Democracy’s Nightmare Scenario

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S1: The following program may contain explicit language in the.

S2: It’s Thursday, September 24th, twenty from Slate, it’s the gist. I’m Mike Pesca. You didn’t know we had a problem of creeping authoritarianism. You also know that one way the authoritarianism creeps just by incentivizing underlings, the most authoritative creep to valorize anti-democratic instincts, to glamorize thuggishness.

S1: Now, I asked if you knew that because this lady from a Georgia TV ad has a related question.

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S2: Did you know Kelly Lefler was ranked the most conservative senator in America? Yep. She’s more conservative than Attila the Hun.

S1: Next, in this commercial, we cut to a scene of the year around 450 A.D. A pale white guy actor is playing Attila Attila the Hun, even though Huns were of Central Asian, Turkic, Mongolia and Gergich stock the head Hun says these words to a note taker.

S3: Her fight China. Got it. High tech. Big government. Yeah, sure.

S1: Eliminate the liberal scribes more conservative than Attila the Hun. Oh oh killed journalists. Sorry, it’s actually a more extreme stance, right? The logic is more to the right of Attila the Hun. So Kelly Loffler won’t just kill journalists, she’ll possibly fillet them. It’s hilarious. And then the obligatory pay off where it is disclosed that some weirdly named opaquely name Dark Money radical PAC, who is not afraid to air outrageous commercials, is behind this because, you know, they don’t want to let it be known who actually paid for this thing. And this way the candidate can distance herself from such an outrageous ad. Let’s just hear that part.

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S3: Kelly left one hundred percent Trump voting record. I’m Kelly Lefler. I approve this message.

S1: Oh, that was a candidate ad. What’s her stance on javelin throwing from horseback? Here’s a quote about Atila. From the ancient history of the headhunt quote. There were so many murders and bloodletting that the dead could not be numbered. I four, they took captive the churches and monasteries and slew the monks and maidens in great numbers. Well, her main Democratic rival is Reverend Raphael Warnock. So maybe Lefler is making her position on Christianity and their continued existence thereof clear. You know, that’s one way to cause a wedge in the Christian vote. Raphael Warnock did not seem to be intimidated by the Huhn camp, but levelers rival from the Republican side, Doug Collins, clearly didn’t want to be outdone by the huhn. He released an anti huhn ad where he pointed out that the senator is comparing herself to a person who favored postnatal abortion, killed thousands of Christians, pagan religion, polygamist nicknames, scourge of God by Romans for his atrocities, killed his own brother. Yes, I am sure in the central step in the year for 60 to Atila was involved in the question of postnatal abortion, debating viability after the second trimester. But you see, this is Colins play for the anti-gun vote or maybe just the anti fratricide vote. But when you think about it, Atila killing his brother wasn’t his brother. Also gun and therefore a pagan polygamist, probably an abortion proponent. Oh, I’m sure he would say no. I’m just a backer of Hunda Parenthood. But we know. We know about it. Tell his brother, the notorious Dave, the one you know near as much about Dave, but he was nickname not the scourge, but the irritant of God. Actually, I know what’s going on here. Atila wasn’t just the leader of the Hun’s history records that he was the leader of the Austra Goths and the Åhléns. And guess what? Doug Collins full name is? It’s Douglas Alan Collins. So now who’s the Hun? You’re the Hun. No, you’re the Hun. Sorry, hun. And meanwhile, off to the side and right in the mix to make it to the runoff scheduled for January 5th is Reverend Warnock, whose middle name is Gamaliel. By the way, just like Warren G. Harding, all candidates are actually close in the polls. Pulling out goes in and out. Twenty percent charges of Huhn Sympathy’s might be enough to secure a place at the conclusion of this, what is called a jungle primary, though it probably won’t affect Reverend Warnock because being called a baby murderer, polygamous pagan is the standard argument against every Democrat by every Republican. Anyway, on the show today, President Trump won’t agree to a peaceful transition of power. It’s shocking, but it’s not actually different from what he’s been saying all along. But first, Jonathan V. Last is a conservative who joined with other like minded conservatives who are appalled with Trump to help form the bulwark. He is the website’s editor. The disgust was over the fact that Trump has. Delegitimize the presidency and now with a ram through Supreme Court pick last is predicting the same will happen to the Supreme Court.

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S4: Talk about the consequences of legitimacy lost in the near impossibility of legitimacy we gained. Up next.

S1: So if you want to do a calculation of the nightmare scenario, whatever a nightmare scenario is, it’s pretty much a straightforward product, a multiplication, how bad would the nightmare be were it to occur? And what is the probability or possibility of the nightmare? Multiply those two things and you get how concerned we should be for the nightmare scenario. Jonathan, the last of the bulwark, has laid out a nightmare scenario regarding the Supreme Court probability of it happening. Well, Donald Trump appoints a conservative justice that justice gets confirmed and then in a few months that justice is asked to rule on the election of Donald J. Trump. Huge nightmare. And I got to say, it’s not implausible. Jonathan V. Last joins me now. Do you like when I emphasize the V or just call you John last?

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S5: You know, everybody calls me Gvul, so you can call me whatever you want to call me. I will answer to it.

S1: No problem. So when you wrote this piece about the legitimacy of the Supreme Court just a couple days ago, it was premised on ways that Republicans, mostly Republicans, either in the Federalist Society or in the Senate, can thwart what now seems clear to be an eventuality, a Republican Senate taking up the nomination of Donald Trump. Is it too late then, to avoid this nightmare scenario?

S5: It’s never too late until it happens. So I wrote that piece the just a couple hours after the word broke that Ruth Bader Ginsburg had had passed on. And it was not clear that McConnell would have the votes then. And it was not, if you remember, for the first hour or so, wasn’t even really clear that Republicans would would do this. It wasn’t clear they push ahead. Once it was signaled that they would push ahead, it wasn’t clear that they were maybe they would just announce a nominee, but then say this is who the nominee is. We’ll let the voters decide. And by Tuesday morning, this week, I believe the McConnell claim to have had the votes for it. We heard that Martha McSally and Cory Gardner were going to be too focused in on this. Mitt Romney was going to be in Murkowski and Collins were going to be against and to try to protect the main seat. And I think we’re headed there now. If you wanted to if you wanted to, to try hard to be optimistic about it, the only thing you could say is, well, this would be better than doing it in a lame duck session after they lose the Senate in the White House. That would have been worse. But that’s as close as you get to optimism. It’s it’s really bad. It’s really, really it’s bad for everybody. It’s going to be bad for whoever the nominee is. It’s going to be bad for the institution of Supreme Court. It’s going to be bad for everyone in America who who wants a system of governance which is capable of functioning in a reasonably competent and coherent way over the long term.

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S1: So I’ll relay to my listeners the key sentence in your piece. If Trump and Republicans replace Ginsburg, it will destroy the remaining public legitimacy of the Supreme Court. Full stop. I wonder if this is true, if the case if an election case, if the case of, you know, Donald J, Trump V, Joe Biden or Donald Trump versus the United States or Donald Trump versus Florida, if that actual case doesn’t make it to the court, will the court be destroyed if the court isn’t asked to rule on the election of Trump?

S5: I think so, yeah. I think that I mean, there are more destroyed and less destroyed. Right? You know, it’s it’s a sliding scale. This morning, the pieces out in the Atlantic where Barton Gellman has spoken to some legal advisers connected to the Trump campaign, one of which tells him the following. This is a quote the state legislatures will say, all right, we’ve been given this constitutional power. We don’t think the results of our own state are accurate. So here’s our slate of electors that we think properly reflect the results of our state. What he’s talking about is setting a different slate of electors to the Electoral College in battleground states where Republicans control the state legislature. If we wind up in a Bush v. Gore, but it is a Trump v. Biden type situation is the most likely scenario for the Supreme Court having to rule on it. If that’s where we are, then we’re already a failed state. I mean, if you get to the point where the president of the United States is telling state legislatures controlled by his party to send competing sets of electors to the Electoral College, and you have two groups of people showing up demanding that they’re they’re the real people representing Wisconsin or the real people representing Florida. This is a this is not what happens in stable democracies. It simply isn’t.

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S1: If it doesn’t come to that, if Joe Biden wins so much apparently on Election Day that this won’t even be a play available to them if they think they have the votes in the legislatures of Michigan and Pennsylvania. But turn out not to maybe this won’t happen if the suits if it’s close enough for the Trump administration or Trump campaign to pursue suits, but the lower courts smack them down regularly and don’t agree with them. Maybe we avoid that, right? Maybe we avoid the court having to rule on this. In that case, what does that say about the legitimacy of the court or if we are living in a failed state?

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S5: Yeah, well, in that case, we’re not a failed state. Levels were merely at a level where the Supreme Court is going to come to be regarded, just like every other branch of government, which, you know, compared with the failed state thing, sounds pretty attractive. You say, well, you know, it could be worse, but it’s not attractive. It’s not attractive at all. I mean, we’ve done this weird thing over the years where we have really altered the balance of power constitutionally and we’ve expanded the power of the executive branch. We’ve expanded the power of the judicial branch and and shrunk the power of the legislative branch, which is probably probably pretty bad for us long term. But even as that’s happened, the judicial branch has still been regarded pretty widely as being legitimate. People look at it and they say, OK, I may not like this ruling. I may think that I would like this ruling to be changed at some point. But at least I’m going to respect that. This ruling is the law of the land and it has been arrived at at a legitimate by a legitimate manner. And what Mitch McConnell in the Senate Republicans have done here is is really just break that. I don’t think there’s any other way to say that. And to be very clear, if they had voted on Merrick Garland and then decided to vote on this nominee now, I think that would basically be fine if they had taken the same the tack they took on Garland and not held a vote and then not to vote. Now, that would have been fine. You can make constitutional arguments for one of those eventualities over the other as being preferable. But so long as there some basic consistency, you could say, OK, this might be suboptimal, but it’s not the end of the world doing this with a swing seat. The only remedy winds up being a wholesale reform of the court and reforming the court. Just because we live in the worst of all possible timelines is likely to take the form of an attempted reform which will continue to escalate the problem. And this is why the idea of expanding the court to buy another, what, three justices or six, just however many more justices you want to put on, I think winds up continuing down the very dangerous road we’re on. And the much better way would be to find a find a mechanism which would allow us to deemphasized the importance of the court to make it less of a flashpoint and make it so that we don’t have to have total war every time there’s a Supreme Court nomination. And the obvious answer for that, I think, is to regularize the terms. So the Supreme Court terms are 18 years. You have a regular schedule this way. Even a two term president doesn’t get to have a majority of appointees on the court at any one time. But, you know, I have given up on hoping that anything good can ever happen in the world we live in.

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S1: Well, that’s good. That at least protects yourself. And as long as you are closeted. So when we talk about the legitimacy of the court, Gallup last did polling in twenty nineteen. So what they ask is how much trust and confidence do you have in and they go through the different branches. So the executive branch in twenty nineteen pulled that cumulative fifty five percent expressing not much or no confidence at all in the executive branch, the legislative branch. Sixty one percent. No confidence at all or not much confidence in the legislative branch. Deservedly I would say the judicial branch was at only 31 percent. No confidence they were at 69 percent. A great deal of confidence or a fair amount of confidence. So if it’s seen as illegitimate, what does that really mean? Does that mean that the judicial branch numbers become the legislative branch numbers? Does that mean something other than the perception of the average American or does that mean and this is what I’m leading up to. Even if people don’t have confidence in the president and the legislature, both those branches have the means to execute their policy. But the courts and the Supreme Court is fairly dependent not just on the perception of legitimacy, but the perception by the other two branches of the legitimacy of the court’s opinion.

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S6: Otherwise, we get into this situation where Mr. Tany has made his ruling. Now let us see him enforce it.

S5: Yeah, I think that’s that’s right. And we’ve already seen this with the legislative branch. Look at the way the Trump administration has just simply refused to comply with directives from the legislature, refusing to send witnesses that saying, well, you know, how are going to do that and have the sergeant of arms go and, you know, roust people up off the street and bring them in to testify. Why wouldn’t you wind up at a point where the Supreme Court could make a ruling and the chief executive who happens to also be the commander in chief, could then say, no, we’re not going to do that. Would you put that past Donald Trump? I sure wouldn’t. And, you know, legitimacy is one of these things that sounds like just this gauzy, gooey abstraction. And you don’t really understand how important it is until it’s gone, because it’s the foundation of everything. It is the consent of the governed. And once it goes away, you can’t put it back together again. And, you know, I talk about us as a failed state and we’re not yet. It’s important to say that this is you know, I’m catastrophizing a little bit only because I’m looking down the road to say that you can see how this happens. And even if you don’t think it’s likely to happen, you know, you look at and you say, look, we are unlikely to wind up like Hungary. If there is a five percent chance that America could wind up like hungry. That’s a big fuckin deal. Yeah. You know, like like this is a state of affairs that we have not had in America in one hundred and forty years. And to go from a zero percent chance to a two percent or five percent chance should scare the crap out of everybody. You know, it turns out there are there many people who care, but there’s like 40 percent of the country who this is. The key part that worries me is 40 percent of the country who it isn’t. They don’t care. It’s that this is what they want. And for them, this is the juice. This is what they’re signed up for. And they want a strong man so long as the strong man is their strong man. And I just don’t know how you’re supposed to have a reasonably self-governing republic of three hundred and thirty million people where thirty five to forty percent of them want to be hungry.

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S6: Mm hmm. Isn’t one hallmark of a failed state, not just dysfunction in the branches of government, but in fact, armed insurrection and violent opposition to the failures of the government? So do you predict if the legitimacy of the court comes to pass and our state becomes a failed state, is there any way to avoid some sort of actual violent clashes between the oppressed and the oppressors?

S5: I mean, we’re already there. This is, you know, what we have seen over the last four years, the political violence which has been routinized across the country. And you see this, you know, when you see these giant melees going on for anywhere from Berkeley to Portland to Charlottesville to Chicago, and you got people coming out on both sides dressed with bike helmets and carrying flags that are really, you know, essentially medieval weapons and, you know, changed with each other and pepper spray. This this looks like Gangs of New York. This does not look like America. This is not this is not a healthy country. When people feel that it is so important that they should be out on the street engaging in open armed conflict with one another. You know, of course, you wind up with stuff like the Kyle Rittenhouse shootings like this is it isn’t a question of like, could we get there? We are there right now.

S1: What if this all comes to play? And some of it definitely seems like it’s going to. And there is a court where, you know, Gorsuch is what we would call the swing justice. Do you have any reason to think that Alito Gorsuch, a new justice, Amy CONI Barrett, let’s say, would rule against Trump if a case were to come to it, an election case about who was to be the next president?

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S5: We are very lucky that for the most part, the people on the from both the left and the right who have been appointed to the Supreme Court have been of really high quality. You may not agree with their judicial philosophy and their legal philosophy, but they tend to be very smart people with really good temperaments who are also pretty wise as well. Again, I say this is true of the liberal Supreme Court justices who I disagree with. And I think most liberals would be able to say the same thing about the the conservatives on the court who they dislike. With we’ve been really, really lucky, we haven’t gotten hacks there, there are no Ted Cruz is on the court, you know, there there are no Josh Hawley’s on the court. And I think that remains true. So I would not in the very, very short term, I would not be as concerned about any of the justices behaving in a way befitting of The Apprentice, you know, or reality TV. I think they would take their jobs very seriously. Again, by the near term, concern is over how the public views the court and then where where things spiral out from there, that that is the type of thing that just makes the hair stand up on the back of my neck.

S6: People of my outlook disposition say, well, how much more evidence do you need? But maybe I mean, you’re talking about going beyond what the Trump administration has already visited upon the country. You’re literally talking about destroying the remaining public legitimacy of the Supreme Court. And conservatives generally didn’t denigrate the Supreme Court as they did other branches of government as being inherently flawed because they were a branch of government. The possibility of this happening, is it possible that this could change your mind? Is it possible that this could change the mind of someone who is and has been in the Trump tent, but this is the bridge too far or I’m going to guess it’s for the vast majority and maybe for one hundred percent of people in for a penny, in for a pound. This will not dissuade anyone who is foursquare behind Trump already.

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S5: So let me give you a two part answer to this. The first part is, is this one of the one of the things that has been analytically incorrect about Trump really since he first insulted John McCain, was that people kept saying, well, this is the tipping point that will turn people against him and then another and well, this is the tipping point that will turn people against him. And this this wasn’t an incorrect analytical frame. It was just backwards because it turns out that the tipping point came much earlier and it was in the opposite direction. And so the tipping point really came quite early when people decided to throw in with him. And once they did, then the sunk cost fallacy. SANKIN Right. So with every additional price, it’s not that it was pushing you towards falling away from him. It was actually biting you more tightly to him because you thought, well, you know, I’ve already sunk this much of my reputation into it. So the answer is no, nobody.

S1: It’s like a serial killer who already has 12 bodies. To his credit, the disincentive for the 13th just isn’t there.

S5: Yeah, but on the other hand, in the real world, it’s a big country. We have 330 million people. To say that nobody is going to turn on Trump is is true as a generalization, but not true in the specific. And, you know, there might be ten thousand or seventy thousand or, you know, thirty five thousand people who do turn because of this and because we are looking at what is a really, really weird election where we have no idea how the mechanics of voting are really going to work and what turnout is going to be. That small number could be dispositive.

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S1: Jonathan V. Last is the editor of the Buarque. He writes all the time and a recent column, Ruth Bader Ginsburg and the Coming Political Crisis. JBL, thanks so much. Thank you. And now the spiel, the big news is that Donald Trump would not vow to honor the results of the election, will you commit here today for a peaceful transfer of power after the election?

S7: We’re going to have to see what happens. You know that I’ve been complaining very strongly about the ballots and the ballots are a disaster and that the people are rioting.

S3: Do you commit to making sure that there’s a peaceful transfer?

S7: If we want to get rid of the ballots and you’ll have a very transparent, very peaceful, there won’t be a transfer. Frankly, there’ll be a continuation.

S1: This is big news because it is an alarming break with every norm of democracy in the history of this country and a dangerous hint at an openness to perhaps even an admission of the groundwork being laid for something akin to a coup d’etat. And that is why it’s news. But why it isn’t news is that, well, it’s not new. The president has been saying a version of this for months and months. Here he was just the day before in Pittsburgh.

S8: And then they have these fake ballots, millions and millions of ballots, by the way, when when not if. When you see shenanigans, please report it to authorities so it’s not new.

S1: The quote that went around from the press conference is a little tighter. It’s a little easier to digest than the usual rambling falsehoods which lack syntax and a through line. I mean, I played the Pittsburgh quote, it was the ballot part of his weird sentence which had a big wind up and a landing. All right. I want to hear the whole thing, how he got there. All right. Here’s what reminded him and brought him to ballots. Are you church is still closed.

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S9: They’re still closed. They’re doing it for a reason. By the way, November 4th, they’ll announce we’ve decided to open up, OK? They’re trying to make our numbers as bad as possible.

S8: So California is closed. Pennsylvania is closed. North Carolina is closed. Michigan is closed. That’s another beauty right there. Michigan’s closed. And then they have these fake ballots, millions and millions of ballots.

S1: OK, so from there, from churches and our numbers, he hits upon ballots and now you’re thinking, OK, I’m sure if he sticks with this for another four seconds, he’ll say what he said at the White House. In fact, I can’t guarantee a smooth transition of government. But now his brain couldn’t stick with a thought for that long. So listen to where he goes from ballots.

S9: The real authorities, they’re watching and the authorities are watching. But please report.

S8: But when you look at it, really, it’s amazing. And they’re trying to make our numbers look bad. But even with numerous close states and, you know, also law and order. Right.

S9: Law and order, the red states, the Republican states, they’re working great record low crime record low. But Democrat run states, you look at Chicago, you look at New York, New York has gone through it. We have to bring back we should draft Rudy Giuliani. Okay.

S1: From churches to numbers to ballots to law and order, to Rudy, Rudy, we like Rudy, Rudy. Rudy. This is why Brian Karum, the reporter who asked Trump the question, knew there would be a benefit to keeping him focused tightly on the issue at hand, as he told radio host Stephanie Miller.

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S10: And I wanted it to be as succinctly annunciated as possible. So I try to be as blunt. And so there’s no waffling. There’s no wishy washy. You know, part of this question this are you going to support a peaceful transfer of power? And that’s putting it to him like that, I think also doesn’t give him a chance to cut you off. He’s a president. You have to ask questions to in 15 words or less or he’s going to come after you and cut you off at some point in time and you just can’t allow that to happen.

S1: So mission accomplished. But the accomplishment has been a little bit overstated insofar as Trump has stated this before. There are a lot of boffo jaw dropping hold the presses stories about a thing you can’t believe. Trump said that you should believe it because he always says a couple others in this category, Trump’s admission to Bob Woodward about the virus being a serious thing. No such admission, no such unprecedented admission. He says that he said that. He said its opposite. He often does that. Here’s another example. When Trump sided with Putin over the FBI in Helsinki, he actually said all of that before. What was different was the backdrop and the supporting cast. Putin, I was a little bit more shocking. So in a way, it is maybe the fault of our attention spans in the media that they need the most perfect quote to make the case that Trump is saying what he’s been saying all along. On the other hand, I get it, it is hard to concentrate by design. And just because something is not new doesn’t mean it’s not notable. In fact, you know, you could argue that there’s a service to every once in a while, for whatever reason, for us to pick up a blog from the White House trash fire that’s still smoldering. I will not tell you what type of blog I’m thinking of and just examine it once again anew. Hey, I say let us not get habituated to this outrage. It is no less outrageous just because it’s ubiquitous. If it takes thinking a thing is new to draw some attention, maybe that’s worth the slight fiction of pretending we have a scoop or a screamer. It’s usual and highly unusual at the same time, and that doesn’t mean it’s not troubling. Senator Ben Sasse of Nebraska dismissed this latest presidential admission by saying the president says a lot of things. He does. Indeed he does. And it is OK to pay attention to the worst ones. He says a lot of things seems to imply he doesn’t mean these things, but of course, he means them because he’s still saying them. Reporters question Trump outside his chop shop helicopter. Trump was said in these remarks to him about the place had to have doubled down, though we know at this point it’s quintupled down or DOD GECC three down. The question was, is this election only legitimate if you win?

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S11: So we have to be very careful with the ballots, the ballots. That’s a whole big scam. You know, they found, I understand, eight ballots in a wastepaper basket in some location. And they found it was reported in one of the newspapers that they found a lot of ballots in a river. They throw them out if they have the name Trump on it, I guess. But they had ballot.

S1: Yes. The ballots found in a location or in a river or a van. Neither river. In truth, no ballots were found in a river. There were three trays of mail found abandoned in Wisconsin, which, by the way, is not an extremely sophisticated operation to rig an election. Maybe it’s more like something fell off a truck. And by the way, let’s also note that the usual claim is that mailed in ballots helped the Democrats. So what is throwing them away do for you? But there is one part of that story, anecdote, anecdote that Trump got wrong that is kind of relatable. And it’s this. The mail, which included ballots, was found in a ditch, which is where we all might find ourselves if Donald Trump gets to pursue the argument to the logical conclusion.

S4: And that’s it for Today Show, Margaret Kelly produces the gist, she always thought the Visigoths overshadowed the Ostrer Goths, but when you get down to it, the ostrer goths were second to no goth in terms of barbarity, which is the rubric that the Goths like to count. Daniel Shrader, just producer, is from Georgia, where his father is irreverent and where he learned horsemanship and archery skills, which can only be considered now that we look back on it as a sort of Honi internship. Alicia Montgomery is executive producer of Slate podcasts. She’s currently suing the Columbia Record Club because, dammit, she did mail back her card, declining any purchases this month. The mailer must have wound up in a ditch in Wisconsin. The gist? I’m not saying what Kelly levelers next commercial comparing herself to is going to be, but Atlanta casting agency is calling for actors to play the roles of a shit house rat and a bag of hammers. I’m proud of you and thanks for listening.