SCOTUS Discussion: Kavanaugh, Abe Fortas, Nixon and LBJ – w Chris Novembrino – Part I

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The Kavanaugh nomination and a bit of Supreme Court nomination history.  A discussion and at times debate with Chris Novembrino of Don’t Worry About the Government podcast.  This one does get a bit opinionated.



Bruce Carlson: [00:00:21] Special episode of my history can beat up your politics the voice that you’re about to hear will be no stranger to you. He is the voice behind all in the family podcast as well as don’t worry about the government podcast. He is Chris Novembrino. He’s also the author of the theme song for my history can beat up your politics. Chris how are you doing.

Chris Novembrino: [00:00:44] I’m doing well Bruce. Any time we get together I like to call it all the consonants. That is the name for the joint episodes between my history can beat up your politics and don’t worry about the government or the terrible Wheel of Fortune choices.

Bruce Carlson: [00:00:59] I’d like to buy a vowel… OK. I felt like I had to address the Supreme Court. My back episodes have been a little insufficient in terms of what’s happening today. I am the history behind the what’s happening today. Guy I just felt like I needed to discuss this issue as controversial it is and discuss that with you and then also talk about court packing because that’s coming up. And that’s something we’ve discussed on this program you know as much as 10 years ago. Let’s just talk a bit about what happened in a Supreme Court.

Chris Novembrino: [00:01:35] And so where shall we begin.

Bruce Carlson: [00:01:37] I guess the best thing for me to do is to make a kind of opening statement. It’s very legal. And like where does history play into this. And in a lot of ways it doesn’t. The the idea of the Anita Hill and the Thomas hearings has already been talked about at length in the media. So I mean there’s not much to add there. There is your historical archetype if there is anything to grab onto. It’s not like something like what happened with cabinet and Ford. Other than that Anita Hill hearing has happened a lot in history right. And if anything both events which you know by the way dare we think that they’re so far apart there are senators voting in both cases. I mean Richard Shelby of Alabama votes for Thomas and for Kavanaugh. So does Hatch.

Chris Novembrino: [00:02:30] And then you also have the senators who arrived in the Senate in the first year of the woman back in 1992 and that year of the woman in 1992 was spurred on by the Anita Hill hearings.

Bruce Carlson: [00:02:42] Absolutely I think it changed things and so what I think you can discuss what happened in the hearing room and then there’s also a separate discussion about politics in general and about what something like Dr. Fords testimony can bring about what type of political movement it can it can inspire. And I think we’re going to see something it’s a little bit of a change even in the Hill hearing you have this idea of a specific person testifying and then a potential Supreme Court justice testifying. So it’s almost like X verse x Hill verse Thomas Ford verse Kabanov. Right. There’s something about that that seems unfair. A Supreme Court justice candidate by nature brings with them some credibility a federal judge to begin with and then you have this lone accuser in it. So that always strikes me as in the past in history that isn’t the way that necessarily it went. Usually the correct way these things go would be if there are serious allegations about a candidate it’s from the executive branch that it’s going to get dealt with. The president’s going to withdraw their nominee when this happened or or convinced that nominee to themselves withdraw. This happens with Abe Fortas. During Lyndon Johnson’s term where Abe Fortas was very close to Lyndon Johnson too close for a lot of people but he did get nominated and approved for the Supreme Court.

Bruce Carlson: [00:04:19] It was when Lyndon Johnson wanted to make him chief justice to replace Earl Warren that a number of Southern conservatives had a problem with him and drag that nomination through the last year of Lyndon Johnson’s presidency giving the pick to Nixon. Abe Fortas you know withdrew from consideration and ended up resigning from the Supreme Court because there was a scandal involving payments that were made to him by a very rich person and possible conflict of interest Ginsburg during the Reagan administration. You had the case of Clement Haynesworth during the and this one seems most applicable here during the Nixon administration. Nixon got a lot of picks by the way. I think that’s something that people realize Nixon almost got the change the court. He gets a lot of picks. In his first term before he’s bothered by any Watergate things that might have made nominations difficult. And you’re seeing also that Trump is having this larger than many President impact on the court before we get to pick one Jimmy Carter picked no Supreme Court justices. Not every president gets to pick one. So to have two it’s a pretty significant change and influence on the court.

Chris Novembrino: [00:05:34] So and that’s part of the reason for the contentiousness I think so you go back to Abraham Fortas real quickly when you said that LBJ and Fortas were close. How were they close. And how does that compare to the way that Trump seems to want to have Neal. Gore Cichon Brett Kavanaugh sort of under his metaphorical wing. Trump is especially in the case of Kavana almost started moving into a protective stance with Kavanaugh. What was the nature of Fortas and LBJ relationship?

Bruce Carlson: [00:06:09] He was his lawyer. He was a significant friend very good friend.

Chris Novembrino: [00:06:14] And so there’s Trump nominating Michael Cohen or something.

Bruce Carlson: [00:06:17] Yes and it is. And it does in that way differ from the cabinet on who had experience with the Bush administration. And Trump has always been friendly to that side of politics. So one of the reasons why I think there were the votes right because you had both sides of the Republican Party united on this one and that’s why there’s a bit of you know beers for Cavanaugh’s movement or approve a movement because you’ve got both sides united for once. Where they’re you know not that there’s this big divide because I think Trump is winning a lot of that battle of the minds of the at least the people that are in the Republican Party. But there are problems there and you know. So anyway he comes from that bush where whereas Fortas was very much LBJ as person LBJ by the way makes a nice archetype for anyone who’s thinking about Trump and the actions you know like how could any kind of anybody like this who has such a view of himself who wants to take such strong actions all the time. Who wants to control the media.

Chris Novembrino: [00:07:19] You know LBJ was very very into himself just listen to the tapes and not just some of the more infamous ones just listened to the way he talks about the things he has this vision of himself as like Winston Churchill like figure a great man in history and he will and the way that he treated people and the stories manifold of the people that work for him or around him the senators that worked with him. Humiliation was a big thing for LBJ.

Bruce Carlson: [00:07:45] The LBJ treatment you know getting right in your face yelling at you threatening you. You know also very positive though glowing praise on you when you did what he wanted but it really was. It really can be said it was all about him and we still retain you know a mixed image of LBJ but depending on where you stand in politics not certainly not a he’s an ineffectual.

Chris Novembrino: [00:08:10] No.

Bruce Carlson: [00:08:11] No one says that LBJ was ineffectual right because of the accomplishments there is there is. I mean obviously someone that’s very conservative looks at the Great Society with great disfavor but outside of that kind of perspective you’re talking about a president that gets a lot of credit in the history books for what they what he accomplished. Yet the exper or the phenomenological experience of of working with LBJ or having LBJ in that moment of what is he going to do next is probably one of your closest analogues. I mean Nixon as well. So what you’re seeing so many Nixon comparisons and it’s probably time to also bring out LBJ to make it a little more bipartisan there that at least in the mentality of who is behind the Resolute desk there is is similar.

Bruce Carlson: [00:08:57] Now I think in their public statements both presidents you know it was also an older time and you didn’t have the you did have instant communication actually but you didn’t have that president run instant communication but you had a lot more prepared statements.

Chris Novembrino: [00:09:11] This was the era of the prepared statements.

Bruce Carlson: [00:09:14] And Lyndon Johnson for all his issues was very concerned with sounding good and you know he makes some great speeches and when he repeats Martin Luther King’s line in a presidential speech coming from a white southerner you know that’s a great moment. He’s not you know always just winging it. But in terms of the indoor presidency. Sure there’s a lot there and I think in putting forward is he wanted to control the court he wanted to control everything and extended. I mean thank God for the 22nd Amendment because extended that’s not that’s not good for the American presidency. I should say thank God for the 22nd Amendment and Eugene McCarthy and Robert Kennedy for kind of coaxing him out of there because I don’t think you know many more years of LBJ would have been would have been good for the presidency. Just as I’m not sure that many more years of Nixon would have been good for the American presidency.

Chris Novembrino: [00:10:08] No I think both. There are just such extreme personality types. Again going back to how they are affect will both Nixon and LBJ for all of their flaws and I’m not saying this as an endorsement. I’m just saying in terms of actually accomplishing things they did stuff and when they went to go do stuff they large zoo accomplish the tasks that they set out to do and were able to get through the boondoggle gained the Civil Rights Act passed is no small feat. Neither is prosecuting a war in Vietnam not necessarily in the virtuous way. But like all these things are very very effective things.

Chris Novembrino: [00:10:46] Absolutely. He was one at one thing that he had that Nixon had some of not even as much Trump doesn’t have. Clinton didn’t have Obama didn’t have.

Bruce Carlson: [00:11:00] We’re going to be talking on the premium cast of both our shows about the Woodward the new Woodward book and past Woodward books and how Woodward exposed in one of the Obama books that you know just it took a lot of hitting the ground running with a new president like that LBJ wasn’t that he had been majority leader since the 1954. He was a master of the Senate already. And you don’t get presidents like that too often. But that came with the control that a majority leader’s mentality has and maybe wrongly applied to the presidency. I don’t know like anything else what’s the best thing in the world the best government in the world is the benevolent king right. And maybe a temporary one. So sure for a short time that’s great. But getting back to the Supreme Court one of the things he wanted to control was certainly the Supreme Court. And so Abe Fortas provided that function.

Bruce Carlson: [00:11:52] No it’s not the same with Brett Kavanaugh in terms of being a really close ally to Trump although I believe that maybe President Trump views everyone that way that they should sort of be reporting to him in an extent and doing doing what he wants. That’s just how he’s run his business how he’s so far run the presidency. Howie around the Apprentice show. Which I used to watch by the way

Chris Novembrino: [00:12:19] So which I used to watch by the way it’s funny that you brought the elected King thing because back in the day I used to say kind of half as a joke but I kind of have series too that the optimal form of governance is a one term king who served for two years. They take over. They have exactly one term they never face re-election. They have the ability to go with their and do stuff but not for too long.

Chris Novembrino: [00:12:46] And they can’t drive the car too far in the wrong direction if the people want to continue going in that direction they can elect someone else who is a form of continuity and if they want to depart from that then they can do that as well. But obviously not our system but like that is in my mind the most effective form of government in terms of getting stuff done and actually responding to the popular needs the Constitutional Convention thought about a 6 year they thought about no re-election but then they figured that first of all I think there are two issues.

Bruce Carlson: [00:13:17] One they always thought of Washington that office is always in their minds. They knew Washington it was the president of the convention and he was going to be the first president. Why would you want to deny a guy like that a lengthy term because they knew under his leadership things would be good the way I want if get a really good one.

Chris Novembrino: [00:13:32] It was the rationale at that time. If we get a really good president you want to keep them.

Bruce Carlson: [00:13:35] They knew they’re going to get a good one. Right. And then they would they did worry about what would come afterwards. And of course that’s why some of the protections are in there but they wanted to keep that re-election because they also were worried about the person lacking energy if they knew they were getting out of office. Larry Sabato over at the. I think he’s University of Virginia one of the Virginia colleges maybe. Yeah. OK. He’s got a crystal ball guy right. Crystal ball guy. He had a great idea which is four years plus an optional two. So if the president wants to and the people want to they can have the president serve two more years. But that said this way first of all I love it because it upsets the apple cart on some of the electioneering and the timing of the midterms and yeah change the rhythm of American politics which might be useful although parties would quickly adapt. But it also you know it’s probably right where what you’re saying in other words can’t be too lazy because you might want to go for that two years.

Bruce Carlson: [00:14:28] They can’t treat the president like a lame duck because he could snap and when the two year election and then you’re in trouble.

Chris Novembrino: [00:14:34] If you were if you were aiming at him being out of there and you don’t have that dead zone in the last two years of the second term of presidencies where things tend to not get done if you go and look at the second term of Clinton and you go and look at the second term of George W. Bush or the second term of Obama. These are not peak accomplishment times and so they’re not getting stuff done which means America kind of doesn’t get stuff done in that lame duck last couple of years in that lame duck period has gotten longer and longer and we can discuss why that is and I guess that kind of ties back to Kavanaugh a little bit but the norms have changed such that we now perceive the president as a lame duck starting her own team once the election right.

Bruce Carlson: [00:15:18] It can. Yeah they’re not in the re-election mode we certainly they’re not they’re not a figure.

Chris Novembrino: [00:15:22] In 2007 George W. Bush didn’t exist anymore and Hillary Clinton and Obama you know how soon we forget where we’re battling for the presidency and totally claiming the national discourse. It’s hard to believe that something like that would happen to a President Trump but I do believe even in the first re-elect when Democrats start running there actually will be a there’ll be someone else at the microphone for the first time actually the one hidden little story behind Kavanagh here is that for a few weeks Kavanagh was the name being most reported on the activities of the Senate were being reported on and not President Trump. And since he hadn’t had a great summer at least in my opinion that was actually a breather that I’m. I wonder what the impact on the midterms will be on that. I can’t say. But to me it was like giving a team that was pretty tired arrest.

Chris Novembrino: [00:16:21] So Trump kind of sidelined himself when things really started getting dicey with the Kavanaugh nomination. And that was the conventional wisdom on my show. I praised Bill Shine who is not my political ally by any stretch and I don’t think he’s a great guy or anything but he clearly has some media savvy and he was able to say to Trump look we just need to say a very limited amount of things and you’re going to say let’s to the investigation and wanted to keep Trump kind of on a leash. But then Trump got on the stage in I believe it was either West Virginia or Mississippi. He did a rally in one of those two states and he had what I considered to be almost sort of like a deplorable moment once he started mocking Dr. Ford.

Chris Novembrino: [00:17:08] And the reason I kind of view it as a deplorable moment is is something where yes the conservative narrative has been Donald Trump going after doctor for Brett Kavanaugh giving the fiery speech that he gave it was galvanizing. It rallied the conservative women. What if it was one of our men and I get that there’s an argument and I have conservative friends and I’ve heard this argument articulated. I believe that this is a good faith argument. All I’m saying is that on my side of the aisle once Donald Trump started going after Dr. Ford it wasn’t just going after Dr. Ford. Perhaps this will illuminate things for the right of the audience. It was going after every single one of us who believes her and believes Ramirez and who has looked at this facts set in this case and has drawn the conclusion that Dr. Ford is telling the truth that Brett Kavanaugh had a serious drinking problem in high school and in college that involved blackout drinking so he can’t say definitively one way or another that he remembers or doesn’t remember things because the documented evidence is that he drank very heavily. When Donald Trump got on the stage and started mocking the entire theory of the case and that will bring us to Susan Collins as well it irritated everyone because it wasn’t just about sexual assault a sexual assault survivor that is more than sufficient. It is mocking everyone who believes survivors of sexual assault. And so it was very very galvanizing.

Bruce Carlson: [00:18:42] You have two issues there one is that we’re in the white heat of a partisan battle of a lifetime appointment to the Supreme Court and also that Trump is a free safety player I believe in the partisan battles and is free to do to an extent because of what he’s crafted and the Republicans have figured out how to maneuver around the chaos agent that is Donald Trump very very effectively because he was able to muddy the case the strategy that’s always been in the past in politics is that if someone says something outrageous you counter and you’re really destroying that person and they have to sit on the sidelines and that’s still very effective for a lot of people when when they say something stupid in politics right. That’s not with Trump I.D. He’s established himself as something different. He has certain abilities.

Chris Novembrino: [00:19:33] One is that he is so polarizing and he uses it he uses that polarization effect super effectively. However I do think and this is going to be the part that I think will surprise a lot of Trump voters and Republican voters. There’s going to be a backlash on this and it’s going to be much bigger than they think just based off of what I’m seeing from people who have generally been moderate and tepid voices. This touched a nerve.

Bruce Carlson: [00:20:01] In politics you assume you’re playing a game and I think especially the older participants in the Senate and what have you in the party still have this mentality. They’re doing a political we have our base. We use terms like base we are trying to get our vote out. We are trying to get this appointment to the court. They are trying to do this to us. Democrats are trying to smear us. These are all typical political vocabulary. You have now introduced a new group of people who have zero interest in your politics.

Bruce Carlson: [00:20:34] And that would be victims of sexual assault who are now teleporting into this debate we’re having perhaps some interest in the Supreme Court but it’s not necessarily their priority. And also I think a larger group of women who know people who have a more humoristic sense of this issue which you have now awoken into and put on put put the badge on and your politics in that they know that there have been so many cases of sexual assault that have been not reported.

Bruce Carlson: [00:21:13] They know that there have been so many cases of sexual assault that have happened and never been prosecuted properly. We’re only now touching the iceberg with me too and Bill Cosby and things like that.

Bruce Carlson: [00:21:26] Having that knowledge they cannot accept some of the arguments that you’re hearing on the other side like they don’t have a place for the politics of it.

Chris Novembrino: [00:21:34] They don’t want to hear about the game and they don’t want to hear about quote unquote the rules of the game or this quote unquote is improper. They want justice they want. Right in wrong. They don’t want to hear about game theory.

Bruce Carlson: [00:21:46] So for instance if the argument is why haven’t you reported this after all this time. That is like nails on the chalkboard for anyone who knows people who have had a situation like this and I believe that that group of people is awfully large.

Bruce Carlson: [00:22:06] Ok so this was something that was buried in society for so long. No one has patience for it anymore it’s bubbling to the surface whether it was Trump or whether it was starting with Bill Cosby or before Trump. Anyway it’s here. And I think you’re right to an extent that ignoring that part of it might be done at the peril now. They’re taking a bet they’re taking a turn out that they’re taking they’re going full on with politics and saying look here’s the other side. This is a smear campaign. They brought it out late there. They’re speaking in all the political vocabulary. And I think on the other side are speaking in the vocabulary of a victim of sexual assault. And this one is going to I do agree for instance if you ask me what happened with Flake I think Flake ends up doing the week delay and then ends up voting the same way. He simply wanted to get rid of the marker on them too much has been made of the people shouting in the elevators that’s not alone.

Chris Novembrino: [00:23:07] Yeah yeah I think that that was way too overemphasized.

Bruce Carlson: [00:23:10] But he knew that he would then retire and flake forever would become the denier of sexual assault victims. So he wanted that week spaced it out.

Chris Novembrino: [00:23:20] So Flake made that calculation and I get where he was coming from. But I think it was a mistake because if you look at his popularity ratings such as you could typify him as popular he is not held up by Republicans were Jeb flakes support was coming from was Democrats. Frankly it was people closer to my lane. Among Republicans in the state of Arizona it was around 25 to 30 percent. He’s actually enjoying equal support from Democrats so my point is here Bruce is that when you piss of all of the Democrats who make up the bulk of your support you actually sort of end up making no one happy which seems to be what Flake has a knack for.

Bruce Carlson: [00:24:03] He’s in a better position than he was the week before even though of course he’s going to have a low opinion among. Right now he’s not looking at approvals. He’s looking at if he has any future in what’s going to be a very purple state. I believe of Arizona.

Chris Novembrino: [00:24:16] Yeah I just don’t think Republicans reward him for being wishy washy. They want the don’t get wobbly on me Jeff type of people.

Bruce Carlson: [00:24:24] Local Arizona might be a little different and maybe runs as an independent. I don’t think he’s going to get a Democrat. I guess Flake’s future isn’t as important to me as saying that what he was correct on seeing on the other side coming at him was that it wasn’t just going to be a partisan vote it wasn’t going to be Republicans and Democrats. If there is another group involved here and that sexual assault survivors and even sexual harassment survivors people that want this issue to be enlarged and in this week the Supreme Court battle became a forum for that and they were they were in the arena and they were invisible perhaps to at least one of the side or it’s just part of their strategy not to look at it they’re looking at their the on the on the Kavanagh’s side the argument is you know this is unfair. The last minute.

Chris Novembrino: [00:25:21] This is the death of civilization. If you can do this to this man. When will it stop.

Bruce Carlson: [00:25:26] Personally.

Bruce Carlson: [00:25:28] You know watching Dr. Ford’s testimony. When people talk about like what’s your first reaction. You know my first reaction I had to leave the room and you know just go outside and process it. I’m someone that has watched politics for my entire life. So if you want an example of somebody who is you know it’s something outside of normal politics and B where I I can tell you that that was my reaction I betcha it was shared by a lot of people. Yes it did. When Cavanaugh spoke changed the situation a bit it was the trumpet call for. You know I’m being mistreated here. You look at history in a situation like this normally with the exception of Tamez normally it’s up the executive branch you really pull back the candidate and and their and I actually feel that and this is where we could probably go into Collins in her speech a bit and we might differ. You know we’ll see. It was really the role of the executive branch historically to not introduce this debate to the floor of the Senate and that the Senate was ill equipped to process allegations that had happened 35 years ago what have you and then to put that into the context of a Supreme Court pick to also look at all the other things that they’re supposed to be looking at.

Bruce Carlson: [00:27:05] First of all speaking of Abe Fortas that this cabinet is a very you know had been involved in a number of not just judicial operations but in some of the great debates between some of the great events between Republicans and Democrats politically. You had been involved in certain political activities as well as judicial activities so and including the recount including the NSA spying you know so there’s there’s there’s a lot else there that that wasn’t looked at there are things that they should look at more and then they’re not really equipped once the president nominates through the process of advice and consent to to do that. So I have have some degree of sympathy for senators who have to make this call.

Chris Novembrino: [00:27:51] They were doing the executives job for the executive because it could have happened. All of this really is. I’m with you on this. All of this ultimately is a failure of the executive and for as much anger as there is towards the senators for the final vote.

Chris Novembrino: [00:28:07] And I don’t think that’s invalid. What has to be remembered and has sort of been left out of the narrative especially in a lot of the TV coverage is all along the way the executive branch decided we’re just not going to do stuff right. We’re not going to do a thorough going FBI investigation we’re going to cut corners on this. We’re not just going to pull Kavanaugh three weeks ago and put up Roman Catholic or Thomas Hardiman or someone else who looks just like Neil Gossage and is uncontroversial doesn’t have this baggage because it’s not just the Dr. Ford stuff. There was a lot more there than just the Dr. Ford stuff. They could have put someone else up and they didn’t.

Chris Novembrino: [00:28:46] look in terms of someone thinking that that this is all Democrat versus Republican and that there is no other issue here. I mean Gorsuch was a candidate that didn’t have such Algate he think. Do you think the Democratic Party didn’t want to know but the ice road truckers story like his jurisprudence was getting he checked but he didn’t have any of this baggage. And to your point Bruce he went to the same prep school as Cavanaugh.

Bruce Carlson: [00:29:15] You know I didn’t even know that. I probably should have but I didn’t even pick up on that.

Chris Novembrino: [00:29:18] Yeah. I mean these guys are they’re not they didn’t I don’t necessarily know that they ran the same circles but these guys grew up on a similar path and have a similar career arc and Cavanaugh’s the outlier because of his personal behaviors. It’s him he himself they could help someone else. Hardmen Catholic. These are guys who Juris prudentially are identical. The Cavanaugh but they don’t have all the baggage of being a Bush administration apparatchik or a Ken Starr apparatchik and all of this other stuff from his past.

Bruce Carlson: [00:29:53] Now I think that there’s another dimension with these questions is not just we always look left right away. You look at the politics and you look at strategy and look at what both sides are trying to trying to do. The obvious Trump philosophy which conservatives this is why Trump usually polls high with Republicans in polls. There might be some sampling going on but this is generally why I think it is because it’s not about issue the issue the way that they view Trump is this guy fights back and nobody else.

Bruce Carlson: [00:30:23] They were they are absolutely they are absolutely wrong about nobody else did it. It’s just that at certain points you know mainstream Republicans have compromised or they have been fighting all along but it in their view in the populist view and the GOP side. This guy fights. This guy doesn’t give up therefore ergo I would say that’s where you see the president’s actions with Cabinet on that in other words it’s a bigger step than what you think. Even if the guys that are going to come next are qualified and conservative it’s admitting defeat on some level.

Chris Novembrino: [00:30:59] And I think for Trump that Obamacare repeal vote that went down. It’s all about winning.

Chris Novembrino: [00:31:06] And he needs to be a perpetual winning machine The strategy of a president who’s going to take it up to 11 every time to use this now overused metaphor because it is like Spinal Tap.

Chris Novembrino: [00:31:16] It’s OK with Spinal Tap references.

Bruce Carlson: [00:31:19] Every time every day I now I see the little Stonehenge in my mind you know dancing around but the more correct way to handle the presence he usually is that presidents transform a bet that they improve. I mean I guess I’m looking through the view of the presidency where the beginnings it was you know triangulation it’s very poor performance and then he’s going to later get get a lot better and do things differently that aren’t the gut instinct. And so you know I guess we don’t you know doing this the way that they always do. You know I’m going to win every time I’m going to hit my opponent’s hard. Yeah I do think if that doesn’t change that’s going to be improved. Clinton had to bring in people who were not like him who were not his friend Mack McLarty you know to to change. We’ll see whether that happens or not. I can’t I can’t speak to that. So far you know you don’t see too much of that. But I think that that’s that’s what Nixon took away several several nominations he withdrew because the NBA didn’t approve of them. You can’t even imagine that now I don’t even think Bush would have done that any more. They just you know so.

Chris Novembrino: [00:32:31] And that’s what’s crazy about Kavanaugh is that his confirmation to the D.C. Circuit Court was choppy.

Bruce Carlson: [00:32:39] Right. He’s been involved a lot. And we talked about that and how partisan you know Harriet Miers is another example of a partisan nominee too close to the president that was withdrawn and would have been in Roberts space. So I think that you know it is it’s this is normally how it’s handled you now kick it to the Senate and force the senators to vote. I think it’s a very different thing. I do think you look at Murkowski as argument. You look at Collins’s argument and there’s two different sides there. Mikulski looks out and says you didn’t you know essentially not the another right guy not the right time you didn’t read him bring me a good candidate for Supreme Court. That’s my interpretation of advice and consent. Collins looks at advice and consent and says there is a presumption.

Bruce Carlson: [00:33:24] First of all that the president’s nominee comes through and then I have to look at it you know and then the whole I believe Dr. Ford but I don’t you know that kind of all that kind of stuff that she gets into and then the longest speech for somebody who is so undecided.

Chris Novembrino: [00:33:40] When exactly did she write the speech.

Chris Novembrino: [00:33:42] Oh yeah I think that she had decided this weeks or days ago. I feel like she certainly decided that before the FBI investigation concluded and I think that that is certainly a very open question because her whole thing dispositional is well I’ve kept an open mind and I want make sure I saw everything and I want to make sure that the FBI investigation was full and thorough. But to your point if she wrote that speech on Wednesday or she was already going to work on that speech on Wednesday and they didn’t even get the FBI investigation I believe it’s till Thursday. But if it was Tuesday and you saw writing and they got the FBI investigation on Wednesday the point is she had made up her mind about how she was going to vote before the FBI investigation ever concluded. And I found her arguments to be very unsatisfying because she presented a version of the theory of the case that frankly doesn’t make any sense and because her theory of the case is I don’t know if you were following this on Twitter. There’s a man associated with the federal suicide is named Ed Whelan and he’s a friend of Brett Kavanaugh.

Chris Novembrino: [00:34:49] And about two weeks ago now he got onto Twitter and went on quite a crazy tirade on behalf of Brett Kavanaugh that involved looking at floor plans from Zillo charts and things and ultimately accusing someone else of the sexual assault of Dr. Ford saying that this person was a classmate of Cavanaugh’s and hey they look kind of similar. So maybe Dr. Ford has a sexual assault confused and it wasn’t Cavanaugh and she’s just gotten this whole thing terribly confused. It was in fact this other fellow and Dr. Ford came out and knocked down that theory explicitly saying that she knew the person that Ed Whelan was naming and actually visited him in a hospital room back in high school so she knew him had no ill will towards him and he was definitely not her sexual assault. But it seemed that Susan Collins in her final statement defending how she was going to vote rendered into a theory of the case that was Edwin lite and managed to make it as an argument without ever name checking. Ed Whelan right.

Bruce Carlson: [00:35:59] I think the overall argument of oh it could have been someone else is probably not a place to hang your hat on. I simply and I’m not her manager. I’m not a staff member. I simply would make an argument about the agency of the Senate. If I was making that speech I would have said look I here’s my situation. I’ve been presented a nominee by the president. I and I totally agree with this but this is what she’s arguing.

Bruce Carlson: [00:36:29] I have a presumption that we have to pass the president’s nominee unless I can find something that seems wrong especially if you’re actually thinking about that without party politics. Right. So then is obligation for all nominees is to vote yes unless otherwise in her voting record sort of reflects that.

Chris Novembrino: [00:36:50] But that doesn’t wash at least for me.

Bruce Carlson: [00:36:54] You have to go back to James Garfield to have somebody who has the exact vote of Kalena and there’s never been one that V.P. had to weigh in on. So it’s very. Usually they’re approved of course. You know of course the argument would be that there’s all this vetting that occurs and should occur beforehand.

Bruce Carlson: [00:37:14] But. So you know I would you know make a case for the. Well you know if I was her and wanted to vote the way that she was I guess this is being her lawyer for a second. I would have made an agency that we don’t have the equipment here to judge this. These allegations have been made. We don’t have enough. You know there’s a jurisprudence of doubt and voting yes and go with it instead of making theories about what happened to the case which now subjects you to being equally wrong in your own theory. And then you just proved a guy for the wrong reasons. So I sort of agree and disagree around that yet.

Chris Novembrino: [00:37:57] Well if your theory of the case doesn’t make sense. It’s very hard to motivate the votes because her vote is premised on a case logic that doesn’t make sense. And more importantly so she in her speech addressed the Ford allegations and the sweat neke allegations but sort of conveniently avoided all of Cavanaugh’s time in college and the Ramirez allegations and the things involving truth courage and Delta Kappa Epsilon and the blackout drinking the allegations from his roommate that Kavanagh had a keg in their dorm suite and he and all of his suite mates were routinely drunk because if you have a keg in your suite you’re probably drinking from it morning noon night.

Bruce Carlson: [00:38:46] Yeah I do retain a memory of college. We had a guy we had guys in the dorm next to us who had the wall of beer cans you know just that a constant it was constant service as much as you know you know when you have coffee in the office now.

Chris Novembrino: [00:39:00] But Collins unburden herself from having to explain any of the Coalwood stuff because the theory the ED theory only if you accept it at all and I don’t think it really makes a lot of sense if you accept the one theory. It only worked for Ford. It doesn’t cover any of his behavior in college and it sort of leaves you nowhere on any of that stuff.

Bruce Carlson: [00:39:25] I feel that they chose not to adjudicate any of that. That’s only being adjudicated from the Democratic side and their argument to go to that side of things his drinking supply comes down to I like beer. You know of course there is right. We all know that if that were to be examined with a lot of other people you know that’s something that you wouldn’t want. I read an old novel from the eighteen forties and they’re talking about the college students and you know in Virginia universities drinking too much there was in Thomas Jefferson’s University of Virginia when it was first founded there were some rowdiness that I suspect no doubt involved drinking and he had to adjudicate I mean this is not you know drinking in college in America as not a thing now. I understand the point but just so you know that that’s going to be what the other side is going to say on that issue every time. Really. You’re saying none of these. Look at these senators of course it didn’t work out well when Kavanagh’s said that. Clover joy that was the wrong person to pick. But that argument. You know in a larger sense if you want to start looking at every every.

Chris Novembrino: [00:40:34] It’s essentially the you ever played quarters argument and the thing they weren’t effective at pushing back on was the idea of no it’s not about did I ever drink beer or did I ever play quarters. It’s about did I routinely drink beer or play quarters such to the point that I could be ascribed as having fuzzy memories on that night. It’s not about his drinking. It’s about his memory. And I don’t think the Democrats did a very effective job painting that picture.

Bruce Carlson: [00:40:58] Right. But I think from their side if they see that issue they’re ceding the whole thing. They weren’t willing and he was willing to see the whole thing. And the president wasn’t willing to withdraw the nomination she had a series of things where yeah probably an all other lot of other situations but it’s a different time. Everyone’s looking at their own media everyone’s so you know having their really their own interpretation of the story not that a lot of that didn’t happen all the time not that it wasn’t partisan press all the time but this were really in that zone the most important thing that’s on their minds on let’s say Trump the Republican senators is that they’re going to do stuff like this to every nominee. Right. That’s their core thinking. And so they always say it’s like it’s like the Microsoft you know it has some Tabac and send afront. You know Republicans send to front that they sent to back to some degree their belief in Dr. Fords testimony if they even addressed a lot of what she said whereas for Democrats that was the center front right. This is the priority. The first thing is that this this woman testified. Now to take that side for a minute it is not crazy to think that a person’s testimony alone. And the believability of that testimony alone isn’t something to consider in and of itself happens in American courtrooms all the time and the willingness to go under oath.

Chris Novembrino: [00:42:34] I mean I think to champion that side a little bit. Yeah there is this thing that’s constantly being asked of these accusers of meeting the standard of proof. And it feels like moving goalposts. And I really really feel for Dr. Ford and for Mr. Ramirez because they keep getting asked to do more. OK. Do the lie detector test. Why would you do a lie detector test. OK delivers sworn deposition. It’s not enough to be anonymous. OK. You got to come forward and name yourself. Well it’s not enough to come forward and name yourself. You also have to go under oath and once you go under oath I’m not going to believe you.

Bruce Carlson: [00:43:12] Judges and juries all the time assess the credibility of witnesses and their testimony alone all the time in every courtroom in the land. There’s people sitting in jail cells because of a person’s testimony. Now I do understand you also want as much evidence as possible but that is just to discount that entirely and say oh that’s I’m not even considering that you know. You can’t. So it’s but of course this is a. How do you how do you parse this issue. I mean this is this is a you know this is an extremely difficult one. And I think maybe what was the answer was Flake was Flake solution the best was flakes solution plus three weeks plus a month the best was everyone voting no the best. I mean what would have been right. I do think that the Supreme Court can last a little while you can. You can go two months and look at stuff more. You can you can you know suspend the hearings and do a more thorough investigation it’s not going to be the end of the republic so I think there was that there’s all types of solutions. I guess you know no one really stood up and there was no middle no middle at all. So. Hey Chris thanks for coming on. My history can beat up your politics always great. Always great to hear from you where can people find your stuff.

Chris Novembrino: [00:44:33] Well Bruce it’s always great to merge all the continents together with you once again. And for me Pangia of consonants as it were you can hear me over at. Don’t worry TV that. Don’t worry about the other podcast. Also at patriae on Dom slash D.W. heg my other other show is the all on the family podcast which you can hear at the All in the family podcast Dom or actually I’m sorry. It’s all in the family podcast Dom but search for it. You’ll find it or patriation dot com slash all in the family. Also on iTunes and Stitcher you can find me on Twitter at CHRIS NOVEMBRINO Thanks for having me Bruce.

Bruce Carlson: [00:45:14] Thanks Chris.

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