Harry Litman [00:00:00] Before we get started, I want to do a shout out to a fantastic spanking-new podcast. It is Talking Feds: Women at the Table. We've just started it, there'll be another episode at the end of this week. It features: Juliette Kayyem, Anne Milgram and Melissa Murray. Brilliant, all but really brilliant together. Each week they talk about a topic in the news, but then welcome a guest for a deep-dive of something that's on all of their minds. We really think it's great, we are super excited about it and we hope that you will tune in. Again, it's Talking Feds: Women at the Table with Juliette Kayyem, Anne Milgram and Melissa Murray. OK, here's our episode.
Harry Litman [00:00:58] Welcome to Talking Feds, a roundtable that brings together prominent former federal officials and special guests for a dynamic discussion of the most important political and legal topics of the day. I'm Harry Litman. Two weeks, a fortnight, a figure with an end point that shifts back and forth like an oasis in a desert, between close enough to see, but an eternity to arrive at. Two weeks until we know, hopefully, whether this three-plus year scourge of corruption, malice, vulgarity, dishonesty and know-nothingness is passing away. The week was dominated by the confirmation hearings for Judge Amy Coney Barrett, a moment on the one hand of astronomical stakes for the country and the court, but on the other, one drained of drama by the certainty of Barrett's confirmation on a narrow and strictly partisan basis.
She is on track to be confirmed next week in record time, and at record close proximity to the election, which in fact is already well underway. The president has declared himself cured of the virus, though steadfastly refuses to say when he last tested negative, returned to a version of his open air, largely mask-free rallies. Vice President Biden opted for smaller and safer gatherings, and the two had one of the weirder evenings in the history of presidential debates, with simultaneous dueling town halls in which each played to form, and a moderator actually called Trump to account for his lies. Polls continue to be bullish for Biden, who's at double digit leads in swing states and even others that Trump won in 2016. In retrospect, Trump seems to have tumbled after his boorish performance in the first debate and not recovered.
Republican senators were increasingly emboldened to separate themselves from him, as the risks of a Democratic sweep of the White House and the Senate and House grew increasingly probable. Of course, after the traumatic experience of 2016, Democrats are snake-bit and not putting too much stake in polls. On the other hand, the number of undecided votes this year is much smaller relative to the late going in 2016. Meanwhile, the virus returns to center stage after the few days for Trump of a welcome focus on the Barrett nomination, and it shows no signs of abating. Rates reached their highest points ever in 17 states, and were nowhere on the decline. One more week, in other words, of turmoil, menace, and deep divisions in America. And to unpack all of it, we have a fantastic crew of commentators, all returning guests to Talking Feds.
And they're sharing in a very special day with us. It's a banner episode because it is number one hundred, Talking Feds. Who'd have thought when we started 18 months ago that we would be posting this big number? But we are, and we are thrilled about it. And we are thrilled also to have with us first: Senator Al Franken. Al Franken currently hosts the Al Franken podcast, one of the most popular podcasts on politics in the country. He served as a United States senator from Minnesota from 2009 to 2018. And his absence was keenly felt this week because he was the best questioner for my money on the Judiciary Committee for nominations to the court. He apparently also had some moderately successful career previously as a writer, comedian and author. Senator Franken, thanks for returning to Talking Feds.
Al Franken [00:04:47] My pleasure.
Harry Litman [00:04:48] Bill Kristol: Bill is an American political analyst, a frequent commentator on several networks and an editor-at-large of The Bulwark. He is founder and director of the advocacy organization Defending Democracy Together. He had a rich prior career in government, where he served as chief of staff to the Secretary of Education Bill Bennett, and then to the vice president of the United States, Dan Quayle. And he was the founder and editor-at-large of the leading conservative weekly publication, The Weekly Standard, for many years.
Bill Kristol [00:05:23] Good to see you.
Harry Litman [00:05:24] Dahlia Lithwick: Dahlia is a senior editor at Slate, where she writes Supreme Court dispatches and jurisprudence, and where she hosts their excellent Supreme Court podcast, Amicus. In 2018, she won the Hillman Prize for Opinion and Analysis Journalism. The judges described her as the nation's best legal commentator for the last two decades. Dahlia, thanks for joining us again on Talking Feds.
Dahlia Lithwick [00:05:53] Good to be bacl, thank you for having me.
Harry Litman [00:05:55] All right. Welcome, everyone. And let's start with the hearings this week for Judge Barrett. They were a strange affair in a way. Barrett obviously was controversial, her appointment will consolidate a hard-right conservative majority that could change the country for decades. But the hyper-partisanship was so baked in that literally no votes were up for grabs, and at one level, there was nothing left to fight about.
All right. So starting with the Dems, the Democrats chose to make it about Obamacare. And they had an, unusually for them, disciplined message that confirmation of Barrett means loss of preexisting conditions. Smart move, smart rhetorical strategy? And if so, why?
Al Franken [00:06:38] Yes, I understand why they spent so much time on the ACA, but you could have done that and also pointed out the enormous hypocrisy of this. And also just, there are so many aspects of this, them going like you didn't talk to the president about Roe v. Wade, did you? The Federalist Society short list means they know exactly how she's gonna vote on Roe v. Wade.
Harry Litman [00:07:02] Well, you had a video of what you would have asked her. You put it out, it's great video. How do you grade them in the Franken standard?
Al Franken [00:07:09] Listen, I'm not going to mock my former Democratic colleagues, I want to knock my former Republican colleagues, I mean that's a better use of time.
The hypocrisy here is absolutely friggin amazing. She herself, in an interview right after Scalia died, said, well, this is so different from Justice Kennedy, who was seated during an election year, why she succeeded. Justice Powell said he was retiring in June, the year before.
Al Franken [00:07:36] This is very, very, very, very different, Merrick Garland, because, my god, there are already votes in the primaries in New Hampshire! You can't possibly, you got to leave this up to the American people, this is terrible!
Harry Litman [00:07:51] You change the balance of the court is what she said in 2015, right?
Al Franken [00:07:54] And then that was the second point she made. She made that point, too, which is, and also very different going from Powell to Kennedy. That's a lateral move.
Both moderate Republicans. So this is, Scalia died, the staunchest conservative. Whoever Obama picks is going to be the staunchest liberal. And that changes the balance of the court. Yeah. OK, Ginsburg, Coney Barrett. Wow. Every decision went to the progressive side in this last term, Roberts was the deciding vote. So this is completely changing the balance of the court.
Harry Litman [00:08:29] Well, OK. So Dahlia, this is, I mean, an obvious enough strategy, and they did at some point out the hypocrisy and of course the long term stakes, as Senator Franken says, are profound. This one actually is tenuous, right? They may or may not go down on ACA, but they made a concerted decision not to continually play the hypocracy card, but to lead with Obamacare. Why? And you think it was smart?
Dahlia Lithwick [00:08:56] They were in a whole bunch of boxes, not least of which is the one you've both identified, which is if you are predicating everything to come on, this is not normal and shouldn't be happening. And then you go ahead and have a totally normal hearing, then you're stuck on the scene. Corey Booker kept saying this isn't normal, this isn't normal. But everyone's there. They've got briefing books and questions. It looks a lot like Kavanaugh, looks like a lot like Gorsuch to me. So I just think that's a sort of existential problem. I don't know what the answer was. I was not in the camp. I'm curious if Al thinks it should have been that, you know, chain yourself to the Senate floor, don't show up boycott. I think they did the best they could do with a situation that was two things at the same time. Tethering themselves to Obamacare, look, they were in a bunch of other boxes. They were set up to be religious bigots.
And, you know, there's Josh Hawley screaming four seconds into the hearing that if you even say the words Griswold v. Connecticut, you're a bigot. So, you know, like, time and time again, you get these kind of funky traps that actually bear no resemblance to what's going on. You know, you hate women. You just hate women who are mothers. Like this would be the first mother ever on the court if you don't count Sandra Day O'Connor and Ruth Bader Ginsburg. So I think these traps get set, and then rightly or wrongly, Democrats are just like, ok, we're not going to touch religion. We're not going to touch the fact that she wrote this really seismic, controvertial, very voluble, clear article about Catholic judges recusing themselves in death penalty cases. She puts all this into evidence, her entire judicial career on the 7th Circuit, her career as an academic. her personal activism. It's perfectly clear she cannot say what Clarence Thomas did. I've never thought Roe her five seconds in my life because she's got this ample record. And yet I think there was just this fear that to attack that or to probe it or to try to find some way at that was anti-woman and anti-religious and anti, I don't know what all. And so I think the ACA felt safe.
Harry Litman [00:11:03] Yeah. Bill, what about from the other direction? I mean, you've suggested that maybe go going all in on this actually has future consequences for the Republicans. You get the seat, but maybe at the cost of being reduced to a minority party for the foreseeable future and having the conservative movement discredited, they had their own possibly Faustian bargain to consider. And they had no...they went all in too, do you think that calculation was flawed or debatable?
Bill Kristol [00:11:38] I mean, they'd been all in on this Faustian bargain for three and a half years and they weren't gonna have ended it here when they have one more, one more good thing to come before the reckoning, assuming there is a reckoning on November 3rd and afterwards. I would say this, I think the hypocracy is unbelievable, honestly. I remember watching in 2016, I was already anti Trump. I was, you know, I wasn't involved much on to say the Garland thing one way or the other, I was kind of amazed that McConnell pulled that off. I just couldn't believe that, frankly, the Obama administration let him get away with murder, and Hillary Clinton wasn't interested in litigating it in the campaign. Well, McConnell was doing, but it was sort of amazing that they succeeded in that. I mean, then, of course, it's even more amazing that they can just shamelessly reverse on it. Having said all that, look, I was, I remember when Justice Ginsburg died and it was era of Rosh Hashanah as I remember, and talking to people the next day.
I'm not super observant, so I was allowed to make phone calls and stuff, and my and my fellow sort of anti-Trump Republican-ish type world. And we thought, you know, look, it's not 2018 again, and people have overstated how much Kavanaugh helped sit Republicans and only helped in red states and some Senate races if it did, blah blah blah. Having said all that, it was a wild card. One of the few things that seems like it might conceivably change the dynamics of the presidential campaign. And if you think Trump is an existential threat and Biden has to win, it didn't change it. You know what, she'll probably be confirmed, but the gap is wider now than it was on September 23rd or whatever date that was that Justice Ginsburg passed away. And and so in that respect, I'm sort of willing to give the Democrats a fairly generous pass in terms of their tactics of strategy. The ACA thing, I thought they overdid a little. It's a little ridiculous, honestly. And the truth is, A, they're not going to find, I don't believe, that it's not severable.
I'm not a legal expert on this, but and B, if they did, they just repass ACA once they have a Democratic majority, and even if they don't have Democrat majority the Senate, given that it's become quite popular. So that was the least of the problems. But it was fine, I mean look, it helped them highlight the health care issue, which is a good issue for Biden, I think Roe hurts actually Republicans quite a lot too, they're a little scared of it because it is a contentious issue. I made it also generates a certain amount of Republican loyalty to perhaps to Trump, but it also gets into the religious allegedly kind of discrimination issue and so forth. So they might have in subtler ways, they could have handled it. The one thing I would say, and this is just my own view, I could be totally wrong. I don't believe that this is an epical moment in the history of the court, that the court is going to be wildly, if there will be differences in some key areas. But I don't actually think that the current six justices are going, if, assuming she's confirmed, are going to be a reliable six or even five votes to overturn Roe.
They're certainly not going to be five votes to overturn same sex marriage. It's not clear to me that Roberts couldn't pick up another person at some of those five to four decisions. I don't even know about her, I mean sure there's some issue she seems to feel deeply about. But there are others, if you read what she has written, it's not obvious to me that she'll go quite as sort of unequivocally in one direction and at the end of the day, they do kind of follow the election returns, that if there's a Democratic president, a Democratic Congress, honestly, a lot of these things are statutory interpretation and they could overturn them. So I'm a little, I'm not actually that liberal on this. I'm not the best person to speak to this issue. But I think this may be a little too much despondency that somehow 40 years of American jurisprudence is now set because there's, she has joined the Supreme Court. I don't mean to minimize liberal concerns about particular decisions and issues. I just think that's a little less obvious than people think.
Harry Litman [00:14:58] What about that?
Al Franken [00:14:59] I have some very strong feelings about this. One, you can do both. ACA, nine of the members of that committee, Republican members, have filed amicus briefs. So don't say that this isn't in jeopardy of being overturned. Secondly, this is why we won in 2018, this is why we picked up 41 seats.
You can do both. You can do both ACA and punish them. Make them pay the price on this hypocrisy, and say that the voters of South Carolina, the voters of North Carolina, the voters of Iowa, the voters of Texas, the voters of Georgia, the voters of Colorado, the voters of Montana, of Arizona, of Maine, are looking at this and saying this is so hypocritical. And the other thing is what the Republicans, it was nauseating what they were doing, when he pledged to only take from the short list of the Federalist Society and the Heritage Foundation. Those are one hundred percenters. She's going to vote to get rid of Roe.
Dahlia Lithwick [00:16:00] Loathe, though I am to be more freaked out than Al, I think I'm actually more freaked out than Al. Some of the stuff we didn't tweak into nearly enough. First of all, she's been pretty clear that she aligns herself with Clarence Thomas in terms of how she views precedent and stare decisis. She wrote about this. She was quite open, and I think it's a longer conversation, but I think that the fact that she wouldn't even say Griswold was super precedent, John Roberts said that. She said this litmus test that I thought was staggering, which is it's as long as it's unsettled in the public eye, it's not super precedent. And by the way, she has herself at the 7th Circuit, been working very hard to unsettle prongs of Casey. Right. Parental notification.
So she's actually part of the machine that unsettles things, so that then she can say it's super precedent. I think that's worrying. The other just completely pedantic, but I think nontrivial thing is there are things that you know about dismantling the regulatory state, about the administrative state, about chevron deference, about non delegation, all this dorky, dorky stuff that has to do with rolling back federal regulatory agencies. She did not say a single thing that made me feel good about any of that. And if that is like let's just remember, Neil Gorsuch is now the swing voter on the Supreme Court, and that is his M.O. is to get rid of the regulatory state. So I think in some sense, just setting the aperture at Roe and the ACA, the failure to see what happens to the EPA and the CDC and other entities that we like to believe, particularly in a pandemic, might matter. I think that that's a non-trivial consequence of what is going to be a six-three majority. And I think that there are six votes for a lot of that very boring stuff that goes under the radar that I think is coming.
Bill Kristol [00:17:58] I don't disagree. It may well be the case. I also would say that would be 1937. There would be a huge political reaction. And I do believe ultimately that the Democrats would increase the size of the court and do other things in terms of jurisdiction. And there are many more things they can do than people realize rather little of the Supreme Court is constitutional, a lot of it is statutory. And I think there'll be a lot of support for doing it. I think we finally have to wait for these things to happen. So they can't just sort of presume that what you say is going to happen. Now, is it healthy for American politics in five or 10 years where we're going to have a Democratic legislature ratcheting back jurisdictional and other authorities of the Supreme Court and so forth? Maybe not. But I do think that would honestly happen. I don't think the public will be in the mood to let major changes of the kind Dahlia's mentioning happen.
Harry Litman [00:18:44] I want to return to her in a minute. But I just want to ask you, Bill. There is this view, Al expressed it well, it's a kind of almost conspiracy theory on the left that really holds this as the triumphant moment for Leonard Leo and the Federalist Society in a 40 year plan. Do you sort of see it that way? Do you see them triumphant and calling the shots to the extent that everybody on the left seems to?
Bill Kristol [00:19:10] Yes, because Trump outsourced the selection to The Federalist Society in a way that obviously mattered some to George W. Bush and so forth. But it wasn't anything like this. So, yes, no. The only flipside, I guess this is my job this year, is to give the vaguely upside, which I think it's bad. I think it's bad. My role, my role. I think it's bad. I want to say this. I would say I felt like, I didn't watch that much of the hearings, but it had a little bit of a, you know. I'm old enough to remember when originalism, textualism, whatever you want, incidentally, one of the amusing things, Dahlia mentioned super precedents like, what's the original justification for that?
I love the way they pick up everything they like that's from very contemporary, not unintelligent, incidentally, kind of jurisprudential debates. That's a reasonable thing. I think, actually, but it has no basis in anything, right? Originalist, textualist or anything else-ist. And then that's sort of now part of the canon just because it's convenient to them in this case. But I had the feeling just watching all that it was sort of the last gasp. It's both the height of the power and the last gasp of originalism, textualism, all that. I mean it was so, the doctrines become so desiccated and formulaic and stultified. I mean, I do remember Bork and Scalia and Ralph Winter, and they were many very intelligent people who were in different modes of rebellion against the war in court and against the early Burger court and against whatever progressive jurisprudence, let's say.
And a lot of it is stimulating and interesting, and now it's just, it's almost become a parody of itself, when she refused to answer anything and so forth. And that, incidentally, if we could ever get away from that, that would be healthy. Could we actually have a discussion of what jurisprudential principles would govern people's behavior on the bench, I guess, which is never gonna get back to the head? I mean, you look back at the old hearings and people actually, they didn't resolve individual cases, but they did discuss intelligent things in an intelligent and informative way.
Harry Litman [00:20:56] She actually said something very interesting here, but the academy will debate it. She talked in a way Scalia didn't. There's been this bromide out there that if you're an originalist, it cuts one way. She first said, no, there are different kinds of originalists, and then she asserted that there are liberal originalists and they are defined by those who define the terms to actually analyze in a broader, more general way. That's an interesting but very debatable proposition. But I want to just quickly put my vote in with Dahlia's, I mean, I think that there is a real problem here and it may or may not be, Bill, 1937, some things really happened, but I think five of these people have been carefully curated because they haven't necessarily tacked that way, but they are very self-consciously in a very narrow sliver. I've been to the Federalist Society, you have too, and there's a very much a sort of dynamic of who's more conservative, etc. and everything about her is just the perfect pedigree. And I think in terms of the decades to come, and especially on the constitutional level with free exercise and the like, it is sort of cataclysmic.
Dahlia Lithwick [00:22:07] I think both Al and Bill talked for a minute about the Federalist Society, and I just want to put in the bucket of things that I am freaked out about, that if you track what Leonard Leo and Carrie Severino and the other folks from that sort of dark money network that Sheldon Whitehouse laid out.
Harry Litman [00:22:27] He did a great job in that, didn't he?
Dahlia Lithwick [00:22:29] He did. That was a master class and kind of got, you know, poo-pooed by Ted Cruz as like Homeland-type, stringboard conspiracy theory. But I just want to, like I think this is actually really important. The effort that Carrie Severino and Leonard Leo have turned to this spring is this Orwellian honest elections project that is like hundreds and thousands of dollars into voter suppression all over the country. They're the ones who are behind these like efforts to purge the rolls in Florida and Michigan. And I just want to point out that there is something under the radar that's both kind of laugh out loud, funny and also quite terrifying about the juggernaut that has seated all these FedSoc people on the federal bench.
Literally, they're now purging voter rolls and they're spending like craptons of money to put ads on the airwaves that say that all mail in ballots are fraudulent.
And I just feel like as metaphors go, the idea that the hill that Leonard Leo now wants to die on is vote suppression going into 2020 is just, it's it's beautiful. It just makes Bill's point about this is like the death rattle, right? If they can't, having captured the courts, they're not confident that they have six votes in Bush v. Gore 2.0 and therefore they have to suppress voting in Michigan. That's like batshit crazy.
Al Franken [00:23:58] Even more than that, Amy Klobuchar asked her, is voter intimidation illegal? And she said, I don't know. Man. I talked to Amy and I said, like, tomorrow you should start with look. Yesterday, I asked you if voter intimidation was illegal and you didn't know. And it is, by statute it's illegal. But I'm going to make it a little easier today. How about grand theft auto?
Is grand theft auto...like is that illegal? There's so much to talk about here. She wouldn't answer about climate change. So basically what she was saying is, well, if it comes up whether the EPA can regulate CO2, then I know that 97 percent of climate scientists say there's climate change, and that the three percent who don't work for the oil and gas industry. But when it finally comes to us, what I'm going to do is independently do all the research into climate myself. Maybe my clerks too, and make a determination about whether climate change actually exists. That's what she was saying. She couldn't say yes.
Harry Litman [00:25:15] Yeah. I mean, that is the dynamic. Normally, a controversial nominee would have to give a little ground. And she was, but everything was so set in stone. She knew she didn't have to.
Al Franken [00:25:27] But Harry, I do want to speak to what we're talking about in this conversation, which is what what happened in that hearing. And my contention is that they could have done all of this. They could have done the ACA. They could have done the hypocrisy. They could have done Federalist Society. They could have done all of this. But they didn't. And I don't know why. I don't know why. And someone should have been pointing at those senators on, the Republican senators and calling them out and quoting them and saying, look, I'm gonna call you a lying hypocrite. And you know what, you can hold me to it. Save the tape.
Harry Litman [00:26:04] All right, close out question. Biden says yesterday after she's confirmed, but before the election, he is going to address the court packing question, something he'd avoided and seems like a political trap for him to address now. So why, and which way do you see him going?
Bill Kristol [00:26:25] I think he'll take the view that he didn't want to address it until they actually rammed, completed the hypocrisy of the act. There's not just a partial act of hypocrisy. And they rammed her through and then he will, I assume, say something. Look, I've always been against it. I remain, I would prefer that we don't have to do it, but we'll have to see how she rules and how the court rules. I do think they need to wait for something to happen. It can't be prospective, I would say. I mean, I could justify it intellectually on just on the hypocrisy grounds. We need something so John Hickenlooper can say, you know what, we really do need to do this much as I reluctantly want to, they do need to get 51 votes. Yeah, I think that's what he'll say. I don't know. He's done a pretty good job of ducking it, again it's not intellectually very satisfying, but he's probably avoided problems by avoiding. He could have done it more elegantly, but I don't begrudge him not taking a hard position on it.
Dahlia Lithwick [00:27:13] Why would you try to force Joe Biden to, like, take himself hostage? It makes zero sense.
Harry Litman [00:27:19] I totally agree.
Dahlia Lithwick [00:27:21] It seems to me is to pledge to do the insane nihilist thing in the future that justifies the nihilism we have exhibited for the last four years. Like that is the only purpose of that. Why don't you make it worth my while by promising to do the thing that makes all of my reckless norm-shattering today seem OK? Why would he answer that?
I think the answer is because there's a lot of progressives who are very mad and who feel like we've lost absolute-freaking-lutely everything, and it's minority rule forevermore. And they want a pledge that something's going to be done. But again, I think Bill is right. Why commit to court packing when you can commit to jurisdiction stripping? You can commit to term limit. There's a hundred plans out there.
Harry Litman [00:28:06] Why do it before the elections, which seems crazy. And the waiting point, Bill, I see your point, but the earliest that's going to be is a couple of bad decisions next June. You know, the air'll be out of the tires, I think. But I agree with you Dahlia, it seems like he's got to be doing a nod in the direction of the people who are so angry about it, yet he really gives a card to the other side if he talks about that now. I just don't see why he's not waiting.
Dahlia Lithwick [00:28:32] He's also, don't forget, the switch in time that saved nine, he's signaling to John Roberts.
Harry Litman [00:28:38] To John Roberts, I see. Or to Gorsuch or whatever.
Bill Kristol [00:28:41] He held off, partly to his credit, I'd say he was trying not to weaken the Senate Democrats by holding it out, by refusing to rule it out, which would certainly be his instinct two, three weeks ago. And I agree that even now it's good to hold it out there as something over Roberts and Gorsuch, and even Kavanaugh, and in certain ways she could be maybe not on the issues that get closest to her to religious freedom. But there are a heck of a lot of these administrative issues that she has no particular track record on.
Harry Litman [00:29:05] It's now time to take a moment for our Sidebar feature, which explains some of the terms and relationships that are foundational to events that we read about in the news. We're going to be talking today about the RICO law, something you've heard a lot about perhaps, but haven't had fully explained. It's a very special law that the United States government uses to go after criminal organizations and to tell us about it we have Gavin Hood. Gavin Hood is a South African filmmaker, screenwriter, producer and actor whom you may recognize from Ender's Game, Eye in the Sky, X-Men Origins: Wolverine and Tsotsi, which won an Academy Award for best foreign language film. Here's Gavin Hood talking about the RICO Act.
Gavin Hood [00:29:56] What is RICO, R I C O? RICO is the popular name for the Racketeer Influenced and Corrupt Organizations provisions of the Organized Crime Act of 1970. RICO is a tool used by prosecutors to go after criminal organizations. The impetus for passing RICO was that organized crime often took over legitimate businesses like laundromats, restaurants and unions and used them to further criminal activities. Worse, the business gave it a built in defense to criminal liability. They could claim to be the owners of legitimate businesses and avoid prosecution. While RICO was created to target the mafia, its use has now grown well beyond traditional mob activities.
RICO makes it against the law to acquire an enterprise through a pattern of racketeering or its proceeds, or run an enterprise engaged in a pattern of racketeering activities. Enterprise is simple: it just means any individual or group of people. It can be a legitimate business or a criminal organization. The organization can be anything from a typical stratified mob business to a loosely affiliated street gang. A pattern of racketeering activities means two or more activities from a list of crimes that Congress specified in the law, such as gambling, murder or extortion. RICO has a broad reach; if you use the money you made from loan sharking or drug trafficking to go straight and you open a restaurant, you are in violation of RICO.
The same is true if you extort or physically threaten the owners of a laundromat to put you in control. Running or helping to run a criminal enterprise engaged in racketeering like a gang or drug cartel is a violation of RICO, but so is causing an otherwise legitimate organization or government body to commit racketeering. For example, a police unit that engages in a pattern of false arrests and evidence planting. The feds have even used RICO in some cases to go after loose affiliations that don't look at all like traditional organized crime. For example, in the Kids for Cash case, a private detention center paid kickbacks to two Pennsylvania judges to sentence juveniles there. The judges were charged with racketeering, among other crimes, and sentenced to nearly 20 and 30 years, respectively. For Talking Feds, I'm Gavin Hood.
Harry Litman [00:32:16] Thank you very much, Gavin Hood. Gavin is currently working on a film adaptation of The Test, a thriller starring John Boyega.
Hey, before we reconvene, I just wanted to take a moment to do a quick shout out for the podcast Daily Beans brought to you by the same people who brought you Mueller, She Wrote. For all the daily relevant news in a digestible format, check out the Daily Beans podcast. They have guests like Mary Trump, Andy McCabe, Frank Figliuzzi, a lot of former U.S. attorneys, I can vouch for that, having been one myself. You can subscribe to the Daily Beans and listen every weekday morning, wherever you get your podcasts.
Harry Litman [00:34:02] Let's take up the sort of week on the campaign trail and especially these sort of dueling town halls. There was this very, you know, almost a metaphor for like the ravine between Trump supporters and the country. He refused a virtual town hall, but then he did this. It was better for somebody and worse for somebody, to do these simultaneous but separate town halls. Who made the better strategic choice here?
Al Franken [00:34:27] Well, it probably helped Trump because he didn't look as ridiculous in comparison to Biden as he would have if they did it together. That's all I can say. I watched Trump, I don't know if anyone listened to his health care answer. It was hilarious.
Harry Litman [00:34:45] When he got asked actually by an audience member.
Al Franken [00:34:47] Yes, because it was so contentless and clueless. He knows nothing. Nothing. Nothing. But all he said was, and he repeated it like three times in this one little answer, which is well we got rid of the mandate, which was, you know, the worst part. Really? That's the worst part for you? No.
And, and then why are you trying to get rid of it? He basically said my plan, which, by the way, like eight weeks ago or nine weeks ago, he said he was gonna release a plan in two weeks, he's had four years to release a plan! No Republican plan has ever fully protected people with preexisting conditions.
Harry Litman [00:35:27] He had it pretty rough, I mean Savannah Guthrie held his feet to the fire more than anybody I've seen. You're not like someone's crazy uncle who can just retweet whatever. And he actually seemed a little rattled to me at points. So, yeah, I think it's a bad night for him, for one, because he's got very few occasions left to do anything dramatic. And this was, I think, not being onstage with him kind of tailor made for not much happening.
Dahlia Lithwick [00:35:54] I guess I would just say that I'm full of confessions today. But as a longtime watcher of reality shows, I will not lie. And also, I had like a colicky kid during The Apprentice, so, like, really did, like, lean hard into The Apprentice for a couple of seasons. But I think that when I think about who always gets cut, like in the first three weeks, it's like the petulant guy and then the paranoid guy, and then the crazy guy. Like, they, like he's got nothing else. He's just got petulant, paranoid, crazy with a side of lying. Like I, it's just hard to imagine a whole lot of undecided voters saying, you know, I didn't like the petulance and the crazy, but it's really growing on me, you know, three weeks before the election. And I guess I just find it, it's so tedious. And I realize that there are millions of people who think he walked on water. And so they probably thought yesterday was a tour de force. But, wow, you know, you feel like you could write his responses because you've heard them 200 times. I always think that boringness is what kills those shows, and it's just it's so boring.
Al Franken [00:37:05] He made the right move because if he had done it with Biden, he would just look bad. And also people would have watched it.
Bill Kristol [00:37:12] I think that's important. I mean, Biden's ahead. It was another day gone by, another possible moment where things could have changed a little bit and nothing changed in the race. I mean, I don't think any swing voters were paying very much attention, I didn't watch it. I just saw some highlights and followed it on Twitter since I was watching the Dodgers fail to give Clayton Kershaw support again. Yes. And terrible. Then I watched a little of the Met opera livestream, which was free, which was excellent.
Harry Litman [00:37:36] That is a fantastic program. I can't believe it.
Bill Kristol [00:37:37] Well it's free, it's great.
Dahlia Lithwick [00:37:40] This is, by definition, highbrow.
Bill Kristol [00:37:41] So you can go back and forth, everyone else is going back and forth between Trump and Biden, I was going back and forth between the opera and baseball. Which is high though, really.
Biden keeps doing a little better than people think. I've got to say, he's just been underestimated throughout. And I did see some of the answers and stuff, they're pretty good. I mean, you know, you may not agree with every little thing. But he was coherent.
Harry Litman [00:38:05] Well, more than that, he seemed self-consciously kind of low-key and contemplative to me. I wonder if that was just him because Trump wasn't around. You think that everything must be sculpted by the campaign? He seemed really to try to be Mr. Reassuring, Mr. Rogers sweater.
Bill Kristol [00:38:23] That was a highlight, particularly idiotic Trump campaign spokesman attacks him for being like Mr. Rogers, who's like, you know...
Harry Litman [00:38:32] I'm from western Pennsylvania, I love that.
Bill Kristol [00:38:34] Is I really an intelligent campaign tactic? I don't know.
Al Franken [00:38:37] He was that way because it's such a contrast to the people that everybody now is so concerned about being so off the rails.
Harry Litman [00:38:47] Histrionic, yeah.
Al Franken [00:38:48] It's a perfect thing for him to be avuncular and to be empathetic and to be substantive.
Harry Litman [00:38:56] You know, it's interesting. I mean, we'll see. And I don't want to get ahead of myself, but there are ways where if you listen to him. He actually is laying down tracks for being more than just kind of old dude steward of the government, but being pretty darn progressive at the same time as he's basically a sort of conservative, traditional figure. But I wonder how ambitious if it comes to it.
I wanted to talk a little bit because it's you know, it just seems like in the last week or two, they just from this sort of stage motions of the Republicans themselves, there's a real growing sense that the Senate is going or gone, which would be, of course, the hugest development. Do you have that sense, too, that this is what the Republicans even are thinking? And what's your feel now for where we are in the overall Senate race, where I think the Dems have 12 to defend, with Republicans 23, and they've got a lot that are in real danger, apparently.
Dahlia Lithwick [00:39:58] And fundraising, right? Crazy, crazy eye-popping fundraising. But like what what is Sarah Gideon going to do in Maine with kaffillion dollars, like the war chests are not.
Harry Litman [00:40:09] It's a lot of lobster roll.
Dahlia Lithwick [00:40:10] Yeah, it's crazy.
Bill Kristol [00:40:12] I mean, if you're at a +10 nationally, let's say they are to eight or something, that's, in a presidential year, there's not a lot of history of people in you know, you have to be you have to have a very comfortable margin to hold on to your Senate seat or be in a very red state.
So if, you know, this is where I think they really are close to at a tipping point in several states now, and you could have a lot of Democratic pickups, I think. And the money is pretty unbelievable, and they have some good candidates, honestly. From what I've, what's amazing is I talked to still a few Republicans are sort of friendly to Trump, some donor types and all, and we've got to double down.
Trump's gone. He's hopeless, that's hopeless. But we've got to double down or hold the Republican Senate, like, really? Why do you want to do that? Well, it's gonna stop Biden from doing all these horrible things. But what's interesting is people have even lost sight of the most elementary self interests. I mean, what is the cliche of American politics, interest group politics, right? If you're a wealthy business type, you want have friends at both parties. You want to have friends in the Biden administration. You want to have John Hickenlooper take your phone calls or Bulloch from Montana or Mark Kelly from Arizona, all of whom are moderate Democrats. And in the old days, in a way, the left always hated this about American politics, and the right did, too, in a funny way.
But I mean, which is, you know, this self-interest and you have friends in both parties. People have so become so hyperpolarized and so insane almost, that they don't even understand that they should be giving money to Bullock in Montana so that they will be able to call him up and say, hey, you know, I know you have to raise my taxes a little bit, but don't do it too far. You know, whatever, whatever you do, if you're a rich guy in the Biden administration, they're so insanely polarized.
Harry Litman [00:41:46] Yeah, I know. It'll be interesting if the culture has so changed that that even if a sane person is in there, that tradition of bipartisanship is no more. Al, how are you? You must have all kinds of friends who are running. Are they secretly chuffed?
Al Franken [00:42:01] Are they secretly what?
Harry Litman [00:42:02] Chuffed. You haven't heard of the word chuffed? Is that, it's too old or too young for him?
Dahlia Lithwick [00:42:04] It's very British, British.
Harry Litman [00:42:07] Oh, it's too British.
Al Franken [00:42:08] I'm from Minnesota, y'know.
Harry Litman [00:42:11] How you feeling about the prospect of Mitch McConnell being gone?
Al Franken [00:42:15] I think it's very likely or fairly likely he won't be majority leader, which will be very good. I don't think it's likely he gets defeated. He's always seems to pull these out. But I think the voter suppression is more about the Senate now. I mean if they can, cause those'll be closer, presumably, and maybe voter suppression will provide the winning margin for Lindsay or Tillis or Georgia races or in Mississippi? Look, [unintelligible] has Texas, and boy, look at what the governor there is doing.
Bill Kristol [00:42:49] Isn't that unbelievable? That is the most flatout voter suppression, at least the voter I.D. stuff and all, there was like a semi-plausible. Okay, you should show your driver's license, it's not the end of the world. We do it in Virginia, we don't know voter, you know. But that sounded at least like it was not totally out of the realm of this is literally just making it harder for Democrats to vote. Period. There was zero. I looked into this a little bit cause I wondered, what are they even pretending?
And incidentally, this where I take Dahlia's point about the courts. I mean, that appellate decision there in Texas, that just seemed nuts to me. And that was like three Trump appointees, two of whom were in appellate seats that had been held open by McConnell and not filled by Obama. Right. So that is where you do have I take your these sort of apocalyptic view of what the federal courts could do over the next 10, 20, 30 years.
Harry Litman [00:43:37] I just saw a study, and I meant to go back because it's from a democratic interest group, but it's suggesting that 90 percent of the rulings in this season of flurries of stays and whatever by Trump appointed judges have been, quote unquote, in favor of vote suppression. If there's a methodical analysis of that, it could be pretty worrisome.
Dahlia Lithwick [00:43:58] I hate to let anyone have just the tiniest filament of hope, but I would just add, I think if you look at John Roberts, the sort of newly liberated centrist John Roberts, the one issue on which he is just horrifying is voting from Shelby County on in. This is not an issue where he is in play. And I think if you want to be freaked out, in addition to the stuff that Bill just said, these panels of judges who are making decisions about crazy, you know, signature match stuff, COVID voting, just bonkers, bonkers attempts in the states. And I think that a lot of these are getting resolved on the shadow docket, stuff is not getting briefed at the court. The courts census decision this week, like sorry about your hundreds of pages of findings of fact, but we're just going to say nah. If you want to talk about anti-democratic impulses, the fact that these are not being briefed and litigated, that they're just like, oh, Purcell principle, can't change elections before elections. Everybody go home. I think that stuff is really chilling, and it goes to Al's point about the Senate, that I think it's not going to be necessarily people from militias terrorizing voters in Philadelphia, much as Trump is calling for that. I think it's just these systemic judicial insertions of themselves into this time and time again without briefing or finding of fact that stuff is really happening.
Harry Litman [00:45:24] This is a huge story. And just two quick points about Roberts. The first, Al says he's the five four for every pro-liberal, he's also the five four for every single conservative one, which outnumber them. And then second, to the extent you see him as wanting to be statesman-like, you could imagine his going over now to the Republican side to make something be six three and look a little bit better. That's in addition to his instincts where it's raw political power.
You know, I worked with him in the Department of Justice. He's a, you know, his roots are conservative. All right. We just have a couple of minutes for our final feature of Five Words or Fewer, where we take a question from a listener and each of us has to answer in Five Words or Fewer.
And today's, I'm going to go with the one from Adam Molaskey, because that's what we've most been talking about:
How many justices will there be on the Supreme Court in 2022? Anybody?
Bill Kristol [00:46:23] Probably nine.
Al Franken [00:46:24] Either eleven or nine
Harry Litman [00:46:28] Four words, yeah. Dahlia?
Dahlia Lithwick [00:46:29] Nine or twenty seven.
Harry Litman [00:46:30] Exactly. I'm going with nine.
All right. That's all we've got time for. Thank you very much to Senator Franken, Bill, and Dahlia. And thank you very much, listeners, for tuning into Talking Feds. If you like what you've heard, please tell a friend to subscribe to us on Apple Podcasts or wherever they get their podcasts, and please take a moment to rate and review this podcast. You can follow us on Twitter @TalkingFedsPod to find out about future episodes and other Feds-related content. You can check us out on the web, talkingfeds.com , where we have full episode transcripts. And you can look to see our latest offerings on Patreon, where we post discussions about special topics exclusively for supporters. And these aren't outtakes or ad-free episodes, though we do have them there, but really original one-on-one discussions with national experts.
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Submit your questions to questions@talkingfeds.com , whether it's for Five Words or Fewer or general questions about the inner workings of the legal system for our Sidebar segments. Thanks for tuning in, and don't worry: as long as you need answers, the Feds will keep talking. Talking Feds is produced by Jennifer Bassett and Rebecca Lowe Patton. Our editor is Justin. Right. David Lieberman and Rosie Don Griffin are our contributing writers. Production Assistance by Matt McArdle. Our consulting producer is Andrea Carla Michaels. Thanks very much to director Gavin Hood for explaining the RICO law to us. Our gratitude, as always, goes to the amazing Philip Glass, who graciously lets us use his music. Talking Feds is a production of Dalito, LLC. I'm Harry Litman, see you next time.
