0:05

Welcome back to Amicus. This is

0:07

Slates podcast. asked about the courts and

0:09

the law and the rule of law and the supreme

0:11

court. I am Dahlia. Let's wait. I

0:13

cover those things for slate and just a

0:16

heads up that I am a little under

0:18

the weather and so my voice sounds

0:20

like this. As we

0:22

head into the midterms, there

0:24

is an immense amount of legal

0:26

news, including abortion protesters

0:29

who interrupted oral arguments on

0:31

Wednesday.

0:32

According,

0:37

According to the government petitioner violated the act

0:39

two

0:39

hundred Affirmative action once again

0:41

on the Chai blocked at the Supreme Court

0:43

on Monday. This is very explicit and

0:45

you are brief. It's like it just doesn't

0:47

matter if our institutions look

0:50

like America You say this on

0:52

page eleven in your reply brief.

0:55

And I guess what I'm asking you

0:57

is, doesn't it?

0:59

And were ports that Donald Trump's

1:01

lawyers saw justice Clarence Thomas

1:04

as their ticket to setting aside the

1:06

twenty twenty election. Today's

1:08

is another jam packed show. Happy

1:10

weekend. And we're gonna start

1:12

this show by looking at Monday's

1:14

lengthy discussion of the use of race

1:17

in college admissions. Later

1:19

on in the show, we will interview political

1:21

insider David Rothkop about

1:23

his brand new book, American Resistance.

1:26

It's a look at the so called deep

1:28

state actors who kept democracy

1:31

flying off the rails during the Trump years.

1:33

This is all part of

1:36

a systematic effort to

1:38

eliminate the guardrails that

1:41

keep an authoritarian from taking hold

1:43

in the United States.

1:44

Later still, slate plus listeners

1:47

will get to hear from Mark Joseph Stern

1:49

with the Roundup of all the stuff we couldn't

1:51

pack into this main show,

1:53

including emboldened lower

1:55

court judges again, guns.

1:58

again, and the mid term elections

2:01

and the courts. Plate plus members

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please go to slate dot com slash

2:28

amicusPlus for details

2:29

that slate dot com

2:31

slash Plus. But first,

2:34

evidently

2:34

race and racism have

2:36

an expiration date. The only question

2:39

Is that date twenty twenty two

2:41

or twenty twenty eight? The high

2:43

court heard almost six hours of arguments

2:45

in a pair of cases concerning the future

2:48

of affirmative action on Monday,

2:50

the same high court that wouldn't

2:52

have a legitimacy crisis. If only the

2:54

press would stop talking about the legitimacy crisis,

2:57

is I think poised to overturn

3:00

over forty years of president

3:02

regarding race conscious admissions at

3:04

institutions of higher learning. There

3:06

was very little talk of doctrine

3:09

over those six hours not much

3:11

discussion of text or history, either

3:13

just a whole lot of feelings feelings

3:15

feelings about diversity, feelings

3:18

about zero sum games, and of course,

3:20

lot of feelings about

3:21

college squash players.

3:23

Six out of nine justices appear to

3:26

be in broad agreement with chief

3:28

justice John Roberts, famous

3:30

formulation expressed once

3:32

in the parents case that,

3:34

quote, the way to stop discrimination

3:37

on the basis of racist to stop discriminating

3:39

on the basis of race, end quote.

3:41

And so I guess we're gonna

3:43

do that now.

3:44

Okay.

3:45

Today, I am joined by

3:48

Kara McClellan. She is former

3:50

counsel with the NAACP Legal

3:52

and Educational Defense Fund. She

3:54

is the founding director of the advocacy

3:57

for racial and civil justice clinic

3:59

at University of Pennsylvania's Cary

4:01

Law School Prior to joining

4:03

Penn Carey Law, McLellan represented

4:06

students and families in school

4:08

desegregation cases and students

4:10

and alumni in the SFFA

4:13

V Harvard litigation defending

4:15

Harvard's affirmative action decisions

4:18

So, Kara, welcome

4:20

to Amicus. Thanks so much for having

4:22

me. And I wonder

4:24

if we can we just

4:26

said we failed utterly at oral argument.

4:29

It seemed to me to talk about

4:31

the actual cases. I wonder if you wouldn't

4:33

mind just setting the table Monday

4:35

involved two separate cases,

4:37

one out of UNC, one

4:39

out of Harvard. There were two different

4:41

sets of claims constitutional claims

4:43

and statutory claims. These cases

4:45

were consolidated and then pulled

4:47

apart again because justice

4:50

Catanji Brown Jackson couldn't

4:52

sit on the Harvard case because she had

4:54

once served on Harvard's board

4:56

of overseers. So I'm gonna ask you to

4:58

do that comma

5:00

thing you do, which is just explain

5:02

to us if you would, the Harvard

5:04

case, the University of North Carolina case,

5:06

and believe it or not what the sort

5:08

of statute and constitutional provisions

5:10

that issue are. Sure. And I

5:12

should say not only was there very little

5:14

discussion of doctrine, there was also very little

5:17

discussion of the record in

5:18

either case. So to begin by

5:20

just what's at issue in each case,

5:22

The Harvard case is a

5:25

challenge under Title VI, and

5:28

the UNC case is a challenge under

5:30

the Equal Protection Clause. And the

5:32

reason is that Harvard is a private

5:34

university. But in both cases,

5:36

this is a direct attack on forty

5:39

years of precedent. where the Supreme Court has

5:41

said over and over again, yes,

5:43

you can consider race as one of

5:45

many factors in admissions. and

5:48

developed a test under strict scrutiny

5:50

that universities have to prove

5:52

that the consideration of race is narrowly

5:54

tailored. and that means that they're

5:56

not using a quota

5:58

or signing a certain number

5:59

of points for considering

6:02

race but rather

6:02

engaging in a holistic admissions

6:04

process and considering each applicant.

6:07

So I wanna start by just making

6:08

clear that this is a direct attack

6:11

on the existing president under Greuter

6:13

and to just explain to

6:15

the listeners how we got to this test

6:17

originally under Bakke, which

6:19

was a fractured decision, the justices

6:22

ruled out a remedial consideration

6:25

for affirmative action. So It

6:27

means that we're in a world in which

6:29

affirmative action is not

6:32

based

6:33

on recognizing the history of

6:35

segregation and inequality based

6:38

on race. But instead, it's

6:40

based on a compelling interest of

6:42

universities pursuing the educational

6:45

benefits of diversity. And

6:46

so that's where we are in terms of the doctrine.

6:49

But in both cases, they not only

6:51

brought a challenge to the existing

6:53

president, but they brought additional claims.

6:55

And so one aspect that's different

6:57

between UNC and Harvard

7:00

is that Harvard The plaintiffs

7:02

have also alleged that there

7:04

is discrimination against Asian

7:07

Americans and how Harvard

7:09

considers race or conducts its

7:11

emissions process. That's

7:13

not a claim that was brought in the

7:15

UNC case and to go back to

7:17

the point about little discussion of the record. It

7:19

was interesting because during the argument,

7:21

the justices asked a lot of questions

7:24

about discrimination against Asian Americans

7:26

in the UNC case despite

7:28

the fact that that was not, you know, part of the

7:30

claims that the plaintiffs brought in that case that

7:32

was only a claim in Harvard. And,

7:34

you know, just thinking historically, During

7:37

Fisher, it's also the case

7:39

that there were no claims of

7:41

discrimination against Asian Americans. In

7:43

that case, And yet, Justice Thomas

7:46

and Justice Alito in that case

7:48

previewed that they were

7:50

concerned about discrimination against

7:52

Asian Americans as they described it. And

7:54

actually, in their opinions, the

7:56

sinting in Fisher one and Fisher two,

7:58

talked about discrimination

7:59

against Asian Americans as an

8:02

issue even though that wasn't part of the record

8:04

in those cases. So, this in attention

8:06

to the

8:06

record is consistent. And, really,

8:08

I think the plaintiff's students prefer

8:10

admissions who

8:11

are originally made up

8:13

of Abigail Fisher and Ed Blum

8:16

saw the signaling in Fisher

8:18

as an invitation to

8:19

bring a claim of discrimination

8:21

against Asian Americans. So that's part

8:23

of the background for how Estimates

8:25

for Fair admissions was created and

8:28

brought these cases. The issue of discrimination

8:31

against Asian Americans became

8:33

part of the story. And there's

8:35

been a lot of completion between the

8:37

issue of challenging race

8:39

conscious admissions and the arguments

8:41

that Harvard or UNC

8:42

isn't complying with existing doctrine

8:44

and the issue of discrimination against

8:46

Asian Americans, which is an entirely

8:48

separate issue.

8:49

So, Carrie, you

8:52

just laid out in amazing

8:54

granular terms, the landscape.

8:56

Right? We have Baki, which

8:58

is a complicated fractured

9:00

plurality opinion, and the court

9:02

essentially says in Baki. You

9:04

can use it for

9:06

diversity purposes, not for remediation

9:08

of past harms, that's

9:10

reaffirmed really importantly

9:12

in gruder which is the Michigan

9:14

case where the court says,

9:16

really explicitly, it's a

9:18

factor. It's not a check box.

9:20

It's not three points. It's a factor. it's

9:22

part of, you know, what you've described as a sort

9:24

of holistic look at

9:26

candidates for diversity purposes,

9:28

not for remediation, and then Fisher

9:30

that the last in the line where that's

9:32

essentially affirmed. So that's the

9:34

world we inhabit. And

9:37

then I think what you've just done

9:39

is

9:39

say And this

9:40

is correct, and it's been really endemic at

9:43

the Court of Late. There's actually

9:45

a significant trial record

9:47

here. There are witnesses, there are

9:49

findings effects, there was a substantial

9:52

trial in each case.

9:54

Can you talk a little bit about what

9:56

was found in the courts below? Because

9:58

I could

9:59

swear

9:59

five plus hours of

10:02

argument I heard virtually nothing

10:04

about what is actually on the

10:06

record, and I ask it because

10:08

every time Cherilyn Eiffel comes

10:10

on this webcast, she reminds us

10:12

that one of the things that this court

10:14

systematically does is just ignore

10:17

trial findings as though they were

10:19

never made and as though they

10:21

were not relevant. So can you just

10:23

tell us what the courts below determined

10:25

in these cases? So in

10:27

both cases, we have over

10:29

a hundred page opinions from

10:31

the district court really laying

10:33

out and painstaking detail how

10:36

the UNC admissions program

10:38

and how the Harvard admissions

10:40

program complies with the existing

10:42

precedent. and has a neurally

10:44

tailored consideration of race

10:46

to serve educational

10:48

benefits of diversity. Both

10:50

opinions lay out how

10:52

the universities have considered

10:54

race neutral alternatives and

10:56

ultimately made the conclusion that there

10:58

isn't a race neutral alternative that is

11:00

going to provide the

11:02

compelling interest and educational benefits

11:05

of diversity. And the

11:07

opinion in Harvard also

11:09

in tremendous detail lays out

11:11

how there was no evidence of

11:13

discrimination against Asian

11:15

Americans

11:16

in the Harvard admissions process. So

11:18

the court looks at

11:21

all of the six years of data

11:23

that both experts

11:24

considered and that both sides had access

11:26

to. and conclude

11:28

that ultimately in none of these

11:30

applications where the plaintiffs able

11:32

to point to an example of an

11:34

Asian American applicant being

11:36

discriminated against. So the

11:37

court relies heavily on that. The court relies

11:40

heavily on the testimony of

11:42

admissions officials. At

11:44

Harvard, all of whom consistently

11:46

said that race can only

11:48

operate to benefit an applicant

11:50

and never as a negative for an applicant.

11:52

and that they consider the benefit

11:55

of how Asian Americans

11:57

contribute to diversity as well and

11:59

benefit from diversity. But

12:01

in particular, There were

12:03

no individuals on the

12:05

plaintiff's side who came forward and said

12:06

that they were actually impacted by discrimination.

12:09

But on

12:10

the other side, There

12:12

were eight students in alumni

12:15

who testified about how

12:17

the consideration

12:17

of race and Harvard's admissions process

12:20

benefited them and that included Asian

12:22

American applicants. What was pretty

12:24

compelling at

12:24

trial was that Harvard

12:26

actually keeps applicants vials

12:29

And so individuals including

12:31

Asian American students who

12:33

testified at trial could actually look

12:35

back at their applications and point

12:37

to the notes to show what was considered.

12:39

So just as an example, Katherine

12:42

Ho, who was one of the students who we

12:44

represent it, who is

12:45

Vietnamese American, was actually

12:47

able to look back at her application as she

12:49

was testifying during trial and see

12:51

the notes that admissions

12:52

officers left in her file and the

12:55

ways that they said that she would actually

12:57

contribute because of her Vietnamese

12:59

heritage more to the

13:01

diversity

13:02

on campus and saw that as a plus

13:04

factor.

13:05

So, you know, it's really incredible that

13:07

we have this amount of evidence

13:09

and detail right down to the application

13:11

files and still the plaintiffs were

13:13

not able to find evidence of discrimination.

13:17

So

13:17

you mentioned this, and it's super

13:19

Horton. We live in the world. We live in

13:21

post Bocky and post Bocky

13:24

diversity is the value

13:26

that, you know, is deemed the compelling

13:28

interest. not remediation. And

13:30

it gets us into this very

13:32

weird world era where

13:34

the court is forced to talk

13:36

about diversity as though that's

13:39

the only constitutional value

13:41

here. That's not anyone's

13:43

fault. That's what Baki

13:45

gives us. But it put us in a

13:47

very strange moment in oral

13:49

argument where, you know, here's

13:51

Catanji Brown Jackson, trying to

13:53

talk about an applicant who

13:55

is allowed to say,

13:57

hey, I'm a legacy, you know, I'm

13:59

fourth generation UNC, and

14:02

that matters. but I can't

14:04

talk about race or the fact that my

14:06

family was precluded from attending

14:08

UNC. That seems to be wrong.

14:11

So let's listen to that. The first

14:13

applicant says, I'm

14:14

from North Carolina. My

14:16

family has been in this area for generations.

14:19

since before the civil war, and I would

14:22

like you to

14:24

know that I will be the fifth

14:26

generation to graduate from

14:28

the University of North Carolina.

14:30

I now have that opportunity

14:32

to do that. And given

14:34

my family background, it's important

14:36

to me. that I get to attend this university, I

14:38

want to honor my family's legacy by

14:41

going to this school. The

14:43

second applicant says, I'm from

14:45

North Carolina. My

14:47

family's been in this area for generations

14:49

since before the civil war, but they were

14:51

slaves and never

14:53

had a chance. to attend this

14:55

venerable institution. As

14:57

an African American, I now

14:59

have that opportunity and given my

15:02

family family background, it's important

15:04

to me. to attend this

15:06

university. I wanna honor

15:08

my family legacy by going

15:10

to this school. Now as

15:12

I understand your no

15:14

race conscious admissions

15:16

rule, these two applicants would

15:18

have a dramatically different opportunity

15:20

to tell their family stories and

15:23

to have them count. The

15:25

first applicant would be able to have his

15:27

family back ground considered and valued by the institution

15:29

as part of its consideration

15:31

of whether or not to admit him, while

15:33

the second one wouldn't be able to

15:35

because his story is,

15:37

in many ways, bound up

15:39

with his race and with the

15:41

race of his ancestors. So I

15:43

wanna know based

15:45

on how your rule would likely play

15:48

out in scenarios like that,

15:50

why excluding consideration

15:53

of race in a situation in which the person is

15:55

not saying that his race is

15:57

something that has impacted him

15:59

in a negative way. He just wants to

16:01

have it honored. just like the other

16:03

person has their personal background

16:05

family story honored. Why

16:07

is telling him no, not

16:09

an equal protection violation?

16:11

And I

16:11

guess my question for you is,

16:14

this is so emblematic of the

16:16

moment we're in. We saw this in

16:18

the Alabama cases just a few

16:20

weeks ago. where justice

16:22

Jackson wants to talk about actual text

16:24

in history, wants to talk about

16:26

the originalist purposes of the

16:28

reconstruction amendments And in some

16:30

ways, she's precluded from doing

16:32

just that, not because

16:34

of anything that the court's conservative

16:36

wing is doing, but because that is the

16:38

doctrine she's inherited. What am

16:40

I missing here? Or is that simply the

16:42

world we now have to navigate?

16:44

You

16:44

know, I thought that line of

16:47

questioning by justice Jackson

16:49

was just so powerful because

16:51

it just shows the irony of us

16:53

being in this world where the

16:55

plaintiffs are advocating that the

16:57

fourteenth amendment prohibits consideration

17:01

of the impact of slavery

17:03

and the ongoing messages

17:06

of discrimination literally citing

17:08

round for that proposition, which

17:10

is all around just an

17:12

inversion of the equality principles that

17:14

are underlying both the

17:16

equal protection clause and the court's

17:19

decisions in

17:19

brown. So, you

17:21

know, she outlines in her questioning how

17:23

there would be an equal protection violation

17:26

if the descendants of slaves

17:28

could not have their

17:31

experience living for multiple generations

17:33

in North Carolina considered But,

17:35

you know, for example, a legacy

17:36

applicant who is more likely to

17:38

be white and privileged could have

17:41

their family history considered. Right?

17:44

and the idea that the fourteenth amendment

17:46

would prohibit that consideration

17:47

is the source of the irony.

17:49

I think one

17:50

of the things that is

17:53

especially concerning from

17:54

the standpoint of using

17:57

brown and this coopitation of

17:59

brown to avoid dealing

18:01

with the history of

18:03

segregation and the equality in our country

18:06

is that, you

18:07

know, in addition to

18:10

the history

18:10

of the reconstruction

18:13

amendments being designed to remedy

18:15

through the freedmen's bureau and

18:17

during reconstruction

18:18

the reality that newly freed

18:20

slaves

18:20

were being subordinated in

18:23

new inventive ways. Right? That

18:25

was directly the purpose of

18:27

the to the rights act of eighteen

18:29

sixty six and of the fourteenth amendment. But

18:31

moving us forward, right, to the

18:33

brown decision,

18:34

not only was

18:36

brown you know, establishing the principle

18:38

of separate as inherently unequal

18:40

and desegregating and

18:42

outlying Deshora segregation.

18:44

But it also implement it. Right? It wasn't just that there was the

18:46

brown decision, but then we have brown two and all

18:49

deliberate speed. And we have an

18:51

entire doctrine of

18:53

case law around de

18:55

segregating schools. That is explicitly

18:57

about racial classifications,

18:59

using racial classifications, to

19:02

remedy, segregation, and inequality

19:05

and to address the subordination

19:07

that comes from separating

19:09

students into different buildings based on

19:11

race and up holding a CAS system

19:13

through this process. So there

19:15

continue to be school desegregation

19:17

cases that arise out of brown that

19:19

LDF is very involved in

19:20

litigating across a country and that

19:22

are explicitly race conscious,

19:24

not just through race control means, but

19:26

actually classifying students to

19:29

assess where are we. There's an

19:31

entire set of five

19:33

factors under a case called Green

19:35

Bay Kent County School District where

19:37

courts have to look at, not just the

19:39

race of students in different buildings, but the race of

19:41

staff, the dynamics in terms of

19:44

assignment to advanced placement

19:45

courses in terms of discipline, all of

19:48

these things. Right? And so this is an

19:50

entire race conscious process

19:52

and project that developed out of brown.

19:54

So

19:54

to try to use brown to then say

19:56

that it has nothing to do with anti

19:59

subordination and it has nothing to do with

20:01

classifying people based on race to

20:03

assess where we are and addressing

20:05

inequality. It's just not

20:07

only a historical, but denies

20:09

that entire ongoing body

20:11

of law. We'll be right back after a

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22:30

Kara, I've been a little bit disrespectful

22:32

of the notion of diversity partly

22:34

because I do think it doesn't get us

22:37

necessarily where we need to go and partly

22:39

because as you just noted,

22:41

it ignores, you know, the real

22:44

purpose. of the civil rights laws and

22:46

of the reconstruction amendments.

22:48

But there actually is a good

22:50

answer to why even if you only can play

22:52

in the city playing field,

22:54

we absolutely need to have

22:56

diverse classrooms. And, you know, we heard a

22:58

lot of this from solicitor

23:00

general Elizabeth pre lager at oral

23:02

argument. So so I wanna play

23:04

Clarence Thomas asking in this kind

23:06

of almost Zoolander voice.

23:08

Like, what is diversity? What is this even?

23:11

Someone explain to me what it I'm sorry. I

23:13

shouldn't have I

23:15

love Zoolander. But anyway, let's

23:17

listen to

23:17

him. I've heard the

23:20

word diversity quite a few

23:22

times, and I don't have a clue what

23:24

it means. It seems to

23:26

mean everything for

23:28

everyone. The and

23:31

I'd like you first, you

23:33

did give some examples in

23:35

your opening remarks. But I'd

23:37

like you to give us

23:39

a specific definition of

23:42

diversity in the context of the

23:44

University of North Carolina. And

23:46

I guess

23:47

Carol was really struck by the fact

23:49

that time and time again in the face of that

23:52

questioning People gave very good answers about

23:54

why diversity matters and why this

23:56

is an urgent constitutional value.

23:59

I guess I wondered if you could, you know, you've

24:01

just made, I think, a very good case

24:03

for why the remediation of

24:06

past harms is not a

24:08

value that has disappeared post

24:10

brown. But can you also just make the

24:12

best case you can give us for why

24:14

even using the idea of

24:17

diversity, which is not

24:19

maybe necessarily directly

24:21

an answer to the harms

24:23

that issue. why diversity actually

24:25

really matters and why this is

24:27

not this ephemeral vaporous

24:29

value that justice Thomas

24:32

would suggest. So I

24:32

would start by

24:33

saying, you know, many of

24:35

us can attest to the way is

24:37

that diversity is life altering.

24:41

Right? Being in an environment

24:43

where you're able to interact with

24:45

people from different backgrounds

24:47

can literally change the path of

24:49

someone's life and career. both in

24:51

terms

24:51

of being able to

24:54

become educated about

24:56

the history and the

24:58

ongoing social justice and

25:00

other issues In our country, it's about being

25:02

prepared to work in a diverse

25:04

workforce and in

25:06

world. But it's also, you

25:08

know, on a personal level, you know, people

25:10

talk about for the first time

25:12

being exposed to new

25:14

languages, to new foods, to

25:16

new people that they didn't have the opportunity

25:18

to have relationships with before.

25:20

And through that, there is a

25:22

disruption of stereotypes that

25:25

would otherwise form. Interestingly, you

25:28

know, in in the testimony

25:29

that we heard a trial,

25:31

that even exists within racial

25:34

groups. Right? Having consideration

25:36

of diversity within diversity is

25:38

part of the ways that that people

25:41

see more diverse representation

25:44

within folks who share their racial

25:45

background. So Asian American students, for

25:47

example, talked about for the first time being,

25:49

for example, exposed to Southeast Asian

25:52

students, if they came from, you know, an east Asian

25:54

background, for example. So there's

25:56

so many ways that

25:58

having diversity

25:59

within

25:59

diversity on a campus can

26:02

expose students to really intersectional

26:05

experiences and the complexity

26:07

of our identities. And that really

26:09

runs in contrast with the way that the

26:11

justice is and the advocates on

26:14

behalf of SFFA suggest

26:16

it that diversity is somehow

26:18

stereotyping in itself, the

26:20

idea that you know, that through diversity, you have

26:22

more diverse viewpoints represented

26:24

as somehow stereotyping. It's actually the opposite.

26:26

And everything we see in the

26:29

data And in terms of how

26:31

students describe

26:31

their experiences with diversity

26:33

on campus shows that it

26:35

really serves to combat stereotyping

26:37

and to create

26:39

an environment that is more welcoming and more inclusive

26:41

for everybody just by having

26:43

diverse students on campus. You're less

26:45

likely to have isolation, you're

26:47

less likely

26:48

to have hostility. And so

26:50

despite the fact that justice Thomas describes

26:52

this as as us just

26:54

feeling good or something like that. It really

26:56

is directly connected to students, not

26:58

just having access to universities, but

27:02

having an environment that is conducive to

27:04

learning once that they're they're actually on

27:06

campus and that matters too.

27:08

Kara, one of the things that was

27:11

so talk about feelings

27:13

bowl at oral argument was this

27:15

idea that, you know, college is

27:17

all zero sum and they're winners and

27:19

losers and some people start for the

27:21

starting line and some people start after the

27:23

starting line. And I think that

27:25

this whole construction of

27:28

zero sumness really really

27:30

is just such a deeply problematic

27:32

way to think about this in no

27:34

small part and we heard this from

27:36

some of the advocates

27:39

and the justices on the left

27:42

that everybody is entitled

27:44

some level based on their grades

27:46

to get into these schools. Right?

27:48

Yeah. I mean, what

27:50

the evidence showed at trial

27:53

was that without consideration of

27:55

race, there would be a reduction

27:58

of black and Latino students on

27:59

campus by about fifty percent

28:02

And really the

28:04

other data point that I think is important to know

28:07

is that Even if you

28:09

removed every single black and

28:11

Latinx applicant from the entire

28:13

admissions pool to Harvard,

28:15

the chance of admissions for other

28:17

students would only increase by about

28:19

one percent. And the

28:21

reason is there's just not enough

28:24

applicants who are coming from Black or

28:26

Latinx or Native American backgrounds

28:28

to really have an impact

28:29

on the chance of admissions for other

28:31

students. Right? So this

28:32

idea that black and Latino students

28:34

are taking up slots for other people. It's

28:36

just as a statistical matter, it doesn't make

28:38

any sense because the

28:40

pool of applicants is so disproportionately

28:43

made up of white and higher income

28:46

students. The other thing I think is important to

28:48

remember that came out in trial

28:49

is that for

28:51

the years that were considered during trial and the class of

28:53

if we look at the class of two thousand nineteen,

28:55

for example, specific to Harvard,

28:58

There were thirty five thousand applicants for sixteen

29:00

hundred spots. And

29:02

of those, two

29:03

thousand seven hundred had perfect

29:06

verbal SAT scores, thirty

29:08

five hundred had perfect math SAT

29:11

scores and more than eight thousand had

29:13

perfect

29:13

PPAs. So if you

29:14

were going to put together a

29:17

class and admit people solely based on

29:20

having high SAT scores or

29:22

high grades, there literally are not

29:24

enough seats. for just those

29:26

students at Harvard. So we have to start

29:28

with the understanding that the

29:30

university has to be

29:32

considering something else. because it can't be

29:34

just those factors alone. And you

29:36

wouldn't want them to just be considering those

29:38

factors alone. You would want diversity

29:40

in other ways and to consider other

29:42

things. And so with all of that in

29:44

mind, by the time we're talking about

29:47

applicants who are admitted and where there

29:49

was some consideration of their

29:51

race. These are already

29:53

applicants that are so extremely

29:55

qualified on so many different

29:57

fronts. That the consideration of race

29:59

is only a factor of

29:59

a factor of a factor and really what

30:02

is most determinative or

30:04

what's distinguishing them from the

30:06

other thirty five thousand applicants

30:07

is that they are very high achieving

30:09

and then some other things. Right? Consider them

30:11

on top of that, but there's there's nobody who's

30:13

being admitted that's not qualified. And

30:15

so then considering, you

30:16

know, that there would be a reduction by fifty

30:19

percent of Black and Latin ex students

30:21

is is incredibly concerning.

30:23

Again, going back to you know, really making sure

30:25

that there's opportunity and that there's a perception that

30:27

anybody who is talented can have access

30:29

to these universities. Kara,

30:32

I'm gonna skip the question I was

30:34

gonna ask you that is entitled, why

30:36

does justice Gorsech hate squash?

30:38

Because I don't think that that's a question we

30:40

need to spend a lot time on, but I do

30:42

wanna end with this question, which

30:45

is gonna feel very Steven Hocking.

30:47

But this question of time, and

30:49

of, you know, when is the

30:51

I think justice Barrett described the

30:54

Greer opinion in terms of

30:56

it coming with a self destruct

30:59

button, right, that boom, we're

31:01

gonna hit twenty five years after Greeter

31:03

and we're gonna not need any

31:05

of these remediation mechanisms. And I wondered if

31:07

you could talk a little, and I think you've

31:10

really sort of laid the

31:12

tracks for making this point when you said

31:14

you can't look at brown one in

31:17

isolation from brown two in the

31:19

progeny of the cases that

31:21

did use race very mindfully to

31:24

remediate past harms and discrimination. But I

31:26

wonder if you can talk about

31:28

this weird moment that the court

31:30

wants us to be in. When it wants us to

31:32

just get together and all agree

31:34

that racism is over,

31:36

and that more urgently and in my view

31:38

more insanely, the way to make

31:41

racism be over is to stop

31:43

doing any race conscious measures

31:45

in any, whether it's in the the

31:47

racial gerrymandering case that we heard

31:49

earlier this term or in

31:51

the admissions cases. And

31:53

to just talk about the absolute I wanna say

31:56

weirdness, but I actually wanna say

31:58

privilege of this

32:00

court's conservative super majority.

32:03

and time again brow

32:05

beating advocates and the dissenting

32:07

justices on this idea that,

32:09

like, why isn't this over?

32:11

Why can't this just be over? Why can't you give us a

32:13

day on which? We're all

32:15

fine again. As though this

32:17

is something that we can just

32:20

all agree upon that in twenty twenty

32:22

eight or two thousand and thirty, we're

32:24

done with this project. And I just want

32:27

it Maybe for you to land the

32:29

plane on this question of

32:31

what is even the answer to? When

32:33

are we gonna know that it's

32:35

enough? So first

32:36

of all,

32:37

you know, the idea of a time

32:39

frame is usually tied to a remedial

32:41

justification. As as we've already talked about,

32:43

the court has rejected that.

32:45

And yet, this question of timing

32:47

keeps coming up again and again as if

32:49

there's a time limit for diversity.

32:52

Right? Diversity is a value in

32:53

our country regardless of it should always be

32:55

a value. And and knowing that

32:58

there is access

33:00

to universities or to leadership

33:03

position you know, that are created

33:05

through

33:05

the pipeline of these universities.

33:07

It's

33:07

important in our country in terms of

33:09

the legitimacy of a meritocracy and

33:12

knowing that Talent is

33:14

everywhere and knowing that because

33:16

of that opportunity is available to

33:18

everybody. Universities and these

33:20

pipelines should be available to everybody. that

33:22

is gonna be a value always

33:25

in our country, I would hope. And I the

33:27

idea that it's time limited is just

33:29

preposterous because It's part of what

33:31

it means to be in a multifaceted

33:33

democracy where there's people of

33:35

all different cultures, you know, wanting

33:37

to know that there's

33:40

access to opportunity for everybody and

33:42

see that reflect it in

33:44

universities and in pipelines down the

33:46

road. It's always going to matter. I

33:48

thought that was something that the listener

33:50

general really conveyed effectively

33:52

where she talked to the

33:54

justices about, you know, the message that sent,

33:56

for example, to woman advocates, when

33:58

there's only two female

34:00

advocates before the court, and an

34:02

entire term, what messages that send?

34:04

And likewise, the idea that

34:06

our country's most elite universities could

34:08

become almost exclusively available

34:10

to white and wealthy students

34:13

again. Right? That was the case for the vast majority of the history of

34:15

these institutions. And the idea that that

34:17

would become true again a

34:19

to our democracy and the legitimacy of

34:22

merit in our country. I

34:24

think the reality is that

34:26

because ongoing

34:28

segregation in the ways that resources continue

34:31

to be disproportionately

34:34

available in white and

34:36

wealthy schools The reality is that students of color students

34:38

of low income backgrounds are gonna continue

34:40

to be undervalued in the admissions

34:43

processes that exist particularly when

34:45

it comes to standardized test scores, but in

34:48

general, in their ability to

34:50

create a competitive application based on

34:52

these standards that are so having

34:54

access to privilege to do extracurricular

34:56

activities, to take AP

34:58

classes, to get coaching

35:01

for standardized tests that

35:04

without some consideration of the

35:06

realities of race in our

35:08

country, these universities are gonna

35:10

continue to

35:12

be incredibly exclusionary to to students of diverse backgrounds. And

35:14

so we still need to be able to

35:16

consider race. It's really at

35:18

the core of

35:20

ensuring merit and opportunity

35:22

in our country. And,

35:24

Carol, we've barely talked about precedent

35:26

and what it means yet again

35:29

for the court to be poised to really

35:31

explicitly, I think, overturn

35:33

decades' worth of precedent on

35:35

this kind of utterly fatuous idea

35:37

that precedents are self

35:40

detonating after some amount of time,

35:42

but I think that it's

35:44

really, really worries dangerous

35:46

that almost in the course

35:48

of this conversation, we now take for

35:50

granted that precedent is rather

35:54

meaningless. at the current court

35:56

and how really chilling that is.

35:59

Kara

35:59

McLennan, former counsel

36:01

with the NAACP Legal and

36:03

Educational Defense Fund, Is the

36:05

founding director of the for racial and civil justice

36:08

clinic at University of

36:10

Pennsylvania, Cary School

36:12

of Law, Kara,

36:14

thank you so very much

36:16

for joining us today and also for

36:18

just this deep

36:20

deep clarity about all

36:22

the ways in which even six

36:24

hours of oral arguments sometimes

36:26

utterly elides the point. Thank

36:28

you. Thanks so

36:28

much for having me.

36:31

This is

36:33

an American story. When I opened

36:35

the box, I could feel the heat of

36:37

the memo coming out eighty years later.

36:39

About politics going over at the edge. He

36:41

actually says, outright, I intend to overthrow the

36:43

US government. He's open about these objectives.

36:46

His his supporters are

36:48

armed and you have probably not heard this story before, but

36:50

there is good reason to know it

36:52

now. Rachel Mato presents

36:54

Ultra a new podcast

36:56

series from MSNBC. Search

36:58

for Rachel Maddow presents Ulta

37:00

wherever you're listening

37:02

and follow.

37:04

We're now going to turn

37:05

to a question that I've been thinking about for

37:07

a long time, which is,

37:09

do you stay

37:12

or do you go if you're in the Trump administration?

37:14

We're joined today by David

37:16

Rothkopf, whose brand new book out

37:18

this week is called American Resistance.

37:21

the inside story of how the deep state

37:24

saved the nation. David is

37:26

a former editor of foreign policy

37:28

magazine who worked on

37:30

international trade policy in

37:32

the Clinton administration. He's

37:34

written several previous books.

37:36

He's CEO of the Roth Club Group,

37:38

host of the podcast, Deep State Radio I've joined

37:41

many times. David is also

37:43

a regular columnist for The

37:46

Daily Beast. And David's book is about the

37:48

story of how what he calls an

37:50

informal alliance of women and

37:52

men working in agencies across the

37:54

US government managed

37:56

to work together to keep a really dangerous Donald

37:59

Trump and his closest allies

38:01

from doing irreparable harm, not just

38:03

to the country, and

38:06

its allies to the planet as a whole. David, congratulations

38:08

on the brand new book. It is absolutely

38:10

wonderful and it's a treat to have you on the show.

38:12

Thank you. It's

38:12

good to be here and good to see you.

38:15

And I

38:15

think I just have to start with

38:18

the phrase deep state

38:20

because as you and I both know, this is

38:22

kind of you know,

38:24

Steve Bannon territory. It's

38:26

a notion of, you know,

38:28

a bunch of pernicious, lawless,

38:30

people

38:31

who are not patriots working

38:34

diligently to undermine the

38:36

presidency. And I know you're obviously

38:38

flipping that on its head

38:40

and you're valorizing it. But I am really curious about

38:42

the choice both in the title

38:44

and throughout the book to

38:46

use the words

38:48

deep state and resistance,

38:50

which have been kind of co opted

38:52

in some sense by the Trump

38:54

team to mean something really nefarious,

38:57

and you've chosen to flip both deep state

38:59

and resistance. To mean something good,

39:01

I

39:01

guess resistance meant something good

39:04

before it meant something bad. So I just wanna

39:06

start with

39:08

your choice of nomenclature here and why it is that you

39:10

opted to frame the book around

39:12

ideas that some might say were

39:16

irrevivatively damaged by Donald Trump and his use of those words.

39:18

The reason I chose

39:20

the term deep state

39:22

is

39:23

precisely because it has been

39:26

amplified by the right.

39:27

And I think we need to

39:30

ask ourselves why

39:31

are they trying

39:33

to discredit this group of

39:35

people?

39:35

Because for the same reason that they

39:37

came up with

39:39

fake news, to discredit the media. They are

39:42

now trying to discredit a group

39:44

of people who

39:46

are public servants, who have

39:49

you know, sworn it out to the constitution and

39:51

worked in the government for

39:53

less

39:53

money than they could have made

39:55

someplace else. And

39:56

end it's all

39:57

there's a purpose behind all of

40:00

this. You know,

40:00

it goes back well, the term

40:02

deep state goes back a long, long time. Right? I

40:04

mean, it's term deep state goes back to

40:06

Turkey in the time of Attiturk. And

40:08

there have been, you

40:11

know,

40:11

conspiracy theories

40:14

like it, from the dawn of

40:16

time. There's always been a theory that

40:18

there's some secret group that's actually

40:20

controlling everything.

40:22

Right? but the term deep state started getting traction

40:24

in the United States right

40:26

around the time Donald Trump started running

40:28

because Steve Bannon and others embraced

40:32

it because it was their

40:34

variation on Ronald Reagan's

40:36

idea that

40:38

government's back. because that

40:40

was a very powerful idea. In fact, it's

40:42

one of these sort of organizational

40:44

principles of the modern

40:46

Republican Party. breaking you, satala joke. I'm here from the

40:48

government. I'm here to help as the big lie.

40:50

Right? And but

40:52

why do you say that?

40:54

You say it because then it lets you cut government programs

40:57

that are helping people

40:59

because everything in the

41:01

government is bad. You say

41:03

it because it lets you argue that what the

41:06

government tries to persuade

41:08

you, facts about an election

41:12

saying, are

41:13

not true. And in this particular

41:14

case, the concern

41:16

of Steve Bannon and some of the

41:19

people around Trump was

41:21

that these people would actually not

41:24

follow the president blindly,

41:26

but they would actually

41:29

follow the law. And this is really

41:31

about people and being a nation of

41:34

laws rather than a

41:36

personality culture, an

41:38

authoritarian regime. And,

41:40

you know, we go from the idea of the

41:42

deep state to

41:44

now, today, this idea

41:47

of where it's like they wanna say, well, we wanna be able to

41:49

fire all these people. And why do they

41:52

wanna fire? Well, they wanna

41:54

fire them. for the same reason

41:56

they want to do each of the other things that are

41:58

involved in weakening democracy,

41:59

packing the courts, getting

42:02

secretaries of state who are gonna

42:04

rig elect actions, putting in

42:06

place provisions that make it harder for

42:09

certain kind of people to vote.

42:11

This is all part of

42:13

a systematic effort to

42:16

eliminate the guardrails

42:18

that

42:18

keep an authoritarian from taking hold in

42:20

the United States. So

42:22

interesting, David, because one of the things

42:24

that really comes through loud

42:26

and clear in the book is how

42:29

hard people work and, you know, whether it's folks

42:31

at DHS or national security

42:34

folks or, you know, folks

42:36

in the foreign service. You just

42:39

get such a sense that their jobs are

42:42

really freaking hard and that

42:44

they work very hard

42:46

at them And one of the

42:48

animating themes in the

42:50

book is one that's been really

42:52

worrying me. We might have talked about it on

42:54

your show. which is the ways in which the current sort of

42:56

conservative super majority on the

42:58

supreme court is similarly using

43:00

that sort of Reagan

43:02

esque language. to just

43:04

derive civil servants, to

43:06

derive government lawyers. In

43:08

case after case and after

43:10

case, both

43:12

that argument when, you know, you read the opinions, you get the

43:14

sense that it is just so

43:16

manifestly easy for Neil Gorsech

43:18

or Samuel

43:20

Alito. to take a pot shot at a government lawyer who's trying

43:22

to do her job, whether it's, you know,

43:24

issue gun permits, whether

43:26

it's issue guidance on COVID,

43:29

whether it's a school lawyer trying to figure out

43:32

how to finesse first

43:34

amendment religion requirements and and

43:36

and prayer. and I'm just

43:38

really struck by the ways in

43:40

which your book is

43:42

pushing back on the idea

43:44

that really I'm

43:46

hearing coming clear and clear from the highest court on the land

43:48

that every bureaucrat in every public

43:50

servant is a hack and

43:52

that they're all just pencil

43:54

pushers and

43:56

to apply the complexity of life to

43:59

some law

43:59

that's unhearingly wrong

44:02

and bad. and that it's

44:04

kind of interesting because it is

44:06

coming from inside the house that I

44:08

hear that critique

44:10

coming from Court itself in ways that make it really

44:12

hard for people who are

44:14

just government workers, as you say,

44:16

people who got into this to

44:18

do service to

44:21

be taken seriously?

44:22

That's exactly

44:23

right. And

44:26

the origins, I

44:28

think, go back, as I said, forty

44:30

years. They go back to

44:32

the Reagan era.

44:34

And again, we have to ask

44:36

Why do they want to get

44:38

rid of these programs? Well, you know, it's because having

44:41

a representative democracy

44:46

is not in the interest of

44:48

a minority, particularly the minority that used to

44:50

control the country. Having a

44:53

government that regulates industry,

44:56

is not in the interests of big businesses.

44:59

Ensuring that

45:00

there

45:01

is equity throughout

45:04

the society. or

45:06

a fair tax code

45:08

is not in the interests of

45:10

the one percent who have disproportionate

45:14

And so it's not

45:16

the dismantling of government

45:18

or the completely made up and you've

45:20

written much about this, you know, and

45:24

rationales for the dismantling of

45:26

the government, whether it's

45:28

originalism or whatever it is, you know, they're

45:30

just nonsense. It's not

45:31

about that. It's

45:33

about the result. The result is people

45:35

pay less taxes. Companies are less

45:38

regulated. The majority in

45:40

the society as

45:42

a smaller voice. They're less threatening

45:44

to the interests that are established

45:46

in the society. And that's what

45:48

they've been working towards the whole time.

45:51

It's

45:51

interesting because they came away from a

45:53

book, David, really struck by the fact that

45:56

both you and I might be

45:58

the most small sea radicals in the history of

45:59

the left because we're such deep

46:02

believer in institutions

46:04

and the people who power them.

46:07

But I do feel like, for me, the book

46:10

cracked open this problem I've been

46:12

grappling with from almost the beginning of the

46:14

Trump administration, which is this, you know,

46:16

thing that the economist

46:18

A. O. Hirschman calls exit loyalty

46:20

or voice. Right? How you

46:22

do this work of figuring out

46:25

Do I stay and serve as the

46:27

adult in the room? Or do I go?

46:29

And if I go, how do I go?

46:31

Right? Do I write a letter of

46:33

resignation? do I write a tell all memoir? And I think this book

46:35

more than any that I've seen

46:38

tries to apply some of

46:40

that thinking. to a lot of

46:42

people who stuck around and some of them,

46:44

you know, have been vilified as we'll

46:46

discuss in a minute. It seems to me you

46:48

can always just by staying.

46:50

Right? Right till the bitter end, you

46:52

can always say, and I think one of

46:54

the things that Hirschman says

46:56

in his book is the worst

46:58

things get. the more you feel you have to stay you're

47:00

the bulwark against, you know,

47:02

full on detonation. And we

47:04

can talk about some of the individuals you

47:08

talk to later, and you frame a lot of this in terms of

47:10

you have to figure out what your own line is.

47:12

And at some point, when you

47:14

know what your own line is, you don't

47:17

across it. But do you have some overarching

47:20

theory of exit loyalty and

47:22

voice that you came out of this project

47:24

with in terms of I'm

47:26

person. I'm a holdover. I'm just

47:28

trying to do the

47:30

right thing here. And it seems

47:32

that if I go Steve and

47:34

Miller is gonna replace me with a complete knitter.

47:37

Who stays and who goes and why?

47:40

the Well,

47:42

you know, it's it it is a big issue. And before

47:44

the Trump administration took office,

47:46

Brent Scokroft, a Republican,

47:49

former

47:49

national security adviser,

47:52

very sober, sensible

47:54

guy who was zero, no

47:54

fan of Trump

47:57

at all. said, good

47:58

Republicans need to

47:59

join this administration

48:02

because they need

48:02

to take care of the government.

48:04

And even at the of administration, talk about one

48:07

story where a very senior person

48:09

in the Trump White

48:12

House. on

48:13

January sixth,

48:15

calls up a another

48:17

former very senior White

48:20

House official. prrying.

48:20

And he says, I don't know

48:22

what to do. And the

48:24

other official says, you

48:26

gotta

48:26

you've gotta stay stay. because

48:28

we need a transition.

48:29

And these people aren't gonna do a transition,

48:32

but that's really

48:33

what's important. And, you know,

48:35

you make reference to

48:38

this idea of having your own line. And that

48:40

came to me or

48:42

as illustrated in the book by a

48:44

number of people who before they took a job

48:47

went to see Steve Hadlett, who used to be, by

48:49

the way, an aid and colleague of Brent

48:52

Sculptron, and became a national

48:54

security adviser. And

48:56

they said, you know,

48:56

what should I do? And he said, well, go in, but

48:59

know what your red line

49:01

is. Know when

49:02

resignation is called for.

49:05

And I think resignation is called for when

49:07

you are asked to publicly do

49:10

something that you can't

49:12

live with. that's the critical

49:14

red line. Right? I think a lot of people

49:18

overestimate the

49:21

power that the gonna press. You know, if

49:23

you're secretary of defense and you make a big

49:25

fuss, it'll have a big

49:27

impact. If you're the

49:29

under secretary of state, it will have no

49:32

impact. And so you have to keep that

49:34

in mind as well.

49:36

And staying can

49:38

help. So it's a

49:40

very personal thing. And honestly, you know, I

49:42

talked to hundred people. Some of

49:44

them

49:44

again grappled

49:45

with this from the beginning of

49:47

the administration.

49:50

Others put it

49:50

off for reasons that I

49:52

attribute to

49:54

ambition. You know, some of them put

49:56

it off for the wrong reasons. They tolerated

49:59

really intolerable things

50:01

for too long. for the wrong

50:03

reasons. They remain silent for too long for the wrong reasons. Some of

50:05

them are the good guys. It's not Bill

50:08

Barr, like,

50:10

you know, was the bad guy up until

50:12

the eleventh hour and then said, oh, no. I'm not gonna support

50:14

a coup. I don't think that redeems him,

50:17

although I'm glad he did it. but

50:20

people like Secretary of Defense Mattis should

50:22

have been more vocal sooner.

50:26

Should have stood up and called out the way. And

50:28

now it's totally contrary

50:30

to all of his bringing up as a military

50:34

officer. But a lot of the things that

50:36

he knew and other

50:38

people knew should have been out

50:40

there sooner because Donald Trump

50:42

was not just an incompetent

50:46

president or an

50:48

ugly personality.

50:50

He

50:51

was profoundly dangerous in ways that we

50:53

still don't even know. and

50:56

came close to launching wars,

50:58

wreaking havoc with

51:01

the global system injuring

51:04

people's lives in grotesque

51:07

and profound ways. And it

51:09

became an imperative to try

51:11

to stop it. And some people found the way to do

51:13

this was lawyers and working the

51:16

system. But

51:18

for others, you

51:20

know, calling him out in the

51:22

press worked, you know,

51:24

when when Vindman walks

51:26

out of the meeting, where the

51:29

president's gonna blackmail Zelensky, and

51:32

he says the president can't withhold

51:34

this hundred and ninety one million

51:36

dollars because the Congress has

51:38

already appropriated. It's illegal, what he's

51:40

doing. And he goes straight to a lawyer

51:42

and a whistleblower does the same thing coming

51:44

out of the

51:46

same meeting. Within two weeks, it went to the Congress. And as

51:48

soon as it

51:48

went to the Congress, Trump released

51:50

the

51:51

money. Now,

51:52

the Congress didn't

51:53

follow through. They didn't convict Trump

51:55

as they should have in the impeachment

51:58

process. But at least

51:58

it, you know, it

51:59

worked and, you know, sort of withdrawing attention

52:02

of these things work. So it's

52:04

a

52:04

very personal choice. But

52:06

when

52:06

you're in administration

52:08

run by

52:08

rogue president who's real

52:11

danger, It's one I think lot of these people

52:13

grappled with almost daily.

52:16

And it's striking

52:16

there's such a dividing line between

52:19

people who were thinking about

52:21

NASH criminal security and You know what I mean? Like,

52:23

for me, I had the opposite feeling

52:25

I remember writing the night of

52:27

the twenty sixteen

52:30

election. any lawyer who stays on at DOJ, you know,

52:32

is wrong. Like, you cannot be part

52:34

of an administration that is misogynist

52:37

and xenophobic, and you know, anti Muslim. And I I was

52:39

that was wrong for the same reason that, you know, everybody

52:42

should rush in. Might be wrong. It was

52:44

too absolute, but it is clear

52:46

to me.

52:48

that

52:48

there is such a a sense of

52:50

urgency

52:51

I'm thinking of Olivia Troy,

52:53

you know, saying, about the

52:56

travel ban. Like, you don't

52:58

understand. You can't just walk away from

53:00

this. She says, because, you know, we're

53:02

gonna use intelligence,

53:04

and it's gonna harm people. And just so

53:06

many of the people who stuck it out

53:08

to try to cleanse the

53:10

travel ban over three iterations. were doing

53:13

it because they were afraid of what it would do to

53:15

future Iraqi translators. Right? I mean,

53:17

this was not just

53:20

the travel ban is anti muslim, so I'm out.

53:22

And I did have a very

53:24

deep sense reading this, that

53:27

at least the national security folks that

53:29

you spoke to had a

53:31

much wider scope of the

53:34

harms

53:36

No. No.

53:36

That's clearly true. And Olivia Troy, somebody I didn't

53:38

just talk to her for the book. She was one of

53:40

the inspirations for doing the book. I talked to her

53:42

a number of times in the podcast and

53:45

I was really struck by, you know, here's a person

53:47

who as a

53:49

young woman right after nine eleven says,

53:51

I've gotta go serve my country.

53:53

and her

53:53

first assignment is bagged at,

53:55

you know,

53:56

and she's in the green zone and she's putting her

53:58

life at risk and she works in

53:59

the national security

54:02

community throughout Democratic and

54:04

Republican administrations and

54:06

ends up first at DHS in this administration.

54:08

Then later, on the

54:10

vice president staff and was the point

54:12

person on the COVID test course.

54:14

And she is

54:16

in almost the perfect

54:18

example. of a dedicated public servant who

54:20

sought to do what was best for the

54:22

country and follow the

54:24

law

54:26

and was

54:27

able to use that to

54:29

diffuse

54:30

some really

54:31

pernicious ideas.

54:34

whether it was the Muslim ban, which

54:37

as you said, had many dimensions that

54:39

Trump and company had not

54:41

thought through at all. and was really fundamentally at

54:43

its core just racism and an effort

54:45

to institutionalize racism all

54:48

the way through

54:50

to COVID. where, you

54:50

know, she also saw something, which, you

54:51

know, even to this day, I just have to say

54:54

parenthetically, even to this day, I

54:56

am shocked, the million

54:58

Americans die. several hundred

55:00

thousand of those Americans didn't

55:02

have to die. Right? Several

55:04

hundred thousand of them

55:06

died because administration, resisted science, resisted

55:08

common sense, resisted social

55:10

distancing, didn't provide the

55:12

right equipment, didn't provide the right

55:16

statistics and so forth. And it's not a scandal.

55:18

How is it? That hundreds of that more

55:20

people than died in all of the wars

55:22

that Americans ever fought died

55:26

of COVID. Many unnecessarily. Where's

55:28

the

55:28

commission? Where's the study?

55:31

Where's the accountability?

55:32

I don't I don't get

55:36

it. But The point

55:36

is that every day, she would show up at

55:38

work, like Tony Fauci would show up at work,

55:40

and like others and the administration would show

55:42

up at work, and they would say,

55:45

Not only how do I fight

55:47

the disease, but how do I

55:49

manage the president so he'll let me

55:51

fight the disease. And that's how

55:53

he came up with, you know, fifteen days to

55:56

stop the spread. Because they said

55:58

he won't do anything that's longer than

56:00

that. So let's get him to bite

56:02

into this. and

56:02

then we'll extend it. So I want to

56:04

stay

56:04

on this theme of shades of gray, David.

56:06

Because one of the things you say very explicitly,

56:09

I think even in the introduction is, look, I'm not making a

56:12

global judgment on, you know,

56:14

who's a hero and who's not, and, you know,

56:16

that's for every reader to make

56:18

for themselves. But I am

56:20

really struck by who

56:22

gets redeemed in the

56:24

popular press and who doesn't. Right? So you've

56:26

got a lengthy conversation with

56:28

Kirsten Nielsen who I

56:30

think is still deemed as someone

56:32

who just got it wrong

56:34

on family separation. And

56:36

I think you know, her

56:38

narrative in the book is, look, I was

56:40

doing my best to make it

56:42

not appalling. There's an a

56:44

funny moment where I think

56:46

you quote, Liam Panetta, saying that he

56:48

redeems John Kelly, and

56:50

then he says quote, Mick Mulvaney and Mark

56:52

Meadows, I think they just became hacks.

56:55

And I guess I just find myself wondering, and I know

56:57

this is you're gonna fight the hypo because

56:59

it's the thing you didn't want to do with

57:02

the book. But do you

57:04

have a way of thinking through who

57:06

stayed too long, who cleansed

57:10

something that could not be

57:12

cleansable. Who under cover

57:14

of? I'm just trying to make things better.

57:17

Was just wrong. and who

57:20

actually served a larger

57:22

purpose? Or in the end, is this

57:24

just Leon Panetta thinks these

57:26

guys are had and this guy isn't, you know, Kirsten Nielsen feels

57:28

like, on balance, she did more

57:30

good than bad in terms of

57:32

the border. because the didn't

57:34

get painted black between the US

57:36

and Mexico. Like, is there a

57:38

way to think about this themically

57:41

and ethically? Or is it just

57:43

a question of who you speak

57:45

to and how folks justify

57:47

their own conduct?

57:49

it

57:49

depends on your objective. You know,

57:51

if your

57:52

objective is to grade everybody,

57:55

then, you know, it's who

57:57

you spoke to and how much information

57:59

you have. Here's

58:00

the reality.

58:02

It's not black and white

58:04

with anybody. If

58:05

you joined the administration, you

58:07

were validating the

58:10

administration. If you took a senior post and you

58:12

went out and spoke in defense administration

58:14

from time to time. As many

58:16

of the people who have now turned against the

58:18

administration do, you own

58:21

some of that. People who recognized the problem

58:24

earlier and did more

58:26

to fight against bad

58:28

decisions deserve more credit

58:30

for that. Kirsten Nielsen

58:32

is an interesting case, you know, who

58:34

is a lawyer who started

58:36

out as a, you know, in chief of

58:39

staff and has served in past administrations and expected

58:41

certain norms to be followed,

58:43

and dealt with almost from

58:45

the very beginning. the

58:48

reality that there was a separate Department of Homeland Security

58:51

from the one created by

58:52

the Congress that was essentially in

58:55

Steven Miller's office. and

58:57

Steven Miller and a bunch of other characters, some

58:59

of whom were in Jeff Sessions' office

59:02

over at the Attorney

59:04

General, they didn't really care

59:06

about the law. They didn't care about

59:08

regulations. They didn't care about the bureaucracy they

59:10

wanted. And they and they were

59:12

fundamentally racist. and they were in a constant battle literally

59:14

every day. People in

59:16

DHS and I spoke to lots were

59:18

like, we can't be in a room with

59:20

these people. We can't let these

59:22

people know what we're

59:24

thinking. We have to create a parallel

59:28

process. And they

59:28

did diffuse the

59:29

Muslim men, and

59:31

they did

59:31

moderate some of the

59:33

elements of

59:36

separating families. Not enough of

59:38

them. They were too tolerant of

59:40

that. They did too many defenses of

59:42

that. And they

59:43

deserve to be judged for

59:45

that. But, you know,

59:45

even after that, you

59:47

know, Kirsten

59:48

Nielsen was part of the group of people

59:50

that said, we have to protect the twenty

59:53

twenty election. and they got together and that included

59:55

the FBI director of the

59:57

national security agency had and Chris

59:59

Krebs who was working within

1:00:01

DHS. And so and they all

1:00:03

work towards that, and they something. And so, you

1:00:06

know, nobody in the top levels of

1:00:08

the Trump administration with very

1:00:10

few exceptions.

1:00:12

gets a hundred percent as they're great. But

1:00:14

there

1:00:15

are a lot of them

1:00:16

who deserve a higher grade than we are willing

1:00:18

to give them because we are

1:00:21

so politicized. And it's

1:00:23

very hard for a lot of look, I think Bilbar was

1:00:26

repugnant on many, many

1:00:28

levels and did a huge

1:00:30

disservice to the

1:00:32

United States. on many, many levels. But am

1:00:34

I also able to say that by him

1:00:36

saying to Trump no way, I'm not

1:00:38

going there with your

1:00:40

goo plan? we that

1:00:42

helped us. No, I can I can see

1:00:44

those two things. And I think, you

1:00:46

know, this what is the f Scott Fitzgerald

1:00:48

quote, the sign of a of a mature mind is the ability to

1:00:50

keep two contradictory thoughts in it together

1:00:52

at once. I think we just we have to be

1:00:54

mature and looking at this and say,

1:00:56

what worked?

1:00:58

What

1:00:58

didn't work? What was a success for the

1:01:00

government? What was a failure? And that's

1:01:02

why I tried to present objectively

1:01:06

and let people draw their own conclusion. Howard Bauchner:

1:01:08

You know where this

1:01:09

is going next and last,

1:01:11

which is I love this book

1:01:13

in no small

1:01:16

because it's doing the work of

1:01:17

saying,

1:01:20

see what's happening

1:01:20

under the surface. Take

1:01:23

note of and appreciate particularly

1:01:26

because the law is one of the guardrails, as

1:01:28

you say. It's the thing

1:01:30

that folks keep citing to say

1:01:32

no, I actually will not across this line.

1:01:34

The line is a lawful

1:01:36

line. But where it's going

1:01:38

depressingly David is what

1:01:40

happens now. Right? What

1:01:42

happens when the

1:01:44

quote unquote resistance, the quote unquote

1:01:46

deep state, all of the folks who

1:01:48

you are lifting up and

1:01:52

complicated and they ultimately did a lot of good.

1:01:54

Where are they right now? And

1:01:56

I find myself in a moment where, you

1:01:58

know, we're we're taping this the week.

1:02:01

in which the Republican Party not just

1:02:03

dismisses an attack on Paul Pelosi

1:02:05

but laughs at it and,

1:02:07

you know, is spewing misinformation about it. And I find

1:02:09

myself saying, is this

1:02:12

book kind of a road map forward

1:02:14

to how to conduct oneself

1:02:18

ethically and in with

1:02:21

dignity, even in

1:02:24

trying times, And or is it sort of the last

1:02:26

gasp of ethics and dignity in

1:02:28

government? Because we have now

1:02:30

crossed this

1:02:32

line into that's In

1:02:34

other words, I've been really mindful

1:02:36

Jhamel Buie's been tweeting this week

1:02:38

about, you know, the need

1:02:42

to restore you know, real valor

1:02:44

and service and dignity, all the values that your book

1:02:46

really I think highlights in

1:02:50

government service But holy cow,

1:02:52

it feels like we are The Train

1:02:54

has left the station on those

1:02:56

values. Do you do you look at the

1:02:58

book as the end

1:03:00

of something? or possibly is the beginning of a redemption that

1:03:02

I'm just not seeing right now?

1:03:04

Well, first of all, I think

1:03:05

we're at a crisis. of

1:03:08

ethics and morality in our

1:03:10

government. And it's uncertain how that crisis

1:03:12

is gonna be resolved. One of the

1:03:14

reasons to tell

1:03:16

this story is

1:03:17

because the crisis is working on many levels, some of which people aware

1:03:19

of, some of which people are not aware

1:03:21

of. There is a multi

1:03:24

tiered effort

1:03:25

to weaken

1:03:26

the protections that Americans

1:03:28

have to guarantee

1:03:29

their rights, protect their

1:03:32

rights, and

1:03:32

move

1:03:33

us towards authoritarianism. One

1:03:35

of

1:03:36

them is by packing the Supreme

1:03:38

Court and letting them do what they're talking

1:03:40

about. One of them is by changing voter laws and making it

1:03:42

harder for voters to vote. One

1:03:44

of them is by electing secretaries

1:03:48

of state who promised, you know, or, you know, governor

1:03:50

candidate says the one in Wisconsin the other day

1:03:52

said, you know, he

1:03:54

said, if if

1:03:56

I'm elected

1:03:58

No Republican will ever lose an

1:03:59

election in Wisconsin again.

1:04:02

I mean, this

1:04:03

is shocking. Absolutely shocking. And

1:04:06

people are aware of those things because we tend to

1:04:08

look at sort of the big stories of

1:04:11

politics. But what

1:04:13

I was wanted to focus on is that there are stories

1:04:15

that we don't look at that are equally important.

1:04:17

There are guardrails that we're not aware of

1:04:19

that are equally important. And

1:04:21

there is a movement of foot in the Republican Party

1:04:24

right now. Schedule

1:04:25

f. Let them fire

1:04:27

all these people.

1:04:29

These unelected bureaucrats. that

1:04:32

Trump

1:04:32

tried to get in and was reversed

1:04:34

by the Biden administration, but now

1:04:36

the entire party, not just Trump, but

1:04:39

new Cambridge and all the other officials. And

1:04:41

they're all saying, you know, we're gonna do

1:04:43

this. And if

1:04:44

they do it, and if they're

1:04:46

able to

1:04:48

say, we're gonna fire people who put their oath of office

1:04:50

and the constitution ahead of their loyalty

1:04:52

to the president, then we're

1:04:54

gonna

1:04:55

have a government of Rick

1:04:57

and Grinnell's and Chris Miller's and

1:04:59

Chad Wolf's and so forth,

1:05:02

who

1:05:03

don't protect us protect but

1:05:05

protect the president. And so we're

1:05:08

heading into a fight whether

1:05:10

we're gonna

1:05:11

be able

1:05:14

to reverse the

1:05:14

efforts of these authoritarians or not.

1:05:16

And we have to know the lay

1:05:18

of the land. We have to know

1:05:20

where the fight is being fought. Now,

1:05:23

I I do think, and that's the

1:05:25

slightly optimistic point of this,

1:05:28

that the US government's the

1:05:30

biggest most complex organization in

1:05:32

the world. and

1:05:33

no president can change

1:05:34

all of it. And so there

1:05:36

will always be a large group

1:05:39

of public servants there. And

1:05:41

if they stand

1:05:44

up, do their jobs,

1:05:47

respect the

1:05:48

law, then

1:05:49

they can play a big

1:05:51

role in

1:05:52

rebuffing whatever these

1:05:53

attempts are. And so, you know,

1:05:55

we should celebrate them. And I think the other thing

1:05:57

we need to do is We need

1:05:59

to celebrate public service. You

1:06:01

know, what happens when you

1:06:04

denigrate public service? You

1:06:06

get Hershel Walker as a candidate.

1:06:08

You get senator Tommy Tuberville. You get people

1:06:10

who have absolutely no business

1:06:13

in office. And we've

1:06:15

spent forty years saying

1:06:17

serving in government isn't so

1:06:20

great. And so future generations

1:06:22

aren't gonna do it unless we change the

1:06:24

story, change

1:06:26

the narrative. and let them know that even if they're in the middle of that

1:06:28

government, they can make a big

1:06:30

difference.

1:06:30

And so

1:06:32

it's about the fight to

1:06:34

come It's

1:06:36

about the lessons of the past.

1:06:38

And it's about the values

1:06:40

that I think we have to embrace if we're

1:06:42

gonna have any chance in winning that fight.

1:06:45

I love that.

1:06:46

I love landing on that, David, because

1:06:48

it's so been my

1:06:51

personal beef

1:06:51

when I hear again Supreme

1:06:54

Court Dick maligning

1:06:56

government lawyers who are trying to figure

1:06:58

out how to deal with a deadly

1:07:01

pandemic or government lawyers who

1:07:03

are trying very, very hard to

1:07:05

figure out how to deal with

1:07:07

immigration problems. And to hear the

1:07:10

court dismissing those people

1:07:12

as a bunch of flunkies and to

1:07:14

suggest that we as justices actually know better

1:07:16

how to deal with the lethal pandemic. You

1:07:19

know, we as justices know

1:07:22

better. how to

1:07:22

deal with global warming or other crises

1:07:24

is a

1:07:25

way of doing exactly the thing that

1:07:27

you deploy in

1:07:30

the which is saying that all of these folks who did not

1:07:32

go into these jobs for the

1:07:34

money or for the, you know,

1:07:36

getting invited to the right

1:07:38

cocktail parties because most of them

1:07:40

get invited to really bad cocktail parties. They did this out of an ethos

1:07:42

of service and of civic

1:07:46

virtue. And I think we all have to really

1:07:48

recognize that if we continue to

1:07:50

talk about those people as though they are all

1:07:52

in the tank or corrupt or part of the

1:07:54

deep state,

1:07:56

their ranks will not be filled with better people. Their ranks

1:07:58

will be filled with opportunists.

1:07:59

And I really, really think this

1:08:02

book is comes it

1:08:04

exactly for me at least the right minute to

1:08:06

think through some of those

1:08:08

questions. David

1:08:10

Rothkopf is former editor

1:08:12

of foreign policy magazine.

1:08:14

He worked on international trade policy in the Clinton

1:08:16

administration. He's

1:08:18

written several previous books. and he is host of the podcast,

1:08:20

Deep State Radio, and a

1:08:22

regular columnist for The Daily Beast.

1:08:26

And the book is American Resistance, The

1:08:29

Insights Story of how the Deep

1:08:31

State saved the nation. And

1:08:33

I really did love every minute of reading

1:08:36

it, David, and I thank you, not just for the

1:08:38

book, but for the work that you do, to really

1:08:40

lift up, I think, that ability to think

1:08:43

in nuanced and complicated terms in a

1:08:45

moment when we really resist that? Well, thank

1:08:47

you. I

1:08:48

admire the work you do. I hope

1:08:50

we can keep that long conversation going podcast

1:08:52

to podcast and someday maybe in

1:08:54

person. But I I think this

1:08:57

is a fight everybody's in right

1:08:59

now. And if you're if you're not in the fight, then you're helping

1:09:01

the other side. And it is

1:09:03

a crisis. And you doing

1:09:05

this podcast and you doing

1:09:07

your great book, These

1:09:10

are

1:09:10

the ways that we fight

1:09:11

And admire what doing, I consider

1:09:12

real honor and privilege to

1:09:14

be able to join you here.

1:09:18

Thank you

1:09:18

for the book, David. Thanks for

1:09:22

being

1:09:23

with us. And that

1:09:25

is

1:09:25

wrap for this episode

1:09:27

of Amicus, The Pre Midterms Edition. Thank you

1:09:29

so much for listening in, and

1:09:31

thank you so much for

1:09:33

your letters and for

1:09:36

your questions. You

1:09:36

can keep in touch at amicusslate

1:09:38

dot com or you can find us at facebook dot com

1:09:42

slash amicus dot cast. Today's show was produced by

1:09:45

Sara Berningham. Alicia Montgomery

1:09:47

is vice president of

1:09:49

audio, and Ben

1:09:51

Richmond is director of operations for podcasts here

1:09:53

at slate. We will be back with another episode of

1:09:56

Amicus in just two short weeks

1:09:58

and until then to take good

1:10:00

care.