Harry Litman [00:01:16]: Welcome to Talking Feds, a round table 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. President Trump introduced the country to Amy Coney Barrett this week, inaugurating a sprint to a confirmation hearing just five weeks before the election
Barrett however, has been well known for many years to the president and especially the group of Federalist society stalwarts he looks to for his Supreme court picks. She has all the right stuff to cement in an impermeable hard right majority at the court, along with Trump's other two picks and rock rib conservatives, Clarence Thomas and Sam Alito.
No, it's the apotheosis of a carefully curated decades long project now succeeding beyond all measure to pack the court with representatives of the very far right. Barrett impresses on many levels, and her former students and colleagues shower praise on her, not just for her legal chops, but for her calm and respectful manner.
But for many Democrats her nomination sticks in the throat like a chicken bone, the Republican's slow strangulation of the Merrick Garland nomination, ostensibly to let the people decide with the presidential election coming up, cannot be squared with the current rush to confirmation, and the attempted explanations just come off as the height of hypocrisy.
And then there's also just the cosmic bad luck for progressives, that Republicans have secured 14 of the last 18 nominations while winning the popular vote only once in the last seven elections. The flat fact is that there are no longer rules or norms of bipartisanship in the Senate, and only the law of the jungle remains. Mitch McConnell has broken the Senate, all of this has Democrats spitting mad, but with no real way to stop another razor thin loss, and threatening extreme measures to set the world more right, should they sweep the table in November.
That is, should they sweep the table, and Trump agree to go away. A rock solid postulate of democratic self-governance on which he seems determined to cast doubt. And to dissect the bear nomination and all it portends, we have a fantastic group of some of the sharpest legal and political commentators in the country. They are, first: Dahlia Lithwick. Dahlia is a senior editor at Slate, where she writes Supreme court dispatches and jurisprudence, and where she hosts their fantastic Supreme Court podcast, Amycus. 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, welcome back to Talking Feds.
Dahlia Lithwick [00:04:10]: Thank you for having me back.
Harry Litman [00:04:12]: Joe Lockhart: Joe was press secretary under president Clinton from 1998 to 2000. He previously was press secretary to a number of prominent officials, including Walter Mondale and Michael Dukakis. And through his communications consulting firm, Glover park Group, he worked for Facebook from 2011 to 2012, and, later, the National Football League. Thanks for being here, Joe.
Joe Lockhart [00:04:38]: Glad to be back again, Harry.
Harry Litman [00:04:39]: Finally, Bret Stephens comes to Talking Feds for the first time. Bret is a Pulitzer prize winning journalist, editor, and columnist. .He is a senior contributor to NBC news, and an opinion columnist for the New York Times, and previously worked for the Wall Street Journal as a foreign affairs columnist, where he won his Pulitzer prize for commentary in 2013. Bret, thank you for joining us on Talking Fits
Bret Stephens [00:05:06]: It's an honor to be in overmatched company.
Harry Litman [00:05:09]: It's not a contest, except in the Senate and the country. Let's start with the nomination of Judge Barrett, or let's actually start with her qualifications. We’re told that this time, president Trump met with her for two hours, as opposed to the previous go round when she had conjunctivitis and was wearing sunglasses, and it didn't go that well.
Do we think that's right? Do we think that this was his sort of personal rapport and choice? He said it was going to be a woman, she was so far the class of the field. Was it really his selection, or has he determined to be guided by the Federalist society advisers here for whom I think it's clear. She stood head and shoulders apart from the other candidates.
Bret Stephens [00:05:56]: I know from some of my reporting that Trump did give some serious consideration to Barbara Lagoa for clear electoral reasons. She's from Florida, she's Hispanic. Of course, Trump had said that he would name a woman, so she fit that bill as well.
And there was some real pushback in the conservative community because conservatives have a long memory of nominating people who are ideological ciphers to them, David Souter comes to mind, and then finding themselves disappointed by some of their jurisprudence over the years.
So in Amy Coney Barrett, they knew they had someone who could not have had more clear conservative bonafides, especially her clerkship for Judge Scalia. But the other issue is that in 2017, when she was for her appellate judgeship, Diane Feinstein made what to me was really a bigoted comment about her religious faith. And I think there was some thinking among Trump's political team that Democrats in a hearing might be goaded to go down the same road as before.
And that might play very well for Trump, with wavering Catholic voters in places like Wisconsin. So she appealed to the conservative base, but she also, I think the thought was that she's just the kind of conservative that might drive Democrats foolishly around the bend in ways that hurt the Democrats.
Harry Litman [00:07:23]: She really did, Feinstein did, step in it and make a bad mistake and it kind of made Barrett a bit of a hero in an evangelical's eyes, the dogma lives within you. So she wasn't simply malignized by the Federalist, but also had this other important constituency. But just to follow up, even if, I guess there's another way to put it.
My sense was always, he signaled pretty early that he wanted her, but had he signaled for Lagoa, I just think a steady procession of Federalist society types would have shown up in the office and said, you got to go for Barrett. I mean, they care about this, I would say even more than they care about Trump.
He's played by their playbook for the last two, and really successfully is probably the one, or at least most successful aspect of his presidency. So I think it was likely that this is the way it had to be among those three candidates.
Dahlia Lithwick [00:08:20]: I was just going to sort of make a different variation on the same two points. One is, it's clear that the Federalist society helmed by Leonard Leo, have developed this network of donor groups that we don't know where the money's coming from or where it goes, but we know that it's about a quarter of a billion dollar war chest, and that those groups are really, really angry at having seated two Supreme court justices on Trump's watch and still not gotten the outcomes that they wanted.
For instance in June medical, this last term and title seven, this last term. And so I think there's an immense amount of pressure, how is it possible that you've seated two justices and we're still not with a five, four court getting the outcomes we paid for? So I think that suggests to me that the Federalist society and those donors had a lot to say about this, and that it wasn't entirely up to Trump's whim.
The other thing I'll say, and this just follows on what both you and Bret said, is that I think in some sense, Amy Coney Barrett has laid this amazing, amazing trap because she's written extensively, as an academic matter, about the same kinds of things that justice Scalia wrote about as an academic matter.
He started writing about this in a really provocative article in First Things about what is a Catholic justice to do when they're faith can't be reconciled with constitutional prerogatives and she kind of picked up the baton, wrote elaborately about that. And so it's a complete lose-lose for Democrats.
They feel that of course they have to challenge her on these questions. She's kind of put it into evidence and she's suggested a willingness to enter into this kind of third rail conversation nobody will have. And at the same time, there's no way to question her about it without looking like a bigot. And I think that that must be just completely delicious in terms of this nomination.
Joe Lockhart [00:10:18]: So I would disagree with only one thing there, which is I do think there is a way to question this without being a bigot. And I'd say Charles Grassley, who opened her circuit court hearing with a very respectful question about her religious beliefs.
I agree with the panel that Diane Feinstein did not, but think Democrats need to be careful in how they do that, but there is a way to do it. And remember, there's two levels to this: there is the level inside the Senate and inside Washington of whether she'll be confirmed or not. And that's basically decided. The second and much more interesting level cause it hasn't been decided is, what impact is this gonna have on the presidential race and the Senate races? So I think that's what will motivate Democrats in the way they question her and the issues they questioned her on. My guess is that a lot of Democrats will spend more time on the affordable care act than they will on her religious beliefs.
But I do think they will do it, but they will do it in a very careful way that will remind voters, particularly suburban women, that Roe v. Wade is going to be dead if this happens and I'm going to blame Donald Trump, Mitch McConnell, and the Republican senators who are up in vulnerable for that outcome.
Harry Litman [00:11:32]: It is a little bit unfair, the trap the Democrats are in. Cause it's in fact in no way really is it to question her basic Catholicism or her faith, but she's got some pretty marginal either beliefs or practices, right? Should the people of praise, a group she belongs to seem to believe in divine prophecy, seem to have a view that the husband must be the leader in the marriage and the life.
That's fair game in one sense, but maybe after Feinstein it's just a political loser, if what you are thinking of is down the line. I want to turn to her qualifications and competence. You have a lot of people, Noah Feldman, a well known professor at Harvard law school has been out on the hustings saying she deserves to be on the Supreme court.
I disagree with her, but she's brilliant. And she is in his words, a sincere loving person. And by the way, for what it's worth, the people I've talked to on all sides of the aisle agree with both aspects of that. So let's take that as a given, assuming that is a given, does that, in 2020 with the court as it is, state a sufficient case for her confirmation? Let's say she is qualified, and not even so much politically, but just really in the abstract. Should that suffice for her elevation?
Bret Stephens [00:12:56]: Yes, it's for the same reason that I thought Elena Kagan was qualified, for the same reason that I thought Steve Briar and RBG were qualified. The question for me isn't whether it suffices for her confirmation, it's whether it suffices for her confirmation before the 20th of January. The root of my objection isn't to Amy Coney Barrett, the root of my objection is to a Senate majority leader who has no scruple, including when it comes to rather ostentatiously breaking a word that he prominently made just four years ago, he's setting up a situation in which never again will we be able to appoint a Supreme Court justice unless the president and the majority leader in the Senate belong to the same party.
Joe Lockhart [00:13:41]: Yeah, I would add that I agree with Bret that those are very qualified people and that, you know, John Roberts was qualified, and people on the right, but I would also mention that Merrick Garland was qualified, just as qualified as Judge Barrett.
And we all know that story. We all know the hypocrisy. I think as a political matter, though, the Democrats have to get past the hypocrisy. We've won that fight, and that fight has and will have an impact on the election. I can't measure it right now, but there's some polling out that shows that particularly suburban women disagree strongly with the idea that he is graming this through Congress.
We can't get any more points on that beyond just stating the obvious. Democrats have to move it on to another playing field, which as I mentioned is the affordable care act, which is Roe v. Wade, which is pro-corp interest, as opposed to pro-working people, all of the environmental versus environmentalist.
All of the issues that Democrats think will help them in the election, because this confirmation hearing and it's I guess unusual that one vice presidential candidate will be sitting, asking questions, I would think, is not about her confirmation. It's about what's going to happen November 3rd.
Dahlia Lithwick [00:14:52]: I would add to Joe because I've been turning this over in the last three, four days. There's a lot of, I think not great advice being directed at Senate Democrats, suggesting they should just sit it out. Just take 10. Don't do it. Don't show up. Don't legitimize a process that you claim to be illegitimate. I will say from having sat through the Neil Gorsuch hearing that Democrats tried to have it both ways there.
They tried to rail against the illegitimate process and also attack him on the merits. And it failed spectacularly. I think you can't do both those things. And so then there is this purely political question that I would spike back to Joe, which is, does it make sense to just say we're not showing up.
We are not, you never left the country meet Merrick Garland. We're not going to let the country meet Amy Coney Barrett and just, we're just going to go go, go, go on healthcare. And we're going to go, go, go on other issues and not talk about her at all. And I think Joe is quite right. That probably as a stunt gives you about a day of salience.
And I think after that, you've seeded the ground. You're going to allow the white house and the GOP utterly control the narrative as they roll out this person who is flawless in every way. And I think that's also lose-lose. So my sense is that the argument that Dems shouldn't show up is shortsighted, but I do think Dems have to show up and do exactly the thing that you're hearing, which is talk about stare decisis.
Judge Barrett, you say you don't believe in it. Justice Scalia said he believed in it. He said that Clarence Thomas, who didn't believe in stare decisis was quote, “a nut.” What does it mean to not believe in stare decisis? What constrains you? Judge Barrett, let's talk about your writing's about abortion. Let's talk about your writings about guns, and just focus on guns, abortion, health care, the issues that voters feel they would like to have something say in in this election and they don't want it decided by Fiat, by someone who was rammed through. I think that's the only way to go. If Joe thinks I'm wrong, I'd love to hear it.
Joe Lockhart [00:17:01]: No, no, I think you're absolutely right. In some sense, a very unusual presidential campaign because of COVID and because of Donald Trump, there's just nothing like this that I've seen in the last 40 years, now added a new element, which is the campaign will be fought by proxy within the Senate judiciary committee.
And I think Democrats on the committee are very aware of that. Republicans on the committee are very aware of that, and all of the speeches the members give will be on an eye towards reaching voters, as opposed to putting her in a corner or trying to show that she's not qualified, where I think what the Democrats want to do and have to do is show that Donald Trump, Mitch McConnell, the Federalist society is very bad for working people, average Americans, particularly for women. And you don't get to decide where a campaign is fought, it's fought where the battle breaks out. And for the last three weeks of the campaign, we're going to be in the middle of this.
Harry Litman [00:18:01]: Yeah. And so I agree with this point, although there's an interesting dynamic people who like Trump and Trump himself put a lot of stock in his seeing a quote unquote winner.
Which he really hasn't been, but I think they need to be fighting and struggling in a passionate way, without looking like they've lost this terrible battle and are losers. That's an overall political point.
Joe Lockhart [00:18:25]: One of the things that I noticed in the Kavanaugh hearing was it was very odd. Since Trump was elected, I probably talk more to Republicans now than I talked to Democrats. The sort of never Trumpers, the people who, you know, just viscerally hate Trump. Yeah. When Kavanaugh came out, we remembered what it was to be different, Republicans and Democrats, all of those people, all of a sudden were arguing with me again.
And that's not a bad thing. It's actually probably a good thing for the country. Democrats, I don't, I think we'll make a mistake if they try to make this specifically about Trump and lose, because they don't want to give Republicans a reason to rally around the president. So I think they are walking a very delicate tightrope on this.
And we could talk a little bit about what the Democrats will do if elected, that's another tightrope, but it is, it's a difficult political situation for both parties. And we're going to find out in real time who's smarter about this.
Harry Litman [00:19:22]: Right. And it might of course depend on the senators asking questions, in some ways, the first questioners, the older ones, are less [unintelligible], et cetera.
And I don't want to talk about both those points, but first I want to double back to the main question, cause I sense that I have a lone dissent to offer when I say that it's appropriate to oppose her confirmation, notwithstanding her excellence in all these respects and look, the people you've named, Steven Briar, Merrick Garland, Elena Kagan, all the way across the board.
Amy Barrett are all competent Supreme court justice nominees, I agree. But imagine that they're all like in a stadium somewhere, you have everybody who's qualified sitting, and we're going to be looking at a court drawn five of them from like one little section on the second tier there. That's a bad turn of events for the court when it's happened in the past, and this is somewhat more dramatic even then say, the FDR days. It's put the court out of step, and the results that it will lead to the things you're talking about on the ACA and Roe v. Wade are bad for the people. And I think the sheer lopsidedness of where this is now taking the court really matters.
Yes, she is qualified, but so are very many. And it's wrong and bad for our institutions and for what may ensue over the next 20, 30, 40 years that have this hammer lock majority drawn from a self-consciously stratum of, you can argue the most extreme 5%, 2%. They are going to issue decision after decision in the next generation that the smartest minds in the legal profession, other judges will all say they are wrong. And that may well deprive people of important liberties. That's just not a good place for the Supreme court to be, thoughts?
Bret Stephens [00:21:26]: Can I offer just a thought, and I think I may be the only non lawyer here, so take it as a comment from a non-expert, but I've been following the Supreme court since I guess the Bork nomination when I was reasonably sentient, and every single time a Republican president has named a justice or a name or nominated a justice, the usual organs of liberal opinion have yelled from the rooftops.
With Anthony Kennedy, Roe V. Wade is dead. What does Anthony Kennedy do? He's the swing vote in casing. With David Souter, the court swings all too far to the right, Souter turned out to be a liberal. John Roberts saved the ACA. Neil Gorsuch was supposed to be as hard right as they come, the ideal Federalist candidate.
And here we are less than three years into Gorsuch's tenure, and he is already offering us unexpected opinions on sex discrimination and other issues. And so the Supreme court apocalypse that has been predicted by center and left of center court watchers, just hasn't quite materialized.
The usual way this breaks down is that the liberal block remains pretty consistently liberal, two or three conservatives remain consistently conservative. And then two Republican appointees ended up being kind of the surprise swing voters or maybe three. And that's the way it's worked out. So I just, I just offer that to our listeners as a bit of a bit of history that the devil has not shown up yet on the Supreme court, just hasn't happened.
Dahlia Lithwick [00:23:03]: So I would just offer two brief counters. One is that I think if you only look at abortion, you can make some version of the argument that Bret just made, which is yet again, this term, surprisingly, John Roberts swung and aligned himself with the liberals to preserve the core of it. But I think if you look at everything else that the Roberts court has achieved, it is just not true to say that it has not moved the country dramatically to the right in a whole bunch of areas.
You can talk about voting rights and Shelby County. You can talk about political gerrymandering. You can talk about workers' rights. You can talk about other women's rights. You can talk about just this vast deregulatory project that I think we have not begun to see the effects of. So I just think if you cabinet to abortion, it's an easier argument to make.
I think abortion stands alone. It's an outlier, but I think in a whole bunch of other contexts, it's just factually, I think descriptively not true that the court has not moved very far to the right. And I think that amazing New York Times piece they did in July where they compared where the court is with polling tells you how out of step the court has been.
But I just would say as a purely empirical matter, I think the great liberal Richard Posner has that great study, that Posner Landis study from a few years ago. Showing that of the 10 most conservative jurists to sit court in the last hundred years, five of them were on the current court. And that was when Anthony Kennedy was still seated.
So I just think even if you look at it purely empirically, the court is very very much further to the right than it has been. Is there a devil on the court? I don't know that that's the question. I think that we have the most conservative court we've had since the New Deal indisputably, and it's about to become more so, and Neil Gorsuch becomes the swing vote.
Bret Stephens [00:24:58]: Well, just, just very briefly Dahlia. And you, you outmatched me in terms of your, your knowledge of the court, I'm happy to concede that. 2015, this is the court that made marriage equality the law of the land, and conservatives certainly don't feel that they are getting the court they either paid for through the Federalist society or voted for when they cast their ballots for Trump, for George H.W. Bush or George W. Bush. I mean, I don't know what the metric is here, but most Republicans feel that the court lets them down just as often as it stands with them.
Joe Lockhart [00:25:32]: One other point, and I think looking backwards, you can make both of those cases and they both make good points. I think you need to look forward here, and there's one big difference, which is most of the presidents, whether they Democrat or Republican, used to go in and their number one thing was, can I get this person confirmed, because I need 60 votes and the big difference now, when you only need 51 votes, or 50 and the vice president is you, you get to now use this as much more of a political cudgel than finding someone who's a consensus candidate.
So the Republicans are in power now, they're not going to get surprised because they have the ability to get anyone through. I mean, I was tweeting earlier this week that Republicans would confirm a goldfish because they all said they were for the person before they even know who the person was. That makes a big difference going forward, and I just think it will test Bret’s theory. I don't know whether we'll be surprised due to the law of unintended consequences, but we do live in a different world now than we have for seven of the justices on the court.
Harry Litman [00:26:38]: Yeah. I just want to add a couple of quick points and then we will move to our Sidebar, but Bret first, I think that's a really important point you raised, people have been saying it forever. For my own part, I have not been saying it forever, and I am now saying in fact: Hey, the sky is falling when you have these five together. So that's one point, but there's a related argument, which is the Dems are always saying, “Oh my God, this guy is the right wing 2%. And the Republicans are always answered.” No, he's a solid or she's a solid center right person, maybe in the 60th percentile. But I do think it's pretty strong evidence that there's been this very conscious process on the right, curated by the Federalist society to really have people who in their law schools, in their professions are proudly very much on the margins.
And that all five now of the people we're talking about, that was their solid professional identity. So it's a strong counterpoint to saying that we don't have the suitors in the same way anymore, because there's been such a kind of minor league system to develop potential justices for so long.
Dahlia Lithwick [00:27:54]: I would just say, there's another really good explanation for the asymmetry.
The explanation is Steve Briar and Elena Kagan defect half the time, and no liberal, no liberal calls for their heads. There isn't a war chest to get them off the court. There are no Democrats in the Senate saying they should be impeached. John Roberts sneezes funny, and Josh Holly and Ted Cruz are saying, well, he's dead to us.
So I think that the demands of loyalty and the demands of fealty, the implication that if Anthony Kennedy flips once on Obergefell, he's dead to the conservative movement. There's just no analog on the left. There just isn't.
Bret Stephens [00:28:35]: Okay. I mean, I just, for the record, what was it, March? It was just before COVID, what did Schumer say that he then apologized for? That justices, he said Roberts and I think it was Kavanaugh, or Gorsuch or Kavanaugh would pay the price that you won't know what hit you if they rule against reproductive rights. I mean, this is, let's be honest. This is a game that two have been playing for a long time. And I might, you know, I want to say, I mean, I guess I'm sort of the conservative on this panel, this is a case study of being careful what you wish for, right? Because I mean, I've been struck in recent days by all of this talk that's coming from the left talking about why do we have judicial supremacy anyway, you know, who was this characterJohn, John Marshall, when was this little slate of hand called Marbury v. Madison?
You know who, I last heard that from? Matt Whitaker. Remember him? Acting attorney general. And that was correctly treated as further proof that the guy was completely in over his head and had no business being even an acting AG. But for many, many years, the left saw the court I mean, certainly through the Warren years and part of the Burger years as well, the left saw the court as an instrument of social change. It did. And then the right said okay, two can play the game. And now the left is wondering, well, how did we get into this? I mean, maybe really the conversation we ought to be having is indeed, why do these nine elderly people arrogate so much power in our system of government?
I think that's a conversation worth having, but it's just worth remembering how this started when the Supreme court started taking decisions, which conservatives rebelled against precisely because they felt that it took too much power away from Congress, too much power away from the president.
Joe Lockhart [00:30:17]: And I think from a purely political, from taking, I guess I'm the progressive on the panel here. I’ve argued that Democrats have not paid as much attention as they should to the politics of the judiciary. Republicans have made an investment both in time, money, and developing talent, and it has paid off. And if you look at this from a pure political point of view, the
Democrats have gotten outclassed. Their response up until a couple of years ago was just keep shouting from the mountaintops and not changing their behavior. I do think that behavior will change now, and I expect you'll see, if Democrats take control of both branches of Congress and the presidency, that they will start trying to claw back some of that power from the courts, and we will be in the situation that we've been in many times in history where your ideology and ethics are situational.
If you're a state's rights person in 2000, you're more of someone who doesn't think the state should have the rights, and Democrats will argue the opposite in Bush v. Gore. This is all, like most of the things we spend time talking about, comes down to politics and power.
Harry Litman [00:31:23]: Yeah. I'll just say, as the rule of law guy or whatever I am, that I just think Joe is right. As a matter of fact, the Republicans have placed more emphasis on it and more emphasis on certain kinds of judges than the Democrats have.
Dahlia Lithwick [00:31:38]: I would just say the response to what both Bret and Joe are describing has structural reasons, and the structural reason is that the court was by design a counter majoritarian check.
Through most of history, it worked hand in glove with the other counter majoritarian branches, the executive and the Congress, in order to preserve white privilege and power and money powers. For a brief time, I think Bret is right as a descriptive matter, for a brief time, the court acted as a counter majoritarian check to bring us Brown v. Board to bring us Griswold v. Connecticut and its progeny.
And I think for a very long time, the court has again acted as a countermajoritarian check, except now it is again benefiting a majority that is just moneyed and white. And so it seems to me that Democrats relied way too much on the fantasy of the court as being their savior in the civil rights era.
But I think that the thing we should be worried about now is not this conversation, the structural conversation about whether Democrats should hope for the courts or not, but just realize that the courts can be deployed to help white supremacy and moneyed interests and deregulatory efforts and big business and that by design that's what's happening now.
Harry Litman [00:32:58]: Alright. And on that provocative note, 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 are typically in the news, but not necessarily explained. And this one will be on the law of self-defense, you'll recall, I've noticed generally timelines are so crazy. I just can't believe that the impeachment was less than a year ago, nor that the shooting by 17 year old Kyle Rittenhouse, who drove to Kenosha to join the fray and shot three people and killed two was just a few months ago.
But anyway, Kyle Rittenhouse will be arguing self-defense, and we are really fortunate to have to explain to us self-defense, what for many, many years since somebody gave me Parallel Universes has been my favorite cartoonist in the country, and that is Roz Chast. Roz Chast's work has appeared in numerous magazines through the years, but she is most closely associated with the New Yorker where she has published more than 800 cartoons. She has also written and illustrated a range of books. They’re all great, but for anyone who has aging parents or has been an aging parent or know someone with an aging parent, I can't recommend highly enough, Can't We Talk About Something More Pleasant, which won a National Book Critics Circle Award, and was shortlisted in 2014 for a National Book Award. Anyway, Roz Chast now on the law of self defense.
Roz Chast [00:34:27]: Kyle Rittenhouse, the 17 year old who drove from Illinois to join the fray in Kenosha, Wisconsin, has been charged with six felonies after he shot three people and killed two. The charges against him include first degree intentional homicide, the most serious charge available under Wisconsin law. Rittenhouse’s lawyer has said that he will admit to the shootings, but will plead his actions were justified based on self-defense. The Rittenhouse case seems to be a kind of partisan Rorschach test, but in legal terms, what is the law of self defense? And is Rittenhouse likely to plead self-defense successfully?
There are fine points of distinction in different jurisdictions, but the chief elements of self defense claim are the same across the country. And when successfully pleaded, it is a complete defense to the crime, meaning the defendant is free to go. In general, the law allows you to use deadly force to protect yourself, if you reasonably believe that one, you are in imminent danger of death or great bodily harm, and two, that your use of force is necessary to prevent either outcome. In applying the law of self-defense, all states distinguish between the use of deadly and non-deadly force. Deadly force is never justified against a non-deadly attack.
So, if and when Rittenhouse’s case goes to trial, here's what you should focus on. First is whether Rittenhouse genuinely believed that his three victims were about to inflict deadly force on him, and if so, whether RIttenhouse can prove that his belief was reasonable. Rittenhouse’s belief would be reasonable under Wisconsin law if a person of ordinary intelligence and prudence in the same circumstances would have thought the same way he did.
This may well vary by victim. Next is whether the force Rittenhouse feared from his victims was unlawful. Here too, the analysis may differ by victim. The moments leading up to the first shooting are somewhat murky, but for the second and third victims, Rittenhouse’s challenge is that he had already used deadly force, so to the extent the victims were attempting to disarm him to prevent further deaths or serious harm, their use of non-lethal force would not necessarily have been unlawful.
Finally, consider whether Rittenhouse reasonably thought had to use deadly force. Could he have used non-lethal force, for example, a punch or a non-deadly shot? Or could he have simply run away? At trial, Rittenhouse will introduce evidence of a self defense claim, and the government will have to prove beyond a reasonable doubt that each element of the claim is faulty.
If Rittenhouse establishes all elements of self defense, he’ll walk. If instead he proves he genuinely believed that deadly force was necessary, but he fails to show that his belief was reasonable, he'll escape a first degree intentional homicide conviction, but will still be on the hook on a lesser murder charge. For Talking Feds, I'm Roz Chast.
Harry Litman [00:38:28]: Thank you very much to Roz Chast. Her most recent book written with Patricia Marx, You Can Only Yell at Me for One Thing at a Time: Rules for Couples, is especially good reading for couples in lockdown time, when people are maybe spending unusual amounts of time with their significant others.
All right, well, let's return now more to the political side of things. Let's start with this big question, when do you think the vote will be and should be? And what's, what are the different cross cutting considerations for the Rs and the Ds on that question?
Joe Lockhart [00:39:02]: I think the Republicans will push as quickly as they can. They don't have enough time. I believe the consensus coming out of the committee is the committee vote will be October 22nd, a week or so later, it will go to the floor. They have to give a little time for debate, but this will be done. I would expect by the end of the month, three days for the washer. And there, I think there was an interesting debate internally by Republicans and this pushing it through before the election was not unanimous.
I think there are a lot of vulnerable Senate candidates who wanted to do this after the election, who wanted to have this question open for their voters so that they could say, you have to elect me so I can protect this or that, or I can make sure that something won't happen. But I think that McConnell, who counts noses and can feel the political breeze better than anyone, you know, in a generation, realized that he might not be able to get it done after the election if Democrats swept, and he can get it done now. And he's going to get it done. And I think if you're a Republican right now running a campaign or Donald Trump's campaign manager, there are two now main things to happen in this campaign. You've got three debates, and those will be over by mid or mid October, I think.
And then you have this fight, and this may be the last chance Trump has to change the dynamic in this race if the debates don't do that. So again, they may take this right to the Friday before election day as a political tool to turn out their voters. As the Democrats will be doing the same, but they don't have control of the calendar.
Bret Stephens [00:40:34]: I think you heard one of the sharper political minds in Washington, and I concur with everything he said.
Harry Litman [00:40:40]: Are there downsides? I mean, certainly there are some candidates, right, who might prefer not to be put on the spot? You know, Susan Collins, after she's lost, if she loses, she will want to think about her future and her standing in Republican party circles.
And maybe then it's an easy vote for her. It's gotta be a hard vote kind of either way. And isn’t true even of the people who want to go forward, like Cory Gardner, et cetera, or does the political calculation seem pretty easy? And by the way, it's funny because Joe suggested maybe it's what both are spoiling for a vote before, but they can't both be right, right? Somebody, somebody might be miscalculating here, no?
Joe Lockhart [00:41:23]: They may be miscalculating. Are they, this, this is both a strategy and execution. You can have a great strategy, if you don't execute it, it's not a great strategy anymore. So I think, you know, McConnell had a tough decision to make, which is, should I do what's in the interest of my vulnerable senators who are up, or should I try to ram this thing through, because this will have, this will be my legacy. I will be seen as the greatest Republican Senate majority leader in history cause I reshaped the courts. He took the latter. I've been in Maine for the last eight months, I'll be here for at least another year, year and a half.
He's made Susan Collins' life impossible. The point is Collins, just take that race for a minute, he has always been helped by one, having third parties in the race, and two, being able to manage getting enough independents and Democrats, because she is seen as a compromiser and a, you know, someone who's a moderate.
She basically won over what I call the Paula Paige voters. The Trump voters in Maine by voting for Kavanaugh. She lost any chance of getting Democrats. They're just not going to vote for her, and the pool of voters is not big enough. And she's now pissed off the Paula Paige voters by saying, I don't want to have this vote. So I just don't see her way forward.
Bret Stephens [00:42:35]: She's a, she's an object lesson in why the smart politics for any Senate candidate, even those who are on the ropes, is to vote for Barrett's confirmation. I wrote a column urging Romney to postpone, that was really on the view that not only does Romney not face reelection till 2024, but he may not even want reelection at 2024, he’s at a certain age when, I mean, he's, he's doing this for his own entertainment more than anything else. But for every other conservative in a race, this is a base turnout guarantee of vote for Barrett. And I think someone like Cory Gardner, it's going to help him a lot. He was, I think, sure to lose against Hickenlooper, he has a fighting chance right now. Martha McSally too.
Joe Lockhart [00:43:17]: Let me offer a counter on that. And I think that Cory Gardner is the best example, which is, I believe that for him, it was a decision of, do I want to lose by 20 or do I want to lose by seven?
He could oppose this, and lose, and have the Trump base walk on him. But given the demographics of the state, you know, being a Trump Republican is almost impossible to be elected in Colorado. I don't think he'll win, I think he will lose by less. And I think that's the calculation some are making. I think the same thing for McSally, I think Joni Ernst and Thom Tillis are different because their States are different.
And Martha McSally was the first Senator out on this. The announcement was made from the court and I think she had a statement out four minutes later.
Harry Litman [00:44:00]: It really was remarkable how everyone fell into line so quick.
Joe Lockhart [00:44:03]: But Harry, that, that explains the entire ethos of the Republican party right now. The Republican party is a party that lives in fear of a Donald Trump tweet or a Donald Trump insult.
And they know that he has control, you pick it. If it's 40% of the American public, his base, that's 70 to 80% of Republicans' space in most States. He has the ability, he has done it. He's done it to senators. It's not just a threat. There are former senators now, former members of Congress who he took on, who are now lobbyists or on the lecture circuit. And if they're a party, I think driven by the fear of what Trump has done, and they're not able to, at this point, having rolled over so many times, stand up and say, I said something from [unintelligible], I'm going to say the same thing now. And that, that works for you in the short term, in the long term, I think is generally a loser. And I think election, I think election day will prove that out in the Senate. You shouldn't listen to me, cause I thought Trump was going to lose in 2016, so what do I know.
Harry Litman [00:45:09]: As did everybody, if everyone who thought that is off the listening ranks, then there's, there's no pundits left.
Dahlia did you have any thoughts at all? I know you're mainly thinking about this from the lawyer, jurisprudential points of view, but do you have a sense of the, of how the politics work here?
Dahlia Lithwick [00:45:25]: No, my only sense is a lawyerly sense that I think part of what we're seeing happen, and part of the explanation for why it's being rushed is I think they're building a case for vote fraud, for mail-in ballot fraud.
And I think that's been part of the utility of jumping on this nomination and making, you know, Mike Pence made the claims. Lindsey Graham is making the claims. Trump has explicitly made the claims, that the whole election is going to be stolen by these millions of fraudulent mail-in ballots, and that's why we have to see Judge Barrett immediately. I mean, it raises obviously problems for her and for the court.
Harry Litman [00:46:04]: Oh my God. Can you imagine if this goes to them and she's on?
Dahlia Lithwick [00:46:07]: No, I mean, campaigning on the claim that she's going to steal the election for me doesn't necessarily do anything good for the legitimacy of the court. But I do think that it's part of this sort of slow rolling construction of a record, that if you just get Bill Barr to say enough times, “all of these fraudulent mail in ballots must be thrown out and we need to be done with the count on November 3rd,” this is a really good vehicle, I think, to make that claim.
Harry Litman [00:46:37]: Well I'll just offer this. I'm not a great political analyst, and in terms of my politics, my number one, two, three planks are anybody but Trump. But from that standpoint, I really am frightened by this move, and tend to think the Republicans are calculating more intelligently the thought of a few days before the election, this kind of big win and all the distraction from COVID and everything else, I think poses a miserable prospect of a short term, just long enough return of the people who got them just over the top in 2016, to at least present an argument for what had seemed, to me anyway, to be a flailing campaign on all sides. So thinking of the vote happening on the Friday before, it makes me very sick to my stomach.
Okay. We have just a couple minutes for our final feature of Five Words or Fewer, where we take a question from a listener, and each of us asked to answer in Five Words or Fewer. Today's question comes from Martha Bevins, and it looks like it's prompted by some anxiety at the prospective confirmation of Amy Coney Barrett.
And it is: will the Supreme Court formally overrule Roe V. Wade? And if so, when? And I'll add a little clarification here, which is to say, that’s in the event that Barrett is confirmed and the Democrats don't do anything to change around the court, like enlarge its size. Five Words or Fewer, Feds. Anybody want to take a stab first?
Bret Stephens [00:48:20]: I'll go first. No, it will not ever.
Dahlia Lithwick [00:48:26]: I guess I'll say, it doesn't even need to.
Joe Lockhart [00:48:30]: Yes it will, soon. And then my asterisk to that is, because I get an asterisk cause I went last, which was why I was so chivalrous there. I don't think the Democrats are going to come out in 2019 and say, we're going to pack the court.
I think they're going to dare the court not to overrule Roe v. Wade. And if they do, then they will deal with it. So that will be, so Bret may be right, but I think because of some leverage that we haven't seen exerted yet.
Harry Litman [00:48:58]: They will cry havoc and let slip the dogs of war. All right, no I get to go last, post prerogative, and I will say yes, 2023.
Thank you very much, Dahlia ,Joe and Bret. 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, and you can check us out on the web, talkingfeds.com , where we have full episode transcripts.
You also can look to see our latest offerings on Patreon, patreon.com/knocking feds, where we post discussions about special topics exclusively for supporters. And these aren't outtakes or simply ad-free episodes, though we do have them there, but really original one-on-one discussions on important current topics.
So just in the last few days, we've posted some fun and cool reminiscences from people who knew Justice Ruth Ginsburg. Well, in coming days, we will continue those as well as a discussion with Sam Vinograd on, is TikTok actually going away, and a book interview with Peter Strzok.
So there's really a wealth of great stuff there, you can go look at it to see what they are without having to subscribe, and then decide if you'd like to. Submit your questions to questions@talkingfeds.com , whether it's for Five Words or Fewer, or general questions about the inner workings of our 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 pPatton. 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 Roz Chast for schooling us on the law of self defense. Our gratitude as always to the great Philip Glass, who graciously lets us use his music. Knocking feds is a production of Dalito, LLC. I'm Harry Litman, see you next time.
