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SCOTUS, DBCFT, and Hitler's Highways

Update: 2017-02-01


Sarah, Ezra, and Matt talk about Neil Gorsuch, a controversial tax reform idea, and Nazi infrastructure building.

Following script is auto-generated by Speech to Text Technology:

we just want a bike club w your personalized Wine Club now called wink try when to get twenty dollars off plus complimentary shipping me that wry wink dot com slash weeds weeds us a bunch by nature a box near the banks offering fifteen percent off your first order when either nature or backstab com slash weeds and see sell the S E E S O dot com use a primer coat weeds for one month of free comedy the following podcast contains explicit language the registering every time the hello welcome to another episode of the weeds boxes policy podcast Network I met Yglesias time by our regular superstar cast Sarah cliff Ezra Klein said action packed week we already do second we'd clearly did an episode earlier to get her things as new as yet no thank you if you would not listen to the earlier one I really recommend going to the very end of it and listening to what Doris says about America and our world refugees historically it's I think a very beautiful moving message and now we'll talk about the beautiful moving topic of destination based cash flow tax to get back to like what the weeds is about and talk about really wonky weird things that is is working his way through Congress we're going to talk about unimportant white paper about Hitler and first the best way to curtail I've ever seen it's pretty great I mean if you think about the pros and cons of Nazi ism Alisa brought ass this white paper title but many times before that the Holocaust a lot of people suffer get everybody some Jews mostly though it's of people let's talk about the Supreme Court we have a new Supreme Court nominee and that Trump has picked Judge course it's to be the next Supreme Court justice and he comes to us from Colorado and ten Circuit Court of Appeals he has written an entire book on assisted suicide which is quite unusual for someone comes to Supreme Court audience that his surprise reveal he's against it in his book on assisted suicide are really suggests isn't quite strong views on abortion life begins he was very involved in one of the more prominent cases of the past two years the Hobby Lobby decision he was one of the judges who made the decision was upheld by the Supreme Court that is a violation of religious liberty is he's been involved in another case that did not make it to the Supreme Court that even challenge the accommodation he doesn't think that the Supreme Court went far enough in accommodating religious liberties and Hobby Lobby so you have his jurisprudence and then you also have what's happening in the Senate in terms of the political battle were about to see about how Democrats take Ryan his nominee after saying Republicans deny hearing to Merrick our land and I think are really seeing a huge range of opinions develop among Democrats ranging from Jeff Merkley in Oregon who says even before we knew who was being nominated that anyone should be the Buster that is not transport anyone some other Democrats I may think including Jean Shaheen your colleague boxes just signed talked to said that he shouldn't go the same route the Republicans are going and I think they are facing down a choice about how they want to handle this that could have pretty long reaching implications for this session of Congress and really stretching beyond when Democrats may be back in power I feel like this takes on this are actually super duper low and the people are just arguing about it because Arden ride so like if Democrats try to filibuster they will probably fail to to just get that number that they need because this is enough vulnerable Democrats out there if they succeed in filibuster and Republicans will change the rules and bicycle be on the bench if Democrats declined to filibuster in order to preserve the filibuster to use later which is like one theory they have then when they try to filibuster later Republicans will change the rules and the judge will come and I think that the smart thing to do is for every Senate Democrat to consult his pollster and his campaign team to look in a very serious way and what he thinks is going to help him or her raise money and win reelection and do that course which is an interesting nominee because what you see here is Donald Trump fulfilling his side of the deal to the Republican Party says he got elected he's been doing some things Republican Party for the most part would not be their top priorities maybe they don't oppose him in all cases but they don't love search on the way the refugee and immigration ban was carried out they don't like him running around talking about immigration they did not really intend for their top priority of the new administration to be negotiating over how many people attended the inaugural but what doll Trump promised to heave the Republican Party was that he would nominate a conservative justice to fill Antonin Scalia seat and he has done that course which is a judge who very well could have been the nominee of Marco Rubio very well could've been the nominee of Ted Cruz very well could have been the nominee of Jeb Bush this is what you would expect he's quite conservative interesting guy very smart very well liked in fact Neil kuch L who's the former solicitor general for Brock Obama came out and said Of course it is a great guy he's a brilliant mind he humane person I think the worst people in the world are the legal academics who come out of the woodwork anytime somebody nominates like a smart judge for like an enormously consequential decision that will make like life and death decisions for millions of people and comes out with the op ed be like stop complaining about the practical consequences of this guy for your life the important thing is he has good journal articles like it's I like of all the points of view on this leg from he's good he's horrible you should filibuster they all make sense of this with them on like except for the locales like I think that is awful like it makes my skin crawl like I What the fuck is he talking about it D It's so crazy thinking factor is that I do not have the same reaction that you have to add that I understand being able to see like at least understand his jurisprudence understand why he is making these decisions that he's like I read it as saying like this is not unlike off the walls a I don't know to expect as it is symbolic as soon as I could do scores I get the politics of it may not be perfect but I have you on this I think health is actually bridge into the discussion of what comes next which is I assume consul is writing from the perspective of among conservative justices are Republican president might have chosen and he thinks Gore six is a good version of that right that I think he probably be disappointed Hillary Clinton had chosen course that although I can speak for Coachella and interviewed him on this but what I do think is an important backdrop here's the importance of one winning elections but just party politics and power in that so I'm seeing a lot of debate about Merrick Garland and Don Johnson who was a judge nominated by Obama not the Supreme Court for I think is an appellate court but whose nomination was filibuster and held up I think is ten months and she ultimately never got on the bench she wrote a piece saying that the Senate should refuse to confirm anybody until garlic is put on the bench that there should not be a confirmation until Garland goes on and bits and piece it makes markets but I think people have slightly almost forgotten what happened in two thousand and sixteen which is that Republicans controlled the set and they actually had the power to just say no and I think folks are not fully absorbing that's actually pretty different scenario now I think I think there is I don't mean that people like literally don't know how politics works but I think as if in that Obama had power and the Democrats should have been able to get Garland on the court right now Democrats have no power the only interesting question is should is it worth it for them to go to war over or such and his judicial philosophy right because in many ways there are probably places that he has made pretty unpopular decisions and see the filibuster blown up over that is a good messaging point is should they be doing and I think this would be the strongest version of the argument should they be doing to Donald Trump what Republicans did to Brock Obama which is to make really clear he is governing from the far right that his governing alone he is making Washington an angry bitter polarized place that people are upset and just creating a kind of sentiment shockwave swear in whatever happens of course it's confirmation people hate the whole experience of it as such opinion ratings go down and the people who tend to suffer for that are the party that holds the White House I think that's the argument for going to the wall on this it's not the corset walk should be stopped from being on the court because I though that is going to take on the filibuster or it is going to nominate someone else so I can I think my answer this is actually changed in the wet like twelve days of the Trump administration where twelve days ago I would've said No don't cut of all pick your battles but the last few weeks have been pretty interesting in seeing it feels a little side has been shockingly effective unlike excited to be fucking angry right now I have been surprised that this is one kind of microcosm example from Obamacare body you have this instance where the Trump administration announces they're not going to advertise for open enrollment anymore and a lot of people flipping out a lot of like meltdown logistical challenges and actually pulling it off the air within twenty four hours that they reverse the decision they decided they were not going to fight this battle using like some small victories on immigration ban on using a lot of people who really want to go to rallies who want to like do something it seems like a moments when Democrats are going to be rewarded for like really going to the wall politically that I am that there's a lot of desire for that long term consequences of a clash or on blog and thinking about like the next two years ago ending election cycle and twenty eighteen like then as they lay out let's go for like harness this moment when it actually seems like there is some advocacy and like there is a group of people a very large group of people who want to get riled up by this I feel like there is no wayy to hear this a problem that we have hit upon in judicial confirmations which is that increasingly over time senators have become reluctant to vote yes for judges who they think will be bet which makes a lot of sense to me like I'm not a senator's so u can juz ask me like separate from my How should people vote like do you think you are such will be a good judge the answer is no right like I didn't think incidents like that's common sense you just run around you ask me but no like I just disagree with that guy so then if I magically became a senator would be hard for me to say to angry constituents were like Yo this guy's a bad judge but true he's a bad judge but I'm going to confirm him anyway because in a hypothetical future different circumstance I would want a different senator to confirm a judge who I thought we were really good the bad stuff but for long time like that was the norm to Antonin Scalia was the unanimous vote the way and then norm has been eroding and you saw it very visibly with Sonia Sotomayor nomination who you know it was a Democratic judge replacing another Democrat judge that was nothing consequential happened in American constitutional law because she came on the bench Obama had a HUGE said a majority at that point very high ratings and she does not like shockingly few Republican votes for the footy good reason and that like Republicans and want to vote for a Democrat and I just feel like we're getting to the bottom of that well we like the filibuster has been of Roe did rightly for like everything except Supreme Court judges land legislation yes and no rain for Friday wanted to like if the pimp on here was it was just like everybody hold your hand if you thing your courses will be the judge like there aren't sixty senators who think that and it's like oh man he can be seated and image with commas like why we change the rules of the party with more votes wins I didn't get that like that's all sensible right like that's just how it should go it's the coral in nomination that was interesting in America it is not rare for the president and the Senate majority to be in different parties and so like can you fill Supreme Court seats in the second stance is the answer Mitch McConnell posed was no you cannot and Obama tried and completely failed to like deal with that in a sensible way and that just strikes me as like the problems open for America which is like we'll see what happens but I think it doesn't matter what is great but finding great wine is kind of tough and that I can tell you all better sponsor club w really easy when it's personalized your palate delivered right to your door so called abuse now called blink spelled W I N C It's a new name it's improved love cabbage importing is still the same amazing wine company introducing you to new wines that you're gonna love they work directly with winemakers that kind of middleman get to a great price they send the wind right to door it's affordable it's convenient answer kind of quick quiz about your palate is what you say like in terms of tea to coffee some other basic stuff like that they recommend some one's for you you say you know I want such and such many bottles they send it to you to drink the wines it's affordable it's personalized and you can rate the wines that you have said the recommendations get better and better and better over time and see you getting the kind of like high end experience beginning with affordable bottles that you can join the couch watching TV is really cool so weeks offering our listeners twenty dollars off right now when you try winked at coms like weeds they cover the cost of shipping I see that fine line personalize your palate right to your door trying to get twenty dollars off plus complimentary shipping right now try week that calms the Swedes its Tri W I N C dot com slash wounds I want to maybe make the case not for political strategy here but for why there is something fundamentally problematic happening see go back to the Merrick Garland situation and what you have there is Barak Obama is facing down a Republican Senate and so he comes to the idea that all go for with a judge that everybody agrees is a compromise Jace still on the left side of action but if that had been the Obama with Democratic Senate Republicans would've been thrilled like Meryl would be the best for a catch specifically said when there was a Democratic Senate and Obama was filling judges slots Orrin Hatch was like Oh man this is terrible he should nominate him as the go so there's that then Mitch McConnell does not go forward with the argument we think Merrick Garland is a bad touch he goes for with the principal like the bullshit principle that no judge should be seated in an election year which functionally because election years actually happen every two years it has happened when presidents are elected means that most of them were judged to be seated half of the top of I think if you just take that principle serious so okay that's where we are and that principle obviously Holtz so what happens in the election is the Democratic wins more votes and Democratic Senate candidates won more votes and because of how geography pickle jar he works in America that does not lead to them having power he neither the White House or the Senate but nevertheless what happen in the election is more people voted for Democratic ideas and I think it's a pretty reasonable principle for Democrats to adopt that VAT just taking the election results seriously requires your compromise candidate that not working I think what a lot of people to work backwards from outcomes this guy will probably be seated as Matt says so why really fight it but I think as a principle it should be said I think it is meaningful that most people did for not Donald Trump and most people voted for Democratic Senate candidates and that responsibly be good to be putting four for the Republican just majority of the Republican empowered majority to be at least making some impulse in that direction to be nominating their own form of a mare Carl and write something still on their side but who is more less calm my tummy which is not what course of this course which is you know if your trying to replace and in Scalia he is the replacement Brandon scaly his eight I'm sure lovely guy very very clearly brilliant guy but a quite far to the right judge and I think is a fair message for Democrats to put Ford that the election results matter they feel is their job to represent the majority of people who voted for them and their candidates and that they want to incest not that this guy's a bad judge but he's not a compromise judge in any sense of the word and they'd be happy to vote for someone who is more of a compromise but but but not for but not for this guy and get a little bit away as Matt says the idea that you should vote for judges on this sort of abstract base of qualification which I just I I sort of agree people should be qualified but that is necessary but insufficient condition for them to be supported it's quite possible the treatment of another seat to fell like let's say he did what's the motivation the Republican side to go Canada I just say it's just what is I actually think the question of because the outcome here in all versions of its present course it gets on the bench the question of what is the right argument to make and I actually think I think this is true cos alot of things run out jump I think Trump is an unpopular president who won fewer votes than Hillary Clinton and I think that Democrats should actually demands a price of cooperation that he compromises that he acts like somebody who has to win over the majority I don't think the I think that one sort of danger for Democrats will fall into like the Fall into Fall like it is a fascist and that's why you can work with them on anything which I don't actually think is a really I don't think is a fascist and I don't think is a reasonable message but I do think it's reasonable message to say he won fewer votes he needs to come to the middle like that that is how this works and they're not going to just get votes for nothing and so far I mean there's not been a lot of tests of this yet but so far I don't think there's been much of that he is unlike both Brock Obama and George Dubya Bush has nominated zero Democrats to his cabinet right Obama had Bob Gates he tried to nominate and Greg Bush had made that up there were a lot of people considered compromised players there's been no legislative outreach Donald Trump that has been meaningful he's been extremely partisan from day one here and I think it is a totally reasonable message has hit like this get like this guy won fewer votes if he wants any help in Washington that such as fawn instruction he's got to act like that he's got to act like there's a majority here that he seems to keep in mind but I would say you know in terms of like the fatal is a menace right that like when you're sitting in injection chair and part of the issue here is that because of geography in the map and so on so forth you have a bunch of Democrats representing Missouri West Virginia Indiana North Dakota or up for re election in twenty eighteen and those are states where Donald Trump is popular and where he did win the one question Schumer has to ask and everything is which are the issues where I'm trying to hold my caucus together and which are the issues where I'm going to let those guys develop some distance from the party leadership right or in which it's just inevitable that they're going to and I think that we've seen very clear signals that replacing an iconic conservative Supreme Court justice with a younger or conservative Supreme Court justice who is academically well regarded and publishes books under university presses and gets good meal Kajal op eds is just like that's one of the topics where Claire McCaskill and Joe Manchin are going to take a dive because they obviously have to take a dive on something right and that easy in some ways a good reason for Schumer to take a relatively extreme message on this because no matter what he says they're going to take a dive and cooperate with Trump so it's like if he says something that really fires up the Democratic base and they're like they're really enthusiastic about it's like okay Democrats are fighting for me actually the seven Democrats take a dive in some ways that like accomplishes what everybody wants out of this bike down trumpets the judge she wants Claire McCaskill gets distance from the leadership the base gets to see their leader fighting for them where is like trying to message it in the most reasonable way things go and up to satisfy every day reminds me of the nomination to me was like Obama going back into the bag of like they had a Barak Obama political tactics that he he largely dumped but that he employed a line in twenty live in he employed with the Garland nomination and he employed around the intelligence community disputes about Russia and Hillary's email server which is where Obama would frequently say OK we have intractable political disputes in America and no higher authority we can't we can't dissolve Parliament and hold a snap election the way you could in Canada so what I'm going to decide is that if I can get like reasonable right of center newspaper columnists to say that my position is more correct and the Republicans are just being plain on reason of all like That's my equivalent of appealing to a higher power like look at this David Brooks column and he tried it on the debt ceiling he tried it on Garland he tried it on I'm co me and like these are universally like the low points to me of the Obama administration where he stakes out a position that his own supporters will not support so that he doesn't even have like a fight on his hands and to me that just like what Democrats need to do here is like not hold the line not hold him up not block am but just the Democrats who represent blue states need to articulate what their constituents feel about this I feel very conflicted on a political premise though they be stated to be getting about twenty eight and here's why so twenty team is very bad Senate map for Democrats well you know what else was about Senate map was two thousand and ten for Republicans that was the insight collection from all four George P Bush should have a window for they were looking likely to him in a conceptual way they were defending more seats it was it was not enough for them and the way one was not being really moderated and taking dives and a going out in a way that sure their constituents they were the most reasonable folks whom they won by firing up the conservative base and also by demoralizing the Democratic base and so when I think about your Joe Manchin to come in how schools and look Joe mentions in this state that is very very very pro from so he's he's he's a sort of a different case in some basic way they should not be a Democratic senator from West Virginia um but you know what I what I look around see right now is that you have is as Sarah noted a liberal base that is oriented towards being activated and wait I've never seen before like this holiday like protest is a new punch people want to come out they are forging new social ties there forging a new relationship maybe with how they involve an invest in politics a lot of people want to produce a Supreme Court justice and two I really think this is true this is how liberal stance from the truth is course it is a very conservative touch and I'm not sure that it is the wrong ground for Claire McCaskill to fight on to be like I think we should have compromise nominees who are not extremely far to the right on every single issue that you can imagine and are going you know continue to push the court in this direction I mean this is replace Scalia said the overall balance of court decisions will not change much but against the hypothetical baseline of the person who won the most votes nominating Judge it would change quite alot and just the idea that I think Chuck Schumer still has and I don't know I'm not talking about this but Democrats used to win elections one way in a less polarized time and it's not clear to me that way is wrong but definitely it seems to be a major problem for Democrats in two dozen sixteen was the base was not that excited about the candidate and that part of the midterms for the singular problem Democrats have a survey tends to not be that excited it isn't obvious to me that the pathway to success even in more even redder states is through a strategy that demoralized base now I really like I do not have high confidence about this opinion but I'm questioning it in a way that I'm questioning this are this argument I think I played in four years ago when that seem more like what Democrats did in six and Republicans did in two thousand to say that they have had sort of worked and there and a candidate who like has probably been like one of the most outspoken conservative judges on the can issue that Democrats really care about birth control and reproductive health rights battle we've had over the past six years now through the air around the Klingon its funding in this idea of war on women that like he is someone who has staked out positions far far too dated to the right of where the Supreme Court went so am if you remember the Supreme Court decision in favor of Hobby Lobby Beasley had accommodation for religious nonprofits where they would send a form say I want to buy birth control and the government to take things over there and provide birth control people wanted it he was one of the judges when that case I was challenged again to a circuit the neocon vision isn't good enough we don't want to send in this form because that makes us complicit in supplying birth control oi he adds that Supreme Court decide not to hear the case again he was one of the people who really urged them to who thought like yes this does not go far enough so it seems again in print in the particular case of course that this is an issue that I think has been quite successful for groups like Planned Parenthood like liberals were you do generally see a lot of support for access to birth control a ton of support even among Republicans for having access to contraceptives more contraceptives I'm it's not really they can issue that Paul rises as much as I like abortion might so it seems like you when you have Claire McCaskill is like Oh I can totally see Lake Claire McCaskill going like super hard you know at that issue know she won against a kid who was a really geeky Journal of the early stuff that he is he almost seems on this particular issue or candidate really well suited to the type of um you know campaign you're suggesting I just wanted to introduce into it the debate like a distinction between what Duke or to quote the Democrats but what you mean like the party's leaders and high profile representatives from blue states do and what is like literally the entire Democratic caucus to be easy it's worth looking back at the legislative track record of Obama's first two years right and there's bill after bill after bill from the stimulus to Dodd Frank to the public lands bill to the S chip expansion the FDA regulation of tobacco that like Mitch McConnell opposed and the majority of Senate Republicans opposed and as a caucus they engage in delaying tactics to make it painful to pass which several Republican senators voted for generally almost always the Republicans from Maine who felt themselves very vulnerable but sometimes Republican members from Ohio New Hampshire you know just the more vulnerable often took a dive and those kind of bills which was consistent with the message that like quote on quote though Republicans were fighting Obama and that I think liberal activists like people who complain on the internet whatever will end up doing themselves a disservice if they set the bar for Democrats are opposing Donald Trump at Jon tester is opposing Donald Trump like the guy is way out there on a limb in those super red states are just like they are gonna take a dive and some stuff that Trump does when it's not particularly can I do think just to make the argument and not sure which one is up on but one the Supreme Court one thing about all those bills is a real or file and what Mitch McConnell
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SCOTUS, DBCFT, and Hitler's Highways