jwgh | Revisiting Dahlia Lithwick's Post-Election Episode of Amicus

Note: This is a public post (I want to link to it on Twitter).

After election night in 2016, I was curious as to how the various politics-related podcasts that I listened to would respond. Before the election, they had all (or almost all; there might be some outliers I'm not remembering) been confident that Clinton was going to win and Trump was going to lose.

I had thought there might be a lot of swearing, but, in the event, that wasn't the case. Many tried to be self-consciously measured in their responses. Many took time to reflect on why they had missed the likelihood of the Trump victory. But I was surprised that the most apocalyptic of the podcasts I listened to, post election, was Dahlia Lithwick's podcast 'Amicus', which is about the supreme court. You can hear the episode at https://slate.com/news-and-politics/2016/11/the-constitution-in-the-era-of-president-trump.html .

I thought it would be interesting to revisit the episode, three and a half years later, to see whether it was as apocalyptic as I remembered, and to see how well her apocalyptic vision held up. Here's what I found.

Lithwick starts the episode with a note that the Senate's strategy of refusing to have a hearing for Merrick Garland's Supreme Court nomination had paid off, and that Donald Trump would get to choose Antonin Scalia's replacement. (Ultimately, that seat would be filled by Neil Gorsuch, but that hadn't happened yet.)

She then welcomes her first guest, Professor Orin Kerr, a libertarian blogger at the Volokh Conspiracy and professor at George Washington University. He voted for Hillary Clinton and says "It seemed to me that Hillary Clinton is within the United States constitutional tradition in the sense that she understands the separation of powers, she understands the different roles of different government actors, believes in the Bill of Rights. [...] And Trump, I fear, is not in that mainstream and that’s why I could not support him. [...] He seems to have no interest in the idea of limited power. Sort of always seems to be find the strong man appealing. He always seems to find the dictator appealing. His model seems to be you crush dissent, and that’s how you show you’re strong. And that just could not in any way more scare me for someone who is going to be the head of the executive branch."

Lithwick says: "So, what I wanted to talk to you about today is the piece that you did this week where you sort of asked about how checks and balances work going forward. And I wrote about it as well. And I think if you come to the table with the view that you’ve articulated, which is not super clear this is a person who wants to be checked, and by the way there’s no checking mechanism because he’s got the House and the Senate and possibly the court."

Kerr says: "So the thing to watch is how much room the Congress is giving Trump. Are they saying basically, let’s apply the old rules, and when Trump does something that we would have said was really off the wall 10 years ago or 20 years ago, it’s still off the wall? Or, are they saying, well the public seems to have wanted somebody who is going to play it really differently and we’ve got to let Trump be Trump? That’s going to be a really important thing to watch, because if the Congress doesn’t impose limits on Trump, what stops Trump from just taking the next sort of grander view of his power and taking the more extreme steps the next time?"

Kerr holds out hope that Trump's staff will, at least initially, and at least at lower levels, include enough experienced people to prevent the worst excessed. "Trump will staff the high level people with his allies from the campaign, Giuliani, and Christie, and the like. But then a lot of the decisions are actually made in the lower levels, and so it’s important to keep an eye on who is staffing the deputy assistant attorney general positions, and the lower-level positions."

Kerr finished up this section of the episode with the following note: "I have to say my greatest hope is that I was completely wrong about Trump. I would be so delighted to have people for the rest of my career say, “Wow, that guy, Kerr, he’s an idiot. He thought Trump was going to be unstable.” And if that happens, that would just be fantastic. So that’s the happy version. Maybe that will happen. And then the not-so-happy version is maybe it won’t."

Next up is Garrett Epps, a contributing editor at the Atlantic who teaches constitutional law and other subjects at the University of Baltimore. He wrote a column the day after the lecture titled "Donald Trump Has Broken the Constitution." Epps notes that, during the election, Trump had basically been in favor of weakening most of the Ten Amendments. "The First Amendment, he intends to suppress hostile criticism of the government by opening up the so-called libel laws. He intends to, in some way he hasn’t explained, restore the centrality of Christianity in American government. The Fourth Amendment, with searches and seizures, he is certainly in favor of stop-and-frisk, which has already been found to be unconstitutional. [...] Fifth Amendment, non–self-incrimination, that doesn’t apply to Muslims. They better turn in their neighbors. And if they don’t, they’re going to be punished, too. Fifth Amendment, due process. Well, that doesn’t apply to the families of suspected terrorists, who may be executed simply for their blood relationship. And you can go through these and he has repeatedly advanced these ideas. He then subsequently backs away from them but not really. This is really the content of his program. [...] Government must be strong. Government must have the tools it needs to keep us safe."

Lithwick says, "I described it as keeping a knee in this legal regime. I just can’t say these are my laws." She expresses sympathy for lawyers in government, who have to decide between fleeing en masse, or staying under the theory: "Better me in this position than Steve Bannon and his flying monkeys." The following exchange then happens -- it's interesting to see Comey show up here:

Epps: I would say, beforehand, that God bless the government lawyers and those whose consciences lead them to stay at their desks. God bless them. Because we saw in the George W. Bush administration how conscientious lawyers, even within the military, could make a huge difference in terms of what policies the government can pursue and the extent to which it is limited by values of due process.

Lithwick: And that’s Jim Comey, right? That’s Jim Comey standing up. That’s Jack Goldsmith. You’re right.

This section of the episode ends as follows:

Epps: I’m not a government lawyer. To the extent that I have any role to play, I sit down and write what I see going on. And I am not content to pretend that I don’t see what I’m seeing. And I will also say, I have spent much of my life studying the United States Constitution because as a young man I saw it transform an unjust and repressive society, southern society, into something much, much more, like a modern democracy, peacefully, because of shared allegiance to the idea of the rule of law.

The Constitution has been the center of my political thought. And I am now 66 years old and as of today, Nov. 11, I’m not sure there is a Constitution anymore.

Lithwick: Garrett, I have to tell you that I share, and I know a lot of listeners who share your concern for the Constitution this week.

And that's how the episode ends! (Apart from the closing credits, etc.)