(soft beat music) - [Announcer] Thank you for joining us for "Fixing Democracy, The Filibuster, Statehood, "Supreme Court, Voting Rights, Electoral College," with Adam Jentleson and Elie Mystal, moderated by Dahlia Lithwick.

Before we begin, thank you to our session sponsors, Becky and Mike Hughes.

We'd also like to thank our founding sponsor, the Kerry and Linda Killinger Foundation.

- Hi, and welcome to the Crosscut Festival, I am Dahlia Lithwick, I cover the courts and the law for slate.com.

I host their podcast, Amicus, and today we're gonna have a conversation with Adam Jentleson, he's former deputy chief of staff to Harry Reid.

His recent book "Kill Switch" offers historical context for how the Senate came to be what the Senate is today, gridlocked by minority rule.

We're also joined by Elie Mystal, who is a Justice Correspondent for the Nation.

He covers the courts, the criminal justice system and politics, he's also just a great Twitter follow.

And our discussion today really concerns, what I think, can only be described as the most existential issues facing democracy, structural barriers, to representative government, and all the ways in which courts, the ballot box, government itself are now being weaponized to ensure that democracy is a little bit less democratic every day.

I just wanna note, we're also recording this to be re-broadcast on my podcast, Amicus, which is a podcast about the courts and the law, and the state of the democracy, so I wanna welcome our Amicus listeners as well.

And now I wanna welcome Elie and Adam, and thank you both for being here.

- Great to be here, thank you for having me.

- Thanks for having us.

- So I think I wanna start with the 2020 election, with the caveat that I know we all have PTSD, but I think we'd like to tell this story, about all the ways the court system held.

And this decentralized, broken, archaic machinery, of voting held up so well, despite the massive assault on vote-by-mail, on the certification of the Electoral College results on truth itself.

And we'd like to say, "Hey, this proves it all worked."

There's of course, a counter narrative, which is that the system held by the skin of its teeth, and, but for a handful of court decisions, a couple of really honorable, non-partisan, local elections officials, it could have been otherwise.

Stanford MIT, their elections project described it as quote, "The Miracle and the Tragedy."

Elie, I wonder if we could start with you, and you can just tell us how, which of those two narratives you've subscribed to, and how worried you are about how close we might have come to a very serious election meltdown?

- Oh, I'm completely terrified that we came as close as we did, and I have every confidence that eventually the people, the forces, who want to destroy democracy will succeed, if things keep on as they are going.

One of the lists of heroes that you didn't mention, of course, are just the heroic efforts of Black voter, of voters, especially Black voters, to overcome the structural hurdles placed in front of them to vote.

It shouldn't be that hard, and we can't count on literally heroic efforts, on the part of minority voters to save America every two years, every single election cycle.

The other thing that I think people kind of miss when they talk about 2020, and the way that the courts held during the election, is that it is simply one thing to ask a jurist, to throw away and discard votes that have already been cast, counted, and certified.

That is a high bar to try to get a judge, to throw away votes that are actually already in the system.

It takes nothing to get a certain kind of judge to make it harder for those votes to be cast in the first place.

And I'm saying that not prescriptively, I am saying that we saw that in 2020, we saw time and again at the state court level, or at the Supreme Court level, courts are working to make it harder for people to vote during the crisis and during the pandemic, right?

In the context of this kind of global meltdown of health crisis that we saw, we saw law after law, aimed at just making it a little bit safer for old people to vote, which is something old people like to do, as far as I can tell.

We saw courts regularly take down laws designed to make it easier to vote, add new restrictions, like notification requirement, like notary requirements, and that sort, and only in a few situations was the Supreme Court willing to stop the kind of late breaking , voter suppression efforts as we ramped up to 2020.

So yeah, did certain institutions hold, did certain individual either jurists or politicians, kind of stand up and do the right thing?

Yes, at the end, but that road to get there was fraught, and the key thing is that I don't know that that is repeatable.

- Adam, I wanna ask you maybe a version of the same question, but maybe slightly more forward-looking, which is, let's say the system held, and the Senate, okay, some hinkiness on certification day, but now we're in a weird world looking forward where everything rests on a single vote in this badly malapportioned Senate.

We saw eminently qualified Vanita Gupta, barely win DOJ confirmation, because a single vote defected to push her over the line.

And I think we don't even know how to think about what's wrong with the Senate and how broken it is.

And I wonder if just at the risk of asking you though, I know, retread ground you know it so well, but can you just help us walk through this confounding, utter brokenness of this malapportioned Senate, and the Senate that now has us in a really strange hostage situation?

- Yeah, absolutely, and I definitely subscribe to Elie's view of the current state of play here.

But, you know, the role of that Senate plays here, I mean, I think, you know, look, I won't, I won't go through 200 years of history right here, but I think the way to think about it, is that what the framers were trying to do, and I also just to be clear, I'm not an originalist, I doubt I'm speaking to many originalists here, a challenge in writing the book.

But I think that what was interesting in doing the research, was to try to look at the system design and the fundamental feature of the system that is being blocked today, that was a good feature of the system, was its ability to adapt and change.

And it's that feature, and that ability to adapt and change, that is being blocked today, primarily by the filibuster.

And I think the way to think about it, is that the framers were trying to create a delicate balance within this system between majority rule, and the right of the minority protections of minority rights, and I'm speaking of minority factions in any given situation.

And why were they trying to protect minority rights?

I mean, there were some pretty bad motives to that, they were mainly concerned that the people are gonna rise up and take their property.

This was such an elitist impulsed, and certainly a racist impulsed as well, but that was the system they designed.

But what's interesting about their design, was that they placed far more emphasis on majority rule than we do today, even in 1789.

They were very clear that within this complicated system of checks and balances, every decision point should be majority rule.

The reason they were so focused on that is that they had, had just had direct experience with a system that did have a super majority threshold in it, which was the Articles of Confederation, you know, the first draft of American government, the system that was in place during the Revolutionary War.

And they put it in place, that super majority threshold for all the reasons that defenders of the filibuster defender today, which is the idea that would promote, compromise, and consensus.

But they quickly saw that the exact opposite happened.

It created gridlock, it allowed the party out of power, the party in the minority to throw a monkey wrench in the system and make the majority look bad.

And so when they went to write the Constitution, they were very clear in the Federalist Papers, in their personal correspondence, in the Notes of the Convention, everywhere, that they didn't wanna repeat that mistake.

And so they created a system where you had a bicameral legislature, three branches of government, the judiciary, that was designed to hold this delicate balance, and they wanted the minority to have the ability to have input, and to have a say in the process, and the Senate was designed more than any other branch to facilitate that minority input.

But they were extremely clear that at the end of the day, after the minority had, had it's say, after there had been extended debate in the Senate, that the issue at hand should come up for a majority vote.

So the dysfunction that we see today, is that system over 200 years, and primarily throughout the course of history for the maintenance, the primary driving factor in this tilt was the maintenance of white supremacy, again and again for 200 years.

That system has become tilted to over empower the minority, and that is what is caused our system to lose this ability to adapt and change, because the minority in every situation wields a veto.

The Senate isn't a body that exists independently, it's at the heart of the legislative process.

So by imposing this minority veto, every bill that passed into law has to go through the Senate.

So you're not just imposing a minority veto on the Senate, you're imposing it on the entire system.

And it's that tilt towards a minority rule that has caused the system to be as dysfunctional as it is today.

- Okay, so we've done the diagnostic work in eight minutes.

Well, strong work friends, let's do a little bit of repair, and Elie, for what it's worth, I think you're exactly right.

The courts didn't completely bring the house down in 2020, but I don't see any reason to spike the football, and say, "That can be replicated."

And I wonder if we can start with this big, sort of elephant in the room question about court reform, and I know you and I've talked about it a million times, the kinds of things that need to happen, and oh, by the way, it need to happen in the next year, seem to be unlikely to happen.

And I know you've had real criticism of the Biden Court Commission, which is gonna think about, thinking about some of these solutions for a 180 days.

But I wonder if you could just, again briefly, give a sense of what court reform would look like, and why it is you're so discomfited by the idea of thinking about it for a really long time?

- It is insane that the people currently in power, which happens to be for this brief moment in time, a democratic administration, and a bear thin as possible majority in the Democratic Senate.

It is ridiculous to me that these people are thinking about these problems in terms of legislative action.

When the courts, not just the Supreme Court, literally any two-bit, just out of law school, 35-year-old Trump judge that was put on the court specifically because of their blogging experience, that any one of them can frustrate for the entire country, anything that the Congress does.

Any single bill that gets through that difficult house, and Adam's, you know, great point about the completely minority rule Senate, even if you get something through those two bodies, one district judge can put a temporary injunction, and stop the whole thing.

Liberals should know this, that's why there's no wall.

We should know the power of a district court judge in our system.

And so for us not to be willing to even seriously consider, expanding the courts, both at the Supreme Court, and the lower court level is just political malpractice.

Anything that the Democrats want, anything that liberals want, anything that voting rights activists want, will be frustrated by the Republican courts.

Now, there are great reform reasons for expanding the courts, far beyond the political tit for tat.

If we look at the lower courts, we are long overdue for an expansion of lower courts.

We used to add a couple of judges here, a couple of judges there on the various circuits, about once every 10 years, we created whole new circuits.

We haven't done that since 1990, the Judicial Conference, which is an independent, non-partisan body, of retired federal judges, and big thinkers, says that we need at least 75 judges, just 75 district court judges like now, today, now let's go.

Just to handle the load, we are a litigious people, and as we get, and as there are more of us, there are just more cases to handle.

So at the bare minimum, we should be talking about expanding the lower courts, just to lighten the load, the burden on the judicial system.

And then obviously at the Supreme Court, look, I can make all of, again, the revenge arguments about the hypocrisy between Merrick Garland, and Amy Coney Barrett, I have all the revenge arguments like as clear as day.

But again, when we talk about reform, one of the things that we have to realize, is that our process where every time a Supreme Court Justice dies, it's an all-hands-on-deck, full on, go to the mattresses fight, in again, the completely ridiculous Senate, that the only way to stop that, the only way to stop that, is to put enough justices on the Supreme Court, that their replacement becomes a matter of rote, as opposed to a desperate political battle.

If you had 19 justices, if you had 29 justices, and if you think that's too much, that's exactly how much the Ninth Circuit that covers California and most of Alaska, if we had 29 justices, then every time one of these octogenarians dies, which is not something that should be that surprising, that 80-year-old people die, every time one of these octogenarians die, it wouldn't be an all-hands-on-deck political fight, so we should expand the court for those reasons as well.

Now, last thing, to the extent that the current democratic administration might get to choose a fair majority of those new justices, well, that's just part of the bargain.

- Adam, I wanna give you a chance to defend the completely ridiculous Senate.

But I also wanna ask a version of this question, which is, what do you do about filibuster reform, when Joe Manchin and Krysten Sinema just say, "No."

How do we do the kind of big structural fixes, when the institution declines to be fixed?

- Well, yeah, I mean, I'm not gonna defend the Senate.

I think that it would be much healthier for the Senate, if it would confront its own shortcomings.

I think that part of its great weakness, is its ability, and its eagerness to wrap itself in its own myths, and sort of get high on its own supply about how great it is.

In the mind of senators, everything it does is wise.

If they take too long to pass a bill, that's wise.

The fact that it took 87 years, after the end of Reconstruction for them to pass a Civil Rights Bill that was considered, the cooling saucer effect.

And, you know, that self-delusion hides the fact that the American people were ready for civil rights decades before the Senate was willing to pass them.

You know, this is something that we don't learn much about, but as early as 1891, there was majority support in the House and Senate, and a president willing to sign a bill to eliminate poll taxes in the South.

In the 1920s, the House of Representatives started passing bills to end lynching, that by overwhelming margins, that came over to the Senate, where they had majority support, but they were blocked by the filibuster.

There were bills to end poll taxes, there were bills to end workplace discrimination, in the 1930s and '40s.

And the key here is that they also had extremely broad public support.

Gallup polled, federal anti-lynching laws in 1937, and found 72% of the American people in support of federal anti-lynching laws.

In the 1940s, they polled a federal anti-poll tax laws, and found upwards of 60% of the American people in support.

So the Senate is deeply broken, and the dysfunction that it imposed on civil rights during the Jim Crow era, is now what it imposes on every other issue.

So how do we fix that to the point about what do we do if it won't fix itself?

I'm actually encouraged by the fact that we are so close to having 50 votes for filibuster reform.

You know, I was there in 2013 when we did a version of filibuster reform for most judicial nominees.

And at this point in May of 2013, we certainly weren't as close to having the votes to do that kind of reform as we are today, to having to do, as close as we are today, to doing broader filibuster reform.

All this focus on Manchin and Sinema, I read the stories every day, but I have a different reaction, which is, "Oh, we only have two votes to get that's not bad."

So look, there's no downplaying how vehement they've been in their opposition, but this question has been entirely abstract, for the first half of this year.

You know, for all the hype Republicans haven't actually filibustered anything yet, because they did the American Rescue Plan through reconciliation, which we can talk about more later, but that's an end run around on the filibuster for a limited set of types of legislation.

The last work period they did a few bipartisan bills.

We haven't seen it come to a head yet, where a major priority of the Biden Administration, probably something that's broadly popular, such as a voting rights bill, or H.R.1, For the People Act, comes to the floor of the Senate, gets blocked, and has the votes to pass without the filibuster, Those are the kinds of situations that are gonna make this question much more acute for Senators Manchin and Sinema.

And they're gonna feel pressured, not just from the left or from the grassroots, although they will, and that is very important that they do.

They're also gonna feel pressure from their peers in the Senate.

They're gonna feel pressure from other democratic senators, who are up for re-election in 2022.

Krysten's, Senator Sinema's, fellow Arizonan, Senator Mark Kelly, is up for re-election again, even though he just got re-elected or just got elected because his election was a special elections, so he has to run again in 2022.

Mark Kelly wants the For the People Act to pass.

Mark Kelly wants to be able to go to voters in 2022, with a robust array of accomplishments, to make the case for his own re-election.

And so I think that what's gonna happen, at the end of this summer, and in the coming weeks and months, is that the question that Manchin/Sinema, are facing is gonna be extremely acute.

And the pressure is going to build, probably, in a way that neither of them has ever experienced in their entire careers.

So the last two votes are always the hardest to get, and they certainly are presenting a challenge, but the fact that we're this close, this early, to me is a positive sign.

- So this is a really interesting through line.

I think Elie and I, probably, have done a hundred conversations and podcasts, in the last seven, eight years, where we would just start by setting ourselves on fire, because nobody cared about court reform, and nobody cared about courts at all, at least on the progressive side.

And we've seen a huge, huge, I think, interest, a sense of salient, a public reckoning with the fact that like, hm-mm, probably should have voted in 2016 around the courts, you know, when there was one empty seat and three octogenarians, and we didn't show up.

So I think that the needle is moved, right?

And I think there's a real dispute about whether it's moved fast enough and hard enough, to talk about serious structural reform, but it's moving.

And Adam, you're making the same point about filibuster reform, which is the things were unthinkable 10, 15 years ago, are on the table, and people understand it, it's salient, it's resonant.

And I think H.R.1 makes all of democracy reform salient in a way, and yet I have this sense that there's this like big roadrunner coyote, doomsday clock, that's just ticking down faster than public enthusiasm, public concern, these are all such wonky process questions, and people care about their pocketbooks, and they care about COVID, and these are third order issues.

And so, I guess, in light of this foot race between say, the 2022, 2024, the sense that Georgia, Texas, New Hampshire, passing vote suppression bills right now.

Mitch McConnell pledging to obstruct anything that comes his way.

Is this all kind of like good 11th hour participation folks, but it's too late to do anything, or can people still be moved to sense, Adam, the kind of urgency that you're describing?

- I think we'll know whether it was 11th hour on election day, 2022.

I mean, I absolutely agree that this is a race against the clock, I think that in my view, filibuster reform has to happen or at least start to happen, it may be sort of an iterative process, before they arrive at a sort of reform regime that works, that process has to start in the summer.

I think, I live in fear, as a former congressional staffer, of August recess, you know, this five-week break that the Congress always takes.

And what lies on the other side of that, often you come back after that five weeks, and the world looks completely different.

That's what happened in 2009 when Democrats went home, that was the rise of the Tea Party basically happened in August of 2009, and they came back facing a vastly different political landscape than when they left.

So I completely agree that it's possible that we will get to November 2022, Democrats might lose their majorities, and that could be it, that could be the window closing.

The optimistic view is that we have, between now and then, to try to get all this stuff done, and Democrats have a trifecta, I would love for Republicans to join in this effort too, I don't think it's completely out of the question, but I'm certainly not holding my breath.

But that's the upside is that for the first time in several years, Democrats actually have the power to do the things that we wanna do.

It's going to take aggressive leadership from President Biden and Leader Schumer in the Senate.

There's no way this happens, without them putting this on their backs, and driving it home, but they have every incentive to do that.

And I think the encouraging signs we've seen from President Biden are that he is coming around to a different way of doing politics than he basically did his entire career.

You know, but that's understandable, he's the guy, it's his you know what on the line right now, he's got to deliver.

And so I think under those circumstances, the prospect of, or the incentive to produce results becomes very, very strong.

And, so, this is a race against the clock, but we've still got a long ways to go or at least a decent ways to go.

And I think that there's still a very good chance that, that we're able to get this done in the time that we have, or at least do enough to sort of keep our democracy going, and give ourselves more bites of the apple down the road.

- And Elie, I wanna ask you, can I just ask, I'm gonna ask the same question with a slightly different frame, and then you can answer whatever question as you want to do.

But I wanna ask you if the conventional wisdom that I keep hearing, about the same problem Adam has described on democracy reform is that the American people need to read the sentence Roe versus Wade is overturned before they get on the, the float in the parade that says, "Oops, structural court reform is a good idea."

So again, we're not gonna see that this term, we're not gonna see it next term.

What is your answer to the same question I asked Adam, which is how do you sort of foment a sense, that these are exigent questions?

We don't have time to think about it for three years.

- Yeah, I mean, look, the problem is, is that, when Adam says like, "Oh, well it hasn't come to a head yet."

And it hasn't come to a head yet because there hasn't been the aggressive leadership on these critical issues.

And I fear, and my worry is that it is actually Joe Biden that needs to see Roe V. Wade is overturned before he gets it.

It's actually Joe Biden that needs to see the filibuster used to stop voting rights, or thwart some major policy before he gets it, right?

And if that's what we're waiting for, for Joe Biden, himself, to get it, to understand that this institution that he loves, is not on his side, that he can not, in fact, work with Mitch McConnell.

If we're waiting for Joe Biden to get it, it's already too late, we're even talking, and I hate to be the guy that always bring this up.

But we're talking as if the clock strikes midnight, midterm elections, 2022.

Man, the clock strikes midnight if Pat Leahey gets hit by a bus, that's when the clock strikes midnight, all right.

We are, the democratic majority is so thin, that any one of these senators, many of whom are themselves quite old, if any one of them should pass away, living at a state where they can be replaced by a Republican governor, that's it, it's over, goodbye.

End of this discussion about filibuster, end of this discussion about expanding the Supreme Court, end of this discussion about Stephen Breyer retiring and being replaced by anybody, if that doesn't happen.

So like when we're talking about the timeline here, we're already late, and it's not clear to me that the people in charge get that we're already late.

And here's why, and here's the last mean thing I'll say, I guess, about this topic.

But the reason why these people don't get that they're already late, is that they do not get that they cannot win an election with just white people.

There are entirely too many democratic senators, and establishment folks who do not see the existential threat to their own jobs, if these voter suppression laws are allowed to stand.

They think they can still convince, that middle-of-the-road white person, that has left the party during the Reagan years may never come back, but they're still trying to go get that Reagan Democrat, they're pretty sure that we're just one more big piece of legislation that Reagan Democrat is gonna come back.

They don't understand that the base of their party are these Black and brown people who turn out for them.

They don't understand that they cannot win, screw nationally, they cannot win statewide if they do not have overwhelming turnout from Black and brown communities.

And win those communities eight to two, if we're talking about Black people, and six to four if we're talking about brown people, they can't win without those numbers.

And they don't understand that, and so they don't realize that these voting suppression laws are an existential threat to their own positions.

And the legislation is so slow.

I mean, the current voting rights, voter protection, John Lewis Voter Protection Law, doesn't even have strong protections for mail-in voting, because mail-in voting was not a huge thing when they wrote the thing in 2018, right?

Mail-in vote, that's a new thing.

The only way to protect voting rights is by this thing called the 15th Amendment.

That 15th Amendment, which has been stuffed in a locker for most of its life, except for the Voting Rights Act, which John Roberts eviscerated in 2013, that's it.

If you don't have people willing to protect the 15th Amendment, then you don't have voting rights, it's as simple as that.

And I can't get democratic legislators, especially, to understand that.

- So, that actually is a great segue, to this other kind of big framing question that I've been struggling with, which is how much attention do we pay to the big lie, right?

And there is a long, and I think meaningful set of reckoning that needs to be devoted to what happened on January 6th, and the role that was played by many, many, many people who still have their seats and who have suffered no consequences.

And in fact, the folks we know who have stood up to that are suffering consequences, as we speak.

We can devote a lot of backward-facing attention to the big lie.

I think that there is an argument to be made, that because of the exigency that you're both describing, that is not time well spent.

And the problem is of course the big lie is being used in order to suppress the vote in Georgia, and Florida, and Texas, and wherever it's being passed.

So I feel like this is a really sort of existential question, but I still would love to hear you both think about how much sort of backward-looking we need to do, in order to do the forward-looking urgent repair.

And maybe we'll start with you, Adam, just because I know that the big lie is really, really playing out in the Senate right now.

- Yeah, I mean, if I were a Democrat, in elected office, I would pay a lot of attention to the big lie, because I would think about it, and I would marinate on it, and I would say, "Does a party that embraces this big lie "is that party likely to work with me "on any legislation going forward?

"Or is this party likely to do everything they can "to obstruct everything that we try to do?"

I talk about this in the book, but it's like, Joe Manchin is out there calling for the return of a new era of bipartisanship, and I wish him luck, I hope he's able to find it and cause it to come about.

However, I think he's probably gonna fail, and the reason for that is not that I'm super cynical, it's that if you look at the structural incentives, that are facing Republican senators, they are overwhelmingly pulling them towards obstruction.

There is not a single Senator who is likely to defy those structural incentives, in any major or consistent way.

And certainly not 10 of them which is the number you would need to come across to pass anything major.

Mitch McConnell, in 2009, sort of made a strategic gamble, which was that by implementing a regime of non-stop obstruction, that he would be able to avoid the blame, the blame would be diffused in the public mind.

That the public would ultimately blame the party in power, for failing to deliver results.

That the public would not be interested in Democrats, it's trying to explain that it was Republican's fault, that they didn't deliver the things they said they were gonna do.

And he proved correct, I mean, that's not a value judgment, it's simply an analysis that from a political perspective, McConnell's strategic gamble came up big.

Democrats got creamed in the 2010 midterms, they lost 63 seats in the House and seven in the Senate.

So there is no rational political reason for Republicans to do anything other than repeat that playbook.

So, and, then throw the big lie into the mix, and you say, "Is a party that is kicking Liz Cheney "out of leadership because she had the temerity "to say that President Biden "won the election fair and square."

Is this party likely to defy those structural incentives, that are already pushing them towards obstruction?

I think the answer is, has to be no.

- Elie, same question.

- Joe Manchin is letting the terrorists free and that's exactly what they are, and exactly what he's doing.

He has said that the insurrection of January 6th, made him think that it was really time for more bipartisanship.

Well, that's pretty much like saying, "After 9/11, we shouldn't ever build anything that tall, "that just makes people angry."

No, that's not how you act, but that's how Joe Manchin is acting.

So, in terms of looking backwards, prosecute everybody, prosecute them all starting with Donald Trump and his corrupt family, because they committed crime.

Not for political retribution, not because it's just something that we can do (indistinct) because they committed crimes.

I know Trump committed crime because I read the Mueller report, not the Bill Barr version of the Mueller report, but the actual Mueller report, which laid out 10 instances of obstruction of justice, prosecute him for that.

Prosecute his daughter for her various Hatch Act violations, which she did on camera the entire time.

Prosecute the boys for, I mean, I don't know if they're boys, I don't know, I like to infantilize the Trump kids, I'm not sure what coloring book, oh, there's also the tax fraud that those guys committed.

So prosecute them for, prosecute Trump and his family and everybody involved in his corrupt administration.

Then prosecute the people who attacked the Capital, starting with all 800, I don't wanna hear anything about, like, "Oh, we don't wanna," all 800 people who crossed the line and got into the Capitol are guilty at least of disorderly conduct, at least, so just prosecute them for that.

Prosecute them for that, and then see if any of these vegan, I-need-my-special-meal people wanna flip and tell stories about other people in their various white supremacist organizations that helped them out.

Prosecute everybody you have to, prosecute everybody you can, that is all Merrick Garland should be doing.

I don't see why there's any problem with letting Merrick Garland, and the U.S.

Attorneys go off and prosecute, all the people they need to prosecute while the Senate continues on its bipartisan road of fixing democracy, you can walk, and chew gum, and deliver COVID vaccines at the same time.

That's what being a Democrat is, we're supposed to be the party of competence, go be competent.

- So I wanna get to a couple of the audience questions, 'cause there's a bunch.

And the first one actually is for you Elie, and it's just in the bucket of structural court reforms that are being floated, do just straight up term limits for Supreme Court Justices, does that get us part of the way there?

- I love term limits, I think they're a great idea, unfortunately, they're unconstitutional.

That's not me saying that's probably from my read eight Supreme Court Justices saying that.

I do not think that you can pass term limits legislation, and get this Supreme Court already stacked as it is, six to three with conservatives to agree that the whatever hokey plan you do for term limits, passes muster under Article Three of the Constitution.

I wish they thought differently, but I think that's how they think.

In fact, I honestly think that only Stephen Breyer, of all people, is the one that has been out forward in favor of being interested in term limits.

I don't think the rest of them think that, that's constitutional at all, it probably isn't.

So if you want term limits, and again, I want term limits, I think they're a good idea, I'd like many of the plans that I've seen up there, if you want term limits, I'll tell you how to get them, expand the court, add 10 justices who think term limits are constitutional, and then pass your terminance legislation, and then let those 10 justices overrule the nine justices, who maybe don't think they're constitutional, boom, we've got term limits.

But like I'll just quickly, the thing about court expansion that kind of blows people's mind, it's the easiest thing to do.

It's actually the constitutional solution to the problem of a Supreme Court, that is out of step with its people.

It's actually the constitutionally preferred solution.

So that's kind of why we have to do it, it's really the only tool that the Constitution gives the legislative bodies to handle the courts.

- Adam, I have a question that I feel like could be a question about everything we have talked about tonight, and everything we could talk about for the next six hours, which is just the tit for tat question.

So somebody is essentially saying, "Right, so we ditch the filibuster "and then what happens when the Republicans "win back control of Congress and the Presidency?"

And, by the way, we could have that conversation about court reform, we could have it about almost any sort of democracy reform we've talked about.

What's your kind of back of the envelope answer for tit for tat or spiral to the bottom?

- Well, there's sort of a brass tacks political argument, and then there's a broader argument.

And that the brass tacks argument is that, if you don't get rid of it now and pass the stuff that we wanna pass, Republicans will just get rid of it when they're in power and pass the stuff they wanna pass anyway.

And I think that's a pretty solid bet that they'll do that.

You know, looking at it from a sort of strategic analysis, by leaving it in place right now, we are guaranteeing that we will not pass things like voting rights, H.R.1, gun control legislation, a whole raft of immediate urgent priorities.

So you're incurring a huge cost upfront to yourself and to our democracy.

You're probably also making it easier for Republicans to get back in power faster, by not passing a voting rights, and democracy reforms, so you're accelerating the doomsday scenario where they are in power.

And, so, you're incurring that cost and you're doing it in order to maintain this defensive tactic that you hope will come in handy for us when the other side is in power.

So what happens though, when you incur that massive cost to yourself upfront, then the other side gets in power and with a flick of his wrist, Mitch McConnell just gets rid of that defensive tactic that you incurred that cost in order to keep.

So, I think it's a bad idea to incur that cost up front, and sort of cross your fingers, and hope that Mitch McConnell doesn't yank that away from you when he wants to.

Because I think the overwhelming odds are that he will.

So that's the sort of the brass tact answers that we have power now, Democrats do, so they should, they should do as much as they can with it.

Because Republicans will probably just do all the bad stuff anyway, when they're back in power.

The more philosophical answer, yeah, Elie, go ahead.

- No, go ahead.

- Okay, well the more philosophical answer is just that it actually, you know, on balance, the filibuster is a tool that benefits the conservative side of the ideological spectrum far more than the progressive side.

So on net, it is something that it overwhelmingly benefits progressive to get rid of.

It is a tool that makes it harder to pass things, progressives are the party that wants to pass big change.

Conservatives are the party that wants to stand to thwart history, yelling, "Stop," in William F. Buckley's famous phrase.

You look at, and then historically progressive benefits and expansions of rights have proven extremely hard to undo legislatively.

They're easy to do through the courts, to roll back, but legislatively they're extremely difficult to undo.

You look at Obama Care, which after it passed was extremely unpopular with the public, Republican's campaigned for seven years on repealing it.

As soon as they got back in power, they tried to repeal it through that process called reconciliation, which means they only needed a majority to repeal it, so the filibuster was no help to Democrats in stopping the effort to repeal the Affordable Care Act.

But Republicans couldn't muster a majority to repeal it because what happened, it got popular when they tried to take it away.

When you try to take progressive benefits away from people, it becomes very hard because people realize they like it.

So I think when you take the brass tacks analysis, and you take the sort of larger strategic analysis together, the only conclusion you can really come to is that, this is something that while it does pose some risk in getting rid of it, overwhelmingly benefits Republicans more than Democrats.

So Democrats should get rid of it, pass the things they wanna pass, because that is the, on balanced the best, by far the best thing for them to do.

- Elie.

- I just wanted to add that.

The same argument, Adam's same argument basically works when you talk about court expansion, so you put four justices on the court, and then the Republicans get in and they put eight justices on the court.

Where does it end?

Why does it have to end, who cares?

Again, since step one, if you put four justices on the court that are gonna protect the 15th Amendment, then it makes it much more unlikely, that Republicans ever take back all of government again, which is what they would need to repack the court, A.

B, how is it worse if they repack the court?

We're already down, if something happens and now in six or eight years, the Republicans are back on top, that's no worse than it is right now.

And then see, as I've said, there are great reasons to have more justices on the court that go beyond parties and politics.

And so even if you were talking about a court that is up 50 people, 80 people, that's actually still better than what we have now.

People forget our Supreme Court is unique, kind of in the Western industrialized world, in that it is A, so small, but B, so powerful.

No other Western industrialized Supreme Court can just declare an act of the popularly elected legislator unconstitutional, because five dudes say so are you kidding me?

That's not a power most other places have, is a power that we have.

So changing the bar to five dudes think it's unconstitutional, so I don't know, 45, how is that bad?

So like, as Adam is saying with the filibuster reform, yes, there are doomsday scenarios, where Republicans grab all the power and use it to do awful things, but those things are awful, and a lot of times they're unpopular.

So do the things that you can do right now, to do popular things, and make it harder for them ever to win back power again, and if they do and they decide to do awful things, you're in no worse position than you were before.

- And if I could just add one point to what Elie is saying, I think he's making you, I agree with everything he's saying, I think there's powerful points, and the thing about the filibuster is that by making the legislative branch of government dysfunctional, it is shifting power to the executive branch and to the judiciary.

And so if progressives, the thing that the progressives wanna pass are by and large, very popular.

The things Republicans want to pass are by and large unpopular.

The easier way to do unpopular things is to have them be done through the executive branch and through the judiciary, so that elected officials in Congress don't have to vote for them.

So by jamming up the legislative branch and dispersing more power to the other branches of government, you are making it easier for Republicans and conservatives to achieve the unpopular things that they want to do.

You know, legislative change is hard to do, and members are very responsive to public opinion, so if you are the side that has the more popular agenda items and the other side has the less popular agenda items, you want that fight to happen in the legislative branch, because that is where people are most responsive to public opinion.

That's why Republicans couldn't get 50 votes to repeal Obama Care because it became extremely unpopular.

So it is in our interest to sort of herd the action back to where it should be, which is the legislative branch, because that's where public opinion, which is on our side, has the most impact.

- So talk about big roadrunner clocks, we're ticking down out of time, but I wanna ask you each, as briefly as you can only because of the hook is coming to just give folks a sense of, if you care about democracy reform, if you care about voting rights, if you can put effort into one thing or another, what should, and I know Elie's gonna say, "Why can't you go home?

"Like all of it, all of it right now."

But I think like people really, I think are overwhelmed by the sort of enormity of the structural challenges.

What are you telling people to do as they sort of ask as an action item, Adam?

- Well, look, if you live in West Virginia or Arizona, I would say call your Senators, Sinema and Manchin immediately because I think that elevating this issue, the filibuster reform is a weedy Senate issue, that I think a lot of lawmakers don't think is grabs the public attention, but, you know, they listen to the calls that come into their office.

So calling them, meeting with them, demonstrating public support is important.

But I also think it's not just Sinema and Manchin, there's a lot of democratic senators out there, that need to hear from people.

So and if they're on the right side, call them up and thank them because that firms up their support.

So make those phone calls, make those meetings, we're emerging, and people are vaccinated, and you can do in-person things again, and it's safe, you know, do all that in a safe and COVID compliant way.

So, but that is critically important because this is an issue that even a few years ago, was so far in the weeds that nobody was talking about it.

I think we've come a long way, it's more front and center now than it has been in a long time, but we need to keep the pressure on.

And we need to keep telling senators that we're watching them, that we're thanking them if they're doing the right thing, but if they're not that we are demanding that they do the right thing.

Those calls, those meetings, those texts, those emails really do matter, having been on the inside, having seen how much senators pay attention to the feedback they get from their constituents, it really does matter.

- Elie.

- I'll go with, obviously.

All of the above (laughs) I'll pick up where Adam said about what they're actually afraid of right?

This summer they're coming home, and we probably will not have filibuster reform, or court expansion or anything like that, by the time we hit the summer.

So I would say, show up, show up loudly, they're coming home, get your two shots, put on a mask, and go out, and show out, and show these people what you think about these issues.

Because Adam is exactly right, they come this first break, this summer break before they'll be, which is the kickoff to their midterm re-election campaign.

They care about this break more than anything else.

And if you yell at them, if you confront them, if you are in their face and say, "Where is my reform?

"I voted for you, where is my reform?"

Like that will matter to them, that's how, people forget, why didn't Republicans have enough votes to kill Obama Care after running on it for seven years, because people rose up, because people rose up.

Why did Derek Chauvin get arrested, and charged, and convicted?

Because people rose up, like at some point it does become an issue of us the people ourselves, standing up, masking up, and going out into the streets and demanding better from our elected officials.

- So, I just wanna say, you know, because I started fatuously saying these are kind of dorky-wonky, weedy process problems, but the two of you really with your work, and your thinking, and your passion really prove why these have become salient issues that we can talk about for hours.

And I just wanna thank both of you for the tip of the iceberg conversation, but such an important conversation about structural democracy reform, and how much it's imperil, so I cannot thank you enough.

- Thank you, (indistinct) style you've been explaining these wonky things to people for a long time, so it's... - She's the dean of explaining the wonky things to the people.

- Seriously.

- "Queen of the nerds."

Is what my kids call me.

Thank you both so much, and I wanna thank all of you for joining us today.

Thanks to the Crosscut Festival for inviting the three of us to talk about this.

I hope everyone gets a chance to see some of the other festival's sessions that are going on this week.

One I would suggest is "Worshiping Trump," it features religious leaders talking about Christianity, Trump, the courts, and more, and it's happening Saturday morning at 10:00 a.m., for now, also on behalf of my Amicus listeners, thank you so so much for being with us and have a great rest of your day.

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