The Dispatch Podcast - Future of Supreme Court Fights

Episode Date: April 8, 2022

On Thursday, the Senate confirmed Judge Ketanji Brown Jackson to the Supreme Court. Our hosts are here to discuss what her confirmation foreshadows for future Supreme Court fights. Plus, the Biden administration announced plans to end use of Title 42, a pandemic-era border policy, next month. What does that mean? Sarah, Jonah, and David finish the show discussing the practicality of bringing charges of war crimes as we learn more about the atrocities committed by Russia in Ukraine.   Show Notes: -The Dispatch: “​​The Bucha Massacre and the Horrors to Come” -G-File: “Is It Okay to Use the ‘G-Word’?” -The Dispatch: “What are Secondary Sanctions?” -TMD: “How Will the U.S. Admit Ukraine's Refugees?” -Uphill: “Congress Finally Meanders to a Russia Trade Bill” Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Dispatch podcast. I'm your host, Sarah Isger, joined by David French and Jonah Goldberg. plenty to talk about today. We will start with the confirmation of Judge Katanji Brown Jackson and what it means for the future of Supreme Court confirmations. We'll do some immigration with the end of Title 42 at the border. And finally, war crimes. What are they good for? And just so you'll know, my son might be joining us on and off today for this podcast, but he has plenty of important thoughts on these issues, as I'm sure you'll all come to find. And we are going to work very hard to have fewer head injuries than we did last week. We don't want to reset the days since podcast accident sign.

Can't promise zero, but we are going for fewer. Nate, say hi. Nice. Let's dive right in. We should just tell people it's the interns at the dispatch. Let's dive right in. I want to start with the Supreme Court confirmation, and I have a story for both of you.

So in 1866, Andrew Johnson becomes president after the assassination of Abraham Lincoln, and he tries to nominate, Henry Stanbury to the Supreme Court. But the Senate, the Republican Senate at that point, even though they are sort of of the same party as Andrew Johnson, at least on paper, hates Andrew Johnson's reconstruction policy so much that they take no action on that nomination and, in fact, pass the Judiciary Act of 1866, which removes the Senate seat entirely. Now, I tell you that story, because Mitch McConnell this week, in a conference,

conversation with Jonathan Swan would not commit to whether he would hold any hearings for a Biden nominee in 2023 if Republicans take control of the Senate. Now, remember going back to the Garland nomination. He said the reason that they weren't holding hearings on Garland was because it was the opposition party in control during an election year. But of course, 2023 wouldn't be an election year. It would mean that in fact, a Supreme Court seat stays open for two plus years, maybe longer. At a time, David, I'm going to go to you first when we have affirmative action, religious liberty, voting rights act cases that would all potentially come down four, four at that point, would be left to lower courts, which is a little bit of a lottery,

right? You end up with three judge panels, and it's pretty random, which three judges end up on that panel. It would be a little bit chaotic. And I mentioned the, 1866 story because that's kind of the last time anything like that happened. David, what's the future of Supreme Court nominations at this point in the U.S.? That was, A, predictable from McConnell, and it'd be terrible from McConnell. Look, it's funny, I was driving to the airport. I'm in Boulder, Colorado right now, and I was talking to my son-in-law who was driving me about the history of Supreme Court nominations, which is a really fun thing to talk to somebody about if they've not, you know, they're walking fresh into it. And so I didn't go all the way back to 1866 like you did. It was not that long of a drive, but I did start with, I did start with Bork. And I said the rule is not tit for tat. It is not retaliation. It is escalation. Everything is escalation. And so if you're going to end a filibuster for non-Supreme court nominees, then you know you're going to end to filibuster for

Supreme Court nominees. If you're not going to hold a, if you're going to, you know, whatever you're going to do, the next party is going to do a little bit more and then the next party is going to do a little bit more. And the most predictable step in the world was we're not going to hold a hearing or not commit to holding a hearing when we're in power and the opposition party has a presidency. And it's the last two years. Now, the next step, of course, is we don't hold hearings the whole time we're in power, or the next step, I guess, would be we don't hold hearings on Court of Appeals nominees while we're in power. It just keeps going. But the bottom line is, and you said this, well, when you have eight justices of the Supreme Court,

that's a problem. Eight is not an odd number. I'm not a mathematician, but it's not an odd number. And so what essentially ends up happening, for those who don't know, is when the court deadlocks, whatever the Court of Appeals decision was that is being appealed from is essentially affirmed for all practical purposes. And so what that means as a practical matter is when you have circuit splits, for example, where the law and part of America is different from the law and another part of America, the exact kind of dispute the Supreme Court is supposed to resolve. those things won't get resolved in a deadlocked court. I mean, this is where a branch of the government could stop fully functioning. I know we're used to that with Congress. Do we want to be used to that with the Supreme Court as well? I think it's an incredibly dangerous escalation, but also an extremely predictable escalation.

Interesting scenario that I'm not even, I think, the first one to come up, with, though it was in the previous context. But one could imagine if there's such an attack on the institution of the Supreme Court, at least a certain chief justice considering resigning himself to leave the Supreme Court with an odd number of justices, sort of create, recreate the institution as it's supposed to be, regardless of sort of political shenanigans and partisan shenanigans, which would be, I mean, I don't think he would actually do that, but it'd be a fun. what's it called when you like rewrite your favorite book online with retcon no you know like what um what 50 shades of gray was to fan fiction fanficion yeah this is the fanfic

version of supreme court drama thank you caleb for the fan fiction poll uh jonah when mcconnell refuses to commit to that it's not like he commits in a vacuum democrats hear that as well are we is this Was Justice Jackson, soon to be Justice Jackson, the last Supreme Court confirmation we're going to have in divided government? First of all, I want to say that you're, I thought you had a more robust imagination if you're going to do fan fiction, like, where are the trials by combat, you know, like, I mean, I can come up with all sorts of cool, fairly bloody, weird things that, you know, if we're going to have this. replace the Supreme Court with rather than just, oh, we'll take one member off and have a odd number again, you know. I apologize. Yeah.

I didn't include nearly enough whips and chains. Yeah. I mean, no one is swinging. No one's throwing a trident in your version of this. And I just don't get it. Anyway, I, I, you know, it's always safer for the last decade or so to bet things will get worse, right? and that the dissent into ever greater levels of jackassery will continue. I still suspect that may be not the case.

Jonah, here is the hopeful one, the optimist. Wow, let's do tell. Maybe we do have more head injuries than I thought. No, I just, I could see. let's put it this if it's early in 2023 so we're talking about what like nine months from now eight months from now something like that um um that be a might be a hard line for McConnell to hold well it doesn't matter yeah it matters on how what his Senate majority is you know yeah matters what a majority is susan Collins Lisa Murkowski clearly aren't going to play along but if he has a four seat

majority yeah and hard to imagine a four seat majority by the way just look at the map, but nevertheless. McConnell is, I understand that he's, let's put it this way. Liberals have every reason, critics have every reason, because he's got critics on the right, too. Critics has every reason not to trust McConnell

and expect the worst. I'm not one of those people. I have my criticisms, but I also think that he is enough of an institutionalist, that I have a hard time, I don't have a hard time. I just don't think it's as likely as some might think that he will extend the Merrick Garland rule to be just an infinite permanent rule of,

we'll never approve any Democrat nominees. And, but I could be wrong. I just think, like, if he weren't the majority leader, if it were one of the others, I could see them, one of the other contenders, I could see them caving into this spirit. But for some reason, in my gut, I'm just, I'm going to take the Rosie scenario here and say he's not going to throw us into the sewer even deeper. And doesn't it depend a ton on who the justice is that is retiring or has to leave?

If Clarence Thomas has another health crisis and has to leave the bench, the pressure on McConnell to keep that seat open would be, It would be so intense, you would even wonder if McConnell's institutionalism would be able to trump just the sheer raw self-interest of, you know, complying with the demands of the GOP base at that point. But my understanding is that he, I mean, my understanding is a common rumor around Washington is that he doesn't even plan on filling out his last, his next term, this term. he just wants to set the record for the longest serving majority leader. So he's got the psychological permission to say, you deal with this, Thune or Rick Scott. I've checked the day on my calendar.

I'm out. David, do you want to do just a quick album side on GroomerGate? Oh, gosh. Yeah, this is sort of the, what was I calling it, not tit for tat, the escalation. So essentially what happened towards the very, very tail end of the process is the allegation from some people, not, this was certainly not a mainstream Republican allegation, Marjorie Taylor Green, Molly Hemingway raising questions, was that some of the critique of Kintanji Brown Jackson around her sentencing, patterns in general and specifically for people who have been involved in child sex predation or child pornography, that they were light. Now, the actual substance of those concerns,

I think Andy McCarthy at National Review probably did better than anybody in the whole media to address where, and we walked through this at advisory opinions at length, that a ton of the critique of Judge Jackson was just off, that her sentencing in these kinds of of cases was right in line with the recommendations of the U.S. Probation Office. So the attack on her, and this is Andy McCarthy's words, former prosecutor, National Review stalwart, was a smear. It was a smear. Well, a few people doubled down on that. And I mean, when I say double down, double down and said that if you voted for Kintanji Brown Jackson, you were pro-peto, or pro-peto file, which is changed.

just it's so absurd that you almost don't even you almost feel like you shouldn't have to open your mouth to rebut it it's so absurd because it's a smear to begin with and then to declare that someone who's voting for a qualified judge even if they disagree with her legal philosophy is pro pedophile is smear squared but david isn't a lot of this simply um wanting to do the tit for tat that if you voted for cavanaugh they called you a rape apologists. And I went back and looked and that's the term that they used. And so they want to sort of create the equivalent atmospherics so that everyone sort of learns what it's like if Republicans play by the same rules. That's what's going on. Yes. There's no

question about it. And it's terrible. It's ridiculous. Don't disagree. It was it was wrong when they called anyone who voted for Kavanaugh rape apologists. It's wrong if you call anyone who votes for Judge Jackson a pro-peto or whatever they're calling a groomer. But you have to put it in the context. Okay, Jonah wants to push back on me being wrong. My problem with that argument is that you only hear that argument when people want to sort of, you know, it's the equivalent of don't take Trump literally take him seriously, right? It's exactly that. It's very Monten Bailey, right?

So, like, you know, people come out of the gate screaming their petos, their groomers, they're pro pedophile, blah, blah, blah, blah, blah. And then when you say, really, Mitt Romney is pro pedophile, really, you're going to put those words in that order and have them come out of your mouth, really. And then they say, well, look, it's very, I mean, we got to take these things, things in context and you guys remember what they called us racist or they called us rape apologists but unless push back on they don't say that's why they're doing it right and i agree with you entirely look it is it is absolutely immoral to call somebody a racist when they're not a racist or a rape apologist when they're

not a rapologist and and to say that was so outrageous that was so wrong i'm now going to do the equivalent to you it's just in a nutshell what is wrong with our politics of the last 10 years. Well, true enough on that, let's move to the next thing that's wrong in our politics. Maybe we should rename this podcast. Just what's wrong in politics this week. Yeah. I mean, that's basically what everyone knows it's called.

Thank you members in the comments section. By the way, you can join the comments section by becoming a member of the dispatch and say all of the crazy things you've ever wanted to to Jonah, but without being on Twitter. It's fun. Of course, what's funny is that I end up responding to it. So you can say it about Jonah, but you will get a response from me instead. All right. So Title 42.

This was the public health law regulation that allowed border patrol to immediately expel migrants who entered the country illegally, regardless of whether they were seeking asylum, for instance, and sort of married with the remain in Mexico policy to some extent, the result being a few things. One, the assumption that when they stop enforcing Title 42, that there will be a huge surge at the border, that's one assumption. But two, that what was happening was a lot of repeat entrance. So because they were simply just literally taken back across the border to Mexico, that person would simply enter the next day. So when you see numbers about, you know, 100,000 encounters a month and how much higher that was during the last year, I don't have the numbers in front of me,

but a large percentage of that, a much larger than normal percentage of that was people who were just simply trying every day until they eventually didn't get caught. As the Biden administration says they're going to repeal Title 42, I mean, the liberal columnist headlines are quite interesting. Biden won't address the coming surge in migrants, Democrats should. An abject Biden failure on immigration should prompt a real rethink. That's by two of the most liberal Washington Post columnists. So immigration, I think, has been lurking below the surface of a lot of the media coverage about the Biden administration, about his low approval numbers.

I think it will be a much bigger factor in the midterm elections than you would know from simply reading headlines. Obviously, inflation, number one with a bullet, right? gas prices are all tied up into that, of course. But I would put immigration as number two in some of these swing states and swing districts that the Democrats are really looking at. And the reason that you know that I'm probably right is because of how nervous vulnerable Democrats are when they start talking about these issues. So, Jonah, start with you this time. What is the Biden administration supposed to do about immigration when Congress won't actually

do anything. And so they are left with sort of executive action, which the Obama administration already learned, wasn't perfect. You know, it's interesting that there is a proposed bill floating around the Senate. I don't think you'll be surprised by the sponsors. So we have Republicans such as John Cornyn in Texas, James Langford of Oklahoma. Yep, yep. Democrat sponsoring the bill, Mark Kelly in Arizona, Kristen Cinema of Arizona, John Tester of Montana, Joe Manchin of West Virginia, and Maggie Hassan of New Hampshire. All right. So given that those are the Democrats you have to work with on any immigration bill and otherwise the Biden administration is just incredibly politically vulnerable on this issue, what are they supposed to do? It's an excellent question.

And I have, I mean, other than sort of my generic rants about how Congress just doesn't do its job, anymore and all that, it kind of feels like people have forgotten how to actually do this stuff, right? The institutional memory of like leaning on Congress asking, I mean, like when I was growing up following politics, it present spent an enormous amount of time bashing Congress, whether it was run by their party or the other party, trying to get them to do the kind of legislation that they needed or wanted. It just feels like Biden has no, either no idea how to do that or no desire to do it or no institutional incentives to do it.

And the last one that I find very strange. But so I don't, I just, I don't think anything that those senators could get passed in the Senate, it can't get passed in the House. It seems to me that politically the smartest thing Biden could do, again, you know i'm i'm captain wedge issue and sister soldier is uh start framing the debate entirely in ways that are helpful to those senators right to these moderate democratic senators who want to get he needs to get reelected um you know uh uh be publicly seen working hand in hand with joe mansion it won't cost Democrats many seats in safe blue districts.

But it could help, first of all, it could help the Biden's approval rating. You know, better to be associated with and supporting Democrats who are actually popular with the mainstream of Americans than supporting Democrats who are unpopular and have unpopular reviews with mainstream of Americans. But I just don't think there's much likelihood Biden will do the smart thing. And so I think there's going to get, there's going to be a total shalacking in the House. Senate is a tougher call. And the immigration thing is going to become a disaster before there's the political willpower to do anything to fix it.

David, Texas Governor Greg Abbott says that he will send buses of undocumented immigrants to D.C. It'll be voluntary. They get to choose whether to get on the bus. But to send a message to the U.S. Capitol, you know, that maybe they would take. take the problem more seriously and spend more time on it. And the media would focus more on it if the problem was at their backdoor and not, you know, Texas 2,000 miles away. I also want to read you some ideas that one columnist had. At a minimum, a law should stop the policy of letting people enter the country without a final adjudication of their status, and particularly their asylum

claim. That could be implemented in a number of ways. Arrivals could be temporarily housed as they file the request and then sent home to their native country. The federal government could build offshore detention centers where migrants can be sent for processing as they await a final determination of their status. That's what Australia does for people who arrive illegally by boat. Britain is reportedly thinking of adopting a similar policy. Alternatively, the United States could fund detention centers inside the country where people could live while their asylum claims are processed. Whatever the approach, the key is to not simply release the people into the communities along the border, David, set aside now the Biden administration's ability to find

the political will on the left, a sort of sister soldier-ish stuff that Jonah's talking about. On the right, could Republicans support funding detention centers inside the United States, even if it would end catch and release? Could they support it? That's interesting, a really, really good question. I, you know, I keep going back to this, where, where, where, what are they hearing from the base when they go home? Because that is so, it seems to be so important to determining the next six days of Republican activity on Fox and elsewhere, the next six weeks of Republican activity. What are they hearing from the base? Well, we know the catch and release is not acceptable to the base. Much more prefers remain in Mexico. So I don't know that they could.

fund detention centers in the United States. I feel like they could provide aid to Mexico to fund detention centers in Mexico that could safely house assailies while their claims are being processed. Yeah, this is really hard. And right now, I feel like this is where we are with two of the big, two of the big issues for the midterms, both inflation and Title 42 slash immigration. You have a really, really tough issue that was going to be a tough issue no matter what. And to the extent that Biden administration has had a real influence on it, it's been negative. And if you're Republicans, you're in the ideal position where you just get to throw stones at that because you have these really, these two tough issues that the Biden administration

has had a negative influence on. And you get to just point that out, which is totally fair in electoral politics, you get to totally say the present administration and the present Congress is letting us down. Then at some point, you've got to do something about it, or at least try to do something about it. And that's where this gets really hard. And Sarah, I honestly don't know the answer to your question. Would there be will to fund detention centers in the U.S.? I would have to say, if you really push me on that, I would say there would not be the will to fund them in the U.S. would be my best guess. That's what I think. And I think it's just worth pointing out that as much as, I think it

is both reasonable and fair to dunk on the administration that is currently in power not solving the problem and the political party that doesn't have any particularly good ideas that would actually address this in the short term, that it's worth noting that the Republicans also have benefited from not solving this problem politically, I mean, and that when you come up with sort of reasonable ideas that would address the problem in the short term, unless it is perfect, meaning that, you know, no illegal immigrant ever comes into the country ever again, and we spend no money on them, that there's not political will on the right to do it either or to compromise, at least in my view, on any of that. And so the problem really, that's what

makes the problem so intractable is that it's not a one side only problem. Jonah, you seem thoughtful, intensive. Contemplative. No, it just, I mean, I agree with all that. But it, it strikes me that one of the dynamics here that is sort of a dog that's not barking is how bad Kamala Harris is at being vice president, because she was stuck with this portfolio. And I know she's like, like Homer Simpson fading into the hedges, kind of tried to move away

from it. but she had like her political advisors have to know that that won't work right like they still have the ads of her saying that she's going to deal with this thing and if she wants to be president one day she has this massive incentive to be seen as somehow effective on this stuff and so it seems to be like going to Mexico and promising them the moon you know like we'll put Texas on a 99-year lease for you and you can have it, you know, or whatever, but to get them to deal, to sort of revive some of the remaining Mexico Trump stuff, to just take this issue off the plate for a little while and chalk it up as a win for Kamala Harris, it seems so odd,

but she clearly does not have the clout within the administration to force Biden's hand on this. You know she doesn't have the clout within the administration because she got handed this portfolio in the first place. That's right. That's true. That is so true. Here's the portfolio of failure. Run with it.

But like she is, you know, I mean, like, if this were Lyndon Johnson, Lyndon Johnson would be driving JFK crazy dealing with the issue for his own political benefit, right? But like, we no longer live in an age where vice presidents have that kind of leash. and she just doesn't, you know, doesn't seem to have a handle on the job in a way that, and Biden doesn't seem to care about setting her up to replace them. So it's just so much dysfunction. Anyway, sorry. Not long ago, I saw someone go through a sudden loss,

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disturbing reports from Ukraine of not just civilian deaths, but specific civilian targeting mass graves, bodies left on the street where civilians, unarmed civilians' hands are bound when they're found dead, including one mayor's family, her and her husband and son all found dead with their hands bound. While we don't have the, you know, the documentation that we would need at this point certainly are heading down the path of being able to say that these are clear war crimes that would be prosecutable under international law. And David, hoping you can walk us through what about that is going to be practical? What about that is going to be difficult? And where we are in a post-Nuremberg world,

a post-Rawanda genocide world when it comes to war crimes. Yeah, so the very first thing you have to understand about war crimes prosecutions is there's this phrase called victor's justice, okay? And essentially what that means,

there's a sort of a negative connotation to that which sort of says, well, if I win the war, I get to prosecute you, regardless. But there is the, the operative word when you talk about Nuremberg is justice. But to impose justice, you had to be the victor. You had to seize Nazi Germany. You had to seize the leadership of Nazi Germany.

When it comes to the international criminal court and prosecuting, prosecuting war criminals in the Hague, you have to have the capacity to seize these people. You have to have the capacity to obtain literal jurisdiction over the individuals who've committed the crimes. And so, therefore, you you not only have to win the war, you often have to win so completely that you take into custody, the leaders or generals of the military that committed the crimes. That is something that we've become accustomed to in some ways in the years of the overwhelming military superiority of the West. So for going to intervene in the Balkans, for example, we're going to ultimately be able to obtain custody over individuals who committed war crimes in the Balkans. If we intervene elsewhere,

we're able to obtain custody. We saw Victor's justice imposed on Saddam Hussein in a pretty gruesome and graphic way. Where is the reasonable possibility of Victor's justice here, with the emphasis on the word justice? I think it is entirely, it is possible, though not likely, that you could have an overthrow of the Putin regime. But I think that is far more of a wish than a plan in any way, shape, or form. It is possible that you could have a Russian general fall into your hands as a prisoner of war. Again, that's more of a wish than a plan. But in the meantime, you can at least plan for the possibility of victor's justice. I think we should be drawing up war crime indictments. We should be documenting this meticulously. I'm glad you caveated

some of this air because we're always taking these real-time reports. You have to take them with a grain of salt. But as the days and weeks go by, the evidence is mounting and it's overwhelming that some or most of these war crimes accusations have a real merit to them. So we need to be drawing up indictments. We need to be preparing for the positive. that some of these individuals fall into the hands of Ukraine or, you know, the international community. But there is absolutely no guarantee that will happen. And not only is there no guarantee that will happen, it is unlikely that that will happen. So the ability to impose that victor's justice that we've become accustomed to since Nuremberg is unlikely.

Jonah, even though David is clearly right that you can't actually impose a sentence without seizing the person, if you will, holding a war crimes trial in abstentia for Vladimir Putin if they actually have the documentation and information would still send a powerful message to world leaders. This isn't some warlord that, you know, nobody's heard of. This would be one of a former, you know, G8 country leader that would be prosecuted and convicted, even without having Vladimir Putin there himself, even without being able to execute the sentence. Isn't that meaningful? Yeah, I mean, I'm fine with doing it when the time comes. I do think that starting that process now gives Putin all the more incentive to be even more barbaric and cruel because he, you know, I think he probably already thinks this is an existential struggle for him because there's rarely been a case in your Russian history where you didn't have some sort of really radical regime change after a military disaster.

And this is shaping up to be one. But still, if you start doing the war crime stuff prematurely, it could harden the entire regime to just stick with it to the bare end and say, well, I'm already, you know, I'm already an international pariah, and I can never leave the country again. I might as well win this thing. Otherwise, I'll lose power too. That said, you know, get the paper moving.

Um, yeah, start documenting all of this stuff. Get your ducks in a row. I got no problem with doing any of that. And I think we should be doing that. I do think there was probably a little trepidation, at least in some quarters of the U.S. government. You know, we didn't join the criminal, international criminal court. And, you know, um, because in other, and in normal times, it's very easy to see, uh, you know,

American officials being charged with war crimes unfairly given the state of anti-Americanism that, you know, crops up from time to time. And so I can see there being some reluctance to say, oh, are we setting up a situation that's going to bite us in the butt 10 years from now? But I doubt the people, the political appointees in the Biden administration see it that way. So they should do it. I got no problem with it. I have, you know, philosophically, I got no problem with hanging Nazis at the end of the Nuremberg trials, but as a sort of philosophical thing, I think there are problematic bits to the Nuremberg trials in terms of the whole Victor's justice thing, which for some reason, when David says it, it hits my ear like he's talking about like Victor Borgia or Victor Hugo, and he's just been exonerated from a murder trial, and it's Victor's justice.

But I would much rather see, to be brutally honest, I would much rather see the Russian people treat Putin the way the Italians treated Mussolini and hang them by his feet and be done with it. But I don't get a vote on that stuff. Can I say something real fast on the point that Jonah made on the application to the United States? In my previous life, I worked on a legal team.

that was defending the interests of the government of Israel and the International Criminal Court from really false and false allegations of war crimes in Israel's Gaza operations, especially in 2008. And there's a real danger. In fact, there were moves made in some European quarters to, for example, indict members of the Bush administration for the Iraq conflict. There is a, real concern out there that you could have that the expansion of international authority over the conduct of armed conflict by great powers or smaller powers like Israel is subject to abuse. However, you know, I think it's very clear in this circumstance that if international law means anything at all, if it has any meaning, any application, if there's any such thing

as a law of armed conflict at all. It has been violated here. It's been brutally violated. It's been violated as part of deliberate military strategy. And we can fight hard over American military tactics another day or Israeli military tactics another day. But I agree with Jonah. Get the papers drafted.

Start putting together the indictments right away. Okay. Well, then let me ask another question, which is that is a after. the fact solution that doesn't save a single civilian's life throughout this conflict. If we know this is happening, is there a world in which is it more civilians being targeted? Is it more evidence of civilians being targeted? Is it chemical weapons being deployed on civilians? Is there a point at which war crimes being committed and documented during the conflict

will create pressure on the United States or a coalition to do that. something during the conflict and not just wait, you know, draft the papers for after? I do think there's a line. I do think there's a line. We don't know what it is. Obviously, that hasn't been hit yet. But I do think there is a scale of attack on civilians that could become so great that there's an international outcry that would take the next escalatory risk. So I'm not going to say there is no line. Can I ask a different hypothetical question? Yeah.

It's different because, well, you'll see why it's different. If Rwanda happened today, would the United States go in this time in a way that like we say we regret not going into Rwanda in the 90s? If it happened again, would we go in? And everyone, I think we would. I honestly think we would because for a couple of reasons. one, it would be so much more documented immediately in real time than it was in the 1990s. You would see it all happening completely live, right in front of you. It would be impossible to avoid.

It would not feel distant. And I think we would. I think we would. I think that the timing of it was particularly unfortunate from the standpoint of American intervention. Because remember, we had just gone into Somalia. for purely humanitarian reasons. And that had gone badly. And so there was perhaps a particular reluctance.

Also, there was this sort of thought that Rwanda was much more sort of in the quote-unquote French sphere of influence. And France was sitting on its hands. And I think it would be different. I think it would be different today. Maybe I'm Pollyanna-ish, but I think it'd be different. You know, haven't forfend, I impugn. Lawyers in a podcast where I'm out number two to one by lawyers.

But there's a, you know, stipulated. I don't want us to get into the fight. I don't want World War III, global nuclear thermonuclear wars would ruin my year. You know, all that kind of stuff. Fine. But there's something weird about saying, okay, so if Putin goes next level with chemical weapons, weapons or even worse atrocities, that's when the lawyers are going to get mad. And it would be better, it seems to me, if we had laid down some markers saying,

hey, look, this won't be a NATO operation, but the Polish army is going in, and we're going to back it to the hilt. Because I think right now the Polish army could, like, straight up defeat the Russian army in Ukraine. And, you know, Poland doesn't have to do it as a NATO thing, but they want our, they would, they, they, they need our moral support, you know, our backing. And I, you know, if they start using chemical weapons on population centers, the idea that the threat is, okay, the gavels are coming down, baby, rather than, you know, the tanks are rolling, I think is a misplaced way to approach

this because Putin's a lot more afraid of a good military intervention than a good legal intervention. you hit on something that not enough people are talking about, Jonah, and that is we talk about Western military intervention in an all or nothing kind of context, and that we shouldn't do that. It is not the case that it is either Ukraine alone versus Russia or all of NATO plus Ukraine versus Russia. There is another course of action where you do have either a European nation, I think Poland alone, I can't imagine, but a coalition that included, say, Poland and some heavy armor from France and perhaps Britain, a purely European coalition would certainly have the conventional power to knock Russia right out of Ukraine. Now, would Putin permit that? Would he escalate with tactical nuclear weapons, according to Russian military? doctrine. That's the giant gamble. But the way to escalate, the logical next step of

escalation is a European operation, not necessarily in all or nothing, you know, sort of that overwhelming NATO intervention, which would present the kind of existential threat that Putin might then escalate all the way to sort of his escalate to terminate or escalate to de-escalate nuclear use. There's a lot of different branching possibilities, and you brought up one that not enough people are talking about, and that is the European option. All right, I want to end with a different crime that was committed this week and get your read on it. There was a fox on Capitol Hill, and it was aggressive Fox. This Fox bit nine people, including a Congresswoman, though I have to add, who amongst us hasn't at one time or another wanted to bite a member of Congress.

So after multiple reports, the fox was captured. And many of us knew all along exactly what was going on here. This was not a rabid fox. This was going to turn out to be a female fox who had her kids nearby, who was simply defending her babies like a proud mama would do. I would bite any number of Congress people to protect my brisket. So they captured the fox, but of course to test any animal for rabies, you have to euthanize the animal, so they did. And then they found the babies. So look, on the one hand, I guess the story

ends okay and that they did go back once they figured out it was a female fox and they found the babies. But, you know, animals raised in captivity, wild animals raised in captivity, don't have the same benefits. They don't have the same great life outcomes that animals raised by their real parents would have. They have sometimes some mating problems because they don't sort of understand how to interact with their own species on a sexual level. They can have hunting problems, of course, et cetera. And the more advanced the animal, the more difficult it becomes. So here's my question. I personally blame all nine people who were bitten for the death of this fox. If you can't not get bitten by a fox, first of all, how many of them were like bending down when the fox came up

to them was like, oh, a fox and then got bitten? I would like a report from each. of those people of why I should not hold them morally responsible for the motherless foxes that we now have at the Capitol. Is this a question? No, it's a rant. But I just need you to each tell me how right I am.

Well, I think you're leaving out the greatest moral horror here is that now that, sort of like Tarzan, right? Now these baby foxes are going to be raised as congressmen. And that is just an outrage.

It is an outrage. We don't need three extra members of Congress at this point. Although, Jonah, you do have your expanding Congress thesis. That's true. And in fact, and let's be clear, Congress would be a, ceaseman would be a lot cooler if you saw foxes making one-minute statements on the house floor. That would be really kind of awesome.

People would tune in more. David, do you agree that this is the moral outrage of our time? I agree that it's unfortunate and sad. But it also reminds me of how small a place in the social mediaverse Twitter is. Because all of a sudden, this Fox is everywhere on this social media platform. and you realize there is a disproportionate number of people in our business who spend their lives on this platform and they're all, or the 90% of them are located in about an 80 to 90 mile radius

of the same spot. Yes. So I in Tennessee know everything about a Fox in Washington, D.C., and that's ridiculous. I will also note that I am now judging who my true friends are by who texted me about the Fox to give me real-time updates in case I wasn't being, you know, able to follow along. So there's now two buckets of people in my life, the people who texted me about the Fox and the

people who didn't. And David, I'm sorry to say that while you are still my feminist ally, you are no longer. It's too late to text her now, dude. Too late. Nope, it's not. It's not. I still, I want to come back to the image of, like, Louis Gohmert approaching the brisket and just. And I would just bite him.

Sarah becoming sort of a sprinkler system of teeth. No problem. I would. Look, there's no question. Let's be realistic here. If I had no weapons and Louis Gomer, you know, grabs me and the brisket and he's got his, you know, is his forearm around our necks. Like, of course I would bite him, obviously. Um, not even a close call. So yeah, good, you know, the mother fox. I know you are no more,

but let this be your memorial service. You did not die in vain because at least you took out some flesh on the way and you protected your babies and they will be raised now into Congress people. And, um, and that is something. But I'm sorry. that compounding the misfortune. I know. I'm sorry that we couldn't have done better by you. I think it is a shame. Thank you listeners for joining

us for this special podcast. You'll notice that when Steve's gone, things get a little more fun. More fun. Nate is back and he is ready to go play with trains. And so with that, we will leave you. We'll see you next week.

All right. Well, you'll hear from us next week. And there will be a dispatch live on Tuesday. So we're back. We're doing dispatch live 8 p.m. Eastern for our members. You can become a member at the dispatch.com. You can also, as I said, join the comments section and give Jonah and David the what for. Obviously, you all agree with me and the Fox take. So thank you again. See you next week. Sorry, my cat just fell off the table. Oh, man, we got reset the sign.

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