The Daily Show: Ears Edition - From the Archives: Dahlia Lithwick - March 21, 2017

Episode Date: October 23, 2018

Slate's Dahlia Lithwick talks about the Democrats' approach to President Trump's Supreme Court pick Neil Gorsuch and describes how nominees deflect questions from senators. Learn more about your ad-choices at https://www.iheartpodcastnetwork.comSee omnystudio.com/listener for privacy information.

You're listening to Comedy Central. Streaming soon on Paramount Plus. This is Dr. Frazier Crane. I'm listening. He's back again. Hey dad, I got a question about punctuation. Ooh! No, stay on task. And he's more Frazier than ever. How do I look? Rich.

Just what I was going for. Oh my God, they traded your baby for wine. Do you really think we would trade John for white Zinfandel? Or any wine? Frazier, new season streaming September 19th on Paramount Plus. Please welcome Dahlia. Thank you for having me back. And what a time to have you back? This is like your Super Bowl.

Except so depressing. It's like the world's saddest Super Bowl. So it's like your Atlanta Falcon supporting Super Bowl. Yeah, yeah, it's like sitting in a room, trapped in a room with the oldest people in the world on the Senate. Somebody, I think Jeff Tubin tweeted that the combined age of the first four questioners this morning in the Senate was 2,000 years old. Like, you're really, really an expert who's dedicated your

time to the Supreme Court. We haven't seen a more exciting time in the Supreme Court, and Neil Gorsuch has really up the stakes because he is Trump's pick. On the surface, he's qualified, and yet the Democrats don't know what to do. Do they block him and lose? And lose. Right. I mean, I think it's it it it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's,? Right, I mean I think it's like do we get rolled today? Yes.

Or do we get rolled in a couple of years when we get rolled again when Justice Kennedy or Justice Ginsburg steps down or do we get rolled both times? And so there's this real tension about, you know, is this the hill do we want to die on, filibuster, cloture, words I don't understand, you know, three-dimensional chess, and meanwhile, as you've probably seen, he is sailing through. He's having a great time. I wondered this when watching it today. Do the questions actually matter and does the hearing itself, like, is there ever

a senator who goes, you know what, you just changed my mind? Lindsay Graham likes that Lindsay Graham is a force of nature and he likes to talk about how he one time voted for Sonia Sotomayor, even though he's a Republican and that everybody should be like him. So that's generally his posture is, everybody here is terrible. I am outstanding because one time, one time I voted for Sotomayor he calls or in that's like the line that he keeps going back to. But it doesn't seem like people are going to change their minds. Gorsuch, a lot of people have said, is sailing through.

What is sailing through mean, though? Does it mean he doesn't have skeletons? Does it mean he knows what he's talking about? So I think that one of my favorite moments today was when Chuck Chuck Chuck Chuck Chuck Chuck Chuck Chuck Chuck is when when when when when when when when when when the the to to of the Judiciary Committee from the Republican side, said, I don't want you to talk about anything you've ever decided or anything you're going to decide. Anything that's political or anything that's not political. Don't let them drag you into talking about your record or other people's records.

Don't talk about anything, because they're going to try to trick you. And then the their their their their their their their their their their their their their their thi their thi thi th. th. thioluil, th. thi, thi, thi, thi, thi, thi, thi, thi, thi, thi, thi, thi, thi, thi, thi, thi, their, their, their, their, their, their, their, their their, their their their their. their. their. their. their. their. their. their, their, their. their, thi. thi. thi. thi. thi. tooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo. to try to trick you. And then Neil Gorsuch has absolutely followed those instructions and so what he talks about you know when they ask him a question about precedent, yes, I can't describe it. When they say you know is row binding precedent on the court he says it was decided one time. You know I think it's just he's really just saying over and over and they say to him, you know, it's so funny, you've written articles about this, you wrote a whole book about this issue. You know, he's done a lot of sort of extracurricular chit-chat about things, and he can't talk about those either. I like that he calls that as well,

that's my extracur Neil Gorsuch and they say he is very right-leaning. The argument from many conservatives is yes but he is a constitutionalist and so he will stick to the Constitution. He cannot undo you know Roe v. Wade or will not undo you know gay marriage laws but that's not true is it? Well I mean two things. One there's's a difference between what you can do on the federal appeals court. Yes. And what you can do when you are a justice of the Supreme Court.

So to say, I've never overturned any cases, has almost no meaning until you've been on a court and in a position to overturn cases. So it's already a sort of strange thing. Nothing he's done in the past suggests that he's going to do X or Y, but we don't know. It's a whole different ballgame. The rules are different at the Supreme Court. Do you think he'd want to? Well I think, I mean certainly he has written in some, he's written concurrences and dissents and he's written things that suggest that there are cases. There's one case called Chevron that has nothing to do with filling stations, but it has to do with deference to federal agencies, and he's called it the elephant in the room. We need to get rid of it.

So he's certainly been very open about the fact in his judicial writing that there are some cases that he really thinks sucks and that the court should reexamine them. But when he's asked even about that, and he's asked, well, so clearly you've got a marker for what kinds of cases you think maybe need to be revisited, and he can't talk about that. If he is someone, that's a good impression of him that you do, actually. That's really nice.

You spent a lot of time in that room. I've got to talk about that. The elephant in the room room room room room room room room room room room room room room room room the room the room the room the room the room the room the room the the room the the room the room the the the room is the the the the the the the the the the the the the the the fact that Merrick Garland was meant to be in that seat. Merrick Garland was someone who was picked by a president. He's a judge that was picked by a president who had every right to pick him. Republicans came out and said, we can't pick him because Obama is a lame duck, which was insane. But Gorsuch, taking this job, what does that mean for the Supreme Court as an institution going forward?

Well, I want to just start by telling you that Senator Al Franken today directly asked him how he feels about the politicization of Garland and whether he thinks that Garland was mistreated. And it will surprise you not at all to hear that Gorsuch could not talk about that. So we don't know exactly what he thinks. We know that, look, this is unprecedented. We've now had a vacancy at the court for more than a year. Justice Scalia died on February 13th. In March, Obama tapped someone to replace him. And, you know, I feel like we even talked about it on this show. The Republicans in the Senate said said said said said said said said said said said said said said said said said said said said said said said said said said said said said said said said said said said said said said said said said said said said said said said said said said said said said said said said said said said said said said said, to to to to to to to to to to to to to to, to, to, to, to, to, to, to to to to to to to to to to, to, to, to, to, to, to, to, to, to, to, to, to, to, to, to, th. to, th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. tho. th. th. tho. to th. to tho. to to to thi. to th. th. th. thed about it on this show. The Republicans in the Senate said, no hearing with no vote.

We're not even going to have courtesy meetings with Garland because Obama doesn't get to pick someone in his third year by some metric that we still don't know what that rule is, but it's like a thing now. And so that became the rule. And when there were only eight people on the court, which there have now for a year and things get deadlopped and we have four four ties and the court refuses to take any interesting cases because they can't decide things it's really hampering the work of the court and politicizing the court and yesterday Republicans on the Judiciary Committee having

blocked Merrick Garland for a year turnturned around and we're like, we've got to hurry this thing up. It is unseemly that the court is not being treated as a judicial enterprise that has its integrity and we have to revere that and depoliticize this right now. And it was really crazy because just the complete, you know, they've completely changed the rules. And now that it's their turn turn turn tuuutea tune tune tune tune tha tha tha tha tha tha tha tod today to to to to to to to thoes, to thoes, thoes, thoes, to tho, to tho, tho, tho, tho. tho-a-aq, tho-a-aq. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. the, the, the, the. the. the. theateatea. toooooooooooooooooooooooooooooooooooooooooooooooooooo rules, and now that it's their turn to have their guy up, they're like, we should really go to those old rules where people get fast and respectful hearings.

Can I ask you a question? You are in the room when this is happening. How are you quiet? Like, do you not at any point, just want to be like, bullshit. You are professional. I'm going to give you that. You're super professional. We're loving your writing. We're following everything that you're talking about.

Thank you so much for joining us again on the show. And good luck with Gorsich, and I'm glad that you can talk about it. Thank you for having me. Thank you so much for being here again. Dahlia Lutnikis, everybody. The Daily Show with Kevernoa, Ears Edition. Watch the Daily Show Week Nights at 11th, 10 Central on Comedy Central and the Comedy Central app. Watch full episodes and videos at the Daily Show.

Follow us on Facebook, Twitter and Instagram and subscribe to the Daily Show on YouTube for exclusive content and more. This has been a Comedy Central podcast. Streaming soon on Paramount Plus. This is Dr. Frazier Crane. I'm listening. He's back again. Hey dad, I got a question about punctuation. Ooh. No, stay on task.

And he's more Frazier than ever. How do I look? Rich. Just what I was going for. Oh my god, they they traded your baby. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. thate thate thate thate thate. thate. th. th. th. th. th. th. thate. thate. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. th. the. the. the. the. the. the. tha. tha. tha. tha. tha. tha. tha. tha. tha. tha. tha. tha. tha. tha. tha. tha. tha. tha. tha. task. And he's more Frazier than ever. How do I look? Rich. Just what I was going before. Oh my God, they traded your baby for wine! Do you really think we would trade John for white Zinfandel? Or any wine? Frazier, new season streaming September 19th, on Paramount Plus.