The “Extremely Surprising” Edition
David Plotz: This ad free podcast is part of your Slate Plus membership. Hello and welcome to the Slate Political Gabfest.
David Plotz: November 10th, 2020, to the extremely surprising election edition. Amy David Plotz of City Council in Denver, Colorado. Gathering with my city. Cast my city cast tribe. I’m so happy to be here. But it does mean that I’m not in Washington, D.C. so we have no Washington, D.C. presence because John DICKERSON of CBS Primetime is in New York, fresh off what was probably like 67 straight hours of staring at a map. Hello, John.
John Dickerson: Yeah, Yeah, exactly. Well, staring mostly at tables, actually, of who voted where and how much and all that. But yes, a lot of staring into a small screen.
David Plotz: And then Emily Bazelon of The New York Times Magazine and Yale University Law School, she does no staring, only gazing, contemplative, contemplatively at the heavens. Hello, Emily from New Haven.
Emily Bazelon: Hello. Good morning. I like that image of myself.
David Plotz: This week on the Gabfest. We will devote our first two segments to the election. What happened? Why did it happen? What was surprising? And who won? We’ll talk about that first segment. And then in the second segment, we’ll talk about the consequences of the election in terms of policy, politics and what will change in the next two years and beyond. Then we’ll talk about a Supreme Court case that is fascinating about the scope of the Indian Child Welfare Act and whether Indian tribes are political or racial classification. That’s a kind of simplification, but a really, really interesting case.
David Plotz: Plus, of course, we will have cocktail chatter. And a reminder, dear friends, that it is conundrum time. We are preparing for our annual conundrum show. Please send us your conundrums so we can work through life’s important questions, such as If you needed to hide an elephant. How would you do it? If you could be vice president to any president? Who would it be and why? Or if you had to be a tree or a fish, which would you choose? Please submit your conundrums at Slate.com slash conundrums. And we are so looking forward to revisiting that this winter with you. And I’m sure we’ll have a great guest to do it with two Slate.com slash conundrums, John.
David Plotz: That’s the question.
John Dickerson: What I think we can say as of this taping Thursday morning, which is true, which is essentially the locked in assumptions people had about the pain that the economy and crime, let’s just say we’re going to deliver to Democrats was significantly blunted by, I think, at least two things on the Democratic side, success or using success on the abortion issue. Using that as a motivational force in different kinds of races. In some races, it worked. In some races it didn’t. But abortion played a key role in protecting against the wave. So if you wear a wetsuit to protect against the wave, the wave is coming. The wet suit is made up of voters who were motivated by the dance decision. Also, though, voters, independents, and we’ll get inside the numbers in a minute, particularly who were frightened and scared, whatever, about Republican extremism, independents in particular. And that, I think, touches on and connects to the side, the idea of democracy being on the ballot.
John Dickerson: So those were two of the things that protected in the third, and this is wrapped up with that, is that Democrats turned out in an off year election in which you traditionally you would not expect the party to be as motivated as Democrats appear to have been, and particularly younger voters who black voters and younger voters in particular voted close to their 2018 levels. And why is 2018 important? Because 2018 was kind of a record year for Democrats in those constituencies because they were motivated by Donald Trump. So here you have the end party in a midterm election where turnout is usually low voting the way they do when they’re the out party. And again, that may be because they’re motivated by abortion and extremism or they may just have turned out because they’re Democrats who want, you know, the world to go in the Democratic direction.
David Plotz: John, actually, just situate us a little bit more so as we as we are right now, it appears that the House will probably be in the Republican under Republican control. Where would you rate the Senate right now?
John Dickerson: The Senate at the moment, you’ve still got Arizona as of this recording, Arizona, Nevada, Georgia, Georgia is going to a runoff. Nevada looks like it’s trending red. And Arizona looks like it’s turning blue. So if Republicans and Democrats split one each in Nevada and Arizona, that means control of the Senate will come down to the outcome in the runoff in Georgia, which will be decided on the 6th of December between Walker and Warnock. Runoffs are only between two candidates, and that means the entire Senate question will be up for grabs in in Georgia. If for some reason Nevada doesn’t go Laxalt doesn’t beat Cortez Masto in Nevada, then then Georgia will lose. You know, it’s it’s super powerful salience. It won’t be for control of the Senate. It will just be an important and important race.
Emily Bazelon: Just one tiny note there, because I was surprised by this. I was looking at Joe Ralston’s Twitter feed. He’s a Nevada elections guru, and he made it seem more possible that Cortez Masto might pull it out based on the remaining mail in ballots than I had assumed. So I’m just noting that for now, very transient Thursday morning observation.
David Plotz: Emily, I feel like you’re the living embodiment of the two issues which which seems to have broken in Democrat’s favor. I mean, you’ve obviously written a ton about reproductive rights and how the Dobbs decision is affecting the country. And then you’ve also been written a ton about the Election Day denialism and and election subversion. Were you surprised that these two issues seemed to have resonated so much with voters?
Emily Bazelon: Yes, I was surprised, and I’m going to be really curious when we get better exit polls to see if indeed this is what voters are responding to. I mean, it seemed like from the initial polls, which I think are not really weighted for who voted versus who answers exit poll questions, but it seems like they were pretty salient and higher on voters minds. And I was surprised. I mean, partly, I think, because when you cover things like this that are thorny and difficult, you kind of get a little beaten down and worry that you’re not getting through to people as you’re like constantly trying to make it as bright and clear and interesting as possible.
Emily Bazelon: So, yes, I was surprised. And I think there’s a dynamic where given that the polls were often Republicans favor in 2016 and there’s just been a sort of shaky feeling about the polls since then. And I think there just was among a lot of pundits this sense of that the Democrats were doomed. I think I was reading a lot of that mindset, and that made me more surprised, even though when you look at, you know, FiveThirtyEight or some of the other really good polling analysis, they actually like predicted a 5050 Senate.
John Dickerson: Yeah. And they also predicted all these races that are close and that we still haven’t called her all close. I mean, so, you know, a Fetterman it’s not like Fetterman won by ten points. And also, it wasn’t just pundits and analysts. I mean, it was the the people running these campaigns. I mean, Congressman Clyburn talked to Bob Costa at the beginning of our coverage. On election night and at the beginning of the night, he was saying, you know, Democrats need to rethink their their strategy and their message and all that. I mean, he was preparing for a huge wipe out.
David Plotz: One of the things that I’ve been unable to comprehend because I am not as comprehensive in my knowledge as you are, John, is if you look across these results, is it the case that the more extreme Republican candidates did significantly worse than regular Republicans? Like, is the Republican caucus that we will see in the Senate, in the House, and in state legislatures and governor’s office? Is it a more traditional Republican caucus?
John Dickerson: No.
David Plotz: Okay.
John Dickerson: So well, this is what’s interesting. So look at four senators who won in Alabama, North Carolina, Missouri and Ohio. Those four senators who are replacing Republican senators are more extreme. They are all election deniers in one form or another. Let’s look at Ohio. Rob Portman wrote the infrastructure bill. JD Vance said he wouldn’t have voted for the infrastructure bill. JD Vance has essentially the Trump position on trade with China. Rob Portman was U.S. trade representative. And we can go on down the line. So in that case, you have four Republican senators coming to Washington who, at least for the purposes of winning their election, played footsie with or in fact gave the full embrace to Donald Trump and MAGA. Now, there are all kinds of incentives for them to pretend they didn’t.
John Dickerson: Now, because Donald Trump is in a jittery moment and also like Ron DeSantis won going away. However, there he is in this. I’m not certain on this, but however, there was a kind of lingering issue for Republicans that kept them from winning all these races. They thought they were going to win in the House race. I mean, they were incredibly overconfident about races they were going to win in places that Biden had won with 58% of the vote. Kevin McCarthy went to the 10th District of Virginia right before the election. That was a place not only that, Biden won with 58% of the vote, but Terry McAuliffe had won with 5% of the vote and they thought they were going to possibly win in those places. And they sent the first lady down there to help shore up the Democrat in that district, because Democrats were worried about that.
John Dickerson: Well, they didn’t come close in the 10th. They didn’t that Republicans didn’t win in the seventh. They didn’t win in Rhode Island, two, Connecticut, five. All these places. They thought Indiana won all these places. They thought they were going to make inroads into. They just didn’t win. I think part of that is some of it’s candidate quality. Some of it, though, is that there was a general problem for Republicans because of the extremism associated with the party. And this even if Republicans were turning out, surprisingly for an off year election, the end party Democrats were turning out to.
Emily Bazelon: Can I ask a question about women? There was a lot of discussion and we talked about it to this idea that women seemed like they were going to vote on jobs over the summer, and then they seemed to be especially independent women swing to Republicans. Do we know what actually happened in the end?
John Dickerson: What we identified last week and or in our Atlanta show in the week before was that there was a big Republican swing among suburban women. And exit polls don’t have don’t track suburban women that I can find at the moment, at least ours are slicing the numbers down. But what we do know is that Republicans won white women, which is sometimes a rough proxy. Republicans won them by eight points, whereas in 2018 Democrats had that were even with white women. Overall, though, Democrats won women by eight points, but that was down 11 points from the margin of victory the Democrats had in 2018. So in 2018, essentially, Democrats beat Republicans by 19 points among women. In 2022, Democrats only beat them by eight points. So I think that’s so the the trend was certainly there, moving women, moving towards Republicans. But whether it was as large as those pre-election polls had suggested, I don’t think that’s the case.
Emily Bazelon: I have a completely untested theory about Joe Biden’s disapproval rating that I want to run by you guys. So this seems like a real joke around the neck of Democrats that Biden’s approval rating has been in the low forties. I wonder if people care less than it seems like they should at the polls because they have a sort of mild sense of disapproval for Joe Biden. They don’t love him, but they’re not viscerally responding to him the way a disapproval rating for Donald Trump would translate your.
John Dickerson: I mean, that’s not just a theory or it’s it’s proved by the exit polls. How convenient that people voters were much more voting against Obama and voting against Trump than they were voting against Biden, which I think is also when we think about the determinism that was not insane for all of the strategists in the Democratic and Republican Party and lots of analysts to think about. One of the pieces, the determinism beyond the economic view was that a president you know I said it 8 million. Times to a president who’s below 50% in approval rating has lost an average of 36 seats since world since World War Two. And the part of that is basically, you know, people don’t like the sitting president. And the exits showed that they just weren’t that exercised about Joe Biden. And so you’re I think you’re exactly right about that.
David Plotz: I cannot just an ending I just can’t believe that this is coming down again to a Georgia Senate runoff and that we’re going to have to go through this again. It is exhausting.
John Dickerson: What’s fascinating, it seems to me, about that race, I mean, we don’t know if it’ll be for the whole control of the Senate, which will change the dynamic. But Donald Trump is in some you know, there’s a lot of second guessing about Trump, A, based on the candidates that he helped get through the primaries. And Herschel Walker is is kind of the poster child for the candidate quality question. And so his eyes obviously and in Blake Masters in Arizona.
John Dickerson: But but also you know he’s got Trump is in his added to this idea of extremism obviously but it’s not just Donald Trump. It’s a party that basically, despite Trump breaking every possible rule in what was previously their set of belief systems, none of them really spoke up about it. And those that did are gone. Ten of the people who voted for Trump’s second impeachment, eight of them are gone from the House.
John Dickerson: But Trump is toxic in in Georgia. I mean, his you know, David Perdue lost by 50 points to Brian Kemp in the primary for governor in in Georgia. And Perdue was the hand selected, groomed and candidate of Donald Trump. So what happens in a runoff in terms of this break with the party, if it’s happening with Trump? You know, well, they want Trump to not, you know, spend all of his time in in some other country to change that dynamic in Georgia, or will Trump insert himself because he’s worried that he’s he’s dying As everybody falls in love with Ron DeSantis.
David Plotz: Slate Plus members, you get bonus segments on the Gabfest every week. And this week we’re going to do a slate plus segment on some of the closer to home, smaller, maybe slightly more obscure election results that fascinated us. We’re each going to pick out one or two things that that weren’t main headlines in the New York Times, but which are interesting nonetheless. And talk about them.
David Plotz: Now we turn to the consequences of the election. How is the country likely to be governed in the next two years? Who is set up for political success? Ron DeSantis, Who was set up for political success in the next two years and going forward? And what political and policy crises are we likely to see because of these election results? Emily, as we were finishing that last segment talking about Trump, of course, when you talk about Trump now, you talk about DeSantis to just had this incredible, fantastically wide victory in Florida where he he really swept that state, a state which had historically been seen as a as a as a tightly contested state. But it doesn’t seem to be anymore. It seems to be a Republican state. And he way outperformed, as John mentioned, his performance in his previous run for governor. And it looks like he is going to be a very serious challenger to Donald Trump.
Emily Bazelon: Right. And so then you imagine if there really is a what looks like a two person race that Trump in particular is going to try to destroy. DeSantis. I mean, we already see this with him calling DeSantis too sanctimonious and in some.
David Plotz: Ways to sanctimonious. It’s that I mean, first of all, Ron DeSantis does not seem sanctimonious at all. That is not like really?
Emily Bazelon: Well, it’s kind of humorous.
John Dickerson: I don’t. But he can he can be sanctimonious and it can still be a terrible nickname for I mean, he’s a politician.
Emily Bazelon: Fair enough. Anyway, I think it’s going to be a mess. And that presumably is not going to be great for Republicans. And then the second dynamic that seems likely to emerge. Okay, so you have a Republican House with a razor thin majority, which makes Kevin McCarthy, the new Republican House presumptive leaders life miserable. Right. That’s very hard. On the other hand, that also could mean that they’re being led by the nose, by the more extreme Republican members and that what’s it called, that Freedom Caucus. Those people are always threatening some crazy tunes thing like, you know, not paying not lifting the debt ceiling or whatever shenanigans they’re going to pull. Wait.
John Dickerson: What can I just crazy tunes? Is that like the off brand version of Looney Tunes?
Emily Bazelon: Yeah, Yeah, I guess so. Looney Tunes, because I am.
John Dickerson: I don’t care. I’m not. You may like the Marvel Universe over the DC Universe, but I like the crazy tunes universe over the Looney Tunes universe.
Emily Bazelon: I appreciate that. I didn’t really even mean that, but thank you.
Emily Bazelon: So anyway, let’s set aside the Senate for a moment since it remains a question mark. But you could imagine a world in which. The Democrats and particularly President Biden, are running against Republicans, acting sort of their worst, which looks like a pretty good dynamic for Democrats. And then if Democrats hold the Senate, that’s really the best possible outcome, because then Biden still is able to confirm judges. He’s able to, you know, shuffle his cabinet around if he wants to do that. That’s I mean, yeah, that’s the question mark part. But that sounds like a pretty good I mean, I’m sure a million things will go wrong, as they always do, or go differently than I’m suggesting. But it just seems like maybe at least a good place for Democrats to start as they look into the next two years.
David Plotz: I think as a political matter, what you’re describing probably is a decent case for Democrats to have a crazy house that is that is acting self-destructive early and Senate that is able to at least approve judges and to do various things to get Biden’s appointees through. But for the country as a whole, it’s pretty depressing. The chance of any kind of major legislation would be drops to nil. Minor legislation probably drops to nil that if the GOP House is like emboldened to do something nihilistic. Like like not. Pay, you know, not allow us to pay our debts or not pass a budget then. That’s a really bad outcome for the country.
David Plotz: And the way people actually live, like not having national parks open, not having the full faith and credit of the United States trusted across the world anymore. Those are problematic things. So I’m not I think as a as a political matter, it might be good for Democrats, for the Republican House to be crazy and not doing anything as a as a citizen. I don’t I’m not too happy about it.
John Dickerson: There are so many different categories of of things to talk about in in in this case. I mean. Right. We don’t know what the situation is. I think just to your point, Emily, about the Freedom Caucus and the crazy tunes, if if it looks like the House goes to the Republicans and Kevin McCarthy has to to run I mean, has to be speaker, I mean, his troublemaking caucus is so much worse than the squad for Nancy Pelosi. It’s hard to even talk about them in the same context. And his leadership ability is not tested the way Nancy Pelosi says. I mean, John Boehner, remember, in Republican history, John Boehner called people in the Freedom Caucus like Jim Jordan, political terrorists because they didn’t care about any of things you have to actually do to govern. Newt Gingrich, when he was forced out by his version of the Freedom Caucus, called them political cannibals. Those those two speakers had what look like larger margins than McCarthy has.
John Dickerson: When you have a larger margin, you can allow some of your more bouncy colleagues to go bounce around and it doesn’t threaten your votes. But when you say you have to get everything with Republican votes, it’s almost impossible to govern, which means then you need Democratic votes to do anything. And when you start needing Democratic votes to do things, you change the legislation you’re trying to pass so majorly to get those Democratic votes that you then start losing more Republican votes. These are the dynamics that essentially, you know, crumpled Ryan Boehner and to some smaller degree Gingrich. So that’s the kind of fun that Kevin McCarthy has to deal with. And also then it determines who’s in charge of the Senate. If it is Republicans.
John Dickerson: Mitch McConnell is not a House Freedom Caucus kind of guy. So when it comes to those budget questions you’re talking about, David McConnell does care about, you know, not destroying the US economy by messing with the debt limit. Remember when TARP didn’t pass the House first under George W Bush, the market dropped 900 points in a day. And then all of the Republicans who didn’t vote for TARP changed their position and got it through.
John Dickerson: Now, that may not have been good policy, but it’s what ultimately happened is there was a kind of the Republicans in the Senate kind of convinced the House Republicans to do the right thing. And that’s you have that dynamic all the time. Adding to that is the fact that you have all the the Trump allies blaming McConnell for not supporting various Trump candidates, but the McConnell wing of the Republican Party blaming Trump for putting candidates into races that are all terrible candidates and that are costing the Republicans the Senate. That dynamic will repeat itself a thousand times over on every fight, as the Trump aligned folks in Congress assert themselves on every possible budget and legislative thing. So it’s going to be messy, which will maybe distract Democrats from their own messiness, which is probably not great for Democrats.
David Plotz: Can we go back actually to the point, Emily, you were making at the beginning about DeSantis, And DeSantis clearly had the best night of anybody on Tuesday. He is the happiest man in America, but. Is it certainly a two person race for the Republican nomination for president, John? Is it really just already. It’s got to be one of these two guys and there’s not any other credible candidate. And is it and is it pretty clear that Trump is is so wounded that DeSantis is going to walk to it? Or do you feel like there’s there are many, many acts to play probably.
John Dickerson: In desantis’s interests to have a lot of candidates at the beginning because it would it would send the message that the Republican Party has moved on from Donald Trump. All of the things that Donald Trump did while he was in office to change the standards and norms of the way we think about politics. America and the office weren’t enough to break apart the lock he had on the party, but perhaps his, you know, having picked a few bad candidates, will break the lock on the party, which gives you some sense of the of the underlying truth of Donald Trump, which is that he did so well in the Republican Party because he was a winner and people would basically put everything else aside.
John Dickerson: The majority of Republicans would put everything else aside if winning was what he could deliver to them and the max and an effective use of power. But once he looks like he’s not effective, I mean, he’s now essentially lost in 18, 20 and 22, So he might actually be in trouble. But but it needs to be a multi probably a multi fight.
John Dickerson: Now, as I say, that obviously that’s how he won the nomination in 16. The non Donald Trump vote in the primaries was larger than the vote that went for Donald Trump, but because it was split across candidates. But but I think that de Santos doesn’t necessarily want this to be one on one. And also for Glenn Youngkin in Virginia. You know, you got to move when it’s your time.
Emily Bazelon: One dynamic I’m interested in with the Republicans is how much primary voters and the primary field recognizes that they could make this a generational contest. Right? They could realize that a potential weakness for Biden is his age. He’s, I think, about to turn 80 and not pick Trump, who’s the old guy in that mix unless there’s another old person. I’m forgetting any one of the people you named is in the more like fifties category, right? Or somewhere around there. And that would let the Republicans kind of claim, if not use at least middle age.
John Dickerson: It’s an excellent point. But as I try to think this through, I mean, the Donald Trump is the is the greatest and most effective chaos Muppet in the Republican ranks. I’m just ringing in my ears as his interview with Bob Costa and Bob Woodward in 2016 where they were trying to say to him, you know, you have to put your party back together after these primaries, Seems like, no, I’m going to win first. This is at the end of the primaries. He’s like, no, I’m going to win first. And they will all come fall in line behind me. And he was 1,000% right. And he’s been right about that all the way through, basically testing every norm of American political life. And he’s always been right about his party falling in behind him. Maybe he’ll be wrong this time, but that’s just in my mind how right he is. Read his his party and their tolerance for him.
David Plotz: On Wednesday, the Supreme Court heard arguments in a genuinely enthralling case involving the Indian Child Welfare Act. Indian law and Indian Treaty cases are fascinating because they have a very different kind of valence than other cases, because they’re rooted in two foundational issues in the history of this country. First, the creation of the United States involved the expulsion and murder and expropriation of property of the native populations that occupied the land before European settlement. And that mistreatment carried forward in all kinds of ways has carried forward in the history of the country, including very intentional efforts to destroy Indian identity through the forcible re-education relocation of children.
David Plotz: And then second, Indian tribes have a relationship with the United States government by treaty that is entirely different than the relationship that any other group has with the United States, their nations within the nation. They are not like any other group. And so when cases come up about the relationship between Indian tribes and Indians and and the United States government, it’s always really interesting. And this is no exception. So Emily, set us set the stage for us on this Indian child welfare case.
Emily Bazelon: The Indian Child Welfare Act. Let’s just back up a second. Past Congress passed this law because there was this terrible history of Native American children being taken away from their families in their tribes and put into boarding schools where they were often abused. There was a lot of neglect. It’s just a really sordid chapter of American history. And so it’s called for sure the for this law.
Emily Bazelon: And what it does is say that the first when there’s a child whose parents can’t take care of them, first, you go to the family, then you go to the tribe, and then you go to another tribe and you’re supposed to take those placements into account in a way that isn’t quite the same as what we would normally do with another kid, where you just consider the best interests of the child. You’re supposed to give more weight. And the idea is that tribal identity and the community has a kind of stake here and a value that is particular to Indian law and to Native American society and culture.
Emily Bazelon: And there, you know, like I said, there’s this deep history supporting this law. The question in this case is whether Congress had the power to pass this law in the first place, which is really a very radical view of this area of law. And so what the challengers are arguing is that this is a race based classification, and thus it’s unconstitutional, that it violates the equal protection clause because you’re treating Native American children differently on the basis of race.
Emily Bazelon: And of course, what the defenders of the law are saying is, wait a second, As David, as you discussed in your intro, these are tribes with sovereign identities. This is also or primarily a political identity that Congress is paying attention to. And so that’s the kind of fundamental tension in the case. And, you know, then we can talk about how the different justices were grappling with this question in the context of this challenge.
David Plotz: And we should note that when a case involving a child who needs to be fostered or put up for adoption takes place on tribal land, a child who’s living on tribal land, it’s very clear that the tribe and tribal authority makes the decisions or has the authority to make the decision about that. This is involves children who are not living on tribal land and in fact, in a lot of cases are not enrolled in the tribe. And that’s where it gets really complicated.
Emily Bazelon: Yes. Then those cases get litigated in state court. And the question is, what standard does the Indian Child Welfare Act impose on state court judges who would otherwise use the best interest standard? And one of the things that the challengers to the law argued was that these kids who are not enrolled in tribes like that, they were sort of having this identity imposed on them by other adults, which is another whole question about, you know, how to think about kids and where they come from and who they are and how they develop their identities.
David Plotz: Well, it does seem to me that if that if a child is an enrolled member of a tribe, that there’s a very strong case, given the sovereign nature of tribes, there’s a very strong case that you should be very respectful of the tribes decision of that identity of the child. If a child is not enrolled, member of the tribe, their parents and their parents, let’s say, have not made that choice, then isn’t that in itself a kind of political decision that a child that the family has made, that the child has it has said we don’t want to be part of this polity, we don’t want the child to be part of this polity, and therefore treating the child who is as part of this polity and and imposing this identity on them, even though the parents specifically didn’t make a choice to enroll their child in the tribe, seems odd to me.
Emily Bazelon: That’s interesting. I mean, I guess I think it’s really important to imagine that some kids could grow up and want to reclaim that identity. I also and also people have reasons, especially if they’re not on tribal land, for not enrolling in a tribe. And so I don’t think it’s always like a conscious choice, Oh, I don’t want to do this. It can just be not knowing how to do it or the difficulty of pulling it off or just the circumstances that someone’s in.
Emily Bazelon: But I care much more about is what do you do? You know, to me, what’s fundamental with child placement cases is making sure the kid is going to be okay. And so I get very nervous in any context where you have a child who’s placed in a family who’s thriving and then gets taken from that family after, you know, a certain number of months or, you know, a couple of years, that I find that often to be pretty devastating because we know that kids attach. And that just seems to me like a moment where you would want the best interest standard to really have some purchase.
Emily Bazelon: But that part of the conversation is not necessarily front and center in these particular challenges. It’s much more about these questions of like what you were talking about. David What about from the get go? So it’s less about whether you might harm a child by taking them away from a non-native family where they were placed as making sure that that doesn’t happen in the first place and wondering whether tribes even have the ability to do that.
David Plotz: It is really the fight over whether they should be placed with other Indian families, because it does seem to me also really weird to think you’re an enrolled member of Tribe A, and the way that we’re going to protect your Indian identity is to have you live with a family and tribe. It’s not clear why those things. I mean, these are distinct sovereign nations. They are distinct nations, and therefore you should protect that national identity. But how do you protect their national identity? By enrolling them in or by having them placed with a family that’s of an entirely different identity that treats Indian ness as a single kind of as a single thing rather than as these disparate things?
Emily Bazelon: Yeah, I mean, that was the point of a couple of the conservative justices. Justice Barrett, to your exact point, said it’s treating Indian identity as fungible. And I think that part of the law seems the most vulnerable. You can imagine, though, a situation in which there’s a way in which tribes have a close relationship or some sense that at least they’ll be a valuing of the idea of being a native kid. I don’t mean to make it sound like they’re interchangeable. But it doesn’t seem irrational to me. And remember, if this is a political identity, then all that Congress needs is a rational basis for this law. If the court thinks this is a racial identity, then you know there’s a higher standard. And so we’ll just have to see what’s going to happen on the court.
David Plotz: Given the incredibly terrible history of how tribes have been treated and how Indian children have been treated. You want to be very respectful of the views of tribes about water. When tribes say we want to preserve this identity, here are the steps that we think are the best steps and given the circumstances, to preserve identity. It feels like there’s an obligation, given the terrible way the government has handled this before, there’s an obligation to be respectful of what the tribes say they think is the best interest of the child in these cases, because certainly the U.S. government did not act in the best interest of the child over centuries before that.
Emily Bazelon: Right. And I guess one thing I was thinking about absorbing the arguments yesterday is so imagine. You have a newborn baby or, you know, a very young infant and the family is not on tribal land and maybe they’re not enrolled. But the state authorities deciding whether where to place this infant know that they have this tribal connection and that Akua governs. So in that moment, given the history that we’ve been talking about, wouldn’t you want the American government first to look to the tribes for a placement for this kid? Like, why would you want that child to go to a non-Native family without any consideration of this history and tradition they come from when we’re talking about this, you know, incredibly embattled minority in the United States that’s been treated with so much injustice and uncaring. It just seems like.
Emily Bazelon: Right. You’d want to start with that. And if it doesn’t, if you can’t find someone, if it doesn’t work out. That’s like a different problem, but that you would want to have a very robust system for foster care and adoption within tribes and that you’d want to really respect that and nurture that as opposed to just, you know, treating this child like any other child.
Emily Bazelon: And, you know, I should also say in the foster care and adoption context in the U.S., there’s been more and more of a push for kinship ties when kids are placed and a sense that, you know, when you take black kids out of the black community, that’s not really very good for them or a good thing for the black community. And I mean, to me, a lot of those things just kind of make sense as least as like first principles of what to do with babies.
David Plotz: Let’s go to cocktail chatter. When you John Dickerson are recovering from this mammoth week that you’ve had and you’re definitely kicking back with a drink. What are you chattering to the little Dickerson about?
John Dickerson: Oh, my God, I forgot to come up with the chatter.
Emily Bazelon: That’s really profound. First.
David Plotz: Now, let’s leave that in. Let’s leave that in, John. You’ve been so it’s a.
John Dickerson: Part it’s a perfect encapsulation of this week’s, like, totally destabilizing thing.
Emily Bazelon: We’ll just take half of your minutes from your chat our last week and just give.
John Dickerson: Yeah, Yeah, exactly. We people need a I liked what you were saying, Emily. When you’re talking about absorbing that decision or the arguments like you need to absorb last week’s chatter, so I don’t wanna get in the way.
David Plotz: Emily, I hope you’re not so overwhelmed. What’s your chatter?
Emily Bazelon: I’m not. But I have a chatter about the election, which I do want to talk about. These ballot measures in which voters directly confronted questions about whether they want to hang onto abortion rights or not in their state. And all of the ballot measures went in the direction of preserving rights to abortion. So we have votes in Kentucky and Vermont and California and Michigan and Montana. And it’s just interesting to see that even in red and purple states, when you ask people this question straight up, they don’t want to lose the right to an abortion. And we saw this obviously in the Kansas election over the summer.
Emily Bazelon: I was reading some of the abortion opponent response to the midterm results more generally. And there was a lot of blaming of messaging, like if you just change the messaging. And I don’t think so. I mean, a solid majority of Americans think there should usually at least be a right to an abortion. They, you know, would probably like there to be some limits, but they don’t want it simply taken away. And I think that’s just an important political truth that we kind of lost sight of. And it suggests to me that some of the really aggressive tactics to try to prevent women from crossing state lines or try to prevent abortion pills from getting into the states, maybe that is going to have a real political price if Republicans pursue them. And so I’m very interested in how this election affects that dynamic over the next chapter of the political battle over abortion in the country.
David Plotz: Right. I mean, it was interesting that DeSantis at this tremendous victory and one of the reasons he had this tremendous victory, people are saying, is maybe that he just didn’t push on abortion. And they Florida passed a 15 week ban, but he hasn’t pushed for more than that. And that that might have been strategically wise. My chatter is just an experience that I’m having right now, which is that I am on Twitter fast, not because of Elon Musk. It is not I’m not on strike because of Elon Musk. I don’t have an opinion about Elon Musk’s ownership of Twitter, really, But because I was just feeling bad about Twitter and it has made me feel stressed and unhappy.
David Plotz: And I made I mean, I’m a happy person. And I must say that I’m about I’m a week into not being on Twitter. I do look at my DMS and I will tweet a Gabfest episode, but I’m not reading Twitter at all, and it’s kind of great. I’m not sure exactly what I have more time for, but I definitely have more time for something. Listeners, you also have chapters. You’ve tweeted them to us. I don’t know that because I don’t check Twitter, so I didn’t see them, but someone else is checking that at Slate Gabfest Twitter account. But you also either email them to us at Gabfest at Slate.com and our listener chatbot this week comes from Scott Grant.
Speaker 4: Hello, Political Gabfest. This is Scott Grant from Baltimore, Maryland. This chatter is about the do night wine with a side of tangentially related presidential history. My partner and I were traveling in California’s Central Coast and we were hiking around the Guadalupe Bay Nipomo Dune Park where Cecil B de Mille had filmed the Ten Commandments. We worked up a thirst off to wine tasting and San Luis Obispo. We stopped at a tasting room called Do Nights. The man running our tasting told us that the winery was named after a group of wild artists who lived in the dunes in the early part of the last century.
Speaker 4: Turns out around 1918 or so, some people started living in the dunes. Mystics, nudist artists, writers and hermits. If Wikipedia is to be believed sometime in 1930s, Chester Arthur’s grandson, Gavin Arthur, who was a sexologist, moved in and started a magazine and commune called Moy Mill. I totally recommend visiting the park and tasting room.
David Plotz: That’s our show for today. The Gabfest is produced by Shayna Roth, a researcher is Bridgette Dunlap. Our theme music is by They Might Be Giants. We’re on tour.
David Plotz: Incidentally, go check em out. Ben Richmond is senior director for podcast Operations and Alisha Montgomery is the VP of Audio for Slate. Follow us on Twitter at ads like Gabfest and tweet chatter to us there. And also, please send us your conundrum so that we can have great conundrums to Slate.com slash conundrums. You can just go to that website site dot com slash.
John Dickerson: Conundrums.
David Plotz: For Emily Bazelon and John Dickerson. I’m David Plotz. Thanks for listening. We’ll talk to you next week. Isolate. Plus. How are you? We’ve talked a lot about the election. We talked about the big topics in the election, but we also wanted to hit just particular aspects of the election that that enticed us and trapped us, delighted us, surprised us, maybe at a more local level or something that just a race that just didn’t didn’t quite catch the attention that would put it on the front page of Emily’s New York Times. So anyone want to start?
John Dickerson: Because it’s partially what I make my living off of, but we do it a lot here. Interested always in how much any of this stuff really matters. So selling by what do I mean by that? Some of the late breaking questions in the Georgia race and the Pennsylvania race have been around, you know, what we might call October surprises. So in Pennsylvania, it was veteran’s performance. In the debate in Georgia, it was the second abortion that Herschel Walker was accused of having paid for. Or maybe it was the combination of the first and the second in the exit polls with the normal caveats that we have to make about exit polls.
John Dickerson: But so in the exit polls in Georgia, when you asked voters, when did you make your finally make your decision? They ask, was it in October, before October or in the last few weeks? So in the Walker Warnock race, those who made their decision before October picked Warnock But by a very small it was 5049. So basically split. But then in October, it’s 5045. Warnock Walker, Which would suggest that Warnock did something changed in the race that that late deciders are going to WARNOCK over? WALKER There is some scholarship and folk wisdom that says actually it’s the challenger who sometimes gets the late breaking votes. So this would contradict that, but it would so that would be explained by a late breaking piece of news in Pennsylvania.
John Dickerson: Same question. Who wins the October vote odds by 5840. Fetterman had before that been winning 5545 among those voters. But in October, suddenly Oz is an 18.18 points ahead with the 17% of the electorate. That said, they decided in October. Which is interesting because when you look at the national exit polls, those who decided in October, the 19% who said they do pick the Democrats, 5542, so a 13 point margin for the in party for those deciders in October.
John Dickerson: So why did that happen nationally, October? Could it be the Paul Pelosi attack that was at the end of October? What was happening in the nation that changed because all other time periods in the national exit polls, the Republican candidate gets picked over the Democratic candidate. So anybody but who decided before October or after October, but in October, the 20% roughly who picked said they made their decision, made it for Democrats over Republicans.
John Dickerson: So this raises a lot of questions. A, should you even read exit polls this closely? Should you trust people’s time stamping of when they made their decisions? All super valid question, but it also suggests, at least at some level, that these things that happened in campaigns and Warnock Walker and in the Ottoman eyes. Fetterman Ottoman investment that that that these late breaking developments did have an effect on the race so that all of our mind bending analysis of of those races was warranted because it actually real things might have been happening.
David Plotz: I’ll I’ll go next. So I live in Washington, D.C. and there was an interesting initiative on the ballot, 82, a voter initiative to get rid of the tipped minimum wage. So in DC, as in I think basically everywhere in the US there’s a tipped minimum wage. So if you are a tipped worker, you can be paid a wage that is much lower than the basic minimum wage in DC. The tip minimum wage is about $5. And I think the the basic minimum wage, I think it’s more like $15. And the idea is that you will make up the even though you’re only earning $5 an hour in in your wage, you’ll make it up in tips and that’s fine.
David Plotz: And so there was a voter initiative on the ballot here in DC to get rid of that and to say that there’s no such thing as a tip minimum wage. If you are a worker, you get a minimum wage of $15. And this actually we had this as a voter initiative a few years ago which passed, but then it was subverted by the D.C. Council. This was basically the same initiative brought back and it passed overwhelmingly. D.C. voters voted overwhelmingly to get rid of the minimum wage. And I voted for it. I voted for it actually after I listened to it. City cast DC. That was just a snippet from our Slate plus conversation. If you want to hear the whole conversation, go to Slate.com plus Gabfest plus to become a member today.