♪♪♪ male announcer: Funding for the Hinckley Report is made possible in part by the Cleone Peterson Eccles Endowment Fund.

Jason Perry: Tonight on the "Hinckley Report," the legislature calls a rare veto override session to reconsider a controversial bill.

Utah's senators weigh in as the confirmation hearings for a new United States Supreme Court Justice begin.

And with state conventions on the horizon, candidates race to secure critical delegate votes.

♪♪♪ CC BY ABERDEEN CAPTIONING 1-800-688-6621 WWW.ABERCAP.COM Jason: Good evening, and welcome to the "Hinckley Report."

I'm Jason Perry, director of the Hinckley Institute of Politics.

Covering the week, we have Boyd Matheson, host of "Inside Sources" on KSL NewsRadio, Amy Donaldson, co-host of the Voices of Reason podcast, and Rod Arquette, host of the "Rod Arquette Show" on KNRS Talk Radio.

Thank you for being with us.

This is a big day in politics in the state of Utah, and I wanna get to this, we'll start with you, Boyd.

By the time this show airs this evening, we will have had a veto override session by our legislature and a special session called by our governor.

What is interesting to set the stage here where we talk about transgender athletes.

This bill in particular is passed during the legislative session, the governor vetoed that bill, but it was interesting as he vetoed it, a five page letter attached explaining his rationale for doing that.

Talk about a couple of those key points that he mentioned.

Boyd Matheson: I think one of the things that the governor pointed out to the legislature was really this idea that, first, we're dealing with such a small number.

We really only have one transgender athlete who's actually participating right now, so are we swinging really big, too far, too fast?

He also obviously was worried about the financial component to that and what that would mean for school districts and for the high school athletic association, and then also looking at the transgender community as well.

And I think part of the message that he was trying to send to the legislature is, is there a better way to do this?

And I think it's one of those where Utah could actually lead out that it's not this either or.

I think this is an opportunity for an and conversation in terms of how we protect women's sports and women athletes.

I know Amy has been following that for a number of years.

But how do we do that and show proper respect and opportunity for those in the transgender community?

Jason: Amy, let's have you talk about this.

You've covered sports for a long time, you know this issue very well, but that's the other side of this one is that people are talking about the women's sports side of this thing along with the arguments the governor made.

Amy Donaldson: Well, as someone who covered women's sports for 20 years here in Utah, I would say it's--I think they're setting aside half a million dollars to defend this law in court, and I just think of all the things that could be done with that money for women's athletics and athletic opportunities.

And when you say one athlete, it's one female athlete.

There are four transgender athletes actually participating in high school sports now, and the UHSAA, I think the thing that's interesting, they debated this very issue with input from medical professionals and coaches and athletes in 2015, and they passed a rule that I thought really did the and.

It really said, there are these--a wide variety of situations, and these are the way we will handle each of these situations, and then we will address new situations as they evolve.

And I thought it was a really compassionate, it was a really inclusive, it was trying to be forward thinking, and it was actually pointed out nationally as one of the more progressive and more, you know, inclusive ways to handle.

What it is, it's a complicated issue.

Even--I interviewed the family of a transgender athlete and an athlete who's participating--a male athlete who's participating in track for the first time at his high school.

And one of the things that's interesting is that even they say, we understand how complicated this is.

What we want you to know about our kids is they don't feel at home anywhere.

There isn't anywhere that they feel comfortable, and so we need to ask ourselves, is that really the environment we wanna create, and does that do--and when you talk about protecting women's athletics, the single biggest impediment for women to participate and to participate on an equal footing is money.

And if we really wanna look at women's athletics, there's sexual harassment and sexual assault that is going on rampant across this country.

We could have some really amazing conversations that could transform the experience for women if we were willing to do, like you say, have an and conversation rather than this, what I think is just kind of this fear driven, you know, we have to do this this way, and I think the fact that it came on the last end of the legislature, last minute, and is a ban, that's what makes the governor uncomfortable.

Jason: Well, Rod, talk about that for just a moment, because this was part of the governor's letter too, is about the process, the--at the end of the legislative session, ban was not ever on the table until it was.

Rod Arquette: Yeah, well, I think there were a couple of things that were pointed out.

First of all, I've had a lot of people tell me, including a couple legislators, "We've been talking about this for two or three years now."

For the governor to come out and say, "Well, we never talked about a ban," I think that's been brought up in discussions before, so I thought that was a bit surprising as well.

I find it interesting as well that there were two other states that moved in this direction just yesterday.

Oklahoma and Arizona passed similar bills.

So, obviously there's a feeling in the country in some states, and I think here in Utah, that they want to make a statement, and this is a statement that we don't want to have this happen in this state.

They're concerned.

Is there a compromise?

There could be.

I, you know, this commission idea, I don't know if that will work, we'll have to wait and see if that will work.

But I think people want to make a statement, and I think lawmakers have a couple of things coming up.

First of all, they're realists.

You know, they all have daughters, they all, you know, many of them have families, they understand that.

They also look that they have county conventions and state conventions and elections.

Not all of them are running for reelection this year, and there are a few out there who I think are saying, "Well, I'm gonna vote against it 'cause I'm not up for reelection."

Those who are up for reelection, they've gotta look at the public sentiment and where the voters are, and the voters want something said, I think.

Jason: So, Boyd, this is interesting.

At the process here, where we are today.

So, this veto override will require two thirds, and it didn't pass with two thirds.

What's happened since then?

And I guess, with our House and our Senate where it appears they feel like they have the votes.

Boyd: Yeah, and it may go to Rod's point, there are county conventions that are starting up, and so I think there has been a sentiment out there that, hey, this is something that we do need to do, we need to kind of put a stake in the ground somewhere to begin that process.

So, I think a lot of this is the political angle to it in terms of they've gotta show that they're engaged on this issue, that it matters to them, that they're representing their constituents in their area, and sadly, it's one of those things that, again, becomes, after all is said is done, more's gonna be said than is done that will actually protect women's sport, and help those in the transgender community.

Amy: And I think one thing about the actual bill that they're--that they're gonna be turning to law with this override is it has some unintended consequences.

There is a section that says that no school district, or the UHSAA, they cannot allow boys to participate in a designated girl's sport.

Right now, drill team is a designated girl's sport, and boys participate.

And so they will not be allowed to compete.

They might be able to go to practices or participate in that way, but they're not gonna be allowed to compete with the teams that they've been competing with right now.

Because right now, the UHSAA's view is, if there's not a comparable sport for your gender, like football, you can play with the teams that exist.

And so those options are now taken away from the UHSAA, they're not allowed to do that.

The other thing is, the 15 private schools in this state will remain under UHSAA governance, where everybody in public school will go to this commission, which the commission is, to me, just such a weird and unusual thing.

You're gonna set standards?

I mean, I'm--I've been in the crowds and on the sidelines to hear all the horrible things men and people yell at female athletes who are really good at sports and not as feminine as somebody thinks they should be.

I think this idea that we're gonna make some guidelines about how feminine you need to be to play girl sport and how masculine you have to be to play boy sport is a weird, kind of a horrifying idea.

Rod: And it comes down, you know, you want--you hope that commission will be objective, but they're gonna be subjective.

Amy: They're political appointees.

Rod: It's political appointees, it's gonna be a subjective thing.

So, I understand the commission looking at maybe this is that and we're looking for.

I'm not sure if it really is.

It's gonna be very, very difficult.

Maybe explore it, maybe take a look at it, see if that changes, but I don't know if that's the solution to it either.

The answers here are very hard to come up with.

Amy: No one does that.

You can look at what UHSAA does, you can look at what Olympic sports do, you can look at what NCAA does, or the international community does.

You know, there's--they test hormone levels.

Right, so there's other options out there that they could look at that don't feel as weird as setting a standard for femininity or a standard for masculinity.

Rod: And it goes to a point, let me bring this up.

I've always thought that the governor is trying to be a different type of politician.

He's trying to be a little kinder, a little gentler, but in this polarized world in which we live right now, he will be attacked, and he's getting attacked in this.

I imagine he'll make a comment here in about a couple of weeks at the state convention.

It will be real interesting to see what kind of reception he gets there.

Jason: Boyd, maybe you should take a second on that, 'cause it's interesting.

'Cause a key part that's been brought up here, a bunch of key parts, but one that Amy mentioned too is this indemnification part of this.

So, I'm curious how that plays to how the governor's perceived on this, and the legislature, 'cause at the end of this day, what we anticipate is there will be an override, is what we think, and that there will be a law in place, but just give us sort of the legal indemnification to the groups aimed at--charged with enforcing.

Boyd: Yeah, so I think that's an interesting component to it, that we're looking at laws that we know we're gonna bring lawsuits with.

And granted, that happens on a lot of different issues, but in particular this is one that clearly will invite a lawsuit, so the fact that they're setting money aside that could be invested very nicely in women's sports and that will be needed for a lawsuit is one thing.

So, I think that's one area that I think will give the governor a little bit of cover.

I think in terms of the convention that Rod is talking about, I think the governor will have some--there'll be some impact there, but I always go back to, look, it's always easy to shout at your enemies.

It doesn't take any political courage to do that.

The challenge is when you have to talk to your friends in a little different way, and I think that's what the governor's trying to do, but the friends don't always wanna listen.

Jason: That's true also.

Amy?

Amy: Well, and I would say, you know, when you look across the board at, like, how could this money better benefit high school athletes?

You're talking about, you know, like, a single female student you're gonna ban, right?

And maybe, you know, over the next ten years it's gonna be in the dozens, right?

Like, but what could you do?

I've been at girls's games where I had to sit on the ground or bring my own chair, and right next to us is a men's field with concession and bathrooms and beautiful stadium, and I--what is hurting women is just not having the same investment in what they do, and you know, being able to travel, being able to have college coaches come and recruit, there--there's so many--this is so much more complicated, and you could really help.

Just putting an athletic director or an athletic trainer in every high school in the state would do more to protect all student athletes in every--physically, emotionally, and you know, if you look at legally.

There should be--that should be something.

College programs don't run without a trainer on the sideline.

Most of the schools don't even have access to a single trainer.

Rod: But I thought Title IX protected that and answered some of those questions.

Did not Title IX address many of those issues?

Amy: But you have to sue.

Well, it addressed some of them, but you have to sue.

And so women have sued.

I've covered all these lawsuits.

I mean, look at Lindsey Van, and her companions, the ski jumpers that had to sue to get in.

So, there are laws that protect you, but you have to challenge them.

And so you have to have a lawyer willing to take on the case, and again, it's always--there's nobody's willingly saying, "Oh, let's do the same amount of money in this sport as that sport, right?

And it's--we know it's not right, but it persists, and so.

Jason: I wanna see how this leads into, Rod, since you brought it up, so we're getting-- we're in election season now.

People are going through, we've just had the Republican caucuses, we just had the Democratic caucuses.

I wanna talk about what's happening there, because it's just so interesting in Utah right now.

The Democrats met this past week, and what was interesting is some very high profile Democrats, even there, are saying, well, I'm not sure we want you to support the Democrat.

We want you to support Evan McMullin.

Rod: Sad commentary on the Democratic Party, in my opinion, here in the state of Utah.

If they can't field the candidate or they're saying we're going with this independent-- Jason: Well, they do have a candidate.

Rod: They do have a candidate, but they aren't going to support him, and I think--well, two of them, McAdams and Wilson, have already come out and said, you know, "Let's think about Evan McMullin, because we think he has the best chance against Mike Lee and not the candidate we have already."

Sad statement on the state of the Democratic Party here in the state of Utah, I think.

Amy: Don't you think it's also a sad statement on why a supermajority is not good for the voters?

It's not good for the political system in general.

Rod: Are you talking about redistricting?

Amy: No, I'm talking about when you have a supermajority, then people don't think we need this ideology versus this ideology in the race, right?

Because there's the one can never win.

I mean, they're saying a Democrat can never win a statewide race, so we're just giving up on that ideology that we support, that we say we support, and we're just gonna try to game the system a different way, right?

And that's, to me, as much an indictment of what their party state is, but also what this idea that a supermajority, it's very toxic.

It's not good.

Boyd: Well, and it's not just in the state of Utah.

You look at California or Oregon or Washington, and you can't blame the Democrats in California for having the supermajority.

It's not their fault.

Republicans in California have to put up a better candidate and a better argument in terms of what they are for.

They haven't done that.

Here in the state of Utah, the Democrats have not put up the argument to cause people to be any different.

If I were a Democratic strategist, I would look at the state of Utah, because it is a center-right to center-left state for the most part, and I think there are arguments to be made there, but you have to make the case.

And again, so it's not California Democrats that are the problem in having the supermajority in California, that's a Republican problem.

Here, it's a little bit different.

Jason: Let me ask you about this comment from Salt Lake County mayor Jenny Wilson, which was part of this caucus, and just kind of see how that plays with what you just talked about, because she got to Evan McMullin specifically.

She said, "I'm well aware Evan McMullin would not be as good as a Democrat in terms of my values and what I believe, but I expect he would invite us into the room when he's making tough decisions.

That's not an opportunity Mike Lee is affording me right now."

How does--so, how's that received, and how does that carry forward?

Boyd: Yeah, so it's the same argument, and it's sort of this idea of what are we against rather than what we are for.

And if you can win elections based on what you're against, and we're seeing a lot of that already in this race in terms of people saying, "I'm against, I'm against, I'm against."

You can win an election that way, but you can't lead anything that way, and I think some of the challenges you'll see in this race, you've had Evan McMullin say that he would not join either the Democratic Caucus, or the Republican Caucus in the United States Senate.

Currently, it's a 50/50 Senate.

If you had the Senator from Utah not part of either caucus, that means we would have no committee assignments or representation there.

It could put--keep Chuck Schumer in the chair as leader of the Senate.

So, there's a lot of very interesting ramifications that are coming out around all of that, but I really think in this race, whoever gets to the, this is what we're for, these are the principles I believe in, these are the policies that go with it, and here's why, I think that's the winning argument in this case.

It is not Democrats being against this, so we're gonna be okay with an independent, nor is it okay for a Republican to say that we're against this.

You know, you gotta have a vision of what you're for.

Amy: But don't you think it's even just a matter of trying to get in the room to be part of the conversation?

Again, when you have a supermajority, they don't need to consult with you.

And what Mayor Wilson is saying is, "At least he will invite us to the table."

So, maybe ideologically--they're not saying we have to agree on everything, they're not even talking about, you know, being ruling, but it's being part of the leadership, being in the room where it happens.

She's saying, "He will invite us in."

And I also think that in Utah you hear a lot of independents, which I fashion myself as, saying, "We don't want-- we wanna look beyond the party.

We don't wanna look at the letter behind your name.

We wanna know what you think, and we wanna know what you're for, we wanna know what you're gonna do for us, right?

But I still think so many of us default to that letter behind the name, that what Evans's candidacy is gonna test, one of the things, it'll test a lot of things, like you say, but one of the things it's gonna test is do we actually care about that?

Do we actually know, you know, as I've watched the Supreme Court hearings, I would like to know how some of these senators feel about those issues they're asking the questions of.

Boyd: I think to Amy's point that this is a--this is not an independent, a Democrat, or a Republican problem, this is a we the people issue.

And unless we're willing to look beyond the letter, unless we're willing to say, live up to the principles you profess to believe or that I profess to believe, the big question is what are you afraid of?

I always ask the Democrats, what are you afraid of?

I ask leadership in-- on the Republican side, what are you afraid of?

And what they're afraid of is losing power.

Amy: And what--is it Chuck Schumer being in charge or Mitch McConnell?

That's what it's afraid of.

Rod: I thought the comment from Wilson was interesting.

Is there any guarantee that McMullin will in fact invite her into the meeting?

First of all, and to Boyd's point, if he does not caucus with either party once he's in Washington, he can be with them all you want, he'll have zippo power, zippo influence in Washington.

So, you can invite her in all the time, he's not gonna have any power.

Amy: He still has a vote in a 50/50 Congress, a 50/50 Senate.

Rod: Yeah, but if he's not caucusing, he's powerless.

Boyd: The committee work would be-- Rod: The committee work won't happen.

Jason: One more point on this.

It's more about the timelines and how this is gonna impact, Boyd, this year.

You have to affiliate on March 31.

This is a change, it's a little earlier than it has been.

You know, this is--they got kind of this party raiding.

There's a couple of quotes, you know, names for what people said was happening where someone would say, "I'm gonna affiliate as a Republican just, so I can vote, maybe just who I like, or maybe who I think will lose."

I don't--you got your choices there, but that's what's happening this year.

March 31.

Boyd: Yeah, it's March 31, and if you look at the numbers, there's been a lot of talk about, you know, changing party affiliation.

There hasn't really been that much movement.

The only movement that's really happened is a little bit more towards the independent, but not a lot moving left and not a lot moving right either.

Jason: To our viewers, though, there's a deadline there to affiliate.

Amy: I think if you believe the supermajority is locked here and a Democrat can't win, right, or can't even be competitive, then the party--then the race is really won at the convention, you know, or at the primary level, so you have to decide for yourself, like, do I wanna participate in that?

And as a Democrat, you can--anyone can participate, but if you wanna participate in the Republican side, in the supermajority side, you have to affiliate.

Boyd: And I will say that the Democratic nominee or who will likely be the Democratic nominee for Senate, Kale Weston, is making great arguments.

He is actually a very good candidate and has a lot of important things to say, so I do think there is--something to be said about, listen, to your point, listen to the candidate and vote for you actually want to win.

Amy: And to me, he's one of the, like, you talked center-right, center-left, he's right in there.

Yeah, he's absolutely in there.

Jason: One of the interesting points of this, too, 'cause I want to get into what's happening in DC on our new United States Supreme Court.

As we polled in the past, people in the state of Utah, and even in presidential elections, the Supreme Court pick was one of those things Utahns said they were interested in.

Rod, I want you to give us some idea of the flavor of what's happening right now on the proceedings, particularly through the lens of our delegation.

Rod: Well, I think she'll be approved, and I'm guessing Romney will vote yes, Lee will vote no.

That would be my take on this right now.

And it was funny to watch the proceedings over the last several days.

Republican, you know, it was interesting.

When Democrats attack a candidate, they're called passionate.

When Republicans attack a candidate, they're called mean and brutal.

I mean, I find that very, very interesting.

But I don't--we didn't get many answers as to where she stands.

I mean, Senator Lee kept on pushing, what is, where do you stand, what is your judicial philosophy?

And she still hasn't articulated that as of yet, and she, you know, she may be, there may be competition.

They were telling her, "Don't go there, 'cause that's just gonna open up some problems."

But I--she'll be approved.

Manchin came out today and said he'll approve, and so it's pretty certain that she--I think what Schumer would like to see would be to see a couple of Republicans come over, so he can claim it's bipartisan.

He may get three.

He may get Collins, Murkowski, and Romney, and then he can claim it's bipartisan.

Amy: I mean, I think there were good question and answer exchanges on both sides and bad, really bad ones.

And I think the bad ones have gotten worse, and social media has made them famous, and so everyone's focusing on that, and I--I mean, you know, reading a children's book, and some of the questions have been so bizarre.

And some of the questions, like Senator Lee's question about, you know, how do you feel about court packing?

Well, she doesn't decide court packing.

I wanna know how Senator Lee feels about court packing or how Mitt Romney feels about-- Rod: Well, that's pretty obvious, I think, how he feels about court packing.

Amy: But you see what I'm saying?

Like, it's their responsibility, so let's ask them those questions, let's ask our Senate candidates those questions.

So, for me, it was frustrating to watch because we're supposed to be learning something about the candidate, and some of them did not allow it on both sides.

Boyd: And I agree with Amy that there was performative stuff going on both sides to get their social media moments and what they can raise campaign cash off of, that happens every time.

There were also some very interesting, very important conversations.

I actually thought the first round with Senator Lee and Judge Jackson was extraordinary.

They were talking way over all of our heads, but they were talking about the meaning of the Constitution, and it was this incredible, proper, high level back and forth about the meaning of the Constitution, and they came to an agreement.

I mean, it was really interesting to watch.

Amy: Well, and even Lindsey Graham on the Gitmo detainees.

I actually learned some things there, I thought it was a really interesting exchange.

Now, it devolved into an absolute nightmare.

Boyd: And I think in the end one of the things we have to remember on all of this, how political this has all become, the reason it's become so political is Congress is not doing its job, so it defers and gives the executive branch power, and every president of every party will take that power and use it by executive order.

And as soon as they act by executive order, somebody files a lawsuit, and it goes through the courts, and it ends up at the Supreme Court.

So, that's why this is so contentious.

And we should remember one Utahn has sat on the Supreme Court, George Sutherland.

The day he was nominated, he was in England giving a speech, and before the sun set on that very same day he was confirmed unanimously to the Supreme Court.

Rod: What a different time.

Jason: Boyd, will you give us a little history on that?

'Cause people don't realize based on recent history, there were times when you'd have no nay votes.

It was unanimous in some of those cases.

You look at, like, the Scalia days, where it was a bipartisan choice.

What happened?

What's changed?

Boyd: It's the politics, and I think it is that, I think it's the fact that Congress isn't doing its job, and so the executive branch is all too happy to take all of that power and use it, and again, any time a president acts by executive order, somebody's gonna file a lawsuit, and that's why all of these things get so contentious.

And so then suddenly the Supreme Court appears to be far more important than it actually is.

I thought it was also very interesting, Senator Ben Sasse from Nebraska, he actually spent most of his time calling out all three branches of that, and I think there's something to learn from that.

Amy: I mean, if Congress wanted to put Roe v. Wade in code, they could do it, right?

Like, there are things they could to do solve some of these problems that they're like, they act like they're just here at the mercy of everyone, and I'm so sad.

Boyd: Just do your job.

Rod: You brought up the past history, I think we would all agree it probably started with Bork, and since Bork it's been, I'll get your guy, I'll get your guy, it's this back and forth.

And what I thought was sad is that the New York Times last-- a week ago came out with a very interesting editorial on America and free speech.

It was sad that the judge could not express her opinion without causing problems, maybe within her own party or with the American people.

That's what sank Robert Bork.

He expressed his opinion, and he wrote about his various opinions, and a lot of people used that against him.

And it would be interesting to see if a judge could say, "Here's what I think a woman is," okay, without, you know, the dark money coming after like crazy.

And I think that's where we are, and that's sad.

Amy: But we're all journalists, and sometimes I don't wanna know how a judge personally feels.

Their job is not to do what they personally think is right or wrong, there job is to apply the law.

And so I don't care how you feel.

Rod: But they always say, "I take my personal feelings aside and look at the law."

Okay, then what are your personal feelings?

If you're gonna set those aside, and then look at the law.

Amy: If you know any judges, and I'm married to a lawyer, so we know a few, they don't even wanna tell you in a personal conversation.

They train themselves to set that--it's such a deep seated part of you, why would you go into a hearing in Congress and then just start saying, oh, let me give you my two cents on all this.

They're not us.

Come on, Rod.

Jason: Sadly, that's gonna have to be our last comment there.

Very interesting conversation though, appreciate that.

And thank you for watching the "Hinckley Report."

This show is also available as a podcast on pbsutah.org/HinckleyReport or wherever you get your podcasts.

Thank you for being with us.

We'll see you next week.

♪♪♪ ♪♪♪