hitting choice and they've been hitting health care pretty hard. Here's my vote for one of the best messages i've heard from senate democrats so far um bob casey up for re-election pennsylvania a state that trump fucking won um he decided to come out against the nominee this morning before he knew who it was and here's what he said in the statement this is some of his statement this list is the bidding of corporate special interests

hell-bent on handing health care over to insurance companies and crushing unions. Any judge on this list is fruit of a corrupt process straight from the D.C. swamp. I will oppose the nomination because it represents

a corrupt bargain with the far-right big corporation and Washington special interests. Outstanding. And also 100% accurate. It turned out even more true for Brett Kavanaugh. They're right. The Koch brothers and their friends That is outstanding. amounts on their candidates. It is this circular, horrifying process that is setting us back for generations. And I will say that, like, having been in politics long enough, I guarantee that that message polls very, very strongly, not just in blue states, but in red states and among some

Trump voters as well. You know, what's really great about that statement, too, is that there's this hemming and hawing D.C. conversation. Like, I've got to wait to see who the nominee is. I got to make sure I give him a fair hearing. And is it, should you come out before he's even picked someone? Doesn't that seem, isn't that mean you're not going to take these seriously? Isn't it mean you're too partisan? All of that. And there's a legitimate debate there. However, what's interesting is somebody comes up with a statement like that, that just tells the truth about the situation. And it's an incredibly powerful argument that says, i shouldn't wait for somebody let's not pretend this process is something else let's not pretend this is just a random individual we're going to give a fair hearing this guy was chosen from a list he was chosen from a list of people

to do the bidding of these interests that's absolutely true that's right yeah and i also think there's you know there's this debate now, like oh, is Trump's Supreme Court nominee going to put red state Democrats in a tough spot? Fuck no, it's not. This is the easiest no vote I can ever imagine. Think about what happened with Republicans when they not only opposed Merrick

Garland, but opposed even a fucking hearing for President Obama's Supreme Court. They lost the Senate. Nothing happened. Not one single Republican paid any price for opposing any Supreme Court justice from Barack Obama. None. But if you want your base to walk away from you

and you're a Democrat, vote for this guy. Be a Brett Kavanaugh fan. If a red state Democrat votes no on Kavanaugh, they are going to have the base voters that they need who are going to show up, who are going to volunteer, vote for them, knock on doors, make phone calls. They're going to have them excited and showing up for them. If they vote yes on this, I want to find the swing voter who was like, I was really close to voting for Joe Manchin or Heidi Heitkamp, but then, I don't know, they said no to Brett Kavanaugh.

Who I love. I'm a huge Kavanaugh. I'm a Kavanaugh. I'm a Kavanaugh. Kavanaugh. It's Kavanaugh. We're all Kavanaugh. We're the Kavanaugh. Yeah, no, this voter doesn't like President Trump, doesn't like how the Republicans have been handling Congress,

but they do really love Brett Kavanaugh and they're really disappointed. No, that's not going to happen. And also, speaking to what Bob Casey said, vote no and make the argument on the terms you believe. That's right. Make the argument on the terms of health care. Make the argument on the terms of access to reproductive health, because that is a winning argument literally in every state in the union.

And that's another thing about Bob Casey's statement, because if I was a senator, I'd be making the argument based on the fact that Brett Kavanaugh is going to criminalize abortion. And I'd be talking about the A.C. and stuff like that. Bob Casey is one of these senators. He is personally against abortion, but he never legislates that way. He legislates pro-choice. He's got a good record there. But he decided to make the argument on his terms, on his issues, what he thought was right for the voters in his state.

And that is possible for every single Democrat in the Senate. And there's been some criticism, too, of Casey. Like, oh, this was a politically expedient way to get out of a tough decision on someone who's qualified. So what? No, it's a fight. It's him picking a fight. And I'd rather be on that side than the other one of that message. And this is a hard fight.

I mean, we have to hold all the red state Democrats. And then we have to put maximum leverage on Collins and Murkowski. And that's going to be very hard, but we should try as hard as we possibly can. But we also, we need to do a better job long-term of educating Democrats about why these fights are so important. I mean, conservatives have spent decades in churches and in campaign ads and in campaigns making judicial nominations nominations the critical voting issues to their base our folks just we failed it we totally fucking failed and like what has happened in this last term with kennedy has unraveled all kinds of stuff like god help us

for what comes next if this clown gets through and here's the potential of what you're talking about um huffpo did some polling just in the last couple weeks, and they've already found a shift when they ask, is the Supreme Court going to be a big issue for what you vote on in 2018? And Clinton voters are now more, it's more important to them than Trump voters. And that's the first time that's happened. So it's starting to switch a little bit. But you're right, we have failed on it for a fucking decade or more.

I shouldn't call Kavanaugh a clown. He's not a clown. He's just a very conservative jur or more. I shouldn't call Kavanaugh a clown. He's not a clown. He's just a very conservative jurist. So you're not a Kavanaugh? Nope. He's on the fence. One other thing about this, too, is Republicans have also done a very good job of arguing this on the philosophy. They have a philosophy that they have been defending for a really long time, and we don't do that as much as Democrats.

You know what our new philosophy is? Democracy. Sure. That's what we're fighting for. It's pretty easy now. We now have, I mean, I think Ezra Klein said this, it's not just an undemocratic Supreme Court, which it's always been. It's now an anti-democratic Supreme Court, whether it comes to voting rights, whether

it comes to union rights, whether it comes to reproductive rights. So I think making the philosophical argument means that they have to add a third plank, right? Right now, it's been about choice and it's been about health care. And I'm sure that those are, they poll the best, I'm sure. They're also winning issues that I think people really do care about. I think the polling is borne out by the fact. But there is a third piece to this, which is what you're talking about, which is, I don't care how it polls. There needs to be an argument about the concentration of power

that this court has allowed, the concentration of corporate power, the concentration of wealth. That extends from unions and consumer protections to voting rights. And I think that needs to be the third piece of this argument that I think so far, Senate Democrats have not made central. And I think they should because to Tommy's point, in the long term, this is actually a fight about corporate power. Also, like Republicans have done a very good job talking about people like George Soros, demagoguing them, lying about them, really, but but making boogeymen out of these big moneyed interests like we should start talking about this guy, Leonard Leo. He's the executive vice president of the Federalist Society. He took a leave of absence to advise Trump on the Supreme Court vacancy and gave him this 25 person potential list. This guy has been instrumental in installing roberts samuel alito

gorsuch and kavanaugh if he gets through that is more supreme court justices than any president of the united states in recent memory i mean that is like elected this guy no one unbelievable influence and they built like this massive pipeline and this is a guy who was like behind the the attacks on the ground Zero mosque back in 2011. He oversees this network of dark money groups. Like this is some nefarious swamp shit that Trump claimed to have run against. And now it is front and center in all his judicial appointments. While everyone was focused on the Supreme Court over the weekend,

President Trump escalated his trade war with China. On Friday, he imposed $34 billion worth of tariffs, which are basically taxes, on goods that we buy from China. China immediately retaliated by slapping $34 billion worth of taxes on American goods that our businesses export to China. Unlike Trump's tariffs, China's are politically targeted at industries based in states that Trump and Republicans need to win. As the Washington Post notes, nearly two-thirds of the jobs and industries targeted by China's tariffs are in more than 2,100 counties that voted for Trump. Bloomberg notes that 30 congressional districts most hurt by the tariffs all voted for Trump. Guys, for a long time, I think appearing tough

on China was politically useful for Democrats and Republicans, particularly on economic issues like trade. Now that Trump has actually launched a real trade war with China, it seems like it might not be as popular. What do we think is going on here? I don't know. I mean, suddenly economists are saying, well, the impact might not be that big. I mean, I think if individual companies and employers in specific states start crying for help from their members of Congress, maybe those spineless, feckless, pathetic losers in the House or in the Senate will start to do something. But I kind of wonder if his people don't just like when he's constantly doing stuff and fighting. And to us, Democrats were like, oh, trade war, that sounds bad. And to them, they're like, oh, Trump is fighting. He's starting

a war with China. I mean, so I just don't know anymore because every Republican orthodoxy is getting thrown out the window and Trumpism is becoming the Republican orthodoxy and they just like everything he does. So I don't know how this is going to play anymore. Donald Trump is instituting policies. Those policies hurt these people. I think Democrats need to have a better story to tell on trade that's in different policies and not just a defensive reaction to anti-trade Trump or pro-trade Democrats, whatever. There needs to be that story. That's that's a bigger question. But this is Donald Trump picked a fight with China and it cost these farmers their farms. Donald Trump picked a fight with China and these jobs went away. And I think that to me is simple. And you do not need to know about, you know, GDP and trade deficits to understand that. Wait, why? What? That's terrible.

You know, that to me is simple. Well, yeah, clearly China knows this because, yeah, I think the overall effect on the economy is minimal, even if they ratchet it up a little bit. Though if they keep ratcheting it up, it obviously could be very bad. But so China knows that. But so they figure, how can we inflict the most pain politically and get him to change this? And so they are targeting surgically places where Donald Trump needs to win and Republicans need to win. There's an AP story about a Republican hog farmer in Tennessee saying he's going to vote for Phil Bredesen over Marsha Blackburn because he's paying more for steel and for pork.

Polls now show that 75% of American people expect the trade war to jack up prices. 56% think it'll lead to job losses. So it is sort of going to have an effect in the specific places that Trump actually needs right now. I think the question too is, I guess, Lovett, you know, you tell people, all right, you know, Trump's policies hurt there, hurt in these specific places. What should Democrats say about trade in general, knowing that a lot of these Democrats, people like Sherrod Brown, people in a lot of these Rust Belt states have said, you know, that we need to have better trade policies that are

more fair? I think that's all true. Yeah, I think you just agree with that. A lot of Americans feel like the trade bargains we were making with other countries may have been working for big corporations, but they weren't working for for regular people. They're right. I'll tell you that the answer to that isn't fucking over a bunch of farmers in the Midwest or making Harley Davidson move production overseas because you picked a fight and didn't think through the consequences. If you want a better trade policy, let's hear it. Certainly, leaving our current trade regime in place while picking little battles with our trading partners is not the answer. Or pulling out of the WTO, which is another proposal they're floating.

The WTO, which is something we helped create. We helped write all the rules that everyone has to play by, and now he's threatening to do away with it. Glad you brought that up, Tommy. Your referencing report that the Trump administration is drafting a bill that would pull the U.S. out of the World Trade Organization. That bill is named the Fair and Reciprocal Tariff Act, a.k.a. the FART Act. They're trying to— That is a real thing.

I did not make that up. Elijah's laughing in the background. He just heard that the first time. It is the FART Act. That one may squeak through during the same doc, you know? Yeah, it's a silent but deadly proposal. He who proposed it

dealt it. I'm so glad. I was trying to figure out how to get to the Fart Act, and then Tommy talked about the WTO, and we got there.

I just let it rip, you know? He who... Yeah. Smell that coming from a mile away. away all right the boat will be a squeaker are we done i already did squeak oh shit we need some we need a light moment here today sucked we need a light moment we're recording this monday by the way today probably sucks too tuesday who knows they all do um but no the larger point is

trump talked about trade all through the campaign. He is not doing anything, he's not nothing to help the people who are actually hurt by trade, with trade adjustment assistance, or wage subsidies, or work training, or any of the things that you would do to help people whose jobs have been displaced by global trade. All he's doing is picking these fights that are costing people in this country money. With Canada, he's picking fights with Canada. Yeah. I mean, you know, he thought NAFTA was bad when he first heard about it, and his brain has been frozen solid ever since.

So he has these kind of amorphous gut views on trade. It's one of the few areas where he's been consistent his entire adult life. But, of course, he's president now, And negotiating new trade deals is very, very hard. Renegotiating old trade deals is really, really hard. But I don't know, thumbing your nose at your mouth, what do you thumb with? Anyway, fighting with Canada is easy. That's all I was going to say. So Trump has started a trade war with China, a country whose cooperation we need to help deal with a nuclear North Korea. A project that also isn't going all that well. After a visit from Secretary of State Mike Pompeo,

ended with the North Koreans issuing a statement that accused the United States of pushing a, quote, unilateral and gangster-like demand for denuclearization. Trump said on Monday that he hopes Kim Jong-un will honor the contract the two signed in Singapore and suggested that China may be, quote, exerting negative pressure on a deal because of our posture on China trade. Amazing. Hope not. Amazing.

Tommy, what's going on here? So Pompeo went to North Korea. They did everything short of firing him while he was on the toilet to embarrass him. He didn't get a meeting with Kim Jong-un. They wouldn't confirm where he would stay for his hotel. They made him attend endless, like, ostentatious meals in a country where everyone is starving. And they hammered him with this statement after he'd left and already said they were productive talks and whatever mealy-mouthed bullshit you put out at the end of a summit.

But he did give them one star. Yeah. He did TripAdvisor five years ago, and he's in the top 25% somehow, still to this day. A little TripAdvisor humor for those of you who use the service. So, like, no surprise here. North Korea, they like, this is what they do. They stall. They drag out negotiations.

They blame the other guy. Basically, they're Trump in a negotiation. But I think this is where he made a huge strategic mistake, which was over-promising and under-delivering at the huge Singapore summit. And now Kim has unbelievable leverage. I mean, Trump needs this more than Kim does because Kim doesn't want to give up his nuclear weapons. He's spent many, many years developing them. And the original Singapore declaration was totally unspecific. The sequencing was left up in the air. And now Pompeo is just fucked that he has to clean up this mess

and manage a situation where North Korea doesn't want to do anything hard. And he can't let the press story get too bad because Trump just wants to win. And so here we are now, like Lindsey Graham and these allies of his are blaming China because that's more convenient for them than saying that this was a terrible negotiation job. But, you know, maybe don't start a trade war in the midst of your fucking North Korea negotiation, you moron. Tommy, do you think that this is all a lot of pompeo and circumstances tommy to the to the u.s and north korea here have different fundamentally different definitions of what denuclearization means yes could we have had some mixed... Have we been talking past each other here? Literally every expert has talked about that these are very specific terms of art, what denuclearization means. For them, they want all our troops off the peninsula and out of South Korea.

We just want them to give up their nukes and then we give them some sort of economic assistance. None of this was pinned down. The sequencing of when the denuclearization would occur was not specified because they also talked about the need for peace talks and they want that first. So this is just a long way of dragging out the whole process. This thing was bullshit. It's unlikely to be successful. We all hope it will be, but they did none of the work. It seems like not only have we not made any progress since the summit, but it seems like we might have gone backwards a little bit since the summit. There were reports that North Korea is actually expanding their nuclear facilities now that

we saw a couple weeks ago. Yeah, I read that. I mean, a couple of... Is that real? The Post had that and NBC. We don't know, but probably. So what happens next? Where can we go from here? Is this going to get scary again now. We don't know, but probably. So what happens next? Where can we go from here?

Like, what are the, is this going to get scary again now? I don't know. I don't know. Depends on how pissed off Trump gets, I think. I mean, look. You think if he gets embarrassed, he'll start going back to Little Rocket Man? Nothing actually in the world has changed, right? Nothing.

The North Korean program looks exactly the same. Our posture looks as though we canceled a couple military exercises. Right. The world is exactly as it was before when things were bad, when there was this moment of punditry hope,

when Pompeo couldn't get a table at Pyongyang's nicest restaurant or the redhead of Pyongyang wouldn't serve him. Like, everything is,

the situation is the same. It's not a reality show. It is a decades-long set of interests playing out, and those interests have not changed one bit. Not good. All right, so. Not good. I mean, the only good news is that Trump is so invested in this going well

that maybe he won't be as caustic as he was back in the day. But that's fundamentally doesn't solve the problem of them having nukes and ICBMs and the will to use them. Yeah, we've said this before when the summit was actually happening. It's pretty clear that Trump's probably not going to solve this crisis with the kind of negotiations he's engaged in right now. But I guess the best we can hope for is that this posture that he has right now sort of drags out the negotiations and at least kicks the can down the road to the next president, who's not Donald Trump. Yeah, Pence will get it.

I mean, although kicking the can down the road is not good in terms of ICBM development and all the other technical things you need to do to land a nuclear warhead in Washington. Cool, cool. Well, I was just trying to find a silver lining in any of these topics. Not a lot of those. November. November's the silver lining. Go vote November.

Please vote. And then we can have a Congress that constrains some of these things. Stuck between a rock it man and a Kavanaugh place. Kavanaugh place. Hard, hard right judge place. We're stuck between a rock it man and a hard judge place. When we come back, we will have Karen Dunn to talk about Donald Trump's Supreme Court nomination. On the pod today, we are joined by our friend Karen Dunn,

a lawyer who clerked for Justice Breyer and helped shepherd the nominations of Justices Sotomayor and Kagan when she was an Obama White House counsel. Karen, tell us about Brett Kavanaugh. What do you know about him? What do you think about his ideological leanings? Or what have you discerned about his ideological leanings on various issues? Haircut opinions, whatever you got. Yeah, roast him. Well, so I actually know Judge Kavanaugh,

and I met him when I clerked, ironically, for Judge Garland. And Judge Kavanaugh was a new judge on the D.C. Circuit, and he had previously worked in politics, and I had previously worked in politics. And so we became friends, and when he got on that court a long time ago, I think my general reaction to this announcement is that it is highly unsurprising. highly unsurprising, and that I do think that for this president, Judge Kavanaugh makes a very obvious and expected choice. I think the president feels like the Gorsuch nomination was one of the most successful things that he has done, and I think he's seeking to basically have a replay of that with Judge Kavanaugh. If you were to put him on an ideological spectrum matched up with other justices on the court,

who would you place him near? So this is a great question, and I think an impossible question to answer, because you're talking about somebody who does have a strong record of conservatism, but he also has a strong record of writing separately on the D.C. Circuit when he thought he had something independent to say. So I think probably the strongest indication of his ideology is that he was chosen by the president to begin with, because I'm not sure that you can be completely certain based on just looking at his jurisprudence and his life. I think that what this pick communicates so most clearly

is that what the president wants is a big fight. In recent days, it's become clear that Senator McConnell said that Judge Kavanaugh would be a big fight, and the president went ahead and chose somebody who essentially guarantees him a fight. And the bigger question now is, what are the Democrats going to do with this? Right. So, Karen, you were part of teams that helped shepherd the Supreme Court confirmation processes through and the nominees through. What happens now? I saw that he named John Kyle to be his Sherpa or the White House named John Kyle to be the Sherpa. What is the process going forward from now until, I guess, what, November? No, September are the hearings. Well, the process really starts right away. I mean, I remember with the nominations that we did in the Obama White

House, we were ready to go immediately with questions and answers that the nominees were going to get on the Hill when they start their visits. So what Judge Kavanaugh will do probably right away is start, you know, courtesy visits with the Senate to try to befriend and impress and persuade the senators that he's somebody that they can support. And obviously there'll be a very serious focus on the red state Democrats. And this nomination, if this nomination is really about anything in the near term, it's about the red state Democrats. This is about the midterms.

And I would say if this nomination is about anything in the long term, it is about whether the Democrats in the Senate understand how to have a fight about a nomination. as Kennedy, on issues related to corporate power, on issues related to unions, on issues related to regulation, and that he might move the court to the right on abortion, gay rights, and other social issues. Do you have any reason to believe that that's not an accurate portrayal of the kind of judge Kavanaugh will be? So I have no reason not to believe it, but I just, I really do not know. And I think the proof is going to be when we see what does Susan Collins do? What does Lisa Murkowski do? So if you were advising Democrats on the Judiciary Committee who were trying to put together questions for Kavanaugh, what would you tell them to do knowing that Kavanaugh is probably going to sit there and say,

I respect precedent on Roe versus Wade and some of these other cases. I don't want to talk about my personal views. How do you discern someone's ideology and position on various issues if you're a senator trying to ask questions during the hearing? That is an excellent question and one I assume that the Senate Democrats and their staff are busily trying to figure out the answer to. What's happened over many nominations of presidents of both parties is that there has come to be this perfected non-answer answer, where you can say, well, that case might come before me, so I can't answer it. Basically, that I would have to interpret the effects of my own cases, which I can't do, and there are these non-answers that are cloaked

in sort of the judicial robe, if you will. You say, because I'm a judge, I can't talk about a case that might come before me, and that generally gets you off the hook for anything that might happen in the future. And I think that the Democrats on the Judiciary Committee are going to have to decide whether they're going to accept those answers and whether that is going to be sufficient for them, given what's going on in America today. I mean, Karen, do you think that's a sign of a broken process? Because Brett Kavanaugh didn't just come to be fully formed. He is the result of a 30 years long, you know, well funded effort by Republicans, very conservative Republicans, like the Federalist Society and Heritage and others to find these young judges and like help them along the way and sherpa them and get them lower court seats. and sherpa them and get them lower court seats, and then put them forward for these nominations, where we know damn well where they stand on all these issues. But now we have a confirmation process where it's totally accepted to never answer any of those questions. And oh, by the

way, it's a lifetime appointment. So there's no repercussion for essentially lying to the Senate. I mean, isn't that just kind of a broken process? Yeah, well, I think that the confirmation hearings have become largely theatrical events. I think that you're completely right about that. And so I think one of two things could happen. The first thing that could happen is that the real business of figuring this out, it gets done in the private conversations that the nominee has with various senators. And there are obviously some important senators who are not on the Judiciary Committee. So that will be significant. And the second important thing is whether or not the Senate Judiciary Democrats are going to go back and watch what the Republicans have done over the past five to seven nominees and whether they're going to start going right at the issues

and asking the hard questions and also asking questions that are important today because of who the president is. One thing that will be hard to answer for, I think, is the politics of this particular president and the things that he has done. And so there are certain things where that case may come before me is really not a compelling answer. For example, on the question of ripping children away from their parents. Right. So there are certain areas where the classic dodge should no longer be acceptable. So, Karen, on the question of this theater, you know, Democrats are coalescing around this argument that basically this is a judge that is going to restrict abortion access, could overturn Roe. This is somebody that will attack pre-existing conditions. This is a sort of a partisan operative who is basically going to vote with the conservative wing of the court.

fight. But I feel like you're also saying that he's been squirrely enough to leave room for interpretation to not like, I guess I'm hearing something conflicting, which is you're saying that Democrats should fight this fight, but you're not necessarily agreeing with the Democratic argument that the case should be made against him on pre-existing conditions, on abortion, on unions, on regulatory power. I think that what I see going on on Twitter already is that the Democrats are making very classic arguments. And I think that they have to do that. I think that's what's expected. I think it's necessary. But when it gets down to the brass tacks

of these meetings with the nominee and the questions that are going to be asked in the hearing, that is a very specific and difficult art to perfect, to figure out how to ask these questions in a way to get answers that either are direct and clear, or if the nominee refuses to answer, where that itself says something powerful. I was going to ask about how hard do you think they should go at him over, like, the president is under investigation right now. Would you recuse yourself from any matters related to the Mueller investigation that may come before the Supreme Court? Do you think that's a

big deal? I think the problem is that the answer to that question is so easy that they can ask that. But there's, you know, there's a pretty stock answer that most nominees give about recusal, which he could give, or he could just say no. Based on what I know so far, there's no basis for recusal, and I'll have to take this as it comes. So what do you think the best argument, like, you know, you're advising Senate Democrats, you're trying to help, You've been through this process. What do you think right now is the best argument against Brett Kavanaugh? So I look at this as a more long-term project. And I think that what you said earlier about how the Republicans have been working on this goal for the past 50 years and they have done it to success is what we need to be doing.

You know, I think we can have a fight about Judge Kavanaugh, but what we really should be doing is taking this opportunity to talk to the American people about the effect of the courts in the lives of regular people and their cases where the court has overruled precedents in an effort to overrule legislation. So, you know, look at the Heller case. Right. Gun control says it's united as a case like that. And what the Democrats should be doing is gradually challenging this myth that somehow

conservatives are just calling balls and strikes, that they're not pursuing any policy preferences. Just somehow there's some amazing coincidence that judges nominated by Republican presidents happen to call balls and strikes all on the same side. Yeah, the time is full of shit. And so, you know, maybe I see sort of the same playbook already playing out tonight. We'll see if that continues. But I think over the long term, the Democrats are not going to find themselves in a winning position until they shift their perspective a little bit

and can go into the case and find these examples of what the conservatives have been trained to do for years, which is to say, as the president said, they're just interpreting the Constitution as written. And I would think that the best play for the Democrats is to expose where that is not the case. Good call. Karen, thank you so much. You're welcome, guys. Thanks for joining us, and we'll talk to you later. All right, thank you again to Karen Dunn for joining us,

and we'll talk to you on Thursday, and that's about it. Hey, Merrick Garland, if you're listening, we're sorry. I mean, you're probably listening. What else is he doing? It really sucks. He's still got a job. I know if you're listening we're sorry I mean you're probably listening what else is he doing it really sucks he's still got a job I know but this sucks oh I know

it must be so weird god damn it to be Merrick Garland and just like what that's my it's I wonder

I would like think about I guess you would need therapy or something I think I would need therapy if that happened to me clip that dark

don't you I mean like I'm serious like what a crazy turn of events you think you're gonna be on the supreme court and then your life I think I would need therapy if that happened to me. Clip that. Dark. Don't you? I mean, like, I'm serious. Like, what a crazy turn of events. You think you're going to be on the Supreme Court, and then your life just goes back to normal, but it's this incredible injustice, this historic injustice that you were at the heart of. It's wild. How do you process that? You'd wake up every day thinking about it.

You got a group with Al Gore and Hillary, and that's how you do it. And probably Joe Manchin a couple months. Just kidding. That's a joke. in a couple months. Just kidding. That's a joke. That was a joke. Weird outro. Great outro. I love it.

I love to cut most of it. Why do you want to cut this? This is good stuff. Okay, cool. Bye, everyone. Bye. Thank you. you