The “Great and Unmatched Wisdom” Edition

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S1: This ad free podcast is part of your Slate Plus membership.

S2: Hello and welcome to the Slate Political Gabfest for October 10th 2019.

S3: Great an unmatched wisdom edition that could be every edition of the gab fest in my view. There is only great and unmatched wisdom here. I am David Plotz of Atlas Obscura providing the great wisdom is John Dickerson of CBS is 60 minutes from New York.

S4: Hello John. Hi and providing the unmatched wisdom is Emily Bazelon of New York Times magazine and of Yale University Law School from New Haven. Hello Emily.

S5: Hello Pam. What kind of wisdom are you offering.

S6: None. I don’t have any wisdom. I’m like you know how in the Socratic dialogues are that the Dumbo who ask questions and that Socrates just kind of demolishes that’s me.

S7: That’s my role.

S6: Not who never his name is My name is like anaphylaxis anaphylaxis anaphylaxis shock.

S8: On today’s gabfest The president is obstructing the impeachment investigation will it cost him then the Supreme Court kicks off a big big term with one of the biggest gay and trans rights cases ever. We will discuss that then should Bernie Sanders end his campaign because he had a heart attack last week. Plus we will have cocktail chatter end my friends we have such good news to continue to announce about our conundrum live show so as we mentioned last week we’re doing our annual conundrum live show in Oakland California the Fox Theater on December 18th. You should go to Slate dot com slash live to get tickets and get more information again in Oakland on December 18th. And we also seek your conundrums. We can’t just manufacture all those amazing conundrums out of our out of our feverish little brains. We need your help. So if you have had a dilemma about fishes and trees about about the best way to spend a billion dollars about whatever it is you should tweet us with hashtag conundrum your conundrum or go to Slate dot com slash conundrum and there’s a special Google form you can fill out there and send us your conundrum. So Slate dot com slash conundrum or to do it by Twitter hashtag conundrum and send it to us at Slate gabfest. Also one more thing our friends at Future Tense have a new book. It’s an anthology of original science fiction about the future. It’s a great set of stories I have it at my bedside. I’ve been reading it. They are celebrating that anthology with a terrific series of free events in New York D.C. San Francisco and Phoenix. For example here in D.C. They’re going to be at the Smithsonian Arts and Industries Building cool building on the evening of October 20 seconds ago to Slate dot com slash live to get more information about that impeachment. Impeachment peacefully along this week. The most dramatic moment of the week. Well except for the incredible furor about the Syria President Trump’s portrayal of the Kurds in Syria which is also implicated in impeachment which we’ll talk about. But the most dramatic moment and probably the most important moment was at the last minute. The Trump administration barred EU ambassador Gordon Sunland who is central in all the Ukraine chicanery from testifying to the House of Representative and then issued a letter which was a blanket refusal to cooperate with the impeachment inquiry saying it was sort of improper. It was an improper abusive inquiry so Emily On what grounds is the administration refusing to cooperate. And how is that going to change the progress of impeachment is it. Are these grounds legitimate.

S5: It’s an amazing letter. I can’t find a lawyer who I respect who thinks it’s legitimate. The argument is that the president gets to decide whether an impeachment or inquiry by Congress a supposedly coequal branch of government is warranted or not. And the president thinks this one is coming out of partisan bias. And so he’s not participating in it. He has put a full halt on any cooperation with the impeachment inquiry. And so this is a kind of classic constitutional crisis in which you have not a completely clear set of instructions or at least not a detailed set of instructions in the Constitution and two branches clashing over what it means and how to proceed. And no real clear path forward.

S9: Emily you’re. It is quite true that the Constitution basically leaves it up to the House majority and how they want to structure impeachment but in the letter it says the president the sort of first point the first point in the second paragraph of the letter said that it denies the president the right to cross-examine witnesses. Now it doesn’t mean cross-examine the president wouldn’t do it himself. That presumably means the president’s lawyer the house never allows the president’s learn to cross-examine witnesses as far as I can tell.

S5: So I think this is a confusion about the different stages of impeachment. Right. So in the trial in the Senate then you could expect to be cross examining witnesses as the party you know under the under the gun so to speak. But in the house that’s not what an impeachment proceeding is. It’s more like the indictment or charging stage of a criminal case although of course it’s not a criminal case at all.

S10: Right.

S9: And so you’re being overly you you’re being overly generous when you say it’s a confusion because of course they know that they know that they’re that you don’t cross-examine witnesses in the House and that there’s a procedure here that’s been around for hundreds of years. And so it’s what that letter seems to do is say basically the House is not following the procedure and then misstating what the procedure is for the purposes of muddying the waters.

S5: Absolutely. I mean I think the letter is all about muddying the waters and making this a partisan political fight as opposed to giving any legitimacy to the very structure of the House’s proceedings. And politically speaking I see why Trump is choosing that path. It’s the path that he always chooses. It will work with his base. It’s not clear that senators Republican senators will object. I mean so far they’ve gone for basically everything he has wanted in this arena. And it raises this sort of trickiness of delay and what’s supposed to happen when so the Democrats could argue they already have a lot of evidence that Donald Trump should be impeached. But on the other hand they don’t want a rush. And so then if the proceedings continue along but they don’t yield any new exciting evidence because none is forthcoming from the White House then that could make the public think the case is kind of eroding over time. I think the Democrats are hoping they’ll be able to pull in some evidence from private citizens. There are a couple of administration officials or I should say government officials the former ambassador to the Ukraine Marie Ivanovich and Bill Taylor who worked on Ukraine issues for the State Department. They could quit their jobs and testify. You know maybe there are other people already in private life who will come forward and actually add something important. There’s the second whistleblower hovering out there. But I think that it’s just a political tactic on the president’s part that delay will help him.

S11: So Emily just to stay on this delay question or the blockage question what will happen with with this. How will the House will subpoena people. They will refuse to show for the subpoena. They will refuse to present documents.

S5: And then what will happen and then a Adam Schiff who is helping to run this inquiry for the Democrats will put together a detailed article of impeachment about obstruction of justice that lists all the unanswered requests and so from the point of view of impeaching trump all the noncooperation and the stonewalling will be held against him. And then again the question is how is that going to play. And I hate to be always framing it in those political rather than legal terms but this is a political process. We’re talking about and because it happens rarely. I mean John of course you’re right there are these established rules but I don’t think the public has or I don’t have a clear notion about like how everything is supposed to unfold in a way that would make it universal that what Trump is doing is totally out of bounds.

S8: So Emily this is not a case where the Supreme Court will have to ultimately decide whether the administration has to disgorge materials and present people to testify I or. Or is it the case where these are just two coequal branches of government Supreme Court to be like sorry that’s just not ours to deal with these these branches need to work it out themselves.

S5: Well that’s a huge question and I think there are two factors weighing into it. The first is whether the delay that it would take this case to go through the courts like for Congress to challenge Trump’s decision not to comply with the subpoenas that will get tied up in litigation just like the previous subpoenas from the House that the White House is not complying with are already tied up in litigation. It takes a long time for that all to work itself out in the courts. Again that delay I think would help Trump and I think the Democrats will wager that and then so maybe they don’t go to court at all because they don’t want to invite that kind of slow walking and then the other question is as you said what would the Supreme Court do. There is a really good op ed in The Times by Noah Feldman Law Professor Noah Feldman about this and he says and he says he’s just guessing and it’s I think it’s a good guess that you know we have really well established rules and law that the executive the president can challenge certain subpoenas as being too invasive. But there’s nothing that suggests you can just blanket say like I’m walking away from this I don’t want to participate in it. And so presumably the four liberal moderate justices would rule in that direction and then the question is what the five conservatives would do. They might take refuge in what you were just alluding to David this idea that when you have a clash between the executive and the legislature the judges stay out of it. They just say this is a political question we’re not going to decide it. It’s not our place and it’s possible there could be five votes for that position although no at the end of his op ed suggests he thinks that Chief Justice Roberts who’s very concerned about the court’s legitimacy would stick up for all of the law and precedent. On the other side. But as he says that’s just a guess and the Democrats particularly given the problem of delay may not want to take that risk.

S8: So John what do you what do you think this precedent of non-cooperation does for the functioning of government in the future. My own view is that it’s fairly devastating because we’re moving toward a model with pure executive power. It’s happening a few steps at a time. This is a huge step towards cutting the legislature’s power especially if the Supreme Court doesn’t step in as Emily suggests. They might not. They might have the chance or they might just sort of throw up their hands Well I think we’ve already.

S9: So yes there is what you say is right which is that you you end up having a situation where basically the ability of one branch to to do oversight to to check the power of the other which is the whole reason the shift system of shared powers was set up basically that that gets deleted and that that is the equipoise that was required to launch the entire American experiment.

S10: And so and the reason you did that the reason they did that is because they knew that the power of the presidency as circumscribed as they tried to make it was so great that they had to have something to get in the way between the ambition of a president which they knew every one of them even George Washington would have. And the further extension of that ambition. And to end use of power which they knew no president could resist because presidents were flawed humans. And that was so they set up an entire system to slow a president down and check a president. So if that’s gone that’s a big problem. But I think we don’t you don’t even have to get that far before you see the degradation of the institutions which is quite damaging. So you have Kevin McCarthy who’s the minority leader in the House a Republican in the House saying on on Fox News. Think about it if you went through a trial but you weren’t allowed to call any witnesses. That’s what Speaker Pelosi is doing to President Trump right now. So the minority leader of the house knows better. He knows what he knows how the House works. He knows how impeachment works. He knows better what he’s doing is despite knowing better about the institutional role and institutional rules of the body that he’s a member of. He’s basically burning all that and saying this is a rigged process and the president is being railroaded by a rigged process when he knows better. And so what he’s doing in that instance we’re not we don’t even have to get to the Supreme Court yet. He has special knowledge because he’s been entrusted with care of the institution is all members of the institution are entrusted with its care. And yet he’s saying basically these rules we operate by. He’s he’s denying that he knows them and then saying it’s a rigged system and that I think has costs because it basically says to anybody this system is is rigged and and and and illegitimate. There may be lots of other reasons it’s rigged. Legitimate but that’s not one of them. And so that again erodes the institutions that are required to adjudicate these things. The reason the institutions and structures exist is because conflict happens and you need a way to sort it so that you don’t you know resort to punching each other.

S12: And remember also we’re at this moment where impeachment is the possible remedy because we just went through a long period in which the idea of prosecuting the president in any sort of criminal way was taken off the table. Right. So it’s like you can’t prosecute me. I didn’t you know I mean Trump claims he didn’t commit any criminal violations of course but he also said you just can’t do that.

S13: And now they’re saying you can’t do impeachment.

S5: And then in her litigation in New York the state D.A. in Manhattan Cy Vance has been trying to get Trump’s tax returns in a investigation of the Trump organization in that case the government of the United States is saying that a state prosecutor cannot even investigate the president. So we’re talking about like total impunity here.

S7: Right. There is just no impunity.

S8: Yes. Just to to just say what Emily said. Maybe in a couple of different words. They’re saying in the state court they’re saying state courts prosecutors have no right to investigate the president because that is Congress’s job. And then they’re telling Congress you have no right to investigate investigate the president we will not cooperate with you at all. Prince nobody has the right to investigate the president. Right. So John what import is there in the fact that public support for impeachment and removal has risen significantly over the past few weeks. Does that really important to me. Can I also just put my finger on the scale here. It looks to me like all that’s happened is that the people who were all the people who are anti Trump have gone into the impeachment is good and the people who are supporting Trump basically are like don’t impeach. And it hasn’t fundamentally changed the political dynamics of the country.

S14: Well I don’t know. I mean when you have one poll that has 25 percent of Republicans saying that the impeachment inquiry is is valid. That’s a pretty high number. When you have sorting and partisanship of the way we have now I mean the president has nearly 90 90 percent support in his own party. So you’ve got some number of people who previously supported him and maybe even still support him who nevertheless think the impeachment inquiry is is worthwhile. That’s a shift. So what does that mean. The reason the polls are moving is it’s a relatively simple story. The president is the central player in it. People have things that they can view with their own eyes which is to say they can read the summary of the phone call. They can also hear that amazingly in parallel. People with distinguished records came to the exact same conclusion about what the administration was up to in terms of pressuring Ukraine to go look into this. And there is a kind of weakness in the defense of the president that’s been it’s shifted it’s moved around it’s moving the ball. And and no there’s been no clear kind of rebuttal.

S15: And when you have messy responses it kind of supports the underlying claim now is that putting any pressure on Republicans to move which is what needs to happen now it doesn’t appear to be. But I do think you have two things and I’ll briefly bring in Syria. The president basically abandoned the Kurds who were U.S. allies that were used to fight ISIS.

S8: And while some people might think that John and I didn’t help out at Normandy they didn’t help out in Normandy. So one day they were helping out in World War 2. They refused. What kind of allies are those guys.

S16: Well David’s referring to as the president was asked about the the Kurds and he said they didn’t help out at Normandy which is which I’ll get to in a second but let’s go back to there to get to.

S14: Well well whatever there is to get to whoever is running and listening to this has now stopped because they have no idea what we’re talking about. So going back to the president he abandons the Kurds. He he abandons the Kurds to the Turks who now go and attack them. I think this matters because you have somebody like Nikki Haley who a suburban Republican voter who might have not like Donald Trump but voted for them. They do like Nikki Haley and Nikki Haley tweets that the president has basically left our allies to die. That’s pretty strong language for Nikki. She’s right. Turkey invaded some people died. And this is so in other words these are these are people who have standing in the Republican Party who are saying that the president has made this awful terrible decision. That decision is very similar to Ukraine. He basically went outside of the structure did something basically unilaterally on his own and it’s caused all of these negative consequences in this case the negative consequences is people are dying people who were allies of the United States. So I think that’s a situation in where you see a disordered presidency creating bad real world consequences for basically the same thing which is a president who’s motivated by politics with little regard for political expertise or legal or I should say policy expertise legal boundaries or institutional restraints. When you combine those two things I do think you can see a situation where people say I either support from pitchman or they say you know four more years of this is not what we want.

S8: Emily do you think the Syria abandonment which has really infuriated certain conservatives and certain people the Republican Party and everybody else and a lot of other people too like a lot of other guys. Do you think that that is going to be a significant factor in the impeachment or or not. Do you think that’s just noise weekly noise.

S5: It’s definitely not just noise because people are dying. I think you know whether the Republican objections to it are sustained and whether they translate into any other deeper concerns about Trump being elected as re-elected as John just said like that I’m not sure about. But I think that this is the kind of spectacle that it has to have our attention because it’s just so upsetting.

S12: And you know one more thing about this it troubled me so much to hear Pompeo when he was asked about this on television give this completely not believable account that the president was taking our troops out of harm’s way when in fact the removal of our troops was done at the behest of Turkey to allow them to invade and then the last thing is I don’t understand this from the point of view is such a small force right. There are a thousand troops in this part of Syria holding the peace. It was only the removal of 50 troops that gave the green light to Turkey to invade.

S5: I mean if you’re talking even if you’re talking about a kind of permanent police force in this part of the world it seems like the benefits of stability of protecting ourselves against ISIS given that big prison nearby with 11000 ISIS captives in it not to mention the Kurds you know how we’re ever gonna get any allies to work with us again in this kind of circumstance like the whole thing is pretty breathtaking.

S8: It is astonishing there is so much rot in this administration I mean one is reminded of course that President Trump has huge business interests in Turkey that he cares about and so he has he’s got deep susceptibility to strong men like autobahn. So he just likes them. And so I’m sure Erdogan charmed him. But Trump also has business interests that are important to him. So he I’m sure wants Turkey to be on his side not on somebody else besides his his stupid hotel thrives. And so there’s that corruption. There’s this now this other story just coming back to Ukraine for a minute that Rick Perry the energy secretary was also trying to strong arm the government of Ukraine to stack a powerful Advisory Board in Ukraine that dealt deals with natural gas stock to stack that board with his cronies with political cronies who could do him favors and Giuliani may have been helping out with that as well. Also this other story about Giuliani kind of trying to get Rex Tillerson to pardon somebody who was violating Iran sanctions with a client of his. The amount of just sheer dag gum is just classic carrot blackmail corruption extortion favor doing. It’s astonishing with these people. It is just mind boggling how much there is acting like a mobster acting like like using the government as to advance their personal business interests corruptly. And it’s just breathtaking and shocking and and so sad if I can go back to a minute for a minute.

S9: On the on whether there is any pressure where the political pressure comes here it does. There are two other things that are it seemed to be a part of this when you talked about Normandy. David in that same press conference when the president was asked about his move and he said the Kurds didn’t help us in Normandy which is to say essentially you know they weren’t that helpful.

S15: You remember that that a big discussion about how to defeat ISIS revolved around getting essentially proxy forces to do the U.S. is work for it because of the wars in Afghanistan and Iraq had had sapped the country’s interest in these kinds of things. Even Rand Paul was down with having the Kurds go after ISIS. And so this was the solution to the previous problem. So they’ve been the solution to the previous problem that are now being abandoned but in that same press conference the president basically said well the foreign fighters that are part of ISIS are going back to Europe and you know that’s their problem. And the foreign fighters that would go back as a result of this new condition in which Turkey is in control and the Kurds are under threat. And we should also mention by the way Turkey’s EU is a NATO ally which can make some larger complexity this issue but other NATO allies are in Europe and the president is basically saying well you know now they’ll have to deal with those with those foreign fighters. The previous strategy in Syria was actually to encircle the ISIS fighters because some of them were foreign European fighters in the U.S. because they work in concert with their allies were basically killing those guys before they went back to Europe because they know that if they go back to Europe they’ll not only hurt U.S. partners in Europe but they can get on planes and come to the United States. So that’s been thrown out the window. But the the attitude towards European allies in that press conference kicked U.S. allies in the shins which is the kind of behavior that takes place when you get into these disordered moments. And every Republican because they don’t challenge the president signs up for this now. So they’ve not just signed up for a variety of other things related to Ukraine or the Kurds but now they’ve signed up to basically having this casual attitude towards European allies which they don’t actually believe. And my point is that this is the kind of thing that makes it ever more difficult to be to be so supportive of the president. And yet nobody’s broken. One final very quick point is a smart listener of the show made the case that what is different with Ukraine is that it does provide an off ramp that that that perhaps Republicans could say I was with him until this moment and this is so particular that you know I’m not with him and that there’s something special in narratively clean about this that would allow that to happen. What about Syria.

S5: John does Syria also have that. Like if you for some reason don’t just you’re thinking politically and you’re a Republican in Washington maybe you don’t want to take impeachment but what about Syria.

S15: Yeah well I think you could but then then you have to build your larger case which is to say I’m distancing myself or I’m breaking for the president because he did something here that was so objectionable. The challenge though is whether is when somebody would say OK but how in that instance did he do anything that was I know the outcome is worse because actual human beings are dying. But everything that he did leading up to it which is to say blowing off his expertise acting impulsively blowing through the institutional restraints of the system he’s been doing that repeatedly throughout the administration and you’ve not said anything about that. So why now so then that’s been that’s been a kind of constraint on anybody breaking from the president. As I understand it from conversations with them up to this point.

S9: But I think you do have something different here because of. Because you do you are going to have pictures of people actually dying as a result of the president’s policies.

S7: All right. I want to wrap this up with an amazing no.

S17: An amazing little thing I just saw. It’s just too rich to not let let too rich to let go by which is the following sentence was just spoken by a senior White House official Hunter Biden the son of Joe Biden accepted a job for which he had absolutely no qualifications. It was an outrageous abuse of power by his father and should be treated as such. Who said that.

S6: VON TRAPP just said that oh my god there is no bottom. There is no bottom. Slate Plus members you get bonus segments on the Gabfest and other Slate podcasts.

S8: This week we’re going to talk about the NBA is China face off over free speech. Got a sitcom flush gabfest plus to become a member today the first Monday in October a red letter day on the bath lawn calendar arrive this week. Emily what are the big cases the Supreme Court is going to consider this term. Which are you most excited about. And then we’ll get to the big argument that already happened.

S13: I don’t know if I’m excited about anything I’m more sort of living in Redding in terror. Exactly.

S18: There are so many big cases I am going to leave some out there are crucial cases about the dreamers and other aspects of immigration law coming up. There is an abortion case which hasn’t been scheduled yet but will be heard at some point this spring. We’re about to talk about this big case involving whether it’s legal to fire LGBT people at work that had super interesting argument this week. And that’s like only scratching the surface. Oh there is a big. The first guns rights case in nine years is going to come up in the beginning of December. I mean it’s really a term in which the court is already hitting some of the most contested areas of American life and this is before we know that the court will be weighing in on some aspect of presidential power which you know is still possible.

S8: So let’s go to the case they’ve already heard they heard argument this week on three conjoined cases involving whether the 1964 statute barring sex discrimination effectively also bars discrimination on the basis of sexual orientation and gender identity. So two cases involving gay employees who were fired essentially for being gay and one involving a trans employee who was fired after announcing their sexual identity. So what are the issues at play in this case and why is it okay. I mean I think one question that a lot of people have is homosexuality was illegal in 1964 across most the U.S. and certainly wasn’t contemplated in the statute itself. So why would it be OK for for that to be added or implicit in the statute even though it was clearly not something the Congress contemplated at the time.

S18: Yeah. So when Congress passed the Civil Rights Act and Title 7 of the Civil Rights Act which addresses employment in 1964 Congress banned discrimination on the basis of sex and in some areas of law for the most part we’ve assumed that discriminating against someone on the basis of their sexual orientation is different than discrimination on the basis of sex. But what these cases do is they kind of go back to the language and they say well wait a second one’s sex one’s classification is male or female are essential to these discrimination suits because if you’re a man who loves other men well then you are being discriminated against because your sexual orientation goes back to your sex right. Like those two things are kind of tied together. There is some law supporting this. There is a decision from the 1990s in which Justice Scalia you know one of the court’s arch conservatives said that a man who was being basically like harassed and bullied for being gay could sue under Title 7 on the basis of sex discrimination. So that’s one case that kind of begins to lead in this direction. And then when you’re thinking about trans people and trans identity it seems I think more intuitive that it’s their sexual identity that’s at stake. And there is decades of law protecting trans people from discrimination under Title 7. So with regard to that lawsuit if the Supreme Court said Oh it’s fine to fire people under Title 7 if they are trans that would actually be a real shift in the legal thinking. So I mean these are really interesting questions of how we think about one’s biological sex vs. one’s sexual preferences. But you can see that if you’re looking at the words on the page which is something that some of the courts justices including the Al Gore caustic its newest member.

S16: That’s what Gore such says his method is if you’re thinking about that then this idea that like oh Congress didn’t have this in mind in 1964 starts to seem less important is that the grounds on which somebody like Gore such would build their response that it just isn’t that the language justice isn’t in there and then that’s the protection doesn’t exist.

S13: Now of course Hatch thinks the language is the in there. He’s the opposite. Yes sorry. Yeah he’s there. No no it’s fine. You were just giving voice to the view of Justice Alito who doesn’t have like a strict method that he follows and Alito basically said at the oral argument basically like this is absurd.

S19: Congress wasn’t thinking about protecting people from being fired on the basis of sexual orientation when they wrote Title 7. So what are we doing here. And it was Kagan who said well wait a second are normal method of statutory interpretation is to look at the text and then gorse which had this for me fascinating moment where he said OK to the plaintiff’s lawyer. OK. So assume I’m with you on the textual list matter. Well now I want you to think about the quote massive social upheaval that would arise if we did what you wanted and whether Congress didn’t have wasn’t thinking about that in 1964. And so for reasons of judicial modesty we should not rule in your behalf. And so. OK. Go ahead.

S14: Well as you say but then but if Congress was making decisions on protecting women that’s a pretty I mean that’s a pretty big portion of the population that it’s making a decision about so its goals weren’t modest.

S12: Good point. And also there is no massive social upheaval like literally what was you talking about. Right and saddle.

S4: Yeah. Oh sorry. No I’m just going to. I just wanted to align myself with you that I. I cannot stand that argument that there is going to be this huge social upheaval if trans people are not going to be fired for being trans or gay people are not to be fired for being gay. It’s ridiculous. Or that or that you know suddenly this total mythology this canard that every bathroom is going to be overrun. It’s like no one’s gonna know what bathroom to go to when they’re going to be predators in every bathroom. It’s just complete errant nonsense.

S12: And there was a lot of questions about that. No you’re right.

S19: But also even more basically the lawyer gorse which was addressing in that moment was the lawyer for the transgender plaintiff who has had the law on their side for like 20 years. And so the lawyer for the plaintiff said that he said well for 20 years federal courts of appeals have been finding and just the way you’re worrying about and there’s been no upheaval. And then gorse which basically said Well are you going to address these arguments like as if he hadn’t answered the question. And then the lawyer said well.

S20: But I did answer anyway so when Gore suggests the question of somebody who’s got the best answer in the room is he in that instance I mean tell me about how the ball bounces in these public arguments these he creating essentially a fact record by asking this question of the lawyer representing the trans side in order to basically get it on record that there is a fine rebuttal to that question of social upheaval.

S21: I mean that’s a good question. It was hard to tell what his motivation was and he can look into the briefs for material you know that provides evidence for what he wants to argue.

S19: He can also go outside the briefs if he wants it’s all like a hard and fast rule that he has to stay within those confines. I think what was telling about this moment is what David was getting at which is that you know look in polls most Americans say that they already think it’s illegal to fire gay and trans people for being gay or trans in some states. It is indeed illegal. We just don’t have and we haven’t until now had an interpretation of national law that provides those protections. And you know one answer to all this is like well it’s Congress’s job to fix to fix this problem. And that is one clean answer right. I mean Congress could go ahead and pass the statute. There has been a statute that’s been proposed but that hasn’t happened so far. And so you know this is one of many instances in which we’re harking back to laws of an earlier era and asking or some people are asking courts to reinterpret them essentially because Congress doesn’t make laws anymore.

S8: Right. But that’s a really interesting question because the court is not wrong as it wasn’t. When you think about the the marriage equality cases there were there was a very reasonable argument to say this is something that should be you know that legislators let’s legislatures should decide and that the court weighed in.

S17: But the court weighed in basically because the Congress is incapable of doing its job now. But is the court obliged to consider the fact that Congress is incapable of doing this job when it is at work or or should it not consider that.

S21: Yeah I don’t know. I mean I think that’s a really deep question like the same sex marriage cases one could argue that what’s been happening is that a few federal appeals courts around the country have been finding the title 7 does indeed contain this protection.

S19: And like the sky didn’t fall. Right. I mean this is also what we saw with the marriage equality that you know the early ruling the first ruling was from the Supreme Court in Massachusetts providing for marriage equality and people thought at the time like there’s gonna be a huge backlash to this it’s really dangerous. And that didn’t happen. And then that made it easier for other courts to follow along. And so you’re not having a kind of sudden declaration from the Supreme Court about a kind of area of law in which we don’t have any evidence or there have been no lower court decisions. But you could also say well that’s lovely. But it’s all within the judicial branch. And really we do want legislators to be the ones making these decisions.

S21: And indeed in some states legislators have acted right. The question is what we do about the states where they haven’t.

S17: Look let’s change to a couple of the other cases Emily so of the other big cases that seem contentious Louisiana abortion case does seem to be really important because it’s essentially the exactly the same case that the court considers just three years ago when it involved the state of Texas. And in that case the Supreme Court with Justice Kennedy siding with the majority threw out a Texas law that would have really constrained abortion throughout Texas by requiring doctors to get admitting privileges in local hospitals which it’s very hard for them to get abortion providers to get that because because hospitals in the state makes it hard for them to get it. And now Louisiana has the same essentially the same law. And it seems to me that that this is going to they’re going to just reverse themselves. Right.

S18: Well I mean we’ll see. But what you said is all true. The only thing that has changed between this ruling in 2016 striking down the law in Texas and now is the composition of the court. And so it is a kind of classic test of how much justices respect precedent right past decisions. There is no hard and fast rule about this. You know we have this idea called starry decisis from the Latin. That in general it’s good to respect previous decisions of the court because that helps the law be stable and people rely on law and like that’s kind of generally how it should go. But we all agree that it’s good that like the court you know reverse Plessy versus Ferguson which provided for separate but equal facilities. That was a really bad decision that we were absolutely right to get rid of. And so because there isn’t a hard and fast rule about when to respect precedent justices can make up their own minds. And I think for the conservatives on the court who it’s clear oppose abortion the question is what do you do about this 2016 precedent which let’s be clear is hugely important. I mean what’s at stake here is whether most clinics in the state close or stay open in Louisiana. They’re already only three clinics two of the three would close if this law is allowed to go into effect.

S17: Emily one of the questions would you not do that earlier. Just to just to close out this segment. How concerned do you think this court is about legitimacy. Because it is it is moving very far to the right and away from where public opinion is not necessarily away from where the where Congress is or where the president is but away from where public opinion is. How how much does that matter to these justices do you think.

S19: I think it matters a great deal to Chief Justice John Roberts. It’s pretty paramount for him. I mean one thing you can say about the last several years on the court is that in the end in June on those last days when everybody is paying attention or at least more people are paying attention it always feels like there’s something for everyone. Right. So yes you know the court does something that Republicans cheer. But there’s also a case in the last term it was the census case where liberals feel like OK there is some limit some way that you know are what’s important our values are also still being expressed by this court. And I think that Roberts is going to continue to look for those opportunities and that he wants the court to thread a needle. It is not at all clear that the other four conservatives share that deep commitment. They have a lot of things they want to do and some of them seem like they’re in a big rush. I think for the court’s liberal moderates it the the main task is to try to peel off different conservative justices by making appeals that seem like they’re really well suited for those particular justices.

S8: I think that’s what you saw Kagan do this week in the LGBT case with Korsak and you can look for lots more of that to come Bernie Sanders had a heart attack last week and had two stents installed to allow blood to flow through key arteries around his heart. Sanders is 78 years old but he’d been keeping up a ferocious schedule for rallies a day and he has had a lifetime of reasonable of rude good health. In fact he’s out of the hospital. He just spent a million million plus on a TV ad buy also raised twenty five million dollars in the third quarter. So his campaign had been active he had been sinking a little bit in the polls but he’d been extremely active campaigner. So John My view is his campaign is over the only question is whether he decides to walk away or to lose in caucuses and primaries. Is that correct.

S14: I mean he has other challenges and we had other challenges before he had a health challenge.

S22: So which included pre stand question questions or kind of middling concerns about his age.

S20: So it’s kind of hard to take this one. One thing out but for a candidate who was facing pressure from Elizabeth Warren you know it and then also had to just navigate the challenge that that the larger Democratic Party voters are not all as liberal as Bernie Sanders. Those were two big big problems before this. So I this you know obviously doesn’t doesn’t help and so I think his chances were we’re narrowing before it happened and I think they’ve narrowed more but there is a big thing which is that there are Bernie Sanders supporters are really locked in in a way that you don’t see with other candidates and so I think he sticks around and also he’s been such an effective message candidate in terms of changing the shape of the Democratic Party and the conversation that he can still have a part to play that will be significant in shaping who the ultimate nominee is whether he wins whether he stays or whether he wins or not.

S8: Emily do you think you should stop his campaign.

S21: I don’t think he has to stop his campaign. I mean Bernie has been such an effective messenger for what he wants to say.

S19: I feel like he’s he is really important in stating these matters of principle and kind of sharpening the arguments that Democrats have to contend with. You know I don’t always think it’s like helpful to them politically I think he has pulled them or they have allowed themselves to be pulled too far to the left on Medicare for all. But I think he really stands for something and he can have a heart attack and just keep going.

S8: I mean what John said about his role shaping the campaign just seems to me like the obvious and in a good way obvious and legitimate in a way that this is almost I mean not for Bernie Sanders but for the Democrats almost the best of all possible situations which is that he still gets to be kind of this mascot figure. Everyone knows now that he’s not actually going to get the nomination. So they don’t have to worry too much about that. So they can you can you can treat his kids supporters with dignity and respect and hope to winning them over. There’s no need to alienate him. No need to alienate them. You need to fight too hard against him because he just doesn’t have a chance. And so you you keep the Sanders supporters in the fold you butter them up to kind of come to whoever the eventual nominee is and yet not worry about him too much. Do you think that the Sanders heart attack is really bad news for Biden who is similarly old has a little bit of a kind of slightly out of it old timer quality.

S23: I don’t think that the Bernie’s heart attack like slaps on top.

S19: BIDEN I mean Biden is has been having his own challenges and figuring out how to respond to the attacks on him and Hunter Biden whose son from Donald Trump. And I think he was not particularly forceful in the beginning and now is like trying to be clear and talking about it more and you know called for impeachment but also I think his like risen to a more full throated defense of himself and his family. So I think he’s got challenges but don’t feel like Bernie’s heart attack is his problem. John what do you think.

S15: Yeah I think I think he’s got bigger problems which is the problem which is that people might decide at some point in the Democratic Party. You know Donald Trump shouldn’t have done what he did in the Ukrainian phone call and Donald Trump is bad in all these different ways. But it also just wasn’t great that Hunter Biden was getting paid an incredible amount of money for five years and something that just doesn’t smell right either. They can. Those two point those two views can be in the same person’s mind and that that won’t that won’t be great for Joe Biden.

S8: I’m going to say something which is super age just now so prepare your prepare your hateful tweets people. I don’t think anyone should get a new job at age 78. I think it’s too old to get a new job. I’m not saying that people shouldn’t work at 78 or they shouldn’t get a new super demanding job at age 78. I just don’t think I’m 49. I’m not sure I should get a new demanding job.

S7: So I don’t I don’t believe that about 49 year olds. By the way. OK. But I do think at 78 that it’s that that’s really that’s it’s hard to start a whole new incredibly demanding job.

S8: People’s mental acuity isn’t there there their flexibility isn’t quite as they are their physical health isn’t there it’s just it’s it’s hard.

S15: So you can make that argument without being a just which is that by the time you gain that much variance in life you are succeeding because you have you have a kind of wisdom and pattern recognition that all of your previous experience. It serves you really well you make decisions because you kind of know how the world works. But then when you get into the job of the presidency you can argue the job is actually not following your previous patterns.

S16: It’s actually unlearning a lot of your previous patterns and having the adaptability and mobility to learn those new patterns and figure out those new ways which can be. You could imagine actually a person with a supple kind of mind being a better able to do that at an older age than a younger I guess or I guess my point is that the blindness of your own experience can blind you at age 50 as well as age 75 but since you’ve got more experience at 75 you might it might be the case that more people are blinded and it has nothing to do with actual physicality but more the accumulation of experience which isn’t to say that experience isn’t important but it has this other quality that people don’t think about.

S4: There John said it in the non hateful smart way.

S23: Yes.

S8: He was very gracious and diplomatic but I kind of think he essentially agreed with you let us go to cocktail chatter when you’re having a delicious delicious martini I would be having. I will be having my cocktail. What will you be chattering about.

S21: Emily Bazelon I am watching with great interest the race for district attorney in San Francisco.

S7: So you’re about to about a TV show. I knew it wasn’t a great TV show slated for a new TV show. Yeah but I go ahead. All right fine.

S19: I’m working on that. But let’s go with this one for now. So as listeners know I am obsessed with the district attorney races I’d be interested in this race merely for that reason but it’s got other things going for it. One of the candidates chose a Boudin is a former student and friend of mine.

S18: My sister Laura is also working on his campaign and something might have untoward happened in this race last week which was that the current district attorney stepped down nearly three weeks early and then the mayor of San Francisco London Breed appointed the district attorney. Susie Loftus one of the candidates who was Chase’s main opponent yeah. So that right so that Loftis could run as an incumbent and this was after polls showing that Loftis his big problem was that she didn’t have enough name recognition in the city. So now she’s gonna be running as the interim D.A.. And it’s just like a total political machine kind of move that I hope backfires not just because I think she’s a would be terrific in this job. And it will be really interesting to watch the city if that happened but also because this is just like an anti-democratic like crappy thing to do. So if you live in San Francisco pay attention to this race. I’m sure turnout will be low since there is not much else on the ballot. But this is the kind of shenanigans that really should not be rewarded or let let slide and the election is in the beginning of November.

S16: John Dickerson what’s your chatter David ionic is the only district attorney of San Francisco that I recognize.

S15: My chatter is about a gem of a little book called metropolitan stories and it’s a novel written by a friend of mine someone I’ve known for a very long time and her name’s Christine Colson and it’s about the Metropolitan Museum and the objects in it from the perspective of those objects well lots of different perspectives but about that but partially from the objects and it is it’s delightful and transporting and surprising.

S14: And so if you’d like. Well if you like reading but also if you if you’ve ever been to the Met. But even if you just have been it’s just like it’s got a lot going on anyway so I recommend it.

S8: Man this is log rolling central this week I’m going to log roll to and my chatter This is super duper log rolling. Some of you may remember Atlas Obscura a couple of years ago put out a book called Atlas Obscura and explorers guide the world’s hidden wonders was a huge bestseller. I hope many of you have it I hope many of you gave it as gifts and I’m thrilled to say that this week we are putting out a second edition of that book. It is updated with 100 new places like the Irish sky garden the world’s largest beaver dam the boiling river which is this river which literally is boiling it so hot. The Milky seas the FBI spy House pre continent to which is this crazy Jacques Cousteau place the harp space gone this gigantic gun that was supposed to shoot things into outer space which is on a beach in the Caribbean the world’s largest conveyor belt.

S11: The museum devoted to a single tooth of the Buddha. It is a just a collection of the world’s most amazing places and there are pull out maps there’s a calendar of world festivals or city guides. It is a magnificent book it is the best present you could give this holiday season to anybody. I assure you anybody you know who likes to travel it will love this. It is just it’s a totally inspirational. The book is beautiful. You should definitely get it. It’s Atlas Obscura. The second edition. It’s got a beautiful red cover. I swear to you you will not be disappointed if you get it. It’s it’s it’s it’s just a wonderful wonderful book. And I mean you know I’m obviously I have a vested interest in it but I believe this wholeheartedly. And I’m sure Emily and John can affirm that having seen that book at their houses.

S5: So it’s awesome. I love it.

S15: My daughter took it. So I haven’t actually seen it but the fact that she that she has not let go of it is a sign of what you say being true.

S8: Yes. Kids love it. To their listener chatters this week. It is. It is slightly daunting. Every week I have to go through these listener letters that they’re so good they take up huge amount of my time because they’re so good. There are so many interesting stories. And it’s really hard to choose. So thank you. Please keep tweeting your your chatters to us. That’s like efforts because they’re so good. This week Matthew Zito at at Matthew Zito points me to a a Twitter thread from Ben marrow and it’s about a paper that was presented by some economists at a political economy a finance conference in Chicago this weekend and it’s about how fluctuations in the international price of silver can predict the probability of terrorist attacks. That sounds crazy like how could the price of silver predict terrorist attacks. It’s amazing. I don’t want to give too much away but it has to do with rules about Islamic charity how these rules apply to Sunni families in Pakistan but not Shia families in Pakistan and taxation rates in Pakistan and how that you then see a totally distinct pattern of terrorist attacks resulting from fluctuations in the price of silver. It is fascinating and bizarre and you know it’s almost like a magic trick when you read through this Twitter thread you’re like whoa that how did that happen. And then you end up persuaded. So please check it out. Gabfest fans before we go I want to tell you some exciting news today. Slate is launching an important new initiative to examine one of the most essential questions of our time. The question is who counts over the next 13 months.

S4: Slate will investigate who counts in the voting booth who counts as an American who’s money counts and the democratic process and who’s doesn’t. Slate will cover stories of Americans whose voices have been silenced. Stories of votes diluted and stories about where power has been chopped down and Slate wants to hear from you. What else should we cover. Share what’s happening in your community by e-mailing who counts. At Slate dot com. And you can strengthen the series with your financial support too.

S3: To learn more about this project and how to support it please go to Slate dot com slash who counts that is our show for today the efforts it’s produced by Jocelyn Frank our researcher is the amazing Bridget Dunlap music Caplin engineered here in D.C. Ryan McEvoy I think in New Haven and Chris Buckley and CBS helped John today you should follow us on Twitter at Slate gabfest. Tweet conundrum to us at Slate get fest using hashtag conundrum and please join us for our annual conundrum show on December 18 in Oakland at the Fox Theatre. Go to slate that council’s live. For tickets for Emily Bazelon and John Dickerson.

S24: I’m David Plotz. Thank you for listening. We will talk to you next.

S25: Hello Slate Plus how are you really. That’s how you are. That’s good. Okay. Here.

S8: So Daryl Morey the GM of the Houston Rockets tweeted support last week for Hong Kong protesters and that outraged people in China. So the Houston Rockets NBA team they have a rich partnership with the CBA the Chinese Basketball Association in part because the president of the CBA is Yao Ming who is once a star for the rockets and that those two teams that that team in that league are well aligned. But the NBA in general has an enormous and growing presence in China very very successful basketball is hugely popular in China growing popular it’s growing there is a whole series of events slated for this week with preseason games being played in China. Some basketball facilities that were sponsored by the NBA being opened and as a result of Mori’s tweet which which was this kind of anodyne tweet but supportive of Hong Kong protesters the preseason games were taken off Chinese television. The camp that was supposed to open was not opened and the NBA has responded in this kind of interesting way where at first they were they appeared to be heavy appeasing and apologizing for Mori’s tweet and then quickly moved into more of a you know Mori Mori has free expression and that’s what our employees and our our people who work at the NBA have the right to express themselves. And on personal matters and that’s not the NBA endorsing what he’s saying but it’s very much endorsing the idea that is he has a right to express himself. And Adam Silver who is in China who’s on his way to China the NBA commissioner I think took a pretty brave stand here. But let’s talk about it because currently the NBA is getting battered from both left and right for being for not not being harsh enough towards China and the people are saying they should pull out of China until the Chinese apologize and then others are saying well actually affect people in China are saying no the NBA hasn’t done nearly enough. So John this is not the first company the NBA is not the first American company to or non Chinese company to run into trouble. You have the gap given on Xi Tiffany. There’s a video game company Activision Blizzard which this week took away prize money from somebody who had won a videogame tournament because that person expressed support for Hong Kong protesters. And there’s a whole category of things the Chinese do not want companies that do business there to talk about whether it’s Tibet Taiwan gentlemen’s Square protests now Hong Kong as part of it maps you can’t make it map of China that doesn’t show to Taiwan is part of China and it’s it’s just like a whole series of contentious issues is arena situation where where is China’s behavior reasonable. Is it the NBA you know has the NBA capitulated or has the NBA stood up for the correct American value.

S16: Well and then there’s larger question whether this is the NBA is job to stand up for correct American values and which is which are the values are they standing up for freedom of speech or or freedom to protest.

S26: Freedom of speech and where’s it responsibility lie.

S15: I mean I don’t know. The frightening thing is the economic power China has. And that’s only going to get bigger. And it’s only going to spread more and the collective way in which all the Chinese entities responded against the NBA. If you just look at this will ripple out as China becomes more powerful and the U.S. recedes as a globe as a global leader. And so if you look at this argument about freedom free speech and freedom to protest and freedom to push back against authoritarians. This is a conversation that the counterargument who’s making the counter argument globally against that. And that’s like an open question for the next 50 years.

S23: I mean I just I can’t stand the idea of American companies conceding to these like untruths and anti dramatic anti-democratic stances by China. Just seems like antithetical to American the American values I want to think that we have on the other hand you can see all the corporate incentives for doing the kinds of things that you know got the NBA into trouble to begin with. It’s sort of a no win situation for companies. But I mean. Yeah.

S8: David what do you think. I think the NBA has been OK here. I think they were put in a really difficult situation. I think they. I think that that they haven’t they have neither fully capitulated to China. Naw naw nor completely nor completely blown China off China’s really important market for them as a company and as a venture and I think it’s completely reasonable to to make accommodations when you’re trying to do business in a place to make accommodations to the culture and traditions and laws of that place. I think I what I am trying to wrap my head around is I am dead certain that companies that come to do business in the United States go through something similar and that we’re blind to it that we probably don’t see it. We’re not sure what it is. And I’m sure it’s not nearly as harsh as what happens in China where you have a state government a national government that imposes this kind of will and this kind of ideology on the businesses here. But I bet there are ways when you wanted to get into the U.S. market there’s certain kinds of policies you don’t pursue. You probably places you don’t do business you mean you can’t do business in Iran for example if you want to do certain kinds of business in the American market. So I don’t know that we are completely I’m not being what about us here. But I I just I think that there are that China is not unique in in creating expectations for companies that do business and I’m much more concerned when I think about what China is doing that messes with America. It’s much more around theft of intellectual property around kind of keeping businesses out of the Chinese market not allowing them to compete in the Chinese market. Those are the things that that concern me much more than the sort of telling an ideological line piece of it.

S16: But whether he does business with whether a company does business with Iran is quite different than a GM making a statement right. This is a much more attenuated than the example you gave.

S27: Yes for sure it’s definitely more tired as the ideological line trying not bother you in LA.

S23: I don’t know. I mean we’re talking about like a pretty major kind of double speak right. Like you can’t it’s propaganda. It’s like forcing American companies to basically spew propaganda about a foreign government I’m sure we’re not in order to not spew propaganda or to or to not spew truth.

S7: Yeah.

S21: It’s good to be silent rather than speak up and to silence their employees.

S6: Yeah that’s it. It’s not that bad. I’m not saying it’s good it’s good. I’m not saying it’s good. I’m just saying like a there’s.

S11: I obviously have not interrogated this well enough but somehow it doesn’t. Why is it not outraged me. I think what Adam Silver has done is great. I think Adam Silver has said okay these are private employees acting privately this is not the league endorsing it. And that’s where we stand and I suspect that that will blow over and the Chinese won’t be super happy about it. And that would be a I think that would be a reasonable place to be. I think it’s reasonable for private citizens to say what they want. Of course they’re Americans they should they should say what they want about matters that matter to them and that shouldn’t implicate the NBA its ability to do business. Do I think that the NBA itself should come out against and come out in favor of the Hong Kong protests. Probably it shouldn’t. I don’t think. I don’t think it’s reasonable to expect that they should or that the NBA should have a policy about about Chinese politics.

S23: Yeah I mean the idea that it’s not on the NBA to make a public proactive statement about the Hong Kong protests like yeah that seems OK. What amazes me here is the idea that China would have ever imagined that one GM supporting the Hong Kong protesters was something that it’s that that the corporation would like silence. I mean that I think is actually alarming because it suggests the kind of stifling of speech that authoritarian governments do expect from their within their own borders.

S19: But the idea that in order to get within those borders American companies are gonna play by those rules.

S16: I mean that takes away a whole social force and set of cultural and economic pressures for changing them or at least like not buying into them will in the fact that all these Chinese companies all punish the NBA suggests that the cost of doing business locally is snapping to the party line. So it’s not just a views about the U.S. but that what you must do as a company to operate in China is then to take up the cause and punish.

S23: Have you guys seen American factory a documentary about a Chinese factory opening in Ohio.

S21: No I really don’t. Good. Okay. Yeah. It’s really good.

S19: One of the trickiest things about it is the cultural conflict and it basically presents the Chinese as thinking that the American workers are being way too demanding. And of course this culminates in an effort to squash the union but it just makes you think that part of what is happening is just a different conception of identity and how people are supposed to live their lives and what they’re supposed to value and the Chinese version of it in the in the documentary it comes across as kind of strangling in this way that I found disturbing.

S1: Well I haven’t seen it. I really want to see it. I might but that may well be true. When I just I’ve never been to China and I think I have rose colored glasses about China. I just I keep coming back to the idea that this is a nation which has has in a generation done more to create health and prosperity and lift people out of poverty than any country in the history of the earth. That that if you think about you know measurements of human well-being what has happened in China in the last generation is the greatest improvement in human well-being in world history. And so so at at our peril we we assign you know we assign our moral values to everything that’s happening there but I but I also know that I’m probably delusional in key ways and that it’s a repressive regime which is bullying countries across the world and wants to impose its values on us and.

S5: All that’s true. Right. It’s about it’s about that. But exporting those authoritarian values right.

S4: I guess the question right. Maybe the question here is did or is isn’t an export. Is this them forcing something to happen overseas or is it them requiring something. Is it something that is for the Chinese market or is this something for the international market.

S23: They would view it as an import. Yeah that’s interesting.

S1: All right. By Slate Plus calculator.