The Dispatch Podcast - Principle vs. Prudence

Episode Date: September 23, 2020

Justice Ruth Bader Ginsburg's death on Friday immediately kickstarted a battle among conservative pundits and politicians over the prudence of pushing through a Supreme Court nominee before November 3. The first problem is that mail-in voting is already under way, meaning Republicans would technically be advancing a nominee during an election. Republicans have also been hypocrites about this in the past with their opposition to Merrick Garland’s hearing in 2016. Steve thinks we should push through a nominee, but David, Jonah, and Sarah are more sympathetic to arguments that Trump should nominate a justice and the Senate should wait to confirm until after the election, keeping in mind Democrats’ threats to throw out the filibuster, pack the court, and add Puerto Rico and D.C. to the union if Republicans have their way with Trump’s forthcoming nominee. David and Jonah propose a deal: If Trump wins, the Senate confirms his nominee; if Biden wins, he agrees not to pack the court. Others argue that confirming a justice during an election year is just politics, meaning whichever party is in power gets to do whatever it wants. But what about principled conservatism? “My main critique of philosophical pragmatism is we are now talking about basically saying power decides every question of principle,” Jonah says on today’s podcast. This puts Republicans and conservatives in a bind, he argues, “particularly because for the last give or take 5,000 years, one of the jobs of conservatives has been to make a distinction between things you can do and things you should do.” Tune in for a conversation about the forthcoming attacks on Amy Coney Barrett’s Catholic faith should she be Trump’s nominee, the upcoming presidential debate next week, and the New York Times’ eagerness to rewrite its own history surrounding the 1619 Project. Show Notes: -“As U.S. Supreme Court nomination looms, a religious community draws fresh interest” in Reuters, “Vote on President Trump’s Nomination, Senators—the Sooner the Better” by Matthew J. Franck in The Dispatch, and the New York Times’ 1619 Project. -Check out our The Dispatch30 day free trial of . Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the dispatch podcast. I'm your host, Sarah Isger, joined by Steve Hayes, David French, and Jonah Goldberg. This podcast is brought to you by The Dispatch. Visit the dispatch.com to see our full slate of newsletters and podcasts. And right now, you can sign up for 30 days free as a dispatch member. That means you get to get in the comments section and tell us the what for. And you get to join us right after the debate for special dispatch lives. after each debate, this Tuesday coming up, the 29th, we will all get together for a dispatch live for members to talk about what happened in the debate. So you can sign up for that free 30-day trial at the dispatch.com slash 30 days free. And try out a membership, see what you think. We'd love to have you.

A little later, we'll hear from our sponsors today, act in line podcast and express VPN. But first, obviously, we have to talk about the Supreme Court. We will also talk about some revisions to the 1619 project and a little debate preview. And with that, let's dive right in.

Steve, start us off on the Supreme Court. Well, As if 2020 didn't need more for people to fight about and more controversy, more means into our polarization, Ruth Bader Ginsburg passed away last Friday. There was immediately, and I mean, we had a text chain among the four of us that night, remarking upon how instantly, like within 20 minutes, the discussion moved from her legacy to what comes next to sort of everybody turning to their partisan corners. In the days since, there's been an interesting debate, I would say in particular on

the right about what the proper way to handle this vacancy is. You have the president and Mitch McConnell and at this point virtually all Senate Republicans saying full steam ahead. We must, the president must nominate a new Supreme Court justice. The Senate must vote on this new Supreme Court justice, and the Supreme Court justice must be seated. Democrats in response have made a number of threats openly from packing the court to removing the filibuster, ending the filibuster, including the legislative filibuster, adding states to the union, a number of, I would say, rather radical proposals.

And we have had some disagreement even here at the dispatch. David and Jonah, and I think to a lesser extent, Sarah, have urged Republicans to be cautious and to sort of lean into the possibility of a compromise in their writings. and I'll let each of them describe their arguments for themselves. I guess I'm more sympathetic to the case that you hear from most Republican senators that the president should go ahead and appoint a replacement for Justice Ginsburg, and Republicans should vote on this. The wrinkle, I think, or the challenge is Republicans and Democrats on all sides of this

and virtually all arguments have been hypocrites, again and again and again. And the problem, I think, for Republicans, at least in the immediate moment, is they made an argument strenuously in 2016 that Merrick Garland should not receive hearings, shouldn't be considered by the Senate, they were going to withhold their consent, and he would never be seated. And that's in fact what happened. Mitch McConnell made the argument at the time that voters should have a chance to weigh in on this. He further made the argument that because Republicans had the majority in the Senate and they were in charge, de facto in charge, they had no obligation to hold such a vote.

That argument, Lindsey Graham went further. Lindsey Graham said not only are we not going to vote on Merrick Garland, but if this comes up with a Republican president and a Republican Senate, we also should not hold such a vote and hold me to my words. He was rather dramatic, as Lindsay Graham often is. What's been interesting is to see Republicans in the Senate in particular, but also Republican partisans in the media, sort of shrug that hypocrisy off and say kind of too bad. I guess I'm troubled by the hypocrisy. I remain troubled by the hypocrisy. I think in retrospect, I take a different view of the decision not to hold hearings on Merrick Garland, not to proceed.

And I'm much more sympathetic to the arguments that Democrats were making at the time, particularly 10 months out. But I also don't think that Republicans should at this point fail to move forward on this nomination. Republicans have been campaigning for years explicitly. President Trump ran on this in 2016. Republicans ran on this as well. There was an entire group of Republican voters who backed the president because of his commitments to seat conservatives at the Supreme Court and elsewhere in the federal court system. So my view is they should move right ahead. They should acknowledge their hypocrisy and hold the hearings, hold the vote. Where am I wrong, Jonah?

Well, I mean, in this context, you mean, because it's a much longer conversation we're going to go through all the aspects of your wrongness. I think, well, I think the first thing that David and I would stipulate, but I won't speak for David beyond that, is that this is all now moot, right? When Romney came out and said that he would vote for the process to proceed and he would vote on the nominee, the possibility of making a deal didn't evaporate, but it became much more unlikely and it was already very. very unlikely. I think that among the core problems with the situation that we are now in is that, first of all, for Republicans to have now flatly said, and also all of the usual defenders of the Republican Party, including lots of friends of mine who I think are doing this for honorable and sincere reasons, they've all embraced, including my friends in commentary,

have embraced the position that politics ain't beanbag, as John Podoritz recently wrote, and if you can get away with something, you have every right to be able to get away with it. If that is now the argument that everything else and everything else is just posturing in politics, as Andy McCarthy says, then there is no principled argument against packing the courts, expanding the Senate, getting rid of the legislative filibuster, if we are as, you know, is my main critique of philosophical pragmatism is we are now talking about basically saying power decides every question of principle. And that is a really crappy place for Republicans and conservatives to find themselves in, particularly because the last give or take 5,000 years,

one of the jobs of conservatives has been to make a distinction between things you can do and things you should do. And we have just now seen them blow that up for all this. I completely sympathize with the desire to get another Supreme Court conservative justice on there. The thing that I think people also missed in the arguments that David and I put forth, but also George Will and Adam White, and a few other people, is that the deal wasn't to be between the Democrats and the Republicans. It was, at least in my mind, it was between four or six Democratic senators and four or six Republican senators whose political interests would be served in trying to find something

less chaotic and grotesque than what we were about to see. and the Democrat, I completely understand that the Democrats can't be, and I'm doing a lot of air quotes here for people who can't see, the Democrats, the Democrats as this entity are not, you know, can't be trusted. That's fine. But can Joe Manchin be trusted? And the thing is, as a matter of political self-interest, the Democrats who would say yes to signing such a deal, it would be in their interest to honor the deal. For the, for the Democrats whose interest, it would, wouldn't be served to honor the deal, it also wouldn't be in their interest to go along with the deal. And so a lot of this stuff about how you can't trust the Democrats misses how the actual power politics of gang of eight style things work. Moreover, it is amazing to me when I listen to Noah Rothman, who I have great admiration for, and plenty of other people who are making the same arguments, they start from the assumption that Republicans have done nothing to erode faith in the system, institutional norms, consensus, all these kinds of things.

And so we shouldn't appease the Democrats who are these radicals who want to blow up the system and do all of these terrible things. We should let them embrace their radicalism rather than negotiate with hostage takers, as if the rush towards hostage taking wasn't in large part created or at least fuel by the things that the Republicans have done, particularly Lindsay Grant, it is forthrightly coming out and saying, you should never credit anything

that comes out of my mouth ever again. And when you put that out there into American politics, you encourage the other side to say that, okay, you say now everything goes, we believe everything goes. That's not how our politics is supposed to work. and if it does reduce to just pure power politics, we're screwed.

And so the idea that somehow some Republican senators could go along and say, hey, wait, let's slow this down. And let's actually have a conversation about maybe, you know what, this isn't 43 days before, 42 days or 40 days before the election. Election day is right now. People are already voting. And in the abstract, nobody in Washington a year ago, if you had said, hey, would it be a good idea to hold confirmation hearings on

Ruth Ginsburg's seat in the middle of an election, literally in the middle of election, everyone would have said no. Everyone would have said, that's crazy. And just in the last 24 hours, Mike Pence and Donald Trump have gone right up to the line of stating outright and heavily insinuating that we've got to get this nominee on the court because we're going to contest the election, we're going to challenge all of these ballots, and we need a loyal vote to decide the election for us. that is not a message that conveys legitimacy upon the Supreme Court and on Donald Trump's

pick. This is a way to reduce even further faith and trust in institutions, and it's going to be a hot mess. And I understand that I'm this naive waif who believes that we can all hold our hands together and make this the best yearbook ever if we just try really hard. But I kind of think that we need to get out of this cycle. And the idea that everyone is just sort of crapping on me and David, as if we're like coming up with this crazy notion out of whole cloth is just really kind of bizarre to me. I have further notes, but I will, I will stand up. So, so I don't think you're naive. I definitely don't think you're a waif. And I, and I will concede several of your points. I think what we've seen from Lindsay Graham basically disqualifies him from making serious

arguments from being taken seriously forever thus. He's acted in such incredible bad faith throughout this process, having been... But wait, Steve, let me just, let me ask you one question on that, which is his argument is what has changed between 2016 and now, at least the only real thing in that time, is the Kavanaugh hearing. and that he felt that the Kavanaugh hearings relieved him of his duty to keep his word from 2016. So I just want you to address that as well. Sure. I was prepared to.

And also, I know the changes up for re-election. But the argument Lindsey Graham makes about the Kavanaugh hearings would be a lot more convincing if he hadn't made the same argument after the Kavanaugh hearings. Lindsay Graham made his case after the Kavanaugh hearings, said, hold me to this. I've established a new precedent. So there's no faking it for Lindsay Graham here. I wish listeners could see Sarah's face right now. It's like the actual emoji, like the grimace emoji. Yeah, it is.

I want to take a screenshot of that and upload it to Apple as the new grimace emoji. So I agree entirely with your arguments about Lindsay Graham. I don't think it's fair to lump Lindsey Graham and Mitch McConnell together. Mitch McConnell did make these distinctions. Now, Mitch McConnell also made arguments about putting this before the voters, about, you know, making sure that the next president has the selection, all of which are now inoperative, as, as David would say. But he did make the distinction. He said, you know, if it's a, if it's a Senate majority from one party and a president from the other party, it's fine not to proceed with this and it's okay to hold this through the election.

And if the majority party and the presidency are held by the same people in the same party, then you can proceed. So there's at least a philosophical through line to the argument that Mitch McConnell is making. The question I have for you, though, is on your compromise proposal. And I agree that this is sort of, you know, we've moved beyond it, it's water under the bridge, whatever cliche you want. But it's still, I think, interesting just as an examiner. of power politics and how people are thinking about this right now.

What you've described, this small group of Republicans and Democrats that might get together to hammer out some kind of a compromise sounds a bit like a gang. And we've been through this before with the gang of 14 in 2005 who made promises that were eight years later violated by Harry Reid. so i think it's it's a fair question to ask why would this gang be any different and um is there an expiration date is there a sunset on these kinds of promises and if there is what are the implications of that i'll david do you want to take your turn at this and then just otherwise yeah i think there's a a short answer to that question steve as i think that we're dealing with a

moment of extreme tension driven by a specific, not just by larger cultural forces, which are there and real, but also the extreme moment of the imminent presidential election followed by what would be the natural fallout in fury if the Democrats sweep in 2020, which is possible. It's not certain. It's possible. And the Republicans will have jammed someone in right before a Democratic sweep. there's going to be rage. There's going to be rage.

And there's going to be a, at that moment that you will have sort of, in my view, of a moment of maximum danger of poorly thought through disruptive changes to American politics. And so I think that what we're not talking, what we're talking about here is a deal to get us through, in many ways, I don't want to use the word crisis point, but real tension point in American politics that gets us through for the foreseeable future. And we can worry about eight years from now, eight years from now. But we've got a real issue right now.

And, you know, I endorse. That rage exists on the other side, too. I mean, look, if Donald Trump, if Mitch McConnell's primary cause as Senate majority leader has been, I would say, two things, shifting the federal judiciary to the right with particularly close eye on the Supreme Court and maintaining power. Donald Trump, as I said, campaigned on moving the court to the right. He put out a list in advance. He made a big argument about it. If they just walk away and say, you know what, we don't want to do this now, even though we could, won't there be rage among the conservative base, the president's supporters?

Oh, sure. I mean, look, there's rage amongst the president's base no matter what. But what I would submit is you create a real risk that a lot of what has been the legacy of Mitch McConnell's Senate career, and especially the last several years, which is this revamping in the federal judiciary, perversely enough, could be undone by this very active defiance. So let's even put aside for a moment the possibility of Supreme Court packing. The Democrats could pack the lower courts. there is nothing that says that this lower court structure, the Article III courts at the circuit court level and the district court level

where the vast majority of the work of the federal courts is done, that it would create nearly the kind of detonation in American politics as you would see from the Supreme Court, but could be in many ways undo the vast bulk of Mitch McConnell's legacy. So it's the kind of thing where I feel like you can blunder into and defiantly blunder into creating the kind of circumstance that actually ends up on doing the legacy

because if you just cut it off right now, if you said, you know, 41, 42 days before the election, no more nominations and confirmations, the legacy is strong for McConnell on this. It's very, very strong. And there's this old saying that I've used in our advisory opinions podcast.

Notice how I always get that plug in there. That there's an old saying that we Southern Trials, lawyers have. Pigs get fat, hogs get slaughtered. And that often when you try to push and push and push and get more and more and more, what you end up having is less. And, you know, one of the things to go back to what Jonah said, and to amplify on some of the stuff that Jonah said about principle versus prudence, the funny thing is even the people who are kind of mocking the idea that you would even try to uphold

or try to hold Republican senators to their actual words like that you're going to make that argument what a rube can't quit the norms argument themselves so that what they end up then saying is okay this norms blah blah blah politics isn't beanbag

but adding states adding states that is not prudent and what's weird about it is it's like Nobody thinks anybody has Google anymore. So let me just read the 2016 Republican Party platform. Okay. We support the right of the United States citizens of Puerto Rico

to be admitted to the union as a fully sovereign state. We further recognize the huge historic significance of the 2012 local referendum, which 54% majority voted in Puerto Rico's current status as a territory, and 61% chose statehood over options for sovereign nationhood. So, yeah, it's totally insane to think that adding states is within norms

unless it's the 2016 Republican Party platform. And then when you talk about norms, 1959 we added states. 1959. Okay. I have a question for you and Jonah. Maybe this goes to Jonah about this. So here's the next hypothetical for you.

Democrats take back the Senate. They win five votes, let's say. And I don't think it's crazy that that could happen and Trump could win re-election still. So they follow your model and at least postpone the seat until after the election. You know, Mark Kelly is seated on December 1st.

And so there is no Republican majority to confirm his nominee. Democrats then are in the majority after January. A, do you think that your compromise would hold? And B, do you think that any judges would get confirmed for four years or any political appointees would get confirmed for four years, i.e., is the damage already done,

simply by Republicans, by Republican senators showing their willingness to do something like this, does your compromise even work in theory if they flipped the switch tomorrow? No, I think that's a totally fair question. And I want to be clear,

I'm not saying that Republicans started this. I think you could say that the, I know how much you love Latin, Sarah, the Fons et origio of this, you could trace back to Harry Reid's decision to do the nuclear option on appellate judges. And then you get this tit-for-tat cycle. And that's one of the things I'm trying to figure out how to do is short-circuited. I think the Mark Kelly thing is something that I hadn't fully factored into the possibility of this.

And you'd have to figure out the contours of a deal that took into account of that. Because I do think that, first of all, Trump could, not counting the fact that Mark, for listeners who don't know, Mark Kelly gets seated if he wins. on the special runoff thing. He gets seated before all the other Democrats do. So it blows up the ratios in the Senate. But I could see if the Republicans could cobble together the votes, maybe, you know, give Joe Manchin, put the Treasury building in West Virginia too, right, whatever it takes to get Joe Manchin to vote for it. Figure that out. If Trump wanted to do it in a lame duck session, I think he could get away with doing it. I think those senators would

get away with doing that. It would make everybody very, very angry. But I think that's I think, though, the feasibility of the idea depends on, first and foremost, senators actually thinking it's in their interest to pursue such an idea. And my proposing this is just simply say, hey, look, the world doesn't have to be like this. There used to be senators who said, gosh, we don't want to go down that path. there used to be senators in 2016 who said we shouldn't do something like this draw pull back from the brink and figure out something use your power the way you're supposed to don't act like your members your backbenchers in a parliamentary system actually use your power and your leverage to do the things that you think are best for the

country and very few people seem particularly interested to do that i will say um i find it funny some of the people who are blown up at at the whole conceit of this idea part of the argument is, and it's a little unfair to pick on Noah Rothman because I think he's rightly skeptical about things like the Green New Deal and socialism too, but there are a lot of people out there who are simultaneously saying, you shouldn't try to forestall court packing or state adding or the legislative filibuster because the Democrats can't get that stuff done anyway. And so why are you like wasting political capital on something to prevent? something that they can't do, it would be a distraction. And many of these people are also the same people are saying, if Donald Trump doesn't win or if the Democrats take back the Senate, we get socialism. You can't have it both ways. If it's really difficult to put together, to add states to the union or get rid of the

legislative filibuster or court pack because of all the structural issues in the American resistance towards radicalism, you can't then on Tuesday say, oh, but by the way, you know, you're going to be drinking your own urine under the Green New Deal because they're going to make America socialist. Either the Democrats don't have power to do anything or they have power to do a lot of things. And I think it's not, but but it's to be fair to them. It's, it's not the case. I mean, we're already seeing some of this erosion, right? I mean, Joe Biden had had earlier flatly in an unqualified way rejected packing the court and is now keeping his options open. Kamala Harris has embraced, has said she would.

No, what I'm saying is they've already made clear that they're willing to do that. So we've seen this. There's open discussion about this norm breaking from the left. And I would say if you look at the history there, conceding all of the points about Republicans being sort of Olympian hypocrites in this moment in some respects, look, you don't want to rely on

And I'm not suggesting your argument or your case or your compromises entirely relying on the good faith of Democrats for the reasons that you've suggested. But going beyond that, there's no reason to believe that there will be good faith from Democrats in the context of judicial nominations. When you go back and you look at Bork and Clarence Thomas and, I would argue, Ginsburg and Estrada and certainly Kavanaugh, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the. casting aside of the gang of 14 compromises. I mean, there's a pretty clear history here of Democrats politicizing the hell out of these processes. Not to mention not seeing Bush nominees early in the Bush administration. I mean, there's a history here. You mentioned Miguel Estrada. I think that's worth just underlining for listeners as well, because, you know, Jonah, you mentioned Harry Reid blowing up the filibuster for lower courts, but what preceded

that was these, you know, very well-qualified nominees during the Bush years, including Miguel Estrada, who was, you know, this incredibly talented, is an incredibly talented lawyer and Hispanic, obviously, who they would not give a vote. And that just created so much ill will and anger. And, but, but I think what's relevant there is that, so they wouldn't give a bunch of these guys a vote. Some of them then, though, did get a vote. Like, Priscilla Owen didn't get a vote for a long, long time, but then she did. So then when you moved to the Obama years, and then the Republicans are like, now, nobody gets a vote. And then Harry Reid blows up the filibuster. So it, like, has been this incremental, we're going to block

most of your nominees, but not all of your nominees. Well, we're now going to block all of your nominees. Well, now we're going to blow up the filibuster. And so, and I think that is a slightly, there's like that line, which is slightly different than the, how the confirmation hearings themselves have gotten more aggressive as well. You could almost like, I think they, they parallel each other in getting more and more aggressive, but I think there are actually two different lines that are maybe converging right now. Well, and as somebody said in a newsletter published last night, the only rule of the Scotus Wars is escalate. Like, that's the only rule. And I, you know, I have one point of, one problem with this, the way a lot of conservatives are looking at this pattern

of escalation. And what I'm seeing a lot online in particular is a lot of conservatives have put on these blinders. And listeners, I've got my hands around my head showing I have blinders on, putting on these blinders saying, we're only going to look at SCOTUS nominations and decide who's been more evil. And when we have a president who one of the reasons people have told us that he was elected was as sort of like this reprisal against the mistreatments and depredate and, you know, the predations of the Democrats in things like Scotus Wars. And so, yeah, I totally agree that Brett Kavanaugh was mistreated in his, in his confirmation hearing, especially that unbelievable Michael Avinati and, you know, produced gang rape

allegation, just so far beyond the pale. But I also have eyes, and I've seen like a president of the United States attacking, brutally attacking a gold star family. Like, so when you're sitting here going, who's the evil party here in American politics, I see an awful lot of people who sort of, you know, reveled in the norm busting of this president going, all of a sudden, now we're going to narrow,

now we're going to narrow the focus onto judicial confirmations only. Don't talk to me about any injustice outside of judicial confirmations. This is the area where, area where we have the moral high ground and we're going to hold on to that moral high ground. And my view on that is, y'all, that ship sailed a long time ago for the GIP. So I don't, I guess I don't, I don't claim that Republicans have any particular moral high ground. I mean, as a matter of history, as you suggest. I do think that that the aggressiveness has been more one-sided than your history.

history suggests. But I don't think, look, I mean, a lot of the people who are, who are pushing back against the idea of this kind of a compromise are people who have been vocally and outspokenly critical of the president and his aggressiveness as well. So, I mean, certainly for me, speaking only for myself, this is, this is not at all a partisan issue. I just don't care that much about the Republican Party and gains for the Republican Party. I just, I just think that there's a, there is a philosophical through line that Mitch McConnell articulated, that is, I think, complicated tremendously by the rank hypocrisy from Republicans and from everybody, but that he can, I think, convincingly argue that goes through.

Sarah, I want to ask you a question on the prospect of hearings. We had a piece of the dispatch from Matthew Frank, from Prince. Winston, making the case that, look, even if you thought this idea of a compromise was wise and prudent, there's still the practical matter of putting somebody like Amy Coney-Barritt through what is certain to be a brutal hearing. We're already seeing hints of this, and David's going to talk about this in greater detail in a moment. But I mean, is it even feasible to think that she would sit through hearings starting potentially soon and then at the end of the election, if Donald Trump is not elected, have her nomination withdrawn. I mean, would

anybody volunteer to do that? I mean, I guess if your life's ambition is to be on the Supreme Court, maybe it's worth the chance. But it seems to me that that's a pretty serious consideration. So it's funny that we were just talking about Miguel Estrada because in 2017, he was asked whether he would consider being the next U.S. Solicitor General. And he gave this statement, I would never accept a job that requires Senate confirmation or, for that matter, willingly place myself in any situation, e.g. a hearing room in which convention requires that I be civil to Chuck Schumer. and that was after a lower court hearing where it didn't go anywhere, Steve. So, you know, whether Judge Coney Barrett, whatever she thinks this process is going to be like

and feel like, she's probably underestimating it is the truth. And I think Miguel Estrada would, his visceral emotion in that statement, you know, 10 years later, kind of tells you everything you need to know about just how brutal this is. And again, that was 10 plus years ago. So imagine now. And imagine

with the Supreme Court hotlights. That being said, I think the political set aside the norms and all the wafery and clutched pearls of Jonah and David. But seriously, the political... I love it.

He's a vanilla wafer. the political angle here of not having the vote afterwards. There's a real argument for that as well that is not wafery. And that is that you hold the hearings and you get all of the right-leaning voters to name the lobster, so to speak. Or, you know, to borrow another metaphor, you bring the puppy home to the kids and then tell them that mommy says you have to take the puppy. be back. And that's what the hearing does. It lets them get to know her fall in love with Amy Coney Barrett and all the wonderfulness that she is, watch the Democrats be so mean to her and root for her, and then say, oh, but you don't get her unless you vote for Donald Trump.

So I think there was a political argument for that. I don't know that anyone would voluntarily put themselves through that, except I think that's exactly what Merrick Garland did. Now, mind you, he didn't have a hearing, but I think he had a pretty good notion that he wasn't going to get confirmed to the Supreme Court as he sat in the Rose Garden accepting the nomination from Barack Obama. And so he knew that whatever was going to happen over the following six plus months was going to be unpleasant in some variety, and he accepted that anyway. On the other hand, I have to say, I mean, and this is one of these areas where I don't think that the, that the, uh, the partisan actions have been symmetrical.

Republicans generally have not gone as far as Democrats have in the past 30 years in savaging prospective nominees. I mean, Ruth Bader Ginsburg was was, was, was, but that's not because they're nicer. That's because it wouldn't work, right? Whatever the reason I'm just saying Merrick Garland by stepping forward wouldn't be taking anywhere near the same chance that Amy Coney Barrett would, be taking if she's in fact the nominee. I mean, look at Brett Kavanaugh. Ruth Bader Ginsburg was confirmed 96 to 3. Sonia Sotomayor, who I think had a lot of things that Republicans could have

potentially gone after. They stuck to her record. They didn't try to tarnish her or certainly didn't launch the kinds of unsupported accusations that we saw, that we've seen sort of repeatedly in the case Republican nominees. Let's take a quick break and hear from our sponsor, Acton Line podcast. Acton Line is the flagship podcast of the Acton Institute for the Study of Religion and Liberty dedicated to the promotion of a free and virtuous society, characterized by individual liberty and sustained by religious principles. With episodes released every Wednesday, Acton Line brings together writers, economists, religious leaders, thinkers, journalists, newsmakers, and more in conversations that bridge the gap between good intentions and sound economic.

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why don't we talk about some of what Amy Coney-Barritt will be facing in a hearing? Yeah, so it's, I guess, likely, maybe. There's some reporting in Politico that there's some dispute in Trump world over who is going to be the nominee, but Amy Coney-Barritt seems to be the front-runner. And Amy Coney-Barrant, for those who don't remember,

it became something of a kind of as close as you can come to being a folk hero on the right as a judge, as a circuit court judge, which means maybe a folk hero to 87 people on Twitter, but still a something of a folk hero when there was a direct attack

on her faith during the nomination hearing, her nomination hearing for Seventh Circuit when Dianne Feinstein said famously, the dogma lives loudly within you. Sort of one of the ways to tell if someone's a true, conservative legal nerd is do they have the dogma lives loudly with within you coffee

mugs somewhere in their house and this sort of set up Amy Coney Barrett for a very specific attack that there's something sort of weird and spooky about the intensity of her Catholicism and and so a lot of people were kind of expecting if she was going to be nominated that there would be folks who would step forward and really attack her on faith-based grounds. And I was hoping not, but already there's beginning to be some evidence that, yeah, there are going to be some outlets that are going to attack her, and they're going to attack her on some pretty gross grounds.

So yesterday, Newsweek, which is not the Newsweek of old, but it's still Newsweek, ran a story essentially that began, that initially, claimed that a Catholic charismatic group that Judge Barrett's a part of or had been a part of called People of Praise was the inspiration for the dystopian novel The Handmaid's Tale until you scroll down and there was a correction. The article's headline originally stated that People of Praise inspired the Handmaid's Tale. The book's author Margaret Atwood has never specifically mentioned the group as being in the inspiration. A New Yorker profile of the author mentioned a different group. People of Hope. Newsweek regrets the error. Oh, really? But then we have, what, two more articles talking about from Reuters and Yahoo talking about Amy Coney-Berry. The Reuters headline was Handmaid's Tale question mark? That was clever. No, the best thing about the Reuters thing, just to interrupt for a second. The cliche and bad journalism is some say X, some say Y, right? And usually it's, they're supposed to be in opposition and in the best thing.

of times, like, actually represent the pro and con views of something, but this was, some say she belongs to a group that was, that, that is synonymous with the, you know, this dystopian novel, The Handmaid's Tale. Others say she's just merely associated with a real world group that's super creepy. I mean, it was like, there was no, like, pro-con. It was just, like, worse, and worse. Yeah. Oh, I love the last line in this Yahoo story, or last paragraph in Yahoo. We know a lot of people who've jokingly said that if Trump gets elected or in this case,

reelected, that the alternate reality of the Handmaid's Tale will become real, which, parenthetical, by the way, involved conscripting women into sex slavery. But anyway, I continue. While we are still optimistic that it will remain the fiction of books and television, Barrett's potential nomination to the Supreme Court is concerning. What? And then I love this headline. This is Amy Coney-Brett, the potential RBG replacement who hates your uterus.

Look. David, will you, for those of us who are not familiar, just sing me a few bars of what charismatic Catholicism is? Because I actually do not know. I thought you were going to ask him to explain a uterus. For those not familiar, David, would you please? I was getting nervous about where that question was going. So briefly, charismatic essentially refers to the belief in the continued operation of the gifts of the spirit as outlined in the New Testament.

So gifts of prophecy, gifts of tongues. This is, and the Catholicism means it's a charismatic movement within Catholicism. Most of the charismatic movement in American Christianity is in the Protestant world through Pentecostal denominations or Pentecostal congregations, but there is a charismatic movement that exists in all kinds of Christian churches, not just specifically Pentecostal, including some in Catholicism. And so there are people who would identify themselves as Catholics who operate in these gifts of the Spirit. And for those who are not familiar and think, huh, that sounds odd millions of i mean millions of americans are in charismatic congregations and in fact charismatic

slash pentecostal christianity is the fastest growing branch of christianity and sort of the dominant branch of christianity in the developing world out dominant branch of protestant christianity in the developing world so that's the short answer okay then uh i have a question for you steve Politically, let's assume Democrats sort of follow the Yahoo Newsweek lead here, although I think there's some discussion among the Democrats, whether that's, you know, whether they're going to do that. But politically, what does that accomplish? Yeah, I mean, it's a very good question. I don't think, I think they're taking major risks if they do this. Their objective, no matter what happens, if Amy Coney Barrett is, is the president's nominee, if Barbara, Lagoa is the president's nominee. They're going to try to make the nominee look as if she were an extremist way out of the mainstream. Pick, pick whatever, pick whatever category, but that's going to be the goal. We've seen this again and again and again. They even tried to do it with Neil Gorsuch. They try to do it with Samuel Alito. They've tried to do it with virtually

every conservative nominee to the court in the past 30 years, they'll do the same thing again. I think there's real risk there for the reasons that you suggested just moments ago, Sarah. I mean, Amy Coney Barrett, by all accounts, is highly intelligent, deeply informed in the law, and very personable. I think it will be difficult for them to portray her as some kind of, of kook and if they try and fail it will make her much more sympathetic and make them look like they are the ones who are politicizing this nomination it's not hard to imagine that this having a boomerang effect on the democrats the one the one place where democrats have an advantage potentially and always have an advantage is with the media i mean they have

sort of built-in amplifiers and reporters as evidenced by the examples that David just gave, not only willing but eager to help them make their case and to broadcast it. And, you know, the double standards are pretty remarkable. I got a note from a friend after I made a comment about the Reuters piece. Just my comment was basically if there's a reason that so many conservatives have been primed to accept Donald Trump's repugnant inappropriate attacks on the media. And it's because of stuff like the crap that we've seen from Reuters. And a friend of me, a friend of mine sent me a note and said, if Judge Barrett belonged to praise for Sharia, Reuters would be saying anyone who criticized

Islam should be arrested. And while that may not be literally true, the point is I think pretty well taken. But in this case, you have a media class that I think is prepared generally. I mean, you know, we're speaking in generalizations here to amplify those attacks, just as we saw, I mean, the willingness of established, longstanding, generally respected media organizations to throw out their long practiced rules to enable attacks on Brett Kavanaugh, has been well documented. I mean, the, the, the, the, the, the, the, the, the, the, the, the, the, the rules of evidence to include something in a piece, it, it all went out the window in service of these partisan

attacks. And I think we're likely to see the same thing again. I do think there's a, there's a pretty strong potential for a boomerang effect. If, if Amy Coney Barrett is the nominee, if she presents as well as, um, she has in the past, and I think most people who know her well would expect her to. Jonah, I have another question for you, actually, similar, shorter. What if they don't use her religion qua religion a la Newsweek in Yahoo? What if they just make this about abortion?

Does that help Joe Biden? I don't know. I mean, I think it's a good question. You know, historically, and you know this better than I do, is that voting for the Supreme Court is a bigger issue, more Republicans, more conservatives vote, a single issue of voters. on Supreme Court and on abortion than Democrats do. Historically. The rule is that social issues are great for Democratic fundraising and great for Republican voting. You hear very smart people saying that this could be the exception to the rule, that lots of people are going to be, lots of women are going to be energized by all of this.

um i just don't know that if you make it purely about abortion uh it it it works among the voters i don't know i i just i honestly i just don't know i mean and you always have to enter into the equation that donald trump is not the most nuanced messenger on issues like this and um that could complicate things more. So I don't know. Certainly I think it's utterly plausible. It would be interesting to see more polling data if that this could be the exception to the rule and that women are galvanized because of the abortion issue and also the just the general iconic status that Ginsburg had. All right, David, you get the last word on your topic.

Yeah, you know, I think one of the things that exacerbates the potential for some really gross, just some really gross commentary. about Amy Coney Barrett's religion is the fact that there is a religion knowledge gap amongst mainstream media reporters. I mean, some of the lowest quality, there are some excellent religion reporters out there. There are. And I read them regularly. They do really good work.

But as a general rule, there is a big time knowledge gap. And so what ends up happening is people are then susceptible to outlandish theories and outlandish arguments about religious people, people who have real genuine faith. And so I think that there's a vulnerability here that some, and I think maybe the word is a gullibility here about some people and when they're going to hear arguments about Amy Coney-Barrant. And then the other thing is, and can we not just recognize the dignity and humanity of these judicial nominees? And by all accounts agree or disagree with her judicial philosophy. Amy Coney-Barritt is just a without fail from people I know that know her. I'm sure Sarah knows her well. But without from people who know her,

she's a genuinely lovely person. And she's got seven kids, two adopted from Haiti, one special needs. In a normal world, well, maybe in a better world, let me just say, because the new normal is pretty awful, but in a better world, we could admire her and agree or disagree with her judicial philosophy, admire her as a human being and agree or disagree with the prudence of the nomination. And I know it's naive to throw that out there, but if we don't at least have an aspiration to something better, we won't get there. All right, rant over. Quick break to hear from our sponsor ExpressVPN. When you use the bathroom, you always close the door behind you, right? So you don't want random passers-by looking in on you. So why would you let people

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Jonah, we're giving short shrift to our two topics, but why don't you say your piece on 1619? Sure, I'll do it very quickly because there's, there's, there's still some shoes that need to drop on the thing anyway. For those who don't know, well, if you don't know, you're not listening to this podcast because only truly informed people listen. The New York Times had this thing called the 1619 project, which tried to recast the narrative of American history on the 400th anniversary of slaves first coming to the United States,

as if that were, in the words of its primary author, the true founding of the United States of America. and lots of serious historians, many of them progressives and liberals, have poked many, many, many, many holes in the historical narrative that they laid out. It doesn't mean that there wasn't important and good stuff in there. There was some useful things in there. But on the whole, the story, the emphasis on slavery being central to the American founding as one of the primary reasons that we fought the Revolutionary War was to protect slavery,

which is nonsense. I think it was deeply flawed and kind of pernicious and fed into a lot of BLM, identity politics stuff. Shockingly, to everybody here, the Pulitzer Committee disagreed and they gave them a Pulitzer for it. And it was all part of a project to get this thing into schools. All right, so that's the background. In recent weeks or months, it's still unkind of clear. The New York Times has gone into its web archive and edited its piece and pulled out the phrase true founding and other things like that from the text. Moreover, the primary author, the lead reporter on the thing, Hannah, was it Hannah Nicole Jones? She has deleted her entire Twitter history, which many people

have screen grabs of, where she had said many, many times, including in like her bio page, where she had at a graphic crossing out 1776 and replacing it with 1619, she now says she never said it, never called it the true founding. She says that this is all part of a propaganda campaign from the right and part of this new patriotic education stuff that's coming out of the Trump administration

and that the New York Times never suggested ever once, ever, that they were saying that 1619 was the true founding of the United States. And even if you saw with your lying eyes, the Super Bowl ad or the Oscars ad, basically said that you should believe them now. And I think it's fascinating. I think there are two issues here. One, well, there are a bunch of here.

One is what, what is the politics of all this? Why are they deciding to do this? It sounds like it has something to do with not wanting to hurt Democrats and not wanting to lend fuel to the 1776 project, the Trump administration is behind. But there's also just a journalistic problem. The New York Times won a Pulitzer for this freaking thing. It was very proud of it.

And it went in and bolderized its own copy without an explanation, a clarification, a correction, a notice of any kind, which I just, I think all of us here who have any experience with, you know, online journalism, which is to say basically journalism now, you're not supposed to do that. I mean, it's one thing to fix a typo. It's another thing to profoundly alter the central thrust of one of the most radical journalistic projects in our lifetimes that was intended to infiltrate American school curriculum at every level and then quietly without even saying never mind removing the central thesis from it i think it's kind of a big deal and it's kind of fascinating that they're getting away with it and the usual

liberal media critics have nothing to say about anyone else thoughts feelings does this get resolved do we hear from the new york times just to add this was the assertion that made the 1619 project the topic of a national conversation for week after week after week after week if the 1619 project had come out and said we have not paid sufficient attention to what happened in 1619

I think all but cranks would say you're right we have not paid sufficient attention to what happened in 1619 when you then say it's the true founding of the country you take it as spinal tap would say to 11 and that

was the core of the debate. I mean, just as recently as, you know, last week I'm writing that those history of American, American history is really the battle of 1619 versus 1776. It's not that 1619 was the founding. And then to have this stealth edit, I mean, okay, at that point, I'm just insert everything Jonah said. Yeah, I mean, we won't get much disagreement on this. I'm afraid because I agree entirely with what both Joan and David said, and I'll just punctuate those points by directing people to Jerry Beer, who's a frequent dispatch contributor, who's done a lot of dogged work looking in great detail at the way that the New York Times characterized its own work on this question and the way that the Times framed the issue.

And he dug up a conference at which the lead author, this is in advance of the publication of the piece, five days before the piece was published, promoted the piece at a New York Times conference in front of a massive screen, probably two stories high, that had two years, 1776 and immediately below it, 1619, 1776 was crossed out. Of course that's what this meant. That's the entire point of the project. That was, that's in effect, it's central thesis. And as, as Jonas suggests, that's why it triggered the national debate that it did. I think if, if the Times had instead decided to frame the argument as, as we really ought to be more inclusive as we look back at our history and here are some important things that happened before 1776. Well, as David suggests, nobody's going to object. to that. It was precisely this framing that raised the profile of the piece, generated or provoked this national conversation, and I think, in large part, is responsible for helping it win the Pulitzer. I remain just very confused. I really hope the New York Times clarifies this, because to all of your points, like, yes, and that's what I thought this whole time, but yet maybe I'm yeah I don't understand

I want to hear their explanation of what's going on because this seems this seems like the actual definition of gas lighting because I feel like I knew what this was about and now I'm being told it wasn't about that and I sit here quite confused

okay before our next podcast there will be the first presidential debate and you know in my imagination that the podcast before the first presidential debate would have of course all about the presidential debate. And then, of course, we're in 2020.

So it wasn't at all. Your, how does Donald Trump win the presidential debate in, you know, 30 seconds? That's impossible for you. All right. Let's make it one minute. David. I think he wins the presidential debate by bullying Joe Biden into, where, into a where Joe Biden's temper emerges and the dog face pony soldier side of Joe Biden or I can

outdo you on push-up side of Joe Biden comes out. I think that is I think that that is the situation where he breaks that sort of decorum in conviction that he's maintained through much of this race where he's the he's the guy who's going to be serious. He's the guy who's going to bring empathy. But he also has a temper and he has pride. And I think there's a possibility Trump bullies him into one of those sort of moments of anger and incoherence. And that would be very bad for Biden. Steve? I would say in a word restraint. So I'm not betting on this. Look, I think it's going to be tempting for Donald Trump to jump on any verbal hiccup that Joe Biden has. If he pauses, if he stumbles over his words, if he wanders down the kind of verbal cul-de-saxes that he often does

without knowing what he's doing there, I think Trump's inclination will be to jump on it in the moment and highlight it and point it out when he doesn't need to. He should let it go. He should if you maybe cast a curious look over there, or maybe make a passing remark that that really didn't make a ton of sense. But he shouldn't go all in on it. And I suspect that he probably will if that happens. So the question is, how can one or the other one win? Well, if Donald Trump is pronounced the winner of the debate afterwards,

how did he win it? by T.K.O. because Joe Biden is escorted off on a stretcher somehow? No, I don't know. I think that the way that Trump can win that debate is, I think Steve's right, is mostly by restraint, is by not giving the Biden team what it wants. I am very skeptical that he can do that. But we shall see. My prediction about this is just that both of them are going to say so many untrue things that the spectacularliness, the incandescent glory of the hypocrisy on both sides,

as each side points out everything that the other guy got wrong and is utterly oblivious and unconcerned about the stuff that their own guy got wrong is going to be just, they should have sent a poet. I mean, it'll just be, it'll be an amazing thing to see. All right. And last question, what does it look like

to watch a debate with David French? It means looking at somebody who's got a pained expression on his face a lot. You know, I used, it's totally changed for me.

I used to kind of approach politics with this. Oh, this is great. This is what I, you know, I had this sort of joy as I approached politics and couldn't wait for these debates. And that's changed a lot, sadly. I am actually kind of sad to watch it, to be honest. And I usually... Are you going to watch with snacks?

Chicky nuggies? Chiquid duggies. Someone's got a baby at home. Oh, my goodness. No, I don't, I, you know, I take some notes, actually, and then kind of scroll through Twitter. I mean, it's super boring, Sarah. I'm, like, not enjoying it. I'm scrolling through Twitter and I'm taking notes.

And usually Nancy is not there with me because she doesn't like it anymore either. So there you have it. All right. Steve? Yeah, as a general rule, I do sort of the same thing David does, which is kind of boring. I've got my computer open. I'm usually watching it alone. Sometimes my wife will watch it with me, and I'm taking notes. I have in the most recent set of debates, actually this I think goes back to 2016.

I've been at a lot of the debate sites to watch the debate. So in that case, you're there. You're in the room. You're talking to the people who are telling you that their candidate crushed the other candidate no matter how poorly their candidate actually did and you go into the spin rooms and it's just total chaos and you can occasionally elicit interesting answers despite the fact that they're I mean it's literally called the spin room they're all there to spin but when I don't go I generally sit at home with my laptop take notes and I used to watch with Twitter on and sort of provide

running commentary and observations. And the last few times I've watched debates, I've done it with Twitter off on purpose so that I'm not out there providing hot takes and that I'm not having my view of what's happening, the debate, shaped by what I'm reading on Twitter. So it's sort of a straight, this is how I see it, regardless. And sometimes that, you know,

sometimes I'm sort of where other people are, and sometimes I'm way, way off from where conventional wisdom is at the end of these debates. Jonah. So my major complaint about, I know I'm the co-founder of the dispatch and I got to do what's best for the corporation. But you are the corporation. Corporations are people too, Jonah.

That's true. That's true. But my great complaint about this is that we are going to do a, what some people call an emergency podcast right after the debates, and that means I cannot do it the way I normally would, which is with a lot of Irish whiskey. And so this is going to be something of a, I want to say, new experience for me, because I've had to do debate stuff on site at various places before, and you know, you don't drink before you do professional things. But doing it from home sober, it's, I don't look forward to that. And I think that the, you know, I think that the, I think Steve's way of doing it of not being on Twitter makes a lot of sense. I don't know

that I'm as good a man in this regard as Steve because I find the things so unbelievably frustrating and I have such ADHD about this stuff that I need to be occupied because otherwise I just scream at the TV a lot. Yeah, I, you're right. You know, we're going to be talking about the debate right afterward, and that probably will change my debate. It's like a Heisenberg principle of debate watching. So, but yeah, my least favorite thing is to watch a debate with other people because, and it's everything I can do not to scroll through Twitter, and I can't promise I'm not going to scroll through Twitter during the debate. I just, that's, that feels like a well, this will be an interesting, this will be an interesting thing for our post debate discussion

And then I will commit to you today that I will stay off Twitter during the debate. Okay. And so whatever thoughts I have will be mine alone for better and probably for worse. Interesting. All right. Well, if you are a member of the dispatch, please join us right after the debate on the 29th. We will hear Steve's non-twitrified thoughts. And if you're not a member, you can join as part of the 30-day trial and just come for that debate watching live show.

fun time. And we will see you on Wednesday, of course, with this pod, but we hope to see you Tuesday night. I don't know.