Would you be kind enough to tell me whether or not you exercise any premptories? that sound you heard right there, you may not know it, but it’s a little bit of history.
That’s Clarence Thomas, Justice of the Supreme Court, asking a question in oral argument. It’s the first time that that’s happened in three years now.
It’s a mistaken notion that you sometimes hear that Clarence Thomas doesn’t participate in the court or doesn’t speak or doesn’t write decisions or anything like that. That is that is not the case. He does not generally participate in oral argument. [00:01:00] It’s been three years ago since he asked a question of one of the litigants, and it’s prior to that was about seven years ago where he interjected to make a joke about Yale, his own on the modern word peripheries exercise.
And what was the race of the jurist?
She only exercised peremptory use against white. Charles, I would add that the mode of participation is not the question here.
The question is, does it shouldn’t have any black jurors to exercise parameters they can of the first except the first one. But so did the prosecutor. Except correct.
After that, every black church that was available on the panel struck. Yes, he struck one.
He gives a variety of reasons for this. [00:02:00] He’s told interviews, he would say he’s a little shy, which does not appear to be the case.
From from what’s known that the questions are already asked.
And that I think is probably what’s really going on there. In other words, in oral argument, these justices are asking questions very often. They’re trying to convince the other justices or to put on the record of the case, to get one side or the other, to say something that might convince either a future court or one of the wavering justices. But when you really think about it, these both sides have somewhat supplied briefs to the Supreme Court and is really you know, it does make sense that you could stay out of oral arguments. Also, if you’re the heavyweights on the on the oral arguments side, the ones that tend to ask the most questions.
I would say is Alito, Sotomayor, Kagan, [00:03:00] Gore and Kavanaugh have recently, you know, they’re going to pepper a few questions.
And my question was about the history. I thought that Swain said that the history was relevant. In fact, Swain said history is the only way you could prove.
But I wouldn’t say that they dominate the way that Alito or Sotomayor does. Justice Stephen Breyer is always good for, you know, kind of like the law professor hypothetical in the middle of oral argument.
Well, I don’t think it’s going to take much to draw attention. Let’s call it 1 2 0 0 1.
Or in their mid 40s, strongly favor the say that I was a defendant and I was doing act, you know, he’ll always kind of do a big hypothetical. And it’s kind of a trap sometimes [00:04:00] where one side or the other if they actually follow his hypothetical. But in any case, you don’t have to participate. He doesn’t. He does. Probably when you add up the dissents, the concurrent opinions and the decisions. Clarence Thomas is probably one of the most prolific writers on the court bench at the current time.
In this podcast today, I just, you know, been very busy this year with my own full time work.
And also there’s been so much going on. I’ve been working on the Arc of Commerce Series and series. Always take a lot from it. I don’t think that the arc of commerce is, for instance, are relevant to today’s stuff. There’s so many of the issues that we’re dealing with involve commerce, trade, for instance, tariffs. The economy is probably other major question that’s going to determine the election. So you see commerce playing a major role in politics. And I think that’s why it’s a great idea to do the AKA Commerce Series, which [00:05:00] I kind of had on the back burner for some time.
The we did episode four on stopping commerce and episode five on measuring commerce will be next. I’m gathering information on that. Things like unemployment and GDP. Do you think that they’ve been around forever? But they’re not. They’re not. You think that they may be totally objective measures of things, but they’re they’re not. They have their upsides and downsides. And that’s just one of the many things we’re going to talk about in addition to trying to rounded out with the 1987 Black Monday stock market crash. So we’re going to start from one crash to another in that Arc of Commerce series.
But because of that, I hadn’t been able to address some of the many things that have been going on. And I just thought I’d do a kind of free ranging podcast now.
This is going to be, you know, and I apologize in advance. It’s gonna be a little more disorganized, say, than a little more free talk than some of my other podcasts.
First has been a lot going on at the Supreme [00:06:00] Court and a number of significant decisions where the two new justices, Gore Search and Kavanaugh, have taken roles in different ways. This is. That’s Clarence Thomas again. The case in which he asked a question is in the end of the day. A sad one. And then fortunately, big issues of justice turn on some tragic events. And that’s what’s going on here in a case called Flowers Verse Mississippi, because you start with it’s the mid 90s and an employee comes to work in a small furniture store in when known a Mississippi and tardy furniture opens the door and finds the owner, his wife, an employee, just brutally murdered. Well, the employee is still actually living, but dies in the hospital soon.
Later. [00:07:00]
You have a former employee, Curtis Flowers, who recently was fired a few days before his uncle reports his gun has been stolen. He reports that the police independent of knowing about this incident.
There is money found under the under Kurdish flowers pillowcase. There’s a bloody footprint that matches the type of shoe he was wearing at the time. Eyewitnesses put him at the area in the likely time of the murders. Now, I must say, I don’t want to spoil your opinion of the case. Everyone’s innocent until proven guilty. And all of these things could be attacked by a defense. But I must say that in six trials and there were six trials for Mr. Flowers and the prosecutor and D.A. in this county was very interested in pursuing this case.
It was presented and flowers convicted.
The [00:08:00] trouble is that the convictions were overturned because the prosecutor used his preferential dismissals of jurors to overwhelmingly exclude black jurors as opposed to white jurors. Not only that, the oral argument established that he. Asked more questions of the black jurors and indeed even pursued separate investigations of some jurors when he felt that they had not told the truth. One, for instance, said that they were, you know, not knowledgeable about. The defendant’s sister, when they indeed worked in the same store, the store is a Wal-Mart, so there there’s some disagreement over whether one’s near or far from the employment in any case.
So they say he pursued investigations of these jurors. But in 41 out of 42 jurors over the six cases that he dismissed, they [00:09:00] were black and one was white.
Including in the most recent trial that they were discussing, five out of six of the jurors dismissed by this prosecutor were black.
This troubled the court and that did it for Justice Kavanaugh, who wrote the decision in this case. Now we break no new legal ground here.
We simply enforce the decision and back Preston that basically I am a prosecutor can not use race as a determining factor to to exclude jurors.
Alito has a concurring opinion occurring, concurring, meaning that he agrees with the decision, so in effect, his decision is going to count in the vote total with the majority. But he had something else to say. For him, it was the history of the case. He said, you know, if this was just one case, I might rule in the opposite way or join the dissent. But with this history of these six cases [00:10:00] and during oral arguments, he’s asking the law, how come from the state of Mississippi? How can the state of Mississippi couldn’t appoint a new prosecutor after this many overturns? And it just isn’t the practice in the state of Mississippi to do that, to take over a case. So Alito sides with the majority saying it’s because of the history Kavanagh and his decision. We cannot rule out the history in this case. And you see in this, Alito and Kavanaugh joining with Roberts, Brier, Sotomayor, Ginsburg and Kagan and separating from.
Gossage and Thomas, who are looking merely at the case.
It’s a horrible murder. There are significant points that almost any jury in America could use to determine that Curtis Flowers committed the crimes and that, you know, if it’s overturned, there may be no justice in this case.
It’s a very small town in Mississippi, it’s hard to find jurors, a lot [00:11:00] of connections between people, so having a connection with the defendant is not that strange. Having a connection with the victims, not that strange. Thomas finds and in his dissent writes about how one of the jurors dismissed it was because that we mentioned before she worked in the Wal-Mart with the defendant’s relative.
There’s some dispute about how close they work together. One of the other things he’s going to say is that.
In another case, one of the jurors had been sued by the furniture store, I suppose, for non-payment. So maybe she would have a bias and was dismissed for that reason. So there were and the questions that were on the record the D.A. asked were reasons that, you know, engendered answers that were reasons that any D.A. in America might be able to dismiss a juror. So is there really prejudice here?
That’s the way Thomas and Gorse look at it very much. Just straight up facts of the case not involving the history [00:12:00] where a as saying you can’t separate the history, the case. Interesting case, interesting discussion.
Of course, a tragic case. But.
That’s not the only surprise that came out of the Supreme Court that Thomas asked a question in the case. It also turns out that Thomas ends up siding with the court’s liberals on a consumer rights case.
So North Carolina, man, he he’s called by a company that is using the name of the Home Depot, it’s actually more of a telemarketing company, but they have some relationship with the Home Depot, allowing them to use their name for what?
You’ll be the judge of whether it’s a legitimate business or not. Also, Citibank, so is involved here. The caller tells him that his water is bad and he needs to submit to a water test to find out if the water is safe.
They are [00:13:00] right in saying it’s a water quality test, but the water quality is water hardness, which is not a safety factor. So a water hardness tested in the court record show could be a thousand dollars. They charge nine thousand and they involve a loan scheme that you set up with City Bank and the Home Depot to pay for it. The North Carolina man falls for this and then is enraged later when he realizes that he is is essentially he’s been ripped off. He joins a class action suit with many others.
Home Depot, who I believe should be ashamed for being part of such a scheme, allowing their names to be used instead fights back and they ask to remove the case to federal court litigants or defendants are gonna have a better case chance in the Supreme Court than they will in some of these state courts. Some are notorious, some of the southern courts like Alabama, North Carolina, Louisiana. You know, you hear about, you know, in their politics, maybe at the legislature, [00:14:00] politicians may be conservative at the court level. Many of these are quite liberal in terms of their judgments, judgments or or at least many might consider them that when the amount that they’re going to allow a defendant award. So companies are want to take these to federal court.
The court, liberals and Thomas agree on this.
Congress didn’t intend for defendants to move to a federal court. Just to avoid a state court lawsuit.
So.
Alito and Gore’s edge. And in this case have a spirited dissent where they think that Thomas is just rewriting all the rules of what a defendant is and what the law is interpreted. But Thomas is adamant. He says, well, if the dissent is right, that this is a [00:15:00] mere change that needs to be made. Congress may change it. We may not. We the court may not. So he’s differing on that on that case. There was a decision in the gerrymandering issue and a very important decision on census, which I think has a lot to say about administrative power in general on both sides. So and also prohibition. So history is really a big part of the Supreme Court and we’ll get there. But. There was so much in politics going on and so little time for me to address the appropriate historical analogues, like to find an analog for everything to find, to build that narrative, to discuss in separate episodes all the things that are moving so fast here and the US to an extent. I’m talking about Trump and the way that he utilizes media and social media and can actually push the agenda so quickly before people even know what’s going on.
That’s difficult, you know, for a podcast that comes out like mine to address it. But you know, I can I can catch up with digests and things like that. But [00:16:00] I’m also talking about the Democratic debate and forces like the progressive side of the Democratic Party, the AOC, etc. and how fast they can push issues and push the news. And so everything’s kind of changing a bit.
But I don’t believe I will I will say this adamantly. I don’t believe that we’ve entered any kind of new period of history where history doesn’t matter anymore.
It’s just simply not the case.
I’ve been watching the debates and among the Democratic candidates, it’s a melee and I’m glad I did the episode in on 1984. Stop talking about momentum, because if you go back and re listen to it, I may not line it up and say, well, this applies here and this applies. They are mean partly because not all the debates and candidates had kind of happened yet, but.
It really does apply to 2020.
The nineteen eighty four is a bigger election [00:17:00] field than had been seen with a lot of newcomers. We had a lot of different types of candidates appealing to different groups. You had the Democrats in a bit of a disarray after losing a surprise presidential election, while surprising how badly Jimmy Carter had lost his re-election. And we’re in a bit of a quandary. We’re like questioning should we be appealing to Reagan voters? You know, and they didn’t call it red states then, but in Reagan states, or should we be reaching out and doing something new and as we discussed then. Appealing to Reagan voters were a little different than, say, appealing to Trump voters today because there were two types, you know, Reagan had California and so Democrats are trying to figure out how to win that. And one of ways to win it was with a high tech kind of image. And so you had the Atari Democrats coming out. And Gary Hart, although he did use the term, was kind of the the head of this group.
And you had others who thought maybe we should be more conservative. Ernest Hollings, [00:18:00] for instance, like I’m going to be almost like a Republican, except on a few issues such as welfare. And I’m going to be for food stamps. But on a lot of other things, I’m going to be hawkish on on defense and everything else. And we can beat Reagan now. You had this debate where Reagan changed the Democratic Party more than the Democratic Party changed themselves. You also had some very similar dynamics, like, for instance, Carter had been president for one term. He was a still a influential figure in the Democratic Party, even though he had lost badly in the election. He was the former president. Walter Mondale was running as the former vice president.
So attacking the Carter administration, which Gary Hart sort of aimed at a few times, was not was was definitely pushed back on.
And Walter Mondale would be using the mantle of having been in the last Democratic administration to use to go to bashes primary [00:19:00] opponents. And you’re totally seeing that go on right now with Biden and Obama.
I do think that.
When I take a broader view and watch these debates and look at the two sets of 20 candidates on the stage and Marianne Williamson talking and Buddha judge and. All of these various saw the, you know, governors like in Slay and and others who are, you know, so many of them on the stage. It’s hard not to think that that is a pro incumbent factor. So when you’re looking at, you know, what’s going to be the effect of this, I think if this continues, if this type of image of just the fracking continues, I can’t see where that doesn’t help the incumbent. You’re splitting up opposition in too many ways. And I think that’s that presents [00:20:00] a president as a unifying figure. Now. Trump a unifying figure. That’s kind of weird for me to say, right? Because Trump can be very divisive.
But I think if you look within the GOP party, Trump endorses someone, they win the primary.
It’s got a pretty good control over the states and the state parties. I’d say probably maybe Utah is an exception. Maybe, you know, he’s there’s a few states where yet he’s got very little potential opposition in a primary. So you’ve heard about Mark Sanford and William Weld?
Well, both of them are a relatively flawed candidates and they’re gonna have some issues really building meaningful support. I always will. You know, look, things can happen and you may find that someone like a Weld or Pro or Sanford, what picks up more steam than we thought. But I think within that Republican Party, what I hear is Republicans [00:21:00] saying, look, he fights. Well, I don’t agree with this guy all the time. I don’t like some of the tweets or whatever, but he fights or you have a large group of people who do agree with them and do agree with the tweets. Republican moderates disapproving of Trump. You have it at about 26 percent. In a recent exit poll I saw among GOP, I didn’t see much difference anymore between male and female in a recent recent poll that I saw.
I think that, you know, where there were Republican females say that we’re just outraged by Trump. They left and they’re no longer identifying as such. So with but within that part of it, it’s a it’s a mistaken claim to say that know females vote Democrat. They do in the aggregate. That is true. But a large group of that percentage is younger female voters [00:22:00] and minority female voters and traditional Democratic constituencies. If you look at the over fifty five, particularly married women over 55, that’s always been one of the bases of the Republican Party and was a huge factor in George W. Bush’s 2004 win.
These are this is this is a group that probably would have voted for Bob Dole in 1996 or Mitt Romney in 2012.
So, you know, in any case.
So while, you know, I don’t think Trump Trump can be a polarizing figure, quite frankly, I’m more polarizing than historical presidents. There can be little doubt about that poll numbers that you see. But still at this time, putting him into the mid 40s at best in a lot of national polls. This is a polarizing figure aiming at getting out of base for a small group.
It’s going to be, as I see it, a kind of a 2004 type strategy like the one engineered by Karl [00:23:00] Rove, where it’s get the base out and forget about swings.
You know.
That worked in 2004, I think there were a lot of factors behind it, though. Nation was that in a in a in the beginning of a war, Kerry was. Patriotism was being attacked left and right. And he, I think, had some problems as a candidate and still came.
It was one of the closest recent elections in terms of, you know, not winning a popular vote, but coming close.
So do you want to execute a strategy like that again as a question? Was it really that successful when you were battling over Ohio in the last weeks? So it’s definitely something to think about. That’s the way I see it.
One of the factors you got to look at here as we look at the kind of Trump 2020 outlook, is that when a president loses Ford, [00:24:00] Taft, Carter. To some extent, George H.W. Bush.
There are one of the most important factors is internal party disagreement.
And you know, that’s was defeated. Those presidents.
Ford had a nasty primary, the Reagan Carter a nasty primary with Ted Kennedy, where never really was repaired that well. In both cases they sort of shook hands, slapped on the back and, you know, of some vague pledges that, oh, you know, I’ll campaign for you, Mr. President. And then it didn’t really significantly happen in either case. It was the wounds were deep and it hurt that president’s re-election. In 2016, I believe the Republican Party was split up pretty well and there was a strong [00:25:00] never Trump kind of group.
I’m not sure about 2020. So I think one of the major hurdles that a president faces, whether it’s George H.W. Bush and Pat Buchanan or Taft and Teddy Roosevelt, when an incumbent president is losing its party split up, they don’t have a unified party. And whether it’s been unified by four sort of by, hey, either agree or get out. I think you’re not going to see a significant primary. I could be wrong on that. But that’s my call at this point.
That’s a major factor. The second thing that defeats incumbents is the economy.
And so that’s something to keep watching because no president has won re-election when the economy is in recession. In the election year, close calls to close calls trim and 48. George W. Bush, 2004.
Close calls have come recently won by the incumbents. So. [00:26:00]
I guess I could go back and add 1916 to that Woodrow Wilson as well. So, you know, those close calls are gonna come as there’s a lot of factors there.
And I think that. So going back to the idea of this fractious and you have these debates and there’s some funny gag, funny moments in the debate. Very entertaining. There’s two things going on. One is that it does shift the attention away from the presidential bully pulpit a little bit. On the other hand, I also feel like it. It presents a, you know, disorganized party. Now, does that matter? After all, you’re the opposition party. Do you really need unity? Or better question is, can you wait for unity? And I believe the answer to that is yes. So while this going on right now may not look great for the Democratic Party, the Democratic Party does not have an approval rating. Right. They’re not president yet. They’re not in the White House. They’re not a single unified figure yet. We have to worry about that of your Democrat is going [00:27:00] to be in July when a nominee is picked. Can you unify then? And I think that’s an open question. I think it would be silly to think that just because you have 20 or 25 candidates now, there won’t be consolidation and unity at the end. I do think that key moment in the in the early debates was Kamala Harris attacking Joe Biden on his position on bussing. You know, that’s going very far back on an issue he. Joe Biden’s a senator in nineteen seventy eight wins in the 1972 election. Marla Harris is a senator. You know, in 20, 19, as is a very different time. And someone who looks at history and tries to avoid presenteeism. You know, I think is going to be harsh about that approach, like taking words from that time.
And on the other hand, we’ve moved on so much as a society that there is a question mark about Biden. And I think it’s a legitimate one about [00:28:00] age. And does he come from an era where this where he’s a figure that can matter anymore?
Not physical age, not a ballet, the demands of the presidency, I don’t think that’s really where I’d go. And running against Trump was also older. That’s not going to be as much of an issue.
But I think when you you know, I thought that I personally never gave during 2016 and I wish I’ve had a thought more of four predictive purposes is, you know, Hillary Clinton was running in 2016. You know, 20 years before that, she was by the side of Bill Clinton running for re-election. That’s 20 years that have passed.
That means many voters were not even born yet. Then and other voters hadn’t had their opinions shaped then and that and you see it coming up.
And the issues, say, around the crime bill, [00:29:00] where in the 90s there was unified support for this law and order approach and crime. I just did.
It was in the news everyday gun, you know, especially in urban centers. Had you hadn’t had the urban centers gentrify yet? You know, New York comes back. And in a sense, you know, all these cities start getting improved downtowns and improved like buildings coming to them.
In many cases, not all, but in many of the major cities. But that wasn’t happening yet. And so there was a.
Now you’re seeing issues that might have made sense in that time that no longer makes sense. And I have thought later after the election that, you know, Hillary Clinton wanting running in 2016 could very well have been like Herbert Hubert Hubert Humphrey and Richard Nixon battling it out in 1988.
Now, Hubert Humphrey wasn’t alive then I get it. I’m just saying this hypothetically. And there’s no way Richard Nixon was getting a Republican nomination that time, though he [00:30:00] was more involved in politics than people realize. As a retiree.
That’s my point, though. These are larger figures, and as a Gen Xer, the Clintons have been part of my political life that I might have been a little blinded to that even.
And so that’s a factor to consider for Biden. I think Kamala Harris, that’s the reason there was a wedge there that she could exploit. I do wonder if it was a little bit too early of an attack and a little bit too harsh of attack going after racism in a major nominee of your own party. You know, the Democrats don’t have that 11th Amendment that the Republicans have. Thou shall not attack. And other Republican, by the way, the Eleventh Amendment is a little bit self-serving on the part of Reagan. He was running against a liberal Republican and Reagan as a conservative Republican and really a member of the kind of the 1960s version of, say, the extreme right. At that time, an elite gathering support from that [00:31:00] area was really subject to intraparty attacks. And so creating allowing the state party chair in California, which is he who issued that 11th Amendment, allowing him to say that and have the referee kind of stop attacks was was definitely self-serving for Reagan. So that just a little historic note on that. The Democrats never had that. But I do wonder if this is a little violation of even that unwritten rule that, you know, you don’t go that hard after a fellow Democrat, especially in the first debate. Time will tell. I do think in the second round of debates, the recent ones I saw that I could not help but see the comparison to John Glenn and attacking Mondale in those early debates with the noticeable difference that while there were a lot of candidates on the stage during that debate, they’re all sitting down and you know.
And talking, but I think that John Glenn went after Mondale for having too much union [00:32:00] support for raising all this money, for being too liberal. But he wouldn’t be able to stand up to special interests and that the Democrats needed to move to the center.
And because Glenn and Mondale were attacking each other, no one was attacking Gary Hart and he was able to surge.
That’s one factor.
The second factor is that Glenn just couldn’t run in Iowa and New Hampshire. They’re quirky states. They still are. They like the quirky candidate, I think. But a judge is going to do very well in Iowa. That’s my early prediction. Let somebody else come. I think Warren will do very well. They like.
Candidates who have strong things to say, they like the odd candidate. They also like the Midwestern candidate. So I think that Kamala Harris has an issue with those two states. I also think she may have attacked too early. And in a because there’s a lot of election [00:33:00] to go, it’s not like you shouldn’t be attacking, especially as you close in during those, say, Super Tuesday months. But attacking that early, I don’t know. Maybe. Maybe.
And people may feel differently. I’m not a professional political consultant or anything. Just looking at history. And you see what abo. John Glenn, very strong candidate and boom. Virtually out of the election after New Hampshire, though, he ran for a little bit more. And the other factor with Kamala Harris is I do wonder about Iowa and New Hampshire and whether there’ll be enough appeal there. And the problem with losing those two states is critical to momentum. You know, when we when we had the last election, we said stop talking about momentum. That was something that Mondale’s team was saying. That’s not what my history can beat up. Your politics is saying it’s not what I’m saying. I think momentum is in credibly important and you can’t just sit out elections. There was the 2012 election [00:34:00] where Giuliani tried to sit out until Florida and wait and McCain had already won the nomination by then. So that’s not a good strategy. So that’s my early take. It is very early. There’s a lot of candidates running.
You’re probably gonna see another candidate surge in a surprise before we’re out here and before we get to the actual voting.
And then I also think some of these candidates have to drop out there, just simply won’t be popular support anymore to keep them to keep maintaining them.
But certainly it was a good idea to do the 1984 episode.
I think it applies quite a bit.
Ok, so.
Let me read an article from nineteen ninety five. Up on the computer here is organized in this episode, as I normally am, but I have been quite of the time. New York Times. So Clinton in five. He’s got. Let’s [00:35:00] see here. His average. First term approval rating is 50 percent. In the beginning of nineteen ninety five, it’s 40 percent.
In August, he’s at 46 percent. Things up a little, but still under that 50 percent mark.
Here’s a story in The New York Times from the beginning of 1995, returning New Jersey, a pivotal state in presidential politics that gave Mr. Clinton a narrow victory in 1992. Yeah, who would think New Jersey was a swing state in the 90s? So was California. The president addressed his major fund raising event of the 1996 campaign tonight, urging Democrats to come to his side. What he said was a debate of first principles taking place in Washington.
We ask you for your voice, Mr. Clinton told Democrats gathered for a thousand dollar a plate dinner at the Garden State Convention Center in Somerset. We as career labors. We ask for [00:36:00] your passion.
The president heatedly assailed the Senate defeat today of Dr. Henry Foster, junior as surgeon general, as a vote against women’s right to choose abortion, and he vowed to keep a ban on assault weapons, referring to the narrow defeat of New Jersey Governor Jim Florio, a Democrat. A defeat that somehow partially attributed to support of gun control.
Jim Florio gave his governorship for it. I’ll do it if I have to give up the White House for it. I’ll do it.
Earlier, the president received a rousing welcome from autoworkers at a Ford plant here as he vowed to make Japan open its markets to American automobiles and car parts and stumped for his own budget plan, an economic program.
Every time you wonder what we’re doing up there, you see a fighting going on in Washington. Just remember, my test is will it create jobs? Will it raise incomes? Will it make working people more secure? If they’re doing their part?
Mr. [00:37:00] Clinton has repeatedly expressed a reluctance to be drawn into overt presidential politicking. So soon before 1996, although his appearance at a Ford Edison assembly plant with his wife Hillary had all the trappings of a campaign event, the president, Mrs. Clinton, donned black UAW jackets in front of cheering auto workers and then left as a sound system, blared Bruce Springsteen’s Born in the USA.
It was a sympathetic audience for Mr. Clinton’s stance against Japan’s trade policies with Earl, now an official of the United Automobile Workers Union telling the president to get us more jobs. So that.
And then I here’s from just a few days before. Here’s Clinton, State of the Union on immigration.
All Americans, not only in the states most heavily affected, but in every place in this country, are rightly disturbed by the large numbers of illegal aliens entering our country. The jobs they hold [00:38:00] might otherwise be held by citizens or legal immigrants. The public service they use impose burdens on our taxpayers. That’s why our administration has moved aggressively to secure our borders more by hiring a record number of new border guards by deporting twice as many criminal aliens as ever before, by cracking down on illegal hiring, by barring welfare benefits to illegal aliens in the budget. I will present to you we will try to do more to speed the deportation of illegal aliens who are arrested for crimes to better identify illegal aliens in the workplace as recommended by the commission headed by former Congresswoman Barbara Jordan.
Now, I have to be clear about that.
That Tom Perez, the one play that video recently and had the other side of it that, you know, yes, Clinton was calling for border security, but certainly and there was a Republican Congress and presidents historically act differently when they have a party of the opposite party in Congress. [00:39:00]
It was true of Nixon and the Democrats. You know, Nixon was a much more liberal president because he had Democrats in Congress. I get it. But I also Perez says, you know, look at.
Clinton wasn’t trying to just deport people who have been living here a really long time. And he wasn’t using the asylum to detain people, it was border security and getting rid of criminals. But the rhetoric is very similar. So, you know, what is this really is a Trump Clinton now. Now you see in the policies, I mean, listen to Clinton talking about abortion and gun control. So on these major, you know, issues that people feel strongly about Clinton.
Exactly different from Trump. But in the approach and in this political situation he’s in, I think 1996 makes a good visor through which to see where 2020 is going because Clinton was a flawed vehicle, no doubt about it. Ed, you’re getting at the 1995 was not very popular talking about these similar approval ratings to where you’re seeing the national approval for Trump right now. He [00:40:00] would build it up by a couple points every month, going all the way to 1996, 1994.
He’d lost a midterm in a bad midterm. His approval rating was down to 40 percent during that time.
Really rough first term Clinton. And that’s kind of forgotten.
Another similarity that I see, like Clinton had changed the median wage, change, the approach, the meta game, the media spinning was something that we just gets so common. But it was a new term then to spin the media, to just have people like George STEPHANOPOULOS or James Carville, others, Dee Dee Myers just constantly making press statements, matching the pace of cable news. He was really the first campaign to do that. They had a satellite phone. I know it’s crazy, right? Satellite phone in order to. Get the candidate available for news reactions at [00:41:00] the time that it was needed. They were sending video of the satellite to news organizations. Sometimes news organizations were using that video. So and Clinton in that the way that he spoke and, you know, was and in using poll tested statements and later in the in the 1996 campaign, he is going to do what they call mic issues, like he’s going to come up with these little issues like school uniforms or a video chip that would help parents decide what programs their kids could watch to try to corner the market for the suburban mom and to show family values to take that away from the Republican. He was also looking at these trade issues. And when you’re starting to see some of the issues. Just passed an actor. So he had was a little bit on the defensive on this. But you’re talking about a candidate who is a Democrat that could compete in Louisiana, Kentucky, Tennessee, Arkansas, [00:42:00] Florida, Arizona, different elections.
You know. West Virginia.
So there are similarities there, and I think while I’m not I’m drawing a rough sketch here and I’m kind of giving you the sheet of paper of my rough sketch instead of really doing it like I would in a normal podcast.
But just look out in the future that I’ll be looking at that trend more and maybe do a developed one on the 96 campaign and what was going on behind and clean one that overwhelmingly.
But it wasn’t always clear. And if you talk to people in 1994, most people said Clinton was not going to be re-elected, including Democratic. Members of Congress who didn’t always like the Clintons very much.
Prior to this podcast, I didn’t know what a holic was. Though I’ve seen them every time [00:43:00] I go to the grocery store, it’s that container that strawberries are in.
You know, the one that’s that has little cuts for air on these little slits to get in. And so you can see the strawberries, too.
That was a factor in a recent case about, of all things, the census. I’ll explain in a bit.
The Supreme Court has ruled on a number of cases recently. And, you know, there’s definitely, as we alluded to earlier, there’s some surprising results. There was a case about the 20 First Amendment. Yes, the amendment that repealed prohibition. I’ve talked about that. By the way, on this gaff. So you heard it here first and a lot of cases where that amendment did more than just repeal prohibition.
It didn’t just repeal the 18th Amendment. It also gave states the power to enforce control over the sale of alcohol in their borders. So in Tennessee, the Tennessee wine and.
Liquor Association is defending a law in Tennessee, law that’s under attack. [00:44:00] Tennessee law requires someone selling alcohol in Tennessee to be a bona fide resident of Tennessee two years before the application. And the Tennessee Alcohol Bureau Control Bureau denied a couple of applicants applications.
They sued, saying this is a violation of 21st amendment that you know, that you’re taking. And also, this is a violation of the commerce clause that says the federal government’s in charge of interstate commerce. You can’t limit somebody because they don’t live there, can’t limit the person. Hey, you can tell me I can’t sell alcohol after 8:00 o’clock in your state. That’s fine. But you can’t tell me that because I’m from New Jersey.
I can’t sell it. An interesting case.
This is one where.
Most of the court Alito, Cabinet, Briar Roberts, Soto, Meyer, Ginsburg, Kagan, all agreed that to use the Twenty First Amendment. [00:45:00]
Which again says the 18th man, which shall be repealed. States have control over the sale of alcohol in their borders.
And three Congress can use its Congress should pass this amendment using a convention system, which they did.
How much power, though, if you controlling sales of alcohol, the state, how much power do you have to limit interstate commerce? Or is that the. That should be the federal government should be the superior government when it comes to commerce power. So the court did agree with that and struck down the law.
Gorse Ich and Thomas disagreed. And in the dissent, he said, you know.
Alcohol is a very serious issue.
For the court to discard a constitutional power. Is a very [00:46:00] serious one. And respectfully, I do not see it. In other words, he sees in the strict reading of the 21st Amendment that states have control of the sale of alcohol. For instance, one of the examples he gives is you may want to know if a person is a resident for more than two years. For more than two years. Why?
Well, because it’s easier to do a background check. So there’s a real reason in the interest of the state that you need to limit a person to maybe two years of living in Tennessee to be able to sell alcohol so that you can you can. It’s easier for a state to do a background check if somebody who lives in that state. Right. And ask people who live in that state then than not. So that was one of the reasons that he gave.
So but I think in that you’re seeing at least a few indications and the court went all over the place and generally people did side with their normal sides. But there were a lot of breaks in some interesting cases. And what you don’t see is absolute textualism being picked up by the entire court majority, though gorse, which [00:47:00] is certainly a champion of it. And with Thomas coming in at number two and I would now put it Alito number three in cabinet, not showing an early interest in textual, let’s say, fundamentalism.
All right. And looking more at court effects, that does not mean that I think on on some key issues, I think you’re just going to see 5, 4, 5, 4.
What else we got here?
The gerrymandering was brought up in two different cases, one involved Maryland, where Democrats had gerrymandered state and the other valve, North Carolina, where Republicans had gerrymandered the state.
In both cases, the legislators in North Carolina and Gov. Martin O’Malley of Maryland had made definite statements that the reason they were doing this was to win Morse House seats for their party and [00:48:00] thus did not, in some sense deny voters the partisan representation they may want depending on where they live.
So that issue came up. The court has for now, it’s a 5 4 decision, decided that they do not want to act in gerrymandering cases. Obviously, a lot of history brought up there that the very act of gerrymandering is a political action.
Roberts writes the decision. Roberts says the court cannot. There is no reasonable standard. There’s no way to measure this. Kagan writes, The dissent is very strong. Dissent says for the first time, the court’s not going to intervene when constitutional rights are being usurped because they feel they can’t. Kagan says and I think this is the most convincing argument on that side that.
You know, members of Congress, parties, state legislators are all using computer systems to determine how to align [00:49:00] the states so they can max out the partisan revolt results and pack voters into districts where they’re going to vote alike. And the court is refusing to use the same tools. You know, it should be possible in her argument for the court to use some systems to hire experts like courts doing a lot of cases to get expert witnesses and figure out if something had been too harshly partisan gerrymandered.
And that, for instance, like there are cases where there are five thousand ways to do districts in a state and only one results in a certain partisan outcome. And that was the result chosen, and that, of course, should be able to make that kind of determination for Judge Four, for Roberts, for Alito, for Gossage, for a cabin offer, Thomas. This is way too far for the court system to intervene. One of the things that Roberts points out is why you have legislation in [00:50:00] Congress that in the House to stop gerrymandering. So it’s not like Congress doesn’t have the ability to regulate itself. There’s there’s majority support in one chamber for a bill that would stop Congress from being able to write their own districts. You know, in these states do to stop gerrymandering. So it’s a political process and should go through the legislatures that for the courts to intervene, it would just be one more thing, in their opinion that would tarnish the image of the court, that would have us in a mess, that would have us all the courts in a mess every time politicians did anything.
And who were they to determine what you know, how political activities go? So any action on gerrymandering outside of racial gerrymandering is gonna be stalled for some time until there’s a change on the court, I believe, or change in somebody’s opinion.
But you had an interesting case here. Another one.
What’s [00:51:00] the best way to build a highway through, you know?
You wouldn’t think at first it’s a public park right now. These days, but bring ourselves back to the 1950s and we always look at as a historical event how great it was, right, that Eisenhower built the interstate commerce system. Well, don’t forget, one of the ways they did that was to build through public lands and sometimes public parks. Parks were easier, didn’t have to pay. You didn’t have to take down houses. You have to pay for land. So.
The Department of Transportation.
Required was required to demonstrate that when they took park lands, which they were doing to build highways, there were no feasible and prudent alternatives to building through public lands.
The Department of Transportation, the federal department plans to build through interstate. [00:52:00] They plan to build Interstate 40 through Overton Park in Memphis, Tennessee.
A group called the Citizens to Preserve Overton Park brought suit against him in the western district of Tennessee to claim the secretary had not complied with that ruling. He hadn’t looked to see if there were feasible, imprudent alternatives.
A summary judgment is granted by the court. The Sixth Circuit of Appeals affirms the district court decision.
It’s taken to the Supreme Court.
Summary judgment means that they’re gonna continue building to court of appeals affirms that the citizens of Overton Park go to the Supreme Court.
And in nineteen seventy one, in a decision written by Thurgood Marshall, the U.S. Supreme Court ruled. That the feasible and prudent clause was upheld and the summary judgment was improperly granted.
Now, [00:53:00] it doesn’t block Route 40 immediately, Interstate 40 immediately, and also the citizens of a long fight. It’s not till the 1980s when it’s decided that 40 will not be built through that park. They’re fighting it still for decades, but it did develop a theory. Two theories, really, one used by the dissent and one used by the plaintiffs in decisions on the.
One used by [00:54:00] the court and the other used by the dissent in the decision.
On a recent case about the US census. So as you if you’ve been following the news, you know that Commerce Secretary William Wilber law roars at President Trump’s instruction, wanted to add a question about citizenship onto the census and.
They eventually went through it plans to do that. The reason they gave the court is that they were trying to enforce the enforce the Voting Rights Act, but that was only after some internal action within the administration and sort of like shopping around the idea to find out if any departments had anything they could use to kind of justify adding this question, which led the court to believe.
And this is Justice Roberts decision that.
The real reason that the secretary added the question was not the one in the in the record and in the court filings, though, given that there was [00:55:00] some other reason and the opposition was bitter.
You know, the dissent. Thomas writes the dissent and says, you know, for the first time we’re going to say that we don’t trust an official.
But, you know.
And that there’s some ulterior motive that the court can kind of suss out and how can you do that? And it’s, you know, it could be valid. That could be a very slippery slope. I do understand that argument. And on the other hand, Roberts is saying, well.
If you don’t tell us why you’re doing something, honestly, truthfully, how can we use a court review? We need a real record to review. If you are an administrative body like the Commerce Department, you have to tell us why you’re engaging in an action.
And that has to be the real reason. And if we don’t have that, it’s not reviewable by the court and it can’t stand and we can make judgments on it. And so [00:56:00] that’s what he’s that’s what he’s said in this case.
It goes back to this Overton Car Park case where Overton Park.
You know, established that the court could review what an administrative body was doing if they were not following their own procedures that they’re supposed to follow, like they were supposed to look to see if there was an alternative to the park and that had not been done.
At least in Justice Marshall’s opinion. However, it also says that a presumption of correctness must be given to an administrator.
And that goes back to another case.
Which involves the state of Oregon and a requirement that Halleck be used if you’re selling strawberries or other belly berries in the state of Washington [00:57:00] and there is a company from California that used a metal container and wanted to sell strawberries and being banned from it. They sued the state of Oregon and said, this is just capricious against us. You’re not following your own administrative procedure properly. And in addition to saying, hey, there’s some reasons for Helix, after all, you have to see the strawberries and make sure that they’re good. That’s what the state of Oregon wanted. But more than that, the court was saying we have to defer to administrators like the State Department of Agriculture in Oregon rather than we as a court. The guys wear in the robes deciding how to sell strawberries in the state. We have to have a presumption that the executive is right and and that the legislature is right, because in in an in an administrative body, the legislature is speaking through that administrator on a day to day basis. The members of a state legislature, a member of Congress, can’t be out there watching the strawberries being sold. They delegate that authority to an executive body. You [00:58:00] have to trust that executive body. And this is not the legal phrasing, but this is more or less what the decision meant.
And.
You have to assume that an administrator is not acting capriciously unless you can show that they are.
And the court must assume that can’t go in and investigate every little thing because it might be capricious.
You have to show evidence that it is. So that’s basically what that case and see if I can find the name of that case here.
But Overton Park case cites it. And. You know, we’ll find it, we’ll find it in any case. I think that said, these are some interesting cases that have come through the Supreme Court recently, and if you look at our current politics where.
Ok. This is very different.
You know, I talked about President Clinton [00:59:00] possibly manipulating the media, but this is very different.
You have Trump, who’s going on and tweeting about things and in many cases giving you his intentions. Right.
And supporters are reading it and seeing, you know, they’re getting their news kind of from the presidential tweet as a source.
Courts are looking at that, too, and saying, OK, we have this intention here, and then we have the official cabinet members that are saying they’re doing something for one thing, and then the president saying they’re doing things for the other. Expect to see that battle show up in future cases. Now. I believe where you’re gonna have the kind of the Thomas side that says, hey, you have to give the presumption of authority, the presumption of credit and correctness to the executive. And then we’ll keep watching. If you continue to get Roberts on a side. Well, if we have evidence of the contrary that we are, you know, that we’re not being given [01:00:00] the right reason for this action by an administrative body or by a cabinet, that there’s something else involved, perhaps politics. Know not directly said, but perhaps that is we can rule on it and we can decide. And he’s been mixed on it because in the cases involving immigration and the stay order and immigration early in President Trump’s term, Roberts was not someone who advocated that. He actually said, are you going to use this guy’s campaign statements every time you have a case before here? You know, he’s president now. It’s different from a person running for office.
So we’ve seen a change there, at least in Roberts, who on certain things is a swing vote in the court.
Ok, so that’s enough discussion about the Supreme Court. One more thing before I go. I’m going to you know, look, I think another one of the issues as much as like Trump is in the news.
So is a you’ll see. And so is the idea [01:01:00] of socialism. The attack, you know, 20 20 is going to be fought on kind of Trump ism versus socialism. And I have an episode in 2009, which was one of the most popular episodes ever of my history, can beat up your politics. And it just strikes me as funny. The whole reason we did an episode on social issues is because Obama was considered a socialist. He was being attacked in that time in that way.
And then I think for someone who is a progressive Democrat right now, that would almost be something funny. And at the time, we had quoted various socialist and socialist labor parties in the United States in 2009. Who said that? Barack Obama. You know, he’s not showing up in any of our meetings. He’s been his ideas aren’t very welcome and referred to some of his policies.
So we also go over the history of socialism in the United States. I talk a lot about Jack London, who wrote [01:02:00] this book called The Iron Heel, which painted socialism as the good part of a fight between fascism and socialism. Right. And there is ever some evidence of that fight going on. Now, if you look at the example of the Soviet Union, you have something very different where there was a system that lacked some of those freedoms. And so you see both sides of that. And we do discuss that on the cast and and the pros and cons. But that episode from 2009, I just read listened to it. And boy, does I think I think we’re gonna have to rerun it, because I think it really has a lot to say about the debate today, where on one hand, something that’s being attacked is very a foreign idea to the United States was able to get a million votes in.
In a 1912 election. You know, and.
And mayors [01:03:00] and cities and governors at least leaning that direction and was almost the third party in the United States and thus not very far in. And it was a movement that perhaps got.
Molded into the other parties, mostly the Democratic Party, but into the other party, so it’s not an idea that’s so foreign. There are historic roots for it.
And there’s also, you know, some things to think about, you know, and including the questions of.
Well, I always think of this this way. And again, this this podcast has a really rough sketch. So excuse me if I’m not sort of proving everything and kind of having examples for all of it. But just to give you my thinking generally on these issues, politics to me is a lot in a lot of ways is the avoidance of oppression.
All right. Democrat Democratic politics, small d za avoidance of oppression. [01:04:00] Nobody wants it. OK. One side is looking and saying I’m and whether they’re right or wrong, you know, I’m looking at people that are very liberal and they’re going to be in government controlling me and stopping me from everything I want to do for whatever it is. I want to own a gun. I want to hunt and fish, I want to drive a truck. I want to start a business. I want to do say what I want to say. I want a listen to what speakers I want. And on the other hand.
There is a group saying.
I’m worried about these people in power are going to be controlling my economy, controlling one income, controlling the choices I can make about my body, my family, my my ability to.
Work freely and.
And just, you know, the banking system, what loans I have to pay can, you know, controlling my economic destiny through a variety of laws and then eventually even controlling my Democratic right to vote.
Politics is about the avoidance of.
Oppression, [01:05:00] and so you’re seeing both sides light up in the extreme of.
Their opposition to an idea by by virtue of that, you know, in other words, the socialist labels being brought out because it’s being seen as if you elect Bernie Sanders, say he’s going to turn into Josef Stalin or, you know, and. You know, I think that more nuance is needed in the discussion there. That is, those who are advocating certain social policies are not necessarily looking to destroy the democratic framework or to end all capitalism.
So but we don’t tend to have nuance in our debates do.
But I will do plan to rerun that 2009 episode in the near future. Don, I want to thank you for listening.
Oh, and I got to give a plug to the extra podcast from my head, you can beat up your politics, help support me, get [01:06:00] a lot more content. Really a lot more. All of these we’ve I’ve conducted as I’ve been doing the Arctic commerce, I’ve been talking about that episode and what I’ve done and reading things that didn’t get into that episode and I’ll be doing more of that. So please sign up w w w my history can beat up your politics premium dot.com.
Thanks for listening.