WTF Are The Dems Doing? with Jamelle Bouie

here's the deal.

I ran for president because I believe we're in a battle for the soul of this nation.

Hey everyone, this is Leon from Fiasco and Prologue Projects.

On this week's episode of 5-4, Peter, Rhiannon, and Michael are talking to New York Times columnist Jamal Bowie.

They'll get into what the Democratic Party got wrong about its response to the decision overturning Roe v.

Wade.

They'll also talk about why that's symptomatic of a larger issue with the party's approach to the judiciary and what they can do differently going forward.

This is 5-4, a podcast about how much the Supreme Court sucks.

Look at your incredible mic setup, Jamal.

I just bought a bunch of expensive stuff and expensed it.

Hell yes.

All right.

We are here with Jamal Bowie.

Jamal, welcome to the podcast, man.

Thank you for having me.

Long time, not long time listener, relatively recent listener, but I've gotten through like most of your episodes.

So I feel like a long time listener.

Thanks for being here.

I think that counts.

Yeah, thank you.

Jamel, of course, for those who don't know, New York Times columnist and co-host of the Unclear and Present Danger podcast.

And today we wanted to talk with you a bit about the Democrats' response to the past Supreme Court term, not just the jurisprudence of the term, but but the sort of general sense that the court has, A, lurched right

and

B,

sort of seized a pretty enormous amount of power for itself.

And I think we can break this down into a couple sections, a couple of broad sections.

First, what should

we be doing?

What should the Democrats be doing?

And then, you know, second, what are they doing?

We can talk about their response to Dobbs, et cetera.

That part can be short.

So, you know, first, to kick this off, you wrote a couple of pieces for the New York Times shortly after the end of the term.

One titled, How to Discipline a Rogue Supreme Court, and the other, The Supreme Court is the last word on nothing.

You made several discrete and specific arguments, which I want to touch on, from jurisdiction stripping to the guarantee clause to the second and third sections of the 14th Amendment.

But holistically, it seems like a part of what's running through these pieces is an argument for a reconceptualization of our constitutional order, away from one that has the Supreme Court at the center and toward one where Congress especially sort of asserts its ability not only to enforce certain constitutional rights and obligations, but to keep the court in check.

Is that a fair assessment?

I think that's right.

I've been sort of writing on this vein for the past couple years here and there.

And the perspective I've come to, both in like kind of developing the argument through the writing and then also just doing lots of reading, especially on pre-Civil War American history, which is interesting for a lot of reasons, but especially interesting on this score, is that it's not just that the idea that the Supreme Court is the final word on what the Constitution means, that that's a relatively recent development and sort of how these things work.

Like relatively recent, meaning like in the lifetimes of your parents and grandparents is like when this became the norm right but in the pre-Civil War era it was very common for politicians for members of congress or presidents to just actively contest constitutional meaning right to essentially say that as constitutional officers we have the right to say what we think the constitution means and we can contest what the supreme court says about it i mean this was sort of the fallout from dred scott it was the nascent republican party and its politicians saying, no, the court's wrong.

The court's wrong about what the Constitution means.

And if you elect us, we're going to do things to correct the court.

And I think that is a tradition of like American political thinking and American political life that's really been lost over the last 50 or 60 years.

The underlying idea is that whatever the Supreme Court says, right, goes, it isn't we're going to use Congress, going to use the White House to assert an alternative constitutional meaning.

We're just going to change the composition of the court so that it it falls in our favor.

And I think what I'm kind of pushing is the idea that you don't actually, I mean, it would be nice to have a less insane majority on the court.

That's clear.

But even without that, you can still contest constitutional meaning and you can do things using the powers granted by the Constitution to Congress to actually...

you know, the way I put it is discipline the court to say that actually, no, you are not the final interpreter of what the constitution means.

And that when you begin to overstep your power and your authority, such that it even exists, we have the right as the elected officials of the country to push back.

You know, in Marbury versus Madison, the court says, well, we can say what the law means.

You can read that as kind of establishing judicial supremacy, or you can read that as just the court saying, well, we too have a say in what the Constitution means,

not exclusive from the other branches.

And that's sort of where

landed over the years.

And

it's as much about sort of developing a public and political culture as it is about sort of concrete actions to push back on the court.

Yeah, it's interesting you mentioned judicial supremacy because that's a well-developed academic concept, right?

In contrast to, I think, what you're describing in the academic literature, they call it departmentalism, where all three coordinate branches are on equal footing in terms terms of

interpreting the Constitution.

And that is not really in favor these days.

But I think you're already starting to see it bubble up.

I was reading something, I think, in Talking Points memo where Josh Marshall was saying, like, hey,

all the electeds get a say in what the Constitution means.

And I think we're going to start seeing more of that.

going forward, this idea that like you're, you know, we're all constitutional officers here, we being elected officials, and we all get a say.

Yeah.

I mean, just on a practical level, I mean, when you kind of think about it, it's like, okay, Congress, the Affordable Care Act.

So a majority of the House passed it, majority of the Senate passed it.

It passed in the final reconciliation process, conference process, and the president signed it.

And then four of nine justices said, we think that this entire law is constitutional in full.

And so like, Okay, five people say that it isn't.

Who the fuck cares?

Right.

Like really, really like what what what give those five people weight over four of their colleagues like the elected representatives of the country in the house and the senate and the president of the united states who is again elected by the people of the united states like what why do these five people outweigh the constitutional judgment of half of their again their four colleagues and the rest of the officials.

And I think the answer is like, it doesn't.

I mean, it just doesn't.

And I think liberals and Democrats need to get comfortable saying that, saying, who cares what you think?

Yeah.

Yeah.

There's an extent to which I've been thinking about, I'm glad we're talking about judicial supremacy.

And Michael, I hope that you're right that we are moving towards a different understanding of how the branches of government interplay with each other in terms of constitutional interpretation.

I think it's important to point out that we're at this stage right now now where Democrats are not putting forth any positive theories of what the Constitution means, where Republicans have been doing that, right?

It's not that nobody is doing it and we've just kind of moved away from the practice in general.

It's that Republicans in a conservative legal movement, right, made it one of their aims that, you know, elite interests, what the Constitution means for, you know, the richest among us is sort sort of part of judicial supremacy, is part of their constitutional interpretation.

And they're effectuating those goals through the judiciary, right?

And it's all sort of built on top of each other, on top of itself to make it where Republicans have put forth a positive theory of what they think the Constitution means through their own conservative legal movement that has now, you know, put in place a conservative supermajority on the Supreme Court.

Like they are doing that.

The Democrats are not.

I think that's right.

And Joe Biden seems to be like

a true believer judicial supremacist.

Like someone who very much is like, well, if the Supreme Court says it, that's the world

we got to live in.

And I do wonder how much of this is just a product of coming up in the 50s, 60s, and 70s in a period where the Supreme Court was

generally doing good and doing good over some public controversy at the time and

creating an ideology that says, well, look, the Supreme Court has the final word, and sometimes you might not like its decisions, but

you got to abide by them.

And so Roe v.

Wade is the law of the land, and Brown v.

Board is the law of the land, and fully buying into that in a way that they can't like,

you you know disentangle now right yeah now that they're looking at uh the opposite i think even the democrats who do have a sort of like general sense that something is off here like the courts shouldn't be able to do this they don't really have a language to articulate that right the average democrat doesn't have a coherent theory of like popular constitutionalism in their mind or something like that.

Exactly.

Right.

They're just sort of expressing these general frustrations, but they're still working within these frameworks that are based around judicial supremacy and based around all sorts of jurisprudential formalism.

So, Jamel, I mean, in one of your pieces, you mentioned a couple of potential remedies here.

You talk about jurisdiction stripping.

You talk about the guarantee clause, the 14th Amendment.

I'll leave it to you in terms of what you want to discuss.

But, you know, there's some interesting options in there.

So I thought it might be worth letting you talk about it.

Sure.

So that column is sort of, you know, the headline is about the Supreme Court, but it's sort of broadly about, you know, what do you do about, you know, basically radical right-wing legislators that hate democracy.

And so,

you know, part of the Supreme Court stuff is building off of the little kind of note I wrote right after the Dobbs ruling, kind of noting that Article 3, Section 2 is in this like really weird way that it's clear that the people writing it just were not anticipating judicial review as it currently exists, right?

Like you can make a good argument that they were anticipating a form of judicial review that was much more along the lines of, oh, if something, if something clearly violates the Constitution, then obviously the Supreme Court gets to sort of like, you know, knock it down.

But the kind of broad judicial review that we have now, no one in 1787 was really anticipating that, other than, interestingly enough, the opponents of the Constitution.

So they write this kind of broad grant of power to Congress.

Basically, Congress can determine the appellate jurisdiction of the court in full, right?

Like there's no limits to it.

It doesn't say anything other than Congress can do it, which kind of in theory, I mean, in theory, Congress could just sort of say, oh, the Supreme Court can't hear appellate cases anymore.

And there you go.

That's probably never going to happen.

I'm not sure that it should.

But that's just to say that if an empowered Congress, an empowered Democratic majority in Congress wanted to, wanted to sort of, you know, pass expansive voting rights legislation, pass climate legislation, it could also then say within the text legislation, the court can't adjudicate this.

Like, this is not up to the court to say whether it's constitutional or not.

A thing that I like that I kind of went into a little bit, but went into prior into this note after Dobbs is not even stripping the court's jurisdiction, but just raising the bar to overturning legislation really high, right?

To say that, like,

if the court wants to invalidate a duly passed law by Congress, there needs to be seven votes or eight votes or whatever you want it to be.

It needs to be unanimous.

It used to be six when people were discussing this, but that suddenly seems a little bit low.

But you just need a super majority of votes on the court to say, you know, you can do this.

You can kind of like do these kind of rules for all sorts of things for overturning precedents, that kind of thing.

You know, if the court's going to overturn a precedent, it needs to be a nearly unanimous decision of the court.

It can't be a narrow majority.

So, and this was sort of inspired by a piece, an essay in that Biden White House Supreme Court commission.

Sam Moyne up at Yale had a essay in it where he kind of makes the case that instead of thinking of how to turn the court's power in your favor, maybe think about the ways you can just restrain the court's influence altogether.

And so, things like jurisdiction stripping and like instituting high bars for overturning things are along those lines.

Like, how can we just make the court less powerful, period?

And then the other stuff is just about, you know, you have all these, you know, right-wing dipshits in Congress who voted voted to overturn the election.

Just like a mob came to sack the place and then a couple hours later, they're like, yeah, we agree with that.

Let's overturn the election.

And so the point with the 14th Amendment stuff in particular is to say that the Constitution just has these clauses lying around that if you wanted to use them, it would certainly beat a big hubbub.

People would be very upset, I'm sure.

But there's nothing stopping a majority of Congress from saying, yeah, if you voted to overturn the election, you can't be in Congress anymore.

Sorry.

Like you violated your oath of office.

When you put it in those terms, it doesn't seem so crazy, but people find this really outrageous.

To me, it's not.

You swore an oath to the Constitution.

That presumably means that you shouldn't support violent attempts to overturn constitutional democracy.

So if you do, I'm sorry, but you can no longer serve in Congress.

That's sort of find some other job.

Yeah.

I mean, it's weird to say in the middle of like the January 6th committee hearings, which are very, I find, like good television, well-produced, and the people involved seem very committed to the project.

But it does feel like overall, institutionally, the Democratic Party

kind of was very sanguine about the January 6th mob that came to Congress looking to kill people, right?

Like, let's be honest about

what that was, right?

I mean, there's literally court testimony from, you know, oath keepers saying, yeah, if we'd found someone, we would have killed them.

And just being like,

yeah, but that was then, three hours later.

Like, yeah, but that was then.

Now is the time to move on and get to

the big task of governing.

Right.

It's wild to me.

I don't understand it.

I really don't.

I don't know how to wrap my mind around it.

I mean, I think they conceptualize of January 6th as like this sort of violent outgrowth of a very legitimate movement to use legal means, if necessary, to protect the legitimacy of the election, right?

And to the extent that any case is going to be made that like Republican lawmakers are part of the insurrection, you need to sort of toe that line where you're saying, no, there's a difference between...

the Article II argument about state legislatures and slates of electors and what happened here and your participation in January 6th.

I don't think it's that complicated of a case to make at the end of the day, though, right?

It seems, you know, you've got Hawley throwing up the solidarity fist for the first time in his life at the crowd.

And that's just sort of, you know, the most aesthetic example.

It seems pretty clear that you have lawmakers that were actively engaged, right?

Who is it?

Boebert, who was tweeting out like Nancy Phillips' vacation or something?

Yeah, like, right.

Boebert is like the low-hanging fruit here, right?

These morons who were like giving tours and googling how to do a public hanging the day before or whatever.

I mean, it can't how to execute speaker of house.

Right, right.

I mean, you're not, look, you're not going to get Ted Cruz, most likely, right?

If you want to build, like, really build a fleshed-out case, but there are some congress people who you could easily say participated in January 6th in the violent part of January 6th, right?

Not just the sort of like, frou-frou, maybe we could, you know, maybe we can give the election to Trump somehow sort of way, um, academic, you know, pseudo-academic, but ostensibly academic side.

Yeah.

I also, Jamal, I think it might be worth talking about.

We've talked a little bit about section two of the 14th Amendment, which grants the ability to take away representatives from states who deny the vote to people within their state.

The idea is that, you know, you have, you have this pool of eligible voters.

There are only very limited reasons for denying someone eligibility.

And if you do anything outside of those legitimate reasons, then you lose representation, right?

Because you've sort of lost the

you no longer have democratic participation from those people.

So you don't get representation in Congress from those people.

No one has ever tried.

to enforce this in any way ever since its implementation is my understanding.

There's been like, you know, some academic writing about it that basically says, well,

I guess you could maybe do it, but who knows how, right?

But it's very conceptually simple

and seems to make sense that if, you know, if there are people being sort of actively denied the vote within your state, then of course you don't get representatives based on those people, right?

It sort of flows from the structure of the Constitution.

And it seems like something worth talking about when we're talking about voting rights, right?

It's sort of like, well, this is the trade-off then.

Then you don't get representatives, right?

It's right there in the Constitution.

Yeah, I mean, I agree that I don't necessarily find it so complicated.

I mean, just off the top of my head, you can look at a state like North Carolina, right?

Where in statewide congressional elections, just like the statewide vote is not quite half and half, but like, you know, 51, 49, maybe Republicans, Democrats, 52, 48.

Pretty evenly split.

And yet, Republicans get about nine or 10 of the states, like, you know, 11 or 12 House seats.

And so there's a big big big discrepancy in votes and representation and you can use those sorts of discrepancies to say well this this is going to be an estimate of how many people are essentially being disenfranchised we can you know run some hearings etc etc and then um uh we can determine how how much representation we're going to take from north carolina uh or wisconsin until it

gets into order, until it allows its voters to actually have like a meaningful say.

And this would have to run both ways, of course, but then I think it would make the

democratic state's decisions to go with nonpartisan gerrymandering conditions much less of a, much less of a burden in terms of like national power, right?

Yeah.

And this relates too to the guarantee clause, which is another one of those things in the Constitution, which it's just there.

And

it no one has really ever tried to figure out what it means.

There wasn't that much discussion of it at the convention in 1787 during ratification.

Sort of the main discussions about it were like, oh, yeah, well, if a state wanted to make their state some kind of monarchy, then they can't do that.

Sort of those were the terms that they were thinking of.

But beyond that, there's not really, there's not much jurisprudence about the guarantee clause.

It's just sort of this like idle, almost like vestigial part of the Constitution.

But again, there's no rule that says you can't take idle and vestigial parts of the Constitution and like turn them into something.

Arguably, the independent state legislature theory is exactly that, taking something that we've taken for granted for more or less 180 years that you get to vote for the president.

And that when you do that, that's sort of, that's what it means.

Like states can't go back on that.

And this crazy theory is sort of saying, well, you know, look, if you read this section kind of in the most insane way possible, then no, you don't have to.

And in the same way, I think you can just say, you know, the guarantee clause, every state must have a Republican form of government.

What does the Republican form of government mean?

You know, typically, you know, in classical republicanism, it means like you know, meaningful self-government.

It means that people are generally represented according to the votes that they cast.

And if a state takes steps to essentially deny meaningful representation to large parts of its population, we can say, or put another way, if, if, if majorities cannot dislodge minorities that claim power in the legislature, if there's no number of votes that can allow, say, Democratic voters to elect a Democratic legislature, then that state doesn't have a Republican form of government.

And so then Congress can kind of just like, you know, take over.

I mean, this is kind of how Reconstruction worked.

Congress is like, these states don't have Republican forms of government.

So now they're under military control.

Right.

Yeah.

Now it's occupied by the Union Army, and we're going to write new constitutions and we're going to get these things to order.

It's there.

It's sitting there.

I mean, like, my view is what we're looking at in terms of the the future of u.s democracy is

republican like you know right-wing republicans basically using the license they've been given by the supreme court to create little kind of enclaves of minority rule all around the country and then using those enclaves of minority rule to capture national power right so if you have if if uh if pennsylvania republicans and wisconsin republicans and arizona republicans and georgia republicans all sort of like engineer their states so that Democrats can't really win and that win state legislative control and then they have total control of the state legislature.

And if the Supreme Court has blessed this idea that state legislatures have essentially unlimited power to do whatever they want when it comes to election rules, then it's a pretty kind of clear path to being able to say, you know, only Republicans can win presidential elections.

Like,

it's really not that difficult to do.

You can kind of easily imagine how it goes After that, we're going to either assign our electors to the Republican candidate, or to give it like a patina of legitimacy, you know, you can still vote, but we're going to take that vote into an advisement, or you can vote, and that vote is binding unless there is evidence of fraud, in which case then we can, you know, the legislature can make a determination, all sorts of ways to do it.

The upshot of it all is that, you know, effectively, your political opponent can't win the presidency anymore.

And so if that's kind of the thing that is not just possible, but I think is like increasingly kind of likely, then yeah, use the guarantee clause to kind of just like rip up state constitutions and say you can't, you can't do that.

The democratic rights under the Constitution extend to all Americans, regardless of where they live.

And to put a period on this thought here, in terms of ways for Democrats and liberals to think and talk about this, they should take inspiration from the Reconstruction Amendments to say say that American citizenship doesn't vary by state.

Like your rights don't vary by state.

That the Constitution grants all Americans a baseline level of political and social rights that cannot be violated.

And if they're violated by a state, that violation needs to be addressed.

And we're going to interpret the Constitution and lawmaking to ensure that that's the case.

And we are going to push forth a jurisprudence in which the Supreme Court looks at these issues and says, you know, know, does this violate this baseline level of rights?

And if it does, then, you know, we got to throw it out.

But this current approach of

sort of not really contesting the idea that states have a say in these things, I think is a mistake because they don't.

I mean, let's be real.

States suck.

They're a bad idea.

They were a bad idea at the start.

And by and large, states have done a piss-poor job of defending the rights of Americans.

It's been the federal government and Congress specifically that's done the best job among all of our terrible institutions of protecting the rights of the people.

So let's like lean into that.

Yeah.

And it's sort of an invigorating vision of politics,

but it's one that is almost certainly like unapologetically partisan and hard-knuckled.

And that's not the Democratic Party as it currently exists.

Right.

So like,

how do we get from here to there?

How do we get a Democratic Party that would do that?

Right.

Like, I mean, Nancy Pelosi isn't going to be leading the charge here.

Nancy Pelosi is reading poems.

Yeah, right, right.

Reading poems.

Yeah, singing, eating ice cream.

Yeah, that's a good question.

I mean,

that kind of hard-nosed and partisan Democratic Party needs to be driven by something ideological at the end of the day.

There needs to be some sort of thing that the people leading it believe in beyond just their own influence within the party, beyond winning office.

I mentioned earlier,

I read a lot of kind of early to mid-19th century American history because I just find it very fascinating.

And one of the genuinely interesting things is just like the development of the Republican Party, like how it came into

being.

And part of that story is anti-slavery politicians over the course of two decades developing like a coherent message narrative about their political opponents.

They called it the slave power.

It wasn't just that slavery was bad, but that you had slave oligarchs who like had a total grip on the operation of government and were using their power to expand and defend this immoral thing.

And so kind of the argument was like, give us power, whether it's the Liberty Party or the Free Soil Party or whatever, or Free Soil Democrats or whomever it may be the case, give us the power and we will push back on the slave power.

It was a remarkably effective message because it contained

ideology, right?

It should be a belief about what the proper order of things ought to be, but it also connected to events that happened.

When the compromise of 1850 is passed and the Fugitive Slave Act comes down,

anti-slavery politicians can sort of say, look, this is what we're talking about.

You know, when Roger Taney hands down Dredd Scott, they can say, this is what we're talking about.

You can just constantly turn, come back to your overarching message and theory

of your opponents of American politics.

And that, you know, that's more than just sort of like, you know, focus group messaging.

It has to come out of sincere ideological convictions.

And the Democratic Party, as it's currently constituted, just isn't like built for that.

It isn't built for that kind of, um,

that kind of political combat, that kind of political messaging or anything.

And I don't think it's a case of the party being too heterogeneous.

The Republican Party in 1854 was very heterogeneous.

It was not like a singular unified thing.

Everyone was anti-slavery, but that went from, you know,

abolitionists who are like slavery needs to end now and black people should have rights to, yeah, we're against slavery because we just want like Indian land and we don't want anyone to take it.

We don't want black people there so that's why we're against slavery yeah like you can have a big tent and also kind of an overarching ideological message you just have to kind of develop it through you know through politics and if there's anything um that's really striking about the democratic party i think in this moment is that it's just like allergic to politics and to sort of partisanship and to not even for the sake of a policy but just for the sake of like wanting to win right like i don't i i personally don't get it Like, if nothing else, do you not want to win?

And aren't you interested in finding the most effective and aggressive ways to do that?

And the answer genuinely appears to be no.

And I don't, I, I, I, I do not understand right what that's about.

Oh, well, I think that they, maybe we're getting ahead of ourselves here, but it does, it does feel like

there are powerful people within the democratic establishment who just sort of associate equivocation with victory in some way, meaning that like the maintenance of the Big Tent is sort of how they feel like they've succeeded over the last quarter century or so.

And therefore, you sort of never get too aggressive in political fights, right?

You always want to sort of edge towards the center, edge towards like what you feel moderates want.

Although I think that over time, what they think moderates want

has become distinctly what Matt Iglesias wants rather than like what the bulk of the country wants, right?

They've sort of created a vision of the center of the country in their head that perhaps doesn't exist, but nonetheless still like in their mind wants a period of political peace.

And what they believe they can provide is peace, peace through not fighting back.

So maybe I think it makes sense to talk about the Democratic response to Dobbs.

All these pathologies are on display.

Yeah.

Right, exactly.

So obviously, it feels like Democrats are not rising to the moment.

And

I don't think anything sort of displays that more than everyone knows Dobbs is pending and that Roe v.

Wade is at stake.

You can maybe forgive the administration for being caught flat-footed when the leak happens, because it's certainly a few weeks before you'd ever expect to see the opinion.

But at that point, they have the best notice that anyone will ever receive about a Supreme Court decision.

Once in a lifetime political opportunity here.

And then they have six weeks to prepare a response.

And yet when Dobbs drops, it feels like they're hearing about it for the first time.

And all you get is sort of very fluffy rhetoric coming out of the establishment of the party.

At best.

Jim Clyburn, not so fluffy rhetoric.

Right.

I guess at best, these sort of aesthetic declarations and at worst, sort of either shrugs or over the course of the next, of the following couple of weeks, statements that are sort of chastising the left and the activist wing of the party as they perceive it.

So this is a broad question, but

what the fuck do you think is happening here?

I mean,

why when Dobbs rolls around is this administration acting, A, shocked, and then B, sort of like unable to scramble any political will in the short term?

Yeah, I mean, I find it just as inexplicable as y'all do.

To the extent that I have any guesses about what's going on here, I think at least like 70% of it is just that like,

I'm not sure how much Joe Biden gives a shit about this stuff.

And one thing that's clear from Biden's career, and this is in the, you know, in the great 88 campaign book, What It Takes by Richard Ben Kramer, which devotes a lot of time to Biden.

One thing that's clear is that when Biden isn't enthusiastic about something, he kind of doesn't really give it that much time and attention and thought.

And he's also just kind of an indecisive guy by nature.

And I think we're kind of seeing some of those pathologies made worse by the fact that he's old, that he's almost 80 years old.

Yeah.

And he's not as, you know, vigorous or sharp as he may have once been.

I think some of what's happening is that the White House does not have the kind of leadership it needs to act quickly and decisively when these things come up.

And part because Biden isn't as decisive and isn't as aggressive as he should be.

And so the result is that the Dobbs draft comes down.

The White House apparently doesn't really do anything in response.

And then they're caught entirely flat-footed when the actual ruling comes down.

When what should have happened is that once that draft ruling came down, they basically should have convened like a war room and not just in the White House, but with Democratic leaders in Congress and with governors and just sort of like gotten together and said, What is our response going to be to the end of Roe v.

Wade?

What are we going to do?

What are we going to try to preempt?

What are we going to say?

And kind of have that in your back pocket so that when the ruling comes down, you can have like a unified Democratic message across the entire country by the leaders of the party.

And I just don't think Biden thinks in those terms.

I don't think senior Democratic leadership in Washington thinks in those terms.

And a fish rots from the head down, a sleepy Joe in the Oval Office is going to be a sleepy White House.

And I think that's kind of what we're seeing to a large extent.

Yeah, I totally agree.

It's this almost like sleepy illness, right?

There's something kind of rotten at the core of it that's like causing this sleepiness, but it's not just the sleepiness.

It's also in you see these flashes of the Democratic Party also being hostile to people who are asking for action by the administration, right?

Don't interrupt our sleep.

Right, exactly.

We're napping right now.

Hello.

Yeah, so two examples, you know, just from recently.

First of all, the White House Communications Director Kate Bettingfield, Peter, you alluded to this, but

she said, quote, Joe Biden's goal in responding to Dobbs is not to satisfy some activists who have been consistently out of step with the mainstream of the Democratic Party.

It's to deliver help to women who are in danger and assemble a broad-based coalition to defend a woman's right to choose now, just as he assembled such a coalition to win during the 2020 election.

End quote.

So alienating your base, the people who are asking you to actively engage with this looming crisis, with this crisis that has come upon us slowly, predictably.

You could have seen it happen, right?

You watched it happen.

And then, secondly, not only hostile in its messaging to its own base, but secondly, there's this controversy around the appointment of this conservative federalist society freak judge, Chad Meredith, right?

It was leaked as recently as June 23rd that there was an agreement between Biden and Mitch McConnell to appoint Chad Meredith, you know, this conservative, notable anti-abortion lawyer to the federal bench.

And in exchange, Biden would get two U.S.

attorneys in Kentucky.

How

it's mind-boggling, like how the Democratic Party is not only sleepy and not up to the task, and the gerontocracy is stuck in its ways and unable to recognize and identify the crises on multiple fronts that are in front of us, but also to be so politically incompetent that you are doing the opposite, right?

That you are actively hurting any advancement or progress that the base wants to see made.

I mean, it's just, it's really frustrating.

It's mind-boggling, especially in the latter case for that judge, because what?

You're getting two U.S.

attorneys like for a lifetime appointment for some chud.

Like, what?

Like,

what are you doing?

No, I agree.

I mean, Peter, you mentioned, you know,

the Democratic Party kind of like following the lead of Managles.

And I kind of think in that White House communication statement, you can 100% see that, right?

You can 100% see the White House having fully imbibed this idea that the party's base and its activists are just sort of like going to leave the Democratic Party to ruin.

And we have to like keep them at arm's length and discipline them,

which to me is a crazy thought because, you know, what the Biden administration has been doing for the last, what, almost a year now

is the kind of keep the activists at bay, only do and talk about popular things, and then hopefully we'll.

we'll we'll like we'll we'll sail through and the result has been biden is like deeply unpopular right sort of like that and and the unpopularity isn't just with Republican Independent.

It's with Democratic voters.

It's with young voters.

It's with, you know, his approval with black voters has gone down considerably.

Sort of across the board.

Democrats are upset with Biden.

And so one would think you'd have a little humility about your ability to act politically and like divine the right political choices and think that maybe the thing to do in this situation is to show your activist base that we may have differences on infrastructure legislation, but we kind of agree on this one big thing and we're going to act aggressively to pursue this thing.

But there's this kind of hostility towards not even again, not even the Democratic Party left, but sort of just like anyone who thinks anyone should be done.

It wouldn't be like forgivable if it was sort of like, you know, AOC and shut the fuck up, but that would make a little more sense.

But what the White House seems to be hostile to is anyone asking them to do any more than they're currently doing, which to me is just a recipe for failure, right?

It's just a recipe for demobilizing your supporters and not actually making the kind of ground you hope to make.

And this is, again, before we get to get to the whole thing of, you know, trying to give an anti-abortion maniac a lifetime federal judgeship.

Yep.

Yeah.

Right.

There's something interesting about the way that the party establishment handles

the

base right now.

And it feels to me like they don't really think that like progressives are the base of the party, right?

They're conceptualizing the sort of intangible moderate voter that they're trying to win as the base, right?

And so they'll talk shit to the progressives.

And it takes on this weird form because on one hand, they're very willing to chastise the left and punch left pretty aggressively.

On the other, they're they're making this sort of case that the left has like a moral obligation to vote for them, right?

And that the election of Democrats is not at its base about garnering a winning coalition, but really about telling voters that you must vote.

And if you do not, you have, you know, sort of

morally come up short.

You've failed to do the right thing.

And that's sort of like the primary message they're shooting left.

So on one hand, it's like, you guys are a bunch of idiots.

Let the adults talk.

And then on the other, it's like, also, if you really need to vote for us, otherwise you're kind of a piece of shit.

Yeah, it's an incoherent message.

And it's all the more galling when I think if you look at the Biden administration thus far, the people who have been most responsible for its like failure are not progressives, right?

Like it's not been progressives who have been.

trying to tank the Biden administration's legislative agenda.

It wasn't progressives who joined the pylon pylon after the withdrawal from Afghanistan.

If you're looking at who has been the most reliable supporters of Biden, hoping that the guy succeeds within the Democratic Party, at least within the legislative Democratic Party, it's been the progressive members who have done as much as they can to try to carry things along.

And what they've gotten in return is just like constant shit.

for existing, not even for speaking up, right?

Not even for speaking up, not even for, you know, running with unpopular messages.

There's a whole parenthetical I'm not going to go into here, but that I have about how centrist Democrats have been blaming, you know, three people saying to fund the police two years ago for like their failures for, you know, the entire time.

But like progressive Democrats in Congress, for the most part, stopped talking about that, did everything they were asked.

And the response has been, you guys are the problem.

Right.

It's so galling, especially because like they are so certifiably in power, right?

I mean, this is like saying, well, then, you you know, the Brooklyn Nets came up short the last couple of years, and I blame stadium security, you know?

It's just that, you know, there's the left has basically been flailing within the party for the last half century.

So, I mean, what, what more do they want, right?

Like, what more control could they have over the situation that they don't currently?

I don't think that they have sort of come up with a real ask from the left, right?

What, in terms of like what they are looking for materially.

Yeah.

Yeah.

i think that's right yeah this feels like a good time to take a break okay and we are back so i wanted to circle back to to something we were talking about earlier and the unique opportunity the leaked dobbs opinion gave the party leadership because i'm 100 in agreement on that and i mentioned jim cliburn and i think his statement on the day that dobbs came down is like very

illustrative of the issues here where he was basically like, well, this is kind of anticlimactic.

We all knew this was coming, which is like,

this is a party that didn't even bother to get like talking points together, right?

Like, forget about like policy and unified message, just like basic talking points.

This is something they do every four years, by the way, for presidential elections, right?

They have the DNC, they get a party platform, and then everybody's on the same page with messaging.

They understand.

how to do this and the importance of it in presidential years.

But I think we're even in this telling, we're like like

giving Biden and the Democrats too much leeway because the truth is they had much more advanced notice than that, right?

We can go back to September of last year when the Supreme Court let Texas's bounty law go into effect and everyone who isn't like brain damaged understood that Roe v.

Wade was dead.

at the time, right?

Like there's a certain level of diseased lawyer brain that is like very common at Harvard Law that would lead someone to write an article being like, this doesn't mean Roe v.

Wade is dead.

But for everybody else, everybody not named Noah Feldman understood that like when Texas was like, yeah, people can just collect bounties.

Here's your sixth shooter.

Go at it.

Have fun.

Yeah.

Yeah.

Roe v.

Wade was dead.

They had.

months.

And when you have months, you don't just have messaging to do, right?

The administration has like the Office of Legal Counsel available to them where they could say, write us a memo, write us a memo, everything like to the nth degree, what I could do to protect access to, you know, reproductive health if the Supreme Court overturns Roe v.

Wade, right?

Like, what are my options?

They could have a white paper ready.

So

they were in position to have the materials in place for when the leaked opinion came out or when Dobbs came out, to have a robust platform, right?

Not just messaging, but a platform, a suite of actions they can take with like the best lawyers in the country giving their justifications for why they can take them and a whole list of reasons why if there's certain actions they think are too aggressive, you know, justifications for why, right?

They could be fully prepared for this.

They weren't.

That's a failure.

There's no, there's no way of two ways about it, right?

Like they fucked up.

Like they have totally fucked up.

It's unbelievable.

And they're still not doing this, right?

Like this is still all happening very by the seat of their pants, right?

They read an op-ed and then they're like, oh, I don't know.

Maybe we'll have some quote on background saying like, we don't like that idea or something.

But there's no like coherent,

like we are going to figure this out in a systematic way, what we can and can't do, what we should and should not do.

And then we're going to be like

transparent about those things and

really push the limits.

That's not who Joe Biden is.

It's just not, and it's not who the Democratic leadership in Congress is because they're not really pushing for this, right?

Right.

Like, that's

right.

Well, they did roll out Kamala, though.

You know,

they did a release the Kraken with Kamala.

Release our Kraken that cannot say a sentence.

Let's get her going.

Yeah, I will never forget Kamala being interviewed and answering the question, like, what, you know, what do you say about people who are saying, like, please do something.

Roe v.

Wade has been overturned.

The Democratic Party has to do something.

And her response being, do what?

Yeah.

It's just.

I mean, again, Michael, you're, you're,

you're right.

Like,

there was a suite of actions that the White House should have taken in coordination with Congress and in coordination with governors, with states, Pritzker,

Newsom, all the big blue states where abortion access is secure.

Even the even smaller states like Massachusetts, like Connecticut, sort of, there could have been a thing, right, where everyone kind of gets together and like, this is what we're going to do collectively to protect these rights.

And then, in terms of messaging, even just in terms of simple messaging, I mean, like, I'll say the one thing I'm surprised Biden did, and I'm glad he did it, and I think they should do this more, is they talked about that awful story out of Ohio about that little girl who had to go to Indiana to get an abortion because she had been raped.

And I kind of think the White House should just like, every time a story like this comes up, they should talk about it.

It should be a thing that the president talks about.

Like, this is what this, this is what this looks like, people.

Yes.

And if you don't want this for the entire country,

we need to vote, vote against Republicans.

You just got to say that.

You got to say the Republican Party wants this outcome.

And if they get, you know,

your buddy Mitch McConnell is going to get upset about it.

Let him get upset.

Let Republicans go on television and have to say the words, no, we don't want 10-year-old rape victims to give birth.

Let them have to say that.

But again, that takes a level of partisanship.

It takes a level of just like willingness to fight that Rhianna and you, as you point out, they just don't, they don't have.

Like, they don't.

For whatever reason, don't have the kind of willingness to kind of really go.

Oh, the Trump administration in its first year announced that, what was the Department of Homeland Security would like publish, you know, a ongoing record of crimes committed by quote-unquote illegal aliens, which is like awful.

It's like, that's like Nazi shit.

But like that idea of using the bureaucratic apparatus to pursue a political goal like that is something that you should do if you have that power.

And so the Department of Justice should like,

you know, whenever we have some awful case about a woman prosecuted for going across state lines to get an abortion, DOJ should talk about it, president should talk about it.

Yes, I don't think that's like sufficient in terms of a response, but it's a kind of way that Democrats should be thinking.

Like, how can we,

if we really think that this is going to be a winning issue for us, then how can we keep it in the public's mind?

And how can we show Americans on a regular basis, constantly, in ways that might be shocking and upsetting, upsetting, that this is what abortion bans mean.

This is what they look like.

This is what you get.

I forget who has made this argument, but there's a good case to make that sort of Democrats in general just don't understand the current media environment.

And what they don't understand is that the only way you're going to break through to the public is not by

being competent.

It's by sort of like doing something that creates big splash, doing something that creates outrage, that gets people's emotions up.

And even if there is a backlash from your opponent, that is actually good for you because it shows that you've seized the conversation in an important way.

Exactly.

Yeah, I was about to say, I mean, you could tell that the 10-year-old rape victim story was effective because there was backlash, and the entire like Murdoch media empire mobilized to discredit it, right?

And they had like the attorney generals of Ohio and Indiana on trying to say the story reeked of bullshit.

And you had like hacks in the Washington Post saying, like, I don't know, maybe maybe this.

And of course, they all turned out to be absolutely wrong and the story was true.

But they were doing everything they could to cast doubt on this story because

it's effective messaging, right?

So they can't allow it to stand there unanswered.

Right.

And now they're doing, well, sure, it was real, but what's going on with this doctor?

Did she mess up her reporting obligations?

Let's focus on that.

And I'm sorry, but when you, when you have the enemies talking about like the reporting obligations of some doctor, like you're winning on the messaging exactly, you know?

Yes.

Yes.

Absolutely.

And I mean, this is, I don't know why I'm laughing, but it's, it's, it's fucking horrible.

But that's what we do every week on this podcast.

Yeah, that's,

that should be our tagline.

You know, Ohio had reported by May 9th, I think, that there have been 52

cases of sexual assault on a minor, like under the age of 16.

And if Ohio is like 3.5% of the country's population, about that comes to like, you know, if you're going to generalize those numbers to the country, there's like 1,500 cases every year, some of which probably involve a pregnancy and then will probably likely require an abortion.

So there's like material out there for you to talk about in this regard.

Yeah.

Are there moral and ethical questions when it comes to using this stuff for political messaging?

Yes.

But I think that the stakes here are such that you got to run with it.

I don't know.

I keep going back in my mind to the political campaign against slavery in the 1840s and 1850s, which made use of the equivalent of this kind of thing, or the campaigns against lynching in the 1910s and 1920s, where the NAACP would take lynching photographs and like print them in papers and try to circulate them to say, this is what this stuff looks like.

People don't actually respond to well-reasoned, coached arguments.

They respond to things that upset them and disgust them and scare them.

Democratic Party, if nothing else, needs to learn this, needs to learn that this is what people respond to.

The Republican Party fucking gets it.

You know, like I live in Virginia and they managed to turn like an academic theory into like a boogeyman.

Like the CRT people are going to come and take your precious white child.

Like they managed to do that.

And notably, Democrats just had no response to it, completely flailed against it.

Yeah.

So.

all right all right

i got no solutions i just sort of have like a diagnosis of what their problem is yeah that's classic five four classic five four podcast recording ending where we're like

all right well

that was a rough conversation i don't feel good jamel thanks for joining us uh we appreciate your time do you want to shill anything before we sign off Sure.

First, my pleasure.

Thank you for inviting me.

You can read my column at the Times.

It's usually usually Tuesdays and Fridays.

I know Times opinion is a fraught place, but my column's good.

That's right.

Yeah.

It's a diamond in the rough out there.

Yeah.

And then my friend and I, John Gans, who has a substack newsletter on sort of American politics and history and stuff, we have a podcast called Unclear in Present Danger where we more or less watch 1990s dad movies and then try to like place them in some kind of like larger historical and cultural context.

And so, for example, we had a recent episode on Joel Schumacher's film Falling Down, which is sort of like super weird, more subversive than you think, but also like kind of proto-maga in a lot of ways.

We just tried to like talk through that movie, kind of LA in the early 90s, kind of all the social and cultural stuff.

So that's sort of how the podcast typically goes.

And you should listen to it.

All right.

Well, again, Jamel, thanks for coming on.

All right.

Don't have to wait until next week for a new episode.

We will be dropping a special interview this Thursday

with Liz Warren, Senator from Massachusetts, talking about court reform, about the Democrats' handling of the court generally.

Keep an eye out for that in a couple of days.

And then next week, a premium episode recorded live at the People's Parody Project convening a few weeks back where we talked about the court's handling of free speech and how it relates to cancel culture and a bunch of other hot button topics.

Follow us on Twitter at 54pod.

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We'll see you in a couple days.

5-4 is presented by Prologue Projects.

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Our production manager is Percia Verlin, and our assistant producer is Arlene Arevalo.

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That sounds awesome.

Yeah, that's great.

I generally think listening to podcasts is for deranged people, but I will listen.

I'm going to check that out.

That sounds really cool, right up my alley.