Harry Litman [00:00:07] 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. How long has it been since this country was sane? Since our politics were anywhere in the realm of normal? Since it didn't seem as if the democracy and government institutions were under existential threat? We come, exhausted and nervous, to some sort of finish line, anxiously awaiting our fate. Are we to awaken from the fever dream of the last four years? Or are we to try to come to grips with the reelection of the most corrupt and least public-spirited man ever to occupy the White House?
President Trump and former Vice President Joe Biden made their closing arguments to the country this week. Trump told his followers that the country was rounding the corner on the virus and that the election was a choice between a Trump boom and a Biden lockdown. Biden kept to a more limited schedule, he promised to heal divisions, he invoked the memory of FDR, and he called the election a battle for the soul of the nation. Two hefty numbers bracket the election homestretch: First, more than 80 million people already have voted, that compared with the 47 million votes that came before Election Day in 2016. And second, last week the country had a record high of over 500,000 new virus cases. That's as many in a week as the country logged in the first three months of the virus. Yesterday alone, we logged a new daily high of ninety thousand new cases.
Meanwhile, Amy Coney Barrett is now a Supreme Court justice, her confirmation was rushed through barely five weeks after the death of Ruth Bader Ginsburg in the first completely partisan vote in the Senate in 150 years. Majority Leader Mitch McConnell waxed triumphant about the cementing of a hard right conservative majority for possibly decades, crowing, 'they won't be able to do much about this for a long time to come.' And as Barrett moved into Ginsburg's old chambers, her four hardcore new colleagues took action in election related litigation that suggested they were all too ready to insert themselves into the election on Trump's behalf. All of which makes the view ahead even murkier and more foreboding. Fortunately, we have today a phenomenal group of powerhouse officials and former Feds, bona fide Feds all, former federal prosecutors all, to help break things down. We feel generally very lucky with the great guests we have on this podcast week in and week out, but today, I got to say our cup runneth over.
We're very pleased to welcome first: Kristen Clarke. Kristen is the president and executive director of the National Lawyers Committee for Civil Rights under Law. She formerly served as the head of the Civil Rights Bureau for the New York State Attorney General. She worked in the NAACP Legal Defense and Educational Fund and she was a prosecutor in the DOJ Civil Rights Division. Welcome, Kristin.
Kristen Clarke [00:03:31] Thank you.
Harry Litman [00:03:32] Next, Congress member Adam Schiff in his tenth term as members serving the Twenty Eighth District of California. He is the chair of the Permanent Select Committee on Intelligence and was one of five Democrats on the House Select Committee on Benghazi and the lead manager in the presentation to the Senate of the impeachment case against President Trump. Previously, he was the youngest member of the California state Senate, and before then, a storied assistant United States attorney in Los Angeles. Thank you very much, Congressman Schiff, for returning to Talking Feds.
Adam Schiff [00:04:06] Thank you, Harry.
Harry Litman [00:04:06] And finally, for the first time on Talking Feds Senator Sheldon Whitehouse. Senator Whitehouse is the junior United States senator from Rhode Island since 2007. He served as the United States attorney in the district of Rhode Island from 1993 to 1998 and as the seventy first attorney general of Rhode Island from 1999 to 2003 before being elected to the Senate, where he serves on the Finance Committee, Judiciary Committee, as we all saw in the recent nomination, the Environment and Public Works Committee and the Budget Committee. Senator Whitehouse, thank you so much for being here.
Sheldon Whitehouse [00:04:44] And I'm also on the Adam Schiff Fan Club Committee.
Harry Litman [00:04:46] Well, that's that's a very big committee now. I want, I thought there were gonna be buttons for that. What happened to the buttons?
Adam Schiff [00:04:53] Well, Sheldon just doubled our membership right there.
Harry Litman [00:04:57] All right. Let's start with the closing arguments from the president and Vice President Biden and maybe, maybe beginning with President Trump. You know, the very last debate suggested a return to some kind of discipline, but that was short lived. He's now on the campaign trail and his scattershot sort of vicious form, talking about the socialist hellhole that Biden would bring and purposely mispronouncing Kamala Harris's name. It certainly doesn't seem a sound strategy for recapturing suburban women. Can he not help it? Is he just a glutton for the base's praise so much that he has to go into this mode? Is there any method to the madness there?
Sheldon Whitehouse [00:05:41] I would say that it's he thinks it's all about him. He got there by breaking every convention and every expectation and everything that he was told he should and should not do. And now he's frightened and he's anxious and he's going back to his core, which is the narcissistic, angry, bullying, suspicious lying self that is his core persona. He's kind of retreated to the core of himself. And it's not pretty.
Harry Litman [00:06:05] Yeah, and it is very interesting. I think he has made a few comments that suggest he knows he's losing. Something he normally with his braggadocio, doesn't let himself do.
Sheldon Whitehouse [00:06:14] Yeah, I don't think he means I meant that comment does a psychological observation. I'm not saying that that's politically astute.
Adam Schiff [00:06:21] You know, I would have to agree. I think that he's never made an effort to reach out beyond his base. When he ran four years ago, people told him that his strategy was a losing strategy. He proved them wrong, and there's nothing worse than proving a megalomaniac right. And ever since, I think he's just kept to that same strategy of appealing to his base. He can't help but express the enormous sense of aggrievement that he has. He's the world's biggest victim, everyone is so unfair to him, and that kind of grievance runs through, has run through his presidency, it's not surprising it runs through his closing argument. But, Harry, you left out the most important appeal that he made in that very cherished space of the last few days, is appeal to the country that they should vote for him, because apparently I have a watermelon shaped head. That has been a constant refrain of his as every rally, which for those that are against watermelon heads, it's a pretty powerful appeal.
Harry Litman [00:07:17] He has locked up the anti-watermelon vote I think with that, right? That's another five votes right there. But of course, they're all in California, so it doesn't matter. Kristen, your thoughts? Is there a strategy there or he's just in some kind of limbic mode, you know, going out as he came in, sort of fulminating?
Kristen Clarke [00:07:35] I'm thinking very deeply right now about the Supreme Court. My role here has been fighting voter suppression tooth and nail to make sure we've got a level playing field so every voter can have their voice heard. And our organization fights tooth and nail against so many of the voter suppression efforts that we've been up against. It has been deeply frustrating to arrive at a point where we see the Supreme Court, some members of the court, clearly trying to position themselves as players that will decide the outcome of this election, should there be any election related disputes that land at the court's doorstep. So, this makes clear that we are on the brink of democratic crisis if the Supreme Court next week goes sideways and does anything to silence the will of the people and to distort the outcome of this election, to me, that really is a clear signal that we are, we are not on the brink of crisis...
Harry Litman [00:08:34] We've lost, we've gone over the cliff, yeah. And we are going to talk about that at greater length. It was a hell of a week for those kinds of signs. I do want to stay with just the kind of closing arguments that each has made. And back to Trump, I think he'd been hoping for, counting for some kind of maybe October surprise, and truth be told, besides his own kind of unappealing persona, he's had kind of a bad month news-wise. I mean, he seemed like the luckiest candidate on Earth when he first ran, including just garnering all this kind of attention. But the campaign strands the people in Nebraska, they fold up shop with the Durham investigation of the Hunter Biden laptop or whatever it is, kind of vaporizes. I mean he's, he's going down to the finish line with not much breaking in his favor. Is that your sense, Congressman and Senator?
Adam Schiff [00:09:34] Yeah, I you know, I think that he believes that as the president of the United States, the Justice Department exists to do his will, to protect people who lie on his behalf, and even more pernicious to be used as a sword to go after his enemies list. And he's deeply frustrated that even Bill Barr, as craven as he is, has a certain limit, or if he doesn't have a limit, he can't get John Durham to go beyond Durham's limit. Or maybe if Durham was inclined to, he had a senior prosecutor resign from his team and that may have deterred him. And you can see the president fulminating about why isn't the Department of Justice like it's his private law firm, of course he's treated it that way, why isn't it intervening to help him out in this election? You do see, in the intelligence world, that where Trump couldn't get Barr to do something or couldn't get Durham to do something, they've now turned to a lower common denominator in John Ratcliffe to do it. And so Ratcliffe has been selectively declassifying information on the eve of the presidential or vice presidential debates in order to help the boss.
Harry Litman [00:10:38] Including information that's been discredited by the intelligence community, right.
Adam Schiff [00:10:42] Not only discredited, but that poses a real risk to our sources and methods. And I mean, by the director's own admission, part of what he declassified was either exaggerated or could be completely false. But yet it came from very sensitive sources and methods, he acknowledged. So why would you risk compromising those sources and methods? Well, you would do it if you believe you exist to do the president's political dirty work. And so there is, I think, a frustration that more are not willing to do what some, like Ratcliffe, have been willing to do. But, you know, it's, it's, again, very anti-democratic, autocratic kind of inclination, and now, speaking of the Supreme Court, the tweet today that, you know, sorta was an echo of his complaint about Barr: 'Barr can go down as this great attorney general if only he'll...'
Harry Litman [00:11:31] He could have been somebody if only, right. Barr has been very quiet this last month, hasn't he?
Adam Schiff [00:11:36] He has. But you know, that tweet today, the analogous tweet pointed at the Supreme Court, which is basically, if you don't decide this election in my favor, then you'll get what you deserve. It just takes your breath away.
Harry Litman [00:11:48] All right. Let's talk briefly about Biden and then we can, I want to move both to the court and to the prospects of post-election bedlam. You know, Biden, it strikes me as had a kind of a straddle of sorts where he is wanted, on the one hand, to be rhetorically above the fray, a healer invoking FDR, but he has to really be prosecuting Trump, especially for the virus. And he is talking about the dark winter that's coming and the like. Do you think he sort of straddled that balance adroitly?
Sheldon Whitehouse [00:12:28] I think he has. I think largely based on Trump's personal behavior, I think there's a really strong current running in this country in favor of decency, and people who are normal and not abusive again, and I think Biden has sailed into that current very effectively and kept himself in it in a way that he hasn't had to really point to it. But positioned himself, I think really really well, and I love the new advertisement that shows a voting ballot circle that you're supposed to fill in. And it's talking. It's like a mouth that is moving and it's got Trump saying his usual ridiculous stuff.
And as the pen fills it in, the voice gets quieter and quieter and quieter until it's silenced. And I think there's that kind of deep feeling underneath all the issues, underneath all the organizing that we want to get back to decency and normalness, and that Biden is going to be the embodiment of that reliable, kindly, avuncular, good guy that everybody knows and can trust.
Adam Schiff [00:13:33] I just completely agree. I think that Biden has had to make the case, which is a, it should be a self evident one, but these days nothing is self evident anymore, that you can't divorce the economy from the pandemic, that we won't fully recover until we recover from the pandemic, and that the president has been utterly negligent, has committed the worst kind of malfeasance and malpractice when it's come to the health of the American people. And that as a result, we've lost 225,000 of our fellow citizens. And we need to attack that problem in order to bring our economy back. And I think that connection between the pandemic and economy is one that he needed to keep making, and we still need to keep making so that, you know, we don't allow the president to draw some false separation between the two when they're intertwined. But more than that, as Sheldon was saying, there is a real pent up hunger for a return to basic decency. You know, Americans want to feel good about themselves, they're exhausted by all the bitterness and division, all the hate that comes out of the Oval Office and his talking heads on FOX. So I think that both of those things are really powerful, the need to have a smart, science- based strategy to the pandemic, the need to bring back our economy and help families that are suffering. But at the same time, an overarching need to bring back basic decency.
Harry Litman [00:14:55] It struck me in the third debate that he's basically, he has turned that corner. He stopped trying to prove that he was decent and he just basically went. Guys, here's me. You've known me forever. Here's Trump, nuff said. One final question here is, you know, once burned, twice shy. But you have mentioned things that are strong for Biden and, and challenges for Trump. How do you see this as different from 2016, when there was a sense going in that Hillary Clinton was likely going to be the next president and everyone had, everyone who supported it or had that really bitter surprise? It does feel different, does it not? Or how do you see this is different from the final days of 2016?
Sheldon Whitehouse [00:15:41] I'm just holding my breath and hoping that it is different.
Adam Schiff [00:15:44] What I perceive as different is I remember in 2016, looking at the trend lines. You had Clinton consistently polling above Trump, but as we got closer to the election, about two months out, you started to see the Clinton line going down and the Trump line going up. And I remember thinking to myself, well, I hope to hell we had the election before those two lines cross and the election was right around when those two lines crossed. The trend this, in this election has been stubbornly the same for really nine months. And when you look at the last nine weeks, it really hasn't budged, and that has been a consistent advantage for Joe Biden. Now in the states where it really matters, the battleground states, that trend has been the same, but it's been, been a very narrow margin of a benefit for Joe Biden. So it's certainly more than possible that Trump could pull it out. I don't want to suggest otherwise, but I would so much rather be where we are than where they are. And I say that, you know, with the vivid sensation of having had my hand on the stove four years ago, but I am finally allowing myself to feel pretty optimistic about Tuesday.
Harry Litman [00:16:49] He is expanding the playing field. He's in Texas, Georgia, et cetera.
Adam Schiff [00:16:53] Yeah. The one thing I do want to add, just to underscore what Kristen was saying earlier, which is one big variable here, is whether the courts will be successfully utilized to disenfranchize hundreds of thousands of people in key states. I mean, the idea that you would have ballots in Pennsylvania, for example, where you can easily ascertain the voter's intent, because they filled out the circle, they want to vote for Joe Biden, but because they didn't put it in a sleeve, we're going to say no, we're not going to count that. And innumerable other variations of that, where people through no fault of their own, they mail their ballot on time, but the Postal Service doesn't deliver on time and those matters get litigated. There is, in a close election, there is certainly the prospect that that could be determinative in the most strikingly anti-democratic fashion, and that, I have the same terror about that that Kristen does, because that would be absolutely devastating to our democracy.
Kristen Clarke [00:17:46] I just want to add one other layer to this part of the conversation that the obvious thing that is very different about this moment vis a vis 2016, is that we're a nation divided and intensely racially polarized. And this election is one being conducted under circumstances where we have unchecked white supremacy, and we're seeing it with a lot of the militia activity. And this is racial violence fueled by rhetoric that we've seen at the highest levels of our government, but what I think it's had is actually the opposite effect intended. I think that we're seeing, in many parts of our country, black voters and voters of color who are highly motivated to go out and participate and have their voice heard despite efforts to silence and disenfranchize them and suppress them. And despite the racially polarized moment that we're in.
Adam Schiff [00:18:38] You can tell the optimists from the pessimists when you look at those massive lines of people voting.
Harry Litman [00:18:44] God bless them. It's scandalous.
Adam Schiff [00:18:46] It is absolutely scandalous that they should have to wait that long, that in some places there's only one place to vote and they've closed down polling places in predominantly minority neighborhoods. It's scandalous, and yet, on the optimistic side, people are persevering. They are determined not to be disenfranchized, and in that, you know, you can see a lot of room for hope.
Sheldon Whitehouse [00:19:09] And yet they persisted, as Senator Warren would say.
Harry Litman [00:19:13] And yet they persisted. I think there's a big appetite here to talk about the possible scenarios, the nightmarish and otherwise post-election. I did want to just stop briefly on, you know, this week we got a new justice of the Supreme Court in record time. She was taken office barely five weeks after her predecessor, Ruth Ginsburg, died. It was a very weird confirmation because it was the most polarized, in a sense, in 150 years. It was the first time that a candidate got not even a single vote from the other side, and yet it was sort of drained of drama because the partisanship was so baked in from the start, you knew it was going to happen. As you see it now, let me direct this to the senator, in fact. There was nothing to do on the one hand, but did the Dems do enough, or what they should have, or would you have changed the game plan at all with the hand you were dealt?
Sheldon Whitehouse [00:20:16] I think once you had this nominee, the outcome was foreordained and there was very little to do on the Senate floor that would change that, given that this is the top priority for the big donors of the Republican Party. So everybody feels like a school of fish in the same direction as the big donors point on the Republican side, they do it virtually instantly, if they have to reverse the position that they took in the last nomination, they reverse it. If they have to reverse the position that they took three days earlier, they reverse it. You can watch them behave in this very peculiar way and you know what's going on. What I fault us for is not having paid attention to this years ago. The Republican big donor elite has played a long game to pack the court, and we have slept through that. We didn't notice.
Nobody talked about cases like Epic Systems, which were really significant in terms of going after some of the structural stuff that gives corporations advantage. We've done nothing to expose the dark money that funds the campaigns for these judges, that funds the Federalist Society when it's selecting these judges. We were asleep at the wheel for a long time with all of that, and we let them get to now 80 partisan decisions at the court, five to four partisan decisions in which there was a big Republican donor interest involved and they ran up a score of 80 to zero. I mean, how many times do you have to not see that pattern? So it's been very, very frustrating for several of us who have been worried about this for a long time. But if there is one good thing that has come out of this, I think that the violence of the procedural nonsense that the Republicans pulled to shove Judge Barrett onto the court on top of Kavanaugh, on top of Gorsuch, that trifecta, I think, has left a lasting impression on America, and it certainly left a lasting impression on our party. And now we have to be as deliberate about exposing the dark money, about going after these patterns, about shaming the court based on its misbehavior, just as aggressively as they went to capture and control the court.
Harry Litman [00:22:21] But what about that? It does feel right now as if this was a kind of different, or sort of cumulative kick in the teeth that really has the party thinking very seriously about kind of extreme countermoves.
Sheldon Whitehouse [00:22:38] There's no doubt about it. There's no doubt about it. I can't speak for the House, but the Senate Judiciary Committee is absolutely going to be looking at this problem, going to be investigating the dark money, going to be considering a whole array of reforms at the Supreme Court, and I think that's really a highest priority right now. It really matters a lot in a republic if the highest court in the land is a real court or if it's a pantomimed court where judges go through the motions of adjudication, but at the end of the day, it's foreordained how they're going to rule because the same big donors who are in front of them are the people who put them on the court. Connecting those dots for the American public and making sure we have a real court and not a pantomimed court is a really high priority.
Kristen Clarke [00:23:20] And let me just say, this is not a partisan issue, right? This is an issue that just matters for democracy generally. I think about, from a civil rights standpoint, all of the devastation and damage that we've lived through over the past three and a half, four years. And this feels like the real kick in the gut. Irreversible, right? Lifetime appointment, and just, the federal courts have just been decimated. Since the pandemic, my organization has litigated about three dozen voting rights cases to safeguard access to the ballot. We have won righteously at the district court level in many of these cases because it's just clear, voters have faced unconstitutional and unlawful barriers to the ballot this season. And many of those wins have been systematically overturned at the circuit court level where this administration has really dug in. And as Senator McConnell has committed, he's left no seat vacant.
Harry Litman [00:24:16] Literally, literally.
Kristen Clarke [00:24:18] And these judges have all proven to be extremist and outside the legal mainstream and hostile to voting rights and hostile to civil rights. So I am I am heartened to hear, Senator, that this is an issue that is top of mind. But I just want to underscore it's not a partisan issue. It's an issue that matters for our democracy, it matters for vulnerable communities, it matters for those who care about just the rule of law.
Sheldon Whitehouse [00:24:45] Let me just echo one thing that Kristen just said, which is that this is not partisan. It looks very partisan because it was all Republicans and all Democrats disagreeing. But the agency here, the moving force was not so much the Republican Party as it was this big donor, dark money elite that funds the Republican Party and that funds the selection of these judges and that funds the campaigns for them, and that funds these phony groups that show up as amici curiae, friends of the court, to tell the judges they put on the court what the big donors want. That whole scheme is about as undemocratic, small d, as you could possibly have it. And the Republican Party was just a tool in that scheme, looking behind the Republican Party, who really pulled this off, there's going to be, I think, the heart of the investigation that needs to take place.
Harry Litman [00:25:33] I do want to say your ten or fifteen minutes you chose to take rather than a questioner, your 10 or 15 minute presentation was a real tour de force in this regard. I kind of want to thread the needle between the two of you and just say that whether or not you do the whole dark money, Koch Brothers kind of analysis, there's just a problem with having, you can posit that they're all people of integrity and people who one might consider for high appointments to the court, except if there were a hundred such people in the room, every one of these five is from the ninety five to one hundred extreme. And you really do now have lockstep majority that can do whatever they want without rhyme or reason. And it, and it's bad for the court.
Sheldon Whitehouse [00:26:20] Terrible for the court.
Adam Schiff [00:26:22] There's one person who was not asleep at the wheel while all this was happening over the years, and that's Sheldon Whitehouse. You have been writing about this and speaking about this and prophesying about this, and it has all sadly come to pass. And I want to just underscore, Harry, what you said. If anyone hasn't watched Sheldon Whitehouse's opening statement during that hearing, it is must see TV. It just brilliantly lays out the case in a very comprehensive way...
Harry Litman [00:26:50] With great graphics for a trial lawyer, the graphics were awesome, yeah.
Adam Schiff [00:26:54] And you know, I'll also say that what Mitch McConnell has done has me considering things that I would never consider before. When Mitch McConnell refused to hold confirmation hearings on Merrick Garland, that really was a canary in the coal mine, or it should have been, in the sense that this was the first indication pre-Trump that for Mitch McConnell and others, the institutions don't matter anymore. There are no institutionalists left. All that matters is power and the preservation of power. And that he was willing to so betray a coequal branch of government and his own institution was a canary in the coal mine. Now, when you couple it with the, the grab you by the neck and choke you hypocrisy of jamming through this confirmation now, it means what they have done with this power play is they have withheld one justice and added another with a net 2 justice shift on the court. And the question to me is not about packing the court, the court has been stacked. Question now is, should the court be unstacked?
Sheldon Whitehouse [00:27:57] Let's not forget Kavanaugh in the middle. That was as peculiar as the Garland to Gorsuch switch or the Barrett, you know, 180 on election year confirmations.
Harry Litman [00:28:08] I just want to have one follow up to what the Congressman had to say, which is it's ironic. McConnell, you would know better, Senator, but I think he damn near broke the Senate. But he's actually, besides crowing about the achievement, he's comparing himself, I don't know if you saw this, to LBJ now as the greatest majority leader, when in fact, it seems to me, in terms of the institution of the Senate, he's sort of the anti-majority leader of the Senate. He's the one who's, who's suppressed the normal protocol of what the Senate's always been.
Sheldon Whitehouse [00:28:43] When you've got a multi hundred million dollar operation telling you what to do, it's easy to take a victory lap and say that you're the genius, but I think he's the tool of these guys, and he's told exactly what to do by them. And they're kind of a walking think tank and strategy shop for him to deliver what they want in the courts and in return, they pour unlimited money behind his candidates to keep him as majority leader. That doesn't take any skill at all, that's just a question of who you're willing to stooge for.
Kristen Clarke [00:29:12] Let me just jump in here for a moment to talk about the advice and consent role of the Senate, because I sat through virtually every day of the Kavanaugh hearings, virtually every day of the Gorsuch hearing, and, you know, those words mean something, right? I think about the start of the Kavanaugh hearings where they said, you know, executive privilege, we're not going to disclose his White House records, the kind of sham FBI process. It's lowered the floor substantially, right? That it made it virtually of virtual certainty that the Senate would just rubber stamp Amy Coney Barrett's nomination without doing any comprehensive, thorough examination of her record and who she really is and whether or not she's somebody really worthy of a lifetime seat on the court, and that that worries me. But Senator Whitehouse, if I can just throw a hypothetical out to you, if we could turn the clock back. President Obama puts forth Merrick Garland as the nominee, and senators refused so much as to meet with him, advice and consent can't mean doing nothing. If we turn the clock back, I wonder if the president should have just gone ahead and sworn Merrick Garland in, because the Senate had abdicated fully its responsibility to provide advice and consent by doing nothing, by doing absolutely nothing.
Sheldon Whitehouse [00:30:34] Yeah. Give them notice, have the vote. They don't have the vote on a certain day, you just proceed. Say, you opted out, but that doesn't mean I lose my authority because you don't use your powers. There were a lot of ways that the powers of the presidency, I think, could have been brought to bear more effectively in that circumstance. But I think they were caught very flat footed, thinking that they'd gone halfway to the wards, the Republicans with Merrick Garland instead of with a progressive person. So not our finest hour, let's put it that way. But in addition, Kristen, to your point about the damage done to the Senate, it has also done immense damage to the court, and to have these three justices who are so eager to get on the court themselves, so ambitious to climb up onto that court that they're willing to climb that greasy Federalist Society pole. They're willing to audition to those big donors, they're willing to let Leonard Leo and Carrie Severino be their escorts onto the Supreme Court at whatever price to the damage of the institution they climb on to. This is a case study in putting your ambition before your principles and before your love for the institution that you're climbing into. This is really bad. We should not underestimate what they have done here and the amount of damage they did to do it and who they did it for and how little we know about it.
Harry Litman [00:31:47] All right. And one, one very big question now will be what immediate damage could they wreak? So, and do want to turn to that with, first we take a moment for our Sidebar function here, where we explain some of the issues that are foundational to events that are typically in the news.
We're very pleased to welcome Amy Aquino, who will discuss whether new Justice Amy Coney Barrett must and will recuse from issues that come before the Supreme Court involving President Trump. Amy is a television, film, and stage actress, has appeared in television series such as Brooklyn Bridge, E.R. and Being Human, and was nominated for a Screen Actors Guild Award for her role in Picket Fences. She's also the current chair of Arts for L.A., which for a decade has been the leading voice for arts and equity in Los Angeles, but it's particularly fitting that she read our Sidebar today because she's very well-known for having been a judge in Judging Amy, where she played Judge Gretta Anastassio. So Amy Aquino on Justice Amy Coney Barrett.
Would Justice Barrett have to recuse herself from a 2020 election related case? Justice Amy Coney Barrett's hyper-fast track confirmation will, by design, result in her sitting on the high court before the presidential election. President Trump pushed her nomination forward quickly so that, among other reasons, the court would have a full bench, nine justices, to resolve any election related case. That poses the worrisome prospect that such a case, even one that could determine who wins the presidency, will arrive at the court just after she's joined. Would Barrett need to recuse herself if that happened? The federal statute governing when federal judges should recuse mandates recusal for a clear conflict of interest. For example, when a judge has a financial holding that the case before her could affect. But the governing standard here is more amorphous: Barrett would need to recuse if her impartiality 'might reasonably be questioned.' And Barrett herself gets to apply the standard. That's because for Supreme Court justices who wrongly decide on their own recusal, there is no enforcement save impeachment and removal.
When Barrett was asked about recusal in a case that could decide the election, she didn't commit. She instead pledged to study the law and decide according to the normal judicial process. If it comes to it, Barrett will find herself confronting the Supreme Court's 2009 decision in Caperton v. A.T. Massey Coal Company. In that case, a coal company CEO made huge contributions to a candidate for West Virginia's highest court, knowing that the court would hear his company's appeal from an adverse jury verdict. The candidate won, and after refusing to recuse, voted to reverse the verdict against the coal company. The Supreme Court overrode that judge's subjective assessment that he would not be biased, and determined the judge should have recused because it was an intolerably high risk of actual bias.
Look for Barrett to also factor in, even though the law doesn't expressly demand it, the consequences of her recusing, which would present the possibility of a four-four tie on the court. If Barrett concludes that her impartiality 'could not reasonably be questioned,' that would be the end of the matter. If she does recuse, and the court is locked in a four-four tie, the decision below would stand, but it would lack the conclusive institutional effect of a full resolution by the Supreme Court. Most observers predict that Barrett will not recuse, which means the court will be at full strength to decide any election issue before it. It also means that Barrett would begin her tenure in a cauldron of controversy. For Talking Feds, I'm Amy Aquino.
Harry Litman [00:35:45] Thank you very much, Amy Aquino. Amy currently stars in the Amazon Studios television series Bosch, where she plays Lieutenant Grace Billets.
All right, so, the big source of anxiety, consternation, uncertainty, etc., what the hell happens in the aftermath of an election where it's a certainty that the president will be trying to charge fraud and try to keep votes from being counted? We've now, in the olden days, I was a GC for Pennsylvania on a presidential campaign and it feels like, you know, that was out of quaint 19th century days. Vote first and get ready to litigate is this entrenched model and we've already had, I think, over 300 cases in 44 states on every aspect. So let's focus now on your concerns, I guess, especially about the the court. Kristen, you mentioned some unease based on what the court's done just in the last week before Barrett joined its ranks, what do you have in mind?
Kristen Clarke [00:39:05] Well, Justice Kavanaugh has come up with a new rule that election results need to be locked and signed and sealed and delivered on election night. That never happens. There are 22 states in our country that allow absentee ballots to be counted if postmarked on Election Day, and for some reason, people seem to be squarely focused on this issue in Wisconsin and Pennsylvania and North Carolina and so-called battleground states, but virtually half the country has rules in place that allow ballots to come in if postmarked by Election Day. You've got military voters, their ballots are often allowed to come in up to about, you know, a week, week and a half after Election Day. But there's a lot that happens before results get certified, so Justice Kavanaugh's view, I think, is deeply troubling and seems to echo the rhetoric that we've heard from President Trump, this notion that we need to stop counting the ballots and and should be deeply skeptical about any ballots that come in after Election Day. So I'm, I'm very concerned about this. I'm very concerned about Justice Alito's concurrence in, I believe the...
Harry Litman [00:40:18] The Pennsylvania case, yeah.
Kristen Clarke [00:40:19] Yeah. And, and now we see some counties starting to move to, to segregate ballots. They're putting in plans to put certain ballots that come in by Election Day in one pile and other ballots in a separate pile. You see the writing on the wall here, and we are prepared to go into court to fight back against any effort to disenfranchise voters, but it's just deeply troubling to see the Supreme Court trying to literally disenfranchised the will of the people here, certain justices on that court put in place by President Trump. And Amy Coney Barret, I would hope, would not want the start of her legacy on the Supreme Court to be, you know, one in which she literally was that fifth vote, that fifth vote that tipped the scales in an election in the way that President Trump intends. So I do hope that she will recuse herself from any case that may come before the court that concerns the 2020 election.
Harry Litman [00:41:20] I think that there'll be all these claims of fraud, but there won't be evidence of it. Is Trump hoping to actually persuade courts of his vaporous view, or is it just to have general unrest, chaos, etc. and hope he can make something of it?
Sheldon Whitehouse [00:41:38] I think it's two things. First, we have to hope that we win by enough margins, that this issue just goes away in the sweep of the election. But it allows him the chance to take a narrow loss and turn it into a victory, and a narrow loss for him as a... And it also allows him the opportunity to campaign for the rest of his life on how the election was stolen from him and run that narrative for years.
Adam Schiff [00:42:05] Harry, I think in support a point out, though, that the chances for the Supreme Court to actually decide this election are very remote and they should be very remote. Ultimately, it's the Congress. If there's a conflict over what electors should be seated, it's the Congress of the United States that the Constitution gives the power to resolve that, and that is nonjusticiable. So should the Congress be in the hands of both House and Senate in Democratic hands, ultimately the Congress will make that decision. It's only, I think, in very unlikely contingencies where you have a divided Congress, where there become questions about whether a conflict between gubernatorially appointed electors and legislatively appointed electors, or there is no majority of electors that you would even have a role potentially for the court. But I think we want to make it abundantly clear, this election is not to be decided by the court, it is to be decided by the people. We want to make sure that every vote is counted, we're going to persevere to make sure every vote is counted. But if there is a dispute, ultimately, the Constitution gives the Congress the power to resolve the dispute.
Harry Litman [00:43:10] Although query 2000, but I agree. We do think about the nightmare of Bush v. Gore, but the concatenation of improbabilities there that actually even gave it, legitimately or not, to them to issue would be very hard to sort of replicate here. I think the likelihood of something like that in a Senate race, perhaps. But a lot of things have to happen on the ground that I think are unlikely. Are you worried, Michigan rules yesterday that you get to carry concealed weapons and the like, are you worried about actual civil unrest here over the these next few weeks?
Kristen Clarke [00:43:48] You know, the good thing is none of these polling sites are empty when people are showing up, right? I mean, you go out and you will be joined by hundreds of resilient voters who are determined to make sure their voice is heard. We're getting some of these complaints about militia activity, but gosh, how shameless do you have to be, right? I get it, Second Amendment right to bear arms, but why choose the school house yard or a playground or a polling site to demonstrate the might of your Second Amendment right to bear arms? It's just, it's shameful. It's it's obvious. It's a naked, brazen attempt to try to silence voters who, frankly, are more determined than ever to make sure that nothing, nothing holds them back or bars them from having their voice heard. So we've tried not to overplay this issue, we've gotten some spotty reports here and there, but I think in these last few days, we're just going to continue to see surges of people turning out who will, frankly, overwhelm the handful of heartless and cruel militia groups who choose to use the polling site to make a statement in this election.
Harry Litman [00:45:05] That's just one of a parade of horribles, and obviously the next few weeks it could go in so many different directions. I think we'll leave it here for now, and hope maybe to check back in when the, when we really see what's happening on the ground. We've just a few minutes left for our Five Words or Fewer feature where a listener poses a question and we each have to answer it in Five Words or Fewer. And we have one today from Ben Aiden who asks: if Trump refuses, I think implicitly if Biden wins, but Trump refuses to concede, how and when will we know that the race is over?
Sheldon Whitehouse [00:45:48] When Biden is sworn in and large Secret Service agents carry Trump out of the White House.
Harry Litman [00:45:51] Fifteen words, but your point is made. OK?
Kristen Clarke [00:45:54] When the public protests stop.
Adam Schiff [00:45:58] When the state election returns come in.
Harry Litman [00:46:01] I'll go with: When Fox News calls it.
Thank you very much to Kristen Clarke, Congressmember Adam Schiff and Senator Sheldon Whitehouse. And thank you very much, listeners, for tuning in to 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 simply ad-free episodes, though we do have those there, but really original one-on-one discussions with national experts about burning issues. For example, Mary McCord, head of the Institute for Constitutional Advocacy and Protection, discussing the prospect of domestic terrorism and military militias plaguing us during the election. So there's really a wealth of great stuff there, and you can go look at it to see what we have and then decide if you'd like to subscribe.
Talking Feds is produced by Jennifer Bassett and Rebecca Lowe Patton. Our editor is Justin Wright, 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 Amy Aquino for explaining whether Justice Amy Cloney Barrett would need to recuse from an election case involving President Trump. Our gratitude, as always, 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, and maybe in a different world.
