Hi, I'm Molly John Fast and this is Fast Politics, where we discussed the top political headlines with some of today's best minds and Marjorie Taylor Green mark September eleventh by suggesting Red States seceed from the US and calling President Biden a trader. We have such a great show for you today. The Texas Tribunes Patrick spy Tech stops by to tell us all about Texas Attorney General Ken Paxton's impeachment hearing and the comic relief it has provided us.
Then we will talk to Brennett Center for Justices Michael Waldman about all the fuckery and the Supreme Court. But first we have the author of the Big Lie pod Save Americas, Dan Pfeiffer. Welcome back to Fast Politics.
Dan, good to be here.
We needed you asap and I was literally like, this is an emergency. This is a Dan emergency, and you were writing about it, and you were talking about it, and you were you about it, and you've also been here before. So we are going through the worst news cycle ever, which is the national polls have Biden close to Trump news cycle. Biden must drop out discuss well, I actually was.
This has caused me to think back to a very dark period of time in my life, which was this exact period in twenty eleven when Barack Obama was in a tie with the generic Republican in public polling but losing to a generic Republican and are much more precise and better internal campaign polling DC. We didn't freak out at the same level back then because twenty sixteed had
not yet happened, but people were freaking out. Doug shown in Pat Caddell to one time Democratic polsters wrote in up ed in The Wall Street Journal calling on Barack Obama to drop out in favor of the much more electable Hillary Clinton, which is something that has amazing The main argument in that was it a Hiler Clip was more electable, would be that Republicans liked her better, so they'd be more willing to work with her if she was elected president than Obama.
Wait, I just fainted. I'm sorry.
Yeah, I mean, it's really an artifact of its time. But so this is not an unusual situation. In fact, Chris Hayes pointed this out on his show last week, that Reagan was tied with Mondale at this exact point in his presidency and Clinton was tied with Dole at this exact point that president's see and so there is precedent for incumbent presidents being in this polling position than winning in fact, quite large landslide victories like Reagan who
ended up winning forty nine states. I always want to find a way into situations like us to fit somewhere between. You don't want to be complacent about it, because there are some real warning signs here that all of us should take heat of, but also not panicking because we're fourteen months out from the election and we've been here before.
Tell me what the warning signs are.
If you look at the polls right now, there are three or four things that I think are worth otting. One is Joe Biden's age is a big concern. It is a big concern for a lot of voters. Now, is that a solible concern? You would like to think so, you know, he will have fourteen months to prove that he is doing the job well now it can continue
to do it for four years. And how he performs on the campaign trail, particularly in high leverage moments like debates, in convention speeches and stay of the union will go a long way there. So that's point one. Point two is that and Nay codn wrote a really good piece of all the starchives, is that Joe Biden is currently underperforming with voters of color, particularly black voters and Latino
voters without a college education. There is not really a path to an electoral college victory without improving on where he is today. He doesn't have to get to where Barack Obama was in twenty twelve or two thousand and eight, but he's got to be doing better than next is
young voters. Biden is struggling with young voters, and the biggest issue is not someone is not that they're going to vote for Trump, that is not happening, but that they are either expressing significant openness to a third party candidate or are stating as of right now that they will not vote if the choice is Biden indro And even among voters twenty five to thirty nine in the New York Times poll, sixteen percent of them would either not vote or vote for someone other than Joe Biden.
And that is where a Green Party can today. Yes, like Cornew West, who's camp, who's my first cousin, Peter dw who I recently unfollowed on Twitter is working for and he will suck up that vote.
Yeah. In fact, there's an Emerson College poll of Iowa that is out today, you know, sometime this week came out this week that where Cornell West is getting five percent of the vote and for that for those five points are coming away coming from Biden. Now does that matter in Iowa? No, I don't think four points is going to be the difference in Iowa. But you know one point is a difference in six states.
Right, So tell me what are the reasons to feel like we shouldn't drive the car off the road and end it all?
I mean, the reasons we should drive the car to be hyperbolic Arnie, Right, Robbian, That's basically where a lot of people are right now is as they're freaking out, they are looking for other candidates. They're lamenting wh I know and ran against Biden. Here's the thing. You have to look at these polls this far out not as a prediction of the election, but a roadmap of how you get to where you want to be on election. And I believe that this will be an incredibly close election.
You know, my tortured, tired metaphor is that we should prepare as if this election will be decided across four or five states by fewer people than attended a Tailor Swift concert. Like that's how it is, right, It was sixty thousand and forty thousand people this time, sixty thousand people the time before. This is going to be incredibly close.
You would probably rather be I think in that scenario, Joe Biden, as we see here today, is the slightest of favorites in that essentially coin flip with Trump, and that for a couple of reasons. One incompacy matters. It is a huge advantage.
And that's one of the reasons that Republicans really want by now, is because they'd rather have someone who's not the incumbent.
They would rather have twenty nine Democrats averaging each other for the next six months as opposed to Joe Biden spending you know, taking these polls and we're all freaking out about I imagine since the Biden campaigns on the air and the primary Biden superback us on the air, their polls say something similar to what we're seeing publicly, and they so they now they know we have fourteen months to bring these bring the Biden coalition back into
the fold to rebuild the majority that one in twenty twenty and one in twenty twenty two. That is a much prefer for You'd rather be doing that than either Biden being challenged by someone and running around Iowa, New Hampshire for the next few months or this free for all battle. I mean, does anyone want to revisit the twenty twenty Democratic primary?
Republicans?
Right?
Exactly?
None of us do, right, And so that's one. Two we don't really know, and I think this is why we all need to bring some significant humility to using past precedent and how we talk about these things is we just don't know how much things have changed over the last election or two because of sort of the rise of magic extremism, sort of a hyper speeding up
of polarization since twenty sixteen, and the pandemic. And so reason number two that you would feel good or slightly better about Biden is the economy as it looks today, for as unhappy as people are about it, and there are some sciences that people are starting to feel a little bit better, is consistent with the sort of economy that incumbents get reelected. It Now, obviously the polling shows that Biden has to do a lot to convince people about what he's done to take advantage of that. But
that is there. And you'd much rather be running for reelection in an economy with historically low unemployment, wages that are creeping up, in costs that are creeping down, and an economy that's growing than the opposite, right, And that seemed like the opposite seemed like a real possibility six or nine months ago. And the map is slightly more
favorable to Biden. Right. The states that Biden needs to win, the six battleground states, with the exception of twenty sixteen, voted for Democrats most of the time, are particularly Arizona and Georgia, are trending demographically in a more blue direction,
and they performed well in twenty twenty two. And that's a very positive sign because that means that there was not a lot of times you see states like oh, you know, Obama one Indiana and North Carolina in two thousand and eight, and those states immediately snapped back Republican right afterwards, and that did not happen in Georgia, Arizona. They re elected Democrats in the midterms and what should have been a very tough election of Democrats fighting just
simply has more paths to two seven. So he has structural advantages that you don't see in the polls. But the thing here is that this is we all just have to recognize, and I think a lot of people are coming to terms with it now because these polls are out, is that Donald Trump can absolutely win this selection. He absolutely can. He can do it with ninety one and felony indictments. He can do it with several felony convictions if he's not serving from prison. That is the reality.
And I think a lot of people really hoped that one he could not win after everything he did, and then that we would not live in a country where a man with ninety one felony indictments related to trying to violently overturn an election and steel classified documents could be a flip from the presidency. And that's sort of where we are. That's probably where we always were, just now we've now we're now we're aware of it.
I want to take you back for a minute and just talk about how unprecedented it would be to remove an incumbent president from office and have a primary contest right now. I mean there is no roadmap for this. Talk about that for a minute, yeah.
I mean you mean removed as if for Biden, for someone to try to take on Biden and beat him.
Right it says, well, you know, he's overperformed in the midterms in twenty twenty, we've seen these special elections. He's overperformed. But because he's three years older than Trump, let's do a full primary contest.
Jonathan Chait in New York Magazine wrote this piece over the weekend that was sort of like, why hasn't a mainstream Democrat challenged by not RFK Junior or Mary Williamson, but someone like Keavin Newsom, JB. Prisker, Kreshian Witmer, Elizabeth Warren, Bernie if someone who has a credible case to actually
win a Democratic primary. And the reason these people have not done it because they all want to be president, some of them have run for president before, some of them will certainly run for president in the future, is that they would almost certainly lose, almost certainly lose Joe Biden.
For all of everyone's panic and worry and talks about how he's how you know, the need for a Promray and all of that is Joe Biden is, and this is I think this would blow people away because we talk about Trump as if he is the cult leader who can lead Republicans off a cliff. Right now, in the polls, Donald Trump's approb rating among Republicans is seventy seven percent. Joe Biden's approble rating among Republicans, and the New York Times well was also seventy seven percent.
That is unbelievable.
Yes, so, and you're seeing on the Republican side how hard it is to run a primary campaign against someone who nearly eight and ten party members like you wouldn't win that race. I don't think any of these people could beat Joe Biden. That's why they're not running. And they're not running because no one wants to lose. If you lose, your career is probably over. But also, people have a belief, based on history, that a primary challenge makes it more likely that the combent will lose in
the general election. We believe that because and I will stipulate that every presidential election analogy suffers from a small sample sized problem. But the three incumbents have lost reelection in modern American history. Two of those three, Jimmy Carter and George Wish did so after a very divisive ideological primary challenge. The only one who did was Donald Trump, who brought his own set of promos to the table. But so this belief is if you challenge, you probably
can't beat Biden. And if you try, then you will probably make it more likely that Trump wins. And no one who cares about the country, cares, or even cares about their own political career would do such a thing.
Yeah. I think that's a really important data point that those people who are having anxiety attacks need to remember, is that this is not doable. The thing that I keep thinking about is this idea that like, we've spent so much time obsessing about polls. I mean, you'll remember, right before the mid terms, we were told that Republicans were going this is going to be the biggest Republican blowout ever. I just don't really trust polls. Of is this my moral failing discuss.
No, it's I don't think it's a moral failing on. I think if someone wants to say I don't care about polls, this far out for because polls have been wrong a lot of times recently, and they change a lot. And I just gave you know earlier in this three examples of incumbent presidents who won reelection with relatives who were at this exact same place in the polls, and
that's probably a healthy way of going about life. My argument is we should look at polls seriously, not The point here is not that Joe Biden is up by one or he's down by one. What the polls tell us are this is going to be a close race. The Trump's legal problems are not going to be a deal breaker for a large part of his electorate. Biden has some real work to do to rebuild his coalition to be able to win. He's underperforming with people that he got in twenty twenty. He's got to fix that.
And he absolutely can win. And there's no evidence in the pulse that either that Biden can't win or that some other person would be necessarily be better than because Biden's electibility argument is quite strong because he beat Donald Trump last time, and then, as you pointed out, in every political test since then, Democrats have done well with him at the top of the ticket. So that makes it even another reason why it'd be hard for someone else to come in and try to make the opposite case.
The thing I will say about twenty twenty two because a lot of people have responded these poles saying, well, the polls predicted a red wave that didn't come, and so the polls must be missing something post Dobs that Dobbs awakened, which Dobbs definitely did awaken political movement in this country. But if you really go back and look at the poles in twenty twenty two, they actually were historically accurate. The problem was the analysis of the red wave.
The problem is analytical, not mathematical. Everyone looked at the economy, the map, history, Joe Biden's approval ratings, and then believed that the red wave would happened anyway, even though the polls were quite close. If you want to ignore the poles, ignore them. If you want to look at them and pay attention to them, you should not find ways to
dismiss them to fit our more desired narrative. Because I think the polls do paint an accurate picture of where this race is today, and they offer us a road wrap on how to get it where we want it to be. Fourteen months from now.
Let's talk about a Republican who is helping the Democrats right now. His name is Kevin McCarthy.
Yes, yes, yes, yes, and.
He is ready to impeach Joe Biden for dot dot dot dot.
Oh, he's going to find out eventually, he's.
Going to find out. But let's talk about this. The thing I am struck by is Nancy Belosi was anxious about impeaching Trump because she remembered nineteen ninety eight eight. Obviously, Kevin McCarthy does.
Not or remember twenty eighteen or twenty nineteen.
Tell me your hot take on what is happening here.
Kevin McCarthy is throwing everything against the wall that he possibly can to save his job. Kevin McCarthy is putting I mean not to mention in sort of the integrity of our fundament of our governing system at stake, but he's putting his majority and the Republican Party's chances in the twenty twenty four presidential election at risk, or to keep his own job. Because you know, as the reason Ny, Nancy post was exactly right to be nervous about embarking
on peachment. It was the morally correct thing to do, and I think Democrats would have suffered if they had walked away from that moral obligation. But politically, Donald Trump's numbers went up during impeachment, and I my suspicion is that Republicans continue to go down this path, that Joe Biden's numbers will go up in part because he's underperforming with people who like him and voted for him before.
And so what more, what is you know? I it'd be hard to imagine a better way that to bring Democrats home to Biden than a Marjorie Taylor Green ordered in Peachman inquiry over nothing.
Yeah, it does seem incredible. I would also want to point out Republicans have this House of Representatives by four seats. It seems like there's a Santos Plea deal in the works, so that would mean a special in a Biden knee district. McCarthy is also talking about something that makes a party wildly popular, a government shutdown discuss.
Well, I mean the original Kevin McCarthy. I mean, I really think he is one of the dumbest human beings to ever serve in a position of high political leadership of the United States. And that's saying a lot because just all the ways in which he screwed this up. Are
serve unbelievable. His original the only original reason he opened the impeachment can of worms was to keep the government open, because he was going to go to the far right and say, look, I know you're you don't want to vote to keep the government open, but if you have to do that, because otherwise we have to shut down this in peachment in query, you care so much about it, Except Kevin McCarthy either didn't realize didn't think the MAGA
Republicans read the fine print. Because the impeachment query does not have to shut down. If they shut down the government, one person in the House Representives gets to decide what stays open to what doesn't, and that person is Kevin McCarthy, and so they can pressure him to do that. Just
think about how this plays out. Right, They embark on this impeachmenticquarerer, they hold high profile hearings, they go looking, they find nothing, and so they don't even hold the vote, which seems like a pretty good talking point for Biden when he's pushing back on Republican accusations of corruption and a hunter bullshit or whatever else. Or they hold a vote,
vote fails, seems even worse for Republicans. Hold the vote passes on a party line vote over nothing, and that also helps Biden, as it probably helped Trump in twenty twenty. And there are nineteen, maybe eighteen, if George Santos Hesseliva's seat, nineteen Republicans in Biden's seats, and those nineteen Republicans have
to decide between voting to impeach Joe Biden. And they're going to need to get people who vote Biden at the top of the ticket to vote for them to keep them in the House or vote against impeachment, or walk away from impeachment and repose it and infuriate the Republican basis turnout. They also there is no way in which this turns out well for Kevin mcarthy. He is just in galaxy, braided himself into a corner.
Yeah all right, well, I like it, love to see it. Thank you so much, Dan for joining us.
Of course, happy to do it as always.
Patrick's Vitech is a political correspondent at the Texas Tribune. Welcome to Fast Politics, Patrick cevi Tech, Thank you so much for having me, so delighted to have you. You are covering what is perhaps not the trial of the century, but in my mind it is so explain to our listeners a little bit about what this trial is, how it came into being, and whatever backstory you want to give us.
Yeah.
So this is the Texas Senate impeachment trial of Ken Paxton, who is currently the suspended Attorney General of Texas. The state House voted to impeach him in and the way it works in Texas is once the House votes to impeach you, you're immediately suspended from office. And so this Senate trial will determine whether he is permanently removed from office. The governor has appointed in term attorney General in the meantime, but this Senate trial is all about the whether Ken
Paxton will be permanently removed from office. He faced twenty
articles of impeachment in the House. Much of the case against him goes back to twenty twenty, when several of his top deputies at the time reported him to the FBI and reported concerns they had about his relationship with a man named Nate Paul, who is at the time was an Austin real estate investor and in twenty eighteen had been a kind of mid level campaign donor to Ken Paxton, and the allegations basically boiled down to Paxton and Paul got too close, and there's alleged bribery in
that relationship. There is an alleged extramarital affair between Paxton and a woman that is also tied up in that relationship with Nate Paul, and so much of the case we're hearing against Paxton does center on that relationship that was reported to the FBI in twenty twenty by those former copy deputies in his office.
Okay, I want to stop you and go back for a minute. Is Texas estate where Republicans, where one party impeaches the age of that same party, or now give us this sort of backstory here.
This is unprecedented in that it's an impeachment of the attorney general. We've never had an impeachment of the attorney general before. This is just the third time that we're having an impeachment trial in Texas's one hundred and fifty year plus history.
So it is a very historic moment.
You know, it is the first trial I think we've had in more than a quarter of a century. There's very high stakes here, and I think that we have rarely, if not seldom, in modern political history in Texas have we seen the ruling party try to hold one of their own accountable like this. It is just that politically is just un her model political history in Texas.
Yeah. Now let's talk about Ken Paxton's wife, Angela Paxton. She is a Texas State Senator but cannot vote in these proceedings. Just explain to me a little bit. This seems like this marriage might be in trouble.
Well, the way that the two of them tell it, or the way that the people close to them tell it. You know, Ken Paxton confessed to this affair to his top aides back in late twenty twenty. Angela Paxton, his wife, was at his side at the time that he did that. And I believe that they have since then tried to present a united front. And I know that you know, to a lot of people that feels unnatural and awkward, but it does seem like something that they have worked
out in their marriage. Of course, this trial is putting all these really painful details back on full display, and so I don't want to claim to have any insight into the state of their marriage as of this moment, right because this is a very painful experience for both them, and I assume especially for her.
But sort of more importantly, they've stayed married.
They have stayed married, and they did both appear at a political event in their home county on the Saturday before this trial started, and you know, in my view, made a very deliberate show of affection and made a point of appearing jointly at that event and embracing one another and showing that they were a united front going into this.
And again, she cannot vote in these proceedings because I guess of her marital status or her involvement in this story. But she is a member of the body that will vote to remove him.
That is correct.
Yeah, she has been a state senator since, oh, I believe twenty seventeen, twenty eighteen, in this Senate, and there was when the Senate passed the trial rules back in June. They passed a recusal rule that didn't mention her by name, but basically said, anybody who's a spouse of a party the impeachment who serves in this chamber cannot vote in it, but they can't attend. And under my reading of the
law and constitution, they have to attend. There is a I believe it's either in the state law or in the state constitution that during an impeachment proceeding in the Senate, every senator has to be present. And so the Rules Committee in the Senate, the committee that was coming up with these rules, was kind of in this unenviewable position because there was such a glaring conflict of interest in
their ranks. But at the same time, you know, I think the law requires that each thirty one senator has to be there.
I want to pull back from and talk about Ken Paxton's role in Trump world. He was sort of the most trumpy aga. Can you talk about some of the ways in which he expressed his undying field date to Trump.
Yeah, he actually was, you know, to take it even farther back, he was actually in the twenty sixteen presidential election cycle. You know, he was, I believe, a line with Ted Cruise until you know, the summer of twenty sixteen, you know, and he was actually, you know, I think among statewide office holders one of the people who held out longer back then. I mean, you know, Texas was still Ted Cruz country back then. Ted Cruz was probably a bigger star in Texas back then than he is
today in terms of the Republican primary electorate. Paxton, though ultimately gone on board with Trump when he became president, worked to defend or be supportive of different Trump policies when they went to court. And of course, you know, it all leads up to in twenty twenty his most you know, probably his most famous, you know lawsuit on the national level, which was that lawsuit he filed trying to get the US Supreme Court to reverse the Trump's
reelection loss in for battlegrout States. And so that lawsuit in twenty twenty, I think really cemented his status as you know, one of the most pro Trump Attorneys general out there. And you know, it continued. The embrace of Trump continued into his re election race in twenty twenty two, when he was facing a number of prominent challengers, including the Land Commissioner at the time.
George P.
Bush.
George P.
Bush was the first major challenger to declare against Paxton back in twenty twenty one, and for a while there, Trump kind of teased the idea that he could actually endorse George P.
Bush.
I mean, he made a statement saying that he was you know, watching the race and likes Ken Paxton. But I'll have a decision soon. But ultimately, you know, Trump endorsed Ken Paxton for reelection in that twenty twenty two primary, and even though it went to a runoff against Bush, Paxton defeated him saldly. And you know, I do think Trump's endorsement early on in that race was pretty critical to that primary not being that competitive at the end of the day for Paxton.
But Ken Baxton did try. He was one of the attorneys generals who tried to overturn the twenty twenty election.
Yeah, and like I said, I mean that is I think a lot of people got introduced to him nationally with that lawsuit he filed in December twenty twenty. I believe obviously was you know, unsuccessful personally, it endeared him to Trump even more. There was a lot of speculation at the time that he was so endeared to Trump as a result of that that maybe Trump was going to parton him on his way out of office or
something like that. Because just various legal problems Ken Paxson has had over his career, So that really I think endeared him to Trump. And I do think it was, you know, a political ploy to you know, really cement himself in some ways as you know, a new rising figure and kind of the pro Trump, you know, mega movement.
I know I shouldn't be so obsessed with Ken Paxton's lawyer, but I'm a little bit obsessed with Tony Busby. First of all, I know that Tanning is a choice, and he has made this choice to tan very intensely. But he also says kind of incredible, incredible stuff that like feels like it's right at a saturn end lot. I've imagined if we impeached everyone in Austin who'd had an affair, we'd be impeaching people for the next hundred years. We
also heard him say imagine what did he say? Something like if taking a campaign contribution were illegal, you'd all be in jail. Talk to me, I mean he feels like a performer.
Yeah, absolutely so.
Tony Busby is a very prominent criminal defense attorney also practices on varias, but an attorney out of Houston, long time, known as a big personality. He ran and he's no stranger to politics. I should say, he ran for Houston mayor in twenty nineteen. He ultimately lost, but he self funded his campaign and brought the incumbent mayor at the time, Sylvester Turner, to a runoff. And so it was a
contentious and you know, relatively competitive race. And even before that, people in politics probably knew him as Rick Perry's defense attorney. When Rick Perry was indicted in in fourteen twenty fifteen for abusive office, you know, for some some funding he vetoed. Buzzby successfully defended Perry in that case, and Perry got the indictment dismissed. So this Buzzby is someone who has been known for years both in the political and legal worlds in Texas, especially.
In the Houston area.
And as you point out, I mean he's known for his showmanship, being bombastic, potentially getting a rise out of people. And I think you're you know this, this trial I think actually gives him kind of the you know, the
biggest sandbox for it. You know, Yet, because you don't necessarily have the traditional guardrails around lawyers, you know, rhetorical flourishes that you may have in a an actual formal courtroom setting, I mean, Buzzby I think has definitely been able to take advantage of some of the looser parameters of this trial to really let his you know, to really just be himself, I think, and be a big personality and be propocative.
Yeah. I mean, it really does seem like he's kind of the star of this trial.
For the average person tuning in, I do you think he may stand out as the star? So yeah, for those of us who've been watching politics for a while in Texas, you know, we know he's This is to be expected with him. And I should note as far as his political life is concerned, he's also actively running for a seat on the Houston City Council in the November twenty pre election while he is dealing with this case in the Senate, so he's got a lot on his plate.
First, I want you to talk us through what, because not all of us are completely versed in the laws of the Texas state government, what happens now in this trial.
So this trial is going to probably wrap up the end of this week Thursday or Friday, because there are time limits on each side. So there's a finite amount of time each side gets to make their case, and you know, at that point the case will go to the jury, which are the thirty senators who get a vote, excluding Angela Packson because she doesn't get vote, and she also doesn't get to participate in jury deliberations. So at that point, those thirty senators, they're going to start deliberating
this behind closed doors. You know, that was one of the stipulations in the trial rules that all jury deliberations will be private, So they're not going to be debating this out in the open for us to see their thought process. So they're going to go behind closed doors. The Lieutenant governor has said that he's going to keep the senators in Austin until they come up with a verdict.
They're not going to, you know, break for the weekend that I assume, you know that they'll break up the end of the day, go home and go to sleep, but this is, you know, it's going to be through the weekend until they come up with a verdict, and at that point they'll come back to the court room and it'll you know, I do think it'll resemble what you typically see in a high profile, you know, criminal trial, where you know, there'll be a somber reading off of
the individual charges in this case, the individual articles of impeachment. There'll be an announcement of the vote to convict Paxton on any article of impeachment requires two thirds of the total body, so that Angela Paxton does count towards the denominator of that, so that is two thirds of thirty one. So that means they need twenty one votes to convict
him on an article. There are twelve Democrats in the State Senate, and then there are, as we just talked about, there are eighteen who can vote, So that means if all twelve Democrats vote, you know, want to convict him, half the remaining Republicans have to side with the Democrats to get to I believe twenty one.
Does that seem like it's possible.
I do think it's possible. So we had a series of pre trial motions to dismiss before this trial all got started, and those only required a majority vote, and Paxton lost his efforts, you know, on all of those, and we only saw depending on how you look at it, a four or ceiling, but six Republican senators who consistently voted for the pre trial motions to dismiss, and so to me.
That suggested a lot of softness. You know.
That's again six out of eighteen who were firmly on Paxton's side in the pre trial motions to dismiss so at a minimum, that to me suggests, you know, obviously a lot of people wanted to you know, a majority of the Republican Caucus wanted to proceed to trial and at least see the evidence and hear the testimony. So that that suggested to me, there's a lot there was a good amount of softness within the Republican Caucus that there are a number of votes that are up for
grabs here. So I do think it's possible. It should be noted that to be permanently removed from office, he just has to be convicted on one of those articles they're going to vote on, you know, article by article, but is if he gets a two thirds vote, If one of those articles gets a two thirds vote, he
is convicted and he's permanently removed from office. And then there would be an additional vote on whether to disqualify him from state office ever again, so he could not run for his old job in the next selection.
Let me just ask you, now, what do you think the larger implications are for this in Texas? Like could this help a Senate candidate or does this help Republicans I mean where I feel like Texas is one of those places where if you don't live there, you don't know what the fuck is going on.
But like I said at the beginning, I think this continues to be striking for just how big of an
act of self policing this is by Texas Republicans. I think that if he is convicted, primarily removed from office, and even disqualified from running for state office again, that will send the message that in this one party dominated state that has at times grown too big a dominant, you know, for its own good, that there is still some real accountability to be had when one of their leading figures has long running and well documented legal problems.
And so I think it will be somewhat of a proud moment for the Texas Republican Party in that regard. But as far as politics is concerned, it's hard for me to see Paxton going away. Politically, of course, if he is acquitted, he is more politically empowered than ever. People are talking about him, you know, running for governor. You know, he will be a huge star on the pro Trump right. But even if he's convicted and permanently removed from office, he could still have a political future.
And I believe that boat on disqualification only applies to state office, so he could run for federal office. And his supporters have already made you know, noise about him potentially challenging US Senator John Hornan in twenty twenty six. I guess to put it, you know, if the bottom line is big picture, it would be an incredible act of holding one of their own.
Texas Republicans holding one of their own accountable.
When it comes.
But when it comes to politics, I don't see this meaning either way that he goes away anytime soon.
Okay, good, I mean not good. And the national implications it's just too soon to say.
Yeah.
I mean, I think you know the national implications are. I think you look for you look at it through the lens of Trump. I mean, you know, Packson has been such a stodge ally of Trump and so right.
So it'll help him in a Republican partner, right.
I would imagine that next year, regardless of whether he's convicted or not, Paxton is going to be a loyal surrogate for Trump no matter what. So someone you would you would see in the camp danger.
Of incredible stuff.
Thank you, Patrick, Thank you so much for having me.
Michael Waldman is President and CEO of the Brennan Center for Justice at the NYU School of lawd Welcome to Vast Politics.
Michael, great to be with you.
Let's start by talking about exactly where we are right now with the Supreme Court, because I feel like we sort of are seeing scandal after scandal and unfold in a kind of incredible way, and I was hoping you could explain to us a little bit about how we got to where we are with the Supreme Court.
Yeah.
You know, it's a big moment in the history of the Court, and for those of us who care about the Constitution and things like that, it's a big moment. On all of that, We're now two years into this super majority of six very conservative justices dominating the Court, the court that has nine members, and this is unusual.
This was the product of yt Hence politicking and organizing by the Federalist Society and other very well funded groups to produce this supermajority, and they're now moving the Court and the way it interprets the Constitution and therefore the country in a very abrupt direction to the right, and it's coming at a time when people are increasingly angry about the decisions they're making, but also seeing them more
and more as a political body. And public trust in the Court, by all the polls has collapsed to the lowest level ever recorded. It's a real crisis of legitimacy brought on the Court by its own actions.
Can you sort of take us back historically, because this is not the first time that we see in a very politicized court out of step with the rest of the country. Can you talk about.
That You're absolutely right.
I mean, the Supreme Court has the power it has because we give it that power. As a lot of people say, it doesn't have an army, It can't really enforce its own decisions. It only is able to act as it does because we give it that trust. And the part of the Constitution dealing with the federal courts and the Supreme Court is only one tenth the length of the part dealing with Congress and the President, the
elected branches. The idea that it's become this sort of super legislature over these other branches has taken a long time to happen. Now, the truth of the matter is, when you look at the history of the country. Most of the time, the Supreme Court basically reflects the consensus in the country at the time, or at least the elite consensus, the elite political consensus. It sort of hugs the middle, and that's partly how it has kept its
credibility with people. But there were a few times, not many, but a few times when it was extreme or unduly activist or partisan, and then there was a really fierce pushback, a really fierce, often very political response. It happened after the dread Scott decision in eighteen fifty seven, which said that Congress could not bar slavery from the territories and
even worse, that black people could not be citizens. The response was so outraged that it elected Abraham Lincoln to the presidency then ultimately helped bring on the Civil War. He saw something similar when the Court at the beginning of the twentieth century. The justices of that time, the elitos of that court, they thought their job at a time of industrialization and rising inequality, they thought their job was to stop government and being able to do anything
to protect them. It was a huge fight, not just we all kind of know about FDR in the end when they were about to strike down social security in
other parts of the New Deal. But for years before then, it was a big controversy when Teddy Roosevelt ran as a third party candidate in the nineteen twelve election, and it's this kind of storied election where he was challenging his handpicked successor at Taft and Woodrow Wilson was the Democrat and there was a socialist Teddy Roosevelt's big issue was an attack on the Supreme Court and em and
right wing and reactionary rulings. And then the third time where there was a backlash where the court was out of step with the country eventually was the Warrant Court. And that's you know, I like the decisions of the Warrant Court. It began with Brown versus Board of Education, but it did go very far, very fast at a time of great social upheaval in the country, and it did produce it's eventually a backlash, and that backlash is
what we're living into this day. I think we're seeing something similar now where what this court is doing is going to produce a massive political backlash that can help reshape the country and the elections.
So let's talk about what it means to have sort of the state we're in right now, where the court has a lot of controversy and also a sort of secret organization that's not that secret anymore, but that has really unlimited financing. Will you talk to me about the Federal Society and a little bit about how that sort of came out of nowhere and there's not much of a precedent for it.
I can't really think of any present for something like this in our country's history. You have basically a faction of a faction has captured this branch of government, and it's the branch of government with the least accountability because they have lifetime terms, they're not elected. There's not necessarily all that much you can do about it, although there
are things you can do about it. The Federalist Society started as a student club back in the eighties when there were conservative law students who thought that they were kind of marooned in the liberal and progressive world of law schools. But it's grown to become this very well oiled, very effective political machine, grooming judges, pushing them toward the bench, urging them to act in a very specific and I would argue reactionary way, and you know, I said, it's
a well oiled machine. And yeah, I always used to look at it and say, oh, you know, it's really interesting how effective they are. But they don't seem to have that much money. Well that was wrong. It turns it turns out that a couple of years ago somebody gave Leonard Leo, who's the force behind the Federalist Society, one point six billion with a B dollars secretly of course,
to use for this project. And if not only funds the Federalist Society, it funds other groups, you know, many of which share in office address, running tens of millions of dollars of ads to get these justices and judges who at the system on the bench, running ads praising Congress for refusing to consider the nomination of Merrick Garland, creating organizations to file the suits to produce these right wing rulings.
So I just want to stop you for a second, file the suits to produce the right wing rulings. Why don't you take a case on last year's docket. I'm thinking of three zero three creative, because that's a case where the plaint if she had never made a wedding website, right, that case, three or three Creative, she wanted to discriminate against gay people if she ever made a wedding website, which she never had. That's a kind of plaintiff, right, that's the kind of plaintiff we're talking about here.
Yeah, and I don't know about you know, lanlliar Leo's involvement in that one in particular.
Say, right, but these are plaintiffs crafted for a kind of outcome.
You're seeing a bunch of cases where justices are supposed to be a court, right, they're supposed to be hearing what they call a case in controversy, meaning that like it's an actual dispute between people with an actual problem. Increasingly and disturbingly, you're seeing these effectively made up institutions,
are made up back patterns brought before the court. So three or three Creative, as he said, they said, Oh, this, this person wants to not have to do websites for her wedding website business for same sex couples, and this is terrible. She's being threatened. Well, she didn't even claim that she had ever been prosecuted or stopped from doing it, but her papers did say that there was somebody who'd asked her to do it after the case was basically
being heard. I think it was the day before it turned out that the person whose name was in the papers said what me, I'm married. Actually I'm straight. So you know, it seemed like it was kind of made up. And this isn't the first time an even cases like the affirmative action case where you have one guy named Ed Blum who created a group of allegedly representing Asian students, having struck out previously in other cases with a woman and before that with a white man. Now it's Asian students.
And it's again this kind of synthetic and manufactured legal crusade, very well funded, leading to these abrupt outcomes. And again when you kind of look at the first two years of this supermajority, look at the big cases they ruled out abortion, guns, affirmative action, and in the regulatory cases the interests of the fossil fuel industry. That doesn't sound like a court, that sounds like an RNC caucus. So you know, it's just a very different thing than what we've seen before.
Yeah, no, it's really true. I think that's a really good point and I also think one of the things we're talking about, one I've talked to before was this idea that I mean, if you look at the last three cases from the last season, it was Dobbs, it was the EPA versus West Virginia, which again is the EPA right limiting the scope of the EPA, and then the Bruin case, which is states rights when it comes to things that Republicans like, like guns. So these are really radical remaking of the country.
Right in three days, in three days in June. Decades of conservative social policy enacted by these public officials. That's what they are. They're not wizards. They they wear robes. They're not clergy, you know, even though they pretend to be just reading the ruins of the past. They're public officials. And it's hard to find any branch of the federal government that has jammed as much ideologically charged policy into
being in such a short time in memory. And the other thing that really bothers me, that concerns me is not only the outcomes of these cases, but the way they say they're doing it, because that really rings loudly in other courts. They say they are following originalism. That's this idea. You know that.
Yes, I was about to ask you about originalism.
Yeah, no, I mean they say they're following originalism. That's this idea that the only legitimate way to read the Constitution is to ask what it meant to the people who ratified it at the time. And that means, in practical terms, people in seventeen eighty seven who are seventeen ninety one most of the time. So literally, even if you get the history.
People who own slaves and whose wives were not allowed to.
Vote, and who used leeches for medical cares, and it literally means that the property owning white men of the seventeen hundred, their social views, must govern us now. And that is a crazy way to run a modern country. And by the way, it's not how any Supreme Court has ever done this before. It's not how other countries do it. I mean, think about it. In Great Britain, someone doesn't propose some gun regulations, say or something like that.
They would say, oh, that's really interesting. This might be a good idea, but the big question is what did King George the Third think about it? Because that's really what matters today. It's nutty and you might say, oh, you know, it's kind of isn't this how it's always been?
No.
Really, until twenty twenty two, they've only been four really major cases in the country's history that just were relying on this originalism. The first one was dred Scott. It discredited it so much that they didn't really try it again for you know, over a century. A case in two thousand and eight called Heller, which was the first time the Supreme Court ever.
Said yeah, the gun rights, Yeah, that the.
Second Amendment reflects an individual right to gun ownership for self protection. That was the first time. And Dobbs, and then this Brewing case on the Second Amendment, which was by far the most extreme such case that we've ever had. I wrote a book about the Heller case. Heller said there was an individual right. I think they got the history wrong, but anyway, Heller said explicitly, look, but you can still have strong gun rules, and actually listed a
bunch of them. Heller was written by Antonin Scalia, and Scullia was asked, what's the difference between you and Clarence Thomas, and he said, well, I am an originalist, but I
am not a nut. Thomas wrote the Bruined Decision. It says that you, in effect that you cannot take into consideration current public safety concerns when looking at whether a gun law is constitutional, only quote history and tradition literally, Like, did they have a rule like this in the seventeen hundreds, which is causing dozens of gun laws to be challenged or knocked down all over the country. And the Supreme Court actually took a case that they're going to hear
in November. Well, they might try to pull back on this just because the implications are so extreme.
Right, Oh, interesting, why do you think that?
Well, so, the way this has played out, Supreme Court is one court, but there's dozens and dozens of other federal courts and they listened to what the Supreme Court says, and they most cases don't get up to the top court. And the way judges have been interpreting how to look
at gun laws after this really extreme decision. Give you an example in New York State when New York, which had its gun laws struck down, had to pass a new law, and a federal judge in Upstate New York said, well, history and tradition for it to be history and tradition. Two examples from the colonial era that's a mere trend. For it to be a traditional, you need three and I can find I can find no tradition of laws banning guns at sleep away summer camps. So therefore that's unconstitutional.
Let alone, you know, subways, because they hadn't invented that for one hundred years. It sounds like a parody, but that's literally.
We've opened the door to peak crazy here.
Peak crazy. And then the one that really bothered people the most, I think was in Texas, no surprise maybe, where the Court of Appeals said, the very conservative Fifth Circuit Court of Appeals said, well, the law saying that you can take a gun away from somebody who has an adjudicated record of domestic violence, that's unconstitutional, right.
Because you didn't have domestic violence in the seventeen hundreds, so it was just.
Marriage or was a good thing. You didn't haverhibitions on domestic violence, and therefore there's no history in tradition. And people are you know, understandably horrified by that. And the Supreme Court took that case. It's called RAHEMI who knows, but they could have just let it stand. I have a feeling that took the case to kind of say this is too far, it's still gonna be pretty extreme the overall outcome.
So my man, and he's actually not my man, Sam Alito, you know him.
He's a big listener to the podcast. I'm sure.
Oh yeah, he's a big fan. Unless it's a clip on Fox News. I don't think Justice Alito is going to see it. But just as Alito in the news because he says Congress has no authority to regulate the Supreme Court, Congers actually really could theoretically if they wanted to regulate the Supreme Court.
Oh, unambiguously. I mean for someone who claims to be a textualist, he needs, you know, better reading texts. I mean yeah. And Elena Kagan and part of this highly controversial moment is they're now all going out and giving speeches criticizing each other. She went out and said that's absurd. Of course, Congress has the ability to regulate. Congress has regulated the Court, as it has the right to do on many different things, whether ethics rules, the size of
the court, it's jurisdiction. All this is given that power to the Congress by the Constitution, and more broadly, those of us who care about the Court and the country and the Constitution. We should be urging Congress to act. I mean, the easiest, the lowest hanging fruit, is kind of what Alito was responding to. The Supreme Court, as you know, is the only court in the country without it binding ethics code, the only one. And nobody is so wise that they should be the judge in their
own case. It's kind of a very basic principle. But that's the situation here, and we keep seeing these scandals over and over again, with the billionaires whisking these justices off to their luxury layers and then them not revealing it or not recusing from the cases. Congress emphatically can pass an ethics code for these judges, as they have for other judges, and there's bipart in the legislation to do it, and you know, I have a feeling that
there's division within the Supreme Court on this. Kavanaugh recently said, oh, we're going to do something, but we'll see. I also think there's even more basic structural changes that can be made. I'm strongly in the group I lead, the Brendan Center for Justice. We're strongly for an eighteen year term limit for justices. Nobody should have too much public power for too long. George Washington, you know, when he limited his own term to two terms, he kind of reflected that insight.
And the thing about term limits. It's interesting is I think a lot of people don't realize this. It's really popular. It's really popular among conservatives and liberals and Democrats and Republicans. I was a member of the Commission on the Supreme Court that Present Biden appointed in twenty twenty one. And you know, these commissions, they don't do that much often, and we were actually instructed at the beginning not to reach conclusions, and we didn't. You know, we've a garment
agency that works as intended. But it was really pretty interesting. We heard from dozens of public witnesses from left and right, and they had all different views on all different stuff. Some were for court expansion, others were against it. Some were foreign Ethics code, others were against it. Over and over they said, oh, but I'm for term limits. Of course. I think there's a national consensus on this that we don't even realize is there. Now. That doesn't mean it
happens without controversy. People will get polarized. It certainly could be done by a constitutional amendment. I think it could be done by a statute as well, So you know, I think it's an idea whose time has come, and that's the kind of thing that can help brank some accountability structurally to the court.
Yeah. Absolutely, thank you so much for joining us. We've gone over because it was so fascinating.
But thank you, my pleasure, no moment.
Jessie Cannon, Molly jung Fast. Let me tell you, Republicans are in disarray. Things are just going so good for Speaker of the House, Kevin McCarthy.
Kevin McCarthy has a Donald Trump problem. Unfortunately, he only has one solution, which is a Donald Trump solution. He has a situation where Donald Trump really wants him to impeach Joe despite the fact that there's nothing really to impeach Joe Biden on, and despite the fact that impeaching Joe Biden will fundamentally hurt moderates in the party and perhaps lose Republicans of the House.
And he had all this time to write a statement and still like everything that came out when he made it was like total bullshit, Like they can't even be bothered to put the effort in here.
Kevin McCarthy made six claims in support of his call for an impeachment inquiry, most pre date twenty twenty one. Several don't involve Joe Biden at all, and one was flatly untrue for being a complete sociopath and sycophant. Kevin McCarthy's quest to impeach hist in quest to impeach one Joe Biden is our moment of fuck array. That's it for this episode of Fast Politics. Tune in every Monday, Wednesday and Friday to hear the best minds in politics
make sense of all all this chaos. If you enjoyed what you've heard, please send it to a friend and keep the conversation going. And again, thanks for listening.