The NPR Politics Podcast - Biden Says He'll Make His Supreme Court Pick By The End Of February

Episode Date: January 28, 2022

Senate Majority Leader Chuck Schumer says Democrats will move to confirm Biden's choice as quickly as possible. And Trump allies are under investigation for an electoral college gambit — but experts say that it's unlikely they will face criminal penalties.This episode: White House correspondent Ayesha Rascoe, acting congressional correspondent Deirdre Walsh, voting reporter Miles Parks, and senior political editor and correspondent Domenico Montanaro.Connect:Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Subscribe to the NPR Politics Newsletter.Find and support your local public radio station.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hi, this is Audrey from Novi, Michigan, where we just got our four free COVID tests, courtesy of the U.S. government and Mara Liason. This podcast was recorded at... It is Friday, January 28th, 1212 p.m. Things may have changed by the time you hear it. Okay, here's the show. I wasn't ready for that joke. Well, you know, look, Mara got it done. So everybody is getting their Mara test. I hear Mara, though, now has moved on to getting Putin to pull back from Ukraine. Okay, well, she will get it done, okay?

Hey there, it's the NPR Politics Podcast. I'm Aisha Roscoe. I cover the White House. I'm Deirdre Walsh. I cover Congress. And I'm Domenico Montanaro, senior political editor and correspondent. Justice Stephen Breyer formally announced his retirement yesterday in an event at the White House. My grandchildren and their children, they'll determine whether the experiment still works. And of course, I am an optimist, and I'm pretty sure it will. Does it surprise you that that's the thought that comes into my mind today? But now the real kind of fun or just like the real work begins, at least for the White House.

Biden pledged during the 2020 campaign that he would tap a Black woman to be his nominee to the Supreme Court if he got the chance. There are right now a couple of dozen Black female judges who are currently serving on the federal bench, and a handful of those names are expected to be on Biden's short list. Two names we've heard a lot about, Domenico, can you tell me a little bit about them? Yeah, the two who've stood out and whose names have really kind of gone to the top of the list here are Kataji Brown-Jackson, who's a federal judge, and Leandra Kruger, who's a California Supreme Court justice. Both are much younger than Breyer, who is 83 years

old. And that's part of the calculus here to have people on the bench serving for quite some time. We've seen that now, you know, the sort of the face of the court change over the ages, much younger on average than say 10, 15 years ago. Ketanji Brown-Jackson is 51, and she serves on the U.S. Court of Appeals in Washington, D.C. She's been in that post for about a year and served as a federal judge for several years before that. And she's seen as someone who might have an easier go of almost anyone else because she was just confirmed to the post she's in a year ago with 53 votes, including some Republicans. Kruger is even younger. She's 45. She served as acting solicitor general, was brought into that position where they argue cases before the Supreme Court by Paul Clement when he was solicitor general for George

W. Bush and served during the Obama administration and stayed on there as well. Hill Democrats I talked to pointed to the names that Domenico just mentioned, but they say, you know, look, there are a lot of eminently qualified black female judges that could also be picked. And they say that there's a, you know, a broader range of people who could end up on the list. You know, there's names circulating, you know, six or seven names. South Carolina Democrat Jim Clyburn, who was critical to Biden's victory in the primary and helped him get elected, has floated South Carolina Judge Michelle Childs as somebody he believes is qualified. He says he hasn't talked to her or the president, but I think just sort of

like throwing her name out there is his way of making it known sort of this is somebody he wants to see in the mix. So I think we'll see some other names emerge. But I think overall, there's just incredible enthusiasm among Democrats on the Hill for this pick. It really helps sort of change the conversation from where we've been in the last couple of months, where the legislative agenda has really stalled out. I mean, we all know that, you know, a Supreme Court justice pick, it really takes over Washington, sucks up all the air out of the room like that. That's where everyone's focus is um but there's often controversy right like when it comes to these picks the fact that Biden says and has pledged to pick a black woman

to be on the supreme court I mean you do have some people like conservative commentator Ben Shapiro and other people like that saying that that's affirmative action, that that was unnecessary, that he should just pick someone based on the quote unquote qualifications and just leave race and gender out of it. It seems like Biden has had some things to kind of say to that, or like, what are you guys thoughts on that? Yeah, I mean, you know, look, it's hard to leave race and gender out of the court, because it's hard to leave race and gender out of American society. Everybody has their own unique perspectives and backgrounds and experiences. But this certainly, as you're right, saying that this has become a controversial thing in general. But it's also the kind of thing that Republicans and conservatives

point to because it's an easy place for them to go to pick in the culture fight, the culture wars on this. But I think they're going to have a very hard time standing on those legs if the person who's picked and the people we're talking about are eminently qualified. I mean, I think that we should remember that not even all of the people who are on the Supreme Court have had as, Chief Justice John Roberts only served for a short time on the U.S. Court of Appeals in D.C. and Clarence Thomas as well, only about a year or two for each of them. Well, and Judge Jackson got three Republican votes in June when she was confirmed to her current post. You know, Lindsey Graham, Susan Collins, and Lisa Murkowski all voted for her. Democrats have pointed that out and also just said, like, look, look at all these people, their qualifications speak for themselves. The president is following through on a campaign

promise. You know, they don't see it as a big controversial move. It's just, they say it's way overdue, like the president said yesterday when he reaffirmed his pledge. Well, and we should point out that, you know, the fact is that for many years, the Supreme Court, you know, the people that were chosen were chosen probably because they were white and male, right? Like that's a fact. That was affirmative action for white people. Yeah, implicitly or explicitly. And, you know, we just know that there's different walks of life, different points of view. That's why diversity has become such an important topic to talk about when it comes to either newsrooms, you know, any place of work or the Supreme Court, because people have differing perspectives and points of views and backgrounds. So, Deirdre, what is the timeline for this? Do we know how fast this process can happen? February. February is Black History Month. March 1st is the State of the Union. So I think he wants

to, you know, present his nominee before he makes that big speech to the country. Senate Majority Leader Chuck Schumer wants to get this confirmation through the Senate in the same time frame that Republicans did for Amy Coney Barrett last fall. And that was about a month. That was about a month. That's a pretty quick timeline. So I think, you know, the timeline is aspirational for Schumer. So, you know, there's a lot of X factors in a Supreme Court fight. And we're still in the middle of a pandemic. And if, you know, someone is test positive, and they don't have the ability to vote, that could shift the timeline. That's happened before. So, you know, I think we could expect a vote on the Senate floor at the end of March or in early April if Schumer's timeline holds. But it's easy to see that shifting. Okay. And so politically, I wonder, Domenico, I mean, the court,

even, you know, with Breyer's retirement, it's not going to change the balance of the court, right? It'll still be 6-3 conservative to the more liberal justices. But do you think there could be an impact on Biden's approval ratings or the midterms? Like, can this give Democrats some juice or some momentum? Well, you know, I think short term, it's certainly helpful to President Biden because he has had some slippage with his base, Black voters in particular, who are a key part of his base. We've seen some polling where that's seen their support sort of softening with this president. This certainly reminds them of this pledge that he made, shows that he is loyal and helps to

reaffirm and shore up at least that portion of his base potentially. Whether it's going to help in the midterms and change the dynamics, it's probably very unlikely just because the headwinds that Democrats are facing are just so strong. But Democrats, I talk to, think that it will help reinforce what's at stake with the Supreme Court. Typically, conservatives do a better job of ginning up their base with issues surrounding Supreme Court nominations. But Democrats think this nomination and the fact there are some major cases that are going to be handed, major decisions that are going to be handed down dealing with guns and abortion will also be another way to juice the base because it will remind them what's at stake with the current makeup of the Supreme Court and the fact that if Democrats don't hold the Senate majority, the conservative agenda will undoubtedly advance even further.

All right, let's take a quick break. Deidre, thanks for joining us for this. We're going to let you go. Enjoy the rest of your weekend. Stay safe. When we get back, investigations into fraudulent electoral college documents submitted by Republicans. And we're back with Myles Parks. Hi, Myles. Hi there, Aisha. So you're here to talk with us about elections because, you know, you're our elections expert. That's my thing. Yes. Groups of Republicans in seven states, one by Joe Biden, actually signed documents falsely asserting that Donald Trump was or may be the rightful recipient of their state's electoral college votes. This is coming out now or has been out,

but it's getting more attention. Miles, these efforts, which in many cases seem to have been coordinated by high ranking members of Trump's campaign team, they weren't successful, obviously. But there's concern that those actions may have been illegal. Exactly. And I think when people think about this, and they hear about it, I think your first impulse is to assume this is illegal, right? I mean, these basically were groups of Republicans in a number of states. Joe Biden won and they all met right around the same time that the actual electors were meeting and they signed documents and sent them to Washington, D.C. Five of these documents indicated, hey, we're the rightful electors. We should be able to vote on who the president is. Two of the documents said, if Donald Trump is to win lawsuits that make us the rightful electors, here are how we would vote. So they send in these documents, but it's really unclear.

Obviously, when you talk to election experts, democracy experts, most people are like, that's bad, that it was a misinformation tactic. But it's really unclear on whether it was illegal because laws around certifications of federal elections are really vague. And attorneys general in two states, Michigan and New Mexico, have actually referred investigations into the case to federal prosecutors. But that's where we're at right now. I think it's really way too early to assume that anyone's going to see jail time or anything close to that as a result of this. Miles, is the House committee that's looking into the January 6th attack, are they also looking into these separate slate of electors as well? Yes. So that's kind of part of why we had these state attorney general that referred

this to federal prosecutors. But that's another reason why this is getting a lot of attention, because this wasn't something that was secret that was happening in December of 2020. Like, all of these groups were posting on social media about it. They were sending in their documents. It's not like this was not something that we just found out about it. But we did find out that the House committee is looking at it. The chairman of that committee mentioned that in an interview last week. And, you know, it's, it kind of fits into this broader theme around the 2020 election and the efforts to subvert democracy, where Democrats desperately want somebody to pay a legal price for the actions that were done. And we just have not really seen that in the year and a half since then. No, and I think that a big price for the actions that were done. And we just have not really seen that in the year

and a half since then. No, and I think that a big reason for that is because expectations, you know, are so high. And, you know, you've mentioned before, and I've heard in your reporting talking about the fact that a lot of this has to do with political norms, rather than, you know, laws that are have explicit, you know, jail time, for example, attached to them because I think they expect people to kind of go along with some of this or it has jail time attached to it, but prosecutors have never really had to deal with it before. So there's no real road tracks for how to deal with this. And frankly, the things that do have things on the books, a lot of times some of these white collar things that we've talked about Trump associates and sometimes the stories involve Trump where there is accusations that a crime was possibly committed or something something was

done that was illegal but it really kind of brings into view that there are different justice systems in this country right like if you sell crack there you going to jail you going to prison like it's very clear cut right like if you get caught then you gonna face some consequences but if you commit a white collar crime if you you know inflate the value of your properties allegedly or if you you know falsely signed some documents and send them to the government, it's more like what happens to that person is very different, right? Well, this certainly became a huge piece of the political conversation after the 2008 financial collapse. The Big Short, for example, was an entire movie essentially created around this idea

that there just are two different judicial systems in this country. But I will say, and I think this kind of gets to this big idea that this is bad and we don't want it to happen again. Congress is currently talking about – on both sides of the aisle, Democrats and Republicans are open to reforms around what's called the Electoral Count Act, which is the set of laws that govern the certification of our presidential elections. And they're currently discussing updating this law and potentially trying to put something in law that makes something like what happened in 2020 less likely to repeat itself. Miles, I'm going to ask you this question and, you know,, and you may not have the answer for it, but how likely is it that these reforms could get through Congress? Because Congress doesn't seem to pass a lot of things these days. Actually, I'd say at this point, it's definitely much more likely than just about anything

else when we've talked about voting reform in Congress, because there is actual buy-in from the Republican Party, from a number of Republican senators have seemed open to reforming these laws. And we just haven't seen that. Republicans traditionally have been so hesitant to what they call federalized elections, but this aspect of kind of shoring up, not necessarily how people vote,

but how the votes are counted or tallied up at the end of an election. There is a real openness to that right now. And people who study democracy are really, really excited about the potential of updating this law, which has been panned as poorly written and vague since basically it was written like 150 years ago. All right.

Well, let's take a quick break. And when we get back, it's time for Can't Let It Go. And we're back. And it's time to end the show like we do every week with Can't Let It Go, the part of the show where we talk about the things from the week that we just cannot let go of politics or otherwise miles you start us off okay so i am very excited to uh hear dominico's take on what my can't let it go is this week all right okay i'm curious i've never talked to you about this dominico and i want to i'm i'm so curious to hear your perspective um this week another year went by where barryonds did not make it into baseball's Hall of Fame. Shocker.

Because we have decided that we are going to police integrity and not just go off statistics or incredible hitting ability or incredible fielding ability. We have decided that because they were performing, may have been some performance enhancing. Are you a Barry Bonds apologist? Like, it's sure he doped, dude. All I'm saying is that Barry Bonds was, like, the best athlete in America for, like, my entire formative sports-loving years. That's good. And let me just read you a couple stats, okay?

Just real quick, real quick, real quick. One, Barry Bonds, the only player in the history of baseball that has 500 home runs and 500 steals, okay? Of the four best statistical seasons in the history of baseball, Barry Bonds has three of them. He's the only player to have won seven MVPs. No other player has won more than three. Lastly, lastly, most importantly, if we're going to talk about steroids, okay,

the commissioner of baseball at the time where all these steroids were being taken is in the Hall of Fame, and yet the players who were taking them, I guess, are not allowed in the Hall of Fame. So I'm going to get off my soapbox, and i would love to hear what you guys think about this look i'd be all for if you want to put up like uh you know a secondary monument uh for hall of fame people who would be but aren't there like hall of famers from like years ago who were like taking amphetamines and things like that i mean it's like people have been trying to get some sort of edge uh for, many, many years. Well, I mean, here's my thing. I think I see what Miles is saying because I remember that time too.

I wasn't into baseball or anything like that, but you couldn't escape it. Like when Barry Bonds and Sammy Sosa and all them people, they were hitting those home runs. Isn't it an indictment on society? Because didn't society know that Barry Bonds was juicing back then when we were celebrating and cheering and, ah, he broke the home runs. Didn't people know that he didn't do that naturally?

Yeah, it's really hard, you know, but I think that 1990s era is going to go down with a giant asterisk. It already has. Bonds, McGuire, and Sammy Sosa are not in the Hall of Fame and aren't going to get in anytime soon. Okay, Domenico, what can't you let go of this week? Well, I can't let go of another hard line. And that is Neil Young's hard line to Spotify to tell them, Joe Rogan or me.

And for those who've been following this, they know Spotify said Joe Rogan, you know, and Neil Young's point was that he said, I'm doing this because Spotify is spreading fake information about vaccines, potentially causing death to those who believe the disinformation being spread by them. And the chief issue he said was Joe Rogan, who's now Spotify's new star podcaster, who a lot of people listen to, but spreads a lot of disinformation about COVID in particular and vaccinations. But Spotify paid him a hundred million dollars to join their platform and have his podcast be downloaded there exclusively. You know, it's funny because Apple Music actually subtweeted sort of Spotify after this and said, you know, Apple Music is home to Neil Young.

Well, you know, and the thing of it is, is it's not like any of these streaming platforms are that great to artists anyway. So Neil Young did this and others may take, you know, they may take action like that is one thing you can do. If you don't agree with Joe Rogan, you don't think he should have a platform or he at least shouldn't be able to say the things that he's saying that are not true about vaccines. Then you can, you know, you can take your music and go. But it shows that that's not really where they make their money or make a lot of their money, it seems like. Certainly not Spotify. Yeah, Spotify. So it seems like it's having less of an impact, but maybe if more artists do it, if they're

willing to take the hit, it could make a difference. I don't know. What do you think, Miles? Yeah, I mean, I do think that at the end of the day, a huge portion of the reason we have misinformation problem in this country is because it's financially incentivized. or misleading um i i can understand neil young's issue but i will be i'm very skeptical i guess that it's going to lead spotify to make a different decision because uh like you said that podcast just makes boatloads of money i think i think if we had it the sound effect miles needs one of those ding ding dings i think he hit it on the head if If it makes money, they'll keep it going. So, Aisha, what about you? What can't you let go of?

So, what I can't let go of, on the White House beat, there are, you know, a lot of times it's very, very, you know, heavy subjects. You know, not a lot of lightness. And they do say in Washington that if you want a friend, you get a dog. But what if you want someone to treat you very aloofly and ignore your presence? What do you do then? You get a cat. Wow. I guess we've got a dog person in here.

I stole that joke from Twitter. I stole that from Twitter. So whoever told that joke on Twitter, I'm giving you all the credit. I don't want to be accused of stealing jokes. So, yeah, so the White House finally, and people have been asking about this for a long time. They finally got their cat. Where's the cat? The first family adopted a gray, short-haired, tabby cat named Willow.

And the cat is gray, and it does look very distinguished. Like, they have the pictures of it in the White House, on the red carpet, you know, with the, you know, and it does look very, very regal, I think one of our producers said. Looks very nice. And apparently, Willow is named after the First Lady Jill Biden's hometown,

Willow Grove, Pennsylvania. That's right. Yes. Can I ask a question here? Didn't we have, I'm just curious, didn't we have an issue like a year or a year and a half ago about a German shepherd in the White House biting somebody? Yes. Have we checked on to make sure Willow is going to be safe?

Okay. Well, Major, okay, first of all, Major had had some issues they had a dog leave major alone adopted in 2018 i'm not even mad at major i'm just curious major had some issues so they had to rehome him because the white house was too busy major was a rescue you know and shepherds are there to protect people and there's too many people coming around the corners at the White House. It was too much. But they did get a new dog, Commander, a four-month-old purebred German Shepherd puppy last month. So Willow will have a friend in Commander. Hopefully they're not fighting like cats and dogs.

You know what I'm saying? Uh-uh, uh-uh. Good joke. And people may not know this, but the white house does have mice um and we know from at least in the press area gotta get a cat in the press areas look mice mouse traps and all that they don't work like a cat does cat keeps it out yep yeah so the white house can definitely use a cat because there are critters in the white house and people are sometimes surprised when i say this but it's an old

building in D.C. And those critters don't just work in the news media. Oh! Oh! Oh! Not just there. That's not the only place you find rats. You got jokes today. This is good. We could go all day. We could go all day.

But I don't think they want us to so I think we're going to have to leave it there. And hopefully they won't cut our comedy gold. So alright, that's a wrap for today. Our executive producer is Mathani Mathuri. Our editors

are Eric McDaniel and Krishna Dev Calamer. Our producers are Lexi Shapiro and Elena Moore. Thanks to Brandon Carter. I'm Ayesha Roscoe. I cover the White House. I'm Miles Parks. I cover voting. And let's hope us reporters don't go scratching up the wrong post asking those questions.