Pod Save America - "Rebreyerment."

Episode Date: January 27, 2022

Justice Stephen Breyer’s retirement announcement gives President Biden his first chance to fill a Supreme Court vacancy, former Obama White House lawyer Kate Shaw joins to talk about potential nominees and what it’s like go through a confirmation fight, and the week’s worst punditry gets the scorn it deserves in another round of Take Appreciator.Pod Save America is vaxxed, boosted, and headed back on the road! Join Jon, Jon, Tommy and Dan on the road for Pod Save America (A)live And On Tour. Get tickets & learn more: crooked.com/events.Listener presales: January 25 at 10 am local time through January 27 (code CROOKED)General onsale: January 28 at 10 am local timeFor a closed-captioned version of this episode, click here. For a transcript of this episode, please email [e-mail] and include the name of the podcast. 

Welcome to Pod Save America. I'm Jon Favreau. I'm Dan Pfeiffer. On today's show, Justice Stephen Breyer's retirement announcement gives President Biden his first chance to fill a Supreme Court vacancy. Former Obama White House lawyer Kate Shaw joins to talk about potential nominees and what it's like to go through a confirmation fight. And the week's worst punditry gets the scorn it deserves in another round of Take Appreciator. it deserves in another round of take appreciator and dan finally gets the big news day he's been craving on pod save america since they just the good news cycles have kept falling to the monday pod finally you're back in business finally thank you stephen breyer for your service to this country and this podcast i heard he timed it for you. That's the rumor.

Before we get started, some incredibly exciting news. Two fantastic podcasts will soon be joining the Crooked family. The first is Hot Take, a no-bullshit show about the climate crisis, hosted by climate writer Mary Anise Hegler and award-winning investigative journalist Amy Westervelt. And the second is one you've heard a lot about here on Pod Save America, especially today, Strict Scrutiny, hosted by law professors Melissa Murray, Leah Lippman, and our guest today, Kate Shaw. Strict Scrutiny will give you all the info and brilliant, witty analysis you need about the Supreme Court, its decisions, its personality, and the broader

legal culture that surrounds it. You'll be hearing much, much more from both Hot Take and Strict Scrutiny across your favorite crooked pods in the not-too-distant future. But in the meantime, give them a follow on social and in your podcast apps. Much more to share soon. Exciting. Also exciting. We're going on tour. It's happening. We're back. There's a pre-sale happening right now. Tickets go on sale to the general public on Friday, January 28th. For all the tour dates

and ticket info, go to crooked.com slash events. We will be hitting the road in April. If you don't see your city on the schedule, not to fear, there will be a second round of cities for the fall. So there you go. If you don't see your city, send as many angry tweets as possible and we'll consider it.

Yeah, sometimes that works. Sometimes that works. It worked with Breyer. It worked with Breyer. Speaking of which, let's get to the unequivocally good news. get to the unequivocally good news. 83-year-old Justice Stephen Breyer will retire at the end of this term, paving the way for Joe Biden to fulfill his campaign promise to nominate the first black woman to the Supreme Court, a justice who could maintain the current 6-3 split between conservatives and liberals and potentially serve for decades. Possible nominees include 51-year-old Judge

Ketanji Brown-Jackson, who was just confirmed to the D.C. Court of Appeals in June by a vote of 53 to 44. Leandra Kruger, an associate justice at the California Supreme Court. Judge Candace Jackson Akawumi, who Biden appointed to the Seventh Circuit. Judge Eunice Lee, who Biden appointed to the Second Circuit. And U.S. District Court Judge Michelle Childs, a favorite of Congressman Jim Clyburn. Senate Majority Leader Chuck Schumer said the nominee will receive a prompt hearing and be confirmed with all deliberate speed, with some Democrats telling reporters that he's aiming for a time frame similar to the Amy Coney Barrett nomination, which was done in about a month.

The president and Justice Breyer officially announced the retirement at a White House event Thursday morning, where Biden said he'd nominate a replacement before the end of February. Here's a clip. I've made no decision except one. The person I will nominate will be someone with extraordinary qualifications, character, experience, and integrity. And that person will be the first black woman ever nominated to the united states supreme court it's long overdue in my view i made that commitment during the campaign for president and i will keep that commitment well how about that uh is it safe for everyone to go back to liking justice briar now did anyone stop liking justice briar not me. I've been a huge Breyer guy for years. Some might say that the

billboards, uh, yelling at him to retire, you know, may have been a little aggressive, but clearly he drove by them and saw them. And thus the announcement came today. I feel like there was a direct line. He, he also probably read Twitter. Like all the, all the people that tweeted today would be a good day for justice Breyer to retire. Do you think he also probably read Twitter? Like all the people that tweeted today would be a good day for Justice Breyer to retire. Do you think he finally saw one of those tweets and said, oh, shit, it's time? I think. Look, what happened with Manchin and Sinema over the last few weeks was a real blow to the mean tweet strategy for political activism. But it's having a comeback.

It's back. Now it's back. back now it's back um so one hint the white house has given about who biden might nominate came from a source who told punchbowl uh that it won't be someone who is not currently a judge uh and the president himself today said that vice president kamala harris would be helping him through the confirmation process why do you think they wanted that piece of information out there dan how will she be helping him through the confirmation process will be she's gonna how many people get that reference i wonder how many are we that old a bunch of old people someone who saw an adam and k movie those are that those are the options that's it there were some there's some rumors yesterday the floating that he might

choose kamala harris yes you know i mean, Jeffrey Toobin floated this. Fairly ridiculous to me. A couple of weeks ago in a sort of bizarre post about Justice Bryant resigning and here are some of the people, much of the people on the list you mentioned, that Kamala Harris was mentioned. She is, in fact, a black woman. Simone Sanders tweeted something I think is a piece of advice we should all take. Last night, Simone Sanders, the former chief spokesperson for the vice president, said that the Kamala Harris to

Supreme Court rumors are generated by the right wing trying to sow division in our party. So we shouldn't give them attention because it's not happening. And I sort of feel like that's good advice to take. Yeah. And also, I think on the it's not going to be someone who's not currently a judge. That's just, you know, it's not like without precedent that a president has nominated a Supreme Court justice who wasn't currently a sitting judge. But it is rare, usually, like for all the like fun parlor games about who he might nominate, like it's going to be a judge. Like, it's going to be a judge, most likely. There's a practical reason for that, too, especially if it's someone who, and we talk about this with the individual candidates, who has recently confirmed you have a record of people in the Senate having voted for them or in a demonstrated capacity to get to the 50 votes you're going to that point of the names I just mentioned who currently make up the rumored shortlist. And I would say that the three most mentioned names are Judge Jackson, Judge Childs, and Judge Kruger. Is there anything about their qualifications or backgrounds that might make one a more likely or more confirmable nominee than the others? Well, Judge Jackson got 53 votes just last year to be confirmed to the D.C. Circuit Court of Appeals, which is the second highest court of the land, the court that hears all the cases, many of the cases, important cases before they hit the Supreme Court.

the bench, the federal judiciary writ large, not just in terms of race and gender, but also an experience because for far too long, there's been a premium put on prosecutors and not enough on public defenders. So having elevating someone who is a public defender to the Supreme Court would be a huge deal, I think. And she clerked for Breyer. She's a former Breyer clerk. And, you know, you mentioned that she was a public defender. I think some criminal justice advocates are also excited about this potential pick because she was on the sentencing commission under President Obama, where she reduced a lot of sentences, particularly around for drug offenses. And so in terms of criminal justice reform, you know, there's a lot to like with Katonji Brown Jackson. Kate Shaw, who I talked to later, brought this up, but she's new to the D.C. Circuit Court. As you said, she got 53 votes, the three Republicans. So she

got all 50 Democrats. And then the three Republicans she got were Susan Collins, Lisa Murkowski and Lindsey Graham. Still, I still don't get the Lindsey Graham vote, but great. So she's new there. So she doesn't have like a ton of rulings on the D.C. Circuit Court to really pick through. But one that's notable is she ruled that former White House counsel Don McGahn had to comply with a congressional subpoena and testify before Congress. And there was a particular line in that ruling. The primary takeaway from the past 250 years of recorded American history is that presidents are not kings. past 250 years of recorded american history is that presidents are not kings you know i read this piece in the atlantic they said that line struck many republicans as overly confrontational oh so what a what a crazy thing to say that presidents aren't kings it's only the founding principle of the fucking country like bank glad they're standing up for kings they're defending kings now hey don't be so hard on kings. The president should be kings.

But I do think like – look, so, you know, and Kate makes this point too. D.C. Circuit Court is the second most powerful court in the land, right? It is head and shoulders above some of the other circuit courts. It's, you know, after the Supreme Court, the next most powerful court. So a lot of people have thought for a while that Katonji Brown Jackson has sort of, you know, there's been a plan all along to get her on the D.C. Circuit Court and then to nominate her for Breyer's seat if he retired. And also Biden met with her. I wanted to bring that up because that seemed quite unusual to me for an appeals court pick to have interviewed with the president for that.

That is usually, if I recall correctly, reserved for Supreme Court nominees. Yeah. So that gives you a hint. I mean, what do you think about the the Clyburn thing on Judge Childs? Do you think there's anything to like Biden thinks he owes Jim Clyburn from the campaign? And so he's going to take his favorite pick seriously. And we should say that Judge Childs is from South Carolina, was a judge in South Carolina, and has also been nominated to the D.C. Circuit Court, though her confirmation hearing has not happened yet. Well, I guess we'll see how much juice Jim Clyburn has now, huh?

I can't imagine the president is going to, I mean, he will, I'm sure, listen to Congressman Clyburn as he always does, but is not going to make his decision based on political favor or whatever he feels he may owe Jim Clyburn. That seems impossible to imagine to me. Yeah. I think the important thing here is Biden has in this rumored shortlist and even some of the other names, an extremely qualified group of people to choose from here, which is very, very good news. And I think, and he said this today, he said it will be someone with impeccable qualifications and any of the people that we mentioned have that in spades. And so I think that, you know, that's a really good thing.

Let's talk timing. Schumer wants the nominee confirmed in about a month. Susan Collins said there's no need to rush and that the Senate should take its time. She also mentioned that she thought that the Amy Coney Barrett process was rushed and that she doesn't want this one rushed. process was rushed and that she doesn't want this one rushed. Dianne Feinstein released a statement that said with six months until Breyer departs, the Senate will have, quote, ample time to hold hearings. People on Twitter took that statement to be like Dianne Feinstein wants to drag this process out.

I think there's another way to read that, which was you could imagine Mitch McConnell or some Republicans doing their like, it's an election year. We don't have time for a, you know, we don't have time to do hearings. We should just wait for the midterms. And so she could have been pushing back on that. But anyway, who knows what Dianne Feinstein's thinking? But how important do you think speed is here?

Here is, I mean, I don't want to be grim about this, but we're in a 50-50 Senate. I know where this is going. And there are 12 Democratic senators sitting in a state with Republican governors who could appoint their replacements. So there's no real screwing around here. They got to get going. Let's move. Let's move.

Clock's a ticking. Look, I think Biden is correct to do this in a month. He's obviously been working on this for a long time. This is not a surprise. There are times when, like with Scalia, when there's an unexpected passing, no one knows it's coming, then there's immediate effort to do all the work. When Obama was in office, we had expectations we were going to have vacancies. And so the work was done to prepare for those in advance so you could turn around and make your nomination quickly. Biden has been preparing for

this the entire time. I think that all the vetting on these people has been done. The books are prepared. He will meet with them. They will talk. They will do the advice and consent with senators and then they will and Congressman Clyburn, obviously, and then they will move on and make a decision very quickly. And that's right. Whether it's in a month as Chuck Schumer, famous for adhering to all of his deadlines and never missing them, or sometime after that. One notable thing is that Breyer said he would retire, but Lee Lipman of strict scrutiny now now of the crooked family excitingly said on Twitter, pointed out on Twitter that Breyer said that he will retire at the end of the term

if someone has been confirmed to replace him. So he's not going anywhere until they get this done, but there's no reason why they can't get this done pretty quickly. I'll also say I had a long list of problems with the Amy Coney Barrett nomination. The speed of the process sort of at the bottom of the list. If we had dragged that out for a couple more months,

I don't, you know, that's not... You wouldn't be a really big supporter of hers? Yeah, I mean, unless, you know, unless they wanted to drag it out until right after they swore in John Ossoff and Raphael Warnock and Joe Biden. That would have been – yeah, it would have been nice to drag it out to then. Here's a question for you. Do you think the Republicans are going to fight on this? So, you know, so far everything I've seen does not make me think that they will, but they're Republicans.

And like this is what usually happens with them. The Republican politicians sort of like spit out statements like Lindsey Graham kind of had a surrender statement out. He's like, I imagine Democrats will stick together and we won't win this fight kind of thing. Mitch McConnell, even for Mitch McConnell, he was like, you know, it's a 50 50 Senate and Joe Biden should not outsource this decision to the radical left and blah, blah, blah. So I don't think that the senators right now are all thinking that they're going to put up a huge fight. But like, I don't know, give Fox News a week to gin everyone up and then we'll see what happens because they could get pressure from their masters in the

right wing media. That's who they take marching orders from. So you don't know what they're going to be like. But I don't I don't know. I think, look, if if the president nominates Katonji Brown Jackson and Democrats can say, OK, this is someone who literally just got the vote of Lindsey Graham and Susan Collins and Lisa Murkowski is Lindsey Graham part of the radical left now. is Lindsey Graham part of the radical left now? You know, I think it's going to be harder for them to put up a fight, especially if, and this is what I want to get to next, if it seems like Manchin and Sinema are on board. I think if they can, if they can, they get a whiff of division on the Democratic side, then they might start going all in. And they might try to make Manchin and Sinema feel like

they are, you know, confirming some far left radical nominee. If they can, if they think they can do that, they might make a push. But I think if Manchin and Sinema sort of come out of their initial conversations with the nominee early saying positive things, then I think you'll see Republicans back down. I don't know. What do you think? Yeah, I think that's, I think there's going to be two levels. I think the MAGA media will do everything they can to demonize a nominee. There's nothing they like to do more than demonize a black woman. And there will be Republican senators who will take their lead from that, the Tom Cottons and Josh Hollis and Ted Cruz's.

But I'm not sure that they will be this giant fight because they're either in the Republican Senate or the larger, you know, very well-funded judicial activism networks on the Republican side because the ideological balance of the court is not at stake here and the Democrats' chance of success seem quite high. Yeah. I mean, if for some reason Clarence Thomas' seat or Sam Alito's seat were to open up tomorrow, you'd probably see a different kind of fight here. Also, to your point about the right-wing media loves to demonize a black woman, right now, they are just demonizing the concept of a black woman. They don't even have a specific black woman to demonize.

But they're all out there being like, this is reverse racism and affirmative action, all this stuff. Like, how could Joe Biden promise to nominate a black woman? It's like, I don't know. Do you think it's strange that in this country's 200 plus year history, there has never been a black woman on the Supreme Court? Do you think that's just a coincidence? You're going to fight this now? you're going to fight this now?

That in 2022, we may get our first black woman to serve on the Supreme Court? That's going to offend you? Okay. Yeah, that is wildly offensive. The best case. And it's also, by the way, in saying,

and a lot of them are saying this, that like, oh, you know, he's going to forget about qualifications because he's just going to go and decide to pick a black woman because he's decided on that. That is basically saying that there are no black women in the country who have the qualifications necessary to sit on the Supreme Court, which is fucking outrageous. Yes. Particularly considering the nominees that

Joe Biden is talking about right now who have sterling credentials. Yeah, that is the exact point that the that in the mind's eye of a lot of right-wing conservative types, you cannot appoint a qualified person with certain credentials and appoint a black woman because no such thing exists. Because there's only one type of person who would be strolling and qualified and all the above. It's the type of justices that they appoint. Right. all the above. It's the type of justices that they appoint. Right. Also, I'll just say that it was well known when Trump was thinking about a Supreme Court justice, his third Supreme Court justice, that he was like, oh yeah, we're going to pick a woman. And no one on the right said anything about that. No. Interesting. White woman. Right. All right. So now for the question on

everyone's mind, what do we know about where Joe Manchin and Kyrsten Sinema might land on this one? You said something to folks internally at Crooked the other day, which is I'm not going to worry about this until Manchin and Sinema give me a reason to worry, which I think is the right approach we should take. They have been historically good on Biden's judicial nominees. good on Biden's judicial nominees. There's a very different kettle of fish than either changing the filibuster or the sort of policy parts of Build Back Better. Not that their positions on that are not ridiculous, but they did just vote for the person that most people believe is the leading contender to be Biden's choice is voted for him within the last year. So it seems like we are starting off in a strong place. So like, I'm not saying don't wet the bed or anything above, but I think this is Manchin and Sinema on the president's nominees

have taken a very different, judicial nominees have taken a very different approach than they have on other parts of his legislative agenda. And that's worth noting as we decide where we're going to direct our panic in this day and age. You know, Joe Biden has confirmed more judicial nominees in the first year than any president in recent history. And Manchin and Sinema haven't voted against a single one of them. And so, you know, Manchin put out a statement. I take my constitutional responsibility seriously, look forward to meeting with and evaluating the qualifications of the nominee. If I was Joe Manchin and I was ready to vote for this nominee, being Joe Manchin, being from West Virginia, being my Manchin-y self, I would put out a statement like that. He's not going to put out a statement that's like, yeah, whoever Joe Biden puts up, I'm in.

I mean, no one's going to do that, right? No one does that. That statement that Manchin put out is – Some very liberal senators might do that. But that is basically the statement that is circulated on the Democratic Senate press secretary's listserv. So everyone can just put their boss's name on it. That's what you're supposed to say. Yeah. And just for some history, Manchin did vote for Gorsuch and Kavanaugh.

And then he voted against Barrett because he said the process was rushed for Barrett. So that's one thing to keep in mind on the process. Sinema hasn't been in the Senate that long. She voted against Barrett and she said she couldn't support Kavanaugh. But at the time she was running for Senate and she wasn't in the Senate. She was a House member. So that's just some history on them. And of course, like we said, Judge Jackson got three Republican votes. So, you know, I think that's right, too. I think what's going to happen is and this is where everyone has to be careful. Reporters are going to want to cause trouble. Republicans are definitely going to want to cause trouble. They're going to, Republicans are definitely going to want to cause trouble.

They're going to want to divide Democrats. They're going to want to take statements out of context to try to divide Democrats because this could be a relatively quiet, maybe even boring confirmation process. They're going to be just dying for Joe Manchin and Kyrsten Sinema to say something that could freak everyone out and overturn the process. So I would say like, just take everything with a grain of salt.

Like, just, you know, let this process play out and know that there are a bunch of people who it will benefit them to try to make this as difficult as possible and sow division within the ranks. But you're right. Like, again, anything could happen. Mansion Cinema have surprised us many times before. So no guarantees.

But everything they've said and done up until this point should give us some degree of confidence that they will not be big problems. Axios ran a piece on the politics of this confirmation fight. Republicans, as we were talking about, don't expect to win. But apparently their strategy is to frame the nominee as too liberal and then attack Senate Democrats who have tough midterm races for supporting her. The piece also says that the pick could be a, quote, a potential lifeline for the Democratic Party. How much of a political effect do you think this confirmation might have on the midterms? Minimal is my guess. I don't think you're going to have very much success attacking Senate Democrats for supporting the president's nominee, who is a well-qualified person. I think that the extent that it has a political impact is presuming that Biden's nominee is confirmed and it is a relatively turbulence-free process, that this is a big win.

And he could very much use a win. process that this is a big win. And he could very much use a win. And so just it's not, I don't think it's a game changer, but sort of in the binary world of social media politics, you're either winning or you're losing. And it's been a bit of a losing streak because of Bill Beckbetter and voting rights for President Biden and the pandemic. And so, you know, having a nominee who does well in her hearings gets confirmed, I think that is a positive step that will help President Biden. Because a lot of, when we talk about his approval ratings, one of the places, there's a lot of low-hanging fruit there among disappointed Democrats, that he may be able to get some of those folks back with a successful confirmation if people

see him being successful. That sort of success begets success in politics and polling. successful, that sort of success begets success in political politics and polling. I talked to Kate about what the confirmation process looks like from the point of view of the White House Counsel's Office. You've been on the communication side of it, these processes. If you were in the White House right now, or you were advising some of these Senate Democrats who are up in 22, what's your advice for how to handle this nomination in a way to make sure it's either a political win or at least not a political liability? Like, is there anything, anything they can do? Yeah, I think for the White House, it is obviously make sure that whoever you nominate is fully vetted. There are no surprises, can handle the confirmation hearings. And all the people they're looking at are people that have already been fully vetted and been through the confirmation

process. So I don't think that is even really an issue. You don't want to end up with a Harriet Meyers situation, which is where George W. Bush appointed his White House counsel, who was viewed by many to be unqualified for the position and did not do well in her meetings and hearings and sort of a big loss for the Bush administration. So you don't want that, obviously. And you don't want what would happen with Trump and Kavanaugh, where the allegations about him came out in the middle of the process and therefore caused a whole bunch of turbulence and should have led to him not being confirmed, but unfortunately did not. Thank you, Susan Collins. So for the Senate Democrats, really, not thank you, Susan Collins. So for the Senate Democrats, really, the process breaks down as follows. You have the meeting with the nominee. There's a photo spray. There's nothing real

substantive for it for the public. Then there's the Judiciary Committee hearings. And those are very high profile. They'll be carried live on cable TV and maybe elsewhere. And for the Senate Judiciary Committee, that's an opportunity to, you know, there may be some battle with Republicans and other things, but then you vote. And so I don't know that there's a lot here other than playing it straight. Like sort of, it's sort of like do the Manchin Statements feel like you're taking the process seriously and vote for the president's qualified nominee. And then, but there are times when the Supreme Court hearings have a huge political impact. I think that happened with Kavanaugh, that happened with Coney Barrett.

This is not, I'm not sure this is one of those because the ideological balance of the court is not at stake. And I think the outcome is not really in jeopardy, presuming everything goes right in the vetting and nomination process. And right on cue, as you were talking about Manchin's statement sounding like it was just on the Senate Democratic Press Secretary listserv, Sinema finally came out with her statement, and it's almost the same. Yes. She said, look forward to fulfilling her constitutional duty to providing advice and consent.

And she's going to examine the nominee based on three criteria, whether the nominee is professionally qualified, believes in the role of an independent judiciary, and can be trusted to faithfully interpret and uphold the rule of law. Pretty standard. and can be trusted to faithfully interpret and uphold the rule of law. Pretty standard. Doesn't sound like a statement that is going to cause Biden and Democrats any trouble, unless, of course, things come out in the vetting that we don't know about. Okay, so when we come back, I will talk more about this nomination fight with legal expert Kate Shaw from the Strict Scrutiny podcast. We have the perfect guest joining us today to offer an expert viewpoint on the confirmation

battle to come. Kate Shaw is a former clerk to Supreme Court Justice John Paul Stevens. She was my colleague in the White House, where she served in the counsel's office as special assistant to the president. She's now a professor at the Cardozo School of Law at Yeshiva University and the co-host of the best legal podcast there is now, soon to be part of the Crooked Media family, Strict Scrutiny. Kate, thanks for joining. Thanks, John. We are so excited to be joining the family. We are beyond excited. We feel like we've had you guys on the pod so much now, and we have all been such huge fans of Strict Scrutiny for so long that it makes sense to join forces. So, big day. How did you feel when you first saw the news? Relieved? Excited? Did you mutter to yourself, it's about time?

But the court is on the path, the conservative supermajority is on the path, to really burn down a lot of American law. And that's with a 6-3 court. And I think that Justice Breyer sticking around much longer really created a possibility that we might be looking at a 7-2 court down the road. And a 6-3 court is going to mean some fundamental changes in American law. But a 7-2 conservative court down the road I think could have been cataclysmic. So I think a tremendous sense of relief that it does not look like that's going to materialize anytime soon. How much do you think that factored into his decision? Do you think that's what he was weighing and that's what did it? Because I know that it doesn't seem like there were health considerations or anything else like that. I think it has to have, right? So the court, he knows what is happening behind the curtains at the court right now.

So if there is a draft opinion that has already been circulated saying Roe versus Wade is hereby overruled and states have basically lost their ability to regulate gun carrying in cities and other things, he knows it. And I think that it does seem like maybe he has seen the writing on the wall and that this court is poised to go as quickly as it can and in as dramatic a fashion as it can to sort of change a lot of really settled law and legal principles that he believes in. And I think that he decided that projecting this kind of nonpartisan appearance, that his retirement decisions weren't going to be timed by politics, that that was less important than creating the chance for

President Biden to replace him with a like-minded jurist who wouldn't sign on to the kind of agenda that the conservative supermajority seems to be pursuing right now. But we were just talking about a few of the most talked about potential nominees, Judge Jackson, Judge Kruger, Judge Childs. What do we know about each of their judicial philosophies and where they might differ? So, you know, Judge Jackson, I'll take first on the D.C. Circuit. You know, I don't think any of them is a radical, despite the fact that they will likely be portrayed as such by Republicans during the confirmation process. I mean, I think they're all, you know, fairly pragmatic, progressive, you know, left of center, but pretty moderate jurists. I think that, look,

Judge Jackson has handled an array of cases as a district court judge. He hasn't been on the D.C. Circuit for that long. But a couple of things I would say substantively. One, she handed down a scathing rejection of Don McGahn's attempt to assert absolute testimonial immunity in a case when she was still in the district court, you know, wrote that presidents are not kings. So I think that she definitely brings a healthy skepticism about excessive assertions of executive power, which I think is a really important perspective to have on the court. This court has been very protective of, and look, like, you know, presidential power is something that I do believe in, but obviously constraints are really, really important. And I think she clearly believes that. So I think we know that about her. You know, Justice Kruger, because she's been on the state court, we don't really know much about presidential power, you know, what her views of presidential power might be as a jurist. She was an executive branch lawyer. She was in the Solicitor General's office and argued a dozen cases before the court. So, you know, protected executive branch prerogatives. So I think probably does have a pretty broad view of presidential power, but is viewed as kind of a moderate on the California Supreme Court.

And Judge Childs, I think we know less about. She's got a very interesting background in that she's been in state political office, comes from sort of not this Ivy League credential background, went to the University of South Carolina for law school. And so that's a kind of experiential and educational diversity that she would bring to the court. But they all are extremely well-qualified jurists. You know, I think particularly Judge Jackson, who most recently was obviously before the Senate and was confirmed with some Republican support, would be kind of a no-brainer in that it seems as though her confirmation would be all but guaranteed, potentially even with some Republican support, which I got to imagine the president would love, although shouldn't, you know, be necessary in terms of making this election.

Right. Are there any other names you think might make the shortlist or that people aren't talking about that could surprise us? I mean, my co-host and I have been talking about Sherrilyn Ifill, who is a little older than, you know, sort of the core demographic in terms of Supreme Court nominees. She's 59, but she, you know, is the outgoing director and she's the outgoing director counsel of the NAACP LDF, a career civil rights lawyer, extraordinarily brilliant lawyer and tactician, and would be an amazing force on the court. So she is a name that we have definitely been talking about and others have as well. But, you know, right now it is so established that sitting judges and typically sitting federal judges are the kinds of nominees that presidents put up. And, you know, they're well vetted. There are reasons for this,

although it's I think it's a development that has so narrowed the band of experiences that justices bring to the court in a way that is actually not really healthy for the development of the law. So we would love to see the White House cast a wider net. You've been through Supreme Court confirmation fights during your time at the White House. To what extent do you think the White House staff and particularly the counsel's office has been preparing for this? Like, do you think they already had a shortlist? Do you think they've already started vetting nominees just thinking that Breyer might announce his retirement this year? I mean, I think they've been prepared since before taking office, right? So during the transition, preparations were, I mean, this is just me thinking back, but I am quite sure that the Biden team did the same thing, which is to come into the

White House very, very prepared with a short list, a medium list, a long list. And to the extent that some of these folks, again, to return to Judge Jackson, have been through full vets, right? The D.C. Circuit is not the Supreme Court, but it's not that far. And so she has been very recently through a rigorous process, both of White House vetting and FBI vetting and, you know, personnel vetting. And so they've got a very full record on her.

And I am sure everyone else on the short list has been pretty worked up as well. So if the White House wants to move this quickly and the Senate is on board, I mean, this could be done in a month or two very easily. So obviously, once a nominee is announced, and I think Biden said today, the nominee will be announced before the end of February. They do the thing where they meet with senators for a bunch of conversations before the confirmation hearings begin. What are those

conversations usually like? And do you have any tips that you'd give to the nominee specifically before her conversation with Joe Manchin and Kyrsten Sinema? I mean, I have to say, you know, obviously Manchin and Sinema have been a thorn in the White House's side when it comes to legislation, but they have been pretty supportive of the president's judicial nominees. So maybe this is, you know, unwarranted optimism, but I actually feel pretty confident that those meetings are going to go well. But, I mean, I think in general, making the personal connection can be helpful. I mean, Justice Kagan promised to go shooting with several senators when they talked about the Second Amendment.

So making these kind of personal connections and demonstrating a degree of openness is obviously critical. is obviously critical. And I think, you know, Judge Jackson, just watching her confirmation hearing for the DC Circuit, it's just like extremely warm and personable. And I feel like those meetings would go very well. I think it's true about Justice Kruger, too. I don't know Judge Child. But, you know, you can't, I think that they are, those one-on-one meetings are actually sometimes more substantive. Obviously, there's a, you know, kind of choreographed theater quality to the actual hearings that are before the Senate and televised. And so I think there is a chance to, you know, to obviously have a genuine one-on-one interaction that sometimes can make a difference. I mean, look, famously, now Justice Kavanaugh convinced Susan Collins in that one-on-one hearing that he was open-minded when it came to matters of abortion and Roe. And so, you know, I think

that they can make a difference. Obviously, we'll see how. He really snowed her on that one, didn't he? So activists, groups, media, Republicans, everyone will pour over the record of a nominee. What issues do you think will get a lot of attention based on both the people who are potentially on the shortlist and just the political legal environment that we're in right now? I mean, so it sounds dry, but like administrative power, I think is really kind of an important question. So this, you know, this Supreme Court in right now in a fairly low profile way, but I feel like we, my co-host and I are kind of trying to scream from the rooftops about it. But whether we're talking about actually curtailing the federal government's ability to respond in a

meaningful way to the COVID pandemic, or being poised to hobble the Environmental Protection Agency's ability to actually meaningfully respond to climate change. I mean, these are going to be hugely pressing legal questions for this administration, for future administrations. And, you know, Justice Breyer was very supportive of the power of the federal government to address hard problems in creative ways and of administrative capacity. And I think that's actually really, really critical that a nominee, that any nominee be sort of on the record as supporting because that's going to be so important going forward. I mean, I also think criminal justice issues, Justice Breyer was

fairly moderate in certain respects. So you do have a chance to change the court somewhat by putting forth a nominee who is more protective of the rights of criminal defendants, less generally deferential to police and prosecutors than Justice Breyer sometimes was. And it's also, Justice Breyer was very much a it's also, Justice Breyer was very much a compromiser on issues of religious liberty and kind of religion in the public square. And so it might be possible for the White House to put up a nominee, you know, one of these three that we've been talking about, who might be more concerned about excessive entanglement of government and religion and more concerned about protecting equality interests if they come into conflict with religious exercise claims. And so I think those kinds of issues will probably be

front and center too. When it comes to guns, abortion, I mean, I can't imagine a huge amount of distance between any of these nominees and Justice Breyer. Justice Breyer thought government should be able to regulate guns. He was very protective of the right to abortion. He wrote the most important recent abortion cases. And so I think that those issues will come up, but I'm not sure there's going to be much of a difference, except for symbolically having the sort of three liberal justices on the court be three women, two women of color. I think that, you know, and maybe the three of them dissenting in all these cases that we're talking about. Now, the abortion case will probably come down by the end of the

term. But look, abortion might be illegal in 26 states by this summer, right? Like this is, we're in a crisis moment. And so, and this won't be the last case. There will be more cases on abortion and contraception care. And so I think that having a liberal bloc that is all women, maybe speaking with one voice, is going to be really, really important, maybe in particular in focusing the public's attention on the court, which, you know, I really think that the public has been insufficiently attentive to just how much this court is working to change at a breakneck pace. And so I think

maybe this could change that dynamic. You've talked about sort of some of the issues where the nominee, potential nominee may differ with Breyer. Obviously, the nominee won't shift the ideological balance of the court. You know, I'm wondering about sort of the intra-court dynamics. You know, I read that, you know, Breyer was considered a pragmatic liberal who did a good job of finding compromise arguments that may have helped sway John Roberts in some cases, like the verdict to uphold Obamacare. Do you agree with that?

And do you see the intra-court dynamics changing at all with this nominee? I think every nominee fundamentally changes the dynamics on the court. So I think it's almost inevitable that there'll be some change. And I do think that Pryor was more and less effective, I think, at different points in reaching across the aisle. The problem right now is that even if you manage to persuade John Roberts, which I think Breyer historically sometimes, you know, losing with four and losing versus three, you're still losing. And so, but obviously, it's important to take the long view with the court. So someone who is a dealmaker and a bridge builder, and I think Elena Kagan is very much that way, is going to matter long term because this person, whoever it is, will be sometimes to, you know, scream from the rooftops

when building bridges isn't possible and actually getting the public to notice and care what the court is doing is more important than reaching across the aisle to build a bridge. I mean, those are both, I think, important roles that someone in the dissent on a 6-3 court can serve and so, or someone in the minority on a 6-3 court can serve. And so, you know, I think that sometimes you need to be able to build a bridge and sometimes you need to be able to build a bridge and sometimes you need to be able to really scream from the rooftops. And I would hope that the eventual nominee is skilled in both. Sometimes you need to build a bridge.

Sometimes you want to light that bridge on fire. I couldn't quite get to the second metaphor. I don't know if you want to burn it down, but lighting the fire elsewhere, maybe. You said 10, 20, 30, 40 years, maybe more. I will take maybe more. Let's just, let's get as long as possible. I want decades on this one. I mean, I do know some very good second year law students.

So if the White House is really looking, I mean, it is true. Like, you know, these nominees are in their 40s and early 50s. And, you know, maybe a maximalist approach would be to go even younger. But I mean, these are jobs where you want someone who has some seasoning and has developed some experience in judgment. So I think the White House is right to be looking at this demographic, you know. Yeah. Anything else you learned from your experience doing Supreme Court nomination fights that you might think would be helpful to the Biden folks? I mean, the one thing I would say that I hope the Biden folks do that I'm not sure that we did particularly well is keep putting up lower court nominees while the Supreme Court fight is on going. Because the Biden team has been extraordinary, both in the pace of their nominations and the quality of their nominations and the diversity, right? So Biden has nominated eight Black women to the federal appeals courts. Every president before him combined nominated eight black women to the federal appeals courts like that. And that is just one data point. So that has been amazing. And yet there are many, many vacancies White House to be able to walk and chew gum both to get the Supreme Court nominee confirmed, but to continue to put up the same kind of nominees that they have been for the lower federal courts so that none of those vacancies remain open by the time we get to next fall.

That's a very good, very good advice. Kate Shaw, thank you for joining us. We are so excited about strict scrutiny, joining the Crooked family. Everyone listening right now, go find strict scrutiny wherever you get joining us. We are so excited about strict scrutiny, joining the Crooked family. Everyone listening right now, go find strict scrutiny wherever you get your podcasts. Sign up now, subscribe now, start listening, and then pretty soon it'll be part of the Crooked family. And, you know, we'll have you and newly tenured Leah Littman and Melissa Murray back on Pod Save America and on all kinds of crooked pods, just helping us navigate this crazy Supreme Court term and all kinds of other legal issues. So we really appreciate it. We're

very excited. So that sounds great. Thanks, John. Great to be here. Take care. All right, before we go, it is time for yet another round of Take Appreciator with our chief take officer here at Crooked Media, Elijah Cohn. Welcome back, Elijah. Hey, John. Hey, Dan. Welcome back to the Take Appreciators. I'm going to share some notably bad punditry with you. The producers have seen these takes. John and Dan have not. They'll give their reactions and then rate them on a scale of one to four politicos. John and Dan, are you ready? So ready. Born ready. All right. This first one is about Justice Breyer's retirement.

It's a tweet. Let's just get right into it. Quote, it's straightforward from here. June 30th, court overturns Roe. July 1st, Breyer resigns, says court needs aggressive progressive justices. July 4th, Biden picks Kamala Harris for the court. Harris resigns as VP. July 5th, Joe Biden picks Mitt Romney as VP, says national unity needed for the world crisis. Fall, this is a bonus, this is a thread, but I had to include the second tweet. Anyone want to guess the author of that dan you go i know the author of this because who could admit this is take is impossible to miss this would be one william crystal that is correct that is what that that is that might be the perfect take. Yeah, it is 100% for Politicos. And I will say that Bill Kristol has been around long enough and also on the never Trump side of the aisle long enough that he I am confident he knew exactly what he was doing when he tweeted that.

In fact, it may have just been a fun joke or troll in Bill Kristol's head that he decided to let out anyway. You know, I don't think he thinks that's serious. But it was, once you get to Mitt Romney, that's when the belly laughs start right there. I mean, it is just, it is a masterful troll of everyone. Oh, you want to be mad? Let's put Kamala Harris on the court. You think you're mad about that? Let's put Mittala Harris on the court. You think you're mad about

that? Let's put Mitt Romney on the, on the ticket. I mean, just perfect. It is, it's perfection. I have to say. What's something else funny about that take is there was a, I think there was like a morning consult poll out yesterday that we probably would have been talking about had justice Breyer not retired of the race for the Republican nomination. And I believe Mitt Romney had 1%. The man was the Republican Party's nominee for president in 2012. And now less than 1% of Republicans would vote for him for president. So the idea that Mitt Romney has some constituency on the right that would somehow be like, yeah, Joe Biden picked Mitt Romney for a potential vice president. This is what we're looking for. I don't I mean, that's just I mean, it's it's

Sorkin esque is what I'd say. I mean, it is a West Wing episode embedded into two tweets. It's impressive. Bravo. Oh, yeah. So by the way, that's a full that's a full playbook. I'm giving it a full playbook. I was struggling not to laugh the whole time reading it. It's very sweaty fan fiction. It's very sweaty. All right, well, get ready. This next one is a hard turn. This is from a television hit on a major news network about Omicron and COVID vaccines. I'm not going to read it.

We get to hear it. So let's hear the clip. Wonderful. The mRNA COVID vaccines need to be withdrawn from the market now. No one should get them. No one should get boosted. No one should get double boosted. They are a dangerous and ineffective product at this point against Omicron. So the mRNA vaccines are dangerous. No one should get boosted. Who was it on i unfortunately saw this clip and i almost left my body uh because i was so angry it's alex baronson on fucking tucker carlson and we have talked a lot

about fox and right-wing media personalities flirting with the anti-vax movement this is like just all in, all in. And the idea that there is any evidence whatsoever, anywhere in the fucking world, that the mRNA vaccines are anything but life-saving, millions of lives saved, no serious side effects anywhere. What the fuck are you talking about?

The guy is just wrong in every possible way and not just wrong but dangerously so it is like fox should be fucking fox should be embarrassed of course they're not gonna be embarrassed but that was pathetic that is a pathetic pathetic pathetic thing i don't even know if i can give that a rating yeah i think we can give it an info wars rating when we get to that point instead of a Politico rating. Wow. Okay. I like that.

I like having that out there just in case we need it, the InfoWars rating. Yeah. I mean, I would encourage everyone to read a piece Derek Thompson wrote last year about Alex Berenson that was titled something like America's Most Dangerous Doctor or Most Wrong Doctor or Most Wrong Expert or something like that. I mean, Alex Berenson. He's not a doctor. He's not a doctor. Yeah. No.

I should not say he's definitely not a doctor, he's a former New York Times reporter. Right, yeah. Which has made him an expert in science. And he also delivered that on a network which has a vaccine mandate for its employees, Fox News. Yeah, I mean, I think a lot of people saw that and were like, how? I mean, we see them toe the line

on vaccine rhetoric all the time. How does something like that get to stay out there and they don't face any kind of punishment? Wild. All right. Do you guys want to give it an InfoWars rating? Oh, yeah. That gets our very first InfoWars rating. Okay, great.

Settled. Stamped. All right. Well, last one. I'm going to take you behind the scenes here at Crooked Media. All right. Well, last one. I'm going to take you behind the scenes here at Crooked Media. In our Pod Save America production meeting yesterday, Dan was sad that he missed out on Bitchgate, where Joe Biden was asked by Fox reporter Peter Doocy if inflation was a political liability. And Biden responded sarcastically by saying, it's a great asset, more inflation. What a stupid son of a bitch. Don't worry, Dan, we've got takes on this incident.

Here's a tweet. Quote, I want Biden to say something that might make a swing voter who's concerned about inflation feel better instead of something that entertains partisan Twitter addicted Democrats who like seeing a reporter from Fox bitch slapped. Any guesses as to whose take that is? Is that Josh Barrow? Yes, it is. Josh Barrow. Well done. Can we just is? Is that Josh Barrow? Yes, it is Josh Barrow. Well done. Can we just have this one, Josh Barrow? It's been a tough month for us.

We didn't get Build Back Better. We didn't get voting rights. Manchin and Simmer screwed everything up. Joe Biden's approval ratings aren't going great. Fox is annoying. Peter Doocy is annoying. We just have this moment. This one moment of Peter Doocy getting smacked around by Joe Biden.

That's all we want. We're not making it our message for the midterm. We're not putting it on billboards. It's not going to a TV ad. We're just going to fucking enjoy it for one second without some internet contrarian coming after us to shame us for it. I will say one thing that will probably make me a little unpopular with our listeners. I like a lot of Josh Barr's takes. I think he's very smart. Also, I would be upset if Joe Biden

did make a comment that seemed to minimize the problem of inflation. But, and I said this on Monday's pod, he didn't do that. That wasn't the comment. The comment wasn't minimizing the problem of inflation. It was saying he basically was mumbling, of course, fucking inflation is a problem and a political problem for me. Like he's had this like very facetious comment where he's like, yeah, bad inflation, real real asset for me, you know, or something like that. Like he wasn't talking. He wasn't minimizing inflation at all. He wasn't talking. He wasn't minimizing inflation at all. And again, it's like it's a funny hot mic moment where he calls him a son of a bitch. It's not going to end the fucking world. Bigger things to complain about.

Yeah. I mean, I don't know whether Peter Doocy is stupid or he plays stupid on TV like most people who work for Fox do. But it was a totally fair comment. I'm sorry. And we should know Joe Biden called and apologized because he is Joeiden and he is a nice guy and he felt bad about it yeah which is great everyone's happy you know peter ducy can continue to ask stupid questions at the briefing room do you guys think that presidential press conferences are effective ways to message to swing voters? No, no, we do not. No, I do not. Unless, I mean, I guess there are effective ways to message to swing voters. If a reporter asks you a question, you ignore the entire question and then you just

deliver the message that you'd want to deliver if you were in a swing district. That is the only way that they are effective ways to deliver messages to swing voters. were in a swing district that's that is the only way that they are effective ways to deliver messages to swing voters they are a constituency management tool it's like meeting with members of congress unfortunately it has to happen on live television uh politico rating i'm gonna give it two yeah i was gonna say two because i think yeah i don't think he was even like trying that much to troll people i think he yeah yeah it only gets it to him. It's no Bill Kristol, I'll tell you that, right?

No, Bill Kristol had the take of the week. The take of the week, for sure. All right, well, that's take appreciator. Elijah, thank you, as always, for just giving us the best worst takes of the week. We appreciate that. And thank you to Kate Shaw for joining us from Strict Scrutiny, soon to be part of their Crooked Media family. We're very excited. And everyone have a good weekend, and we will see you next week.

Bye, everyone. Pod Save America is a Crooked Media production. The executive producer is Michael Martinez. Our senior producer is Andy Gardner Bernstein. Our producer is Haley Muse, and Olivia Martinez is our associate producer. It's mixed and edited by Andrew Chadwick. Kyle Sedlin is our sound engineer.

Thanks to Tanya Somanator, Sandy Gerrard, Hallie Kiefer, Madison Holman, and Justine Howe for production support. And to our digital team, Elijah Cohn, Phoebe Bradford, Milo Kim, and Amelia Montooth. Our episodes are uploaded as videos at youtube.com slash crookedmedia.