Some weird energy in here today, hello, look into the five hundred and thirty eight politics podcast. My name is Jody Avirgan. The FBI is investigating the sexual assault and misconduct claims against Brett Kavanaugh and no surprise. There was partisan fighting over the scope of that investigation. Among other things, there is uh pressure mounting in various directions about how key senators will vote on Judge Kavanaugh when that vote does come back up here to discuss it all our usual crew. Back in a usual studio, hopefully caught up on sleep after a lot of emergency podcast list, do we have in our usual studio, we've been transitioning back and forth. This is feels like home a little bit now this ABC studio and like it. I don't like it one one. No like it. I feel like I've been going back and forth between studios crashing on friends, studios couches, that's true, yeah That is editor in chief mates, Overhaulin, eight hey! How are you senior PA

writer, Clare Malone is here: hey Joe and managing editor MIKE a hello MIKE hello by the way, if we keep my ABC comments and The only reason why I'm weirded out by the studio is it's like I've, been thinking a lot about neutral lawyers and what is dark neutral in what is late neutral, and this is a dark, neutral studio which makes it feel like it's constantly about the thunderstorm. As we approach star in my soul as we approach election listeners, I think you'll see all of us deal with it in our own ways. So I was gravitate towards color. Okay, also, today, all that there is a great piece up on the site about how Americans view the Supreme Court and how faith in the institution of the Supreme Court is eroding. So we will get into that before we get to any. I stuff that, let's quickly check in on the forecast were a month out from the election, so Nate, what do our model show and how they changed anyway, and what's what do you notice it? There hasn't been a ton of them in the forecast. We have Democrats in our classic forecast with a seventy eight.

Percent chance to win the house skews me save at odds. Please skews me seven, nine chance to make a seven and nine chance which, if you will were, were to use percentages. It would be seventy eight percent the center two and seven. If, when Dane to express poor percentage, twenty nine, they said they would around eighty percent for Democrats in the thirty percent in the Senate, one of Warren readers. This could be like a week when things are but more volatile. The reason that we have had very few generic ballot polls lately and generic ballot polls, which just ask the which part would you prefer controls Congress? Reading plan to vote for in your district are pretty Winchell so you're going to have all these major networks assume weigh in with polls this week about Brett Kavanaugh

well as a part of those polls, ask about presidential approval on the generic ballot which affect our model, and so therefore, by the time you're listening this it could be seventy five percent or eighty five percent instead of seventy eight or whatever it is, but it's been overall, given all the news like pretty darn, said yeah my cat there anything jumping out at you. Are you surprised by the stability of it? I guess I wish they would have designed the mark so yeah I mean it's like thank get it in there and fiddle the knobs a little I mean it is a little bit like you do have different things canceling out, You have seen is some a little bit of catch up for the GOP on the generic ballot, where it's gone from nine points to eight points, the margin, some of that, because the the general that we use the model is a likely voter version.

And we have seen some polls now where the GOP gains a little bit of ground unlikely. Voter polls realtor to registered voter polls there's an adjustment there which helps them a tiny bit. On the other hand, the district by district polls have generally been very bad for the GOP, with occasional exceptions, but the district polls certainly now are consist with a big wave, where there's a lot of vulnerability, very deep into the GOP ranks, and so taking those things have kind of cancel out. Generic about looks at tiny bit better than it did a couple weeks ago presents a cruel to ten it better, but the district polls are are bad for the Republicans. Our final, a clear anything change with the crop of races, you're keeping an eye on, or is this still the same? No, the Senate Map is still looking pretty much the same. I guess kind of curious. You know Actblue this morning, tweeted out something about how they had their biggest single fundraising day over the weekend that they've had and I don't know. I obviously from my first thought, was wow Kavanaugh hearings were good for Democrats, and I guess just in

I'm sort of interested to see. If that issue said, captain in General does see more to turn out a demographic of voter who wouldn't and out necessarily I mean you can also say: oh wow, everyone is intact. Blue is already super activated and was already turning out, so it's uh sting number to think about, and I I'm kind of curious how the next couple of weeks pan out, because I think that's when you might see people settling into either anger or opinions about this. This nominee and the sexual assault allegations. So I think we're we're in a prelude to an interesting period of opinion, polling Well. That brings us nicely to our first topic. So let's do that. Let's talk about Kavanaugh, but first let me tell you that this weeks, podcast is brought to you by we work, whether you are a team of two or two hundred at we work space matters from single

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team needs in order to just show up and do what they do best fine. More at wework dot com find a location near you today. Once again, that's a wework dot com. Alright, we're back! Let's talk about others. The investigation, the media coverage, the political fault lines, and there is public opinion. So, let's start there and MIKE out of curiosity, I mean if we to get a sense of how a large group of people felt about a particular issue. Is there any know? Is there any way we can do that or do we just have to go on like speculation and conjecture? Well, what we hear anecdotally for my friend I would I know I would pick a county, probably in Iowa, that I thought you know if that place represents America and then go talk to six people there. This is why we have polling. It's been three days since those capital hearings. Is that enough time some polling has there been some legit Poland has been we got. We got a couple balls, I think right we got a you go poll Paul Govs. We gotta change research, which is kind of a democratic.

Erm kind of not upshot. Siena has been pulling all their districts and so they've asked questions about Kavanaugh. So let's talk about opinions about cap. Now and then I'm curiously. I didn't look at that district polls, but in gen just seems like Ipsos Reuters in general seems like people saw that stuff through their parts and lens at this whole set of polling reminds me a lot of the access Hollywood tapes- and I can't remember if I said this on the podcast last week or if it was somewhere else, but just the way that since the allegations came out, peoples, partisan support, kind of heightened little five more and in these recent polls you're seeing people that puts a republican support for Cavanaugh go up even more so it it does seem to be one of those things where and to go further back. You saw with Bill Clinton during the height of his scandals. Is that you know the Democrats won the mid terms in part because their base was like

Now don't mess with our president right and I kind of see analogs here to those two incidents, or at least that's what comes, to my mind, most vividly yeah. I think there's something that people are doing here, which is that like they're, actually like a lot of undecided voters Haven't you heard about the accusations of who do you believe and in terms of cabinet confirmation, a lot of the polls are like thirty, eight is forty three. No ninety undecided, which is a really high undecided number for something it's become so contentious that interest me. It indicates that, like maybe situation is still potentially early volatile on. There are still some ground to be gained by either party and kind of how the debate goes out, from this point onward. This public opinion polling necessarily affect this. I mean at this

not too well. You might think it all too, but the Republicans aren't going to pull him at this point right I mean sure they would. I don't know, if that's true I mean like I think, unless the FBI investigate improve something really solid, I'm finding it harder wanted to believe that they would nomination just like seven hundred and sixty minutes, that, if Kevin allied even about a minor thing in the testimony that that would be, he didn't say, even about a minor thing. So there was a quote floating around Jeff Flake give an interview with Senator Coons to sixty minutes last night and he and he was asked by Scott Pelley. If we look, that having alive during his testimony is that disqualifying and both of them said yes now I, my initial reaction to that was well we've. As you guys discussing emergency podcast, there have been a number of lies by Kavanaugh, but those are about his drinking habits and some of the other stuff from but there's another interpretation, which is lied about the incident with Ford and if that gets proven, then that's what flake

locking out so is that where the bar is, if we learned he lied about lowered its one thing, but we don't know what it's like Matt, whether it's the first or the second I'm inclined to believe it's. The second I mean flake spent the the the land I had an interview with like to win and he was quite clear that he would prefer to vote yes for Cavanaugh. Well, you know he's like I'm a conservative, this Conserva justice and so, I'm inclined to think that what he meant was if they fall Kavanagh lied about the allegations that he would vote against. Uh I mean we don't know even something like the judicial crisis network, people have said like a yeah. If you lied, it's a serious thing right. The point is that if you want a good pre, hence under which to pull a nomination, the fact is that this guy almost certainly lied Underoath, but this stuff that we just spent a lot of time discussing what he lied about the drinking things like that, it's really hard

prove that those are lies Wall Street, while I'm missing, while latitude. Well, if you're running a drinking game that predates last week, maybe a one in a, but I don't think of the english language. I don't think that those are things that the F b I's necessarily going to be litigating, and I'm not sure that that is what key republican votes are talking about. I mean they say lying about. He also lied about. How much is social circles overlap with this school that that Ford went to that's a pretty clear, but this disk didn't get. What I think is like a very

a central characteristic of the story, which I thought about a lot over the weekend, which is that speaking strictly like journalistically in terms of like what we know with certainty, you don't know a lot here. You don't know if you lied right for all like in in a very like for existential there's doubt about everything sense, you know which, which a lot of journalists that's what that's, how they write pieces right. They say why can't prove what Cavanaugh was thinking right. This story is, is full of that of that type of stuff where, if you stick to that you're left with well, we don't know who's telling the truth here. The FBI is investigating, throw up your hands if you're, like a person who has any amount of critical judgment, you can look at the testimony and think to yourself. Cavanaugh is not a credible with

That was not credible testimony. He lied to we're almost certain about a bunch of stuff. He employed all sorts of techniques which you know. I've like worked with people like this before, where you want to talk to them about one thing, and then it's like a maggot, your you're saying something negative, seven yes, no is they are you know I can I go to give clear some negative feedback and five minutes later we're talking about something else entirely, and it's like. No, you know it's like you. People who have shift the conversation, and so it's if you react to the testimony or the whole I mean, but the meat zoom out from capital. This whole story is I that Republicans line on this is like we found Fords testimony kredible, but we think she's mistaken. That's not internally consistent. If you believe forward, then you believe forward, and she

You know she says she's one hundred percent certain, it's Kavanaugh social lesson that the party learned from the Clarence Thomas hearings or that's the lesson that the Senate learned from the Clarence Thomas hearings, which is you have to say, especially in the me to area. Oh, we believe this woman, but now we're going to say that everything she said, she's probably mistaken. I think my bone with your theory Nate is that my bone to pick with your theory? Is that Republicans, as we saw on Thursday, minus flake, are really certain that they going to show up this nomination flick himself. Is this ideologically inclined to confirm this guy? The fb investigation? Frankly, is not. Really, like it's limited in scope? It's not really like a truth. Finding thing it's sort of a cover, your ass kind of ensure Polacy is my read on it and it gives Republicans who are facing a time. Such a way to say. Ok, we did our due diligence. Now we gotta vote. I just don't

Sara Lee see people finding anything. That's like the smoking gun of a lie from Kavanaugh. That would turn someone like Jeff Flake into voting. No, I have not now I might be wrong, but I just I just don't really see the over you and is never passed out while drinking. Never just remember to anything he said based, never gotten aggressive. I mean those things are like ninety nine point: nine, nine, nine. Nine. Nine percent certainly a lot of what I will die. What what put the is: will the narrative there about he's untrustworthy in the way that commitment? Can I tell you what, well republican senators will say? Well, he was twenty years old. Then, that's the shifting line, and I think that's just as a person is like that's like the person, whatever it's like the shifting on defense would like okay! Well, you know who cares, if is about his drinking it just drinking? Well, it's like no, it's not just because number one. He was reported incoherently drunk at the time that he allegedly assaulted forward and uh

that I'm this other Ramirez incident can also say here, like just to clarify. Like this, is also me clarifying for readers. What I for listeners, what I think like the republican line, will be understood yeah. But I'm saying like Defense is very shifty right, where at well everyone's a little embarrassed by their teenage drinking habits right, his fam, is there doesn't want to embarrass himself but like the whole tuition, is that if you have two witnesses- and so he said he said- and the he has is a problem drinker where he routinely drinks to the point of Mister men answer blacking out, perhaps and the she says this occured when they were super drunk and the other. She in the room Mark Judge literally wrote a memoir about how drunk he used to get in high school. I mean does that prove that it happened no, but I think it gets that zone where it because

not even he said she said five thousand and fifty battle right and I think, like Kavanaugh into its correctly. But if he came out and said you know what as a youth, I drank But I was a problem drinker at there were a few times in the past out I become much more responsible. As I age I only drink, a k, only a few beers now and then right, but I never remember having a sale so the woman, and it was not in my character to do so. I don't know how that plays out. I think frankly, a more honest defense, but that so this this gets out it. Let's pull apart a few things here. One is uh I think that's the reason Kavanaghs lying about his drinking in college and high school is because, if he admits to having blacked out or lapses in memory. That opens the door for Ford accusations to be true right, but so, let's Nate's point about he did not knowing how that would spin out is sort of interesting

if you would have given that more honest answer, his confirmation, I think, would probably be in more doubt right now than it is which isn't it Great conclusion means that we don't like the truth. Well, one of my one of my heuristics is like don't let someone become advantaged by lying right? Don't let it be better off for lying undo. Both by the way, then, if he had told the truth, but you probably you probably is if someone is going to lie they're going to lie, I mean I don't know what else I mean they could've been a more forceful rotation. Of that. You know, I will say one thing that I don't know I do think if he could gone like that. It was a long time ago. I don't remember it to her recollections. Have some inconsistencies. Boys will be boys defense. I do think that would actually be going over a little bit better with public, because the GOP's argument requires you

kind of a a kind of a true believer right. It's like this guy would not lie about this kind of stuff and or he's been railroaded. So, if you tell some white lies, that's ok, because the incident thirty five years ago- and it's not you know- I mean you have to like and also argument about, processor appealing to other considers and maybe to their base. Maybe it's a media reporters not to like in file voters in Iowa or whatever, but I do think that, like he might have more pub support behind his side. If he had gone with the boys will be boys defense, so it would be having a huge, also, probably very ugly debate, but, like I don't know it's a different debate. The basic conclusion to me is: you have nights at a he said she said, and if you compare where we are now to the Anita Hill Incident and testimony and reaction, you actually could come away with some optimism right.

Clarence Thomas didn't become any more unpopular during hills. Testimony right, he was confirmed with bipartisan votes, most of public disbelieved hill right. I characterize the polling earlier on Kavanaugh an Ford's testimony as as mostly breaking down along partisan lines, which it does but kind of secondary to that more people believe forward. Then Kavanaugh Kavanaugh, who is already very unpopular, has become more and calculator since all this started right. So in that sense, you could kind of look at it and be like well. The american public. Clearly. Cares about allegations of sexual assault and sexual misconduct more than they did before, but you are left looking at the Sennett. It just has like a map, problem. Basically you have a he said she said right, but he sort of agrees. What Ford said was credible, compelling

honest about what you do and what you didn't know what you remembered. What you didn't remember, Kavanaugh's testimony was full of shifting blame of Inac. He sees an yet still right now, at least Kavanaugh sword is literally worth more than fir towards. I think Michael ate it out really well, which is- and this is, I guess my like note of pessimism from the ladies, which is you're right. I think american public opinion. This is a good thing right. An american public opinion is more, I think, is affected by the me too movement, whatever just couple decades of progress on on gender inequality, but I don't think american institutions institutions to it in a two sense one. I think the Senate institutionally isn't equipped to lagging indicator. Yes, there is an equipped to handle, from a demographic point of view, isn't equipped to handle, like the

it's kind of he said she said thing and not come out on the he said side of it, but then two, you know if we take the Republicans premise, that this is a trial right and she is to prove beyond a reasonable doubt that just system is often just sense of let ten guilty man walks free to preclude. Isn't man from being imprisoned That means on a lot of these crimes where it is. He said she said frankly like that, just system is pretty on just for from a moral sense for rape, victims or sex call victims in general. So it's kind of like it's sort of like this. Some of the same old institutional story, even if the american public feels differently- and I think you know we're going to talk about this late in the in the show about Americans trust in their institutions, but hey, maybe the maybe the fact that it's lagging. This society lagging institutional lag? Are there out there out of Wack

We are going to do that in a second, but actually clear on on this question of public opinion, bring it back to this week. Do you think that the results of the FBI investigation and then I guess intern what happens to cabinet confirmation, whether he goes through or not, will have a big effect on who is motivated and who is angry and who is excited or was- and I kind of already cast because of what we saw last week? I guess the demographic sliver that I'm interested in are Republican leaning college educated women, because we did see that in surveys, the republican women, while they generally fell on Kavanaugh side, were LE enthusiastic about his point of view. I've some surveys where independent women who more sympathetic to Ford's point of view, and that's I think, going to be this important demographic. Where married white women's college education were like republican voters, I don't know if that's true and I

under what their enthusiasm level, you know whether to be affected by this capital stuff. So I guess that's one thinking about the most when I, when I think about these public opinion surveys, mica yeah, it's a question of this is like a you know: everybody has multiplied that identity is right in, as does this activate their identity as women identity, as Republicans really good about it or yeah yeah. You know it's. There were a couple pulls out last week that showed to share of republican women who supported Kavanaugh, dropping an I thought. Oh that makes sense, but then a couple more came out that showed it either hoe study or or improving- and you know that's a such a small sub sample in a poll. So it's like subject to a lot of noise but yeah, but we're gonna have to watch and see. You would think this story is a huge story. You know it's, it's all body clips the mid terms. Actually, so you would

think it would have an effect. Ok, let's move on and we're going to talk as Claire mentioned, about perceptions of the Supreme Court as an institution. More broadly, but first let me tell you that today's podcast is brought to you by Casper. Casper helps you get the best night. Sleep period once you try Casper, you will never go back. Switching to Casper is a no brainer. It's a high quality mattress at an affordable price. You can sleep cool and comfortable every night, thanks to the unique combination of foams, to provide the right pressure, relief and Alignment Casper ships right to your for free in a small box where you will say how is there possibly mattress in a box, but there is trust us you can open it up there is that mattress. If you don't like that, mattress table, then pick it up and refund you everything. No questions asked from its engineering to its packaging, to letting you try for one hundred nights for free. It is no wonder that Casper has over thirty five thousand five star reviews of all their products across cat for Google and Amazon

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app for you, so that you will never miss a great match. Ziprecruiter is so effective. Eighty percent of employers who post on Ziprecruiter, get a quality candidate through the site within the first day. Think about that you post a job within one day you will have a handful of great quality candidates with It's like that. It's no wonder that zip recruiter is the highest rated hiring site in America right now. You can try it for free at Ziprecruiter, DOT, com, slash, five hundred and thirty eight, that's the numbers, ziprecruiter dot com, five hundred and thirty, eight zip recruiter the smartest way to hire We're back and, as we've been discussing, one of the things that was on full display last week was Kavanaghs partisanship and the commentary in the wake of that ranges from he showed was disqualifying too. That's how someone should behave if you were wrongly accused. You should be angry and you should lash out so, let's think about those moments that we saw and maybe brought in it a little bit to the notion of the Supreme Court as a partisan institution and how Americans view that

a piece up on the site today, by a million times and devote my gut, you can. You know, hang your hat on a piece or give us a sense What is saying that I would just repeat- and let me know your road, but did Americans view the Sopr court as a political before last week, we don't have following that ass. Do you view the Supreme Court as a political body? Most Americans have at least some faith in the Supreme Court. Then there's like three eight percent of people who have a great deal of faith in the Supreme Court and then there's like a little less than one slash five of people who have very little or none so in general, the Supreme Court right now is still largely respected and people largely have confidence in it. That said, the number of people who who do have faith in the supra. Is down significantly from where it was in two thousand or specially in like

these an 80s. So it's like what is your famous frame of reference relative to other political institutions like Congress or the presidency, the Supreme Court looks great relative to like non political institutions like the NFL like so like military, let's say or police or where even where it was a few decades ago, the Supreme Court does Bank does not look great bang sex right. Erica eight state banks- I thank the bangs now, if you let it Yes, so clear, I mean what is sweep of history wise. What are they moments where the Supreme Court has felt like a political institution versus this dispassionate institution? Well, I think, if we're looking at modern, institutional trust numbers you can see them dipping. You can trust dipping in the Supreme Court right around the two thousand potential election decision. That was a that was a big I guess demerit point for for the court, but I guess

the court as a political institution. So this is a funny question right, which is itself funny alchemy of things because it is supported. The judiciary is supposed to be set apart from politics a little bit and yet presidents appoints NAM. You know justices the Senate debates them, I mean inherently. This is a political body that, I guess has you know, has also the cover, not the it has jurisprudence, but also the cover they're off to say like well, we're not we're just calling you know, as people like to say bridge, were balls and strikes right. So I guess you can look at any number of points. History and say well. This was a politicized court. You could call the Warren Court extremely political. You could call

dvrs era of the judiciary as an incredibly political. I think the court kinda has this. I don't know if it's a new problem. I probably am not it. I'm not well versed in this enough to know, but I think the fact that the law two with Trump's two nominees, and I guess it's bring Merrick Garland into this have been part of this maybe in a new way, just really open partisan battle, like I think, there's less cloaking in the a importance of it all and it just feels more like five, for which way is it going to be? Which weighs about the belt of the balance? Is the balance of the court a I heard. Someone recently make a point that the court right now has I mean has no moderates right. He made up of pretty by the book conservatives and pretty by the book liberals there really aren't a lot of swing votes in Roberts. Is Is the swing vote in that? That's because he,

chief and yeah been because he is to go back to talking institutions he's concerned about the two reputation of Supreme Court can people trust it and take it seriously, but the fact that it is such a polarized court, it this is weird to me. People, and I think you hear people you know in what's a stereotypically conservative place in the country, people in Texas being like it's a you know the like those terrible like Ruth Bader, Ginsburg heads and then people in York, saying you know you can appoint Kennedy was a terribly conservative, blah blah blah. But like there's no middle ground when people discuss the court either like both those things are new? Is the error the swing justice coming to an end. That's new and we're likely to have an error of a solidly conservative majority fires. Four

minority members of the court, that's new and the court and the confirmation process for the court being nakedly partisan that's nice, and one of the things that was on display to that end was cavernous comments last week, so Nate and what did you make of cavernous partisanship himself in the testimony on Thursday and do you feel like this will mark another turning point in terms of how Americans view the court as a partisan institution yeah. Probably like he already? We've never really had an unpopular Supreme court justice confirm The court, I'm I'm sure, are some that become unpopular post confirmation, but Clarence Thomas in his hearing had like a you know, like five thousand two hundred and twenty in favor information, as in that case they were undecided but clearly a large. I think, majority at the really a very wide plurality in favor of him right. Kevin

most polls show a plurality opposed, maybe only thirty. Seven or thirty, eight percent public in favor, so that itself is fairly unprecedented. How to come out, and especially this kind of very boy scout ash. He gave to Fox NEWS, where kind of played very down the middle right to come out: Like that I mean, I think that will permanently affect the perceptions that Democrats have about the when we did mention earlier their pull around, because there's actually some some evidence say it's not quite like a slam dunk, but there are some hints that it's actually Democrats and not Republicans who, in this election, can the Supreme Court a more important issue, which is would be so from what you normally see in polling and soap, to activate the spur port as an the Democrats, that's front of mine for Democrats Anas how they think I mean. That's, that's a big shift in american politics.

This whole thing is just like to make a point. We haven't had an unpopular justice confirmed so like I look if you're a republican right now, you probably feel very frustrated by this conversation because it because, let's say you believe, Cavanaugh and like well. How would you respond to false accusations and now be yelling at other people, but it's very light. Like now, they're now, you're now you're upset with you know getting mad at being accused of horrible things, but it looked put ideology aside. This is new. You know. Even go, even in the Trump era, Neil Gorsuch was popular when he's confirmed. So like look up, we are normally the people of five hundred and thirty eight were like look calm down in the grand sweep of history. This is nothing them blah blah blah, but it's like the I like

art. The headline Emily is place is like. Is the Supreme Court facing a legitimacy crisis? I think the answer is clearly. Yes, if Kavanaugh gets on and you'll, have to justices on there who have been accused of sexual misconduct and they're, going to be S. Conservative, conservative rulings on issues involving gender issues involving sex people on the left are going to believe those decisions to be legitimate. I really doubt that so talk talked about that in a second. You know the legitimacy crisis question, but just on your you know what you were saying about the the way that Kavanagh displayed his anger last week. I think it's worth pointing out. There's a distinction between him being angry about being accused of something, him bringing in sort of political conspiracy theories and that's it you know so it's okay. I mean, I think, it's reasonable to say he was he's angry, He thinks he's innocent he's going to put that display, but then to go that step and bringing in the Clintons,

I'm going to have sort of all the political step feels like to a lot of people, the distinction. So there are two things going on. Last week there were two things going on there and they both have to do with the reputation of the court. One understand that Republicans Defensive Kavanaugh's behavior, is that? How would you react if someone publicly accused you of sexual assault? I would be angry, but I not comport, myself. The way that he did in a public hearing the Mr Sanders and the overt anger is actually not a defense of being falsely accused. The justices of the Supreme Court are supposed to comport themselves differently. As far as I'd say, demeanor goes. We routinely I think I'm then lower courts and municipal courts, whatever federal circuit courts. If a judge gives sort of kind of outlandish comments from the bench when they sentence someone Bubba Bob that's kind of a red flag to the

political aspect of this. I mean people have brought up that Ruth Bader Ginsburg made inappropriate comments about Trump, which she should have not have said she apologized for but yeah. But Kavanagh's politicization of his nomination process by him making subtext text was problematic, but I we also need to separate those two things out and I find a report. The republican offensive NAS display as well you'd be you're too. If you were publicly accused of sexual assault indubitably, yes, I would be angry, but we expect Publica LOS, let alone one of nine people who has an its power in the United States to have a little bit of that judicial cool, even if it's just a facade, because, frankly, a lot of the way people act in public life is a facade and that's all keep things going on this question of legitimacy. So I mean after Bush V or there was a good amount of Democrats who kind of said I'm done with the Supreme Court.

You know I've lost faith in this institution, but I think we talked about this on the show a little bit before that it's it's sort of remarkable that the court recovered from that and had and sort of came. Back to being seen as a institution was able to issue rulings and those rulings were accepted in a larger sense Does this feel different? Do you think generationally there will be a crop of people who every ruling if Kavanaugh's on the court will question it? Yes yeah. I do I mean I don't know, obviously, but It just it makes so much sense, given the specifics of this of the Kavanaugh confirmation hearing, but also just given the kind of sweep and trends in PA text. More generally, I mean everything is becoming more part.

And so you sort of I'm gonna. Why not the court right? Why should why? Should the court be any different? You know when you get the sense from Cavanaugh. I guess what I'd say is like look. The the court has always been political right. You saw that in Bush v Gore, you see it in other cases right. The difference is like one. As Claire said, the facade matters. You know the trappings of these things and the appearance of these things, I think, has sway over how people see it, but also like look, I'm speculating, but Neil Gorsuch to me feels like Someone who's like a conservative, but he, like probably is cares about the law first and and then he's like yeah, I mean so a lot of the arguments that Republicans are making a demo. Today we do this to anyone. Course, is gorgeous was the smoothest thing. That's happened to trump throughout his presidency. A little bit differently. More center trump is bit more popular, but, like Democrats didn't like

lay a bruise on him, much less, you know seriously hold up the nomination. We by the way, have our first tell us on tool to make up breaking news. Little set ITALY, it's a breaking point what kind of says what the a polls say this is. The Quinnipiac poll is the first telephone pole that come out post hearings. Much and it says the second house. Forty two, yes come. Forty, eight no confirm so that's up from forty. So the note it was first even before now that showed negative six, which seems to be consistent. These online polls that earlier that it's not catastrophically worse, it's probably a little worse, it's very unlikely, not better, but he was already here. His support was already low enough. Where he, you know, he didn't have much room to call before hitting the kind of bedrock republican support level.

It was like you know, forty eight, no forty, two, yes, it's their numbers. I might, I might wanna being the polling average after a few more days somewhere around there. So I want to get the final, That's just on this legitimacy question and thinking kind of in the larger scope. So neat, I mean what is it mean if there is a large group of Americans? Maybe all Democrats are majority of Democrats. A big crop of Americans who question every ruling that and go their way for the next decade or two a what does it mean? What exactly does that mean to question a ruling? And then, how does that affect our politics? I don't know I leads to a lot of tit for tat. You know it makes it less like Democrats. If they do, we take the Senate, would try to allow Republican and to confirm someone. It maybe makes it more. Like you'll hear serious talk about, should you have court packing yeah? I what's that, what's the you for

that, is a court packing and I'm trying to think of it like a not neutral word to describe it, but, like I go see much more serious rhetoric from Democrats about like should increased like two hundred and eleven members of Supreme Court we get our fair reward for Merrick Garland having been denied or Kavanaugh has been having to show through or whatever that's right. You will hear talk about. Impeaching Kavanaugh: what happens if you confirmed and then there's more evidence that comes out or not even that comes out right that A democratic talking point I think, and so let me spend here here, site, they're gonna, try it's been, let me spend a techno know the positive version, if you're a liberal is people start vote and engaging on the court in a real way, so that that's if, if you're on the left, that's up a positive version of this but like let's say: okay, let's say Kavanagh gets on. Liberals lose faith in the court, win the presidency in twenty twenty

you know, but think, but whoever wins. Let's say you know, Democrat Indo of Florida wins the presidency and turns corrupt, does all sorts of crazy man and is sort of paying people off and and taking bribes and there's movement to impeach her, and it turns out that she was recording conversations right and then whether she has to release the tapes goes to the Supreme Court. The court fines five four. She has to release the tapes in a world where views of the court are partisan and polarized, and the court does not have legitimacy that President Jane DOE, could politically withstand refusing the Supreme Court order I'm. But you know this is the Nixon thing right so so to make this much,

more simple, just imagine if, when the Supreme Court found unanimously that Nixon had to turn over the tapes, it didn't have the legitimacy it had that and that one whole half of the american Electorate thought it was illegitimate. Then you can easily imagine Nixon not turning over the tapes, what you thought about doing so they there's a point at which the court, the court, needs public faith in order to have power. That's the only way. It's it's! It's orders are enforced right at the spring court, doesn't have have an army; it needs that legitimacy to for people to take take what it says yeah. So, let's get back to this week and we'll start to wrap to up here a few more minutes for Claire? Do you want a game out what you're watching this week? Should we just go right to fictions about whether he's going to get confirmed or not yes or no yeah. I think he's going to get confirmed to go back to the converse

and about how institutions and public opinion dot match up white men say, confirm Kavanagh, fifty nine percent to thirty two percent. According to the Quinnipiac poll. Also, we haven't talked about this, but I mean the Trump White House has it's not just me. I'm pressure, but the Trump White House likes Kavanaugh's views on executive privilege quite a bit and so they're not getting the same bang for their buck. Shall we say if they need. Someone like Amy Coney but clear that need that gap between in public opinion how institutions behave even for Collins in Macau Skis, you don't think that that's a big enough pressure point for them to change their their their vote this week. I'm not sure I don't think so. Yeah mate to Gunther, I mean I know I I think you know my premises so time has been. I think, off from what republican leaders seem to believe which you, I thought the whole time it like. This is not smart I care a about that about politics we about that last week, and so therefore

thought that Mcconnell would recognize that hey look. If we can and find an excuse to withdraw him, then we'll get someone who's, conservative and not have this big mess on our hands right at this point. They believe that originally or not right and gone far enough down the road where it's like. Okay, now there consequences to pulling him, one of which is that you probably would not to confirm someone pretty midterms. So anyway is going to default word, but US teens, what do they say? They say. Sixty five percent chance of confirmation, on did the Gi Center predicted by the way, during the day of the testimony reply in a back walk forward. Were you guys all really all on? I just saw that I just saw weeded out. It may be inmates we just dipped like crazy during force, testimony and then crawled back up as captain I was out, there is kind of remarkable set that but again I will read it. I still think, and in fact probably some of the poems during a bear out that this is not politically advantageous to the GOP right, but I think

was probably wrong, or at least I'm uncertain. If I was right about like they will see that if they agree with that, so I'm somebody was assault. Tord we're just going to that part out where Nate says I was wrong, but it was arguing with Nate an earlier podcast and who wants that node Nate. Did you see there is a New York Times article source, to party leaders in the Senate? I think which we laid there thinking as the house is basically already lost Pushing Cavanaugh through might hurt us in the house, basically dooming us there, but will help us in the Senate. Us being republic what's your logic. I saw that and that made me feel like that's kind of weird spin, because there has to be like, four assumptions that are like very precisely Pru write that letter. That would be true for that to be true, like some slip between where it's like yeah hurts you in swing districts, but just get really red right, and I mean it might be true that, like it's, a difficult vote for me chinin Heitkamp. That's gotta, be a lock

it's a great also red state them yet, but also like a lot of the Senate. Are not these red state incumbents right? It states like Florida and Arizona and Nevada and Texas. Maybe New Jersey, who knows right there is Polk, show New Jersey close today, and so it's like it's not every single Senate race is just a democratic incumbent, but anyway that's pinned to me felt like a little impossible. I will say, though, like we would expect under any circumstances, partisan engagement to be going ' right. So I can imagine like that. You're going to see people see various indications that parts engagements increased. You say all 'cause. It Kavanaugh, I think, in the contr group where, like you don't have, this is also post labor day intensity tends to increase, yeah he'll probably increase it, but I don't think the GOP's arguments for confirming him are very well argued. You know I have live, reason to doubt that Kavanaugh will increase GOP

enthusiasm, at least in the short term right. I don't doubt that that could still not be helpful. In fact, it could be detrimental feet does more to increase democratic Susie Asom, which there's some evidence and if he does poorly among swing by, So in the Quinnipiac poll he was like a negative ten among independence, which is about what you'd expect usually the independent numbers match the overall split in the pole. Right but, like you know, your goal is the election not to maximize GOP enthusiasm, and I think I think the fact that they are about enthusiasm. A not like the broader picture is is a little short sighted. What was testing is you know in Ford's testimony. She was both testifying as a witness, but also given her profession, sort of remarking on on the kind of science of how much

Right testimony had like a similar dual role going on. I, when I was watching it and thinking about afterwards that he was obviously testifying as a witness, but he's also like a decent stand in for the in, and so when I you know watching him be angry and engage. Aged in that anger and I sort of thought yeah, that's probably how the segment of the republican base, particularly white men, will respond to put itself Like you know, of all these possible slivers in segments to watch. It really is democratic, anger, slash enthusiasm that is going to be the kind of real defining. I never hear out of this. You know: we've seen that result in one or two poles, but like we're going to have like by the time readers This be a bunch more polls but like very big gender splits in this Quinnipiac poll. So men

favor confirmation by nine points. Women oppose it by eighteen points, white without a college degree there's a big kind of split their people without a college degree favor confirmation, whites that can't be favored by twenty eight points. Points with the college street, oppose it by six points that I think that is a little funny. Is that Kavanaugh is not exactly like a working class hero. The guy who who but needed he got into Yale, does not strike number one. I want off school, I don't know much about his upbringing, but yeah, but this is not a guy who's like super, so I think the answer's where, like you like, I got into Yale by bus to my, but you know I think that was like not as a edibles. If I got into university Michigan by choose wisely right. I know people got into Yahoo, are idiots I know. Also, if you do, if you went to an elite college, you know there's plenty of people who drink in our successful. So what was the point here? There was not, I gotta put. It is not like a super he's. I do think there's a little bit of a risk to the GOP.

Like base, isn't going to rally around him and some it's always will. But I'm missing the point about this you're saying that he, because until yell he doesn't resonate with Trump space Trump doesn't yet Trump's based on paper. But Trump is a very good communicator. I mean I think he just gets back to what we've been saying with Claire's been saying, which is there's a disconnect between how institutions behave and what voters want, but at the end of the day, pudding, someone on the Supreme Court is a big enough prize that whether he connects personally or not, this is going to open alright. That brings us to the end. So sorry, real, quick, let's check in on a timetable Thursday, is when, in theory the fear what comes back for every Friday Friday and then we'll see what happens between now and then probably a lot Claire and I think information Nate, says: there's a zero percent chance. They vote to confirm cabinet yeah, that's an accurate representation of your opinion. No, I said six,

there are sixty three end of the show nights over. Thank you very much. Six. Three Clare Malone thanks! Do thanks! Jody thanks to you, Michael Cohen, my pleasure and a couple notes we leave. You first is that we have a live show coming up on Monday in Washington, DC home of Brett Kavanaugh and me as well. It's October, eighth Fivethirtyeight, dot com, slash live for details last show live, show was a blast. It was really real. It was really fun to see a bunch of you come out and do a lot show yeah. I need I need the Mika fans in the pot, s audience. Please turn out this time. You know I've so yeah come on out. You can go to fivethirtyeight dot com, slash live and you will get a chance to see us in person. It was fun and you can meet. My parents will be there. Also a special episode coming your way later this week, our very own Galen jerk went to Houston to report on the congressional race in one of the districts that swung the most towards Hillary Clinton in two thousand and sixteen he reported a great dog

generally about that. Districts are keep your eye out for it in that same feed. Who knows how many emergency podcast between now and then our next Monday? My name is Jody Avirgan Galen drew is our producer. Tony chow is in the control room you can get in. Try emailing us podcasts at Fivethirtyeight dot com. You can also, of course, treated us with any questions or comments about the show. If the fan of the show and in particular fan of the emergency podcasts leave us a rating and review in the apple podcast or when you leave reading it helps our rankings, which helps others discover the show or just help spread the word thanks again listening and will see you soon.