Pod Save America - “Resignation Dogs.”

Episode Date: August 30, 2021

The war in Afghanistan is almost over after a massive evacuation and a horrifying terrorist attack, Republican politicians use the tragedy as a pretense to call for Joe Biden’s impeachment, and NYU Law Professor Melissa Murray talks to Jon Lovett about the Supreme Court’s decision to block the administration’s eviction moratorium and Stephen Breyer’s latest comments about his possible retirement.For a closed-captioned version of this episode, please visit crooked.com/podsaveamerica. For a transcript of this episode, please email [e-mail] and include the name of the podcast.

Welcome to Pod Save America. I'm Jon Favreau. I'm Jon Lovett. I'm Tommy Vitor. On today's show, the war in Afghanistan is almost over after a massive evacuation and a horrifying terrorist attack. Republican politicians use the tragedy as a pretense to call for Joe Biden's impeachment. And NYU law professor Melissa Murray talks to Lovett about the Supreme Court's decision to block the administration's eviction moratorium and Stephen Breyer's latest comments about his possible retirement. But first, Jason Concepcion's brand new Cricket podcast has arrived.

X-Ray Vision is a fan culture show that will dive into your favorite films, TV shows, comics, and more. On the very first episode, Jason gives a recap of the Marvel Cinematic Universe Phase 4 with actor Jason Manzoukas and gives his take on the most recent Spider-Man trailer. Subscribe to X-Ray Vision on Apple Podcasts, Spotify, or wherever you listen to your podcasts. That's exciting. That is exciting. That Spider-Man trailer really blew up online.

Yeah. What did you think? I haven't seen it yet. Oh, wow. I was really detoxing. Good for you. From tech. Wow, that's a real break.

I really was. It's a real break. For you. I just came into my Twitter to retweet our pods. That's what i can do it's all about you're like oh this app that makes me sad all the time maybe i'll avoid it i deleted it i deleted it wow for two weeks wow still can get to it on the browser though shifty fuckers

you know what that's something that's progress also if you live in california listen up today august 30th is the last day to register to vote for the recall election. If you're already registered, check your mail for your ballot, fill it out, and return it by September 14th. Make sure you vote no on question one to stop a right-wing lunatic from taking over California. This is not a drill. Its stake is not only control of this state,

but potentially control of the United States Senate, since we have an 88-year-old senior senator. So it doesn't matter whether or not you like Gavin Newsom. Just vote no. You just have to vote no. All right. Visit votesaveamerica.com slash California to learn more. And please note what I just said was not authorized by a candidate

or a committee controlled by any candidate, particularly one controlled by Dianne Feinstein. Yeah, you think Dianne Feinstein and Gavin Newsom love the part where you say, we don't care if you like him, and she's 100 years old. Yeah, not authorized. Not authorized by them.

Resign, Senator, please. Larry Elder abuse? I don't know. I'm working on a whole bunch of stuff. We're workshopping today. I had one offline that you guys can't hear. It's something. One more note before we begin.

Our next episode of Pod Save America won't be until Thursday, September 9th, while we give everyone at Crooked Media a much-needed break after a long year, two years, five years, ten years. I don't know. When did we start doing this? What's time? 17. Anyway, people need a break. So we will be off until Thursday the 9th. All right. Let's time? 17. Anyway, people need a break. So we will be off for until Thursday the

9th. All right, let's get to the news. The U.S. military evacuation of Afghanistan is nearly over and the final withdrawal of American forces is scheduled for tomorrow. The good news is that the airlift has flown over 117,000 people out of the country since August 14th, mostly Afghans, as well as almost every American who wants to leave. As of Sunday, there were about 250 still trying to get out. But the final days of the evacuation have been marked by tragedy. On Thursday, an ISIS case suicide bomber killed 13 U.S. service members and nearly 200 Afghans just outside the airport in Kabul. Then on Sunday, U.S. drone strikes destroyed a vehicle full of explosives that was set to launch a second attack on the airport,

though Afghans said the strike also killed as many as nine civilians, including children. The strike came just after the U.S. and 98 other nations announced that they've secured an agreement with the Taliban to allow safe passage for Americans and countless Afghans who still want to leave the country after U.S. troops withdraw on Tuesday. President Biden addressed the nation on Thursday after news of the suicide bombing broke. Here's some of what he said. To those who carried out this attack, as well as anyone who wishes America harm, know this. We will not forgive. We will not forget. We will hunt you down and make you pay. I want to start with Thursday's horrific attack, which was the bloodiest day for US forces in Afghanistan since 2011. Tommy, this was always

the nightmare scenario. It was actually one that you and Ben talked about, worried about on last week's Pod Save the World. What do we know about how and why ISIS-K was able to pull this off? So, I mean, the ISIS element was always the thing the White House was most worried about, because unlike the Taliban, they're not getting handed the keys to run Afghanistan now. They don't have responsibility. They're not worried about selling this more moderate image to the world, and they're just going to conduct attacks to try to punish the U.S. So basically, you had a scenario where hundreds of thousands of people were trying to get to the airport.S. So basically, you had a scenario where hundreds of thousands of people were trying to get to the airport in Kabul. The Taliban was providing this first ring of security. Once you

get past the Taliban, there are Marines, U.S. service members on the ground, basically part of the crowd, checking people and trying to check them into the airport. And there's some up on this wall that provided security to the entrance of the airport. And an ISIS suicide bomber managed to slip past the Taliban checkpoint somehow, detonate a suicide vest in an area that was just literally packed with people. And the explosion was catastrophic. You know, 170 civilians, women, children, innocent people. You know, it's always gutting when you read about U.S. service members killed in combat because what happens time and time again is you just are struck by how young they are. The oldest person killed was 31. There were five individuals killed who were 20 years old. And so, you know, it's just the most bitter irony

that this scenario was exactly what Biden was trying to avoid by ending the war. He didn't want U.S. troops in harm's way. He didn't want Afghan civilians killed. Now we're seeing reports of this drone strike killing maybe seven children. And this is like the reality of war. This is why it's so frustrating to hear Dave Petraeus, H.R. McMaster, all these people on TV talking about how Biden should have kept 2,000, 3,000 troops in Afghanistan and continued the war. And then they suggest that there wouldn't have been some sort of significant cost. This is the cost. This is what happened. U.S. troops get killed. Afghan civilians get killed. Women and children get killed.

This is the reality of war. This is what Biden was trying to end. And it's just it's an absolute tragedy. It's also so devastating that it seems like we had such credible, specific intel on this specific threat. And this was about to happen. And the Defense Department was worried about it. And the intel community was worried about it. And it just it couldn't be stopped. That to me is just makes it all the more tragic. Biden kept getting pushed in the days leading up to the attack to extend the withdrawal deadline. And it seems like this is also an example of why he didn't want to. Right. Because he's he's the law. He he believed that the longer our forces were in harm's way, that the higher the likelihood that something like this would happen. Right. something like this would happen, right? Yes. I mean, look, this mission was, you know, talked about as an evacuation mission, but really this is one of the most dangerous things our troops have been asked to do in years in Afghanistan. I mean, they're literally surrounded. This airport is literally surrounded by Taliban fighters. The city is occupied by the

Taliban. We know that there's ISIS elements in Afghanistan. We know there's Al Qaeda elements in Afghanistan. So every minute that U.S. troops were basically mixing with Afghan civilians trying to get into this airport, they were at risk. And Biden knew that. And since the minute this mission started, you had people on TV, Jake Sullivan, National Security Advisor, Biden himself, talking about a severe risk from a terrorist attack. And tragically, they were unable to prevent it. Love it. You and I have sadly had to write speeches responding to tragedies like the one Biden gave on Thursday. How do you think he handled those remarks and the Q&A that followed? He was, I think, devastated. He came out and was extremely sad about what happened. He talked

about his son. He talked about how hard it was for him to watch these events unfold. He talked about how it fit into the broader goal of why he wanted to leave Afghanistan, why he didn't want American service members in this situation for as long as they've been in this situation. American service members in this situation for as long as they've been in this situation. And, you know, there are people who have been critical of how Biden has conducted themselves in these in these press events. And like, no, do I think it's advisable to get into a colloquy with fucking Peter Doocy? No, probably not a good idea. But I honestly don't care. I think a lot of the ways in which Biden is criticized for how he manages news cycles as tragedies and serious events unfold are the kind of optics-driven political coverage that Biden is president in part because he refuses to care about.

I think he cares deeply about the reality on the ground. I have a friend who's very smart political writer, but I can always count on him to send me like his view, which is a kind of conventional wisdom view. And he was like, where is Biden? Why hasn't Biden spoken? What I've said is like, I honestly don't know. But what I assume is Joe Biden is far more concerned about the reality on the ground than appeasing pundits by giving the kind of remarks that they demand and claim without evidence is what the country needs. And after days and days of pundits on television, in the news, giving military strategy and acting like Searcy standing on the fucking map of Westeros, trying to move the pieces around. I think the truth is Joe Biden is going to follow this policy to its end because he believes it's the right thing to do.

And how he specifically manages the messaging on the way there is just in the grand scheme of things, not nearly as important as what happens in the actual physical world. What did you think, Tony? He looked gutted. He looked gutted and and you just you know there are some people look this man has endured tragedy he's also had a son who served he's been working with and around the military for decades like i think he understands how much

these men and women gave um what is hard to stomach and kind of upsetting is you know that the country wants to hear the line about how we're going to hunt you down and we're going to kill you. I have here obligatory soundbite for the critics. But as we saw days later, days later, it sounds like that mentality perpetuated the war and led to more strikes on targets that killed 10 civilians. And I'm not blaming, I don't know the exact details of what happened. None of us do. We're going to be learning information every day. But that's the cycle we need to break. We need to stop fucking killing people. We need to end a war that has not

progressed in any meaningful way or helped us, made us safer, more secure for 20 years. You can criticize Joe Biden's decision on the withdrawal. You can say that, you know, it probably helps him politically, domestically to have said that he wants to withdraw from a war, which is what he said all during the campaign. And Trump sort of had the same view. But what has been clear over the last couple of weeks is that it is a decision that he deeply believes in for personal reasons. Like this is not something he's doing out of politics. This is not something he's doing because he's forced to. He, partly because of his own experience, he's had family members serve. He was in the Obama administration arguing against the Afghanistan

war there or arguing for withdrawal way back when. This is something that he deeply believes in. And he's been consistent about it. And he's even been consistent about it during the last few weeks when things have become quite chaotic. This is what he believes in. I also thought that it was good, by the way, when Ducey asked him, does he take responsibility? He said, yes, I take responsibility. Of course, he did then mention Trump again. But look, he took responsibility for it. I don't know what more you can ask from him. Look, he took responsibility. And then he went to Dover Air Force Base for the dignified transfer ceremony. And he met with the families of the people who were killed. And I

can't imagine a more difficult or painful thing for those families or for the president who made the decision that led to the deaths of these men and women yeah so he took responsibility what did he also made a point of like emphasizing complete unanimity among commanders and how to achieve the mission saying that like i'm giving you know i've given them everything they needed it seemed like he wanted to make clear that the tactics were being sort of decided by the military and he was deferring to them on that yeah Yeah, I don't know. There have been a lot of, you know, sort of DC pundit generals and war planners making a big deal about the closing of Bagram Air Base. And I think that his Biden and his staff has been trying to make the point that the decision to end the war and to end it on August 31st was a presidential decision. But then how you do it, the military tactics are determined by the best military advice. Now, all of that military advice is going to be constrained by

the broader strategic decision about winding down the number of troops there, how you can defend a place like Bagram that's massive and sprawling, et cetera, et cetera. So I think I get what he's doing, but there's some risk to that because you're going to face some pushback, I think. Right. You own the strategy as president, but the military owns the tactics is basically what he's trying to say. Yeah. I also I do think it is an environment where when you have a chaotic, ugly, tragic situation unfolding and you have all these cynical kind of members of the foreign policy establishment saying the way I would have done it, it'd been amazing. The way I would have done it, none of this would happen. We would have, everything would have been perfect. We would have had this, this outpost, no Americans would have died. The situation would be less chaotic. We've been able to get everybody out. Oh, is that, is that really how, that's how your alternate scenario would have played out?

Right. I mean, Bagram's like 50 miles from Kabul. I mean, do you think it would be easy to get a hundred thousand, 200,000 Afghans from Kabul or wherever they live in the country to Bagram? I don't know that that's true. When you're not the one making the decisions, you get to opine about counterfactuals until the end of time. That's what happens in these situations. And no one can prove you wrong because it's a counterfactual. And you and Ben talked about this. You've talked about this over the last two weeks. But man, the confidence with which people who are responsible for this calamity

express new opinions is extraordinary. And because I'm not a military strategist, I have no idea the tactics to protect Kabul. I have no fucking idea. But what I do know is that a lot of these people talking about how easy it will be, how much better a policy they could have implemented, that a lot of these people have been saying the same thing for 20 years, 20 years.

We didn't win the war when there were 130,000 ISAF members fighting in Afghanistan. I think a little humility should be required at this point when we're talking about how easy it would have been to maintain a status quo that, oh, by the way, that status quo led to the death of, I think, 10,000 members of the Afghan security forces last year, thousands of civilians. I mean, the other thing, just like, as I'm talking to two speechwriters, can we also stop talking about wars and using the phrase American blood and treasure? it's so dehumanizing it's not blood it's fucking human beings who died it's not treasure we're not pirates it's it's taxpayer dollars that if they weren't spent on blowing up places in afghanistan could have been spent on a

school why do we talk like that note taken thank you i think it's no it's a good one and i'll say like you know obama has said that before he used to say that uh everybody does it's a good one. And I'll say like, you know, Obama has said that before. He used to say that. Everybody does. It's like the thing you say to sound important. Because it's a cliche and you don't think about the cliche and then you're like, oh, yeah, that's pretty, that's not great. I do think that's part of a larger problem in how we talk about America's foreign policy generally. You know, H.R. McMaster called Trump's deal with the Taliban a surrender agreement, a surrender agreement. And I saw that and I was like, we're not talking about this, honestly, right? That the American press both, I think, in part out of genuine respect for people

who have served and died or lost people in Afghanistan over the last 20 years, but in part, I think, out of a kind of innate, not even like subconscious jingoism, like don't want to talk about this for what it is, which is we lost this war. We surrendered. Donald Trump surrendered. They released thousands of Taliban prisoners.

He promised to leave. No part of the deal protected Afghans. It set a date certain in May. We are surrendering. See, I don't think we surrender because i think surrender means that you sort of give some sort of control over like your country to the the person who won i i do think it's a withdrawal because we're just saying okay we're gonna get the hell out of your country you know what i mean whereas we're extricating ourselves

for your civil war the world war ii surrender basically the united United States like occupies Japan for a long period of time. It's not like the Taliban are coming here. So that would be my only quibble with that word. But I hear what you're saying. Like the language used around this is like, is very frustrating because it's all, it's all wrapped up in like pride in, in American exceptionalism and jingoism.

Because it talks about the, the straight New York times copy from like Peter Baker or whoever it is. Like the U S was humiliated in Afghanistan. Like countries don't get humiliated. People do. The other there was something in that Peter Baker piece, too. It said fewer than 100 American troops died in combat in Afghanistan over the past five years. Roughly the equivalent of the number of Americans currently dying from COVID-19 every two hours.

What the fuck is that? A lot of people have been making that comparison. And I'm just like, what are you? First, first like first of all like the parents of someone who died what what kind of yours this is the objective news analysis like your role here is to put a hundred dead humans in in the context of an unrelated global pandemic like because you're trying to make the case that it wasn't that bad what is the argument and to your point on me there's something more important than humiliation and it's men and women dying in battle right like u.s women right like there's something a little more important than like the

country's ego being damaged well it's like the fact that we're sending men and women to fight and die right yes right and what they're saying is leaving entirely in this way was humiliating for the U.S., but what would not be humiliating would have been keeping 3,000, 5,000, 10,000 troops there, continuing to provide air support for Afghan security forces and perpetuating a civil war that is killing thousands and thousands of Afghan civilians. There's no discussion in the U.S. media about the deaths of Afghan people. And that is a real problem. Yeah.

Also on par with sort of the language of humiliation is this language of credibility, which is again about optics. As if like the idea that like the way the U.S. means credibility is by doing things that run counter to its interests over many, many years, you know, spending all of its money, killing people,

causing the deaths of their own people in the service of a failed mission. That's how you earn credibility, as opposed to having a realistic view of what your power can and cannot do in the world. I agree. This is what losing a war looks like. That's just... One of the questions Biden got at the press conference was about a Politico report that the U.S. gave lists of Americans and Afghans who were approved for evacuation to the Taliban.

Obviously, this has caused a great deal of furor on the right, to say the least, as well as in the media. Tommy, can you talk about sort of why that happened? What the deal with that story is? Yeah, so I think this that initial Politico report was pretty sloppy and left the impression that the U.S. drew up a list of like 100,000 Afghan interpreters and said, here, Taliban, please let these people through. Here's the full list of people we want out. And they allowed some congressional source to describe it as, quote, a kill list. The White House strongly denied that. They said that that's not at all true. I don't think they're that stupid, by the way. What Tony Blinken said happened over the weekend was that, you know, in some limited instances, you had a bus full of people coming to a Taliban checkpoint.

And the U.S. in advance said, hey, this bus is coming to this checkpoint. Here's who's on it. Some of them don't have papers. So we're letting you know. And like, that's how we're going to get them through. It sounds like that worked. I was going to say the Taliban didn't kill them. They let them through.

We were able to successfully extract a lot of these people. I know this sounds jarring for people, but the reality of our relationship with the Taliban has changed a lot in the last couple of weeks. It went from enemy that we were fighting to people we are working with. And then we also, the reality is more complicated. We've been negotiating with them for a long time.

You know, the Trump cut this deal in February, 2020, but the Obama administration was negotiating with the Taliban back in 2010 2010. so it's complicated but there was not some like you know giant excel sheet of afghan interpreters handed to the taliban like this political report made it sound but you know yeah it's not very irresponsible when i read it uh the deadline for withdrawal is tomorrow what do you think the biden administration is worried about as this comes to a close and what happens after our troops leave? I mean, they're just going to hold their breath until the last flight is out. There's some reports today that there were rockets fired at the airport. The good news is those rockets didn't hit anything. They might have landed in a neighborhood, but there are no civilian casualties that we know of. The U.S. has some defensive weapons around the

airport. There's like something called a C-RAM that shoots down rockets or mortars. Did they use those to shoot down those rockets? It sounds like they were engaged. You can basically hear them. It sounds like a machine gun going off. And these planes that are taking off, these C-17s, they can fire out flares and other things that are supposed to

get a heat-sinking missile to miss the target. This is the scariest part of this whole thing, in my opinion. ISIS sinking missile to miss the target, you know, but like, this is the scariest part of this whole thing, in my opinion, like ISIS, maybe parts of the Taliban, maybe parts of the Connie group might want to take a shot at us on the way out. And God help us if they got their hands on some sort of like advanced surface air missile technology or whatever. After August 31st, the US has said that the US and 97 countries have cut a deal with the Taliban that will allow us to keep getting foreign nationals and Afghan allies out of the country. Jake Sullivan and Tony and people who were on the shows over the weekend said that we'll use economic leverage and other diplomatic means to hold them to that. It's going to be tough to enforce.

Yeah, like how do we know if they're not letting people get out? Good question. I mean, they've been they've also been hunting i mean part of the deal was that it protected american service members but not afghans i mean taliban while making these claims has also been hunting and killing yeah there's people that worked with us do you think tommy that the u.s will engage in sort of covert operations to get some people out or is that my guess is is the CIA is working over time to find ways to get all their sources and people out of there. And that, you know, they're, they're these kind of ad hoc,

um, you know, veterans groups working to get people out. There are other countries are working to get people out. I'm sure the U S military and the state department will continue to work to get contacts out. So this is going to be something that I think lasts a long time. Let's talk about how the politics of all this are playing out. Republican politicians in Congress aren't just criticizing President Biden over Thursday's terrorist attack. Many of them are calling on him to leave office, either through resignation, impeachment, or by invoking the 25th Amendment. When pressed by reporters on what they would have done differently in Afghanistan or what we should do now, Republican responses have been all over the place, hypocritical, nonsensical, contradictory. A perfect example was House Minority Leader Kevin

McCarthy, who said that there should be no troops in Afghanistan right before he said that we should have kept troops at Bagram Air Base, and then said that President Biden shouldn't have negotiated with the Taliban before defending President Trump for negotiating with the Taliban. Let's take a listen. Here's an administration that said they do not trust the Taliban, but they turn around and say they depend on them. Why would we ever depend on the Taliban? Why wouldn't we kept Bagram to start out with?

Why wouldn't we, if we ended up in that air base, why wouldn't we have pushed it back out, created enough military troops to create safe passage? Why would you negotiate with the Taliban? You said he shouldn't be negotiating with the Taliban. Trump did that, too, to be clear. So, I mean, was it wrong? Trump also had conditions and he upheld the conditions. That's not true. No, he didn't, right right it didn't even come close to holding up the conditions but um love it what do you make of the republican calls for joe biden to leave office over this it was i can't not laugh about it i mean it's fucking nuts can we it's nuts it's so it's 100 cynical obviously it's about you know scoring points against uh joe biden

during this new style kevin mccarthy is not smart and also completely in that he is 100 percent. I didn't know he was a military tactician, by the way. Oh, yeah, he's another one. He's another one. Fucking he's another person moving little ships around on a fucking map. He's playing risk. Yeah, he's playing risk. The Kevin McCarthy is always he does not need his words to be consistent. He just is 100% trying to score points in any given news cycle. The calling for the resignation is so cynical in two ways. Obviously, it's cynical in the ordinary way of kind of pitching forward to try to score points and trying to kind of take a shot at Biden in an opportunity to do that. The other piece of this is, couldn't help but feel

like what this is doing is trying to retcon the calls for Trump's resignation, that trying to make it so that the calls for Trump's resignation were not an extraordinary response to an extraordinary threat, but a kind of new normal of calling for resignation. This is what they told us at the time. Republican politicians said during the Trump impeachments, they were going to get revenge against the next Democratic president. Lindsey Graham said it. A bunch of them said it. They've just been waiting for a pretense to do it. There is no doubt in my mind that if Republicans take the House, they will try to impeach Joe Biden and then the House will impeach Joe Biden. There's no doubt in my mind whether it's over

Afghanistan, whether it's over something else. It was destined from the moment that Trump got impeached that they were going to seek their revenge on this especially after fucking rioters stormed the capitol and they impeached in the second time they absolutely were going to do this from the beginning it is such a joke yep yeah but like you know what it was stupid for everyone to be like sir resign mr trump sir resign because the new york times reported that steve bannon was mirrored like mean to jared kushner or whatever like i don't know i think this is like this is now the sort of status quo rhetoric around any mistake a president makes any presidential decision people are going to call on them to resign there's no context no one thinks about the fact that in 1983 300 some odd people

were killed in lebanon by a terrorist attack i don't think people were calling on ronald reagan to resign not one not one democrat called on him to resign and and they were killed in Lebanon by a terrorist attack. I don't think people were calling on Ronald Reagan to resign. Not one, not one Democrat called on him to resign. And they were killed in the Marine barracks six months after there was a terrorist attack on the embassy and the troops were still there and then they were killed. And no one said anything because when a president makes a strategic military decision that leads to American casualties, you don't call on them to resign. Yeah. And by the way, he didn't retaliate militarily, but you know, over the weekend when you turn on the Sunday shows, it felt like 2003 all over again. There's Lindsey Graham calling for more wars. You know, you'd put on 50 Cent in the club, you know, go back 20 years, get in that mindset. It's the same shit. It's the same people making the same arguments for more war. And I think I have a lot to criticize about how Biden executed with this withdrawal. I think we can Monday morning quarterback and think there might have been better ways to do it. But the fundamental decision to get out of Afghanistan after 20 years was the right one. And I'm glad they're defending

it. But also, you're right. You can absolutely criticize Joe Biden for this. And if you really think it was horrible, then you should oppose him in the next election, because that's how our democracy works. You don't you know, you don't overturn the will will of the voters except for in California, John. Yeah, that's right. Except in California. But I do think, I mean, to your point, Tommy, I think the two times, the two times that Donald Trump was impeached, they were for legitimate, uh, not arguing that. No, no, no. But it's a good point that you make that like, be careful when you just say that a president should fucking resign because high crimes and misdemeanors is should be treated as a real thing. And I think Trump certainly committed those in both instances. And this is absolutely not one of them. How hard do you think Biden

and or other Democrats in Congress should push back on these Republicans? Because that's sort of the next front in this. And Biden, I think, in the middle of this crisis, sort of held back from hitting back Republicans, I think rightly so. Democrats have also been critical of Joe Biden and they've kind of, you know, been holding their fire. But at some point, the second Trump was out of the picture, Republicans once again are for forever wars. And we should make that a big part of, of, of, of, uh, if they want to make Afghanistan, uh, part of the midterm campaign, then fine. You are for continuing America's longest war. You want more Americans in harm's way. You want more violence, more cost, more chaos.

That's what you believe. We have a different way. We don't support this endless war anymore. I think that's an important point, Levitt, because I think there's a couple of different ways you could go at Republicans over how they've been acting in the last several weeks. You could talk about the incoherence of their argument. You can talk about their hypocrisy. I don't necessarily think those two arguments carry that much weight with people like Republican hypocrisy. Oh, yeah, that's that's new. That's surprising. I think the idea that these people are for endless war. They want to spend more U.S. dollars in Afghanistan. They want to send more troops to fight and die over there.

And look, some of them are trying to say, some of them are in the Trump wing. Oh, no, no, we wanted to withdraw, too. That may be right with some of them. But, like, Mitt Romney was out there this weekend talking about leaving forces there. Lindsey Graham was talking about leaving forces there. Like, there's enough people in that party that want to extend this war that I absolutely think the Democrats should tag them with it over the next several months. Absolutely. Absolutely. And I think most voters are smart enough to know that these calls for his resignation are unserious and they know how elections work and when they occur. You know, I mean, it's just it's ridiculous. Well, so Republicans don't

currently have the votes to do much of anything about this, but there are plenty of Democrats in Congress who are calling for hearings and investigations into the administration's handling of the withdrawal. What do you think about that in light of Thursday's attack, Tommy? I mean, look, hearings are appropriate. You know, I think Democrats are incredibly unhelpful. Bob Menendez in particular is unbelievably unhelpful to almost every Democratic president over the last decade or two, whether it's the Iran deal or Cuba policy or- Or his own scandals. Or Biden's views towards Afghanistan. That said, you're seeing leaks of classified notes from calls

that occurred on Wednesday and Thursday before this horrible attack in Kabul. So there's going to be all these questions about what intelligence the United States had when they had it, who made the decision to keep open the various gates at this airport, knowing there was this threat from ISIS. Like all of these are appropriate questions, I think, to try to get at. And the reality is if the Republicans take back the House or the Senate, they are going to have their own set of investigations and their own set of hearings. They want this to be Benghazi and it's going to be brutal. And you can and you can bet, too, that they will use. So they rejected a bipartisan commission to look at January 6th.

And then we did this sort of select committee. And you can bet that they're going to use that as a means to have fewer Democrats on any investigation. If they're in control, that's one thing that I'd be keeping an eye on. The other thing I would say, though, too, is, yeah, Tommy's right. Like these are they're important control that's one thing that i'd be keeping an eye on the other thing i would say though too is yeah tommy's right like these are they're important questions to be answered but in reality we are not going to be uh uh um evacuating uh afghanistan after a 20 year war again but there are a lot of lessons we can learn about what led to this and so my view would be if you want to investigate what happened in afghanistan we should investigate what happened in afghanistan but it shouldn't be about the last two weeks or happened in Afghanistan, we should investigate what happened in Afghanistan.

But it shouldn't be about the last two weeks or the last two months. It should be about the last 20 years. Yeah. I mean, look, I think the answers are going to be really unsatisfying about how this terrorist attack happened on Thursday. The reality is, it's an incredibly dangerous mission. We need to get people out of Kabul, a hundred some odd thousand at last count. And doing that required putting

U.S. service members in harm's way. Are there things they could have done better? Sure. Are there things we don't know about now that we'll learn about later that might change how we think about all this? Very, very possible. But like we had the same conversation around Benghazi where you could absolutely can and should criticize the State Department for not having enough security at some of these diplomatic outposts. But the broader reality is that being a diplomat or being a U.S. service member is a dangerous job and you serve in dangerous places and there's inherent risk. And everybody knows that going into it. I'm not saying that to excuse the way this was handled or anything else. But like that's the that's the reality. And that's kind of what you're going to uncover as part of these investigations. And to your point, love it, like, the broader lesson should be

stop with these, these wars, stop nation building in countries like Afghanistan or stop invading places that we know nothing about. Stop staying there for 20 fucking years. One other piece of it, too, that you and you and Ben talked about this, that there was this dissensus for a long time around how well-equipped Afghan security forces were and that the military was saying that, no, they're ready. And then there was a disagreement with the intelligence community. That's a massive scandal. That's a massive scandal that like for a very long time, there was a great deal of dishonesty about what our mission had and had not accomplished. Also, just what was going on over the last year while the Trump administration was

negotiating with the Taliban that allowed this to unfold so quickly, right? If they want to investigate this, fine. If Democrats allow this to be a conversation about the Biden administration alone or what happened in the last few weeks of an unfolding disaster that took place over years, I think that that would be a big mistake. It's a disservice. From a purely political standpoint, Democrats have two options here. They control the White House. They control Congress. They can either decide to not have an investigation right now. Republicans will then spend the next year calling for an investigation, running on a midterm message of calling for an investigation. And then if Republicans win, they will certainly hold

investigations that look a lot more like the Benghazi circus, right? So you can either do that or you can decide, well, we control the committees now. Let's have our own investigations where we can sort of shape this, make sure that we have a broader investigation that talks about the lessons that we learned from this war and sort of control the narrative. Now, the downside of that is now you have a bunch of coverage for the next year, for several months about mistakes in Afghanistan, stuff like that, that may damage you politically. But I don't know. I think I come down on the side of now that they control the committees and they can hold sort of a proper investigation, you might as well do that before you let Republicans

just make it a circus. Yeah, it's a fair point. I mean, listen, this is an enormous moment in U.S. history. I mean, we ended a 20-year war. I do think a look back is important and probably completely appropriate. And that includes, like you said, love it the last couple weeks. But then maybe we should also look at the fact that, you know, for the past 10 or 20 years, we've been allying with people like General Dostum, who wrote about at great length in his book, who was a warlord who is well known for locking, I think, a thousand people in rail cars and shooting at them post 9-11 hysteria, fear and hubris. Yeah. Republicans are obviously hitting Biden so hard because they see an opening. His approval rating has dropped to the lowest level of his

presidency, not just because of Afghanistan, but because of the Delta surge and economic concerns like inflation. The administration is currently facing what appears to be a hurricane that is devastating Louisiana and the Gulf Coast. I don't know if we ever had an August this bad in the Obama administration, but we did have some bad ones. Tommy, can you talk about what it feels like to be inside a White House consumed by multiple crises? I was thinking back to...

Aside from not fun. Well, I was thinking back to sort of like the most tumultuous periods. I got the National Security Council spokesman job in, I think, January of 2010. It was sort of right before the Haiti earthquake and then the Arab Spring. And there was a period around Benghazi. And you can see what it's like on Biden's face. You can see it on Jake Sullivan, Tony Blinken's face when they're out briefing. Situation Room check-ins and then 7 p.m. later that day. When you do go home, you're not getting sleep. You're getting called in the middle of the night with some sort of update from the Situation Room. You're getting new information constantly. You know that some of that information is going to be wrong, but you still have to brief Congress. You still have to brief the press in real time to the best of your ability. You're trying to get answers from people in different continents, in different time zones. You're trying to coordinate and hold accountable massive government agencies like

the Pentagon and the State Department and the intelligence community and actually get them to do what you want them to do. And then if you're Jake Sullivan or Tony Blinken, you're briefing the president and the vice president and you're dealing with however they feel at the moment. Biden's probably not pretty happy right now, understandably. And it's completely unsustainable. And then on top of that, you can't just drop all the other shit you have to do. I mean, I read the Wall Street Journal this morning. There's a report that North Korea is resuming nuclear enrichment. So I'm sure the NSC is meeting about that. The prime minister of Israel was in town on Thursday, the day of this

attack. You're supposed to meet with Biden. Like you can't just drop him. This hurricane's barreling down. So like they are in the barrel and the fallout from this in terms of the impact on the administration, the individuals involved, Congress, like it's just beginning. They're the beginning of this. Yeah. And you've got to remember that these are human beings, right? Everyone is tired. Everything is reactive, right? There's very little time for planning or for proactive messaging about any of the agenda items you want to pass. I think they had planned to talk about the economic plan and hold events. You can't do any of that.

Kamala Harris was supposed to campaign with Gavin Newsom. That gets canceled. These are just small things. Can't do any of that. You know, Kamala Harris was supposed to campaign with Gavin Newsom. That gets canceled. These are just small things. But like when you're in the White House and there's like 10 different things hitting you at once and all you have to do is you don't have time to like really sort of digest a bunch of information and then react.

You're reacting in real time constantly. There's a foxhole mentality when you're just getting attacked all the time and you're just trying to push back. It is fucking brutal. It is brutal. I mean, brutal on your best day. Yeah, right. Like, I mean, one of, one of the most like weirdly soul crushing times for me in the administration were the days after the bin Laden operation, because the U S leads this unbelievable unprecedented operation to kill us on bin Laden. We asked John Brennan, who has been hunting that fucker for 15 years, who like literally killed people he knew. And John Briefs gets some facts wrong based on the best information he had at the time. And then like we spend a week having John called a liar and trying to sort of like

clean up or walk back mistakes we made. And that's what they were. They were mistakes. But they get framed as lies, reference to mislead the press. I mean, you know Jake Sullivan incredibly well. Love it it like he's like the nicest the brilliant guy he's super thoughtful but like he looks like you know that he's been in the barrel he looks tired i remember when i remember the oil spill in in 2010 uh in the obama white house and it was all consuming there was you know every single cable channel was talking about the oil spill and there was like a little box in the bottom of the screen

that just showed the oil shooting out into the gulf and saying you know obama's like the worst president since carter and he's not doing anything about the oil he yeah that barack obama has not personally figured out how to get that he couldn't plug it himself in the well get a scuba tank and i remember robert gibbs tells the story that they're all sitting in Gibbs' office and Obama's there and a bunch of other advisors. And as they're figuring out this oil spill crisis, someone comes in and says, oh, by the way, there's this article in Rolling Stone about Stan McChrystal. And now he has to fire Stan McChrystal. That was me. There you go.

That was you. And that crisis happens as you're dealing with the oil spill crisis, right? And so these multiple things happen at once and it's pretty brutal. Yeah. And it is also that like so much of what, in situations like that, so much of what is unfolding is the question, will this crisis negatively impact the politics of this administration? Yeah, of everything else that we're dealing with. Of everything else that they're doing. And so often the way that political punditry and political coverage works, the question, will this have a negative political impact on the administration, is the means by which the crisis

creates a negative political impact on the administration. You end up in this sort of like rhetorical loop of, we're still talking about this. Isn't that a problem? Because a bunch of dumb Democrats answer phone calls from Politico or the Wall Street Journal or whoever and say, oh yeah, I'm really worried about this. Now it's going to impact the midterms. You've got to unburden yourself to a reporter to really make it feel good.

I mean, for Jake and the NSC people, all you can do is hope that the NSC process and structure that you built can hold all the weight that you're trying to carry in the moment. And in weeks like this, like you're not always sure that it can. So Republicans have been pretty clear that their argument for the midterms will be that the country has fallen into chaos. Joe Biden is too weak and incompetent to do anything about it.

How worried should the White House and Democrats be about that message and how should they think about responding? I think that they should be worried about the message and how should they think about responding i think that they should be worried about the message insofar as the country is in chaos and dissolution uh do i think they should be worrying about it in terms of like the specific news cycle of this moment no i think joe biden will be judged by his actions by the actual consequences of his policy choices uh and be beyond that they need, I think they are doing their best to kind of share information, manage the news cycles as they're happening

without being so buffeted by them that they change course. And I think that is, I think, the signature aspect of the way this administration has done politics from the beginning. It is partly why Joe, it's how Joe Biden became president. I think it's actually how Jen Psaki conducts herself in that briefing room incredibly well every single day. Um, and I think that is their strength. They know when to respond and they know when not to respond. Uh, and as long as they keep doing that and the, the, the, the,

the test for this administration will actually play out with what's happening with the infrastructure bill, what's happening with the, with the, um, you know um you know giant uh what are we calling it the other one the other one the uh that's part of the problem right there the uh the build back better the build back better plan the reconciliation reconciliation big build back better checklist or you can just say change three point the 3.5 trillion dollar whatever no no no then dan hits you and says don't talk about the cost i listened to thursday pot how dare you john i'm yelling at him for you just making sure just checking nine we need a jargon we need a jargon jar and a price tag jar that we keep here that we put money

in every time we we screw this up because uh dan's right but no i mean one that this administration is very lucky that they have sake briefing every day because she is so seasoned and ready for this to your broader point i mean odds are right like that they will Saki briefing every day because she is so seasoned and ready for this. To your broader point, John, I mean, odds are, right, like that they will, the voters will vote in 2022 based on the economy, COVID, and then we'll just deal with a bunch of gerrymandered districts. I was just going to say that. And what gerrymandered district they live in. Right, right. The thing that I think is unfair, but I think is what Republicans are going to go for is to say that to fold this into the Joe Biden is too old framework and say, look, Sleepy Joe is too old. He's not up for the job.

Look at this totally unfair, out of context photo of him, you know, blinking or something where his eyes look closed or ducking his head because he's listening to someone speak. And they want to make it about that, about weakness, about, you know, too old, whatever. Like you see it on Don Jr.'s Instagram every day. But we'll see if that works. So I completely agree with you that that's what they're going to try. Right. Like Republicans want this to be a referendum. That's just when you know, when you're running an election, you're the challenger and they're running everything.

You want to be a referendum. And I think the danger is for the Biden administration, even if the pandemic recedes, the economy improves, and Afghanistan fades from the headlines, there's still going to be a lot of voters who are dissatisfied with the state of the country, right? That's just the way it is. And so, you know, Joe Biden always used to say about Obama in the 2012 election, don't compare me to the almighty, compare me to the alternative. And I think that Democrats have to start painting the picture for voters now. Another reason he's president, by the way. That's right. Yeah. That's I think that Democrats have to start painting the picture for voters now. Another reason he's president, by the way. That's right. Yeah. That's I think that Democrats have to start painting a picture for voters now

about what Republicans will do if they take power. Right. This idea that like just judge Joe Biden on the economy and the pandemic. Right. I do think that's what ultimately voters are going to judge him on. But you have to start and look, it's not appropriate to do right now in the middle of the crisis. And I don't even think it's appropriate for the White House itself to do. But Democrats in general, especially Democrats in Congress, Democrats were running again, all the outside committees like they have to start painting a picture of like, OK, maybe you're not completely happy with what's going on right now. But this is what's going to happen if you give these guys powers right now. Endless investigations, impeachment, tax cuts for the wealthy,

endless wars in Afghanistan, whatever the message is, you have to start doing the comparison now, because if it's a referendum, that never usually goes well, even if things are going pretty okay. Joe needs the mood music in the country to be good. I mean, we're seeing this in California right now. People are just pissed. They are pissed at the world.

They're pissed at COVID. They're pissed at their economic situation, and they're blaming Gavin Newsom even though his decisions didn't really have as much of an impact on their lives or on COVID restrictions as probably local decisions. Now going to French Laundry wasn't a great idea.

I think it was the most expensive fucking dinner in the history of humankind. But again, if they're just pissed and they're like, fuck this guy. I'm going to vote, you know, to recall him. And if Gavin pulls this off, it's going to be because in the final weeks they were like, this is what California is going to look like if a right wing Republican takes over. If he wins, that will be why they did that. And so and look, this isn't in this isn't in Biden's character, really. He doesn't like to hit Republicans very hard. That's not how he ran. Republicans very hard. That's not how he ran. But I think even to your point, to show a little fight at some point and to not show that you're sort of this weak leader buffeted by events, which is what

the Republican want the narrative to be, to show a little fight here on the part of Biden as we get closer to midterm season, I think is going to be really important for him. Yeah. Okay. When we come back, Lovett, we'll talk to NYU professor Melissa Murray about the Supreme Court's decision on the eviction moratorium and Stephen Breyer's latest comments about his possible retirement. The Supreme Court blocked the Biden administration's extended eviction moratorium on Thursday, ending protections against hundreds of thousands of renters financially affected by COVID-19 and allowing evictions to resume. Also, Supreme Court Justice Stephen Breyer gave an interview where he denied living in outer space. Joining us now to discuss this and more is NYU professor of law and host of the podcast, Strict Scrutiny, Melissa Murray. Welcome back to the pod.

Thanks for having me. So that our listeners can understand the difference. Thanks for having me. So that our listeners can understand the difference. Can you tell us why the court allowed the moratorium the first time, but not this extension? Well, the first time that the moratorium was considered, it was a moratorium that had been passed as part of the CARES Act. So Congress had actually issued the first moratorium as part of that broader legislative package. Then the CARES Act, of course, the moratorium from the CARES Act elapsed later that summer, and Congress didn't take steps to renew it. And at that point, the CDC stepped in and issued its own moratorium. That later came

before the court, and the court there said that it would not actually rule against the moratorium, although the critical vote there was from Justice Kavanaugh, who expressed some skepticism that the agency had the authority to actually issue a moratorium. But he said that because it was going to be elapsing in a few weeks, he was just going to let it run its course. But he strongly suggested that he really thought this was something that Congress, as opposed to an agency, needed to do. And then when Congress did not step in and the CDC again extended the moratorium after the second one elapsed, then this came before the court. And not surprisingly, Justice Kavanaugh was not willing to allow it to continue. And he voted with his conservative brethren to allow this to

be permanently eviscerated. So this was not unexpected, as you said, but it is strange, right? That like, what is the legal doctrine that says you can do it for a little, but that's it? So, I mean, there is no legal doctrine that says that you can do it for a little. I think here, you know, it sort of evinces Justice Kavanaugh's very pragmatic approach to things. Like he noted that he was very uncomfortable with the prospect of an agency issuing a moratorium, a sweeping as the one that came before the court. But it was going to elapse in just a couple of days or weeks. And he thought, you know, might as well continue that course. But he was very strong in his view that in his mind, Congress really was the actor that needed to act here. And

when Congress didn't act and the agency acted again to extend the moratorium, then I think the jig was up. And he sort of called the question, join the other five conservatives over the dissents of the three liberal justices. So the CDC tried to satisfy, at least in part, the concerns that Kavanaugh had by trying to gear this around places that were particularly hit hard. Now, it ended up catching 90 percent of the country was sort of trying to have have it both ways. Right. It's a broad moratorium, but also a directed moratorium. Are there more legal options available to the Biden administration now without Congress acting? What do you think? Well, it's a really good question. You know, it's not clear that the CDC had no authority to act here. It was acting under a public health law that allows it to take steps to make regulations for the public health. But the court said that that statute really only contemplated sort of quotidian measures like pest fumigation or eliminating different kinds of lead abatement or things like that in particular homes, not the kind of sweeping rent relief and assistance that

the eviction moratorium would provide. I think it's a pretty open question, as the dissent suggests, to say that allowing for some kind of rent abatement or assistance in the midst of a public global health crisis is not within the remit of that particular statute. I think that's a pretty broad question, and one that this very short, although it's longer than most of the opinions that come out on the court's shadow docket is, didn't really go into an address. It said that, you know, the statute only contemplates these kind of bare bones issues, not the kind of sweeping relief that the moratorium encompasses. And again, I think that is a question that really could be more fully briefed and answered as Justice Breyer

suggested in his dissent. Like this is not something that we should sort of deal with casually on our shadow docket. It's something that really needs to come before the court and should be entitled to full briefing and argument on the merits because it's a meaty, meaty question. What does that mean going forward? Not sure what it means for Congress. Congress is obviously the actor that two-thirds of the court would like to see moving on something like this if we are going to get any movement on it. And it doesn't seem that Congress in its current composition is eager to take the steps necessary to reinstate a moratorium of this kind. Can you talk a little bit about the shadow docket? You know, because you're pointing this out,

right, that these are these are kind of short rulings that don't give you very much guidance on what would be allowed, what wouldn't be allowed. Right. Which would be particularly helpful to the administration, to Congress. What is the shadow docket and why do such important decisions now seem to emanate from it? So my apologies to your listeners. I kind of just threw that out there as though we were all operating in the shadows and we all knew what we were talking about. But the shadow docket is the docket of emergency appeals that come to the court in an expedited basis. And because they are often emergency appeals that have to be decided of the moment, they don't have the same kind of full briefing,

nor do they have the oral arguments that we typically expect of the cases that come before the court on its regular merits docket. And so as a consequence, the shadow docket is supposed to be the sort of quick, dirty, like we're looking at something really fast because something's about to happen, but we're not really trying to make sort of a broad jurisprudential impact on an area of law. What's happened over the last five years, however, and this was especially acute during the Trump administration, was that the administration really pushed for a lot of rulings on the shadow docket. And they were often really successful in getting the court to see their way of things on those shadow docket rulings. And sometimes those shadow docket decisions would then trickle in

to the court's merit docket. So you would see the court citing in a merits case things that they had done earlier on the shadow docket. And so over the last couple of years, a number of scholars, including Steve Vladek at the University of Texas, have really noted the way in which the shadow docket has really moved out of the shadows and become a really prime way for the administration to prosecute some of its domestic agenda items and for the court to essentially credit or bless them. So last week, the Supreme Court declined to block a ruling out of Texas. That means the Biden administration has to uphold Trump's remain in Mexico policy. What did you make of that decision? Was that part of the shadow docket?

Are we on the shadow docket when they're making this decision? And were you surprised by it? It seems like we're in this moment where there's this debate about what happens when a federal district or judge makes a ruling that affects the whole country. It's a terrific question. So this is another one of those kinds of emergency appeals. It's a terrific question. So this was another one of those kinds of emergency appeals. So a district court judge in Texas, Matthew Kaczmarek, he's a Trump appointee, basically said that the Biden administration's decision to fall back from the Remain were required under the Administrative Procedures Act, which is a law that requires the administration or agencies to actually say why they are doing certain things. And many of your listeners may remember this particular law because it came up a lot during the Trump administration because the Trump administration

was great at taking action, but not necessarily in explaining it. And one of the most famous- And they were bumbling oaths. That's also part of it. Well, your words, not mine. I just, I state the facts and offer you some of this analysis. But one of the things that I think the court noticed in the DACA case, for example, was that the court, the administration had rescinded the DACA program, but hadn't really provided good reasons. And so the court ultimately said in University of California Regents versus Department of Homeland Security that they couldn't do that. They couldn't just rescind DACA without actually providing reasons. Using that same logic, this judge in Texas said that the Biden administration had

rescinded this Trump administration policy, but hadn't provided enough reasons for why it had done so. And so it was unlawful. But more than that, this judge then said what needed to happen was that the Biden administration had to reinstate the remain in Mexico policy and gave them about a week to do it, which prompted this emergency appeal that went up to the Supreme Court. And the Supreme Court essentially allowed that judge's ruling to go into effect. And to your point, what makes this so unusual is not the fact that the court determined that the judge's ruling that there weren't enough good reasons had been allowed to stand. That seems pretty straightforward.

What is more concerning is that it allowed this district court judge to basically tell the United States government that they had to now go to Mexico, hat in hand, in the middle of a global pandemic, and negotiate this policy with a foreign government in order to reinstate it, because that's exactly what's going to have to happen. The policy was rescinded in order to reinstate it. The United States is going to have to do some kind of brokering with Mexico to allow these asylum seekers to stay in Mexico while their cases are heard in their rulings. But this is a decision that basically forces the administration to actually shift their foreign policy responses to do a particular thing. Well, it just seems like also the exact kind of decision that should be before the Supreme Court. They're like, hold on a second. This federal judge should not be dictating foreign policy

day to day, requiring a sudden about shift in the party administration without this being heard by the nine justices of the Supreme Court, right? Doesn't this, this seems like the exact kind of situation in which a ruling will be, would be stayed until it has a chance to be adjudicated before the actual Supreme Court. That's exactly right. And, you know, for those individuals who argued that, you know, this was really no different from the DACA case where the court said that thecket. So when the court made that determination that reasons had not been given, they actually did so with the benefit of full oral argument and full briefing on all the parties. That was not the case here because it was a case on the shadow

docket and an emergency appeal. So really different circumstances, even though the court was relying on some of the same kinds of logic that we saw in the DACA case. though the court was relying on some of the same kinds of logic that we saw in the DACA case. So in this context, we have Justice Stephen Breyer. He has a new book, but of course not political. Everybody chill out. It's fine. He gave an interview with the New York Times in which he didn't want to talk about his plans to retire. But he did say, and I took this as heartening, that no one on the Supreme Court lives on Pluto and that he doesn't want to die as a member of the Supreme Court. What was your reaction to Justice Breyer's interview? So in the interview, Justice Breyer noted that he didn't want the whole process of stepping down

and having a successor name to be one that was unduly mired in politics, which is totally on brand for Justice Breyer, who has said that he really loathes the politicization of the judiciary. But was also what was really interesting was that he kind of offered this five factor analysis that he wanted to consider before, you know, stepping down when you're there are all these things that a justice has to consider. And I thought that was especially on brand, because if you read Justice Breyer's jurisprudence, this is a man who has never seen a five-factor test that he didn't love. So of course he would apply this to his own retirement decision. But I think what the interview suggests is that this is someone who understands that he is in a particular position,

that the political environment in which he and this particular position exists is one that is subject to a very shifting landscape. And as much as he would like to avoid the politicization of the court, the horse may be out of the barn on that point. And this is going to be political, regardless of whether he wants it to be or not. And perhaps he is looking for a way to do this on his own terms, but also keenly aware that this may be out of his grasp entirely. It's interesting. Whenever a Supreme Court justice resigns, it's a political debate. It takes place in the United States Senate. It is not a job for which the president nominates a successor.

If he's worried about this being mired in politics, isn't the surest way to create the biggest political fight to wait until we may not have a Democratic Senate? Isn't the way to avoid his worst fears to learn to golf now? So I think one way to sort of think about this is for someone of Justice Breyer's vintage, the Supreme Court and vacancies on the court weren't always so politically animated or wrapped in the kind of politics that we expect and see today. You know, when Justice Stevens was appointed to the court, it was sort of very straightforward. No one really talked about it. It happened incredibly quickly.

For people, I think, of our generation, we are used, I think, you know, we live through Robert Bork or we were just, you know, at least sentient during Robert Bork. We've seen the politicization of the confirmation process. So, you know, part of this, I think, is kind of generational. wasn't the case that a Supreme Court nomination could prompt this kind of really excessive and, you know, pitched, fever-pitched battle on both sides of the aisle about who the nominee was and what the impact of that nomination would be for the court. You know, Stephen Breyer gave this very fulsome, long speech about his views a few months ago, and it was striking how much of his analysis of the politicization of the court doesn't really address the politics that takes place outside of the

court. He's very much focused on the ways judges behave in their chambers, in their roles, on the bench, but seems very uncomfortable actually reckoning with what has happened, right? But it does seem in that interview that he is at least conflicted about it. I think some people were critical of that interview, but I came to the end of it thinking, this is a guy that's not going to wait. This is not a person that's not going to, he at least is seemingly not wanting to wait until after Joe Biden is president? So I think one thing the interview suggests is that this isn't someone who's sort of like trying to hold on until some better moment. I mean, I think he recognizes as much as anyone else that maybe this is the best moment if you really want to sort of ensure that the person

who replaces you is someone who has similar sensibilities. And he acknowledged that in the interview. But I also think he's someone who doesn't like to be pushed into a corner. And I'm not sure that us berating him about stepping down is the way to actually get him. No, I won't stop. I won't stop. Retire, Stephen Breyer. Get out of there. I mean, the name makes it easy to make up all of these rhymes. But, you know, again, I think he wants to do this on his terms and his way in a way that sort of feels good to him. Like, you know, is that selfish? Is that realistic? You know, I'll leave it to you all to decide. But I got a sense from the interview that this wasn't a case of someone who sort of,

you know, fame, I'm going to live forever. I think he understands like he's 80 years old. But I also think he's enjoying his job in a way that he never really has before. This is someone who more than any of his colleagues spent the most time being the junior justice, getting the real dregs of opinions. And now he's had this term where he is the senior member of a three justice minority, but senior nonetheless. And he's getting all of these great opinions. The chief justice is giving him all of this really meaty stuff. Like the job satisfaction must be through the roof. All right. Well, look, I say this with all due respect and I don't want

to, that's sick. But the, it's to be on. It's you know, whether you agree or not, there is, I think, something. And I think Justice Ginsburg had a little bit of this as well, you know, waiting to get to a place where you really were like you knew the job. You knew what your role was. You knew how to play it really well. And you didn't want to step down sort of at the height of your powers. And I think for him, this really is the height of his time in the court. He's the leader of the liberal wing of the court. I mean, it is a very diminished liberal wing and, you know, that must be said. But he is the one in the catbird seat in terms of, you know, that wing of the court. He's getting great assignments

on. He wrote the opinion in Texas in the ACA case and in the street in the student speech case. Like this is this is what he's been waiting for. And maybe this in part explains why he's reluctant to give it up. Well, hopefully he'll also be excited about Tuscany. Melissa Murray, thank you so much. And before I let you go, I do want to say, as always, thank you so much for your comments. If you were sentient during the Robert Bork confirmation, you should probably also start a skincare line

as soon as possible. Thank you for saying that. Today is my birthday. Happy birthday! I'm so old today. I don't know. I'm trying to do whatever Justice Alito does to his skin because that is a man too who has not aged at all. That's that's that's called having no empathy.

That's actually really good for the skin. It's actually very good to feel nothing. I'm just trying collagen supplements. I'm just doing collagen supplements. Yeah. Yeah. Sociopathy and collagen are great for the skin. Melissa Murray, thank you so much.

I said it. She didn't say it. She didn't say it. I didn't say it. Okay. Thank you. Thanks to Melissa Murray for joining us today. And we will see you Thursday, September 9th. Everyone have a fantastic Labor Day weekend. And we'll talk to you then. And thanks to Justice Breyer and Senator Feinstein for retiring on the show today. Oh, thank you.

That was so great. That was so great. What a Labor Day it was. Labor of love. Pod Save America is a Crooked Media production. The executive producer is Michael Martinez.

Our senior producer is Flavia Casas. Our associate producer is Olivia Martinez. It's mixed and Flavia Casas. Our associate producer is Olivia Martinez. It's mixed and edited by Andrew Chadwick. Kyle Seglin is our sound engineer.

Thanks to Tanya Sominator, Katie Long, Roman Papadimitriou, Caroline Rustin, and Justine Howe for production support. And to our digital team, Elijah Cohn,

Phoebe Bradford, Milo Kim, Yale Freed, and Narmel Konian who film and share our episodes as videos every week.