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The Supreme Court vacancy and the possible collapse of American democracy


Sarah, Ezra, and Matt consider the case for reforming America's current practice of granting life tenure to Supreme Court Justices, discuss the political fight over replacing the late Justice Scalia, and ponder a 25 year-old work of political science that implies the United States is heading for a coup.Today’s episode is brought to you by The Great Courses Plus. Go to TheGreatCoursesPlus.com/Weeds for a special limited-time offer to stream hundreds of courses for free!This episode is also brought to you by Club W. Visit ClubW.com/weeds and get fifty percent off your first order today, and don’t ever come home to a wine-free house again. 

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This is an unofficial transcript meant for reference. Accuracy is not guaranteed.
This week's episode of the weeds is brought you buy club Debbie, call service. You know get wine on the internet right now, Club Debbie's, offering listeners fifty percent off your first order when you go to club, w dot com, slash weeds, this week's Epps. But the weeds has also brought to you by the great courses plus go to the great courses plus dot com, slash weeds for a free off the following podcast contains explicit language. It's a fucking disaster, hello. Welcome to another episode of the weeds boxes, policy, Prague, Castle and apply network. I met replace yes heard. My colleagues are clear replies and shiny new powerfully to see officer divergence in recording studio, B, B, comfort level in this room, just temperature wise dislike off the charts improvement, so
it has itself is gonna. Get that much better to go with the better equipment are hoping to hear it. Oh by the way. Yet my I guess this week, the pockets wretched on you guys interview people. Is it also going to get better? It is presumably gonna be also not that hot in there, but I have Tony pedestrian, who is a Washington Dc Super lobbyists, and we talk how lobbying actually works. What it is, I think, weeds fans who care lobbying in and feel upset about. It will be interested in the conversation yeah, absolutely its subject shrouded mysteries. I look forward to listening to your other broadcast that yeah. However, more than the with still matthies would say all will become clear when you listen to explain logic. That decision could search the as recline show and you ll find it egomaniac bonanza reads out loud that we await the weeds. It though the real shout What word loosely thinking here about Supreme Court, justice, engine and Scully as death and the battle over? We stop yeah, like wholly chef.
A really big thing happened in american politics yeah. They things almost never happen in american politics. I sometimes I do it's. Usually a Supreme Court justice dies unexpectedly, one of the first things we wanted about separate from that. The specifics of this fight is that you know one aspect of the american judicial system is that the judges, all federal judges but springboard justices, most notably they have lifetime tenure on the bench and they often try to time. There were tired and strategically so that they be replaced by an ideologically sympathetic president. But you know, like many people, Supreme Court justices, don't always know exactly when the going to die, and so currently these these deaths become mega news events I mean any time any public official died. It would be a big story if the Treasury, secretary or general died of a heart attack. Unexpectedly, that would like news and the present would want to replace them, but it's a fixed term of
fears that it doesn't really matter how long that person comes in at whereas a replacement to just up on that for one second, I do have one other thing: it's notable there's a Supreme Court justices that institution they themselves are independent. If, if Obama nominated Treasury secretary that person moralist as Obama's will and if he or she doesn't, they get fired so there's also a different level of imported ominous. It's true, but even someone might Jenny, yellin right, who has sort of independent authority and a fixed term right, so her turmoil, outlast Barack Obama's term in office, but it still its fix do if she were to die, and that would be a huge new story and replacing her would be a big deal, but that person's term would still just end at the appointed right of. Helen term where Scully, as replacement depending on who it is owed. Scalia was on the bench for twenty nine plus years, just as Kennedy is getting, there he was the longest serving justice their eyes area you'd been around for quite some time and that's become typical.
In the modern day I mean there was a lot of. sentiment among liberals Democrats that Ruth bade her Ginsburg should be sort of conservative and resign. Her seat before Democrats lost a Senate majority a couple years ago, but she liked her job and she wanted to push the envelope, and this became a big subjective conversation in liberal circles in democratic politics, she's, basically, gambling that either Hillary Clinton or Bernie Sanders. When the election, or else that she can live through an entire Republicans, took term in office. I would not put that pass through better, it may be, I well, she might be the one a mortal just, but I just want to note on a metal I will get having this goes to what we're going to talk about. This is a really ghoulish conversation. Yes,
it's a conversation that is created and habits constantly on both sides of the island. It it's a conversation driven by these lifetime appointments, because something that would never happen in other contexts. If you imagine Supreme Court justices eighteen year, fifteen fifteen terms, you could still have have wondered satellite healthcare problems and still be looking at strategic requirement questions, but it is the case it, sir justice is Penta like their job. They do it till they are very, very, very elderly, or until they they die in office, and so you, you have this sort of strange pressure on them to retire, maybe before they feel they can't do their job, but in time frame, co partisan to appoint their replacement and it's a bit of a group. Speech, her good tat, pre american politics. It is driven by a very strange quirk of our system that that matters. I think this was
in a paper you found is unique to our political system yet mean it will ever sucking up. Stephen Calibre ASEAN and James Lindgren have an article term limits for the Supreme Court life tenure reexamined is, is the title way as it is a lower view. Article suits, like hideously Gillian Footnotes, but if you ignore the finance it gets shorter. It just a contains like the striking fact that, forty nine states. Don't do this life tenure thing and all other democracies don't live ten now their systems differ quite a bit from country to country. Summits gave a mandatory, tired and age of seventy or seventy five. Usually some have just arms, Eba, you'd set for eleven years, since article goes through a lot of ins and outs, but I really thought that wishes to a good factory. Because it you know, there's a certain amount of where's the burden of proof on these things and when you King for a change is something that we ve done since the founding of the republic. You know people wow, you know, is the system really so broken and we need to fix it.
But on the other hand, you have this evidence that, Nobody else is doing it this way and the kinds of things that originally motivated but lifetime tenure. If you read em and Alexander Hamilton Federalist Paper, and unlike ten years, I believe Number, seventy eight. So he goes to these different reasons and a lot of them have to do with the specific details of monarchies and would he seemed be considering as the alternative is that the king could hire and fire judges and by making appointments for life in the old british common law system, you had a judiciary that had practical independence from the king. We ve created in the United States a lot of positions that have that kind of operation, independence, but from the president that reserve governors are a lot of regulatory agencies, the President conscious fire as he see commissioners, but he picks them, and then they do what they want to weaken
redress that Hamilton also says you couldn't get qualified people that people wouldn't want to do the job unless they had this kind of life from guarantee that just wrong like if you would be awesome to be Supreme Court justice, but other countries at any rate have properly staff judiciary is that they don't. Work and they will run for president, even though its own four year term, if it's not like people, look at the presidency very, like only four years like. I would rather do something else with my time and its like a paper, you found the other scholarship exists. People are kind of like circling Eighteen Year term, so we're talking about terms that are much longer presidency, they still let people stay in office in kind of developing jurisprudence through. it allows him. Independence from am weathers political storms in it, this is where legal scholarship converging you actually don't as trying to find some defenses of life. I'm tenure and those are actually a lot harder to find right now
find what I found why a television set eyes on whether they are? I think this has become such a prevailing opinion that I long elites, Rick Perry in two thousand and twelve ran for president argue that we should have fifty you're right also has a lotta, Glenn swear. You knew it. Basically, it seems like the prevailing like the sea. W is that we should have these limited terms. Even though Congress has taken no steps, so there's another paper from a guy named David Strauss at University of Minnesota, where he he did so argues for some reform. But basically his view is that if we created he can your terms where usually it's talked about. You have eaten. For two years and new justice come up. A new justice, replace you'd have out of judicial turmoil where you'd have so much change on the court, where you could see the jurisprudence just really that splitting back and forth so, for example- Abortion is an issue where you could see: rovers has weighed kind of in the course of Obama Presidency the right to abortion comes legal in the course of George W Bush presidency. It began
illegal or unconstitutional, and a kind of swings back and forth. So you have, its turnover? That is one thing that the lifetime limit. Basically we're talking about bringing new people to the core, having shorter terms making sure people are still mentally I saw his idea, which is an thing, one I dont know about work is actually to create a kind of golden parachute, Spar Supreme Court justices, so he wants, it sounds as was laughing at this. I thought, This is insane. LAS Vegas loves insane. I'm just saying seems unlikely to me that Supreme purchases are so heavily motivated by pension concern snap, Let's not, you got no for Asia, Africa them parachutes. Her justices is best is at once just They turn sixty five. We should offer them a very handsome compensation package for network is essentially does their salary and India. Their paid. What kind of go down towards their salary over the course I think it faces outer like eighty five, I don't really know it does with Justice- is no longer there,
five and another thing that's part of this future is not just the eagle and pursue, but also allowing these kind of senior justices, Morbus instability where right now out of this is still true, is true at the time that this paper is written in two thousand five m, you could be a senior just as you could be a retired Supreme Court justice, but your office was literally in another building. You'd have to walk ten minutes over to the court, which appear like it is probably not the most convenient thing. So the idea is to involve the senior justices more in the system and its give them a little bit more work, not us voting on the cases and a lot of money. His case If you look back is that you have a lot of justice as you are in firm and there seems to be at least some evidence their staying in it because they do need some kind of salary. They likely are well off people, but at the same time pulling their salary is like a pretty strong economic incentive to get out of ok Four slogan: we just as there is a weird internal contradiction in this paper, and I like this
browser. I think it makes it as good a case like the defined for the lifetime appointment, but one of the arguments and makes about why it would be bad to go down to eighteen. Your terms is that if you went on to eighteen, your terms, all of a sudden supreme court justices would be scheming about what did he do at the end? Their term right in a kind of worries about a situation akin to the congressional revolving door, where Supreme Court Justices partook it towards the end of their term cause. I know they're gonna be punctually unemployed in two or three or four years are, you know, think in a little bit about who do they want to work for next? How do they make a lot of money that might affect? The jurisprudence certainly might affect views of the jurisprudence. It could be that people look backwards after some Supreme Court's US retires at sixty four, and it goes to a big white shoe law firm and then all the People looking back at their cases in saying well, you know worthy, does currying favour with these big corporate clients, so that is of. version of his argument that says right now, Supreme Court justices are not motivated,
Mine is obviously they could all just retire at sixty five now and go get pay. Any amount of money they possibly wanted anywhere in the world right there no law firm that would not pay a justice, millions and millions of dollars a year that has at money. So the idea that doubling or salary is a key thing here, it's a forest of paper, has a belief that are motivated by salary. The paper really does not have a way to explain why they orangist retiring now, because what they want to do is make money the way to do it. Is to retire early and go and make money not from a federal government pension but have Harvard LAW school event, which is less ethically challenging thing. I'm sure Harvard LAW School would pay a former Supreme Court justice, eight hundred thousand dollars a year to teach their. I mean the fund raising they could do offer that alone It would be tremendous, so I did think that there was a an oddity to the answer that it tried to give. What can guide you wanted to put up a paper
I was interesting. This is something I don't think we really like to talk about our know how to talk about all that well, but the paper take seriously and a lot of supreme court. Legal work takes seriously the idea that a number of justices are staying on the court beyond their period of mental acuity, and I think you will get Scully. That was not sure with him. I think that there are obviously a lot of examples, one, although went home some state on for a long time and when it was clearly doing brilliant work in a well into his eighties. So it's not true with everybody, and it feels like a shitty think even talk about, but it's been Sherwin there's been a lot of legal scholarship on this question. It has been through the number of justices, were they either just didn't want to retire or for strategic reasons for refusing to retire and as such they were on the court years after they are probably mentally capable of doing that job at its highest level, and so something this paper and and the legal scholarships pretty concerned about. Is this idea of people for reasons of personal ego not of just enjoying their job of enjoying the status of a job or of worrying about the partisanship, their replacement and upon the court and degrading courts? Actual capacity
stay on long past, the time when they should retire. But again, I think that is a strong argument for these eighteen, your terms, which, also by the way, would mean when we nominate justices, we don't have to look for somebody's gonna live as long as possible, should not try to gain lifespan. Quite ass, my line, you could even do that. The opposite mean you could set a minimum age for Supreme Court Justice in our stripped away. We do at the President. I forget it. But you know you could say you have to be at least fifty five and have a nice pensions. Would you wouldn't have so much of this, like Post court,
employment. I want to work more way. Millennials are getting screwed in today's economy. Tat if it's rough, it also seems to me that the greater turnover and possible instability of the jurisprudence is actually a benefit to creating some kind of regular turn over. That part of the problem with the current Supreme Court is that the authority that is vested with is so overwhelming and uncheckable and in practice cannot be overturned in any kind of way, and it would be healthy for the justices to just like. Have the reality check that like, if nobody will back this up is gonna flip in a little bit, and so you got a really think about. Is this persuasive, like our who justices, who come on going to be willing to agree with? This is
are any hope that society is gonna, stand with this whirling. We wound up not going there with the Obama care cases, but there was a real sort of possibility. It seems to me that Supreme Court justices were gonna. Just sort of we'd into the middle of a partisan political controversy. knowing full well that that was what they were doing and just kind of like take a big whack for one side of it. And if We have been very, very contentious cases in the past and in the fifties and and in the seventies and
take your, but we did not have the kind of strong, partisan polarization that exists now, but back then, so it didn't heavy, exactly the same violence and in so far as we're going to have very polarized, very partisan politics and that's gonna be were lected in the judiciary. It just seems like it would be a good idea, honestly for the Supreme Court to roughly reflect the balance of power and partisan politics so that you get an enduring Geraghty on the court. You would need to have enduring majorities in the White House and Senate because any would say: well, ok, the reason reply, Hence dominate the Supreme Court is dominating everything and like if one party dominates everything, that's what should happen, but that if there's a lot of turnover back and forth, the court should not be dislike entrenched centre of power for one side and the sort of part of the big problem with itinerary? That's why republicans are rightly freaked out at the possibility of like losing a justice unex
The blame someone thinks trust raises in the paper, taking as a valid kind response to that is looking at. How can the prevailing political wines made under factoring in two decisions are one of the cases you look, that is like Brown versus the Board of Education research. See in a world where we had someone new coming on every two years that you could see that case kind of going back and forth for longer when you can responded as the EU taking your hello that which our audience cannot see what I mean I don't know what you're my response to that is that there was no Mean Truman Eisenhower. Kennedy Johnson. Was this huge multi decade, strand of anti Segregation president's elected? That's how anti segregation justices got appointed if, of course would be unfortunate if it that hadn't been the case but, like I think, AIDS, a conceit of certain judges and constitutional law professors. Delicate handful of heroic lawyers battling the forces of the political system, undid segregate,
But if you look at it like, it is clearly not true desegregation started with with Roosevelt's war, something something board at Truman, desegregated military eyes, and our, I think, there's a great book called a matter of justice about Eisenhower and civil rights, and he was trying to win black loaders back for the Republican Party and deliberately appointed personal rights. Our judges. The Kennedy administration, you know, has been dramatized many times was torn in different ways, but was trying to show solidarity there, and so I think that is an example of the interplay between politics and judging working as it should be said that the forces that done
National politics came to the fore in the judiciary and that what people rightly worry about now, but particularly with uncertain deaths, is this kind of slippage like what Republicans are worried about now ripe is Obama will put some fifty two year old judge and the Supreme Court, then Republicans will win the election and twenty sixty and they will. Control of the presidency, both houses of Congress, the overwhelming majority of state governments, they will have said society has chosen us. We are going to govern now, but look, there's can be this block of you know, Kagan Soda, my or hypothetical Obama judge They in fact get the final word on everything, but just because golly I happened to doubt Sylvie somewhat wagon spute bright you'd. Have inserting overboard with eighteen. Your terms, they are not sure that the term elements are talking about are still very
long lines like we're not talking about switching to like a four year, laughingly army. I just said this is again a place in the paper that was a little peculiarly. They make the point that if you have a teen your terms, it would increase the rate of majority turn over on the court by twenty five percent. That is faster, and maybe it would be even better in the future, depending on like how these things are chosen in whatever and and and compared to the kind of factual, how long peopled stamp court, but as lifespans, hopefully continue to increase. But it's not that much faster than mean that this sort of idea full turnovers, just not thou much quicker. I think that if you are going to have a court with this much power long term- and I think, if you're going to to have it in a very illogically, divided country, as we are now, the process by which justices are named in and an end up wielding power needs. You feel pretty legitimate to people, and I think that one real issue here is that the court is just so much decided by checks, a fate and unexpected Datsun and unexpected illness. So ya. Think, though, that the good analogy here is it Richard Nixon was elected and he got to name for Supreme Court. Just as is Jimmy Carter was elected and he got zero and Richard Nixon election, his first election and Jimmy Carter for selection. There are no more generous than each other serious end up having this situation, where it's fine to say. You know that the american people should not be changed in court year by year by year by year, but because you her could people's views on things change fairly rapidly. You end up having a situation where, just when you happen to have a bunch of illnesses, are retirements matters a lot
You can also get into a kind of feedback cycle on that so much in a court where, let's see if six liberal appointees- and maybe they don't win that many presidential elections in the coming Fortier period, but they do in some and because strategic retirement say and up with five liberals have to that. Even though we should end up with many fewer, so I want things is a little bit dangerous about the mixture of lifetime appointment and strategic retirement in an air of pretty long lifespans in an area where the justices are getting more, not less. Eighty illogical is it. It ends up taking what fate gives one party or the other and in shrinking it then through strategy and I think, will, over the long term, erode a fair amount of court legitimacy, something
Another way of putting this is right. Now. Obviously, liberals before nucleus death had a four five deficit on the court, but they also one five of the last six presidential popular votes if they won the next two or three and still couldn't get over that four percent hump. I think you'd start to see a lot of fury about that. They just were not being able to do what the american people were cruelly giving them a mandate to do as it. So that's why I think like having just like the process by which replacements are made be more just ends up making the case law that is driven by it more legitimate. Stick. Again and then what's let's bear into that, the sort of this specific, the weeds as it were, of that this specific case, it friendless clear we ve all been there. You come home after a long day work, he manages gonna sit down, relax, have a glass of wine, but you know Like me, like you, never planning head, you don't even have anything necessarily in your house. You gotta go to the liquor
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Cut out the middle man which saves you money and even better. They offer no risk guarantee that you're gonna love what they send. You surrender clubbed abuse offering weeds listeners. Fifty percent off your first order when you got a club, w dot com, slash weeds, don't ever come home to a wine free house again, just gotta club, w dot com, slash weeds to get fifty percent off your first order, that's cool, w dot, com, slash weeds, so Scully escalate item and that the news broke. I sought on my phone and rushed might my laptop to two pigeon Uno celebrating an early Valentine's day with my wife? How did I more often than not any more romantic aggravating has had the Supreme Court elsewhere? That's why we're at any rate I saw it. I think we should go down this path. Ok, so bitter Bloomberg did it did a thing recently where they they show why occupational groups are likely to marry, which other ones and they showed that the news reporters as a very incestuous circle and there's a lot of partnering within the profession.
Think his understanding about that kind of thing. You know when news breaks he after yet to ditch that any was extremely understanding, but, yes, see that's great, is lovely Anyway, I was obviously started thinking about the politics of replacing school and I obviously thought it would be. Tough cell, anyone who Obama would feel comfortable appointing was not someone who Senate Republicans wouldn't be these. He asked about Senate Republicans had a majority, so I was looking forward to the Big Supreme Court battle. I was alone surprised when almost right away, conservative pundits, then people first, some of this sort of more far right. Senators had crews MIKE Lee, but then very quickly, Mitch, Mokanna Hours, which will reach Mcconnell, articulate principle, not that he was calling on Barack Obama to put forward a reasonable, strict constructions by lava, but that he was calling
Obama to nominate anyone at all, because there's an election happening in seven months. For one thing it soon weird for another thing, they didn't seem to me to be any strategic advantage to that. It would be a lot easier to bring up complaints about an actual justice than a totally hypothetical. Nobody any gave Democrats. This like a little dumb, but this like endless ream of talking points about the fourteen justices, who have been confirmed in the final year of a presidency, Bob Bob, a bar as a road of semi persuasive peace. Exactly how much you have answered Rebecca you know. I do think that people sometimes underweight the possibility that there has just been a huge. error made. But you argue that there is a real, deep strategic logic to the threat that there was no real alternative strategy:
oh right of us again of indifferent piece of ass, may be sent me persuasive in a different direction, but Lily actually back out on this, because I think this is the backdrop. It's worth it About of it, we have a very weird norm in american policy. Not a rule, not a law, nothing! You have to do to stop norm that if the president of one party proposes a proper justice and the Senate, which has advised consent, power is controlled by the other party that, in the absence of extreme ideology or extremely controversial, scandalous background behaviour, qualifications are enough to put the person on the court, so you have, if I get this wrong, is aromatic as incorrect me, but I believe that Robert is confirmed by democratic Senate is, I think, that's correct, but it whether whether he is not. Obviously there are a number of subsequent how many from both parties who are working
by an opposing parties Senate and the basic argument, theirs it at some point. What you are doing is saying is pressing qualified to be on the Supreme Court. Not you! I think this person we do a good job, do what I agree this person's rollings. This is something which Mcconnell back when he was a young lawyer, actually wrote about and talked about. How is important in our political system. Qualifications were enough, which I think is pie not where he he now comes down the problem,
Is that this norm, which held in a period when american politics was laws? It illogical, has never made all that much sense on its own merits and is making less and less sense. Now that president's and political parties are vetting of Supreme Court has, this is very illogically. Supreme Court is more Eddie logically contested and and both more long party lines and controversial cases in it has another points, and so what Mcconnell now has is kind of problem where he and his Senate majority have been democratically elected. They have total validity in organ that they speak for the country, just as a bomb has simultaneous validity insane. He speaks for the country and the people who elected Mitch, Mcconnell and his fifty four senators do not think that Brok Obama's liberal nominee to the Supreme Court, who will change the balance of power in Supreme Court for the next couple of decades, is a good idea. That is really not why they elected Mcdonald, friends, now Mcconnell, doesn't want to come out and say that I have decided to throw overboard the idea that a qualified nominees good enough, even though that is fundamental here, what he is
but he doesn't want to say it just like nobody wants to say it because explicitly breaking the norm is a very bad looking american politics. So what he did, I think, was come out with this kind of weird and we'll see indefensible, but procedurally enforceable idea that just they're not going to consider anybody, Obama nominates, and I also begin to do this for another reason, and this is why I think the postmaster referring to, which is that it is this man says I think, hard to defend the idea of simply knocking to consider any one but hard to defend it from whom the thing the conall and his team are really worried about is not that the press is gonna, be mad at them. It's a bit republican primary borders going to be angry at them, and republican primary voters would instantly destroy a republic Hinton who compromise with a bomb and replace school,
with a liberal before an election, so I think that in a way that is actually not a good idea for Republicans, because five months from now Donald Trump, maybe headed towards a huge loss against Hillary Clinton, it may be very possible democratic gonna. Take the Senate and Mcconnell may wish he had done a compromise nominee with Obama, as opposed to letting President Hillary Clinton do a much more liberal nominee when she went election, but he did just take them off the board for himself because in order just keep Republicans happy and in order to keep his senators out of a primary fire which a lot of them are Or can be facing soon one would be facing primaries. He just had to take us off the table does make it not issue for among the conservative party in kind of same way, like Obama can't really do a recess appointment. I would say for the same risk of like firing up the base on the rights where actually have not researched the regulations. Are methods of payment made out to be a logistical issues around it,
Even if you wanted to do a recess appointments, I would imagine things so much political risk in that of you know, using liquid Obama dead without the will of the Senate, that it would essentially block wouldn't get you got far like as a resource upon would end just at the end of the congressional term, and so like you'd have a smaller place him for a couple months, but where'd you get that also gets to use this parliament Buick superbly argument it I'm actually I'm not as outrage I like what the Republicans are doing. It's not especially obstructionism. I understand Bogota country determined more the fate of the Supreme Court. When you look at the practical outcomes of what happens of having a justices were- nine justices. It actually doesn't change that much. You could end up with a few ties which leave the and whatever the circuit court ruled Billy that outstanding. In the case of the big abortion case in front of the Supreme Court justices that would leave the Texas Abortion standing, because this bit circuit rolled in front of it.
It really would I be look at shutting down the government like messing with the debt ceiling of The battles we have had This isn't strike me as such a massive wine, because we kind of continue running pretty. Okay, you in a world where we have eight justices also just. I would not care to myself outweigh its, but I do think that is very silly. You know so one person who has said that senator should just vote based on the illogical leanings of judicial Domini is is checked, humor who's going to be democratically there, and may we go away from this position if Ababa puts forward a nun, But I happen to remember, because I was in turn in his communication- sarcasm wait when we rolled this policy out in the summer of two thousand, this great near time's, up ad, published in July. Two thousand that I helped out on end
You know what he says is that these are very important jobs that president's obviously not picking judges at random. Our just looking at their resume is that they are trying to consider how would they will all and that senator should also make them. Consideration- and you know I remember one that came out- there was a certain amount of sort of controversy around it in this nascent legal blogosphere and the concern that people had was that we would end up in the situation and we are now in which is just a deadlock where senators are completely refusing fill vacancies, and that's a you know, a situation that actually been evolving over time. But it's not just the Scalia vacancy Mcconnell husband.
Basically refusing to confirm any appeals. Court judges and in this last term and Democrats did something similar at the end of bushes term. The parties will get into back and forth about whose at fault, but as Obama send his press conference. It's really a cycle where you know each time that the configuration flips the parties take the previous behaviors a baseline. Then they push it a little bit more and that's polarization, but if you could say in an above board way what it is you were arguing about, then it's at least conceivable that you can resolve certain disputes through a compromise. You know you see that as dangerous as debt ceiling, high jenks and govern shut down hijacks get from time to time they ultimately have been resolved, and it doesn't it's not impossible for people who strongly disagree about substantive issues to reach accommodations with each other. This trade offs in and things you can do, but in order to make those trade offs and make those kind of arrangements, you have to be able to say something about what it is. You are arguing over the principle that the president is not allowed to fill vacancies
not something that the White House can bargain away or even talk about, because it's like you winning a concession that isn't a concession of of any kind. So I would be a lot happier and I think, will be a lot healthy for the country if Republican said. Obviously, President Obama should nominate somebody. We are very sceptical that this White House is going to produce some one. We are going to be willing to confirm, but let's just see right, and so I think too, to bring some.
This is here like Sarah, I'm not out raged by the underlying position here at all. Like Matt, I am very annoyed by the fake layering of of this foe position, because I agree. I think it makes it very hard to just talk about what we're talking about. I think that we are in a place where it is a totally valid argument. Their public do not want to confirm in a bomb pointy. That said, it is clearly not true that if Brok Mama decided to troll the Republican Party and nominate TED Crew Some are actually centre public's. Might hate TED crews have hunted. They also would not confirm him, but the underlying point, if, if Obama came out and actually proposed a replacement for Scalia Ready, we actually humanity. Conservative judge, of course, Republicans we could from the person they would love to have the bird in the hand. Ass opposed to hope being that this primary, they have no ability to control whatsoever goes in the direction they want to.
Similarly, as citizens before, but that if Mcconnell had made that ideological argument, if he had just said that we take our responsibility here very seriously, we want to see someone who we think will take the court in a good direction. Not to somebody who went to good law. Schools were willing to look anybody. The president puts up, but we're gonna be very sceptical that would have given Mcconnell also maneuvering room. If you know again like six or seven months from now, it becomes completely clear that the configuration following the election is probably going to be present in Hillary Clinton and probably going to be a reduced republican majority in the Senate or a democratic majority in the Senate, but Mcconnell to take that off the table himself, and I do think this goes to a broader thing going on here, which is just the dysfunction in their public and party which you're seeing and allow a crop up in a lot of different ways. I think a very simple way to say has been going on in the presidential election is that the conservative grass roots does not trust. The republican party establishment is not trust, its elected officials to make good decisions, and so it has been ignoring their signals and rallying round people like Donald Trump or people like TED crews, it. This is driven by a feeling that they cannot trust the Republican Party elite and that they need somebody from outside. It took to represent them effectively. Similarly, here Mcdonald's responding to that exact same feeling, he is basically saying their politics grasses Republicans, you don't trust me right, you don't trust me to retain maneuvering room because you're worried many use outmaneuver badly, so I'm just gonna take up maneuvering room off the table. Minutes say in a blanket way right now, like I'm, just not can make any decisions for does not go and Obama do this, and I think this is one of these things and again, like with the things you see happening, the presidential election, where republicans are finding themselves very strategically impoverished their front himself, very strategically. This fund
no because he just don't have the trust from their base to make some of the public compromises are strikes and the public positions that could ultimately do better outcomes, but they require a certain amount of belief among everyday public into the people representing them are strategically aligned with them and know what they're doing when I'm part of it is because they are not always strategically alignment that like, if you like, I base republican voter like looking at the lass fight over government funding where, for a while, you know John Vainer, said gonna talk about defending planned and ever really gonna talk about. Defending parenthood, and unlike defending one parent and clearly falls off the table it pretty quickly. This time it fell off, slower in previous fight totally see how much Mcconnell ends up in the situation where he takes us manure. drawing room off the table. I dont know if it restrained seven six months, because you had in six months, you can say he's had a change of heart is kind of like We thought it. I kind of see it as a strong political bed. At this point, when you're really going
to the election and you're really trying to get your base up to say you know we're not gonna, give any maneuvering room. We're going to stick with this and then you know who knows in six monthly, but politicians may conflicting stupid all the time you could. I could see him easily backing if things are not looking decisive through such of the possibility. I think one thing I've seen disgusted at Obama will want to put forward a relatively moderate nominee to maximize the political advantage in this sitting. fission republicans can say, were refusing to do and hearings on him all Democrats, while line up behind the proposition that that refusal is outrageous but sent a reply chickens can always once that nominees, the air they can always for plop on that they can even for pop after the election, after killer Clinton is elected after they lose role of the Senate, they can, in a lame duck session, say oh yeah we're taken that modern nominee, we're not gonna. Let him come in.
But somebody, although I think very you might find that all the same, the liberals now nothing they can do about it. That's the point. Nine months- and I mean obama- I couldn't Obama. This is now just to speculation, but I sort of imagine if ok now has won the election unless couldn't says to Obama. Right, listen, get this off the table and no one is from my first hundred days on a totally controversial Supreme Court nomination and he would have a bomb Why does he like? Look at this point like, I am believe tat. This feels hake. Should you think I mean I don't know if you can, if you can actually call back see, is on the other. I want to say here, because we don't happen to have a strong social conservative. Evangelical Christian around the table here is that of republican base. Voters have some particular, then to be a little distrustful of their leadership on judicial subjects that I think your is more war. Printed frankly than most issues I think in general and american politics you seen over the past thirty years of republican part.
that is more unified and more ideological, that than the Democratic Party, but when it comes to Supreme Court judges. Republicans particularly Reagan and George W Bush have put on the bench Sunday O Connor and Anthony Katy, who have been definitely conservative but have to did to the left and certain social and cultural issues, and then they put suitor on who went all the way to the left. Grants have not put a row justice and on the bench since I got him, africanist freshening white, who Kennedy put on Obviously liberal is it was her. Why yea? I thus worsening Venice liberals, obviously dont like every single ruling by every single democratic appointed judge, but none of them have ever like gone, rogue and waken administration. But if you look at his his circuit court nominees, a lot of their older now, abbots, don't famous appeals. Court nominees like which are pause nor Alex Kosinski were.
Waken administration appointees and they leaned toward the ride on business, economic type, issues but tilt more towards the left and on social, cultural type issues, and there is a deep and, I think, not unwarranted, suspicion among committed social conservatives, that a fair amount of the Republican Party party structure is contagious like fucking round with them and doesn't really care about these issues, and that this particularly comes to head around judicial nominees. Were there isn't a kind of strict accountability, Emily doesn't matter whether Mitch Mcconnell deep in his heart cares about defending plain parenthood, these even just check and see what he does, but with the judges you have all the time like Brok Obama put Elinor Kagan on the Supreme Court and basically had to just say to his base. Trust me she was white has council, presumably the two of them had had the opportunity which I think about things, but I didn't know
you don't like I'd never spoke to her. She doesn't have any record as a judge- and you know, members of the Senate and interest groups are just asks to sort of believe that the president has as vetted these things and Republicans have been burned by that many times and that's a well remembered by activists on these kind of issues. I have a deep and committed suspicion. It is time for an outbreak like so many of you. We really love to learn new things. That's why we're so excited about the new great courses plus video learning surface. It gives you unlimited access to the giant library of the great courses, lecture series in so many fastening subjects you got history with which I love, but science, things like cooking. As so we love gray courses plus and they're gonna, give our listeners an incredible opportunity right now. You can watch one of their most popular courses. The inexplicable universe, unsolved mysteries, absolutely free, inexplicable universe, is presented by the well respected astrophysicist Neil digress Thyssen.
Spying, some of the universe, is biggest mysteries. He really takes complicated topics and make some understandable selling very box Ebay, weeds ie, but on a totally different subject. You know you that quantum foam string theory black holes- you gonna, learn a time. At least I you know I well so just for a limited time. The great courses plus is offering our listeners a chance to stream this course inexplicable universe. Unsolved mysteries said ninety five dollar value and hundreds of other courses all for free, but this free offers only available for a limited time, so hurry goody. The great courses plus dot com, slash weeds, that's the great courses. Pasta come slash weeds, so I think that so far on this episode of the weeds, we have struck a modest, sober tone on on israeli hot controversy of this sort of the easy temperature of his room, as others all became calm and not not is upset as we normally are. So I really want to get hysterical here for a minute, and the paper that I was thinking about while I was watching this play out, was a paper by one lands in and placing on the name of it, the perils of presidential demott. Thank you.
This is a paper that has become very in vogue in the last six or seven years, I would say practically among liberal or left leaning writers, her trying to think through the consequences of heavy polarization on the political system. But but one Linz is, I got a couple years ago, but he was a yell sociologist and he specialised in comparative political systems, and his paper basically begins with the idea that there is nowhere other than Chile and the United States, where a political system like ours has had a long history of constitutional continuity, and he makes the argument that the core problem in our political system and the core problem in systems like ours is that you have simultaneous branches of government. They need to work together. Now comes and that have simultaneous democratic legitimacy and so that when they disagree, there's no actual way to resolve the dispute so right now
We have this happening pretty exactly. We have a Senate that is run by Republicans and they were democratically elected. They have democratic legitimacy. We, the White House, told by democratic? He is democratically elected, his democratic legitimacy, and this could be, we have by the way. After the election too, we could have President Clinton. We could have majority leader, Mcconnell and but she would need for these. Two institutions have had to work together to come up with a compromise, but if they and then there's no real way to fix it in most, terms, when you do this for long enough, you eventually get a coup. You venture an irresistible political dispute that leads to a military takeover. So, A lot of reasons. Bis hasn't happened here. Obviously, America's had a very successful country based on this kind of political system. For a long time now
among the reasons that in this paper was written in ninety ninety one, but among the reasons Linz points out is it America has something very unusual which is or had something very unusual, which is it. Its political parties were not very ideologically, logically distinct. The Republican Party contain both liberals and conservatives. Democratic party but liberals and conservatives, and that made the bitterness of the divisions and the interact ability. Disagreements pretty low by international standards. You you, you always really had wasteful in which people can compromise and that made compromise on you easy in this political system and as such, the fact, no way to resolve intractable standoffs. Did it But how much can you just didn't? Have that many intractable stand us republics can always find some conservative democrats to work with the Democrats can always find some moderate, illiberal publican stork, with this week we completely know for sure is not the case in american politics. Right now. You have highly ideological listing parties,
There is no democratic. More conservative in any republican Serbian Congress has no Republican more liberal than ever Democrats serving in Congress. So you have these large and growing disagreements, and, alongside these large and growing disagreements, you have a breakdown of allotted different norms that have prevailed in american politics before the one I think is really important here, which I talked about a little bit ago, is the norm that the president can now made a Supreme court justice and even if the Dominant Party Congress does he agree with the president on what August reproach us. This is qualifications are enough, and I think quiet reason that norm persisted was that there were a lot of people in the Opposing party UK did agree with the president on whether his Supreme Court Justice was a good peck, but now that is not true. Now that Republicans and Democrats have such a sharp disagree.
over what the Supreme Court should and should not do in the next twenty or thirty years. That norm is breaking down, because it's just becoming too ridiculous to uphold its becoming too much of a betrayal of your base. You were talking about evangelical conservatives and, if you believe, abortion is murder, replacing it Scalia with someone who will create a five four. Oh abortion rights majority on the Supreme Court and which weaknesses, but oh the person was qualified that is just now oh, a plausible argument at all in and conversely, I don't think liberals would be very happy with the idea majority leader read, but through a crucial new justice who would take down things like Obamacare because of justice was simply qualified sought. that we're seeing here of a broader problem in powder been seeing an american life You know in recent years, which is a question of: can divided government really govern and divided government come to compromise on things that are big and hard and controversial
They obviously do some things, but we ve seen you know the possibility of debt ceiling breaches. We see the possibility here of an extended absence on Supreme Court. Because I'm not saying not going this going to lead to a coup, and I'm not saying this a to collapse or crisis, but I do think we are seeing a way in which the ability of the american political system to govern is potentially degrading, because, if divided government can't you hard things hard things, and you can't even do things like Supreme Court Justice, it twenty five percent of years at our presidential election year over a long period of time, if you can govern at least twenty five percent of the time, it can't govern that. Well, the other seventy five percent either it's gonna hurt your country whether things I found a little misleading about bulletins paper and its when things you quoted as the poured out chile. In others to countries that are long running presidential democracies, including Chile's which failed in eighteen. Seventy seven, You also just don't see a lot of developed countries taking stabs at presidential democracies as reading some of the responses to lend to when it one of the main critique that seems to come up
Most of those attempts have taken place in less developed countries, so you know that's kind of sending them back to Europe, in Kenya, no one's talking about a world. Where am that we like and others? unable to confirm the Supreme Court Justices where this is just like a thing that are put. Systems can do something kind of you. I know you ve written about before we're deems it. Eventually it will get past the election wool wool someone in the Supreme Court will basically like function. Fine and like an ape justice world. Thing about american democracy. will change that much any kind of landing a week. You landed If you ever box where it seems like what that kind of muddling along on us. Through this, where we will keep functioning, some sort of way we might change, some rules and norms will change to accommodate this device government, but I'll find story of failed democracies,
damning, to suggest that this thing we're doing is definitely as matters I didn't know what a ramp up the say. We have an election. This fall and lets did the election is cloaks and lets. the election, comes down to the crucial swing states of Ohio and Fort. Let's say the Democrats complain that the election admit Duration in both of those states which is controlled by republican secretaries of state, has been unfair. And lets say, there's litigation about this, as we had in two thousand and then let's say one circuit court rules in favour of the Democrats and another circuit court rules in favour, the Republicans. So then it goes to the Supreme Court where a deadlock set for four, because there isn't a night. So we have a circuit split on the question of who is the president of the United States. Now, obviously, this is a little unlikely writing we're we're piling, couple of unlikely things on top of each other. But I think that when I'm
because I do make this on Lindsey and claim that this system is doomed. People were bond with what amounts to the argument that but the central tendency in any given year. The most probable forecast is that we will muddle long and it's totally true. Most years no Supreme Court justice dies most actions. Aren't that close you ten not to have these kind of overlapping things, but the problem is In some ways, one to be deflationary about my alarm ism, because some actual cases people say oh well, the equally saying this can be like massacres in the street level by and I don't mean that a move you if you look at hundreds of Chile is an example where it quite but most breakdowns of presidential system. Are resolved with minimum level of islands, but with disorder in the streets and and legal kinds of processes and Sooner or later, if our governing philosophy is to muddle through with no way to make decisions on
We shall events sooner or later we're gonna have a slippage in someone's. Gonna have to do something and annex one telling example, if you look at budget disputes in two thousand and eleven which applies in both the United States and Canada, would have Canada was parliament would not pass the budget that Stephen Harper wanted, so he took governor General they had, an irresistible deadlock and they had to have a new election, so they campaign for seven weeks. His party won the election, and then he wanted. Ass, the budget where we had the United States was this like crazy scenario in which we were going to default on the national debt You were saying Very serious people were saying in New York Times up ads that with the press and should do is take a clause of the fourteenth amendment. It was intended to
or the validity of civil war debts and just assert that the debt ceiling was in valid. You had other people, myself included, saying that you should take a poorly drafted statute about platinum commemorative coins. The president meant a trillion dollar coin and say we could we could pay off the debts away as it happens. They they resolve the dispute. I think it is, reasonably likely right if you, if you re play, that that the odds of one or the other of that Fourteenth amendment or platinum coin scenarios. Coming to pass are gonna decent, would not amount to the same thing as like tanks in the streets. Squashing tea party protesters, but both of those are would basically be the president. Throwing up his hands and saying forget: the system doesn't work, we just not going to default our debts and counting on the rank and file staff in the Treasury Department in the SSC and everywhere else just taking his word
because nobody really wanted that sort of crisis happened and most likely. I think, if the president had simply asserted that those payments to hold it for valid, that people would come forward with it. So I'm gonna take sponsible middle ground kind of collapse here so is the one about the critique of lenses paper limit. Let me stand upright onto measures. One thing I think is very very telling one reason you dont have more examples of this kind of presidential democracy is countries believe this argument is correct. And one of the countries it pleases. Agnes credit is a: U s. We repeatedly invade or help invade countries, and then restructure their political systems and the thing Never ever do the thing we have never done not in Japan, not in Germany, not in Iraq, met you
whole list of a slightly I ITALY, Austria, Germany, Japan, Iraq. It was in Afghanistan. Even more tellingly, the United States came in with his usual invade knock. You buy handbook in music, we're gonna write a proper constitution modeled on German. One how many cars I, who we wanted to have as the leader was like none and under no. I want to be president and so that became an issue at at the Bonn Conference and the U S gave in his desire to be able to operate as a dictator, and you know it it's been a real problem with a stiff and we don't even we don't rebuild other political systems in this way. It's not exactly clear why we don't, but I think, if you speak so alive faith in our own and a recognition that in Asia stunned with weak institutions that you cannot handle these contradictions factor So that's something one point for the lens paper: the other things indolence paper. I would not buy it if it were just Coralie Not at all right, if it's just saying hey look, this doesn't seem to work out well, but work
while a couple times, we only have so many observations. They could sent back and sing, but one thing I think it does lays out a mechanism that, if you don't watching american politics right now is a very persuasive mechanism and helps explain a lot of what's going on, which is it. You have clear incentives for the parties who disagree on incredibly important things that literally matters of life and death. You have clear incentives for them. The deadlock and never resolve, and you have no way to the resolution and the only reason you eventually do had resolution is he's, of norms that nobody can explain why they happen or why they work so and- and this brings us back- I think it over this before case where nobody can explain why we have a norm where the Senate, this it is not the coequal of the president and just lets a president ultimately do what he wants is belongs. As nominee passes. A certain level credential ism and my thesis is what's happening now is at norm, is being arrow.
so now we're saying that enormous and apply, and in the one out of four years, which is an election year- and I think my nobody's hoping is gonna happen if you're much weaker, all of your brok. Obama is that the election just decides at either Democrats a power they can pass what they want, or public power they can do what they want. but either way like we don't have to face the question of what, if it's Hillary Clinton and fifty four republican senators who does past, does anybody power Maybe not right. Maybe you do just end up having a year in the first pillar, Clinton's years in office work nobody passes in, and we just begin have like a very lengthy vacancy and support, port. When I say that I think automated system, a muddle along that were not headed for Honduras like collapse, I do not mean that in the sense of it will be ok, I actually mean it in a more alarmist way than that. I think that you're going to see over time many crises, including potentially debts healing breach that leads to serious reforms of parts of the system that make it worse,
worse in his polarized age. So you could do a lot of things. It would relieve pressure centre because I have already talked about a limiting the Philippines. there are also important committees so that something where, if Republicans Org Democrats, if one party controlled the Senate and the White House, that makes it clear, would be able to put my where they wanted on Supreme Court and obstruction than from the minority Party would no longer batter switch clear now, given that ideas on the table and could be done with fifty one votes because of the weird where the Senate works, that a filibustering, the report now. Many which used to be a very real thing, is no longer a powerful weapon. That's one way in which I think you see this system responding to its own dysfunction big, eventually were very likely to have a debt ceiling breach or so near to it that we just get rid of the debts. Entirely and just make it so that Congress can't hurt the country that way for from an artificial Christ. And I just think that were overtime, gonna, see some real problems and I think we can respond to them. To somebody substantively. I mean
I really want to be under covered stories of Obama's presidency is the degree to which Senate Democrats seriously weaken the filibustering. Twenty thirteen. These fifty one votes- and he just like they re, really took it down at a moment unpeopled and expect to be able to are willing to do that and so muddling. I don't think it is easy here and I gotta get safe. I think it is an approach that is going to lead to smaller crises, but not quite collapse. In this case, though, I just think it's a really good example of the underlying dynamic setting the thing that is really hard to explain like if you were just trying to explain how american politics works to a smart twelve year old and you said well in order places judge you need the Senate and the present to agree, but the absolute don't agree. And this microbial would say: well what do you do and say? Well,
eventually, the Senate will just beside it. It not agreeing just doesn't matter that much and he'd say why any say. Well, that's what other sentence have done in the past and see why and it's a wider no like they. Some high minded ideas about the Baltic should work if it continues to go like that. That's great, but. It is always worry about a situation where you just can't tell a better story than that. One thing I think about in kind of mats tale of collapse is like a house. The parliamentary system would handle the United States and Europe if what's happening. Part of it Zena political polarisation in Washington? If part of it is also just could have been, my country, the very diverse faction, two very different idea- is about how they want this country to work, and you think about parliamentary democracies aren't always functioning at their vast, sometimes having trouble, coalitions putting together a government that these are issues that countries run into, and you know eventually they usually seem to form a coalition at some point better like
you met by more familiar than I am of Belgium. For example, you know it's gone through a lot of jobs, belgian land and I have been very successful episode of the we ask that there will be the weeds here so that we as the belgian addition, but you know I do wonder if you look at a very big, diverse country in Nepal Countries, systemic that ultimately shakes out. If we end up with is coalitions that already work is coalitions. Since it is such a big diverse place, unlike some of the other places where we see parliamentary, Hocker see working well, you know Belgium's a place where they really bitter linguistic divides very cultures, wanting different things that made it very difficult to run a function. governments and like how much How much of what we see in american politics is? You know function of the way we ve decided to structure our government and Much of it is a symptom of maybe the United States as it gets. bigger and more diverse, has really did I'd ideologies really different types of people living in
and that you know whether you're looking at parliamentary presidential democracy that is going to be it, really tough to find some kind of guy body. That seems to speak for the people. I mean I agree- there is obviously difficulties with with diversity and particularly with with linguistic diversity that you that you see and in a number of places, You know that's right, I think Americans and get an exaggerated view of the high level of of crisis in Belgium because what is they dont have a government, quoting quote, but that means like they dont have a formal agreement on who holds which cabinets ease they do now and it comes together. People we will reach compromises. Nothing may reveal more than an old man. coming around to this viewpoint, because it would have really infuriating that demand of ten years ago, but have you look at it, there are a lot of issues where its seems to me that The median voter undoing stand the median members of Congress actual
have reasonably clear kinds of servers and there are nascent by partisan policy consensus. Is that could be reached if you had an instant traditional set up, that didn't strongly incentivize sorting into two parties and then the parties to be pulled towards kinds of basis. Now people would be very unhappy. A sort of centrist grand coalition governance like they have in Germany right now, because both liberal conservatives, would think it was like too much in the middle but that would also just kind of b the system fund. That would be the good kind of muddling through. Will you stuck with the status quo until side or the other can pursue. Simply mobilise people in defence of its vision, the problem with the states is that we don't quite have what you would call like gridlock, where we don't The dramatic changes one way or the other is that we have
Eunice Lee more, like I like an earthquake centre right with the plates. Whip every once in a while, and buildings fall down right, which it would be fine and to an extent what we used to have divided government was just sort of Nothing might happen on big controversial issues, because for something happen, you would need to get concurrent majorities, which was hard. That's how America supposed to wait, it's meant to be a status quo, biased, that's the sort of the medicine ambition we ve developed as a crisis plague system, where the fact that certain things The routine rhythms of life are like. We need another budget We need another Supreme Court justice and it is too difficult for system to say we're gonna just keep going along until someone has a majority which would be the logical out, of division, gay marriage did so come a long way in the wagon way. People argued about it a lot, but what happened,
as was that eventually, most people were persuaded that it was good, and then it was legalised and like that But most of our issues that doesn't happen. We don't have like stasis, followed by change. We have crisis, followed, I mean we're. Lucky we breathe convene around the status quo, but its streets, to have such a big nasty, potentially cataclysmic fight to reach the conclusion that we want form entitlements and we are going to have giant tax. That's right! We should have been able to get to those. Let's not do anything. How comes it like a pretty smooth wet and it's it's been weird to experience, but you really have to about like with this system did not come under major pressure strutting about this presidency. We dealt with Harry banal issues of how much money to spend and how do not reform the tax code and we barely made and so what? If something happened for real? That's, I think what should warn people.
I am alarmed prairie alarmed Thank you for thanks every effort for listening and hopefully not being to alarm to come back and we exert producer is about as anti who ever built this. What will you do? It is state if anything was unnecessary.
Transcript generated on 2021-09-14.