The Dispatch Podcast - Trump Tried to Steal an Election

Episode Date: February 2, 2022

On today’s podcast, our hosts discuss the latest round of statements from former President Donald Trump and new reports about his role after the 2020 election. How are elected Republicans reacting? Plus, President Joe Biden has a Supreme Court seat to fill, and the world turns its eyes toward China as the Winter Olympics get underway.   Show Notes: -TMD: “Trump Doubles Down on January 6 Role” -G-File: “This Was Always the Plan” 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, Jonah Goldberg, and David French. We will be talking a little bit about the latest coming out of the January 6th investigations and Republicans' reactions to that news, the politics of an opening on the Supreme Court. And with the Olympics starting this week, will our diplomatic boycott do anything? Let's dive right in. Steve, I want you to explain a little bit about what we've learned this week, Trump calling for Pence to be investigated. Yeah, there have been a series of revelations, most especially over the past week, but really going back the last several weeks, which I think remove any doubt about what Donald Trump was trying to do. with his activities between November 3rd of 2020 and the inauguration of Joe Biden. And it's very clear, and I think at this point indisputable, that he was trying to steal the election.

And he was listening to people who were presenting him with crazy, crazy conspiracy theories. The people he had trusted were no longer really giving him counsel and he wasn't listening when they were. So what you've seen and what's been clearer and clear in the last couple weeks is that this was an attempt for Donald Trump to remain in office illegally. You had revelations in the New York Times that Trump was far more involved in the decision making on the discussions, at least, on the possibility of using the Department of Homeland Security, the Department of Defense, to seize voting machines like a banana republic. You had this statement from Donald Trump in a speech that he gave in Texas at a rally, suggesting that he would be open to pardoning the January 6th insurrectionists, really without much in the way of qualification, claimed them as political prisoners. You had this bizarre and I think quite revealing statement from Donald Trump about Mike Pence, in which he made clear that his real beef with Mike Pence was that Pence was that Pence was not willing to. to overturn the election, change the outcome of the election. Those are the words that Donald Trump used. I think we're at a sort of a new point in all of this. If you go back to the days after

the January 6th riots and you look at what Republicans were saying then, and then you look at what they've done to accommodate themselves to Donald Trump over the past year, they've done so against this backdrop of us learning more and more and more what Donald Trump was actually doing and what he was actually doing was trying to steal an election and remain in office, potentially, you know, seizing voting machines and taking these really bizarre and extreme steps to do so. So I think it's a, it's sort of an interesting moment to stop. We haven't spent a lot of time on this, but it's an interesting moment to stop and look back at the arguments that President Trump was making then that he's making now

and what Republicans are doing in response. And we also have, as you said, responses from Republicans. So Mitch McConnell, interestingly, when asked about 2022 and how this could affect the midterm election, said it's important for candidates to remember we need to respect the results of our democratic process unless the court system demonstrates that some significant fraud occurred

that would change the outcome. Of course, Donald Trump and his supporters brought court cases across the country and lost them all. I think it's always interesting when we hear from Mitch McConnell because he's really staking out what his preferred, at least, playbook is for Republican candidates, especially Senate candidates across the country and how he plans to advise them. And we can kind of then gauge candidates' behaviors from there. But then we have Republicans' reactions to what Donald Trump said specifically and what you were talking about, Steve. Senator Braun, he heard the comments,

quote, I didn't really think much about it because he says a lot of things at the rallies that I don't know if he means it or not. Grassley called Trump's pardon talk speculation. Thune and Cornyn both said they back the Republican nominee in 2024. You know, it sounds like, a lot of Trump fatigue to me, David. Oh, my goodness. Yeah, I think there is a lot of Trump fatigue out

there. And I do also think there's not just Trump fatigue, but maybe, not maybe, but there's also lurking Trump fear going into 2022, that Trump is going to put himself front and center. He's been stepping up his public appearances of late. He's been sort of stepping up that schedule of getting out there, been giving interviews. And so, you know, one of the things that I think both the Democrats and Trump will want in 2022 is a referendum on Trump. And what the Republicans want is a referendum on the Biden administration in 2022. And at the same time, they're definitely afraid of running away from Trump, as they always have been, as they still are incredibly after January 6th, in part because, you know, look, if you're a normal average everyday Republican

and you get your news from normal average everyday right-wing sources, you're going to have a fundamentally different view of the election contest and January 6th than people who do not are not immersed in this news cocoon. And I say that as an explanation, not as a justification to use Jonah's phrase, that this is where people are, not that they should be there. But where they are is move on from January 6th, move on from January 6th.

I don't want to hear about January 6th. If you're a Republican talking about January 6th, you're a problem. So they're either not going to hear about some of these new stories that Steve just walked through, or to the extent they hear these new stories, are mainly going to be irritated by them because they're hearing these stories. They don't want to hear them.

And so you have these Republican politicians who want to move on from Trump, without, you know, with the exception of some who see Trump as a father, as one congressman said earlier this week. But you got Republican politicians who want to move on a Republican base that doesn't want to hear about January 6th. But here's the key thing. We need to hear about January 6th. six, we need to get to the bottom, not just of January 6th, of this whole process. I mean, look,

we haven't even talked about some of the stuff that went on in Georgia. I mean, just the threats that Trump issued to Georgia election officials, just remarkable, remarkable stuff. So we have to get to the bottom of it. And if necessary, there need to be prosecutions, I believe. But there's no question that Republicans have fatigue. And there's also no question that Trump wants to be back in the spotlight, or certainly more than in the spotlight than he is. Okay, but Jonah, taking what David said,

needing to get to the bottom of something is different than needing for all Republicans to be aware of the thing. Like, needing to indict someone for a crime doesn't mean we need it on the front page of the news. We have inflation. We have COVID.

We have crime. We have China. We have a zillion things. When we talk about Republican voter fatigue, I don't know that there's a whole, lot of Democratic voters that want to spend a ton of time talking about January 6th, they have problems in their own lives. The country is okay. The election happened. The transfer of power happened. It doesn't mean they don't want people held accountable or they don't want

indictments. That's not what I'm saying. But like this idea that we need to obsess over January 6th in the media for the next year, two years or whatever, I don't know that that's just Republicans pushing back on that. I think lots of voters, again, doesn't mean you ignore what happening. You don't want authorities or even the January 6th committee continuing to investigate. That's quite different, I think, than what David was saying, perhaps? What do you think, Jonah? Yeah, no, I think you got a point. I mean, look, first of all, the burning question, which I think should have been the first topic today is, why won't Liz Cheney move on? But beyond that, no, look, I think you're right. I mean, the problem is we're kind of

talking on a bunch of different tracks here, it seems to me, to me, and I will stipulate in advance, there are deep and profound flaws with this analogy, but, well, now I'm really looking forward to it. It's a little bit like the concentration camps with the Uyghurs. Everybody knows it's a thing. Lots of people don't want to talk about it being a thing. And they don't want to be put on the record to talk about it being a thing because that has consequences for them that are super inconvenient for them for selfish or professional reasons. It is a boat rocking pain in the butt thing to actually bear witness to horrible things. Now, okay, actually, I don't think that's the worst analogy in the world except for one glaring difference. The Uyghurs are

currently in concentration camps. There are not currently people in the capital, you know, in siege mode. Correct. But at the same time, we do have. of the former president of the United States and the presumptive frontrunner for the 2024 election. Talking about this stuff, as if he did nothing wrong, talking about pardoning the rioters

if he gets into office. My favorite, which I guess broke yesterday, recording this on Wednesday, is that, I mean, this is kind of like the most mailed-in counter-punching that Trump has almost ever done, where he says, I want to know why the January 6th committee isn't investigating Mike Pence

for not overturning the election. And it's like, come on, dude. Put a little more effort into it. Get a cortisone shot or something. So it is politically a live topic, even though it shouldn't be. Because where we should be as a country is every reasonable person, regardless of party or ideology, or self-interest, just like everyone should agree that cultural and perhaps ethnic genocide is

evil and wrong, and then we can have a debate about what to do about it. Everybody should have been on record day one without changing their position that what Trump tried to do and trying to steal the election was wrong, that what he tried to do, whatever role we can debate how much of one he had in fomenting that riot or creating the material circumstances that made that riot possible, he should be condemned for it. Basically, everyone should have at least the Kevin McCarthy position prior to his yogi-like pretzel moral flexibility where he changed his position. And so whether it's, you know, so like the people who make it, I take your point. A lot of people don't want to talk about this stuff for the reasons that you said.

But the reason why a lot of people can't stop talking about it is because the Republican Party refuses as a group. to say the things that allow them to say, look, you've asked the question, I've answered the question, let's move on. Because either they keep changing their answers or they refuse to answer the question honestly. And as much as it may be annoying, rightly or wrongly to a lot of people,

including those Republicans, until they have a clear message on it, the press is going to keep asking. The Democrats are going to keep bringing it up. And Parkas, what else have the Democrats got to do other than to bring out the attempted self-coo by the Republican Party?

Let me disagree with, let me disagree with you and challenge the premise. I mean, look, I think part of the reason that people are talking about it as much as they are is because it's in their interest to talk about it. The mainstream media gets better ratings when they talk about Donald Trump. The Trump supporting right-wing media gets more clicks when they talk about Donald Trump and when there's a big fight. So I think that explains some of the reason.

I would actually argue that we're not talking about it enough. And the problem I have with Jonah's analysis is it's not really, you can't, You can't look at what Kevin McCarthy knew on January 6th or January 7th or even January, whatever it was, later in the month when he went down and made the trip to make amends with Donald Trump. We know so much more today. Facts. We have facts.

We have statements from Donald Trump. We understand better what he and his team were up to than we did at the time. I mean, at the time, you could point to Trump's speech and say, gosh, that seems like he's inciting this riot or this insurrection. You can point to his amplification of these crazy conspiracy theories. You can look at the call to Brad Raffensberger. But now we know that there were more than a dozen calls to Brad Raffensberger. We know that senior Trump campaign officials actually went and pressured election officials based on these bad conspiracy theories.

We know all of the things that I just mentioned earlier. We have a much clearer picture of what Donald Trump was actually doing. He was actually trying to remain. in power. And I think, you know, my concern is we're not really appreciating that fact. There's this sort of steady drumbeat of these reports and they get kind of compartmentalized and set aside because there's this general sense, yeah, Donald Trump was doing a bunch of crazy stuff related to the election. But when you stop and think about what the actual meaning of all of this stuff put together is, I think it's a, it's a clearer picture. And it makes the kind of tepid or, you know,

um, shifty responses from Republicans seem all the more pathetic. I mean, I don't think most of them would put it quite this way, but the, the effective position of most elected Republicans these days is Trump is a liar and a cheat who peddled bogus conspiracy theories, amplified the ravings of lunatics, incited a riot to overturn an election. lost and to remain in power illegally, and I'd vote for him again in 2024. I mean, think about that. That is insane. It's crazy. And I don't think it's something that we can just shrug off because we're concerned with elections. I mean, with inflation. Yeah. I agree with you that on the merits, it's outrageous. As a political proposition, it's just sort of a different. That's what I was

trying to get at when I was saying we're talking on a lot of different tracks here. Um, the You know, I wrote this piece for Barry Weiss's shop, you know, on the anniversary January 6th, about how the narrative trumps everything. And the problem is, we know what happened. You know, look, I mean, I wrote a piece for the dispatch, say, on November 20th, 2020, saying this was always the plan. And, you know, the subhead was President Trump telegraphed that he would try to steal the election if he didn't win. And so we now know more about something that we already knew. And, you know, The problem is people, the problem, one of the larger problems we have in our culture today is that people are much more concerned about locking into a preferred narrative than they are about, you know, changing when the facts change. And so I have nothing but contempt for the Republicans who cannot have a clear message on the merits of the thing. At the same time, maybe I'm just too much of a scalded dog at this point after five years of watching. this, to be shocked that Republicans care more about getting reelected than doing the right thing. Yeah, no, you're right on that. And I don't, I don't disagree with, I mean, I share your, your cynicism on that. I guess to me, what makes it so striking is that, like, we've,

we've done this so many times before. I mean, after, I think if you, if you look at the, the rhetoric right after January 6th, you had almost universal condemnation of what happened, and assigning responsibility to Donald Trump. And then the week between that and the impeachment votes, you had a lot of people fall off, the votes, the time to the conviction. You had more people fall off. Then you had Kevin McCarthy going down to Mar-a-Lago. And then sooner or later, you had most Republicans kind of cuddling up to the guy again.

I think, having talked to some of them, in an effort to sort of have this be the end. Like, he had so damaged himself that if they could just do this one more thing, he would then be in the rearview mirror. And, like, they've made that miscalculation a thousand times. And they're miscalculating again. And I worry what we're doing now is, you know, in effect, normalizing attempts to steal elections. I mean, you now have a party that's more or less aligned behind a dude who tried to steal an election. I just find that, I don't know, I find it a big deal. You know, one thing I want to interject here,

is an element of fear that isn't just political fear. There's just fear of fear. And I think it's hard to really understand the ferocity, just the raw ferocity that a lot of these members of Congress encounter from their own constituents. There was the unnamed member of Congress who said that when he comes home, I believe this was in Politico, he's always hearing about civil war. There was a person I follow on Twitter who was encountering right-wing hate for the first time.

She had appeared on CNN, and some of her words were misunderstood by members of the right, and went viral. And she said, when I've angered people on the left, they've said, you hurt me. When I anger people on the right, they say, I will hurt you, and I think they mean it. And I think that's, you know, of course, an overgeneralization. There are threats on the left, of course. But I don't think we can underestimate the fact that it is very well known in Republican circles what happens to you as a human being when you come out against Trump. And that what happens to you as a human being is really grim and involves often.

and protection for your family. It involves harassment, sometimes right directly at your house. It involves constant threats. And I think a lot of people are legit, are just afraid, afraid, not politically afraid, to be honest. And that's a reality out there. And I think that that always has to be brought into it. And so here you have office holders who it's in their political interests to kind of, in the short-term punt, and it's also sort of in their own perception of the physical safety of themselves and their families. And again, going back to this phrase,

it's the fact that you can explain it, does not justify it, but that's part of what is happening here. And then just one last little thing, Jonah, to truly depress you, you said five years that we've been doing this, we're four months away from it being seven years since Trump came down the escalator.

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President Biden holding firm to his campaign commitment to appoint a black woman for the first time to the Supreme Court. A very muted response by most Republicans, with the exception maybe of a couple who might see 1,600 Pennsylvania, in their eyes. Let's talk just first politically what the Republican response can be, should be, to a nominee that presumably they will have ideological disagreements with, but who will also be well qualified.

David, let's just start with you. Yeah, so this is a really interesting question about what is the advice and consent role here of the Senate. And Sarah, you and I might disagree a little bit on. this, because I think unlike the advice and consent when you're talking about a nominee for Secretary of State or Secretary of Defense, who's going to be a political actor carrying out the president's policies, where I think there should be a high degree of deference, as long as the Secretary of State or Secretary of Defense isn't corrupt, the people elected this individual,

this president, and they've elected a person to carry out specific policies, this is different. a lifetime appointment of somebody who's presumably going to be and is going to be exercising their independent will without the oversight of the president at all for the rest of their life, for the rest of their career on the bench. And I think if you believe that that person's judicial philosophy is one that is, and I'd grant some deference to it, I'm not going to say that they need to be, that their beliefs have to be identical to the senator to her, but I think if a senator believes that their judicial philosophy, the reasoning that they're going to bring to the bench is fundamentally incompatible with your own, then I think it's completely

fine to say, look, I think you're brilliant. I think you have unquestioned sort of resume qualifications, but this is my role determining whether or not you're a person that I want on the bench for acting independently for the rest of your life. And I think that's fine to say I'm opposed to you on that, on that basis. Jonah, what is the role of advise and consent? The Constitution certainly doesn't distinguish between cabinet and judicial appointees when it comes to the Senate's role. Oh, it spells them differently. You know, in theory, I'm with David.

And in practice, I think I'm more with Sarah on this because that is a recipe for, particularly in our current climate for the Senate, never approving anybody. And because, or it's, it's, I mean, I could see a really wonderful land where chocolate flows like water and there are unicorns everywhere where it would actually create an incentive structure where you actually had a whole bunch of like really moderate judges or, or we lived in a world where everybody actually believe the crazy idea that judges should just actually follow what the constitution on the law says. But we don't live there. We accidentally wished for the wrong thing with the monkey's paw. And so instead, we can't have nice things. And if every senator followed your position, that means no Democrats would ever vote for any Republican appointee. And no Republican would ever vote for any Democratic appointee. And so I think as a procedural thing, just to sort of get things done, a certain amount of deference for

the fact that elections have consequences, the president runs to appoint justices. It looks like we're heading in a direction where presidents are going to run on a slate of justices at some point soon. And so I think that your criteria for House senators should vote is reasonable way at the extremes, right? I mean, it's like if it's truly

someone beyond the pale, but otherwise, we're just going to tell every senator, you know, that your duty in your conscience says that unless they agree with you, they're unfit for the court. And I just don't see how that works as a practical matter. Justice Bondi then, yes or no? I said some can be beyond the pale for sure. Okay. Justice, Justice Lewandowski. And look, I would love it if we, and again, I would love it if the Overton window were such where someone like, you know, Sonia Sotomayor were considered beyond the pale ideologically, but we don't live there. And, and I'm sure there are plenty of liberals who would love to live in a world where Clarence Thomas was beyond the pale, but we don't live there either. And so

you have to have a little bit of a deference to the other side's shot. Steve, Lindsey Graham has put his full weight behind Judge Michelle Childs. She is a South Carolina trial judge, went to the University of South Carolina undergrad, University of South Carolina Law School, worked in employment law for a number of years before joining the state trial bench and then the federal trial bench. That would make her unique in several respects on the U.S. Supreme Court right now, not least of which is getting a vote from a Republican senator. Let me tell you what he said just yesterday.

Three guys in pickup trucks came up to me at the garbage dump over the weekend, he says. Three guys in pickup trucks came up to me and said, she seems like a nice lady. I'm tired of this Harvard Yale stuff. The great equalizer is the garbage dump because everybody's got to throw out garbage, Graham said in an interview Tuesday. Including Lindsey Graham. I don't believe this story, but anyway, go on. I was just struck by what they thought. Yeah.

So look, I mean, there's the, it's like almost a parody of what politicians say they hear when they go home. Also, I, you know, we have trash pickup at my house. So the idea of like the community going to the garbage dump on the weekends and like all the men throwing out their trash is a little bit quaint to me. And then they're talking about, you know, Judge Michelle Childs for the. Supreme Court at the garbage dump. Anyway, I'm with you, Joe. Plausible. Completely plausible. And I'm tired of this Harvard Yale stuff. Nope. That's where it really lost me. But. And then one of them said, as Proust said.

But, Steve, the, the, as we learn in hearsay rules, David, right? This is actually not about the truth of the matter asserted. But in fact, about. what Lindsey Graham is trying to say here. You know, what will it mean for Joe Biden to pick between Judge Kittanji Brown Jackson, who, as I've said, is sort of created in a laboratory for Supreme Court justices? She's on the D.C. Circuit right now. Harvard, Harvard undergrad, clerked for Justice Breyer. She would be top of any Democrats list ever.

or this sort of other type of diversity that's been missing from the Supreme Court that Lindsay Graham's behind it. Jim Clyburn's obviously behind her. What do you do if you're the Biden White House right now? Yeah, it's a good question. Setting the veracity of Lindsay Graham's story aside. He's an interesting case because he's somebody who I think Sarah has over the course of his career practiced what you were talking about. Both. in terms of cabinet agency confirmations and more or less in terms of judicial confirmations as well. He voted for Katanji Jackson Brown, was one of three Republicans who supported her just six

months ago. You know, I suspect the Biden White House is likely to try to do the safest possible thing, and that feels like Katanji Jackson Brown at this point, because They have three Republicans who have already voted for because of her resume. She's generally well respected. She doesn't have a long history of things that might create surprises during a nomination process. So there are, I think there are reasons for the Biden White House to prefer that, to move it through as quickly as they can, to take the victory and try to use it. I mean, there's no question that they're going to try to use it as something of a, I hate this.

this term, but something of a reset. He's had a tough, tough several months, a tough first year. And they think that this, that this victory here with a coming out of the other end with a highly qualified Supreme Court justice, even if Republicans opposed her on ideological grounds, would be a clear win for them. On the other hand, I mean, if you think about what Joe Biden did and how he won the Democratic nomination, he owes a lot to Jim Clyburn. And Clyburn is clearly clearly a fan of Childs and has gotten Lindsay Graham and Clyburn seems to think that Tim Scott would go along. Scott has given some early favorable comments about her potential nomination. Maybe they could pull in some others. And Joe Biden would be seen as rewarding Jim Clyburn,

who was absolutely essential to his victory in the Democratic nominating process. His promise to nominate a black woman came at a debate in South Carolina after he had lost in New Hampshire and Iowa and was one of the things that I think got Clyburn to campaign for him as enthusiastically as he did. So it was a real sort of turnaround moment for Biden. Then you can see him wanting to reward Clyburn's loyalty. And she has, you know, I'd say it's a non-traditional background for a Supreme Court justice. But for the reasons that you suggest, Sarah, there's some strength in that in that different path as well. What's funny is it's non-traditional,

but only because the tradition is so flipping narrow. That would actually be a fabulous resume for a Supreme Court justice in any normal times. It's just that we have the narrowest of narrow paths to the Supreme Court right now, you know, private undergraduate school, Ivy League law school, you know, adding Stanford, I suppose, to that list.

And then clerking for a Supreme Court justice, appellate law, and then you can maybe be on the Supreme Court. David, let's just jump on the third rail here. Republicans, some Republicans, at least, appear to want to make hay out of the promise that the president made to appoint a black woman. And so now we're having these like historical what aboutism fights that I find kind of uninteresting, to be honest of, did Reagan's promise to appoint a woman to the Supreme Court, or just that he would appoint a woman to the Supreme Court at some point, and it happened to be his first pick? And then did H.W. You know, it was it always going to be Clarence Thomas because he was going to put him in the Brennan spot, but then Brennan wasn't gone in time. So then Thomas happened to replace Thurgood Marshall, who was the first black justice on the Supreme Court. Otherwise, it would have been some random white dude replacing Thurgood Marshall. I don't believe that for a second. You know, as a woman, it is frustrating to me because it implies that whoever gets picked couldn't have competed, couldn't have won if the field had been opened up to all the men

and all the people of other races in this case. And again, I find that particularly offensive because Judge Jackson, as I said, was created in a Supreme Court laboratory. She's been competing against men and every racial group her entire life and beating them all every time. And so this idea that she, you know, the only way she can win is if you limit it to other people who look like her is silliness. At the same time, though, I think diversity on the Supreme Court is important. And I think this idea that judges are just these brains like Steve Martin in the man with two brains, you know, brains in a jar just doesn't. true. Judges have experiences. Judge Kavanaugh would talk about, you know, his time

coaching. Well, if it's relevant that Judge Kavanaugh was a middle school basketball coach, surely it's relevant growing up as a, you know, black woman in this country. So are Republicans actually, is this a smart political move for the Republicans that want to make hay out of it? Or are they just energizing the left for no, you know, when the wind's at your back and it's on inflation, COVID, crime, everything else. Why move to anything else? Yeah. So before I directly answered the smart political move question, I want to go back to something that you said on advisory opinions podcast. I think it's really important for those dispatch listeners who don't listen to advisory opinions, shame, shame on you. Shame.

The qualifications for a justice of the Supreme Court are, it's not like ranking 40 times. at the NFL Combine, where there's sort of this really hyper-objective, these are the fastest wide receivers, and the goal is to pick the fastest wide receiver. It's a big mix. And so what you actually have are a universe of people who can all legitimately make their case, that they are the best, or a best, a great selection for the Supreme Court in any given time. And for much of American history, that has included black women judges and black women law professors and not one of them have been picked. Now, I'm not saying that that's because of invidious discrimination, but we've lived in a time in American history where we have had in the universe of qualified

people to be on the Supreme Court, people, you know, black women who've not been picked. Janice Rogers Brown comes to mind, by the way. This is someone who was nominated by George W. Bush, filibustered multiple times, including I believe that when he was senator, President Biden filibustered her several times, a black woman nominated to the D.C. Circuit. And I believe she was the first black woman to serve on the D.C. Circuit. They also blocked Miguel Estrada from serving on the D.C. Circuit. He would have been the first Latino to serve on the D.C. Circuit. So Judge Janice Rogers Brown did get on the D.C. Circuit. And she was not picked for the Supreme Court. She was on the shortlist every time. Always a bridesmaid, never a bride. She has since retired.

But to your point, perfectly well qualified to be on the Supreme Court unquestionably, and she wasn't picked. And so continue. Yeah. So the answer is if, you know, there's a number of justices that Biden can pick who are absolutely qualified on their own to be in the Supreme Court. And so the problem I have with the Biden statement is less with the fact that he's picking a black. women justice and more with the discourse that is going to lock in that he what he did was the why you're there is that you were the best available of the demographic that he locked in and i do think it's a little bit of a i do think it's a little bit of a political problem as as i said in

advisory opinions as a general rule people don't like this they don't as a general people don't like this sort of, I'm going to pick somebody of X or Y demographic. People are very happy to see someone of X or Y demographic be nominated and confirmed as a general rule, but they don't necessarily like I have slotted this pick for person of X or Y demographic. And so I don't think it's a big political problem compared to some of the other things, but I do think it's a little bit of a problem for some of the reasons you outline where there's going to be this sort of, you know, at least in some folks' minds, well, she wouldn't be there except for the Biden slotting when she's, when in reality, she's super qualified for that slot. And that's one of the things

that's unfortunate about it. And I do feel a little bit, you know, you see the Twitter back and force that are like, oh, Biden's way beyond the pale because he was explicit and Reagan was just a tad more vague. No. Yay, Reagan. I mean, come on, guys. You know, come on, guys. Jonah. So, Sarah, you said earlier that, you know, Republicans who were injecting this idea

that Katanji Brown or the, whoever the black female nominee is going to be, wasn't qualified or lacked qualifications and all that. And I agree that there's some Republicans who have made those arguments, and I have no brief for speaking for the Republican Party. But the person who introduced the idea into the American political context was Joe Biden

by saying that he would not consider anything other than African-American women for the position. And we can say, yeah, there are people who are perfectly qualified to be on the Supreme Court from the field who fit that demographic, but that's not the way American people hear it. You know, they just had a poll came out this week or last week that said something like 76% of Americans want Biden to consider people of all.

backgrounds and not narrowly focus on one. And my problem with all of this is that you need to have a little, I mean, I take your point and I agree with it basically entirely that the history of judicial appointments is not exactly the history of finding the single greatest. They're not like they have trials by combat between lawyers and only the true champion emerges and he shall be sitting on the bench. You've had a lot of fat hacks on the Supreme Court for the last, you know, 150, 200 years. And that's fine. And we used to have other ideas of diversity that apply, like geographic diversity or that we need a politician in on there, or we need someone who handed me a bag of cash. I mean, who knows? But the thing is, is that part of what a civilization is

or a culture is, is the story it tells itself about itself. And when you say in advance that, first of all, if you say, I'm only going to consider African American women, there are a lot of Asian American people who say, okay, so in other words, you're saying you're not even going to consider an Asian American. So I don't know that it works necessarily to the advantage. If we want to say that this was a necessary, as Steve was laying out, that it was a necessary, fairly crass political exchange of favors so that he could get Clyburn's endorsement and that Clyburn would settle for nothing less. Fine. If those are the facts, those are the facts. The reality is everyone in this country, including whoever is the nominee, would be better off if Biden said something along

the lines of, obviously, we are long overdue for an African-American woman on the court. I'm going to look at that very hard. But of course, sort of what Bernie Sanders said, but I'm not going to, you know, restrain myself in advance to any one demographic group. Everyone would understand what he's saying, sort of like what Reagan did. but at the same time when the short list came out in 2020 in late February 22 or whatever and it had white guys and Asian guys and white women and every the whole Benetton ad of legal scholarship in America and he still if the fix had always been in he was always going to

pick you know Kataji Jackson Brown or the woman from South Carolina they would be better off the country would be better off because the sort of you know it's not entirely a fiction but it's sort of the the the ideal at least rhetorically of considering everybody in the in the in the sense of the original understanding of even affirmative action would have been upheld and instead when you do it this way and I don't really think just because Reagan did it therefore I can't criticize it because I was in sixth grade when Reagan did it what did you say then Joe know, what did you tweet? That's right. My tweets, you know what, you know what, even more damning? I didn't tweet anything when Reagan did it, you know, which I'm sure someone from the federalist is going to go ballistic about that fact any day now. How convenient.

Goldberg conveniently refuses to tweet before Twitter invented. So I just, I don't like this practice. I understand that sometimes political necessity overwhelms things, but you, and, And before I, you know, I've been making this point for a couple of weeks or a week now about how it would be better off if he at least paid lip service to notions of casting a wide net and going for merit. And particularly in the wake of the Ilya Shapiro stuff, I've decided that I'm, I'm just way too friggin naive. And the reason why the left prefers this approach is they want people to complain about this approach. They want to shove it in people's faces that it is a

sort of a naked identity politics play. And I just, just as an aside, if I hear one more person tell me that having a litmus test for federal society candidates is the same thing as having a litmus test for an ethnicity, I'm going to lose it. It is not against the law for me to hire someone, if I weren't going to hire a legal correspondent,

I'm going to say, do you believe in a sort of an original understanding of the Supreme Court? It is not against the law for me to ask for that. It is against the law for me to say, are you of 100% pure Aryan blood? I mean, these are different things, and we fought a civil war and amended the Constitution a couple of times to recognize that they're different things. So, Steve, before I get to you, I want to take a trip down history lane here to a Supreme Court nominee called Harold Carswell. Harold Carswell was nominated by Nixon to replace Abe Fortis.

And if you haven't heard of him, that's because his nomination was destined to go down in flames. he had said some, well, I yield to no man as a fellow candidate or as a fellow citizen in the firm, vigorous belief in the principles of white supremacy, and I shall always be so governed, is something he said before he was nominated. And so Senator George McGovern of South Dakota said of him, I find his record to be distinguished largely by two qualities, racism and mediocrity. U.S. Senator Roman Ruska of Nebraska famously said back. Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they? And a little chance? We can't have

all Brandeis's, Frankfurters, and Cardozas. And this is what spawned the famous, even mediocrity deserves representation on the Supreme Court line that you will hear from time to time. And that we've been hewing to in certain circumstances for decades. It seems to be prevalent in our overall discussion with the hostility to experts and knowledge and truth and understanding. That's right. When we certainly have mediocrity represented in other parts of our government, Steve, what are your thoughts on the, you know, for me, I hear everything that's being said. And, you know, look, what would have happened, I think in Jonah's version, is that president,

then candidate Biden would have taken Jim Clybert aside and privately promised him. him that it would have been a black woman and not said it publicly. Are we really better off as a country if Joe Biden had said one thing privately and not told us? And instead, he told us the thing, the same commitment he made to Jim Clyburn, he told us about, isn't there something for transparency in this? I had the same exact thought as Jonah was talking. Because I think one of the problem with our politics today is you have way, way too many elected officials or candidates for office who say one thing in private and none of the republic. We've talked about that at length in the context of Trump. So I'm four candidates saying what they actually believe. In this case,

though, I think Jonah's right, or at least more right than wrong. It's easy to imagine had Biden approached this the way that Jonah laid out and nominated Katanji Jackson Brown or someone else with strong qualifications who could be expected to perform very well in a nomination hearing, that that would have been a, you know, a real high watermark. That would have been a good thing for the country. Now, you have to believe that the way Republicans are going to handle this will sort of determine to a certain extent how the, how the nomination is going to go, even if they're not at this point in a position really to stop it, you have Mitch McConnell signaling that he doesn't want to necessarily make this a huge fight. He doesn't want to speed it

along, but he doesn't, I think, believe it's in Republicans' interest to have a, you know, a big sort of explosive argument, again, depending on who the nominee is and what her, what her background is, what her, you know, what her decisions have been, the kinds of things. she's argued. But I don't think that you're likely to find unanimity from the members of the Senate Judiciary Committee on the Republican side on that. You have a strong number of potential presidential candidates on the Senate Judiciary Committee. There are more Republicans on the Senate Judiciary Committee, I think, who either are running or want to run for president than there or have run for president than there are others. You know, Lindsay Graham, who never shut

away from a camera, but has indicated that he probably will be likely to go along with this pick. But you have Ted Cruz, Ben Sass, Josh Hawley, Tom Cotton. You've got a lot of people who want to, I think, use this spotlight. I mean, there'll be a lot of attention on this to make arguments, to bolster their public image, to become known, to increase their name ID. So I think McConnell may want one thing. It's not clear that the members of his conference will all agree with him on that. Can I, can I interject one quick thing here? Last word to David. I actually, when I was, and we'll again, another advisory opinions plug, but we're on a legal topic. When, when I, can I make a strained comparison? When I, when I, we know, not super

restrained. When I, we know, I already took Uyghur analogies off the table. Yeah, other than that. When we have this diversity conversation, I'm actually reminded of the NFL lawsuit that was just filed and that, you know, NFL put in some processes that were supposed to guarantee diversity that were very, quite explicit. You know, you can't hire before you hire or before you talk to a black candidate, for example. And the good old boy network found away, right? The good old boy network found away. And that was sort of turned into a farce, if you believe the allegations and the complaint. And we'll properly caveat when you listen to that on tomorrow. And I think one of the issues that you have is that I tend to believe this, that if you are actually fair in your,

and your hiring process, and you're actually fair. You're actually going to end up with more diversity. But what ends up happening time and time again, I think, is that processes are not actually fair, and good old boy networks and whatnot tend to thrive and survive for a lot of reasons. And so the temptation then is to then say, what I'm going to do is I'm going to step in and I'm going to specifically say and slot. This next hire is going to be X demographic or Y demographic,

as opposed to just trying to get more fair, if that makes sense. Going to the Jonah point of, look, here's what we're going to do. What we're going to do is we're going to try to find the best person. and because we're actually going to try to find the best person instead of the person who most clearly fits pre-existing paradigms, what you are going to see as a result of that is more diversity. I think that is the way. That is the way.

Instead of saying, well, I'm going to overpower past practice by this very explicit, I'm not nominating person of X or Y demographic, or I'm hiring person of X or Y demographic, just do better push through the old systems and take a wider look at people. And that might be hopelessly naive, but that's in my own capacity as somebody who has hired people in the past.

I'm not a hiring person at the dispatch. But in my own capacity, somebody who's hired people in the past, that's been my practice and my experience. Can I tell you why it's naive, David? Yes. Because the way you phrased it, I think anyone listening would say, oh, but I don't hire based on the old boys network, which implies a certain racism, sexism, slapping her on the ass as she walks out the door, when in fact, I think it's far less insidious in how it happens, which is you've worked with someone before, you know them, and you are more likely. to know men, be friends with men, have relationships with men,

and more likely to have those relationships with white men. And so what happens is, well, no, it's not some good old boys network where I'm trying to exclude women or exclude someone because of the color of their skin. It's that I want to pick the guy who I know and I know I can work with and I know he'll do a good job. And so it excuses people, I think, who listen and think, well, that's not what I'm doing.

And I'm so looking forward to talking about that lawsuit with you tomorrow on advisory opinions because I think that's exactly what was happening in some of those cases. They knew which coach they wanted because they were friends with him. They had spent time with that coach. And it's not coincidental that that coach is a white male. And I am friends with more women than I am men. I'm going to guess you are friends with more men than you are women. We're both married and also just like, yeah, I have more in common with women.

I think there is, how do I phrase this, Stephen Jonah? I am the only woman on this podcast. I think that I add a voice to this podcast because I have a different perspective. I don't think that I was picked because I was a woman, but I think it is a testament to Stephen Jonah because they do know so many other people. They did not know me. We weren't friends. and they took kind of a flyer on a woman.

They didn't have a relationship with when there were all sorts of dudes they could have plugged in. And that, I think, is more the model that we need to be encouraging is, it turns out interviewing is very unsuccessful. Malcolm Gladwell has shown this, and I think it's really persuasive. And so sometimes it's fine to just take a flyer. And if it doesn't work out, Stephen Jonah could have very politely asked me to leave at month one. So I think that is actually the hiring model that we need to elevate rather than like sort of poo-pooing old boys networks, which I think everyone's like, well, I don't have an old boys network. Well, but see, when I say a boy's network, I'm not saying ass lapping. Like, that's not my networks.

That's not my friends, you know? Just some locker room talk, David. Come on. I mean, it can be an old boys network without it being John Gruden. You know, I mean, it's so... I agree, but when people hear that, I think they hear, like, well, that's not my hiring process. I'm just hiring like I'd worked with that guy before. So that's why I want him in the role.

But I think what you were saying was exactly what I was saying. Okay, fine. With Amex Platinum, access to exclusive Amex pre-sale tickets can score you a spot trackside. So being a fan for life turns into the trip of a lifetime. That's the powerful backing of Amex. Pre-sale tickets for future events subject to availability, and varied by race. Terms and conditions apply.

Learn more at mx.ca. slash Y Annex. All right. Last topic. The Olympics have started and today is the first curling match. In fact, it happened this morning, our time. I won't spoil it for anyone,

but I've got my jersey ready. I'm going to watch it in prime time. Very, very excited. And no one else seems to be excited, Steve. I mean, thank you for not spoiling it because we would have so many emails if you had divulged the results of the opening curling match. Yeah, I think there's a general lack of enthusiasm for this Olympics,

and there should be. It has to do with where the Olympics are taking place in the context. And, you know, this process is now several years old. I don't think the, you've heard Bob Costas, among others, indict the International Olympic Committee for choosing China, for choosing Beijing. He has made the argument, I find it very persuasive, that the IOC has sort of a thing for authoritarian's. And it's a shame that the Olympics are taking place in Beijing right now.

I would expect that we'll see, you know, as the games get underway and no insult to curling. I mean, it's a, this is a northern sport. So I'm sort of pre-programmed to like it. But as, as, you know, more popular sports are played and we get the results from, from those, you'll find people paying more attention. But I don't, I would expect that at the end of these Olympics, we're going to look back on them. And there won't have been the kind of fixed, wrapped attention from the American populace that there often is to the Olympic Games. Steve, if you had seen the spinal tap, you would know the correct phrase is less selective sports.

Less selective sports. That's good. Jonah, did we learn anything from this? You know, our athletes are now over there not being able to use their own phones. They're being told to get burner phones. We're not hearing as much from them. the NBC correspondents aren't over there for the most part. There's a diplomatic boycott from our country and a handful of other countries as well.

Did a shift happen in the global attitude toward China? At the margins, I think it did. And I think the fact that it's weird, I can't quite articulate it, but I think the fact that there are no spectators allowed, makes it kind of seem more like a Potemkin village event run by the autocrats. I do want to point on one thing, I like Bob Costas for the most part. I think he's a good guy, but it's not so much I think that the IOC has a soft spot for autocrats, though it probably does.

It's that one of the nice things about being an autocracy is it's a lot easier to bribe people. And countries with rule of law and, and, um, and free press, it's just much more difficult to do the kinds of things that, without accusing any individual IOC member or the leadership of international soccer, it's just much more difficult to do the kinds of things. To leave a brown paper bag full of cash in the back of someone's Pugot. It's just more difficult in Western societies.

Yes, I think it feels sort of staged and, And, and icky. And I think the fact that sort of kudos to NBC and a lot of the, you know, they shouldn't have allowed to, I mean, China never should have gotten it, but the fact that they have a really hard time hiding the ickiness or their feeling of discomfort with it is something of a credit to them. But I suspect that when the big sports that people are, when the, the ignorant masses are more interested in than the refined audiences that like curling,

some of that will be overpowered and we'll get a lot of coverage and people like to see want to talk interviews with young American skiing champions and all that kind of stuff. So I think there'll be some segue back into the Olympic mood, but it's going to be more subdued and it should be. It's not quite hindsight, David, but mid-site 2020 should we have boycotted? I think we should have, to be honest. At this point, the argument that we shouldn't boycott really boils down to, for the sake of the athletes. Yes.

And that was the same argument in 1980. And I don't, you know, I don't want to denigrate that as an argument. You're talking about Americans who've poured their lives into this moment. And then to yank the moment from them for no fault of their own is a, it's a serious thing. And there are credible arguments that we shouldn't have boycotted the Moscow Olympics all the way back in 1980. But in some ways, at least so far, the kind of the spirit of the moment speaks for itself in a way that here we have a country that is in the midst of an ongoing genocide that was, you know, it's the way it responded and the way it's, and the way it's, concealed information at the onset of this pandemic, which has now killed millions of people around the world, including almost a million, getting closer and closer to a million,

here in this country, that has been increasingly militarily aggressive. This is not the place to host an international celebration of sport. I'm sorry. And in hindsight, what I wish that we had done is to say, here's what we're going to do. going to host an alternative games for free nations. And we're going to put it in, you know, we have ample opportunity in places to put it here or in other places in Europe. And we have the infrastructure. And I wish we'd have done that and had planned it in advance and run counter program. And we could have had, you know, NBC celebrating all of these, you know, actually celebrating

the events. And they would have been extremely competitive with all of our European and free nation partners, Japan, South Korea, Australia, well, Australia is not much in Winter Olympics, but all of our free nation allies, we would have had an extremely compelling competitive games, and that's what I wish we would have done. Yeah, I mean, it's so hard. Our country doesn't pay athletes the way that other countries subsidize their Olympic athletes. And so it's a double whammy, right? You've poured your heart and soul into this. And also your career prospects in a lot of ways. You know, being an Olympian can really matter if, you know, you're working at the Home Depot and are an amateur at this point in sports that, you know, aren't the NFL NBA, you know, soccer to some

extent. So, um, really tough. I don't know that we'll ever know what the right decision was and boycotting or not. All right. That brings us to the close today. Thank you so much for joining us. We will talk to you again soon. And don't forget, by the way, comments. If you're a member of the dispatch, throw your comments or questions in on the website. We read them all. We don't answer them all, but we read them all. And we'll look forward to seeing you there in the comments section, dispatch members. This episode is brought to you by Squarespace. Squarespace is the platform that helps you create a polished professional home online.

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