February 10, 2021 • 57 mins
Today we talk with law professor Steve Vladeck about impeachment, the filibuster, the constitution and other things. It's fun! We have fun.
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Speaker 1 (00:00):
Welcome to Worst Year Ever, a production of I Heart
Radio Together Everything. So don't don't hell, yeah, that's right,
(00:23):
that's right. I just bawled right into introducing the show.
Didn't even tell my co hosts. Motherfucking yeah, it's happening
someone else. This toxic masculinity. My name is Katie Stole,
and this me that way, Katie. But I appreciate it.
It's just, you know, we all needed to take our
compliments where we can get them. I praised your toxicity. Well,
(00:48):
I assumed that from the band, from the name, from
the phrase toxic masculinity, you were saying that I was
masculine in the same way as nineteen eighties thrash metal
band Toxic with with a K. Yeah. That's yeah, exactly.
You know me so well, Robert comment. Today, we have
(01:10):
a guest with us. We just finished recording an interview
with Steve Laddock. Uh. He is a law professor, constitutional lawyer,
CNN contributor, amongst podcaster, amongst other things in and he
was gracious enough to sit down and chat with us
for an hour, all about things that he knows more
(01:30):
than we do. The law. Mostly mostly the law, Yeah,
mostly the law. None of us understand, but he does.
Laws are fake. So um, but you brought that up
before we brought him on slutting that in there. I
will not be bringing it up to undermine the guest
immediate right. What I love is these boys are on
(01:56):
their best behavior while we're interviewing, were very then the
second it gus gets off we were recording this intro
in the conclusion after the interview that we just did. Um,
what I really respect about him and and about what
he is his like willingness to engage deeply and try
(02:17):
to understand and improved the system, even though I hate
the system and the law and don't understand it and
think it's made up. Everything kind of is made up,
right except for like some very basic facts of like
your heart needs to pump. Bones. Bones are more or
less real, although I know somebody whose jawbone used to
be his thigh bones, So even bones are kind of
(02:39):
now wiggle room there for Yeah, there's a lot of
wiggle room. So when I like everything's fake, I guess
except for it's not. Um, And that's kind of what
he's pointing out, is that like this system as confusing
and frustrating and silly and like infuriating it as it is,
and as often as I want to burn it down,
understanding how to engage with it and change it. UM
(03:01):
has material benefits for people's lives that are very real. Um.
So I respect him a lot, even though, Um, I'm
going to go punch a bunch of drywall right now
because I thought about the law too much. I don't
do that. Uh. And so with that, here is this today.
(03:22):
We are very grateful to be joined by law professor
and CNN contributor Steve vlatk Uh to you know, breakdown
answer questions, discuss impeachment, probably some other things too. I
would imagine, Hi, Steve, how's it called? Um? You know,
in the in the context of month eleven of the pandemic,
(03:46):
it's gone great man, the time really has flown this
pandemic really so I actually, as we're recording this today,
today is actually the first day I was in the classroom,
UM since March last year. So, um, it's a it's
a little bit surreal sort of things coming full circle
for me. How how was that? Had that experience? Go? Also,
can you tell us where you where you teach? Yeah,
(04:08):
I'm at the Unity of Texas in Austin hook them, Um,
and I teach at the law school. UM, and you know,
we're in this weird hybrid mode where basically, for the
larger classes like my upper level federal courts elective UM,
students can choose whether they want to be in person
or online. UM. You know, it's it's their callercent based
on their circumstances. But for the ones who want to
(04:30):
be in person, you know, if the professor is willing
and I am. UM. You know, we have socially distanced
classrooms and simultaneous live cast in over zoom. So it's
sort of a weird like half the audience is in
the room and half the audience at home situation. Ah,
that sounds broadly reasonable. Yeah, that sounds very reasonable. Also,
it sounds like, since this is the first time you've
(04:51):
been back in the classroom, Uh, these procedures the university
took some time to implement this and gauge everything. And
I think I don't think I'm speaking out of school
when I say that some of my colleagues on the
faculty have relatively different degrees of facility with the technological
skill UM. And so it may well be that I'm
(05:13):
in the I'm in the sort of um, I'm outside
the standard deviations of ability to sort of do the
simultaneously on multiple platforms. But yeah, when this I'll just
go with it. When this all started and everyone's transitioned
overnight to doing all of their classes remotely, I kept
thinking about, like the nine different teachers I had throughout
(05:33):
my school career that you remember those like those overhead
projectors that literally it was just a light box that
you put the plastic change. I remembered how many of
my my teachers couldn't work those, And this is going
to be a problem, and it has proven to be. Yeah,
I mean to be fair, absolutely no section of society
(05:56):
has handled this well. Yeah, I think that that is fair. Um,
I don't know. I think I've Pelotons has boomed, and
look right now, I'm guilty. I got one. I got
the Peloton. I jumped on the bandwagon, you know. Never
distilleries also nailing it both in terms of dealing with
(06:16):
our increased alcohol consumption and in terms of manufacturing hand
sanitizer distilleries and Peloton and Peloton firing on all cylinders.
I'm looking forward to the distillery peloton collapse. They do
a lot of collapse. That's an inside joke for people
that write a peloton Anyway, I was gonna say, when
(06:37):
I was young, one of my favorite hobbies to do
was to do drunken bike rides with like two other people.
And yeah, it would be a lot sadder. It would
be very sad, probably revealing way too much about myself.
But there have been times when I've taken a classic
rock ride and brought a joint in there with me.
It was getting to the good part anyway for here.
(07:02):
So Katie has a different approach to power zones than
the my my pr means something very different for everyone else. Um. Yeah,
looking forward to doing that maybe later today, but right
now we're here to talk about a lot of things,
like I mentioned, But let's start with impeachment. Have you
(07:24):
been watching now? You were teaching today, so you haven't.
Probably have not been watching. Gotten some pigloights, gotten some highlights,
uh for anybody, I'm sure everybody listening knows. Today Tuesday
is the beginning of Donald Trump's second impeachment trial. Uh. Well, specifically,
I guess today, uh is the day where the Senate
(07:45):
officially votes on whether or not it's even constitutional. To
impeach a former president. Um, so let's start there. See
it's constitutional to get a little bit Becker, what is
the constitution? Yeah, let's start at the beginning. Yeah, this
is this is the metaphysical question with which all also
the cons should start. So I mean, I actually think
(08:08):
we should start with a slightly different question, which does
why does any of this constitutional stuff matter? Yeah? And
and in this context, I think the reason why that's
especially important is because of a very nerdy but very
important constraint on these proceedings, which is that they're not
generally going to be subject to review by the courts.
And so usually when we're finding about what the constitution means,
(08:29):
we accept, for better or for worse, that if it's
really a serious dispute, it's going to end up in
the courts, and the courts are going to get it
right or wrong, often wrong. Um, but you know, the
last word is going to be the courts. And here's
one of those rare constitutional questions where the courts don't
have the last word. Um, where you know, the courts
have even said it would be weird if we were
(08:50):
able to supervise of provision in the constitution. That's there
to check us right, because you know, the durial little
secret about impeachment is that an overwhelming majority of thes
in American history, and all of the successful ones have
been of judges. Um. So so, so part of why
I get sort of, you know, headbanding into wall about
(09:11):
some of these constitutional arguments is because it actually doesn't
matter if they're right, because the courts are never really
going to have a say on this. All that matters
is that, you know, these constitutional objections are providing um
off ramps for Republican senators to say, you know, we
don't want to condemn what Trump did because then we'll
(09:32):
alienate the base. But we don't want to condone what
Trump did because it was pretty freaking terrible. Is there
some third option where we can actually get out of
this without having to do either of those things? Along
comes you know, superficially plausible but actually incorrect constitutional arguments,
and it's perfect um And so, you know, the scholars
almost uniformly think it's constitutional to have a trial of
(09:54):
former officers. Um. The scholars almost uniformally think that it
doesn't matter if the speeches pretend could by the first
moment or not. But what the scholars think isn't gonna
matter because just up to the senators at this point.
So we have this document that we try to interpret
like everything that our government is allowed to do, like
(10:14):
through the Lenza, and we have a bunch of scholars
like you whose job is to understand it. But when
it comes down to deciding whether or not like it's
legal under that to do something, it just kind of
matters what a bunch of guys in Congress think. So,
I mean not usually right, I mean really usually you know,
it matters what the courts thing too. I mean so,
but in this case, so in this case, I mean
(10:35):
and and And that's because the alternative would give the
courts the power to, you know, sort of override one
of the really important checks and balances in the Constitution
on the courts um. And so there's actually Supreme Court
decision in a case called Nixon Wrong Nixon Walter Nixon, Okay,
this is United States um where the court where the
(10:55):
Supreme Court explains why it's not appropriate for the courts
to review impeachments. And so a lot of false around
and say, well, therefore, whatever the senators think, you know,
is fine, and what I want to say is like
we should be comfortable vocabulary where senators who adopts transparently
pathetic constitutional arguments, you know, cannon should be you know,
punish at the ballot box or doing so like it
(11:16):
actually auto matter, It should are hied them behind completely
implausible rooms in the constitution. You know, it says a
lot about where we are that it won't. Yeah, of
course it does. I mean because it it makes what
you're saying makes complete sense, right, Like it wouldn't be
right to give the courts total say in this kind
of an instance because they're not generally elected and that
(11:37):
that would be that would be problematic. But also what
we're doing is deeply problematic because like you know it,
the reality doesn't matter, and whether or not these senators
are acting in accordance with the Constitution doesn't matter. And
none of the ones who vote against um impeachment will
ever be punished at the ballot box because I don't
(11:59):
know the whole Yeah, it just seems bleak. Does this well?
Does affect the uh if this happens again, like this
decision or is it just sort of dependent on whoever
is in the Senate at the time, Like we'll it
just they'll just do this again in a different way.
(12:20):
I mean, precedent operates differently right in the play, which
it doesn't. Right, So so chords have the standard. This
this this obnoxious Latin term starry decisive. Um, that's the answer,
the proposition that altens be an equal court should follow
their precedence um and not depart from them without good reason. Um. Politically,
you know, precedent is only as good as the politics
at the moment. And so we're do well. You know, guys,
(12:44):
I am I am unfortunately a hopeless optimist about a
lot of things, um, which which may put me in
the wrong crowd for this particular enterprise. No opimists not optimists.
I am also an optimist at my core. It's hard these, yeah,
but you know, I think, but I think it's worth stressing. Like,
(13:05):
you know, there's a there's a mem out there that
because it's inevitable, that enough Republicans are gonna you know,
cop out and find some procedural grounds to to vote
to equit. But this is all a wasteed. I want
to sort of be on recorden saying I don't think
that's true. That like, even if the Senate ultimately votes
to aquit. First, you know, if ten or eleven Republican
Senators vote to convict, that's a big story, even it
(13:28):
doesn't effect the bottom line. I mean, in the history
of presidential impeachments, there's been exactly one cross partisan vote
to convict, and that was Mitt Romney last year. Right,
If that number shoots up, now you know that's a sign.
But also too, I mean, I just think it's important
that you know, we still don't have a complete picture
of just how bad things were on January six then
(13:49):
in the days cleaning up to it, we still don't
have a complete picture of just what the federal government
knew and when they knew it um and the slow
walking of the response by the Department Department Defense on
the sixth, and so you know, I think there ought
to be we ought to be fixated on what happens
in this trial. Not because the result is actually somehow
hanging in the balance. I don't think it is, um,
but because you know, one of the things that trials
(14:11):
are supposed to do is build historical narratives, and you know,
the reality is, yeah, I don't think any Republican is
gonna pay a price at the ballot box for voting
to equip Trump. But you know what if it comes
out that there was coordination between the campaign and Cruise
and Holly for example, or you know, I mean example hypothetically, right,
(14:32):
you know, I just I just have that, like you know,
there there's value in these proceedings even if the result
is is not something that's that's that that we have
any doubt at this point, Yeah, because we have I mean,
just the sheer decency if we need to do something,
we need to officially say, hold something, some sort of
acknowledgement that this happened, because right now it feels for
(14:56):
a lot of us like this was a little over
a month ago, guys like you know, and and for
me still just today seeing the different videos shared of
January six, I've, hey, I don't people make fun of
the word triggering, but I have found it to be
very much so, Uh, anyway, this needs to happen at
(15:16):
least to acknowledge that this this this thing happened. And
if I'm in and I think we also, you know,
we have I think for a generation, I think this
has been true on both sides of the aisle. We
have you know, surrendered um constitutional high ground to political expediency,
and I think you know, the Republicans have been more
successful at it than the Democrats. Two. UM, I think
(15:40):
the result has been this sort of you know, it
is no longer true, even though it was for large
fonts of American history that constitutional arguments are actually significant
parts of you know, electoral campaigns, right Like, when was
the last time anyone ran on you know, if I'm elected,
I'm going to make sure we take this approach to
executive for exactly. UM. And it's interesting that we ought to,
(16:01):
you know, we ought to be thinking about how that's
happened and how I mean, what the political scientists call
it is the separation of parties replacing the separation of powers, UM.
And I think that, like, there are any number of
symptoms of that UM and this is one of them where,
you know, if people are just using constitutional arguments the
way that drunks these lamp posts for support, not for illumination,
supposed to actually standing on principle, I would love to have,
(16:24):
you know, I would love to think through how we
reclaim some of the ideas of like institutional constitutional arguments
for their own sake as opposed to just you know,
a means from my side to win in your side
to lose. Yeah, I mean, so, here's like the the
trouble is that I I don't know, I don't know
(16:46):
that it's even possible to do that, because the Constitution
isn't something most people really see much value in as
the actual document that it is. You know, it's it's
whatever set of ideas they've come to for a lot
of the right the Constitution is the Second Amendment, right, Um,
you know that that's the culture I grew up in.
(17:06):
It's not, um a body of of like laws and
restrictions on power when that power is something you want
to exercise or want to have exercise in your name.
And I guess like that's the I don't know how
we I don't know how we get away from that,
But I do agree with you that like that going
through impeachment, even that, if we know that the numbers
aren't going to work out with Trump, actually getting impeached
(17:28):
is critical for building a historical record and for UM
for at least attempting for at least like at least
trying to hold to the idea that there ought to
be consequences for this kind of behavior, even if you
can't force them through to the extent that you should. Um.
I just don't know how optimistic I am about about
this having an impact in the future, you know, yeah,
(17:50):
I mean, I you know, I don't think it will overnight, right.
But I think it's it's baby steps. I mean, it's
it's a question of you know. Um. And I think
it's really important that Mitt Romney's dime on this hill,
right right. I think it's really important that he not
be alone. I think it's really important that Liz Cheney. Um.
(18:10):
You know, whoever thought Liz Cheney would be uh a
player in the story? Um? Because it seems to me
that like one of two things happens. Either you know,
the party completely abandons them, in which case, you know,
we're we're looking at the fracture of the Republican Party
in ways that have enormous long term consequences, um, right,
(18:33):
or the party actually acknowledges that it has to come
back to them in some respect. Um. And you know,
I don't think that the impeachment trial is going to
be the forum where that fight plays out. I think
it's going to be primaries. You know how the next
couple of years ago with respect to whether those folks
just become outliers or whether they actually become pretty important
players in national political discourse. I think it's gonna have
(18:53):
a lot to say about this. Yeah, I think that's
a really good point. Yeah, I mean we've been talking
about this for a little bit, this fracturing of the
Republican Party. You've got obviously you're more classic Republicans than
never trumpers or and then you have the whole the
other wing, the Trump supporters, the Q and on the
(19:15):
conspiracy theorists, and right now the Republican Party encompasses both.
And this is a real reckoning moment, and like you
or it should be anyway to see how they navigate this,
and like you mentioned this, you know, looking for an
off ramp, looking for a way to figure out how
to handle this issue, and this impeachment trial forces it
(19:35):
a little bit. I've seen the argument from some people like, yeah,
of course, uh, we don't condone his actions. We do
think that he contributed to it, But they're hung up
on the fact that, like, I don't know if it's constitutional,
if this is legal, you know, and they're trying to
force that. But we know that they have the votes
to move forward and actually do the proceedings. And I
(19:56):
am curious to see, as you mentioned, once all the
evidence is, where are they going to fall? You know,
what what side are they going to choose? Um? You
know we've already established, we all know that very unlikely
that he is convicted. I'm curious. The other thing that
has been floated is barring him from office. Now will
(20:19):
he have to be voted guilty completely in order for
that to happen? Yes, Um, I mean so so there.
I mean there there are three different ways that that
Trump could theoretically be barred from future office. The most
straightforward is this one, which is the Senate votes to
convict and then it takes a second vote to disqualify him. Um.
I mentioned there have been eight successful impeachment you know
(20:41):
convictions in American history, Um, and then three of those
eight led to disqualificately, it led to the Senate vote
to disqualify the officers, most recently Judge Porteous. Um. There
are two other possibilities. I just think that they're both
far more remote. Um. The first is that there are
one or two criminal statutes that after really impose as
a penalty for a conviction um, disqualification from future office,
(21:05):
including ironically enough, the insurrection statute UM. Right, and then uh,
And then there's also Section three of the fourteenth Amendment UM,
which at least in theory, you know, disqualifies those who
actually engage in insurrection from holding at least some federal offices.
The problem with both of those is that they require
external actors to do things they've never done before. So
(21:26):
the criminal statutes would require the Biden administration to actually
prosecute Trump UM, and the Section three procedure would require
converss to do something that's never done before, which is
somehow pass some kind of legislation that would implement this
provision that would execute it. You know, there are things
I can imagine Senate Democrats being willing to nuke the
filibuster over UM. I'm not sure that's one of them.
(21:48):
And so I just I'm not even sure that that
gets through the Senate. So, you know, I think this
is the most likely way to to kick Trump out formally. UM.
Of course, this goes back to what we were talking about.
There's still the ecent to which, you know, building a
more complete record, building a record that Trump's opponents, even
within the Republican Party can use. Um would be a
(22:09):
value practically, Um, if you really were to try to
throw his hat back in the ring in in three
years well together everything. So I one of the things
I'm curious about is how likely it is, because I
(22:32):
think it most valuable part of what's happening today as
we record this in Congress is the the fact that
hopefully more information will come out that will be able to,
like you said, kind of tie in whether or not,
like Cruise and Holly were communicating with Trump and to
what levels some of these people were involved in actually
instigating what happened on the sixth, Um, is it the
(22:53):
kind of thing that we could see, you know, even
if they're not willing to go after Trump, we could
see prosecutions and even like like like people from talking
about kicking Marjorie Taylor Green out of out of her seat, Like,
is is there any actual way to do that? Is
there a possibility this leads two people who like facing
criminal charges from people are what they've done? Yeah, people
(23:16):
aren't Trump? I mean maybe, Um. So, I mean, let's
take one of the let's take one of the more
I think significant claims floating out there right that there
were members of Congress who gave you know, scouting tours
um in the days leading up to January six, right,
I mean specifically Green, specifically Green. Um. So so I
mean I do I want to talk about Green for
a second and in a second, I mean, but so
(23:38):
so if if if, if there were more concrete evidence
of that, right of course, yes, that could be you know,
not just a matter of expulsion proceedings in either the
House or the sentence been upon who the member is.
It could be a matter of criminal charges and and
and I think that would not be implausible or unpresent well,
I mean, the whole thing is unpreceded. Um. I had
a deeper concern though about Marjorie Taylor Green, which is that,
(24:00):
you know, the Republicans, it's like she's absorbing right, all
of the hits um for conduct that really that while
execrable um, execrable um right, um, it's not that radically,
you know, worse than a heck of a lot of
members of the Republican conference in both the House and
(24:20):
the Senate. I mean, some of the things she said,
and it's on and is on videos. Having said sure,
but you know, I feel like she's absorbing all of
the punches um that you know, Moe Brooks and Kevin
McCarthy and Josh Holly and Ted Cruz, like the energy
that I thought there was for at least a few
days to really, you know, hold accountable those members who
(24:42):
could be held most directly traceable to what happened. Now
seems like, you know, oh well, as long as you know,
stripping Marjorie Taylor Green of her committee assignments, all right,
we're done, um right. So so I'm I'm a little
worried that she's actually become a distraction, um compared to
folks with far more power, um, who who I think,
(25:02):
in some ways were actually much more directly involved in
in facilitating would happen on January six, and who might
even recognize that and use that as an opportunity to say,
oh Green, no, Green, We're not like her. Let's get
rid of her. Where are The're the good ones now,
even though they have so much more to do with it? Yeah,
I mean, I just I think I think she has
(25:22):
become a convenient um, not Patsy but foil um. Yeah,
scapegoat right exactly where you know? I mean, look, how
many I am guys, I I would I will never
get over. There's so many things about generous wis will
never get over. The thing I will really never get
over is the votes that night, right after what happened,
when you still right, you know, eight different Republican Senators
(25:47):
and over a hundred and thirty five members of the
House still voting to you know, disqualify Biden electors from
Arizona and Pennsylvania. UM. And it seems to be that, like,
you know, this problem runs a heck of a lot
deeper than Donald Trump and Marjorie Taylor Green, and you know,
the the my concern is that people are gonna feel
like punched out. If you know, we get through the
(26:08):
Trump trial and we get through Green being stripped of
her committee assignments, it's like, all right, you know, that
was enough. We're tired of this. There's other stuff to do, which, yeah,
there are a lot of I just I don't know,
this is this is this is not an an accurate analogy.
But like you know, the I started my career studying
(26:30):
UM international war crimes trials UM and and sort of
the the UM, the movement towards, you know, after wars,
holding people criminally accountable right, the rise of individual criminal
responsibility UM. And one of the remarkable things that you
see and studying in that field is how hard it
is to overcome the inertia of exhaustion UM. And you know,
(26:53):
it's sort of the like, you know, we won the war,
you know, can we can we get back to two
normal times? And and how you know how you really
it really is sort of swimming up stream um to
pursue accountability in those contexts. Um. That makes it harder,
but it doesn't make it less worth doing. Yeah, yeah,
I mean. And there was also a debate that I
found really interesting before Nuremberg about whether or not it
(27:16):
was like about how it was a very problematic precedent
to set to charge people for things that in some
cases weren't crimes before they like, were not crimes in
the nation where they committed them when they committed them.
That you're kind of retroactively saying this thing you did
is is a crime and now we're going to punish
you for it. No incremen lega Yeah, I guess yeah,
(27:42):
I've heard of yeah, no crime without law yeah. And yeah,
and the notion that there are some things that are
just so morally reprehensible that it doesn't matter if they're
written down or not. Um. Now, I don't think that
would happen in January six rises to the level of that.
I mean, we're not talking crimes on this in genocide here.
But I do think that the political coal analogy is
not is not implausible, right that that the notion that
(28:03):
you know, the every you know there there's so much
energy pushing in favor of like getting past it. And
that's why it's so important to sort of, you know,
for folks to actually sort of take a pause and say, well, listen,
even if this is not gonna work, even if we're
not going to convict him, even if we're not going
to get all this stuff done, we shouldn't give it
an a temptation to just, you know, move on. We
actually should make sure that we set some kind of
(28:24):
at least historical precedent lest this happen again. Yeah. Um,
I might pivot now slightly. Some thing you you mentioned
blowing up the filibuster and uh, the filibuster in general
has been a topic for a while that people debate
and discuss, and I think that we should discuss it
(28:47):
here today with you. Um, maybe maybe start by giving
us your law professor breakdown of what the pillar filibuster is.
You know, we definitely all know what it is, but
let's just make sure everybody knows. I mean, I think
a lot of people were surprised that you don't have
to like stand in the middle of Congress any It's like,
it's not Mr Smith goes to Washington because it's changed.
(29:12):
So so one of the I mean, I actually think
one of the best proposals with regard to the filibusters
to go back to the old school filibuster um. So, so,
the filibuster um is basically a Senate procedural rule, and
it's a Senate procedural rule about something called culture UM
C l O t U r E. And the idea
is that UM in the Senate that there are now
(29:34):
lots of exceptions, but at least the default rules in
the Senate. Before you can move to before you can
vote on a particular action a judicial nomination UM, confirmation
of a Cabinet secretary, passing legislation UM, you first have
to close debate UM, and that's cloture. And the vote
to close debate UM requires sixty votes UM. Right, that's
the sort of the modern version of the filibuster. UM.
(29:56):
The old school filipbuster was that you couldn't close debate
so long as a senator was speaking um. And so
you know, the Mr Smith goes to Washington style filibusterum
or you know two more modernized the stackhouse filibuster from
the West Wing UM is you know, is literally a
senator standing on the floor of the Senate reading whatever
(30:16):
the heck they want to just to sort of kill time, um,
either to make a political point or because time is
of the essence and they can stall out the clock.
It's usually one or the other. And you know about
I don't I should remember xact one and I don't.
But like fifteen fifteen years ago, um, you know, the
Senate got rid of the sort of you have to
do the whole standing and talking thing um, which just
(30:39):
made it so much easier for the filibuster have become
this automatic obstacle to everything. I just imagined all of
the senators aging up and none of them leaving office,
and we're like, let's get rid of that, because I
kind of for this the old idea of like you
can if you can, if you're willing to stand there
and talk about nonsense for days. You can things up.
(31:00):
That's kind of rad It's like, yeah, except that it
can be used against us, you know. But but because
I mean, we have to say the quiet part out loud, right,
which is that, Um, in a world in which the
Senate itself is not representative, right, the filipbuster dramatically exacerbates
the unrepresentativeness of the Senate. UM. And so you have
this problem where even though even though both parties have
(31:22):
wielded the filibuster against the other, UM, Right, the reality
is that the filibuster sort of relatively allows a far
smaller number of Americans on the Republican side right to
to to halt legislation or appointments in their tracks than
Americans on the Democratic side, given how many you know
people are representating in the twenties small est states in
(31:42):
the country. UM. Now, it's just a Senate, it's just
a Senate procedural rule. The Senate has the power to
change its rules. UM. And so we've seen the gradual
demise of the filibuster for judicial appointments. UM. And Republicans
like to say it's all Harry Reid's fault. That hilarious, UM.
Historical revisionism. They love that, though they love that, they're
(32:05):
very good at it. It's true. Um. So yes, Harry
read in one sense, Harry Reid fired the first salvo,
in the sense that Harry Reid, when he was sent
a majority leader, blew up the filibuster for circuit level
judicial confirmations. Um. But of course that wasn't out of nowhere.
That was in response to years of Republican and transigence
(32:26):
and filling seats um with Democratic appointed judges on the
circuit courts. But then the Republicans are and say, well,
of course, then we can blow up the filibuster gorse um.
Which is why there's now no longer a filibuster for
Supreme Court confirmations. It's why um, the last four, you know,
all three of Trump's Supreme Court nominees are in the
closest confirmation votes all time. Um. That wouldn't have even
(32:48):
been possible when they were still a filibuster. Um. But
it's still there for ordinary legislation. Um. And you know
the McConnell and Cornin and the sort of the old
school center pub leadership you know, have been on this
tour in system that like without the filibuster, the Senate
will lose its character, to which my responses, You've got
to be kidding me. Um. But so you know, all
(33:09):
it would take to blow the filibuster is a simple
majority vote, um, which requires all fifty Senate Democrats. And
you know Senator Mansion is on record is saying he
doesn't want to do it. Um. I think Senator Cinema
has hinted that she doesn't want to do it. Um.
And so you know there's to quote Hamilton's you don't
have the votes. You don't have the votes right now. Um,
(33:32):
probably not at all. But I mean, I mean, I'd
love to talk a little bit more about what it
could mean for us if we did or what, because
it's there's there's of course, when you have the majority, Uh,
that's convenient. But there's a very good chance that we
will not have the majority in two more years and
what that would mean for us. Not that that's necessarily
(33:54):
the right argument to make, it's just worth acknowledging kind of.
I mean, I think so I think that not having
the majority in two years argument doesn't really I don't
lose sleep over that, because you know, Biden will still
be the president in two years. But I mean, just
so this is so, this is Corner's argument, which is
(34:16):
the second the pendulum s wins back, you know, the
Republicans who whatever they want. And my responses, when have
the Republicans not done whatever they wanted? Um, there's that.
Otherwise we're we are, Yeah, it a stalemate constantly. But
but it's worse than that. I'm sorry. I have the
same concern that that Katie's expressed, which is like, Okay,
(34:37):
you're giving up the filibuster. That also means that like
when they get back in power, they can steam really
But also I can't remember a time when the Democrats
stopped anything terrible that way. So I yeah, yeah, I
guess so I would slay that on that. I actually
think that there were a lot of I think there's
a lot. I think there's a lot like the Bush administration,
and I think some parts of what Trump was trying
(34:59):
to do, like why you're trumping up doing everything through
you know, executive branch regulations when he had a fifty
three or fifty four, you know, forty six majority in
the Senate because he didn't have sixty votes. Um right,
I mean I think that I wouldn't dismiss that as
a result of the fact that he used EOS, it's
easier to kind of undo certain thing that's right makes sense,
But because the flip side, to me, the strongest argument
(35:22):
about the filibuster has is all about increasing the franchise, right,
which is that the most the simile, most important thing
Democrats can do now that they control both houses of
Congress and the presidency is make it easier for people
to vote. UM. And And you know that has two effects, right.
One it's actually a good thing in the abstract, like
(35:43):
more people voting good too, it's probably good for Democrats UM.
And So you know, I think the to me this
really I don't think it makes sense to blow up
the filipbuster just to get through you know, a economic
relief package UM, as important as that is UM, or
other legislation that is I think, you know, sort of
(36:03):
a one time policy initiative, however important it may be. UM.
I think it is important to talk about getting through
meaningful voting rights reforms UM in a context in which
you know, we're already seeing Republican state legislatures reacting to,
you know, all of the election fraud that happened, um
to justify ever more suppressive measures on voting in ways
(36:27):
that are probably gonna hurt Democrats at the ballot box
as early as you know, next November. So I guess
I just you know, to me, it's it's it's sort
of holy. Apart from Mansion and Cinnamon, the politics at
the moment, I think it ought to be a question
about not just doing what's convenient right now, but which
is actually gonna have a long term impact on you know,
the shape of things in Washington. Do you I mean,
we don't have those votes now. Do you think that
(36:48):
there's a world within the next couple of years where
we might be able to push for that to happen? Maybe?
I mean, so you know, I I lots of people
are down on Chuck Schumer, UM, and I understand that. UM.
You know, listen, I'm a New Yorker. Um. We we
you know, we we we we know. Um, I think
(37:11):
I would I would just say, I mean, I think,
you know, the most important relationship in Washington right now
is the relationship between Schumer and Mansion. And you know,
in a world in which the Republicans, to me, the
question is what told what what would the Republicans have
to do to push Mansion off the cliff, um right.
And and so I actually think there's something to be
(37:32):
said for, you know, carefully walking the line sort of
push them for meaningful policy changes, forcing the Republicans to
kill some of these things that Mansion might actually want, um, right,
as opposed to starting with like Supreme Court reform, which
Mansion doesn't want. Um. You know, pick things that are
actually important to Mansion in Cinema, make those legislative priorities,
(37:54):
and when the Republicans kill them, you know, use that
as sort of saying, got you know, look, look what
we can't do because of the filibuster um. And indeed,
I mean, you know, the irony is right, Mansion and
Cinema could probably go across the aisle and find eight
or nine Republican Senators to say, guys, help us out here, right,
you know, um, vote for culture, vote vote for culture
(38:15):
on this or else. Right. So the question, I think,
so there are two questions here. One is a Schumer
going to go that route where he actually tries to
pick the right fights to get you know, the most
moderate numbers of his conference on board and to you know,
our Cinema and Mansion gonna use any of this as
leverage to actually try to get some of the more
moderate Republicans to let some of these bills go through. Right,
(38:37):
It's kind of like a chain you have to create, Like, well,
he put pressure on them in order to get them
to put pressure on other people. And the trans Mansion
even going. Is the managine even capable of putting pressure
on anybody? Yeah, I think I think he is. I
think it's question whether he wants to. And that's why
I think, you know, it's more a question of what
his legislative priorities are at this point than what schumers are.
(38:58):
This is really really insightful and helpful for me, I'm
sure for all of us. One thing is I'm listening
to this conversation, and how you're breaking it down is
how much of a game it is also like a
game of strategy between these people and and and exchanging
of priorities and favors, and it's and and this is
(39:20):
really insightful and I know that that's how it helps.
It's just so hard sometimes when there's such a disconnect
between what you're seeing around us out here, especially during
a pandemic and people suffering and knowing what's at stake,
like it's a big deal. Voting rights is a big
deal that we have to bargain our way to being
able to do a small step in the right direction.
(39:41):
Is it's hard. It's hard. I understand that the frustration
that so many of us feel. But I also it's
helpful to hear this perspective when you're from our place,
where like, you know, why isn't this happening? Why isn't
this happening when we know why? Because there's there's these
inner workings that are happening. Yeah, I mean, and that's
not that's not to defend the inner workings. I mean,
(40:03):
you know, I think this is not this is not
the system I would have created, but the reality of it. Well,
and voting might a great example. I mean, so the
Supreme Court, you know, in strikes down the preclearance formula
in the Voting Rights Act in the Shelby County case, right,
and it says, listen, you know, Congress, you can fix this,
um knowing full well that so long as the filibuster
(40:25):
isn't in place, it's going to be almost impossible to
get meaningful vote and rights reform. Through both chambers of Congress,
right that the House has passed a couple of times
since voting rights reform legislation that's died in the Senate.
And so, you know, I think the you know, there
are lots of problems with the Senate as an institution. Um.
For better or for worse, We're stuck with it, um.
(40:47):
And so I think the question becomes not just sort
of how do we cur you know, how do we
howl at the moon about the Senate, but how do
we actually put pressure on the on the trigger points,
on the places where it actually might move the needle.
And you know, unfortunately, right now with the Senate, that
falls on you know, the well I was gonna say,
a Democratic senator from a state that Trump won by
(41:08):
you know, many many many, many, many many points. I mean,
you know, the the the the member of the Senate,
you know, the Democratic member of the the Senate who was
from the reddest state, um. And you know, that's that's
where we are. And I think that's you know, the
this is part of why you know, to me, the
most disappointing thing about the election in November was how
(41:30):
poorly the Democrats fared in some of the closer Senate races.
I mean, you know, Sarah goodeyon losing the Susan Collins right,
you know, I mean Lindsey Graham somehow surviving, Um McConnell.
I mean, he won by a lot, but it's it's hard,
it's hard, it's hard to see. And I know that
there there's lots of different reasons for that, and it's
(41:52):
very dependent on the region. But this general, you know, Okay,
we're not gonna have not go to vote for Trump,
but that doesn't mean that I'm going to let the
Democrats have the power you know, uh, mentality for a
lot of voters, I think, and you know, and I
think the question that that that we already be asking
is you know, that might have made sense on November three,
(42:15):
but now that we've seen what these Republican senators have done, um,
you know, and the extent to which they've continued to
indulge the big lie about the election, Um, is anyone
in the party gonna care? Right? Is it? Is it
actually gonna be you know, a hindrance to them? And
I think the short answer is probably not, Um that
actually it's going to help them in their primaries if
they're primaried, you know, the next time they're up. So
you know, that's why I think the it really is
(42:37):
a series of interlocking gears where all it takes us
for one of the gears to get stuck and then
the whole system just sort of stops moving um And
so you know, blowing up the filibuster is blowing up
one of those you know, gears, um and And I
think the it has obvious short term benefits. I think
the tricky part is that it's very hard to get
to fully appreciate an advanced the potential negative long term
(42:59):
concept once is how do you keep yourself engaging with
this system in a productive way, because that's one of
the things I'm having trouble with, especially after last year.
Like I I UM, I hate politics, and I also
hate the legal system UM and I I do in
sort of my work in journalism and my work covering
(43:21):
like terrorism, I engaged with it to some extent, and
it's always very frustrating. And you you noted a little
earlier that this is not the system that you would
have chosen to build, UM, But you do engage with
it in a very complex and a very deep and
a very I think product. It seems like a productive way.
How do you like kind of keep your morale going
to let you engage with it in that way? I
(43:43):
guess I'm curious as to like you're you're you're more
aware than most of us about how messed up the
way this actually functions. Is how do you keep how
do you keep engaging with it? Because the alternative is worse? Um?
I mean, I mean, you know the I'm a I
love Churchill, right, and one of my favorite Churchill quotes is,
(44:04):
you know, democracy is the worst form of government except
for all the others. Um. You know, the the short
version is I I said earlier than I'm like hopelessly optimistic.
I think part of that's because just when it thinks,
just when it looks like things are totally beyond salvation,
something positive happens. Right. So, you know, Biden one in
November by by a lot, by the way, I mean less,
(44:25):
let's less we forget like that election was not close
by historical standards. Um, it is not often that a
that a a first term president running for re election,
you know, um gets trounds like that, UM, And indeed,
in the process loses control of both the House and
the Senate. The last time that happened was Herbert Hoover. UM, right,
(44:46):
who you know, I don't think we think of fondly
when we think of of historical of historical example. So
I guess, you know, part of it is the quote
is trite, you know, the arc of the moral university,
that the moral arc of the universe is long, but
it bends towards justice. But I actually think it's true. UM,
and I think it's just you know, my I see my,
my teeny tiny cog in the machine role here as
(45:08):
just trying to help raise the level of public conversation
of you know, sort of let's at least have nuanced
conversations about these stands as opposed to the superficial talking
points versions of these things. UM. And I try that
my classroom me. I you know, I teach at the
flagship university in a red state. UM. You know, I
got plenty of UM, exceptionally bright conservative students in my classes. UM,
(45:30):
and I try to show them like they and I
are going to disagree about almost everything, let's at least
understand what we're disagreeing about, UM, as opposed to just
caricature on the other Side's arguments, and I think, you know,
that's not necessarily a quick way to reform things. But
I do hope that generationally, right there will be some
shift toward um, not seeing everything as like us versus
(45:52):
them and more, you know, sort of pluralism. And I
just I have to hope for that, because, as I said,
the alternative is worse well together everything. One of the
difficulties I have is that the US versus them thing,
(46:15):
simplifying everything to the point of an accuracy, um, at
this point in time, seems to objectively work better. Um.
It's not in terms of the outcome for society, which
is disastrous, but in terms of the outcome for the
individuals who are making it us versus them, right, Like,
even if they don't maintain political power, they make money
(46:35):
and build basis of support. And UM, I guess yeah,
I'm I'm I'm coming from this at this from more
of a pessimist standpoint, because when I think of that phrase,
like the moral arc of the universe bends towards justice,
my first question is who's justice, you know? Um? And
if the answer is you know, that's that's that's what
happens when we live in a pluralistic society, right we
(46:57):
you know that's that's gonna change. Um, But I would
just say, I mean, I am was miserable in every
possible but but it was miserable in so many different ways.
I mean, right, you know the George Floyd protests, right,
were horrifying, right, the I mean, not the protest, but
like the you know, the reason for them, the reason
for them response and a lot of responses to it. Right. Um.
(47:22):
I actually, you know, I have this potentially naive view
that we're gonna look back five, six, seven years from
now and to actually galvanized into caring about politics. Um,
you know, a larger chunk of the American population than
then had been previously engaged. And that much like the
sort of mid to late nineteen sixties, right, We're that
(47:44):
kind of galvanizing effect had dramatic long term effects on policy. Um.
You know that's gonna take some time, guys to show, right.
And I do completely agree with that, and and and
and with you, Robert, because they understand what you're saying.
And I agree with that. And it's a fear and
it's what we see. But in the moment and in
the right now, in this present Um, I know that
(48:07):
I am seeing more people engaged, more people standing up,
more people paying attention. UM. And I know that you know,
the civil rights movement wasn't a flash in the pan.
It took It took time, Just as you were saying, Steve,
it's still taking time. UM. And I'm horrified by the
(48:30):
last year and grateful that I get to be a
part of it, you know, get to be a part
of the next steps. UM. And it kind of reminds
me basically what your answer to Robert's question about how
do you stay optimistic is is you're focusing on the
thing that you can tangibly do, which is educated to
foster conversations, to push back to you know, but create
(48:52):
a space where people can can have these kinds of
conversations safely. And that's all. It's what anybody can do
right now. It's like, focused on the things that you
can control and show that things are are you know,
capable to change even in this gummy, geared up system.
Because you've worked on Hamden and v Rumsfeld, is that right,
(49:15):
which made it clear that the commissions in Guantanamo Bay
were unconstitutional? Those things can happen. That's what you were
talking about your sort of studying of how to hold
war criminals accountable. Um, even after years, although I would
say we sort of forgot a little bit about um W.
(49:36):
Bush and what everybody has done. Um, you were fair
about Nuremberg. We didn't do a great job then either. Yeah,
we're not not perfect at it, but attempts are made.
I am incredibly privileged. I mean I'm privileged in like
forty seven different ways, right, I am you know, a UM,
A a white UM tenured UM male, you know, straight
(50:00):
law professor UM in a job that I basically can't
get fired from. And so it's easy for me to
sit on my to sit up in my ivory tower
and say some of these things. UM. But I do
think that like the you know, the the extent to
which people now see it as actually part of their
responsibility to be active, um and to be participants in
our polity and to not just be apathetic. UM. You know,
(50:22):
gone are the days of there's no difference between al
Gore and Ralph Nader um right, Um or sorry, I'm
sorry that there's notes in between al Gore and George Bush. Right,
the the Neniator, the Nator line that like, you know,
Gore and Bush, you know, are the same, are the
same thing? Like, I mean, that was ridiculous in two thousands,
but it actually had truction. Um. And I think, you know,
(50:44):
we're at a point for better force that's not anymore.
So I guess, you know, I just I just hope
that we are sowing the seeds that we are providing
foundation for folks who are smarter than us and younger
than us. Um, right to come along and say we've
been do own this wrong. You know, let's do this better. Um.
And you know that's why again, just to bring this
(51:06):
full circle, why I think the impeachment trial is so
important no matter what the final vote is, because you know,
Trump's conduct in general, but especially between November three and
January six, is going to go into the annimals as
so far beneath the worst conduct by the sit in
president in American history. And you know, the sooner that
we are all clear on that and why that happened,
(51:29):
and how that happened, who helped to make that happen,
you know, I think, the sooner we can figure out
how we got there and how how we got to
Trump in the first place. Yeah, yeah, there's um, you
were talking a little earlier about kind of the late
sixties and about the hope that this is what we've
seen recently is kind of a turning point, that will
be a turning point. And I think I think a
(51:49):
lot almost every day to that that Hunter Thompson quote
about standing on a hill outside of San Francisco and
you could see the high water line right where that
that that wave of troll revolution broke and and and
and and pulled back. And he was talking about like
all the hope of the sixties, the optimism that there
would be fundamental change, the anti war movement, the civil
(52:10):
rights movement, all this feeling that like things were really
going to change, and then they didn't. Quite. They did
in some ways, but not to the extent that they
needed to, not to the extent people thought they would.
And I I guess my hope is that when we
look back in fifteen years on, it's a similar kind
of it's it's kind of the opposite where it was
a wave of ship that broke and rolled back, and
(52:33):
we're in the we're in. We saw the high water
mark of the ship, and now it's hopefully starting to
I don't know. Recede, Yeah, and we're and we're a
whole lot of people whose lives had never previously depended
upon having a function in government. Um right, we're we're
(52:53):
punched in the face over and over again by what
it meant to not have a government that could effectively
handle a pandemic. Um. You know there are folks for
whom that's always been a problem, but who for whom
those problems have been obscured from elitist you know, sort
of spaces. And I think you know COVID had this
remarkable flattening effect, um in in driving home. Why actually
(53:15):
having a competent, efficient governmance a good thing that hasn't
yet become an electoral issue? Um right. But I think
it's just it is too soon, right to think that
we've learned all the lessons of twenty I just want
to make sure we don't give up on trying to
tell the story before we move on. I think that's
a really awesome point and a great place to wrap
(53:36):
this up. I know you've got other things to do today,
but we are so grateful that you took the time
to chat with us. This has been really, really informative. Um.
Can you tell our listeners where they can find you
online or check out your work for better for worse.
I'm on Twitter at Steve Underscore plotic UM and I
(53:56):
also Against my Better Judgment have two podcasts, so it
really is UM. So Bobby Chesse I co host a
podcast called The National Security Law Podcast, which shockingly is
about national security law, UM and some other stuff. UM.
And my wife Karen and I Karen, who is by
far the better half. UM. We have a newish podcast
called in Local Parents about some of the unique challenges
(54:18):
of parenting and lawyer at the same time. UM. Interesting
from the perspective, not because we are experts in either
of them, but because I actually think that there's some
important utility and finding out that actually all of us
who are parents have young children suck in different but
equal ways. UM. And that it's you know, it's not us,
it's parenting. Yeah. Well yeah, you guys should definitely check
(54:41):
that out. I'm not a parent, but it sounds interesting.
I'll check it out as well. UM. Maybe someday I'll
be a parent and that will be helpful for me.
But thank you again so much for joining us, UM,
and anytime you want to come back. We we'd love
to have you sorry, has a question. Yeah, I'm just
wondering if you had any sort of like we plug
a lot of bail funds on the show, if there's
any kind of like related to the legal causes you
(55:03):
find valuable, any kind of like fundraiser or charity that
you would you would like to highlight for our listeners
to UM. I mean, I you know, at the moment,
I'm very focused on Texas specific issues on that front.
So there's there's a great group in San Antonio called
Casa marian aa UM that does work with you know,
with without risk groups and with you know, sort of
finding housing and things like that. UM. The Texas Civil
(55:24):
Rights Project UM is actually a really really excellent group
for you know, this kind of progressive work on the ground,
grassroots level in Texas. It's an not bill battle, UM.
But you know, don't just take my work, you know,
do your own research, find find people who could use
the support. And even if the support is volunteer and
phone banking, I mean, there are lots of ways to
contribute to to what's going on right now. Yeah, great,
(55:45):
all right, thanks man, And that doesn't for us today
at Worst Year Pod. You can check us out online
at Worst Year Pod, Gentleman, Worst Deer Pod, Get a cat,
worst get a cat, Get a cat. I just is
(56:06):
this advice? Yeah it is. It's a new catchphrase. My
cat is not with me at the moment, and I
miss having a cat. A cat. Everybody at everyone const
a fucking cat. What are you doing without having a cat.
You can't get a cat, Get a tamagotchi or a tamagotchi,
but ideally a cat. I'm sending Robert a tamagotchi today.
(56:29):
Transition to a economy, Yeah, a friendship lanyard, Yeah, carrot
sitting into the episode. See you guys next week. So
(56:52):
I Worst Year Ever is a production of I Heart Radio.
For more podcasts from my heart Radio, visit the I
heart Radio app, Apple Podcasts, or wherever you listen to
your favorite shows.
Welcome to Worst Year Ever, a production of I Heart
Radio Together Everything. So don't don't hell, yeah, that's right,
(00:23):
that's right. I just bawled right into introducing the show.
Didn't even tell my co hosts. Motherfucking yeah, it's happening
someone else. This toxic masculinity. My name is Katie Stole,
and this me that way, Katie. But I appreciate it.
It's just, you know, we all needed to take our
compliments where we can get them. I praised your toxicity. Well,
(00:48):
I assumed that from the band, from the name, from
the phrase toxic masculinity, you were saying that I was
masculine in the same way as nineteen eighties thrash metal
band Toxic with with a K. Yeah. That's yeah, exactly.
You know me so well, Robert comment. Today, we have
(01:10):
a guest with us. We just finished recording an interview
with Steve Laddock. Uh. He is a law professor, constitutional lawyer,
CNN contributor, amongst podcaster, amongst other things in and he
was gracious enough to sit down and chat with us
for an hour, all about things that he knows more
(01:30):
than we do. The law. Mostly mostly the law, Yeah,
mostly the law. None of us understand, but he does.
Laws are fake. So um, but you brought that up
before we brought him on slutting that in there. I
will not be bringing it up to undermine the guest
immediate right. What I love is these boys are on
(01:56):
their best behavior while we're interviewing, were very then the
second it gus gets off we were recording this intro
in the conclusion after the interview that we just did. Um,
what I really respect about him and and about what
he is his like willingness to engage deeply and try
(02:17):
to understand and improved the system, even though I hate
the system and the law and don't understand it and
think it's made up. Everything kind of is made up,
right except for like some very basic facts of like
your heart needs to pump. Bones. Bones are more or
less real, although I know somebody whose jawbone used to
be his thigh bones, So even bones are kind of
(02:39):
now wiggle room there for Yeah, there's a lot of
wiggle room. So when I like everything's fake, I guess
except for it's not. Um, And that's kind of what
he's pointing out, is that like this system as confusing
and frustrating and silly and like infuriating it as it is,
and as often as I want to burn it down,
understanding how to engage with it and change it. UM
(03:01):
has material benefits for people's lives that are very real. Um.
So I respect him a lot, even though, Um, I'm
going to go punch a bunch of drywall right now
because I thought about the law too much. I don't
do that. Uh. And so with that, here is this today.
(03:22):
We are very grateful to be joined by law professor
and CNN contributor Steve vlatk Uh to you know, breakdown
answer questions, discuss impeachment, probably some other things too. I
would imagine, Hi, Steve, how's it called? Um? You know,
in the in the context of month eleven of the pandemic,
(03:46):
it's gone great man, the time really has flown this
pandemic really so I actually, as we're recording this today,
today is actually the first day I was in the classroom,
UM since March last year. So, um, it's a it's
a little bit surreal sort of things coming full circle
for me. How how was that? Had that experience? Go? Also,
can you tell us where you where you teach? Yeah,
(04:08):
I'm at the Unity of Texas in Austin hook them, Um,
and I teach at the law school. UM, and you know,
we're in this weird hybrid mode where basically, for the
larger classes like my upper level federal courts elective UM,
students can choose whether they want to be in person
or online. UM. You know, it's it's their callercent based
on their circumstances. But for the ones who want to
(04:30):
be in person, you know, if the professor is willing
and I am. UM. You know, we have socially distanced
classrooms and simultaneous live cast in over zoom. So it's
sort of a weird like half the audience is in
the room and half the audience at home situation. Ah,
that sounds broadly reasonable. Yeah, that sounds very reasonable. Also,
it sounds like, since this is the first time you've
(04:51):
been back in the classroom, Uh, these procedures the university
took some time to implement this and gauge everything. And
I think I don't think I'm speaking out of school
when I say that some of my colleagues on the
faculty have relatively different degrees of facility with the technological
skill UM. And so it may well be that I'm
(05:13):
in the I'm in the sort of um, I'm outside
the standard deviations of ability to sort of do the
simultaneously on multiple platforms. But yeah, when this I'll just
go with it. When this all started and everyone's transitioned
overnight to doing all of their classes remotely, I kept
thinking about, like the nine different teachers I had throughout
(05:33):
my school career that you remember those like those overhead
projectors that literally it was just a light box that
you put the plastic change. I remembered how many of
my my teachers couldn't work those, And this is going
to be a problem, and it has proven to be. Yeah,
I mean to be fair, absolutely no section of society
(05:56):
has handled this well. Yeah, I think that that is fair. Um,
I don't know. I think I've Pelotons has boomed, and
look right now, I'm guilty. I got one. I got
the Peloton. I jumped on the bandwagon, you know. Never
distilleries also nailing it both in terms of dealing with
(06:16):
our increased alcohol consumption and in terms of manufacturing hand
sanitizer distilleries and Peloton and Peloton firing on all cylinders.
I'm looking forward to the distillery peloton collapse. They do
a lot of collapse. That's an inside joke for people
that write a peloton Anyway, I was gonna say, when
(06:37):
I was young, one of my favorite hobbies to do
was to do drunken bike rides with like two other people.
And yeah, it would be a lot sadder. It would
be very sad, probably revealing way too much about myself.
But there have been times when I've taken a classic
rock ride and brought a joint in there with me.
It was getting to the good part anyway for here.
(07:02):
So Katie has a different approach to power zones than
the my my pr means something very different for everyone else. Um. Yeah,
looking forward to doing that maybe later today, but right
now we're here to talk about a lot of things,
like I mentioned, But let's start with impeachment. Have you
(07:24):
been watching now? You were teaching today, so you haven't.
Probably have not been watching. Gotten some pigloights, gotten some highlights,
uh for anybody, I'm sure everybody listening knows. Today Tuesday
is the beginning of Donald Trump's second impeachment trial. Uh. Well, specifically,
I guess today, uh is the day where the Senate
(07:45):
officially votes on whether or not it's even constitutional. To
impeach a former president. Um, so let's start there. See
it's constitutional to get a little bit Becker, what is
the constitution? Yeah, let's start at the beginning. Yeah, this
is this is the metaphysical question with which all also
the cons should start. So I mean, I actually think
(08:08):
we should start with a slightly different question, which does
why does any of this constitutional stuff matter? Yeah? And
and in this context, I think the reason why that's
especially important is because of a very nerdy but very
important constraint on these proceedings, which is that they're not
generally going to be subject to review by the courts.
And so usually when we're finding about what the constitution means,
(08:29):
we accept, for better or for worse, that if it's
really a serious dispute, it's going to end up in
the courts, and the courts are going to get it
right or wrong, often wrong. Um, but you know, the
last word is going to be the courts. And here's
one of those rare constitutional questions where the courts don't
have the last word. Um, where you know, the courts
have even said it would be weird if we were
(08:50):
able to supervise of provision in the constitution. That's there
to check us right, because you know, the durial little
secret about impeachment is that an overwhelming majority of thes
in American history, and all of the successful ones have
been of judges. Um. So so, so part of why
I get sort of, you know, headbanding into wall about
(09:11):
some of these constitutional arguments is because it actually doesn't
matter if they're right, because the courts are never really
going to have a say on this. All that matters
is that, you know, these constitutional objections are providing um
off ramps for Republican senators to say, you know, we
don't want to condemn what Trump did because then we'll
(09:32):
alienate the base. But we don't want to condone what
Trump did because it was pretty freaking terrible. Is there
some third option where we can actually get out of
this without having to do either of those things? Along
comes you know, superficially plausible but actually incorrect constitutional arguments,
and it's perfect um And so, you know, the scholars
almost uniformly think it's constitutional to have a trial of
(09:54):
former officers. Um. The scholars almost uniformally think that it
doesn't matter if the speeches pretend could by the first
moment or not. But what the scholars think isn't gonna
matter because just up to the senators at this point.
So we have this document that we try to interpret
like everything that our government is allowed to do, like
(10:14):
through the Lenza, and we have a bunch of scholars
like you whose job is to understand it. But when
it comes down to deciding whether or not like it's
legal under that to do something, it just kind of
matters what a bunch of guys in Congress think. So,
I mean not usually right, I mean really usually you know,
it matters what the courts thing too. I mean so,
but in this case, so in this case, I mean
(10:35):
and and And that's because the alternative would give the
courts the power to, you know, sort of override one
of the really important checks and balances in the Constitution
on the courts um. And so there's actually Supreme Court
decision in a case called Nixon Wrong Nixon Walter Nixon, Okay,
this is United States um where the court where the
(10:55):
Supreme Court explains why it's not appropriate for the courts
to review impeachments. And so a lot of false around
and say, well, therefore, whatever the senators think, you know,
is fine, and what I want to say is like
we should be comfortable vocabulary where senators who adopts transparently
pathetic constitutional arguments, you know, cannon should be you know,
punish at the ballot box or doing so like it
(11:16):
actually auto matter, It should are hied them behind completely
implausible rooms in the constitution. You know, it says a
lot about where we are that it won't. Yeah, of
course it does. I mean because it it makes what
you're saying makes complete sense, right, Like it wouldn't be
right to give the courts total say in this kind
of an instance because they're not generally elected and that
(11:37):
that would be that would be problematic. But also what
we're doing is deeply problematic because like you know it,
the reality doesn't matter, and whether or not these senators
are acting in accordance with the Constitution doesn't matter. And
none of the ones who vote against um impeachment will
ever be punished at the ballot box because I don't
(11:59):
know the whole Yeah, it just seems bleak. Does this well?
Does affect the uh if this happens again, like this
decision or is it just sort of dependent on whoever
is in the Senate at the time, Like we'll it
just they'll just do this again in a different way.
(12:20):
I mean, precedent operates differently right in the play, which
it doesn't. Right, So so chords have the standard. This
this this obnoxious Latin term starry decisive. Um, that's the answer,
the proposition that altens be an equal court should follow
their precedence um and not depart from them without good reason. Um. Politically,
you know, precedent is only as good as the politics
at the moment. And so we're do well. You know, guys,
(12:44):
I am I am unfortunately a hopeless optimist about a
lot of things, um, which which may put me in
the wrong crowd for this particular enterprise. No opimists not optimists.
I am also an optimist at my core. It's hard these, yeah,
but you know, I think, but I think it's worth stressing. Like,
(13:05):
you know, there's a there's a mem out there that
because it's inevitable, that enough Republicans are gonna you know,
cop out and find some procedural grounds to to vote
to equit. But this is all a wasteed. I want
to sort of be on recorden saying I don't think
that's true. That like, even if the Senate ultimately votes
to aquit. First, you know, if ten or eleven Republican
Senators vote to convict, that's a big story, even it
(13:28):
doesn't effect the bottom line. I mean, in the history
of presidential impeachments, there's been exactly one cross partisan vote
to convict, and that was Mitt Romney last year. Right,
If that number shoots up, now you know that's a sign.
But also too, I mean, I just think it's important
that you know, we still don't have a complete picture
of just how bad things were on January six then
(13:49):
in the days cleaning up to it, we still don't
have a complete picture of just what the federal government
knew and when they knew it um and the slow
walking of the response by the Department Department Defense on
the sixth, and so you know, I think there ought
to be we ought to be fixated on what happens
in this trial. Not because the result is actually somehow
hanging in the balance. I don't think it is, um,
but because you know, one of the things that trials
(14:11):
are supposed to do is build historical narratives, and you know,
the reality is, yeah, I don't think any Republican is
gonna pay a price at the ballot box for voting
to equip Trump. But you know what if it comes
out that there was coordination between the campaign and Cruise
and Holly for example, or you know, I mean example hypothetically, right,
(14:32):
you know, I just I just have that, like you know,
there there's value in these proceedings even if the result
is is not something that's that's that that we have
any doubt at this point, Yeah, because we have I mean,
just the sheer decency if we need to do something,
we need to officially say, hold something, some sort of
acknowledgement that this happened, because right now it feels for
(14:56):
a lot of us like this was a little over
a month ago, guys like you know, and and for
me still just today seeing the different videos shared of
January six, I've, hey, I don't people make fun of
the word triggering, but I have found it to be
very much so, Uh, anyway, this needs to happen at
(15:16):
least to acknowledge that this this this thing happened. And
if I'm in and I think we also, you know,
we have I think for a generation, I think this
has been true on both sides of the aisle. We
have you know, surrendered um constitutional high ground to political expediency,
and I think you know, the Republicans have been more
successful at it than the Democrats. Two. UM, I think
(15:40):
the result has been this sort of you know, it
is no longer true, even though it was for large
fonts of American history that constitutional arguments are actually significant
parts of you know, electoral campaigns, right Like, when was
the last time anyone ran on you know, if I'm elected,
I'm going to make sure we take this approach to
executive for exactly. UM. And it's interesting that we ought to,
(16:01):
you know, we ought to be thinking about how that's
happened and how I mean, what the political scientists call
it is the separation of parties replacing the separation of powers, UM.
And I think that, like, there are any number of
symptoms of that UM and this is one of them where,
you know, if people are just using constitutional arguments the
way that drunks these lamp posts for support, not for illumination,
supposed to actually standing on principle, I would love to have,
(16:24):
you know, I would love to think through how we
reclaim some of the ideas of like institutional constitutional arguments
for their own sake as opposed to just you know,
a means from my side to win in your side
to lose. Yeah, I mean, so, here's like the the
trouble is that I I don't know, I don't know
(16:46):
that it's even possible to do that, because the Constitution
isn't something most people really see much value in as
the actual document that it is. You know, it's it's
whatever set of ideas they've come to for a lot
of the right the Constitution is the Second Amendment, right, Um,
you know that that's the culture I grew up in.
(17:06):
It's not, um a body of of like laws and
restrictions on power when that power is something you want
to exercise or want to have exercise in your name.
And I guess like that's the I don't know how
we I don't know how we get away from that,
But I do agree with you that like that going
through impeachment, even that, if we know that the numbers
aren't going to work out with Trump, actually getting impeached
(17:28):
is critical for building a historical record and for UM
for at least attempting for at least like at least
trying to hold to the idea that there ought to
be consequences for this kind of behavior, even if you
can't force them through to the extent that you should. Um.
I just don't know how optimistic I am about about
this having an impact in the future, you know, yeah,
(17:50):
I mean, I you know, I don't think it will overnight, right.
But I think it's it's baby steps. I mean, it's
it's a question of you know. Um. And I think
it's really important that Mitt Romney's dime on this hill,
right right. I think it's really important that he not
be alone. I think it's really important that Liz Cheney. Um.
(18:10):
You know, whoever thought Liz Cheney would be uh a
player in the story? Um? Because it seems to me
that like one of two things happens. Either you know,
the party completely abandons them, in which case, you know,
we're we're looking at the fracture of the Republican Party
in ways that have enormous long term consequences, um, right,
(18:33):
or the party actually acknowledges that it has to come
back to them in some respect. Um. And you know,
I don't think that the impeachment trial is going to
be the forum where that fight plays out. I think
it's going to be primaries. You know how the next
couple of years ago with respect to whether those folks
just become outliers or whether they actually become pretty important
players in national political discourse. I think it's gonna have
(18:53):
a lot to say about this. Yeah, I think that's
a really good point. Yeah, I mean we've been talking
about this for a little bit, this fracturing of the
Republican Party. You've got obviously you're more classic Republicans than
never trumpers or and then you have the whole the
other wing, the Trump supporters, the Q and on the
(19:15):
conspiracy theorists, and right now the Republican Party encompasses both.
And this is a real reckoning moment, and like you
or it should be anyway to see how they navigate this,
and like you mentioned this, you know, looking for an
off ramp, looking for a way to figure out how
to handle this issue, and this impeachment trial forces it
(19:35):
a little bit. I've seen the argument from some people like, yeah,
of course, uh, we don't condone his actions. We do
think that he contributed to it, But they're hung up
on the fact that, like, I don't know if it's constitutional,
if this is legal, you know, and they're trying to
force that. But we know that they have the votes
to move forward and actually do the proceedings. And I
(19:56):
am curious to see, as you mentioned, once all the
evidence is, where are they going to fall? You know,
what what side are they going to choose? Um? You
know we've already established, we all know that very unlikely
that he is convicted. I'm curious. The other thing that
has been floated is barring him from office. Now will
(20:19):
he have to be voted guilty completely in order for
that to happen? Yes, Um, I mean so so there.
I mean there there are three different ways that that
Trump could theoretically be barred from future office. The most
straightforward is this one, which is the Senate votes to
convict and then it takes a second vote to disqualify him. Um.
I mentioned there have been eight successful impeachment you know
(20:41):
convictions in American history, Um, and then three of those
eight led to disqualificately, it led to the Senate vote
to disqualify the officers, most recently Judge Porteous. Um. There
are two other possibilities. I just think that they're both
far more remote. Um. The first is that there are
one or two criminal statutes that after really impose as
a penalty for a conviction um, disqualification from future office,
(21:05):
including ironically enough, the insurrection statute UM. Right, and then uh,
And then there's also Section three of the fourteenth Amendment UM,
which at least in theory, you know, disqualifies those who
actually engage in insurrection from holding at least some federal offices.
The problem with both of those is that they require
external actors to do things they've never done before. So
(21:26):
the criminal statutes would require the Biden administration to actually
prosecute Trump UM, and the Section three procedure would require
converss to do something that's never done before, which is
somehow pass some kind of legislation that would implement this
provision that would execute it. You know, there are things
I can imagine Senate Democrats being willing to nuke the
filibuster over UM. I'm not sure that's one of them.
(21:48):
And so I just I'm not even sure that that
gets through the Senate. So, you know, I think this
is the most likely way to to kick Trump out formally. UM.
Of course, this goes back to what we were talking about.
There's still the ecent to which, you know, building a
more complete record, building a record that Trump's opponents, even
within the Republican Party can use. Um would be a
(22:09):
value practically, Um, if you really were to try to
throw his hat back in the ring in in three
years well together everything. So I one of the things
I'm curious about is how likely it is, because I
(22:32):
think it most valuable part of what's happening today as
we record this in Congress is the the fact that
hopefully more information will come out that will be able to,
like you said, kind of tie in whether or not,
like Cruise and Holly were communicating with Trump and to
what levels some of these people were involved in actually
instigating what happened on the sixth, Um, is it the
(22:53):
kind of thing that we could see, you know, even
if they're not willing to go after Trump, we could
see prosecutions and even like like like people from talking
about kicking Marjorie Taylor Green out of out of her seat, Like,
is is there any actual way to do that? Is
there a possibility this leads two people who like facing
criminal charges from people are what they've done? Yeah, people
(23:16):
aren't Trump? I mean maybe, Um. So, I mean, let's
take one of the let's take one of the more
I think significant claims floating out there right that there
were members of Congress who gave you know, scouting tours
um in the days leading up to January six, right,
I mean specifically Green, specifically Green. Um. So so I
mean I do I want to talk about Green for
a second and in a second, I mean, but so
(23:38):
so if if if, if there were more concrete evidence
of that, right of course, yes, that could be you know,
not just a matter of expulsion proceedings in either the
House or the sentence been upon who the member is.
It could be a matter of criminal charges and and
and I think that would not be implausible or unpresent well,
I mean, the whole thing is unpreceded. Um. I had
a deeper concern though about Marjorie Taylor Green, which is that,
(24:00):
you know, the Republicans, it's like she's absorbing right, all
of the hits um for conduct that really that while
execrable um, execrable um right, um, it's not that radically,
you know, worse than a heck of a lot of
members of the Republican conference in both the House and
(24:20):
the Senate. I mean, some of the things she said,
and it's on and is on videos. Having said sure,
but you know, I feel like she's absorbing all of
the punches um that you know, Moe Brooks and Kevin
McCarthy and Josh Holly and Ted Cruz, like the energy
that I thought there was for at least a few
days to really, you know, hold accountable those members who
(24:42):
could be held most directly traceable to what happened. Now
seems like, you know, oh well, as long as you know,
stripping Marjorie Taylor Green of her committee assignments, all right,
we're done, um right. So so I'm I'm a little
worried that she's actually become a distraction, um compared to
folks with far more power, um, who who I think,
(25:02):
in some ways were actually much more directly involved in
in facilitating would happen on January six, and who might
even recognize that and use that as an opportunity to say,
oh Green, no, Green, We're not like her. Let's get
rid of her. Where are The're the good ones now,
even though they have so much more to do with it? Yeah,
I mean, I just I think I think she has
(25:22):
become a convenient um, not Patsy but foil um. Yeah,
scapegoat right exactly where you know? I mean, look, how
many I am guys, I I would I will never
get over. There's so many things about generous wis will
never get over. The thing I will really never get
over is the votes that night, right after what happened,
when you still right, you know, eight different Republican Senators
(25:47):
and over a hundred and thirty five members of the
House still voting to you know, disqualify Biden electors from
Arizona and Pennsylvania. UM. And it seems to be that, like,
you know, this problem runs a heck of a lot
deeper than Donald Trump and Marjorie Taylor Green, and you know,
the the my concern is that people are gonna feel
like punched out. If you know, we get through the
(26:08):
Trump trial and we get through Green being stripped of
her committee assignments, it's like, all right, you know, that
was enough. We're tired of this. There's other stuff to do, which, yeah,
there are a lot of I just I don't know,
this is this is this is not an an accurate analogy.
But like you know, the I started my career studying
(26:30):
UM international war crimes trials UM and and sort of
the the UM, the movement towards, you know, after wars,
holding people criminally accountable right, the rise of individual criminal
responsibility UM. And one of the remarkable things that you
see and studying in that field is how hard it
is to overcome the inertia of exhaustion UM. And you know,
(26:53):
it's sort of the like, you know, we won the war,
you know, can we can we get back to two
normal times? And and how you know how you really
it really is sort of swimming up stream um to
pursue accountability in those contexts. Um. That makes it harder,
but it doesn't make it less worth doing. Yeah, yeah,
I mean. And there was also a debate that I
found really interesting before Nuremberg about whether or not it
(27:16):
was like about how it was a very problematic precedent
to set to charge people for things that in some
cases weren't crimes before they like, were not crimes in
the nation where they committed them when they committed them.
That you're kind of retroactively saying this thing you did
is is a crime and now we're going to punish
you for it. No incremen lega Yeah, I guess yeah,
(27:42):
I've heard of yeah, no crime without law yeah. And yeah,
and the notion that there are some things that are
just so morally reprehensible that it doesn't matter if they're
written down or not. Um. Now, I don't think that
would happen in January six rises to the level of that.
I mean, we're not talking crimes on this in genocide here.
But I do think that the political coal analogy is
not is not implausible, right that that the notion that
(28:03):
you know, the every you know there there's so much
energy pushing in favor of like getting past it. And
that's why it's so important to sort of, you know,
for folks to actually sort of take a pause and say, well, listen,
even if this is not gonna work, even if we're
not going to convict him, even if we're not going
to get all this stuff done, we shouldn't give it
an a temptation to just, you know, move on. We
actually should make sure that we set some kind of
(28:24):
at least historical precedent lest this happen again. Yeah. Um,
I might pivot now slightly. Some thing you you mentioned
blowing up the filibuster and uh, the filibuster in general
has been a topic for a while that people debate
and discuss, and I think that we should discuss it
(28:47):
here today with you. Um, maybe maybe start by giving
us your law professor breakdown of what the pillar filibuster is.
You know, we definitely all know what it is, but
let's just make sure everybody knows. I mean, I think
a lot of people were surprised that you don't have
to like stand in the middle of Congress any It's like,
it's not Mr Smith goes to Washington because it's changed.
(29:12):
So so one of the I mean, I actually think
one of the best proposals with regard to the filibusters
to go back to the old school filibuster um. So, so,
the filibuster um is basically a Senate procedural rule, and
it's a Senate procedural rule about something called culture UM
C l O t U r E. And the idea
is that UM in the Senate that there are now
(29:34):
lots of exceptions, but at least the default rules in
the Senate. Before you can move to before you can
vote on a particular action a judicial nomination UM, confirmation
of a Cabinet secretary, passing legislation UM, you first have
to close debate UM, and that's cloture. And the vote
to close debate UM requires sixty votes UM. Right, that's
the sort of the modern version of the filibuster. UM.
(29:56):
The old school filipbuster was that you couldn't close debate
so long as a senator was speaking um. And so
you know, the Mr Smith goes to Washington style filibusterum
or you know two more modernized the stackhouse filibuster from
the West Wing UM is you know, is literally a
senator standing on the floor of the Senate reading whatever
(30:16):
the heck they want to just to sort of kill time, um,
either to make a political point or because time is
of the essence and they can stall out the clock.
It's usually one or the other. And you know about
I don't I should remember xact one and I don't.
But like fifteen fifteen years ago, um, you know, the
Senate got rid of the sort of you have to
do the whole standing and talking thing um, which just
(30:39):
made it so much easier for the filibuster have become
this automatic obstacle to everything. I just imagined all of
the senators aging up and none of them leaving office,
and we're like, let's get rid of that, because I
kind of for this the old idea of like you
can if you can, if you're willing to stand there
and talk about nonsense for days. You can things up.
(31:00):
That's kind of rad It's like, yeah, except that it
can be used against us, you know. But but because
I mean, we have to say the quiet part out loud, right,
which is that, Um, in a world in which the
Senate itself is not representative, right, the filipbuster dramatically exacerbates
the unrepresentativeness of the Senate. UM. And so you have
this problem where even though even though both parties have
(31:22):
wielded the filibuster against the other, UM, Right, the reality
is that the filibuster sort of relatively allows a far
smaller number of Americans on the Republican side right to
to to halt legislation or appointments in their tracks than
Americans on the Democratic side, given how many you know
people are representating in the twenties small est states in
(31:42):
the country. UM. Now, it's just a Senate, it's just
a Senate procedural rule. The Senate has the power to
change its rules. UM. And so we've seen the gradual
demise of the filibuster for judicial appointments. UM. And Republicans
like to say it's all Harry Reid's fault. That hilarious, UM.
Historical revisionism. They love that, though they love that, they're
(32:05):
very good at it. It's true. Um. So yes, Harry
read in one sense, Harry Reid fired the first salvo,
in the sense that Harry Reid, when he was sent
a majority leader, blew up the filibuster for circuit level
judicial confirmations. Um. But of course that wasn't out of nowhere.
That was in response to years of Republican and transigence
(32:26):
and filling seats um with Democratic appointed judges on the
circuit courts. But then the Republicans are and say, well,
of course, then we can blow up the filibuster gorse um.
Which is why there's now no longer a filibuster for
Supreme Court confirmations. It's why um, the last four, you know,
all three of Trump's Supreme Court nominees are in the
closest confirmation votes all time. Um. That wouldn't have even
(32:48):
been possible when they were still a filibuster. Um. But
it's still there for ordinary legislation. Um. And you know
the McConnell and Cornin and the sort of the old
school center pub leadership you know, have been on this
tour in system that like without the filibuster, the Senate
will lose its character, to which my responses, You've got
to be kidding me. Um. But so you know, all
(33:09):
it would take to blow the filibuster is a simple
majority vote, um, which requires all fifty Senate Democrats. And
you know Senator Mansion is on record is saying he
doesn't want to do it. Um. I think Senator Cinema
has hinted that she doesn't want to do it. Um.
And so you know there's to quote Hamilton's you don't
have the votes. You don't have the votes right now. Um,
(33:32):
probably not at all. But I mean, I mean, I'd
love to talk a little bit more about what it
could mean for us if we did or what, because
it's there's there's of course, when you have the majority, Uh,
that's convenient. But there's a very good chance that we
will not have the majority in two more years and
what that would mean for us. Not that that's necessarily
(33:54):
the right argument to make, it's just worth acknowledging kind of.
I mean, I think so I think that not having
the majority in two years argument doesn't really I don't
lose sleep over that, because you know, Biden will still
be the president in two years. But I mean, just
so this is so, this is Corner's argument, which is
(34:16):
the second the pendulum s wins back, you know, the
Republicans who whatever they want. And my responses, when have
the Republicans not done whatever they wanted? Um, there's that.
Otherwise we're we are, Yeah, it a stalemate constantly. But
but it's worse than that. I'm sorry. I have the
same concern that that Katie's expressed, which is like, Okay,
(34:37):
you're giving up the filibuster. That also means that like
when they get back in power, they can steam really
But also I can't remember a time when the Democrats
stopped anything terrible that way. So I yeah, yeah, I
guess so I would slay that on that. I actually
think that there were a lot of I think there's
a lot. I think there's a lot like the Bush administration,
and I think some parts of what Trump was trying
(34:59):
to do, like why you're trumping up doing everything through
you know, executive branch regulations when he had a fifty
three or fifty four, you know, forty six majority in
the Senate because he didn't have sixty votes. Um right,
I mean I think that I wouldn't dismiss that as
a result of the fact that he used EOS, it's
easier to kind of undo certain thing that's right makes sense,
But because the flip side, to me, the strongest argument
(35:22):
about the filibuster has is all about increasing the franchise, right,
which is that the most the simile, most important thing
Democrats can do now that they control both houses of
Congress and the presidency is make it easier for people
to vote. UM. And And you know that has two effects, right.
One it's actually a good thing in the abstract, like
(35:43):
more people voting good too, it's probably good for Democrats UM.
And So you know, I think the to me this
really I don't think it makes sense to blow up
the filipbuster just to get through you know, a economic
relief package UM, as important as that is UM, or
other legislation that is I think, you know, sort of
(36:03):
a one time policy initiative, however important it may be. UM.
I think it is important to talk about getting through
meaningful voting rights reforms UM in a context in which
you know, we're already seeing Republican state legislatures reacting to,
you know, all of the election fraud that happened, um
to justify ever more suppressive measures on voting in ways
(36:27):
that are probably gonna hurt Democrats at the ballot box
as early as you know, next November. So I guess
I just you know, to me, it's it's it's sort
of holy. Apart from Mansion and Cinnamon, the politics at
the moment, I think it ought to be a question
about not just doing what's convenient right now, but which
is actually gonna have a long term impact on you know,
the shape of things in Washington. Do you I mean,
we don't have those votes now. Do you think that
(36:48):
there's a world within the next couple of years where
we might be able to push for that to happen? Maybe?
I mean, so you know, I I lots of people
are down on Chuck Schumer, UM, and I understand that. UM.
You know, listen, I'm a New Yorker. Um. We we
you know, we we we we know. Um, I think
(37:11):
I would I would just say, I mean, I think,
you know, the most important relationship in Washington right now
is the relationship between Schumer and Mansion. And you know,
in a world in which the Republicans, to me, the
question is what told what what would the Republicans have
to do to push Mansion off the cliff, um right.
And and so I actually think there's something to be
(37:32):
said for, you know, carefully walking the line sort of
push them for meaningful policy changes, forcing the Republicans to
kill some of these things that Mansion might actually want, um, right,
as opposed to starting with like Supreme Court reform, which
Mansion doesn't want. Um. You know, pick things that are
actually important to Mansion in Cinema, make those legislative priorities,
(37:54):
and when the Republicans kill them, you know, use that
as sort of saying, got you know, look, look what
we can't do because of the filibuster um. And indeed,
I mean, you know, the irony is right, Mansion and
Cinema could probably go across the aisle and find eight
or nine Republican Senators to say, guys, help us out here, right,
you know, um, vote for culture, vote vote for culture
(38:15):
on this or else. Right. So the question, I think,
so there are two questions here. One is a Schumer
going to go that route where he actually tries to
pick the right fights to get you know, the most
moderate numbers of his conference on board and to you know,
our Cinema and Mansion gonna use any of this as
leverage to actually try to get some of the more
moderate Republicans to let some of these bills go through. Right,
(38:37):
It's kind of like a chain you have to create, Like, well,
he put pressure on them in order to get them
to put pressure on other people. And the trans Mansion
even going. Is the managine even capable of putting pressure
on anybody? Yeah, I think I think he is. I
think it's question whether he wants to. And that's why
I think, you know, it's more a question of what
his legislative priorities are at this point than what schumers are.
(38:58):
This is really really insightful and helpful for me, I'm
sure for all of us. One thing is I'm listening
to this conversation, and how you're breaking it down is
how much of a game it is also like a
game of strategy between these people and and and exchanging
of priorities and favors, and it's and and this is
(39:20):
really insightful and I know that that's how it helps.
It's just so hard sometimes when there's such a disconnect
between what you're seeing around us out here, especially during
a pandemic and people suffering and knowing what's at stake,
like it's a big deal. Voting rights is a big
deal that we have to bargain our way to being
able to do a small step in the right direction.
(39:41):
Is it's hard. It's hard. I understand that the frustration
that so many of us feel. But I also it's
helpful to hear this perspective when you're from our place,
where like, you know, why isn't this happening? Why isn't
this happening when we know why? Because there's there's these
inner workings that are happening. Yeah, I mean, and that's
not that's not to defend the inner workings. I mean,
(40:03):
you know, I think this is not this is not
the system I would have created, but the reality of it. Well,
and voting might a great example. I mean, so the
Supreme Court, you know, in strikes down the preclearance formula
in the Voting Rights Act in the Shelby County case, right,
and it says, listen, you know, Congress, you can fix this,
um knowing full well that so long as the filibuster
(40:25):
isn't in place, it's going to be almost impossible to
get meaningful vote and rights reform. Through both chambers of Congress,
right that the House has passed a couple of times
since voting rights reform legislation that's died in the Senate.
And so, you know, I think the you know, there
are lots of problems with the Senate as an institution. Um.
For better or for worse, We're stuck with it, um.
(40:47):
And so I think the question becomes not just sort
of how do we cur you know, how do we
howl at the moon about the Senate, but how do
we actually put pressure on the on the trigger points,
on the places where it actually might move the needle.
And you know, unfortunately, right now with the Senate, that
falls on you know, the well I was gonna say,
a Democratic senator from a state that Trump won by
(41:08):
you know, many many many, many, many many points. I mean,
you know, the the the the member of the Senate,
you know, the Democratic member of the the Senate who was
from the reddest state, um. And you know, that's that's
where we are. And I think that's you know, the
this is part of why you know, to me, the
most disappointing thing about the election in November was how
(41:30):
poorly the Democrats fared in some of the closer Senate races.
I mean, you know, Sarah goodeyon losing the Susan Collins right,
you know, I mean Lindsey Graham somehow surviving, Um McConnell.
I mean, he won by a lot, but it's it's hard,
it's hard, it's hard to see. And I know that
there there's lots of different reasons for that, and it's
(41:52):
very dependent on the region. But this general, you know, Okay,
we're not gonna have not go to vote for Trump,
but that doesn't mean that I'm going to let the
Democrats have the power you know, uh, mentality for a
lot of voters, I think, and you know, and I
think the question that that that we already be asking
is you know, that might have made sense on November three,
(42:15):
but now that we've seen what these Republican senators have done, um,
you know, and the extent to which they've continued to
indulge the big lie about the election, Um, is anyone
in the party gonna care? Right? Is it? Is it
actually gonna be you know, a hindrance to them? And
I think the short answer is probably not, Um that
actually it's going to help them in their primaries if
they're primaried, you know, the next time they're up. So
you know, that's why I think the it really is
(42:37):
a series of interlocking gears where all it takes us
for one of the gears to get stuck and then
the whole system just sort of stops moving um And
so you know, blowing up the filibuster is blowing up
one of those you know, gears, um and And I
think the it has obvious short term benefits. I think
the tricky part is that it's very hard to get
to fully appreciate an advanced the potential negative long term
(42:59):
concept once is how do you keep yourself engaging with
this system in a productive way, because that's one of
the things I'm having trouble with, especially after last year.
Like I I UM, I hate politics, and I also
hate the legal system UM and I I do in
sort of my work in journalism and my work covering
(43:21):
like terrorism, I engaged with it to some extent, and
it's always very frustrating. And you you noted a little
earlier that this is not the system that you would
have chosen to build, UM, But you do engage with
it in a very complex and a very deep and
a very I think product. It seems like a productive way.
How do you like kind of keep your morale going
to let you engage with it in that way? I
(43:43):
guess I'm curious as to like you're you're you're more
aware than most of us about how messed up the
way this actually functions. Is how do you keep how
do you keep engaging with it? Because the alternative is worse? Um?
I mean, I mean, you know the I'm a I
love Churchill, right, and one of my favorite Churchill quotes is,
(44:04):
you know, democracy is the worst form of government except
for all the others. Um. You know, the the short
version is I I said earlier than I'm like hopelessly optimistic.
I think part of that's because just when it thinks,
just when it looks like things are totally beyond salvation,
something positive happens. Right. So, you know, Biden one in
November by by a lot, by the way, I mean less,
(44:25):
let's less we forget like that election was not close
by historical standards. Um, it is not often that a
that a a first term president running for re election,
you know, um gets trounds like that, UM, And indeed,
in the process loses control of both the House and
the Senate. The last time that happened was Herbert Hoover. UM, right,
(44:46):
who you know, I don't think we think of fondly
when we think of of historical of historical example. So
I guess, you know, part of it is the quote
is trite, you know, the arc of the moral university,
that the moral arc of the universe is long, but
it bends towards justice. But I actually think it's true. UM,
and I think it's just you know, my I see my,
my teeny tiny cog in the machine role here as
(45:08):
just trying to help raise the level of public conversation
of you know, sort of let's at least have nuanced
conversations about these stands as opposed to the superficial talking
points versions of these things. UM. And I try that
my classroom me. I you know, I teach at the
flagship university in a red state. UM. You know, I
got plenty of UM, exceptionally bright conservative students in my classes. UM,
(45:30):
and I try to show them like they and I
are going to disagree about almost everything, let's at least
understand what we're disagreeing about, UM, as opposed to just
caricature on the other Side's arguments, and I think, you know,
that's not necessarily a quick way to reform things. But
I do hope that generationally, right there will be some
shift toward um, not seeing everything as like us versus
(45:52):
them and more, you know, sort of pluralism. And I
just I have to hope for that, because, as I said,
the alternative is worse well together everything. One of the
difficulties I have is that the US versus them thing,
(46:15):
simplifying everything to the point of an accuracy, um, at
this point in time, seems to objectively work better. Um.
It's not in terms of the outcome for society, which
is disastrous, but in terms of the outcome for the
individuals who are making it us versus them, right, Like,
even if they don't maintain political power, they make money
(46:35):
and build basis of support. And UM, I guess yeah,
I'm I'm I'm coming from this at this from more
of a pessimist standpoint, because when I think of that phrase,
like the moral arc of the universe bends towards justice,
my first question is who's justice, you know? Um? And
if the answer is you know, that's that's that's what
happens when we live in a pluralistic society, right we
(46:57):
you know that's that's gonna change. Um, But I would
just say, I mean, I am was miserable in every
possible but but it was miserable in so many different ways.
I mean, right, you know the George Floyd protests, right,
were horrifying, right, the I mean, not the protest, but
like the you know, the reason for them, the reason
for them response and a lot of responses to it. Right. Um.
(47:22):
I actually, you know, I have this potentially naive view
that we're gonna look back five, six, seven years from
now and to actually galvanized into caring about politics. Um,
you know, a larger chunk of the American population than
then had been previously engaged. And that much like the
sort of mid to late nineteen sixties, right, We're that
(47:44):
kind of galvanizing effect had dramatic long term effects on policy. Um.
You know that's gonna take some time, guys to show, right.
And I do completely agree with that, and and and
and with you, Robert, because they understand what you're saying.
And I agree with that. And it's a fear and
it's what we see. But in the moment and in
the right now, in this present Um, I know that
(48:07):
I am seeing more people engaged, more people standing up,
more people paying attention. UM. And I know that you know,
the civil rights movement wasn't a flash in the pan.
It took It took time, Just as you were saying, Steve,
it's still taking time. UM. And I'm horrified by the
(48:30):
last year and grateful that I get to be a
part of it, you know, get to be a part
of the next steps. UM. And it kind of reminds
me basically what your answer to Robert's question about how
do you stay optimistic is is you're focusing on the
thing that you can tangibly do, which is educated to
foster conversations, to push back to you know, but create
(48:52):
a space where people can can have these kinds of
conversations safely. And that's all. It's what anybody can do
right now. It's like, focused on the things that you
can control and show that things are are you know,
capable to change even in this gummy, geared up system.
Because you've worked on Hamden and v Rumsfeld, is that right,
(49:15):
which made it clear that the commissions in Guantanamo Bay
were unconstitutional? Those things can happen. That's what you were
talking about your sort of studying of how to hold
war criminals accountable. Um, even after years, although I would
say we sort of forgot a little bit about um W.
(49:36):
Bush and what everybody has done. Um, you were fair
about Nuremberg. We didn't do a great job then either. Yeah,
we're not not perfect at it, but attempts are made.
I am incredibly privileged. I mean I'm privileged in like
forty seven different ways, right, I am you know, a UM,
A a white UM tenured UM male, you know, straight
(50:00):
law professor UM in a job that I basically can't
get fired from. And so it's easy for me to
sit on my to sit up in my ivory tower
and say some of these things. UM. But I do
think that like the you know, the the extent to
which people now see it as actually part of their
responsibility to be active, um and to be participants in
our polity and to not just be apathetic. UM. You know,
(50:22):
gone are the days of there's no difference between al
Gore and Ralph Nader um right, Um or sorry, I'm
sorry that there's notes in between al Gore and George Bush. Right,
the the Neniator, the Nator line that like, you know,
Gore and Bush, you know, are the same, are the
same thing? Like, I mean, that was ridiculous in two thousands,
but it actually had truction. Um. And I think, you know,
(50:44):
we're at a point for better force that's not anymore.
So I guess, you know, I just I just hope
that we are sowing the seeds that we are providing
foundation for folks who are smarter than us and younger
than us. Um, right to come along and say we've
been do own this wrong. You know, let's do this better. Um.
And you know that's why again, just to bring this
(51:06):
full circle, why I think the impeachment trial is so
important no matter what the final vote is, because you know,
Trump's conduct in general, but especially between November three and
January six, is going to go into the annimals as
so far beneath the worst conduct by the sit in
president in American history. And you know, the sooner that
we are all clear on that and why that happened,
(51:29):
and how that happened, who helped to make that happen,
you know, I think, the sooner we can figure out
how we got there and how how we got to
Trump in the first place. Yeah, yeah, there's um, you
were talking a little earlier about kind of the late
sixties and about the hope that this is what we've
seen recently is kind of a turning point, that will
be a turning point. And I think I think a
(51:49):
lot almost every day to that that Hunter Thompson quote
about standing on a hill outside of San Francisco and
you could see the high water line right where that
that that wave of troll revolution broke and and and
and and pulled back. And he was talking about like
all the hope of the sixties, the optimism that there
would be fundamental change, the anti war movement, the civil
(52:10):
rights movement, all this feeling that like things were really
going to change, and then they didn't. Quite. They did
in some ways, but not to the extent that they
needed to, not to the extent people thought they would.
And I I guess my hope is that when we
look back in fifteen years on, it's a similar kind
of it's it's kind of the opposite where it was
a wave of ship that broke and rolled back, and
(52:33):
we're in the we're in. We saw the high water
mark of the ship, and now it's hopefully starting to
I don't know. Recede, Yeah, and we're and we're a
whole lot of people whose lives had never previously depended
upon having a function in government. Um right, we're we're
(52:53):
punched in the face over and over again by what
it meant to not have a government that could effectively
handle a pandemic. Um. You know there are folks for
whom that's always been a problem, but who for whom
those problems have been obscured from elitist you know, sort
of spaces. And I think you know COVID had this
remarkable flattening effect, um in in driving home. Why actually
(53:15):
having a competent, efficient governmance a good thing that hasn't
yet become an electoral issue? Um right. But I think
it's just it is too soon, right to think that
we've learned all the lessons of twenty I just want
to make sure we don't give up on trying to
tell the story before we move on. I think that's
a really awesome point and a great place to wrap
(53:36):
this up. I know you've got other things to do today,
but we are so grateful that you took the time
to chat with us. This has been really, really informative. Um.
Can you tell our listeners where they can find you
online or check out your work for better for worse.
I'm on Twitter at Steve Underscore plotic UM and I
(53:56):
also Against my Better Judgment have two podcasts, so it
really is UM. So Bobby Chesse I co host a
podcast called The National Security Law Podcast, which shockingly is
about national security law, UM and some other stuff. UM.
And my wife Karen and I Karen, who is by
far the better half. UM. We have a newish podcast
called in Local Parents about some of the unique challenges
(54:18):
of parenting and lawyer at the same time. UM. Interesting
from the perspective, not because we are experts in either
of them, but because I actually think that there's some
important utility and finding out that actually all of us
who are parents have young children suck in different but
equal ways. UM. And that it's you know, it's not us,
it's parenting. Yeah. Well yeah, you guys should definitely check
(54:41):
that out. I'm not a parent, but it sounds interesting.
I'll check it out as well. UM. Maybe someday I'll
be a parent and that will be helpful for me.
But thank you again so much for joining us, UM,
and anytime you want to come back. We we'd love
to have you sorry, has a question. Yeah, I'm just
wondering if you had any sort of like we plug
a lot of bail funds on the show, if there's
any kind of like related to the legal causes you
(55:03):
find valuable, any kind of like fundraiser or charity that
you would you would like to highlight for our listeners
to UM. I mean, I you know, at the moment,
I'm very focused on Texas specific issues on that front.
So there's there's a great group in San Antonio called
Casa marian aa UM that does work with you know,
with without risk groups and with you know, sort of
finding housing and things like that. UM. The Texas Civil
(55:24):
Rights Project UM is actually a really really excellent group
for you know, this kind of progressive work on the ground,
grassroots level in Texas. It's an not bill battle, UM.
But you know, don't just take my work, you know,
do your own research, find find people who could use
the support. And even if the support is volunteer and
phone banking, I mean, there are lots of ways to
contribute to to what's going on right now. Yeah, great,
(55:45):
all right, thanks man, And that doesn't for us today
at Worst Year Pod. You can check us out online
at Worst Year Pod, Gentleman, Worst Deer Pod, Get a cat,
worst get a cat, Get a cat. I just is
(56:06):
this advice? Yeah it is. It's a new catchphrase. My
cat is not with me at the moment, and I
miss having a cat. A cat. Everybody at everyone const
a fucking cat. What are you doing without having a cat.
You can't get a cat, Get a tamagotchi or a tamagotchi,
but ideally a cat. I'm sending Robert a tamagotchi today.
(56:29):
Transition to a economy, Yeah, a friendship lanyard, Yeah, carrot
sitting into the episode. See you guys next week. So
(56:52):
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