Norms!

The Supreme Court denied injunctive relief on Tuesday to Pennsylvania Rep. Mike Kelly in a ...

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The Supreme Court denied injunctive relief on Tuesday to Pennsylvania Rep. Mike Kelly in a one-sentence order that unceremoniously ended the Republican lawmaker’s bid to overturn his state’s election results. “What distinguished this case was it actually had an interesting question of law in it,” David argues on today’s show, in reference to the Pennsylvania state legislature’s alleged violation of the state’s constitution in 2019. That Rep. Kelly brought this lawsuit after the presidential election was another question entirely, David concedes, as was Kelly’s requested remedy. On the menu for the rest of today’s episode: Texas Attorney General Ken Paxton’s new Supreme Court election lawsuit, Biden’s latest Cabinet picks, and the origins of “believe-Trump-no-matter-what” syndrome among once-respected GOP figures.

Show Notes:

-Supreme Court’s one-sentence order denying injunctive relief to Rep. Mike Kelly.

-Texas Attorney General Ken Paxton’s new lawsuit against Pennsylvania, Georgia, Michigan, and Wisconsin.

-University of California-Irvine law professor Richard Hasen’s December 8 blog post on the Paxton lawsuit’s legal shortcomings.

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  1. Keith Schooley

    I'm kind of surprised at Sarah's arguments regarding the nomination of Lloyd Austin for Secretary of Defense. You all have made the point at one time or another that the Legislative branch needs to reassert its Constitutional supremacy as the primary branch of government, too much of which has been ceded to the Executive. David and Sarah, you have also made the case for interpreting law as written and not as we would like it to be written. So I don't get the argument that seven years is just an arbitrary number and that it should be summarily ignored, the Senators instead simply using their good judgment on a case-by-case basis. (I don't, by the way, think that right now is a great time to make an argument based on sound Senatorial judgment.) Arbitrary or not, seven years is the law that was passed. If Congress deems that number to be unwise, it is free to amend or replace that law. There may be statutory language allowing the exceptions that have been made, but making "exceptions" any time you want to is a little like Congress eschewing its duty to send a budget to the President, instead governing by endless continuing resolutions. Jonah is right: the erosion of norms is something to be very cautious of, because it has many unintended consequences. Now is absolutely the time to reestablish norms that have been trashed by the current Administration.

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    The Stray Goose

    Trump's influence will end the way the Clinton's influence ended when she lost.

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    The Stray Goose

    Yet again, Sarah and David hijacked the talk. Perhaps less is more.

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    Eric

    Are the transcripts of the episodes posted anywhere? I need to find Jonah's quote about feeling like an old Russian in Siberia, waiting die. Cracked me up.

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    Jason Gibson

    So Sarah's sense of humor is really shining here.

    I laughed for like five minutes at "new phone who dis?"

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    Angie

    Thanks, this was one of my favorites

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  7. Anthony

    Great podcast as always, but I thought you all gave a little too short shrift to the SECDEF waiver issue. Here are some strikes against granting the waiver, in general (pun intended):

    Any retired general/admiral comes from their particular service.  Interservice rivalry is real, and this could be a particularly distorting feature for a recently retired general. Not to mention all of the very recent personal relationships with other generals that would become SECDEF's subordinates. 

    The last few years have been a bit weird with generals and politics. Not just Mattis as a waiver-getter, but CoS/DHS Chief Kelly, Michael Flynn, HR McMaster, not to mention more noticeable side-taking in the media by scores of generals the last few go-arounds. Gen Milley just had to put out a statement saying that the military does not have a role in policing the winner of the presidential election. At some point there may need to be a slight cooling off.  Throw James Clapper and David Petraeus in there too for recent history.  Nothing very concerning in the grand scheme, but maybe a few years cooling off would be a good thing. 

    Another weird aspect to this (fun to think of hypos how this could turn into an issue): retired generals (and all retired officers) are still commissioned officers, they are just in a retired status. Technically, they are even still subject to the UCMJ. They are free to resign their commissions, but if they do so, they lose out on cost-of-living adjustments to their pension, which is at least several hundred thousand dollars if not over a million dollars over the course of, say, three decades. 

    Jonah: you have a good riff about how members of Congress don't zealously guard their power from the executive. But this issue may be an exception - members from both sides seem to harbor resentment about retired generals/admirals gliding into cabinet posts - the politicians seem to want to keep politics and cabinet posts for themselves. And maybe that's a good thing - its probably not a great norm to have a regular back-channel of military leaders entering politics without having to at least face the voters for an elected office. 

    In the list of concerns facing the country, this is probably pretty low, but it's not nothing. The military is one of the last semi-healthy institutions for a reason - it does a pretty good job abiding by norms and traditions. 

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  8. Maddmac

    Regarding Lloyd Austin and the Dems being worried about being "hypocritical". Seriously? This is what they are concerned about with the hypocrisy boiling over on the right?

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    Richard Maxton

    I love all the Dispatch podcasts. Listen to all of them. That being said, this felt VERY much like Advisory Opinions with special guest stars Jonah and Steve. A LITTLE too heavy on the legal stuff this go-round, IMO. I enjoy David and Sarah geeking out over legal stuff, but that's what AO is for. Prefer more roundtable discussion on this one.

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    Richard Maxton

    I love all the Dispatch podcasts. Listen to all of them. That being said, this felt VERY much like Advisory Opinions with special guest stars Jonah and Steve. A LITTLE too heavy on the legal stuff this go-round, IMO. I enjoy David and Sarah geeking out over legal stuff, but that's what AO is for. Prefer more roundtable discussion on this one.

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