Women’s Anger and the Supreme Court

and anchor on both sides of the debate. The already deep divide in this country seems to have not only deepened, but calcified. The testimony of Dr Christine Blassi Ford unleashed a torrent of revelations by women across the country of sexual assaults long kept secret. The rage and raw emotion exhibited by Judge Kavanaugh seemed to be a vessel for those who feel the me too movement has been transformed into a political heat seeking missile. Collateral damage be damned.

And by the time it was over, Americans were at each other's throats, both sides vowing to express their fury at the voting booth. So what just happened? Well, today we're going to try to figure that out, We're gonna try to understand what unfolded and why and what impact this is likely to have on the court and the country. We'll hear from two people who can help us better understand this moment in American politics and culture. Lawrence Tribe

teaches constitutional law at Harvard Law School. He's one of the most influential and revered liberal legal scholars in the country. And if you're a big fan of this podcast, you might remember Rebecca tray Stir. We had her on way back in those prehistoric innocent days the summer of and we're very happy to have Rebecca back with us today because she's out with a brand new book called Good and Mad, The Revolutionary Power of Women's Anger, talk about

timely was oppression title. Anyway, hopefully they can both help us make sense of this moment and the Rancor's times were living in and what this could all mean in our daily lives. So first, here's Rebecca tray Stir. Rebecca, welcome back, Thank you. It's always a pleasure to be here. So first we want to talk about Judge now Justice Brett Havanaugh, and before we even get into the confirmation

hearings and what unfolded. What one word would you use to describe how you felt after this was all over wrecked? That's a terrible I felt absolutely wrecked. It has really been a traumatic, um enraging, terrifying period from my point of view the past few weeks. Can you elaborate on on why. Yeah, because the stakes were so high first of all, so a lot of When I described the horror of what's just happened, I'm not talking just about what's just happened over the past few weeks of testimony

and the coverage of it. I'm also talking about the repercussion. He's now going to be a member of the Supreme Court. He has a lifetime appointment. Um, you know, he's a it's a partisan appointment, and to a court that has within its power the ability to reverse the progress made by previous generations of mass social movements that have worked to enact change and increase equality. What that means is not just the potential reversal of Row, which is what

a lot of people have talked about. It means further gutting of affirmative action, of the Voting Rights Act, of the ability to collectively bargain and organize the Supreme Court has an enormous ability to suppress um the liberty and freedom of the kinds of masses of people who are now angry about power abuses. There there are all kinds of mechanisms that are going to change. What a lot of people saw when they looked at these hearings was a repeat eat or reducts of the Clarence Thomas Anita

Hill hearings twenty seven years ago. Do you think we've learned anything since then? Well, it's funny in some ways. We saw the handling of the hearings by the Judiciary Committee, and I didn't think it was possible to handle the testimony of a woman who was coming forth with allegations about a nominee to the Supreme Court any worse than the Senate Judiciary Committee handled them in. And somehowen Republican led Senate Judiciary Committee managed to do worse. Why do

you think it was worse? Christine blasi Ford testified that there was a witness in Mark Judge. He was never even called. We don't know enough about what the eventual FBI investigation entailed, but it's certainly left very few people who were not Republicans convinced that it had been a thorough investigation. Dr Blasi Ford herself wasn't questioned by the FBI. UM, we know that there were people who offered to talk to the FBI who the FBI did not reach out to.

Is it worse? The open disdain for Anita Hill was so profound, and it was coming in some ways from the members of the Republican Party sitting on the Judiciary Committee. But she was not defended by those on the Democratic side, And in fact, Joe Biden didn't call the women who were willing to corroborate her story back. So that is similar, But there was more time, there was more investigation. Um, there were I think twenty two witnesses called in in

the Anita Hill hearings. There was none of that here. It was just they designed it to be. She said, he said, without even calling on the voice. I mean, in these kinds of cases, very often, one of the reasons that harassment and assault cases are hard to bring, and one of the reasons that women often don't tell stories is because they know it comes down to he said,

she said, and the women's voices very rarely trusted. This was a case where the woman telling the story claimed there was another person in the room and that person wasn't called, So you know, in that regard it was worse.

I think there are some differences. After the Anita Hill Clarence Thomas Herring's public opinion polls showed that the majority of Americans believed Clarence Thomas, and now the polls show that a majority believe Christine Blasi for right, and so through one lens, that reflects a kind of progress that I do think twenty seven years of activism and engagement on these issues mean that we are taking the stories of women more seriously, and so there is some indication

that maybe we were taking Christine Blasi Ford's story more seriously. But we also have to remember she is a white, married woman by many measures, um within a government in a power structure that is fundamentally a white patriarchy, the kind of woman who Americans are more likely to believe.

Anita Hill wrote at the time after her hearing that one of the reasons that she was incomprehensible to the Senate Judiciary Committee she was black and she was unmarried, and they couldn't square these things with her credentials as an ivy educated lawyer and a peer of a Supreme Court nominee. So we I think we have to take into account, um, some of the racial realities around the

differences between Christine Blassie Ford and Anita Hill. Though I would also argue that it is true, um, that we do listen to women's stories differently at this juncture than perhaps we did. I was struck by Anita Hill's piece in the New York Times after Dr Ford came forward bemoaning the fact that there still was not a process in place. There isn't a protocol that would make it a clear path to how you handle these kinds of complaints or issues. Yeah, I I obviously I think that

that's that's a very fair assessment. I would also say that the way that we react to women's stories makes it very difficult for there to be a clear protocol. You can see the risks involved. I read today that Christine Blasi Ford still can't move back into our own home because of the incessant death threats, and of course that happened to Anita Hill too, terrible death threats and rape threats for years afterward, which is a very depressing thing and very upsetting to hear Let's talk about the

hearings themselves. Your new book is about women and anger, and I know you were struck by the anger express by not only Brett having off, but Lindsey Graham. Let's take a listen. This confirmation process has become a national disgrace. The Constitution gives the Senate an important role in the confirmation process. But you have replaced advice and consent with search and destroy. If you wanted an FBI investigation, you

could have come to us. What you want to do is destroy this guy's life, hold this seat open, and hope you win. You've said that, not me. Meanwhile, Christine blasi Ford really, for the most part, maintained her composure. She obviously was nervous and I think a little bit weepy at times. Indelible in the hippocampus is the laughter, the the uproarious laughter between the two and they're having fun at my expense. What were your impressions watching the

two genders react. Well, I don't think that Christine blasi Ford could have used anger on her own behalf, although in my view she had a lot she could have reasonably been angry about, from the assault itself to the impact it made on her life, to the kind of impact that having been brought into the public eye made on her life and her family's life. Um, there was

plenty that she could have raised her voice about. But we can't even begin to imagine a woman in her position going in and raging or yelling or speaking in loud tones about what had happen, and to her, it would be immediately discrediting. People would say she came off as crazy, or she was trying to play the victim, or she sounded like a lunatic. I mean it just I don't think we can fathom it really. Meanwhile, Brett Kavanaugh, who is a powerful white man, was able to use

anger as a rhetorical tool to boost his case. And that's the That is the thing. Women are told all the time that if they speak in anger, it's not just that it's not cute, it's that it will undermine their position, it will damage their ability to be taken seriously. But for men, anger can be read as fundamentally diagnostic. It tells us what's really wrong because they're feeling it so deeply that they raised their voice about it in a kind of sign of strength and commitment. And it

worked for Brett Kavanaugh, I think by many measures. Uh, You've seen a lot of coverage that has said it was his willingness to get angry and Lindsay Graham's willingness to get angry, which I think many people agree was probably an audition for Donald Trump, who likes to see the angry bluster of powerful men um in the face

of challenge from people who are not powerful white men. Now, the women who did speak in anger, and who I think did so to powerful effect were the protesters, including Anna, Maria Archila, and Maria Gallagher who confronted Jeff Flake in the elevator, And that was an incredibly powerful moment of of watching and hearing women raise their voices and point their fingers and insist that this powerful man look them

in their eyes. Well, tell me, when I'm talking to you, you're telling me that miaself doesn't matter, what happened to me doesn't matter. You're gonna let people look do these things into power. I found it interesting that Mitch McConnell and President Trump both described these groups of protesters as mobs. What was your reaction to that? That is the way whenever UM a power structure is challenged by the less

powerful entity. That challenge is um framed by the more powerful entity that has and challenged as disruptive, dangerous mob. You can see that in the language that people used around me too, where the women telling the stories of sexual harassment were described as part of a witch hunt or part of mob justice, and where the men, some of whom lost their jobs powerful jobs after accusations that they had harassed or assaulted people, were described as having

had their lives ruined. In many cases, people talked about them as if they had been killed or murdered, that they had ceased to exist. The kind of disruption that happens when power moves in the opposite way that it usually does, when the less powerful make a challenge to

the powerful, that gets rendered as troublesome, disruptive, worrisome. Whereas when the power moves the way it's supposed to move um with any kind of violence or aggression coming from the more powerful to less powerful, often we don't even notice that it's not disruption. You know, the angry mobs were the protesters, not the angry group of Republicans who are having fits. A few jury in the Senate Judiciary Committee.

They were just as mad and cruel Donald Trump's mocking of Dr Christine blasi Ford cruel and vitriolic and loud and screaming in their anger on behalf of Brett Kavanaugh. And yet they're not the angry mobs, even though they're expressing anger that's just as intense. One thing that really struck me over the weekend was Senator Susan Collins, obviously a woman the deciding vote here, defended Brett Kavanaugh's anger

on one of the Sunday shows. She said she was glad that Kavanaugh apologized to Amy Klobuchar, but beyond that, she said, you know, if you're wrongfully accused of something like this, I can understand why you'd be angry. What was your reaction to that? Well, this is what I

was saying before about white men's powerful. White men's anger is often a tool that they can use to make themselves, in their case, more appealing and attractive and moving to those who might be willing to support them, and Susan Collins is one of those people. Susan Collins very clearly wanted to support Brett Kavanaugh, and she found in his anger a communicative strategy that worked to affirm her positive feelings about him, and that's what she's giving voice to.

Anger really does have an ability to work for powerful white men in a way that it doesn't from many other kinds of people. Do you have any kind of sympathy for what Kavanaugh's family has been through or Kavanaugh himself? And do you have any doubt at all that he sexually assaulted Dr? Ford? No, I don't. I believe Christine Blassi Ford. Um, that doesn't mean that I don't have

sympathy for human beings, and certainly for a family. One of the realities about the ubiquity of power abuse, you know, gendered and racial, is that the people who have power

have lots of people who are dependent on them. And Um, do I have sympathy for Kavanaugh's family, Sure, But like the fact that our attention is drawn to that as the ard party, rather than not only the family of Dr Christine Blassie Ford who can't live in their own home, rather than the families of the hundreds or thousands of people who were there protesting telling their own stories of having been assaulted or harassed or aggressed upon, whose families

also live with the kind of suffering that they've gone through, not only via harassment, but then having their voices silenced, ignored, and dismissed as a mob of loudmouths. I feel sympathy for those families too. The Me Too movement is one year old, right, and we've seen powerful man after powerful

man fall from grace. It seems to me that there has been increasing sort of discomfort with this, not just from powerful men or men in general, but I think from other people who feel that perhaps it's being weaponized and that, uh, it's overused, this kind of claim. And then when you have an allegation that's thirty six years old, no matter how credible, people are wondering, gosh, has it

gone too far? So I would argue this seems to be a specific backlash against this reckoning we've witnessed over the last year. Well, I think that the rhetoric used about it, and this the arguments that you're citing that's been in the culture for a while. I mean that was that was Donald Trump was elected to the presidency after having admitted on tape to grabbing women against their will. I don't think that this Yes, there's a backlash, but I also want to. I'm curious about whether it would

be popularly decided had we voted on Brett Kavanaugh. I mean, polls that I've seen show that the majority of Americans believed Christine Blasi Ford and that he had extraordinarily low approval ratings that only dropped during his confirmation hearings. Yes, the intensity of his defense amongst his right wing defenders grew in in defensive response, and that's surely part of that backlash mentality. But it was a fundamentally minority power

that installed him. But I think for some people who are you know, just read my Instagram feed and you'll see what I mean my Instagram comments. But but I feel like I feel like it it reached a zenith though with this, with with these Kavanaugh hearings, that somehow people were like, enough is enough? You know, these crazy women making these claims, and now you go back to what a kid did at seventeen years old and saying,

what's going to happen to our sons and brothers? So I feel I feel like, I don't know, for me as an observer, and of course you're much more entrenched in this than I am. Rebecca, this feels to me like the moment, the backlash was heard loud and clear across the country. But what does it mean that more people believed her? Is that indicative of a mass backlash or is that the rhetoric of back clash being weaponized

by a right wing that wanted to install their justice. Well, that's fair enough, I mean, yeah, I can see that too. And maybe mass isn't the right word, but allowed and exploitive reaction to this movement, well on a faction of the country that doesn't represent a majority, But that's pretty big, just deciding, you know, I'm fed up and we're not gonna We're not gonna take this anymore in a sense. But but I want to talk about the subject of

your book, which is obviously connected to this conversation, women's anger. So, Rebecca, a lot of the anger that you describe in your book is directed at white men, but some of it is directed at women themselves, specifically white women, you know, many of whom supported Trump supported Kavanaugh. How do you explain that, Well, inequity takes all kinds of forms in this country. The country was built on all kinds of forms of in equity. So there's racial inequity, gender inequity,

class inequality. So within coalitions that may exist um as mass social movements, whether you're talking about the civil rights movement or the women's movement, there are divergent opinions. There is inequality, and women are angry at each other. Within the movement, allies are angry at allies. This has always been true. How do you explain white women's supporting Trump, supporting Kavanaugh and turning their backs on these other women who have been victims of sexual assault and who tell

these unbelievably herroin emotionally difficult stories. It's hard for me to understand how they can just turn their back on these other women. Well, there's a long history of white women supporting the white men to whom they are most closely connected by marriage, by social circles within their families,

um against critique or challenge. White women in this country have um always voted Republican as long as as long as they've been keeping track, except for two elections in two and ninety six, And it's one of the things that has created dissonance and um resentments within a women's movement because there are all kinds of incentives offered to white women who are willing to support white men and their continued power, but that does set them at odds

with other women, some of whom are trying to challenge the power of those white men, and it works to divide women against each other. It's it's a very difficult dynamic within a women's movement, and it's and race and um. Racial inequality has been used to sort of cut off a percentage of white women who are more invested in supporting the continued power of white men than they are in finding affiliation with other women. Where does the Me

Too movement go from here? Do you think this is a setback or do you think it will galvanize the participants of this movement? Well, you know, I have been, actually for somebody who writes a lot about me Too, I've been notoriously bad at predicting what's going to happen next.

It surprised me right from the start. I assumed that the story about Harvey Weinstein would pass over within a week or two, and instead it kept going, more stories being told, and then I thought, oh my god, it's been a month, and then it's been two months, and then three months, and then four months, which was really that peak in the fall of seventeen, and I couldn't believe, as a person who studies women's anger, that it was

sustaining itself for four months. And it showed me the intensity and the passion that was there and the desperation to get these stories out. And then I sort of thought, Okay, well, now it's receded. But then there were other iterations. There was the revelation about Eric schneiderman Um just recently prior to Kavanaugh. There were the stories about less Moon vest which were just absolutely devastating, and the revelation that this very powerful man is alleged to have committed kind of

Weinstein level assaults um throughout his career. Now, the question whether what has just happened around Kavanaugh will be further energizing or whether it will be deadening. I could see it going either way. My My best guess is that it will be ultimately energizing, that it will motivate that women are angry, and while they may feel briefly defeated, that their anger will propel them into continuing to be

determined to make to make these realities clear. I'm not going to ask you to predict how this will play out in the mid terms. But it is interesting that, you know, the Republicans seem to be convinced that this is really energized their base in a way that nothing else has over the last couple of years. And the Democrats are also convinced that this is going to energize their base. I mean, how do you assess that? And who do you think is going to prevail in this

sort of fight. I think there are two different factors that complicate both of those claims. I think Republicans are probably right that it is energized their base, but the issue is that the Republican base is in fact smaller than a Democratic base, and so it may have increased intensity amongst the Trump base. But that Trump base, first of all, was always smaller statistically than the Democratic base.

Remember he did not win the popular vote. So it may well have increased the intensity and excitement amongst the Trump base, But the question is isn't big enough? And in that regard, I would say energy favors the Democrats. But here's what doesn't favor the Democrats the way the system is designed, and that's from jerrymandering and voter suppression efforts, which have already been successful in many states. UM to the basic ways that you know that that we apportioned

political power. I mean, one thing that's really notable, and several people have have made mention of it, is that the senators who voted against Kavanaugh represent millions of more Americans because of the way the Senate is designed than the senators who voted for him. And the fact is that there could be more democratic enthusiasm, more UM activism, more people out there casting votes, and it still might not be able to overcome the deficits of gerrymandering and

voter suppression UM that Republicans have put in place. Even setting that aside, you know, if if in every Trump state they elected to Republican senators, the Trump States would mean sixty Republican senators, right exactly. Well, that's what I mean by the design of the Senate. You know, I'm not a predictor, especially not after UM, but I think you see a Democratic party changing and growing. Whether that means success in a few weeks in the mid terms,

I can't tell you. But you see a Republican party that I think is shrinking slightly, but their grip on power is growing. Your party affiliation is crystal clear. I never my journalism. I'm an opinion journalist that nobody ever wonders about my party affiliation. Before we go, I just want to ask one final, sort of broader question. Do you think the treatment of Christine blasi Ford will have a chilling effect on sexual assault victims and in terms

of their willingness to come forward? Because I was so moved and actually somewhat surprised at the number of stories that surfaced from people like Terry Hatcher and Connie Chung, all these well known people, and of course people who are not well known. It made me realize how pervasive this problem is. So what do you think the impact will be on survivors coming forward or victims telling their stories? Well, I think that there are some people who react to

a story like this by saying, damn it. I'm going to make it clear that this happened to me too, by sort of being angry about the treatment, and that anger um provoking them to tell their story almost in solidarity, to say you might not have believed her, but it happen to me as well, And this is a real thing, and I'm going to insist on it. And I think that's one possible psychological reaction. But the other, as you point to, she was treated truly horribly. Her life is upended.

She'll never live the same life that she did before. This has been true for Anita Hill as well. And with nothing to you know, he's he's on the court. He's going to be making laws about women's bodies and voting rights deep into our future. And I think that there are a whole host of other people for whom that is certainly chilling. Who wants to go through that, Who wants to expose so much and expose yourself and

your family to risk and to pain for nothing. I mean, this is a country where women came forward and told their stories about having been groped by Donald Trump, and he got elected president the next month. This is not the only example of this, but then it's worth thinking

about the fact that that did happen. In the fall of you had more than a dozen women come forward with their names and tell stories about Donald Trump as as a sexual predator, and watched him win the presidency anyway, and within a year you had a movement of thousands of other women coming forward with their stories. So I guess that recent history would suggest that it might not deaden or or dampen the urge to come forward with with stories. Well, we live in very interesting fraud times

to say the least. Rebecca trast is always We love having you on the podcast and love hearing your perspective. Thank you so much, Katie. It's really good to be here. Time for us to take a quick break. Now, when we come back, we'll talk with the legal scholar, Lawrence Tribe, about where the Supreme Court will go from here. That's right after this. Now let's get back to the show. Let's turn out to Lawrence Tribe, a Harvard law professor

and an expert on constitutional law. We started off by asking him why he was opposed to Bret havanas confirmation even before Christine Blaussi Ford's allegations came to light. Well, I actually knew him, liked him, and respected him. But I believed that his views of executive power were so broad that it was dangerous for the republic, and that his views of individual rights were so narrow that it was dangerous for all of us, especially women but really everybody,

And so reluctantly I was opposed. Can you explain when you talk about his views towards executive power for the non legal eagles in our audience. Well, unlike many of the others on the shortlist that the Federalist Society and the Heritage Foundation presented to President Trump, Judge Kavanaugh was on record as expressing serious doubts about whether a sitting president could properly be indicted, even if he had committed a crime, could be forced to testify pursuant to a

grand jury subpoena. The others on the list really hued to the right wing agenda on issues like abortion rights and affirmative action and gay rights. But the one thing that stuck out with respect to Judge Kavanaugh, who was added to the list by President Trump in a kind of second round, was that he alone was on record as suggesting that presidents should be subject two shields from legal accountability that put them above the rest of us,

and that troubled me a great deal. I know we're not mind readers here, but do you think that that was one of the things that made Trump select Kavanaugh? Well, I certainly don't pretend to read anyone's mind, especially Donald Trump's, but I find it hard to imagine that there was anything else that made him stand out in a way that was so distinctive, because, in fact, McConnell had warned Donald Trump that Brett Kavanaugh had a longer and more

difficult paper trail than anybody else on the shortlist. McConnell recommended that he not be the choice, but Trump went ahead anyway, And the only thing I can imagine as his reason was that this was a nominee who was likely to protect Trump from the mounting legal problems that he confronted with the Mueller investigation and all of the

indictments that it had already brought down. Do you worry in general about how partisan this whole process has become Democrats instinctively opposing Republican nominees and of course vice versa. I mean, it wasn't so long ago and the Clinton administration that Ginsburg and Briar were supported by huge bipartisan majorities in the Senate. What happened? Yeah, For people who haven't paid so much attention since then, how did this

all change? Well? It really has been very partisan for a very long time since even before Robert bourke in. And there have been short periods during which there was not much point in opposing a relatively moderate nominee UM, and in fact, despite her prominence in the women's rights movement, Ruth Ginsburg was really moderate compared to flamethrowing far left candidates. She was somebody who had expressed the view that Roe v. Wade came too quickly and that the Court should have

moved more slowly. And Stephen Bryer was hardly a left wing candidate. And those were times when opposition by the GOP would have really been quite feutial. We had a filibuster rule that would have required sixty votes. It was not a time like this one in which the country is so totally and profoundly divided, and in which McConnell had already established a fifty vote rule so that anything more than a majority would prevail. By the way, I think there's an important thing for people to note that

Harry Reid often gets blamed for this. He lowered the threshold from sixty votes to fifty for lower court judges, Appeals court judges, and district court judges. But it was McConnell who changed the rule so that Supreme Court justices could not be filibustered. That's right, and when you are dealing with a group of nine hundred or more lower court judges to say that a mere majority should be enough is not all that dramatic, although they called it

the nuclear option. The really dramatic move was the one that was made for the first time by Majority leader McConnell, who basically said that from now on, a mere majority will suffice to confirm someone to the United States Supreme Court for lifetime power over all of us. While we're on the topic, larrea of Mitch McConnell, I mean, how could he and the Republicans just decide they were not going to even meet with Merrick Garland, which I think

really led to this extraordinary polarization we're witnessing. Now, How can they do that? Well, the fact is that he could do it because he did it. He could do it because he had the power, But there was no reasonable argument for it. He claimed that there was some kind of precedent for holding a seat vacant for four hundred days on the ground that it was in the

last year of a president's term. Well, you can be sure that if some terrible tragedy befalls one of the older just in the last year of Donald Trump's term, that mix. McConnell is not going to say, well, we have to wait until the election of In fact, he already said that. He said that over the weekend that he modified the McConnell rule so that it's only if the Senate is of an opposing party as the president that they would do nothing. If it's the same party,

they move forward. Right, And if you believe that there is more than one bridge, I could sell you cheap. The fact is that there is no rule. There's simply power, naked power, and the idea that power should prevail over any exercise of human reason is an idea that can get us into profound trouble. I mean, whether you are on the left or on the right, you really have a stake in a functioning government, of functioning three branch government with checks and balances, and with the reasoned argument.

There's a kind of inherent disadvantage for Democrats, who somehow often subject to great criticism, feel constrained by the idea that what we've got to have some principle here, we have to have an argument. Well, the fact is, if the other side doesn't think it needs an argument, then feeling constrained by reason puts you at an inherent disadvantage,

and that's what liberals and progressives have faced. I think it's a big mistake to treat the problem of profound division as one in which both sides are to blame. No one is perfect, that's true. But if what you're saying is everybody is equally to blame, that's just that's

just not true at all. Larry, let me read you something you recently tweeted at the White House swearing, and Trump obscenely made the occasion a purely partisan one with his ludicrous claim that Justice Kavanaugh had been quote proven innocent end quote, and his misogynistic apology for the Senate's even having listened to Dr Blasi Ford, can you tell us how you really feel? Well? That is certainly how I feel. It was a frankly nauseating thing to watch.

I felt really sorry for the two closest friends I have on the court, Stephen Bryer and Elena Kagan, because in order to help the institution, they obviously felt they had to be part of this absolute, you know, charade, in which they had to sit there and and be polite, while President Trump made it into a completely partisan show. He called out and praised all of the Republican members of the Judiciary Committee and had nothing but contempt for

the others. He said that he was apologizing on behalf of the nation to poor Brett Kavanaugh, and really perpetuated his view which at first he had been persuaded to suppress, that Dr Blasie Ford was somehow part of a hoax. That's nonsense. Anybody who listened with a halfway open mind to the testimony would know that she was telling the truth, and the truth for Brett Kavanaugh would be I was part of a bunch of frat guys who got blotted drunk. I don't know what the hell I did that day,

and it didn't matter to me. That would have been the truth. But I'm sure he was persuaded by Trump and McConnell that that would lead them to pull his nomination. He had to live big time, and I think it's a shame that he did. As a law school professor, it's I'd love you to address this whole notion of innocent until proven guilty, because that has been used time and time again by supporters of Brett Cavanaugh and detractors

of Dr. Ford. Why is that not an appropriate way of looking at this, Well, to begin with, I can say that it's not consistent with what Trump himself said the other night, when he said, you've been proved innocent. Well, that's not part of our system. If it really were true that any reasonable doubt would have been enough to put him on the court, then the most we have is not that he was proved innocent, but that he

wasn't absolutely proven guilty. But in fact, we're not talking about imprisoning somebody or depriving him of liberty or putting him to death. We're simply talking about who should exercise enormous power over our lives for really thirty five or

forty years. If there's serious reason to believe that the person was really an attempted rapist and that he was lying to get onto the court, we don't say that because we're not sure he's a liar, we should simply give up and put him in that position of power. People don't have a right and entitlement to exercise the judicial power over others. That's not the same as the right We all have to be able to enjoy liberty unless we are proven guilty. So the whole paradigm of

a presumption of innocence is misplaced. That has nothing to do with what we're talking about. As some have said, it's more like a job interview, except it's like, will you hire this person to be not just a babysitter for your kids, but a babysitter for your kids and grands kids for life, someone who exercises power over everything

you care about? And if there's good reason to think that that person is too partisan or two disrespectful of women, you don't say, well, but we're not sure that he's a terrible guy, and therefore he's entitled to exercise that power. You rather say we're not sure, and therefore we better look for someone else. Why do you think Dr Ford's testimony didn't seem to matter to the outcome? I mean, I can argue that, with one or two notable exceptions, the vote was exact gale what it would have been

had Dr Ford never come forward. Sad but true, sad but true. I mean, it seems to me that the result was essentially predetermined when, for example, Senator Flake was persuaded by Senator Coombs to call for an FBI investigation that he had to know would be more a cover up than a real investigation. I think it was simply to give cover to the whole situation. It was shameful.

So Judge Kavanaugh is now Justice Kavanaugh, obviously, and you wrote an op ed in the New York Times about all the ways that he's going to need to recuse himself in your view, from cases before the court. Can you kind of walk us through your view about the

major conflicts of interests he faces. Certainly, it seems to me that when someone wins confirmation after a kind of long and impassioned speech identifying essentially liberal groups and the Democratic Party and those who defend the Clintons and those who oppose Trump as having destroyed their lives, when anybody gets down to the court after that, it's hard to imagine that such a judge could be regarded as fair in dealing with any issue that involves those groups, and

that certainly is going to involve issues with regard to abortion, issues with regard to gerrymandering, issues with regard to presidential power and presidential immunity. I don't expect Judge Kavanaugh to actually or now Justice Kavanaugh, actually bow out of all those controversies, but an ethical course of action would require him to do so. Respect for the Court's integrity and its credibility would require him to do so. But to

get to specifics, it's rather complicated. Imagine, for example, that a lower court has held that the President of the United States cannot be forced to answer a subpoena from a grand jury. The U. S. Supreme Court could easily leave that decision in place and protect Trump, even if in order to do so, Kavanaugh would have to recouse himself. That is, there are times when recusal could kind of make the point that he thinks he's impartial but wants

to respect those who find him biased. And yet the result of a four force split would be believe the decision of the lower court intact. So there are questions of tactics and strategy that are going to be pervasive throughout his service on the court. Larry, let me ask you about Justice Kavanaugh moving forward, not just on conflict of interest, but on that kind of intangible impact this kind of bruising confirm nation could have on a justice.

It certainly harkens back to the Clarence Thomas confirmation hearings twenty seven years ago. Let's listen to a clip from that and from my standpoint as a Black American, as far as I'm concerned, it is a high tech lynching for uppity blacks who in any way deign to think for themselves. Using Clarence Thomas as an example, will Justice Kavanaugh, in your view, go more to the right or will

his opinions be somehow colored by his experience? You know, I wish I had a crystal ball to answer that question. I think it's going to depend on all kinds of variables that are not yet determined. I think the Clarence Thomas situation was quite different. He did not during his testimony call out a kind of enemies list to people

that he blamed for destroying his life. His general comments about a high tech lynching and about the unfairness of the process did not put him in a situation where he had a kind of presumption to overcome that there were groups whose cases he would not hear Impartially, Unfortunately for Justice Kavanagh, he is in that very situation. He might bend over backwards in order to rule in favor of groups that he called out as his enemies, in

order to prove a point. He might worry that it looks like he's bending over backwards whenever he rules in favor of planned parenthood or the a c l U or the National Resources Defense Fund. I would hate to be in his situation of not knowing what positions will seem fair and be fair. But he's got all of that to grapple with in a way that no justice our history has ever done. What do you think are the major issues now that Kavanaugh has replaced Kennedy where

the Court will move to the right. I mean, of course, everybody talks about abortion rights, but the consequences are far

larger than just that. That's right. I think the issues on which the Court is bound to tilt further right with Kavanaugh than Kennedy include not just abortion, but all of the surrounding issues of sexual autonomy and freedom and personal liberty beyond those that are very narrowly and specifically enumerated in the Constitution, issues about contraception, sexual choice, same sex marriage, all of those questions, I think the Court will turn to the right. It will certainly turn to

the right on religious exemptions from anti discrimination rules. It will turn to the right on affirmative action based on considerations like race. It will essentially eliminate, I think in a legitimate use of race by government in enhancing diversity or inclusion. It will also move to the right on presidential power and the immunity of a president from legal accountability.

It's very likely to turn to the right on issues of campaign finance and the use of free speech to limit government regulation where information is part of the market, and where there's an attempt to reduce disparities in wealth and make wealth less determinant in political power. So on every important question, the Court has bound to tie further right under Kavanaugh. Do you think that Roe v. Wade

will be overturned? I don't think that we will ever see, at least in the foreseeable future, a decision that uses those words Roe v. Wade is hereby overruled. But the Court wouldn't need ever to say that. In order to essentially hollow out and gut the rights of women to control their reproductive freedom. The Court could uphold every imaginable, politically achievable restriction on abortion without ever actually overruling Roe v.

Wade and triggering a gratuitous backlash. So you're saying, in essence, it would be overturned, but not in those words. I think that's exactly right. I think that the rights of women to control their own reproductive lives are very much on the line, not in terms of a decision that waves a red flag and says Row is overruled, but in terms of decisions upholding restrictions on women that make it impossible for all but the wealthiest women in the

most liberal states to control their lives. And that doesn't mean only restrictions on abortion. People don't seem to realize that this is a two sided coin. The same government that has the power to tell a woman you must remain pregnant, you can't have an abortion, may also end up having the power to tell her we don't want you to have this baby, you have to have an abortion.

That was one of the decisions that Justice Kevanaugh when he was a judge on the DC Circuit, effectively upheld when he said that women of limited intellectual capacity at birth can be required to have elective surgery, and the decision actually included abortion. So that this is not a anti abortion justice alone. It seems to be an anti choice justice, and it's a knife that people will learn in time can cut both ways. Wow, Well, that's pretty

chilling Um one final question before we let you go. Um. One of the things that Judge Kavanaugh mentioned during his hearing was that he was really upset that he probably wouldn't be allowed to teach at Harvard Law School again. Do you think he should be allowed to teach at Harvard Law School in the future. Well, no, that isn't really an issue before is he decided himself not to teach at Harvard next spring, next winter. Um, And I

have no idea what the future will hold. But if a year from now he decided he wanted to come back, would you have a problem with that? You know, I'd rather not across that bridge until I come to it. I don't believe we should be preventing anyone from teaching who is as good and interesting a teacher as he is just because we disagree with him. But in this case,

it's not just disagreement. I mean, I can easily see students saying it's not a good example to have someone who seems to have committed perjury to become a justice to be on our faculty. It's not a good example to have someone who probably committed attempted rape teaching our students.

I'm not saying that myself, but I would certainly have a lot of sympathy for students who did say it, for people listening to this podcast, Larry and Closing, who believe in many of the things that now a five for majority on the Supreme Court, that that majority does not believe in. What would you advise the average American citizen to do, who possibly feels powerless at this juncture. I think citizens are only as powerless as they let themselves become. I would advise people to vote. I would

advise people to urge others to vote. The number of people who are registered to vote and then don't vote is staggering in this country. Elections do have consequences. We have seen it in a dramatic way. If that means that people should take power back. If we have a majority of both the House and the Senate and eventually retake the White House, we will have power to do

a great many things. We will have power to change a great many things by legislation carefully designed to be as invulnerable as possible, even to the decisions of a very conservative court. Some people are talking about changing the terms of justices so that they serve for only eighteen years on the court and then serve on the lower courts. I think that's worth examining. The question of whether we should have a larger court than just nine is worth examining.

But I think the first thing to do is vote, and when we have political power, the options are unlimited. On that note, Larry Tribe, thank you so much for your time. It's great to talk up to you, and thanks for your expertise on all these topics. So that wraps it up for us today. Before we go, though, we want to introduce you all to our new producer, Emma more constern no relation to Rhoda, by the way. We're very excited to have her on board and we

want to thank her for her work on this week's show. Also, it means it's time to say goodbye to Gianna Palmer, our outgoing producer of over two years, who's apparently onto bigger and better things, well or smaller worse things, which is what I choose to think anyway, Thanks as usual to our associate producer Nora Richie, our audio engineer Jared O'Connell,

all the nice people who haven't left us. No I'm kidding, Julian Nicholson and Mark Holden and Invisible Studios helped with today's episode, as did Karin Smith at kpf A in Berkeley, California, and Jen Stanley in one of my favorite places, Brookline, Massachusetts. You're so good at the guilt thing, Brian. And where would I be without my assistant Beth de Mos Probably summer. I'm not supposed to be, that's for sure, So thank you Beth. And a big thank you to Julia Lewis,

my social media right hand woman. Mark Phillips wrote our theme music. You can find me on Twitter under at Goldsmith B and you can find Katie on Instagram, Twitter, all over the social media platforms under what Else Katie Current pretty much Instagram Stories seven and as always, we want to hear from you all. You can send us an email or voice memo at comments at correct podcast dot com or leave us an old fashioned voicemail by calling nine to nine two to four, four six three seven.

I love hearing from you as always, Thanks so much for listening, and we'll talk to you next week and Gianna will miss you. Thank you for everything. We love you, Gianna. Good luck