Pod Save America - “RBG and the fight to come.”

Episode Date: September 21, 2020

Supreme Court Justice Ruth Bader Ginsburg dies at 87 years old, setting up a nomination battle to fill her seat with just 43 days to go until the presidential election. Then Kate Kendell of Take Back the Court talks to Jon Lovett about the case for expanding the Supreme Court.

This is a life-changing election. This will determine what America is going to look like for a long, long time. This is the most important election in the history of our country. Welcome to Pod Save America. I'm Jon Favreau. I'm Jon Lovett. I'm Tommy Vitor. On today's pod, we reflect on the life and legacy of Supreme Court Justice Ruth Bader Ginsburg, who passed away on Friday. We'll also talk about what comes next as Donald Trump prepares to name a replacement and Washington gears up for a nomination battle with just 43 days until the presidential election. Then Lovett talks to Take Back the Court's Kate Kendall about the case for expanding the supreme court uh but first love it how was the show this weekend i hear you hung out with

jane fonda that is very cool what a great time with jane fonda she tolerated me it was very funny she talked about trying to uh flip harvey milk among other topics it was very very entertaining also varshini prakash from the sunrise movement about how climate is reshaping the election. And Hari Kondabalu was back and hilarious as ever. We talked a little bit about the news that broke Friday night as well. It was a barn burner, frankly. Diverse set of topics there, Lovett. Yeah, well, we live in a country with a diverse set of topics.

Few other quick notes. Tuesday is National Voter Registration Day. We will assume that if you listen to the show, you are already registered to vote. But you should still double check. Double check at votesaveamerica.com slash verify. Look at that. We got a website just for you to check your voter registration. And you should make sure that your family, your friends, anyone else you can think of is registered and verified as well.

Then go to VoteSaveAmerica.com slash every last vote for opportunities to volunteer and donate to organizations that are registering as many voters as possible in these last few weeks before the election. Basically, just go to VoteSaveAmerica all the time, every day. Just look for things to do. We got information there. We got things to do. You can't go wrong if you just go to Votes Save America. Finally, we're going to talk more about this later. But on Friday morning,

last Friday morning, our Get Mitch or Die Trying Fund had raised $3.5 million. By yesterday, two days later, the fund broke $21 million. That money will go to 14 Democratic Senate candidates in the final weeks of some very close campaigns. So thank you. You are all incredibly generous and inspiring.

You also blew through the goal we had on our Every Last Vote Fund to help register voters in battleground states. This is a group where $2 covers the materials needed to get one person registered. So if you would like to contribute, visit votesaveamerica.com slash everylastvote. Amazing stuff. Can I just say one thing? Please do. Amazing stuff.

Thank you to everyone who gave even a dollar to the Get Mitch Fund. Just one thing to know about giving to Get Mitch is it's not a pack. This just gets split between all these candidates. And when you give directly to candidates, it's the most efficient way to spend money in a campaign. The FCC requires that TV stations give federal and state candidates the lowest rate you can get on TV ads within 60 days of a general election. of a general election. So you're going to see Sheldon Adelson keep pumping money into Republican super PACs and just know that your dollars go further if you're giving to candidates. So thank

you again. You guys are the best. All right, let's get to the news. Supreme Court Justice Ruth Bader Ginsburg passed away on Friday as a result of complications from pancreatic cancer. She was 87 years old. Ginsburg was the second woman to serve in the court and the first Jewish woman. She served for 27 years, wrote numerous landmark opinions, powerful dissents, and voted consistently to expand women's rights, protect reproductive justice, expand protections for LGBT individuals, and protect the Affordable Care Act. Before the court, she was a law professor and head of the ACLU Women's Rights Project, where she crafted the legal strategy driving the fight for women's rights in the 1970s. Justice Ginsburg knew that her passing would set up a battle over her successor just before the election. So on her deathbed,

she dictated this statement to her granddaughter. My most fervent wish is that I will not be replaced until a new president is installed. Guys, before we get into the nomination fight and the politics of it all, do you have any reflections on Justice Ginsburg life and career that you want to share? Love it. So. The news sort of hit like a ton of bricks. It was devastating. It was devastating, I think, because of the role that she played as a judge and as a justice on the Supreme Court. It was

devastating because we were forced to immediately imagine the worst case scenario of what happens next. We were all immediately sort of plunged into fears about what happens with her seat. And, you know, I know this may seem like a strange thing to point out, but I feel like we've all seen a lot about Ruth Bader Ginsburg over the last 48 hours. offspoken, who commanded such a following and such a position of leadership, both in terms of what she represented, I think, to a lot of women, but also what she represented in terms of legal scholarship for progressives. And she did that as a person fighting in a male-dominated world, a male-dominated career her entire life, struggling to even get hired as a lawyer when she graduated from law school. And she did it up until the very end of her life. And I find the rejection

of masculinity in all the ways in which she led to be inspiring. And that's oddly what I focused on. And I don't really know why, but I haven't left my house in six months, so I'm allowed to feel whatever I want. Tommy. Yeah. So I worked, you know, in the press office on foreign policy at the White House. I never had the pleasure of meeting her. So I'm really reflecting back what I've read, what I've heard from from friends and colleagues who did work with RBG. But, you know, she is a singular figure in our country's history. She was enormously influential on the court.

She was inspiring to a generation of women and progressives in this country. And she also just sounds like she was a wonderful human being. I highly, highly recommend listening to Nina Totenberg's tribute to RBG on NPR. They had been friends for, I think, 50 years years dating back to when RBG was a law professor. And I just thought it was worth listening to that piece because it's beautifully done and it underscores, you know, her brilliance and her decency and her sense of humor. And Nina Totenberg herself is the treasure. And so I would highly recommend that. Yeah. I mean, I'm sure everyone or a lot of you who are listening to this have seen this, but, you know, I finally watched RBG, the documentary, I think just before the pandemic hit back in the old world.

how it chronicles her life on the court, but all the work and incredible work she did before she got on the court when she was an attorney with the ACLU and fighting and how she, you know, led so much of the strategy around the women's rights movement. She's been known as the Thurgood Marshall of the women's rights movement. And like Marshall, she was incredibly strategic and persuasive, which is something you don't sort of hear as much in the reflections because at the end of her life, she was so well known for her powerful dissents. But, you know, the documentary sort of gets into how she argued one case about gender equality before the Supreme Court in 1975. And of course, she was arguing in front of a court filled with men about gender equality. And the case that she argued challenged a social security

provision that deprived widowers of survivor benefits because the law said that a wife's income wasn't as important as her husband's income. And the plaintiff in the case was a man, which is something that she did specifically to make the case to help her persuade an all-male court. And it worked. And she furthered the cause of gender equality and women's equality through that. And she was constantly thinking of these very strategic ways to persuade people in a male-dominated world to win advances in women's rights. And I just think it's something to remember. And the other thing that I would read is, you know, there's obviously a lot of talk about should she have retired back when Obama was president.

And I think Rebecca Traister wrote a very powerful piece in the cut called It Shouldn't Have Come Down to Her, which is about us sort of focusing on an individual and not focusing on the institutions of ours that are quite broken right now. And I would encourage everyone to read Rebecca's piece because it's quite good. So Donald Trump and Mitch McConnell immediately announced they'd be replacing her, not just in a presidential election year, which Republicans are all on tape saying should never be done, but as people are literally voting.

So we'll get to the debate around all that in a minute. But first, I want to talk about Trump's potential picks. He committed on Sunday to selecting a woman, and he said he expects to announce his decision this week. This morning, I believe he said Friday or Saturday. Right now, the two top leading contenders appear to be Amy Coney Barrett and Barbara Lagoa, both of whom Trump put on federal appellate courts during his first term. Both women are extremely young. Coney Barrett is 48 and Lagoa is 52, meaning that if

either is confirmed, they would be on the court for generations. There are a few more nominees out there that are potential nominees, but these are the two women who are mentioned the most. Tommy, what do we know about these two potential nominees? Yeah, like you said, the two most discussed nominees are these two. So Barrett was among the finalists for Anthony Kennedy's seat, which ultimately went to a famous beer lover, Brett Kavanaugh. Trump's, you know, former White House counsel, Don McGahn, Mitch McConnell. They get lots of credit for Trump's success appointing judges. But the truth is that this entire process is run by the Federalist Society and the Federalist Society loves Amy Barrett.

She is currently on the Seventh Circuit. She's a professor at Notre Dame. She was reportedly Antonin Scalia's favorite law clerk. So that should tell you something about her. I think there is no question that she would undermine, if not overturn Roee versus Wade. When it comes to the Affordable Care Act in 2017, she wrote a law review article that criticized John Roberts' opinion that preserved the ACA. So if she is named to the Supreme Court, it's likely that the ACA would be toast. So if you are a fan of far, far right judges, she is your pick. Barbara Lagoa is less well known.

She was approved to the 11th Circuit with 80 votes. So, you know, that's something that she would bring to this process, a big bipartisan vote fairly recently. Before that, she was on the Florida Supreme Court. She's Cuban-American. She's from Florida. And a lot of high-profile Republicans in Florida are in the press today saying she is the key to Trump winning the state. Her views are less well known than Barrett's. I suspect she has not been as thoroughly vetted, but it's worth pointing out that when Florida voters passed a law that

would let recently incarcerated people restore their right to vote. She sided with the majority that is forcing them to pay all kinds of fees and other things and essentially is creating what's called, you know, considered a new poll tax. So she's not great. I suspect Trump will make his decision based on whatever he thinks will help him get reelected. And it's worth noting that he visits Florida on Thursday. So something to look forward to. Love it. Yeah, it doesn't seem like either of these women would do anything but move the court extremely far to the right, right? Yeah, like we're going to get any like back in the day, you get Republicans nominating justices or Democratic Democratic presidents nominating justices. And there may be some surprise along the way. And maybe they're not as liberal or as

conservative as you seem. It seems now that, as Tommy mentioned, since the Federalist Society runs this process, he's not going to nominate someone that he's not sure is going to be as right wing as possible. Oh, yeah. I mean, look, there are Republicans, I think, feel as though they lost seats by accidentally nominating people that turned out to be progressives. It's a mistake they're very intent on never making again. So far, recently, they haven't. I think it's a sucker's game to talk about these nominees as individuals, because that's what they want to do. They want to focus on how reasonable the appointment is. We need to focus on the fact that this is about shifting the center of the court even further to the right. It is worth remembering just how conditioned we are by how

conservative the court is already. First with Anthony Kennedy, then with John Roberts, we are told that those were the swing votes. But for the most part, what we have been living with is a right-wing court that governs conservatively on matters of the regulatory state, on matters of our democracy and voting rights. What we have seen is Anthony Kennedy occasionally siding with those fighting for progressive causes like gay rights because he viewed it as part of his legacy, or John Roberts occasionally surprising people by trying to, in some way, preserve the legitimacy of the court while overall ruling in a conservative way. What is frightening to me about all this is, regardless of the merits that they try to claim for these two candidates, they are right

wing judges, there will, I mean, you can say there's a swing vote somewhere to the right. But really, what it means is there won't be a swing vote anymore. And this will be a radical right wing court for a very long time. I think that's an incredibly important point about how Republicans want to make this about the character of the nominee. You know, they're already saying that Trump wants to appear with the nominee. And, you know, if it is Lagoa, you know, Republicans are already openly saying, oh, we dare the Democrats to vote against a Latina justice. And they're talking about how she's Cuban-American and how she's going to help him in Florida. I mean, it's pretty gross and pretty cynical, pretty cynical. help him in Florida. I mean, it's pretty gross and pretty cynical, pretty cynical. And then, you know, we already saw this with with Barrett when she was a potential nominee last time during

the when he ended up going with Kavanaugh that, you know, they're saying, oh, Democrats are against her because she's Catholic and Democrats hate religion. Right. And so they're and in both cases are going to say Democrats are voting against a woman. And I think it is very important for Democrats to keep this about what the court would look like and how extreme the court would be and what the court would do on issues that affect people's lives. If there is a 6-3 extreme right wing majority on the Affordable Care Act, on choice, reproductive justice, on climate, on labor rights. I mean, Barbara Lagoa has, you know, not as an extensive record as Barrett, who Barrett is extremely right wing. But, you know, Lagoa, you know, Tommy pointed out her decision on what is essentially a poll tax in Florida. One of her first decisions on the state Supreme Court sided with businesses challenging Miami Beach's decision to raise the minimum wage. Supreme Court sided with businesses challenging Miami Beach's decision to raise the minimum wage.

So that's two cases where voters decided something by a majority in Florida and Lagoa decided to overrule what majority of people wanted. And it is. Don't legislate from the bench, though. We can't do that. Right. Yeah. But it is the decisions that these justices will make, not for the next five years, not for the 10 years, potentially for the next 30 or 40 years that we should be focused on right now. Yeah. And I will say also, like, look at like you look at the ACA, this court, the Roberts court

already, they undermine the ACA, but but ultimately didn't strike it down. That result wasn't accepted, right? They didn't accept it when Congress passed it legitimately. They didn't accept it when voters affirm that decision at the polls. They didn't accept it when the court ruled already upholding the law. They will try again and again, and they are going to do it until they have a Supreme Court. They're going to try to make a Supreme Court that rules as they see fit. Also, on choice, you know, conservatives see this as the chance to finally kill Roe versus Wade, that they are angry that they have successfully been able to win in the courts, but not on this issue, that they've gotten close, but not been able to get it done. They've been able to undermine the right, but not destroy the right.

And we should be very clear that that is almost certainly what will happen if they are able to successfully get a 6-3 Supreme Court. a 6-3 Supreme Court. And I will say, if you guys remember in 2016, when Obama nominated Garland, what Republican, and everyone said, well, Garland is this more moderate judge and Republicans should welcome him and meet with him. And why won't they even meet with him? And all these Republicans said, it's not about Merrick Garland. It's not about Merrick Garland's life story, who he is, how people like him. It is about the principle of nominating some, you know, so I do think Democrats, whoever he nominates, we cannot fall into the trap of making this a fight over Barbara Lagoa or Amy Barrett specifically and their character and their person. It is about what the court is going to look like and the fact that Donald Trump and

Mitch McConnell are trying to ram through a nomination that could lead to millions of people losing their health care, not being able to pass a single piece of legislation to do anything about climate change for decades and overturning Roe v. Wade, among other things. And this is why Democrats need to be confident here, because if you ask voters whether or not they want to see Roe versus Wade overturned, 70 percent say no, but that's the policy goal of the Republicans. If you ask people if they think the government should be ripping healthcare away from people in the middle of the pandemic, they say that you are crazy, but the Supreme Court is going to hear a case on the ACA a week after the election. I mean, at issue could be whether the EPA even has the authority to regulate greenhouse gases. A new court could overturn that or restrict the EPA's ability to deal with it.

So like there are a million different things that we need to help people understand. The entire regulatory state could be at risk. The EPA, the Clean Water Act, OSHA, the whole concept of an independent agency could go out the window. Civil rights, gun control. So there are huge, huge issues at stake this cycle, and we need to fight like hell on this issue. Let's talk about Mitch McConnell's strategy to get this nomination confirmed. He wants to move as fast as possible, but it's not yet clear whether or not he wants to vote before the election or after in the lame duck period before the next

president's term and the next Congress begin. It's also not clear that Mitch has the 50 votes he needs to confirm Trump's nominee. Mike Pence would break the tie if it's 50-50. Already, Republican Senators Lisa Murkowski and Susan Collins put out statements opposing the idea of voting for a nominee before the election, which means if two more Republican senators join them, there wouldn't be enough votes to confirm. Tommy, let's start with the question of whether Mitch pushes for a vote before or after Election Day. What do you see as the pros and cons of each option? So, I mean, I think for McConnell, this is the only thing he cares about. His legacy is the courts. So I suspect there's a part of him that just wants it done.

And he may also think that a court battle before the election will help senators up for re-election in more conservative states like South Carolina and help distract from a conversation about, say, the coronavirus or the economy. McConnell is also probably nervous about the Arizona Senate seat. If Mark Kelly wins, he could be sworn in as early as November 30th, which takes a vote away from Mitch. There's also a runoff potentially in Georgia and the Ossoff-Purdue race. And if neither of them gets 50% of the vote, that seat

becomes vacant on January 3rd. So he could lose some of the votes he really needs. The cons, as you sort of mentioned, John, is this exposes the rank hypocrisy of the entire Republican Party. I don't know if voters will care or notice, but every senator who said it was inappropriate to vote on Merrick Garland before the 2016 election will be exposed as a hypocrite and a liar. inappropriate to vote on Merrick Garland before the 2016 election will be exposed as a hypocrite and a liar. The country does not want this process rushed. So that's a con for McConnell here. I try to do it before the election. Polling shows that 62% of the country wants his seat filled by the winner of the November election. So maybe that could backfire politically. He could motivate Democrats if he rushes things. I mean, the other thing that I

wonder is the average Supreme Court nomination takes 70 days. We're 43 days out from the election. So I don't know how you get it done necessarily. I also just think like if you asked a bunch of voters, what do you want done first? Coronavirus relief legislation, a budget? They would probably argue for those things over ramming through another judge so they could just look out of touch. So, you know, look, we'll see what happens if Trump loses the election and he names a Supreme Court nominee anyway. I think that will be giving the middle finger to voters and Democrats will be forced to expand the courts. So, you know, there's a lot of it's hard to figure out how this will play out, But it's not an obvious answer here for McConnell or, frankly, for Democrats.

Yeah, I looked at the legislative calendar right now. There's only I mean, they can always bring people back and call emergency sessions. There's only 13 days counting today of 13 working days on the legislative calendar between now and the election. Very, very difficult to get something done in that time, though. I guess when you are completely cynical and have no principles, you can do whatever you want. Love it. Love it. What do you think about this sort of before versus after Election Day option? And what other two Republicans might join Collins and Murkowski?

Yeah, thanks for that one. So I think. Who do you believe in? Love it. Look, we got the principled one. We got Murkowski. I don't know what vitamin regime Lisa Murkowski is on. I don't know what's going on up there in Alaska, but she's got principles. No one else does. Wild. We don't know what Romney is going to do. But just sort of stepping back, McConnell is not behaving like someone who thinks it's easy or has a lock on the votes. He put a letter out right after this happened saying, urging his members to keep their powder dry. That's not what you do when you think you have them. When you're basically saying, I know it might be easier to say something now that you don't want to do this. Please wait and say it to my face, because I know that's going to be harder for you is not like super confidence inspiring. So I don't know that McConnell is behaving with a lot of assuredness that he can get this done before the election. So it does seem like they're leaning towards doing it after. Beyond that, I don't know. You know, people were like having a tiny bit of a, you know,

lighting a candle for Lamar Alexander, that candle is out. Romney, you know, Romney is another human being who became, whose personality changed when the threat of running for president went away. He seems to have a set of principles he's operating under. I don't know what those principles will dictate in this case. You look around, you start to see some sort of craven operators. I don't know. Cory Gardner is keeping his powder dry. I don't know what he sees as in his best interest, though I fear Cory Gardner, who operates completely cynically, if he views his seat as slipping away, he will do whatever it takes to remain in the good graces of Republicans, because I don't think there's a lot of money in voting for Kavanaugh and against Trump's pick.

I'm honestly not sure. I think our only hope is pushing this beyond the election, winning the election, winning the Senate, winning the White House and sending a powerful message that there will be consequences that vitiate the gains they can make by doing this. And I think that is in part why I was glad to see Schumer and AOC together giving a statement, because I think what it says, beyond just showing unity of Democrats in this fight, is it shows that Democrats see this as a whole Congress battle, not just a Senate battle. And it shows that we're willing to fight in a broader way and use other pieces of legislation,

other areas to sort of pull out all the stops and throw the kitchen sink at this thing. So it's interesting. McConnell has two goals here, right? Two big goals that are probably equally important to him. One is seating a conservative justice and two is keeping his job as majority leader and making sure there's a Republican Senate. And so I think what he has to figure out is, you know, there's an argument that if he if Trump names the nominee, but the vote is after the election, then Republicans, Republican voters

who may not like Donald Trump can say, OK, but if I vote for Donald Trump, I'll get this conservative justice. And in some of the redder states where his members are up, that maybe that can drive some base turnout. The problem with that is, unlike 2018 in the midterms, when you had people like Claire McCaskill and Joe Donnelly, you know, up in states, in red states, those were states that Donald Trump won by like 1920 points. Right. So they're pretty, pretty red states right now. McConnell's got like Susan Collins up in Maine where Joe Biden's up like 13 points in the state. got like Susan Collins up in Maine, where Joe Biden's up like 13 points in the state. He's got Cory Gardner up in Colorado, who's losing by like 10 points to John Hickenlooper. He's got Martha McSally up in Arizona, who's losing by 10 points to Mark Kelly. So he's got all these members up and in control of the Senate hinges on people running in states where it's not clear that putting a very conservative justice on the ballot who's going to overturn the Affordable Care Act and Roe v. Wade and stop climate legislation and stop labor rights is going to help drive Republican turnout.

And so I'm not sure it makes it might just be the calendar that dictates what actually happens here and what they can get done, because I'm not sure putting this on the ballot after the election helps McConnell. And I'm not sure putting it on before does either. Like, I don't think it's clear who it helps. Yeah, I agree. I will say, though, I agree with that. And I think that actually, yeah, I think it's concerning, right? Because if it's not clear how it affects the politics, and he's worried he's going to lose the majority anyway, he starts to say, well, there are only two things I care about. One, I've sort of lost control of basically I'm leaving, I'm in the hands of the voters and I'm not sure what's better politically. So why don't I just ram this person through? Because that's my legacy. That's my legacy. I've been thinking that. I also just think for Mitch, like if Donald Trump decides that naming someone before the election will help him

win reelection, that will be his all consuming focus. And he will hammer Mitch McConnell and he will hammer other Republicans until he gets what he wants. I mean, that that is, I think, the bind for these Republicans. I do think it's hard finding that fourth vote, too. I think you got Collins and Murkowski. I would not be surprised if Romney joins Collins or Murkowski on this, but that makes three. And the only senator up in 2020 who has not come out yet is Cory Gardner. I mean, if you're Cory Gardner, it's tough. Like he's he's losing that seat. That's probably the first one to go. And so because of that, because he's losing so badly, Cory Gardner might think I'm not coming back to the Senate anyway. So I might as well get myself a good lobbying job and being good

with the Republican Party and just do this. So it's now, you know, the flip side of that is Cory Gardner has not commented yet. So he's keeping his powder dry. But once you get past Cory Gardner, there's no Republicans that are politically endangered and there's no real institutional Republicans who might care about the institution and the principles more than just, you know, getting a justice through. I'm not betting on this, but like I do think the threat of court packing and other changes to the makeup of the court could be the kind of thing you could use to go to someone like Mitt Romney and say, let's cut a deal that avoids ramming this through and avoids Democrats doing court expansion on the back end of this to try to come to some accommodation. I'm not betting on that happening, but I do think that's kind of what Democrats, in part, what Democrats are doing here with this strategy.

So I could see Romney saying yes to that. The question is, I can't figure out who beyond Romney, who's, you know, like Grassley hasn't said anything yet, but like Lamar Alexander would have been a perfect person for that, right? He's retiring. He's an institutionalist. You would have thought that maybe you could make a deal, but no. Lamar Alexander came out today too. And then once you get past him, I don't know who else there is.

Are you saying that we can't, you know, you think Marco Rubio is going to go back on his word? Yeah, right. Yeah, he's running in 2022. So let's talk about the Democrat strategy. On Saturday, Chuck Schumer previewed what they'd be willing to do if the Republicans forced through the appointment, telling his colleagues on a call, let me be clear, if Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year. Nothing is off the table. So I'm at nuclear weapons.

So we're tight. Well, I want to get into the the court expansion. But like, short of that, is there anything else? Because I say a lot of people talking about this on Twitter, like, is there anything else Democrats can do to slow down or stop this nomination, short of getting two more Republican votes to join Collins and Murkowski? I mean, I don't know how effective these things are, but, you know, you're seeing a lot of talk about how Democrats can object to routine matters and slow down Senate proceedings and try to buy time that way. There's, you know, Democrats could try to enforce a rule that bars committees from meeting past the first two hours of a day. They could object to other routine business from like the naming of a post office to something more serious. McConnell could probably get around all of this with votes on rule changes, but it takes 51 votes.

It could eat up some time. People are talking about impeachment hearings against Trump or Bill Barr. I would be a little worried about how the politics of that cutting pretty hard against us, but we'll see. So those are some of the things that are basically delay tactics that you're hearing talked about. Yeah, I'd be all for delay tactics too, but even on the, even politics aside on the impeachment strategy there, we remember the impeachment hearing, you can still do Senate business before the hearing start at the beginning of the day at the end of the day. So you could still have an impeachment hearing and have McConnell ran through a vote while you're doing impeachment hearings. I'm not quite sure that one's been thought that well through. Lovett, should Biden and the Democrats

expand the Supreme Court next year if Trump's nominee gets confirmed? Let's move to that scenario. So I just talked about this with Kate Kendall, who is from Take Back the Courts, who is an expert on this. And we basically talked through, and it's just worth listening to it in full, but it's worth listening to because I think the way we talked about it is there's basically sort of three different arguments you have to think through. One is around whether it's just the right thing to do and whether we're not sort of part of an escalation. And she had a really good answer about that, that basically we are not escalating a fight. We are trying to redeem a body that has been politicized and pushed to the right and become anti-democratic in a profound way that has basically put America on the precipice of

losing its democracy. Then there's the question about the outcome of doing it. Will it work? Can it be effective? And I think there's a really strong argument that we should put our trust in democracy itself, that if we try to expand the court, we should be doing it while thinking about how to make sure that people in Puerto Rico, people in D.C. have a say in our democracy, that we are restoring the Voting Rights Act, that we are ending the filibuster, that we are taking the steps necessary to force Republicans to compete on a level playing field, which would require moderating or accepting permanent minority status that they could no longer win by riling up white people in certain parts of the country. And then there's just the matter of getting it done.

And I think that's the work that would come next, right, about persuasion, about pushing people to understand why this is necessary and why it's not necessarily extreme. What I certainly believe right now is that we do have to send that message that if they take this drastic step, if they steal Garland's seat and then don't apply their own precedent, they will have done so much damage to this court. They will have done so much damage to our democracy. They will have done so much damage to the court's legitimacy and their own legitimacy that we will have no choice but to expand the court. It is the only way. It is the only way to protect the Supreme Court from what they will have done.

Tommy? It is the only way to protect the Supreme Court from what they will have done. Tommy? Yeah, I mean, look, I think we just need to all be clear that Republicans play an entirely different game when it comes to the courts. Our friend, Mike Gottlieb, who worked in the White House Counsel's Office with us, pointed out to me that if you look at a list of the youngest 25 federal circuit court judges appointed since Reagan, they were all appointed by Republicans, right? Dan's joke about who he would name to the Supreme Court if he were president was he would go to the Harvard Law 10-K and appointed by Republicans, right? Dan's joke about who he would name to the

Supreme Court if he were president was he would go to the Harvard Law 10K and pick whoever won, right? They go for youth and longevity, and that's all they care about. So yes, I do think that we need to be talking about court packing. I mean, we need to do a lot of education here. The Constitution says that there must be a Supreme Court, but it doesn't set the number of judges. That's Congress's prerogative. We're currently operating under a precedent set during the Ulysses S. Grant administration in 1868. So I do think, you know, maybe it's time for an update. People always obsess about the blowback from Roosevelt's court packing effort, but I think it's a little bit silly to assume that the politics today are the same as they were in 1937. So yes, I mean, like Republicans are trying to cement

the power of a minority in perpetuity. We cannot let that happen given the stakes involved. We have to fight back or else we are just resigning ourselves to never advancing any of the priorities we care about. What's the point if we won't fight? That's where I mean, I think we have to start this debate with the consequences and not about precedents and not about norms and institutions and all this shit that like most people in the country don't pay a lot of attention to. If there is a six to three extreme right wing conservative majority on the Supreme Court, you could have a Democratic president and you could have super majorities in both houses of Congress, which a lot of voters would think, OK, well, that means that the Democrats get to pass a bunch of legislation. So anytime a Democratic president and Democratic

Congress passes legislation to cut carbon pollution in the air, protect a woman's right to choose, expand health care, raise the minimum wage, protect voting rights, do anything. You could have You could have majorities in Congress pass that legislation, a Democratic president sign it, and it will be struck down by the Supreme Court. And that will happen for 30 years, 20 or 30 years, depending on, I guess, when Clarence Thomas retires or Alito or whenever else we might be able to get another shot. So if that's the country that we want to have for 20 to 30 years, for decades, then yeah, then we shouldn't touch the court. If we want to have a country

where we can actually do things that improve people's lives, that we can have progressive victories, even center left victories, forget about like left wing stuff. Let's just think like moderate legislation, a right wing court would strike down. If we want to have that kind of country, then we can do what has happened in this country multiple times in the past when the size of the Supreme Court was changed multiple times in the past. And the way we should talk about this is we are trying to rebalance an institution that is way out of whack right now. It is way, way far to the right.

And what we need to do if we get power and they do this is to rebalance the court so that we can, so that when the president and a Democratic Congress pass legislation, it does not automatically shut down by an extreme right-wing court. That is the argument I think we should make. So Joe Biden hasn't yet publicly backed rebalancing the court. He's had some opposition to this in the past, but he did give a very powerful speech on Sunday, I thought, about the nomination fight where he called what Trump and McConnell are doing a, quote, constitutional abuse of power. Here's a few excerpts from Biden's speech. In the middle of the worst global health crisis in living

memory, Donald Trump is before the Supreme Court trying to strip healthcare coverage away from tens of millions of families. They strip away the peace of mind of more than 100 million Americans with pre-existing conditions.

If he succeeds, insurers could once again discriminate or drop coverage completely for people living with preexisting conditions like asthma, diabetes, cancer, and so many other problems. If we go down this path, I predict it will cause irreversible damage. The infection this president has unleashed on our democracy can be fatal. Enough. Enough. Enough. We must come together as a nation. Democrats, Republicans, independents, liberals, conservatives, everybody. I'm not saying we have to agree on everything,

but we have to reason our way through what ails us as citizens, voters, public servants. That's the guidebook called the Constitution. We have to act in good faith and mutual goodwill in the spirit of conciliation, not confrontation. So there are two parts to Biden's strategy here. One is to stop the nomination by appealing to a few more Republican senators to join Collins or Murkowski, which is basically what he was doing at the end there. And then they want to make this battle about Trump and McConnell destroying the

Affordable Care Act. Lovett, what do you think about that strategy? I think that's right. I think we've seen polling that shows that making this about the actual consequences of people's lives, making it about the fact that the Affordable Care Act is before the Supreme Court right now, making it about the fact that they are more focused on filling a Supreme Court seat than they are on helping people in the midst of a massive economic crisis and a pandemic, that they have been sitting on a bill to help people right now for months, but they are springing into action to fill this seat, tells you a lot about their priorities, seems to be the right decision.

And I actually sometimes think, I think about adding seats to the Supreme Court, like I think we should think about the filibuster, which is, I think as an abstraction, you kind of end up in debates about process and norms. But when push comes to shove, the sky has been orange in San Francisco. There are five storms in the Gulf of Mexico. I don't know what they're – I sincerely don't know. Is it right to add the seats to the Supreme Court to prevent them from overturning a climate bill or wait till after they've done it to respond to it? I don't know. I don't know what the right thing to do is. But I do know that we're going to have one period of time to do this. And the fact that Joe Biden, in everything that he does, acts like he has to be dragged kicking and screaming to these kinds of maneuvers. has to be dragged kicking and screaming to these kinds of maneuvers. It may be frustrating at time to all of us, but in the end, it actually gives him strength when he ultimately takes on the more progressive position. I totally agree with that. Tommy? Yeah, look, I mean, a lot of, look, a lot

of some people, including us, have expressed frustration at times when Biden suggests that like bipartisanship will come back when Trump is gone. But that's what voters want to hear. And his job right now is to win an election. So he's doing exactly the right thing. He's talking about the impact of the Supreme Court on people's lives, specifically the Affordable Care Act. And he is talking about, you know, bringing people together, bipartisanship. Like he doesn't have to channel my rage tweeting id when he goes out to the podium and gives a speech. He needs to win more votes than Donald Trump does in key states. So I think he's doing exactly the right thing. That said, I think a place where Democrats have failed in the past, Barack Obama included, is not using their power swiftly and brutally once they have it. And that's what I want to see from Joe Biden and Senate Democrats when we, inshallah, win the White House, win the Senate. Let's not wait around for six months to get rid of the filibuster. Let's not do much of procedural bullshit to make ourselves look like good guys. You never know what's going to happen.

If we win back the Senate and win back the White House and keep the House, we need to move quickly and advance all of our priorities and do it as brutally as Mitch McConnell does. Yeah, something I've been thinking about over the weekend is this may be what radicalizes Joe Biden and a bunch of moderate Democratic senators pushing through this nomination. And if and if and if that's what it takes, then then so be it. But like, look, I think, you know, I'm all for getting rid of the filibuster, obviously, and also changing the makeup of the court to rebalance it. It cost Joe Biden nothing. It cost all of us nothing for Joe Biden to try at this point and say, Republican senators do the right thing. Let's walk back from the precipice. And then if they don't, he can say, I asked,

I held out the olive branch. You decided not to. And so here is what I'm going to do. Right. Provided now, as Tommy said, like now he has to do it. Right. Like if they ran if they ran through this nomination and we have a 6-3 court, I do not see how Joe Biden as president and a Democratic Senate, Democratic House can survive, can continue with the filibuster intact and a 6-3 majority on the Supreme Court. I don't know. I don't know how the country survives, right? So then I'll be pushing them as hard as possible. But right now, if Joe Biden wants to extend that last olive branch, I don't think there's a cost. But we'll see how the Republicans respond. Let's talk about what this means for the presidential race. There was plenty of very predictable punditry over the weekend that the Supreme Court fight will, quote, upend the race and help Donald Trump by energizing his base and moving the conversation away from issues like the pandemic.

Tommy, what evidence is there for either assertion? Well, 90 percent of voters in the latest NBC Wall Street Journal poll say they have made up their minds. So that means 11 percent of the vote is up for grabs. So if we're upending the race, we're upending a very, very small portion of that race. Like, I think this might change the D.C. political press narrative for a while. There might be a big fight that grabs a bunch of headlines. But like, hey, I can't leave my house because there's a pandemic.

And I also can't go outside because because there's a pandemic. And I also can't go outside because the air quality is unsafe in Los Angeles. I still think that people are going to be more worried about the coronavirus and the economy. And those are the things they're going to vote on, as opposed to like some secret groundswell of rabid right wing conservative voters who care about the courts, but didn't vote for Trump in 2016, or who aren't already showing up in the polls. Like, I just find this, this conventional wisdom that this is somehow going to be a huge boon for Republicans to be unconvincing, or at least not based in any data. On the flip side, like ActBlue did $100 million in donations to Democratic

candidates over the weekend. That suggests that there's some pretty intense enthusiasm on the left. So look, we'll see. I'm not predicting. Let's wait for opinion polls to come out. But, you know, there's been we're constantly told that something is going to upend the race. It repeatedly does not. You know, we'll see if that pattern is broken here. Love it. Love it. What do you think? Nothing upends the race. It's 2020. We are stuck. The pandemic didn't upend the race. 200,000 Americans are dead. The polls have been frozen since what, June? Since Joe Biden secured the nomination? Maybe this will have an impact. I don't know what it is. I don't think anyone can say with certainty if there will be an impact or what it actually, or whose benefit it will

actually redound to. The one thing I will say is the hope that I had that I clung to over the weekend was, you know, John made the point that this may finally wake up some people in D.C., politicians, to the actual threat Republicans are posing. My feeling as I watched the donations coming in to get Mitch is this terribly devastating event, this sort of gut punch. Maybe we'll look back and say it woke us up because Ruth Bader Ginsburg's seat was always at stake. It was at stake the whole fucking time. terribly devastating event, this sort of gut punch, maybe we'll look back and say it woke us up because Ruth Bader Ginsburg's seat was always at stake. It was at stake the whole fucking time. And if Donald Trump won, he was getting that judge and maybe two more. The court was gone. And so maybe we can look back on this moment and say we felt viscerally what was true the whole

time. And that actually this got people out of the pandemic torpor, out of four years of paying attention to Trump and not being able to muster any more energy for this last 40 day push. Maybe this is the thing that got people alive to the threats that we're actually facing. Yeah, I mean, in 2016, when Donald Trump released his list of potential justices, one of the reasons that that potentially helped him is he did not have every conservative on board um and just about every poll right now shows that like 95 to 99 percent of conservative republicans are backing donald trump you cannot juice that base right anymore they're not they

were not waiting for a nominee even in 2018 2018, there's this whole, you know, misunderstood history of the fucking Kavanaugh hearing and the effects it had, right? The Democratic senators, again, who lost in 2018, lost in states where Trump won by 19 points or more. In Florida, the one state that was close where Bill Nelson, the Democratic senator, lost, voters who said Kavanaugh was a factor were more likely to back Nelson than Rick Scott in that state. The voters that are up for grabs right now, the small undecided percentage of voters. Right. These are voters who, by and large, do not want the afford. Do not want health care being ripped away from 20 million Americans.

They do not want protections for preexisting conditions being ripped away. Dave Wasserman made the point that one in five Trump voters in swing states in 2016 were pro-choice. Right. Right. So like there is just as much of a chance that this motivates. Forget about Democrats, because, again, Democrats are in, you know, it was incredible and amazing to see everyone give so much money. I'm sure everyone who gave money is already voting for Joe Biden. But the voters that are up for grab still, there is a good chance that knowing that their health care could go away, that their right to choose could go away, that they might never see something done about climate could actually help motivate them to get off the sidelines and vote for Joe Biden. Is there a ton of evidence about that?

We don't know. But there is just as much evidence for that as there is that this somehow is going to fucking help Donald Trump. And by the way, also, just to add to that, it's not determined in advance whether this helps or hurts Donald Trump. That's in part determined by us. Let's make this about the ACA. Let's make this about choice. Let's make this about the economy.

Let's make this about the climate. Let's make this a fight about big, actually important issues in people's lives. And, you know, the abstraction that was Donald Trump and the dirty deal he made with Republicans that basically put in a monster. And I'll give you your judges. That's baked in now. People know that that happened. That is quite real. Let's make the consequences real for people in a way they haven't been before. And just so everybody knows, like the other amazing thing about people giving 20, almost 22 million dollars now to Democratic Senate candidates over the weekend is that you guys upended the narrative that was already setting in Washington, D.C. among political reporters.

You could see reporters in real time, like, quote tweeting their previous bullshit tweets about how this helped Trump, how this helped Republicans, how this helped McConnell. I mean, like, actually looking at these fundraising numbers, maybe that's not the case. So, right, like Lovett said, we have a lot of agency here. We can fight this thing. There's no reason to lay down before there's a big, nasty fight. And this is very important for everyone to keep in mind in the weeks to come, because Trump is going to nominate Amy Coney Barrett, or he's going to nominate Barbara Lagoa. And if it's Barrett, they might say, oh, no, now he's going to win over the Catholic vote away from Joe Biden or more suburban women are going to vote for

Trump. And if it's Lagoa, there's always going to win Florida now because of Lagoa. And that's bad for him. And then if that justice is confirmed, which there's a very good chance that justice could be confirmed, there's going to be a whole nother slate of stories. Right. Democrats are demoralized. Democrats are upset. We lost this fight. We can win this. We can win this election. Joe Biden can win. We can have a Democratic Senate, a Democratic House. And if there is a justice that is nominated, we can rebalance the court once Joe Biden is inaugurated and we seat a Democratic Congress. We can keep fighting and win this thing. So do not be demoralized in the weeks to come, especially if,

you know, this justice is confirmed, which there's a very good chance they could be. It is not the fucking end of the fight. It is not the end of the fight. It never is. So we just got to go straight through to November and not let this get us down. All right. When we come back, we will have Lovett's conversation with Take Back the Courts' Kate Kendall. She is a lawyer and the campaign chair of Take Back the Court, an organization pushing to expand the Supreme Court. And she previously led the National Center for Lesbian Rights. Kate Kendall, thanks for being here. My pleasure, John. Thanks so much.

So we all can't help but jump right to what's next, but I want to start by just asking you, you were involved in a number of incredibly important fights before Ruth Bader Ginsburg or fights that were influenced by her decisions. What was your reaction to the news of her passing over the weekend? by her decisions. What was your reaction to the news of her passing over the weekend? I was devastated. I will remember exactly where I was when I got the news from a colleague of mine at the Southern Poverty Law Center where I currently work. You know, we know that she had had some health issues, and yet it felt like, even though I never met her, having had cases, my organization had five cases before the Supreme Court where she was a key vote in every single one of them, voted in our favor in every

single one, was in the court for both the challenge to the Defense of Marriage Act and the marriage cases, the one in 2013, then in 2015, so saw her. And even though we never met, I felt like I had lost a family member. And what I was struck by is not only how devastating it was, but then I was enraged that rather than just being able to sit with being devastated at the loss of this iconic, legendary, outsized hero, that I had to worry about what was going to happen next with this administration. And that's just infuriating. I think we were all denied an appropriate pace of grieving because we're so scared of what this administration and a GOP-led Senate might do next in their evisceration of democratic ideals and liberty for all.

evisceration of democratic ideals and liberty for all. Yeah, I do think that part of the reaction obviously was grief, but also an instant feeling of knowing that it didn't matter what they had said before. It didn't matter what they had promised, that we knew we were in for the fight of our lives. And I think it certainly took me some time to stop just imagining how badly it could all end and start thinking a little bit more about what we could do to sort of fight for a better outcome. And I know that that's what you've been doing with Take Back the Court. So I really wanted to talk to you about it because I think that is a new conversation for a lot of people about adding justice to the Supreme Court, reforming the court. And you've been at this for a long time, you know, that this one sort of devastating event is not making this a new issue for you. So can you talk a little bit about what Take Back the Court is fighting for

and what the baseline argument is for why we need to expand and reform the judiciary? This context is so important, John. I really appreciate that question. It reminds me a little bit of Maya Angelou's quote, when people tell you who they are, believe them the first time. We have not done that as Democrats. We've not done that as progressives. We've not done that as advocates who fight for a full and fair judiciary. We believe what being told that people will play by the rules, a GOP-led Senate will play by the rules. They didn't do that with Merrick Garland. And right after they refused to confirm Merrick Garland during the Obama, the second Obama administration, Aaron Belkin, our director, founded what was then called Pack the Courts and is now Take Back the Courts. We wanted to make sure that people understood we're not talking about doing something like Roosevelt did way back in the 30s, where under the dark of night,

essentially just trying to add justices to the court. What we wanted to ignite was a conversation about how deeply dangerous the illegitimacy of this court has become and the refusal to play by democratic norms led by Mitch McConnell and the GOP Senate. We have seen the evisceration of voting rights. We have seen the undermining of fair elections by treating corporations as people. We have seen power grabs for power grabs sake and a complete evisceration and obliteration of democratic ideals. Democracy is hanging by a thread, and the only way to save it is in the hands of a fair Supreme Court that can only be fair by restoring its legitimacy, made illegitimate by Gorsuch, who should have never been confirmed, that is a stolen seat. And by Kavanaugh, whose nomination was jammed through without a full

and fair airing of all of his behavior and whether he should be on the court or not. The only way to play in that arena, we don't need to stop bringing, you know, cotton candy to a knife fight. We need to get in the ring and say, we are going to go toe to toe with you. And the way we're going to take back our democracy is by expanding the size of the court, adding justices under a Democratic Senate and a Democratic White House and restoring the legitimacy of the court in order to save democracy, restore voting rights, the court in order to save democracy, restore voting rights, restore full and fair elections, and really have a constitution who actually is animated by liberty for all. I mean, because cotton candy in a knife fight is useless.

They're not going to work. You'd instantly realize you'd brought the wrong thing. You'd be so foolish to bring cotton candy to a knife fight. It's the absolute worst thing to bring. So I want to interrogate the argument because there are, to me, I think sort the absolute worst thing to bring. So I want to interrogate the argument because there are to me, I think, sort of three questions that I see. One is around the morality of it, just the pure integrity of doing this. One is around the politics of it and the actual consequences of it. And then one is just about the challenges, the nuts and bolts practicality of it, of getting it done. So let's start with the morality of it. Look, I am a progressive,

Let's start with the morality of it. Look, I am a progressive. I believe, based on evidence, evaluating as objectively as I can, that this notion that there's been this tit for tat over many years is a fantasy, that we have seen a right wing That we have the fight over Bork. We have Harry Reid's decision in the face of incredible unprecedented intransigence to change the filibuster rules. For the most part, we have been on our heels. But I know that despite a lot of bad faith arguments on the right, there are, I think, some good faith arguments from people who sincerely believe that just as we're saying we've been bringing cotton candy, that they believe they've been bringing cotton candy. And what you really have is two people with knives pretending they're fighting with cotton candy. What is the argument that we're not just part of the problem, that we're not escalating the devaluation and the lack of legitimacy of the courts by escalating this fight even

further? Well, I want to change your framing. Please do. It's not escalating. It's not escalating the fight. It's saving democracy. It's not escalating the fight. It's saving democracy. And if we continue to believe democracy can save itself through the regular cycle of elections, we are acceding to the venality and the corrupt behavior of our opposition.

When the other side cheats in any game, when the other side cheats, if you're willing to ignore the cheating, overlook the cheating and not attempt to stop the cheating and to recorrect and to re assert the rules, you're a chump and you're going to lose. And that is exactly what we're, you just, you outlined a chump and you're going to lose. And that is exactly what we're, you just, you

outlined it. Right now we have a court that humanizes corporations, treats them as people, allows a flow of unlimited dark money into elections, has completely eviscerated voting rights and Ginsburg famous line, you don't pull your umbrella in, in the middle of a rainstorm because you weren't getting wet. And that is what the court did with voting rights. There is still massive, massive attempts to ensure that the people the GOP doesn't want to see at the polls can't go to the polls to suppress turnout and to suppress the ability of the right to vote. If we do not understand the nature of that threat for what it is, which is really at the heart of democracy, and we simply sit back and say, oh, but this seems so extreme to add justices to the

court. Why should we have to do that? We are whistling in the wind. And if we're not willing to be at the vanguard of what it takes to protect democracy in the light of the behavior that is unprecedented and incalculable in terms of its danger to democracy, we're part of the problem. There is nothing wrong with looking at a system that has been irretrievably tortured and broken and saying the way to correct it and to fix it and to re-legitimize it is by adding justices to the, adding justices to the court is no big deal. The makeup of the court, the number has changed many, many times up until modern times. And then the GOP Senate under Obama changed the number again by leaving it at eight instead of nine. that landscape and understanding that expanding the size of the court means we will once again have seats that are filled by individuals who legitimately belong there and then can make

decisions and rulings consistent with principles of true democracy, restore voting rights, and the flow of dark money. That is the course correction that we must have. And the only way to get it is expanding the size of the court. So then I guess I want to I want to push on this just because I want to understand it myself. So I feel like there's two there's two ways in which you're describing these anti-democratic forces. One is around the rulings themselves, right, that this and this voting rights decision like strips the rights of millions of Americans in a completely illegitimate way. We could talk about Bush v. Gore. We could talk about Shelby as rulings that

were just sort of bald-faced attempts at sort of maintaining power for a minority of the country. And then there's the issue of these stolen seats, of what happened with Garland, for example. How do you put those things together? If we are able to successfully prevent the vote on a replacement for Justice Ginsburg, does that do anything to undermine the argument for expanding the courts? What do you do with your two stolen seats? What do you do with a stolen seat and an illegitimate seat? We're not correcting anything. We've just, by the skin of our teeth, saved the court from lurching even further rightward but we haven't actually corrected the fundamental misalignment in terms of how partisan the court has become when I became a lawyer during the Berger court you know I kind of grew up a

little bit with the Warren court as an idealistic, you know, young girl who at 11 decided she wanted to be a lawyer because I saw the court as doing good things for people who had suffered oppression. You know, this was during some of the criminal justice cases where you were red Miranda rights, for example, in Gideon versus Wainwright or civil rights cases that, you know, upholding the 1964 Civil Rights Act. The court was a force for good, and it didn't almost matter whether a Republican president or a Democratic president appointed you because there were ideals and values and principles that transcended party. We don't live in that world anymore. In, I feel like, a very short time, and certainly, you know, only half of my lifetime.

That has been completely reversed. And the GOP-led Senate treats the court like they live in a banana republic, and they get to put anybody they want on, no matter how unqualified or how ideologically riven, and how clear it is that they will only rule one certain way in every single case. The only way to correct that is by diluting the power and the force of those individuals votes. And the only way to do that is expanding the number of justices. All right. So you've persuaded me I'm on board. Now we're actually doing it.

What do you say to the argument that this is going to just lead to retaliation? That, okay, we add seats when we're in power. They add seats when they're in power. It doesn't actually, we're down to our benefit. We've done this. We've taken this dramatic step. And in the end, Republicans will find some creative way to retaliate and leave us back where we started. So, John, I'm going to answer that question with a rhetorical question, and then I'm going to answer my own rhetorical question. That makes it so easy for me. The rhetorical question is, why are they doing this in the first place? And the reason is, they know they can't win popular elections if they're fair. Republicans saw this 20 years ago.

You know this data as well as I do. They know they can't win with free and fair elections and without voter suppression. So they've started, so beginning 10 years ago, even 20 years ago, really, they started laying out a plan for cheating and trying to game the system. So if we were to be lucky enough to take the Senate, keep the House, and have Biden and Kamala Harris in the White House, what we could then do is all the corrective actions. It's not just adding justices to the court. It's doing what the Brennan Center said, giving voting rights to Puerto Rico and the District of Columbia, re-enfranchising people who have lost the right to vote based on felony convictions that have nothing to do. They've paid their debt, they've paid their fines, and they're still unable to vote.

And we're in the middle of a case right now in Florida doing this. We correct all of the manifest injustices put in place to game the system in one direction. We get rid of all of those barriers and all of those hurdles. According to the Brennan Center, if you do all of that, you restore voting and add to the voting rolls 50 million voters. If that happens, Republicans, as they are currently manifesting themselves with the highest level of toxicity and ideological purity will never be able to be in a tit for tat or a tat for tit, whatever it is, position because they'll never again win a majority in the Senate and they'll never again regain the White House unless they moderate themselves and their approach to how they want to govern.

So then now I want to ask you about this, the third piece of it, which is just persuasion, just getting people on board with this plan. You know, as you mentioned, adding more justice, it's constitutional. It's happened many times before. It is true the Republicans decided for a while that there should be eight seats on the Supreme Court. How do you change public opinion around this issue? And what guidance are you giving to candidates who are nervous about the idea of running on court expansion and getting labeled as extreme or endorsing a fringe idea? The most gratifying thing that has happened in my experience now being involved with Take Back the Course for a little bit over a year was how massively quickly attitudes have shifted. We couldn't get our

phone calls returned when I first started talking about this. We were looking for donor money. We didn't need that much, but we just needed enough to be able to continue to get our message out. Within six months of me starting with Take Back the Courts, a little over a year ago, Eric Holder came out in favor of court expansion. Different elected officials came out in favor of court expansion. We ended up with, and then we had, predictably, Marco Rubio dropping a bill to stop our efforts. So once we knew we had opposition, then we knew we were making inroads. We have completely changed the conversation.

we knew we were making inroads. We have completely changed the conversation. And even like just this morning, I did a little Google search of articles on, you know, expanding the court or taking back the court or packing the court. And it is now, especially in the wake of RBG's passing, it is a conversation that leads or is embedded in the news stories of her passing and what might happen next. So everyone is focused on how important the court is and people understand at some even visceral level, even if they're not like you and me where they're sort of political junkies, they understand that something is deeply corrupt in how the GOP Senate has regarded the court. And they're open to thinking about how do we correct? We love this country.

We want it to be a vibrant democracy. We've been reminded over the course of the last four years what a fragile democracy it is. But if we had a chance, if we had a chance for the future of our kids and grandkids to have them be proud of the justices that sit on the Supreme Court, to have them once proud of the justices that sit on the Supreme Court, to have them once

again see the court as a force for true liberty and justice for all. What decisions would we make right now to make sure that happens? And many, many people are now willing to engage in that conversation. We still have some persuasion to do to say it is expansion of the court because we all grew up with nine justices. That's the way it's kind of always been until 2016. But when you understand what you're up against and what your opposition is willing to do, violate every single constitutional and democratic norm to keep power, you have to recognize that reality and say, as much as I'm reluctant to do it, I'm dropping the knife. And even though I'm no big gun proponent, I'm grabbing the right kind of weapon to assure that I can protect democracy and be an agent for real change so that my kids and grandkids are going to grow up in once again a vibrant democracy that has a Supreme Court that operates for everybody.

Kate Kendall from Take Back the Courts. Thank you so much for your time. Pleasure to be here, John. Thank you. Thanks to Kate Kendall for joining us today. And thanks again to everyone for everyone who donated this weekend. It was just, it was amazing to see. Can I make two points? It really was. I want to make two points. Yes, you can. Point number one, it doesn't matter.

But when I saw that video of Trump pretending he was learning that RBG had passed while Tiny Dancer played in the background, I realized that hell is other people's watchman. When you live inside of someone else's watchman, it's very, very scary. And then the second point, and this doesn't go anywhere. There's nothing to do with it. But I don't want to miss a chance to say it, which is accepting a Supreme Court nomination from Donald Trump is proof that you should be disqualified and not able to take the seat. That is a very good point.

It does. It's just like, oh, no, no, you shouldn't be on the Supreme Court. You accepted a nomination from Donald Trump. That means you don't really understand the role or the job and you shouldn't have it. So, you know, it's a self-fulfilling and doesn't really have, I don't know where to put that, but I don't want to go away. I don't want to not say it, even while there's music playing, you know? No, I'm glad you said it. Me too. I'm glad I said it too. Pod Save America is a Cricket Media production. The executive producer is Michael Martinez.

Our associate producer is Jordan Waller. It's mixed and edited by Andrew Chadwick. Kyle Seglin is our sound engineer. Thanks to Tanya Sominator, Katie Long, Roman Papadimitriou, Quinn Lewis, Brian Semel, Caroline Reston, and Elisa Gutierrez for production support. And to our digital team, Elijah Cohn, Nar Melkonian, Yael Freed, and Milo Kim, who film and upload these episodes as videos every week.