What A Day - Rotten To The Court

Episode Date: October 15, 2020

Amy Coney Barrett appeared for her last day of Senate questioning yesterday and gave more evasive non-responses. Today is the final day of the hearings, and will feature witness testimony on Barrett��s nomination. Brian Fallon is the executive director of Demand Justice, a group which pushes for progressive structural reforms and political hardball when it comes to the judiciary. We spoke to him about Barrett’s confirmation and what Democrats need to do differently to fix the courts. And in headlines: 5.2 million people in the country won’t be able to vote because of felony convictions, Europe faces a second wave of Covid-19, and a major scandal in the Federal Duck Stamp Contest. Plus, Crooked's own Erin Ryan fills in for Akilah Hughes.

It's Thursday, October 15th. I'm Gideon Resnick. And I'm Erin Ryan, filling in for Akili Hughes. And this is What A Day, where we are also hosting a town hall tonight on several local news affiliates. Okay, Gideon, you need to be more specific. It is several local public access stations, and we will be in Wayne and Garth cosplay. Yes, I have been given two lines lines and they are party on and excellent. On today's show, a conversation with Brian Fallon of Demand Justice about the Supreme Court hearings and the future of the courts, then some headlines.

Yesterday was the last day of questioning for Supreme Court nominee Amy Coney Barrett. It featured more barn burner Republican questions that nobody would ever ask a male nominee like, quote, who does the laundry in your house? And more instances of Barrett going to extremes to not opine on any issues. At one point, she said that she was not, quote, competent to opine on what causes global warming or not. At another point, she declined to say whether Griswold v. Connecticut was decided correctly. Griswold is a case from 1965 where the court ruled that married couples have the right to buy and use contraceptives without government restrictions or criminal penalty. It's a foundational case in the Roe v. Wade ruling

and hinges on the right to privacy. Does this mean Amy Coney Barrett is antagonistic to birth control? I've been sprinkling ground-up orthotricycline on my cereal every morning just to be safe. That is the way. Today will feature witness testimony and is supposed to mark the final day of hearings.

And while Republicans in the Senate still have the numbers and the desire to swiftly confirm Barrett, advocates and activists on the outside have said that they've seen ample testimony that could bear political consequences for these senators in the coming weeks. Brian Fallon is the executive director of the organization Demand Justice, a group which pushes for progressive structural reforms and political hardball when it comes to the judiciary. Aaron and I spoke to him yesterday about how Democrats have handled these hearings and what needs to happen in order to fix the courts. Here's that conversation. Brian, thank you for talking to us. First question, going into these

hearings, there was a feeling that Barrett's confirmation was pretty inevitable, as long as nothing super extreme happened. But you know, for me, being unwilling to say it's against the federal law to intimidate people out of voting is pretty extreme, but I'm not a Republican senator. Did you hear anything in the hearings that puts a dent in that certainty? I don't think that the hearings produced anything that are going to dissuade Republicans from plowing forward with this. I do think that the hearings produced plenty of information that will allow the Democrats and those of us on the outside to continue to make this unpopular with the public. I think that there are a bunch of questions that

she refused to answer. And those non-responses combined with what we already know about her and her record entering this hearing, I think is going to be very troubling. Everything from her very clear positions on Roe v. Wade, from letters that she signed dating back several years ago, calling the legacy of Roe v. Wade barbaric and calling it for it to be ended. Her clear statements in opposition to the past rulings upholding the Affordable Care Act. And then in the hearing, I think she set new standards for stonewalling from Supreme Court nominees. She was refusing to answer, you know, very non-controversial questions that were not matters of constitutional law. She refused to answer questions that were matters of science, like acknowledging that climate change is real. She refused to just state the fact that voter suppression is illegal under federal law.

She refused to agree that the president doesn't have the unilateral authority to delay the election. So I think she came across a little bit more of a Trump, a Trumpian figure than people were assuming that she would come off as going into the hearing. So zooming out, let's talk about a world that's conceivably possible in the next few months. So Barrett's on the Supreme Court, Biden is president, and Donald Trump is rage tweeting from a toilet in Florida instead of one in the White House. So what's your vision for what happens to the court under those conditions? Well, you know, if they succeed in jamming this nomination through, I want to emerge with two

goals at least achieved. One, that it is so unpopular, even though they've done it, that they pay a political price in November. and two, that it is viewed as so illegitimate and outrageous that there's a political permission structure, if you will, for Democrats to get serious about entertaining some bold reform ideas. And part of that, I think, has to include a reform to the Supreme Court by adding seats, also looking at things like term limits, also looking at proposals that would shrink or reduce the power of the court by maybe walling off certain types of laws from judicial review. There's also ideas floating around to say that if you want to strike down an act of Congress, you need to have a higher

threshold than just a 5-4 split. You need to have, say, six votes, or it needs to at least be six to three. So I think that there's some proposals votes, or it needs to at least be six to three. So I think that there's some proposals out there that we should look at that would constrain the power of the court and empower the elected branches of government over this fully empowered Supreme Court that we now have. But I think adding seats and term limits absolutely has to be on the table. But I think it's going to be something where it's going to take a lot of clamoring and activism and organization happening from advocacy groups. Because I think if this hearing and the way that the Democrats comported themselves here is any indication, they don't share the state of alarm that a lot of the rest of us do.

Yeah. And you're speaking to this broader resistance to reform ideas among Democrats. But when you talk to them, what is their principal concern? And how do you counter it? So, well, first, let me say, I don't want to excessively dwell on the gray lining here. I do think that there's been an outpouring of support for ideas like adding seats in the last three or so weeks since Ruth Bader Ginsburg unfortunately passed. And so in the immediate aftermath, you saw people like Ed Markey come forward, Jerry Nadler, Eric Holder came forward. You know, we're going to have an exciting crop of freshmen in the House that are all coming to Washington committed to the idea of adding seats to the Supreme Court. Jamal Bowman, Mondaire Jones, Marie Newman from Illinois, all members elect or soon to be members elect that

campaigned on the idea of adding seats. And I think that speaks to the sort of generational divide at work right now in the Democratic Party, where you have more junior members that are already in the House and Senate and newly elected members that have come of age in a time where they've only seen bad faith from the Republicans. They only know a world where Mitch McConnell plays by one set of rules and expects the Democrats to still adhere to the norms that he obliterates. And they've had enough. And so we need to elect more of those types of Democrats. That's number one. And then number two, we need to apply the pressure on the more institutionalist minded Democrats. And it's not really a matter of, you know, being from a super blue state. We have a lot of Democrats that O'Neill and Ronald Reagan having drinks in the Oval Office.

And so their main argument against it is that it would contribute to the erosion of our institutions, that it would lead to a fully politicized judiciary. And my point back to them is, hey, we're already there. And it's largely Mitch McConnell's doing. And the only question on the table still for us is whether we're going to be passive in the face of this or whether we're going to do something about it. And the other argument that they make is, you know, if we start down the road of adding seats, won't Republicans just do it back to us? What I say back to that is, hey, look, they're playing hardball with us. And the Democrats have this

allergy to playing hardball back to the Republicans because we believe in government. We want it to function well. We believe in institutions. We're not willing to sort of tear down the columns of government just to get our way. And that's noble and high minded. But if you ever want to arrive at a solution where some kind of sense of equilibrium is restored, if you ever want to bring the Republicans to the table in a way where we can sort of move past a tit for tat situation, you need to remove the incentive for them to continue to act the way that they've been acting. And that requires the Democrats responding in kind at least once so that we can restore some sort of sense of mutually assured destruction. Mutually assured destruction during the Cold War, it relied on both sides believing that the others

would be willing to push the button if it came to it. And right now, Mitch McConnell doesn't fear that Democrats are ever going to be willing to push the button. Right, right. That's a great way to put it. Yeah. And taking a step back to in terms of like how this all works and how it has worked for quite some time, Republicans have an entire apparatus, decades of work and millions of dollars that's dedicated to, you know, cultivating and getting these conservative judges on the court at basically all levels, seeking out folks from, you know, whether it's Ivy League channels or other channels, is the idea that Democrats should build up their own equal but opposite court strategy that sort of follows that natural trajectory? And if that is a long-term goal, how long does something like that take? Well, I don't think we need to or necessarily even should try to replicate exactly what exists on the right in all its forms. But I do think that we need to be more intentional and purposeful about prioritizing the judiciary and having a strategy for the types of people that we want to promote. We tend to favor people that work

at corporate law firms that are partners representing the pharmaceutical industry, the financial industry. And we tend to promote people that have worked as prosecutors. And the reason that we promote those two lines of work is because they're viewed as politically safe because Republicans will be more likely to support those people in the Senate because they're sort of corporate friendly and they're law and order Democrats. And so we've been playing on the Republican field when it comes to the types of people we put on the bench. And that sort of creates a system where it skews the composition of the judiciary so that even Democratic a huge movement behind trying to confront corporate power. And you're seeing a huge movement with the Black Lives Matter movement to confront our incarceration system in the United States.

And so you're seeing all these reform-minded people run for district attorney positions. Former public defenders are now running for district attorney positions so that they can make different types of charging decisions. And I think that we should apply those sort of insights that are behind huge movements on the left to how we do judicial selection. So I would like to see, hey, we've called for an outright moratorium on any more corporate lawyers getting nominated to the federal bench. And instead, let's put labor lawyers on the bench. Let's put civil rights lawyers on the bench. And instead of more prosecutors, let's elevate public defenders. And that, I think, would be a paradigm shift. And it would actually excite the Democratic base about what has previously been an unsexy area of judicial appointments, because it would give us some heroes to rally behind so that we wouldn't just have, you know,

RBG at 87 years old to lionize. We'd have these young up and coming 40 year old public defenders that are being groomed for judicial positions. I think that would be exciting and something that we could build a movement around. Well, Brian, it's been a pleasure talking to you. Always a pleasure. Thank you so much for taking the time. Hey, thanks so much for having me. It's really a thrill to be on. That was Brian Fallon, Executive Director of Demand Justice. And that is the latest. It's Thursday, WOD Squad. And for today's temp check we are talking movies the trailer for the movie hillbilly lg came out yesterday combining the talents of copper-haired hollywood legends amy adams and ron howard plus the legend glenn close the trailer looks uh how do i say this

politely not good to us here at the WOD Squad. I am very sorry to say. So, Erin, my question for you here is if you held the title of Mrs. Hollywood, which nonfiction book would you make into a movie before this one? So, first of all, Gideon, if I married Hollywood, I would not take Hollywood's name. I would keep my name. I'm a modern woman. And I would go by Ms. I would just be Ms. Ryan, but married to

Mr. Hollywood. Anyway. So I think generally Gideon, nonfiction books that aren't biographies don't make good movies. And most biographies also don't make good movies because it just seems like watching a celebrity play dress up. But there are movies that would make better like film adaptations than Hillbilly Elegy. So my first choice is Jane Mayer's Dark Money in like the big short style adaptation about the way that money influences politics in a post Citizens United world. I think that could be really good. I'm also, I've spent all day like fantasy casting a, like an HBO style, high budget limited series of Jeffrey Toobin's The Nine, which if you haven't read it, it's, it's about sort of like behind the scenes drama that, and like the politics of the Supreme Court in the run up to important cases. I just was thinking about Alan Alda

as John Paul Stevens or an angry little guy like an Al Pacino playing Felix Frankfurter. The casting could be incredible. It wouldn't be that expensive to make and it would be awesome. And maybe that's just me

because I just love Supreme Court drama. But I think it'd be awesome. The third one I think would be better than Hillbilly Elegy is The Power Broker by Robert Caro. Oh, yeah. Not only because Robert Moses is one of the most fascinating figures in American history, I do not want to read that book. It's too big.

Can you please just make it a movie that I can watch? It's Infinite Jest size for sure, right? It's Infinite Jest, but it's too big. And I understand its significance, but I'm just not going to do it. Okay, so Gideon, same question for you. I have very little faith, as you do, that these things would work. And for my answer, I also don't really think that this would work. But there is a book called

chaos by i think thomas o'neill that came out like somewhat recently that's about all of like the weird manson cia like quasi conspiracy but not exactly conspiracy like hollywood insane shit from the stretch in the 60s so it's like 60s QAnon? Yeah, basically 60s QAnon, how I got indoctrinated. And apparently there was at some point like a project that like Errol Morris was attached to. So I don't know if it would have been more documentary-esque, which I think would have been the way to go. But that seems crazy and right for something.

Either like poorly done or well done as sort of like a docu-series type thing. Yeah, either way, like, who Billy Elegy? I don't need a movie of it. But just like that, we have checked our temps. We hope that yours are nonfiction in a way that's good and adaptable. Stay safe, and we'll be back after some ads. Let's wrap up with some headlines. Headlines. their full sentence but still aren't able to vote. The findings also reveal that Black Americans are disenfranchised by felony convictions at nearly four times the rate of non-Black Americans and that this happens at a much higher rate in the South. Rules to restore the voting rights of

people with felony convictions vary widely from state to state. And Californians will have the opportunity this November to vote on allowing people with felony convictions to participate in elections while they're on parole. If you live there and you want this to happen, vote yes on Prop 17. Oh, thank you for clearing that up. There's so many propositions in California, and I know they mean nothing to me, numerically. Europe is currently facing a massive second wave of COVID-19, even overtaking the U.S. in one key metric, and that's saying a lot. Last week, all 27 countries in the EU, plus the UK, recorded an average of 78,000 new cases per day, while the US recorded 49,000 in the same time

period. In that same window, however, the US maintained double the average rate of deaths per capita than that of the UK. Some European leaders are responding to the numbers with newer, stricter laws to prevent further outbreaks. France's government declared a state of emergency yesterday and announced a nightly curfew in several cities, including Paris. Yes, that is where Emily lives. UK Prime Minister Boris Johnson announced a three-tiered system of restrictions for the country, with the strictest level being applied in Liverpool. Yeah, we are not out of this yet, but we will get out of this.

The editors-in-chief of The Matrix We Are Trapped Inside, Facebook and Twitter, both decided yesterday to limit the spread of an unverified New York Post expose because of its dubious sourcing. The story involved sopping wet files from a wet computer at someone's repair store. And like any person hoping to serve justice, that store owner then delivered the files to Rudy Giuliani, who helped him break the story that Hunter Biden allegedly arranged for his dad to meet with Ukrainian energy executives. Biden's camp denies this meeting

and the source is an avid Trump supporter whose story is inconsistent. But it does highlight a separate problem. Wild child scion Hunter Biden is too damn handsome and it was hard to focus yesterday with him strutting up and down my old timeline.

Anyway, Twitter blocked the article because it violated their policy of distributing hacked materials, and Facebook limited its distribution until it's verified by a third-party fact checker and implied that their decision had to do with preserving election integrity. Never mind that the New York Post has a history of spreading conspiracies, like one from April that said Bill Gates invented coronavirus. Folks, you drink water made out of duty one time and everyone thinks you're a mad scientist. This sounds very suspiciously specific. And speaking of hunters, while Trump has tried to distract us by getting coronavirus,

binge drinking steroids, and threatening to kiss people with his big wet mouth. A real scandal has been bubbling beneath the surface. I'm referring, of course, to the federal duck stamp contest, which dissolved into chaos and nihilism this year. Duck stamps are hunting permits, which each year feature the artwork of one lucky contest winner. The stamps are part of a successful conservation program, which has raised over $1.1 billion to preserve waterfowl habitats.

But Trump's Fish and Wildlife Service put all that on the line by instituting a new rule in May, where the old duck stamp could just feature nice ducks. From 2021 on, all winning duck stamps must also include duck hunting iconography. In short, Trump's administration wanted stamps that told a story, one that ended with ducks getting aerated by pellets. Non-hunting duck fans were furious with one animal rights group filing a lawsuit to remove the rule. A spokesperson for the Fish and Wildlife Service defended the rule change, which they said was to honor hunters, as if the duck blood sacrifice wasn't enough. The rule stood, and this year's winning painting is indeed breathtaking. I'm proposing a new role for next year, which would require every painting

to include hunters being sad and apologizing to the duck's parents. And Gideon, let me just take a second to hunter-splain some stuff. My dad hunts ducks, so I think my brother also did. I never did. But here's one thing that I know about duck hunting.

If the hunter is visible in the scene with the duck, you are a very shitty duck hunter. When you're hunting for ducks, you go into an area called a duck blind, which is supposed to totally obscure you from view. There should be no evidence of hunters when ducks are swimming alive in the water. I agree. I hope Fish and Wildlife Service is listening like they typically do to WAD and taking notes on this. But those are the headlines.

That is all for today. If you like the show, make sure you subscribe, leave a review, visit Emily in Paris, and tell your friends to listen. Oh, man. And if you're into reading, and not just blockbuster worthy non-fiction books like me, What a Day is also a nightly newsletter.

Check it out and subscribe at crooked.com slash subscribe. I'm Erin Ryan. I'm Gideon Resnick. And stay safe, ducks. Someone's coming for you, whether it's a dog or a pellet or Aaron's dad. My dad might be coming for you and I'm going to be disgusted when he asked me to eat it.

Watch out. You could be Ryan food. What a day is a production of Crooked Media. It's recorded and mixed by Charlotte Landis. Sonia Tan is our assistant producer. Our head writer is John Milstein, and our executive producers are Katie Long, Akilah Hughes, and me. Our theme music is by Colin Gilliard and Kshaka.