Affirmative Action on the Chopping Block

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As we head into the midterms, there is an immense amount of legal news, including abortion protesters who interrupted oral arguments on Wednesday. According to the government petitioner violated the Act 200. Affirmative action once again on the chopping block at the Supreme Court on Monday. This is very explicit in your brief. It just doesn't matter if our institutions look like America. You say this on page 11 in your reply brief. And I guess what I'm asking you is doesn't it? And new reports that Donald Trump's lawyers saw Justice Clarence Thomas as their ticket to setting aside the 2020 election. Today's is another jam-packed show, Happy Weekend. And we're going to start this show by looking at Monday's lengthy discussion of the use of race in college admissions. Later on in the show, we will interview political insider David Rothkopf about his brand new book, American Resistance. 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But first, evidently race and racism have an expiration date. The only question is that date 2022 or 2028. The high court heard almost six hours of arguments in a pair of cases concerning the future of affirmative action on Monday. The same high court that wouldn't have a legitimacy crisis if only the press would stop talking about the legitimacy crisis is I think poised to overturn over 40 years of precedent regarding race conscious admissions and institutions of higher learning. There was very little talk of doctrine over those six hours, not much discussion of text or history either, just a whole lot of feelings feelings feelings about diversity, feelings about zero sum games, and of course a lot of feelings about college squash players. Six out of nine justices appear to be in broad agreement with Chief Justice John Roberts. Famous formulation expressed once in the parents involved case that, quote, "the way to stop discrimination on the basis of races to stop discriminating on the basis of race," end quote. And so I guess we're going to do that now. Okay. Today I am joined by Carol McClellan. She is former counsel with the NAACP Legal and Educational Defense Fund. She is the founding director of the advocacy for racial and civil justice clinic at University of Pennsylvania's Carrey Law School. Prior to joining Penn Carrey Law, McClellan represented students and families in school desegregation cases and students and alumni in the SFFAV Harvard litigation, defending Harvard's affirmative action decisions. So, Cara, welcome to Amicus. Thanks so much for having me. And I wonder if we can, having just said we failed utterly at oral argument, it seemed to me to talk about the actual cases. I wonder if you wouldn't mind just setting the table. Monday involved two separate cases, one out of UNC, one out of Harvard. There were two different sets of claims, constitutional claims and statutory claims. These cases were consolidated and then pulled apart again because Justice Katangi Brown Jackson couldn't sit on the Harvard case because she had once served on Harvard's board of overseers. So, I'm going to ask you to do that Conlaw thing you do, which is just explain to us if you would, the Harvard case, the University of North Carolina case, and believe it or not, what the sort of statute and constitutional provisions that issue are. Sure. And I should say, not only was there very little discussion of doctrine, there was also very little discussion of the record in either case. So, to begin by just what's at issue in each case, the Harvard case is a challenge under Title 6. And the UNC case is a challenge under the equal protection clause. And the reason is that Harvard is a private university. But in both cases, this is a direct attack on 40 years of precedent where the Supreme Court has said over and over again, yes, you can consider race as one of many factors in admissions and develop to test under strict scrutiny that universities have to prove that the consideration of race is narrowly tailored. And that means that they're not using a quota or assigning a certain number of points for considering race, but rather engaging in a holistic admissions process and considering each applicant. So, I want to start by just making clear that this is a direct attack on the existing precedent under Grooter. And to just explain to the listeners how we got to this test, originally under Baki, which was a fractured decision, the justices ruled out a remedial consideration for affirmative action. So, it means that we're in a world in which affirmative action is not based on recognizing the history of segregation and inequality based on race. But instead, it's based on a compelling interest of universities pursuing the educational benefits of diversity. And so, that's where we are in terms of the doctrine, but in both cases, they not only brought a challenge to the existing precedent, but they brought additional claims. And so, one aspect that's different between UNC and Harvard is that in Harvard, the plaintiffs have also alleged that there is discrimination against Asian Americans and how Harvard considers race or conducts its admissions process. That's not a claim that was brought in the UNC case. And to go back to the point about little discussion of the record, it was interesting because during the arguments, the justices asked a lot of questions about discrimination against Asian Americans and the UNC case, despite the fact that that was not part of the claims that the plaintiffs brought in that case that was only a claim in Harvard. And, you know, just thinking historically, during Fisher, it's also the case that there were no claims of discrimination against Asian Americans in that case. And yet, Justice Thomas and Justice Alito, in that case, previewed that they were concerned about discrimination against Asian Americans as they described it. actually in their opinions, dissenting and fisher wine and fisher too. talked about discrimination against Asian Americans as an issue, even though that wasn't part of the record in those cases. So this inattention to the record is consistent. And really I think the plaintiff students for fair admissions who are originally made up of Abigail Fisher and Ed Bloom saw the signaling in Fisher as an invitation to bring a claim of discrimination against Asian Americans. So that's part of the background for how, as students for fair admissions was created and brought these cases the issue of discrimination against Asian Americans became part of the story. And there's been a lot of conflation between the issue of challenging race conscious admissions and the arguments that Harvard or UNC is in complying with existing doctrine and the issue of discrimination against Asian Americans, which is an entirely separate issue. So Cara, you just laid out in amazing granular terms the landscape, right? We have Baki, which is a complicated fractured plurality opinion. And the court essentially says in Baki, you can use it for diversity purposes, not for remediation of past harms. That's reaffirmed really importantly in Gruder, which is the Michigan case where the court says really explicitly, it's a factor. It's not a checkbox, it's not three points, it's a factor. And it's part of what you've described as a sort of holistic look at candidates for diversity purposes, not for remediation. And then Fisher, that's the last in the line where that's essentially affirmed. So that's the world we inhabit. And then I think what you've just done is say, and this is correct and it's been really endemic at the court of late, there's actually a significant trial record here. There are witnesses, there are findings of facts. There was a substantial trial in each case. Can you talk a little bit about what was found in the courts below? Because I could swear five plus hours of argument, I heard virtually nothing about what is actually on the record. And I ask it because every time Sheryl and Eiffel comes on this podcast, she reminds us that one of the things that this court systematically does is just ignore trial findings as though they were never made and as though they were not relevant. So can you just tell us what the courts below determined in these cases? So in both cases, we have over a hundred page opinions from the district court really laying out in pain, taking detail how the UNC admissions program and how the Harvard admissions program complies with existing precedent and has a narrowly tailored consideration of race to serve the educational benefits of diversity. Both opinions lay out how the universities have considered race neutral alternatives and ultimately made the conclusion that there isn't a race neutral alternative that is going to provide the compelling interests and educational benefits of diversity. And the opinion in Harvard also in tremendous detail lays out how there was no evidence of discrimination against Asian-Americans in the Harvard admissions process. So the court looks at all of the six years of data that both experts considered and that both sides had access to and concludes that ultimately in none of these applications were the plaintiffs able to point to an example of an Asian-American applicant being discriminated against. The court relies heavily on that, the court relies heavily on the testimony of admissions officials at Harvard, all of whom consistently said that race can only operate to benefit an applicant and never as a negative for an applicant and that they consider the benefit of how Asian-Americans contribute to diversity as well and benefit from diversity. But in particular, there were no individuals on the plaintiffs side who came forward and said that they were actually impacted by discrimination. But on the other side, there were eight students and alumni who testified about how the consideration of race in Harvard's admissions process benefited them and that included Asian-American applicants. What was pretty compelling at trial was that Harvard actually keeps applicants files and so individuals including Asian-American students who testified at trial could actually look back at their applications and point to the notes to show what was considered. So just as an example, Katherine Ho, who was one of the students who we represented, who was Vietnamese-American, was actually able to look back at her application as she was testifying during trial and see the notes that admissions officers left in her file and the ways that they said that she would actually contribute because of her Vietnamese heritage more to the diversity on campus and saw that as a plus factor. So it's really incredible that we have this amount of evidence and detail right down to the application files and still the plaintiffs were not able to find evidence of discrimination. So you mentioned this and it's super important. We live in the world we live in post-bucky and post-bucky diversity is the value that is deemed the compelling interest, not remediation. And it gets us into this very weird world carer where the court is forced to talk about diversity as though that's the only constitutional value here. That's not anyone's fault, that's what Bucky gives us. But it put us in a very strange moment at oral argument where, you know, here's Katanji Brown-Jackson trying to talk about an applicant who is allowed to say, "Hey, I'm a legacy, you know, I'm fourth generation UNC and that matters." But I can't talk about race or the fact that my family was precluded from attending UNC. That seems to be wrong, so let's listen to that. The first applicant says, "I'm from North Carolina. My family has been in this area for generations since before the Civil War and I would like you to know that I will be the fifth generation to graduate from the University of North Carolina. I now have that opportunity to do that and given my family background, it's important to me that I get to attend this university. I want to honor my family's legacy by going to this school." The second applicant says, "I'm from North Carolina. My family has been in this area for generations since before the Civil War, but they were slaves and never had a chance to attend this venerable institution. As an African American, I now have that opportunity and given my family background, it's important to me to attend this university. I want to honor my family legacy by going to this school." Now as I understand your no race conscious admissions rule, these two applicants would have a dramatically different opportunity to tell their family stories and to have them count. The first applicant would be able to have his family background considered and valued by the institution as a part of its consideration of whether or not to admit him, while the second one wouldn't be able to, because his story is in many ways bound up with his race and with the race of his ancestors. So I want to know, based on how your rule would likely play out in scenarios like that, why excluding consideration of race in a situation in which the person is not saying that his race is something that has impacted him in a negative way. He just wants to have it honored just like the other person has their personal background family story honored. Why is telling him no, not an equal protection violation? And I guess my question for you is, this is so emblematic of the moment we're in. We saw this in the Alabama case just a few weeks ago where Justice Jackson wants to talk about actual text and history, wants to talk about the originalist purposes of the reconstruction amendments. And in some ways she's precluded from doing just that, not because of anything that the court's conservative wing is doing, but because that is the doctrine she's inherited. What am I missing here? Or is that simply the world we now have to navigate? You know, I thought that line of question thing by Justice Jackson was just so powerful because it just shows the irony of us being in this world where the plaintiffs are advocating that the 14th amendment prohibits consideration of the impact of slavery and the ongoing vestiges of discrimination by literally citing Brown for that proposition, which is all around just an inversion of the equality principles that are underlying both the equal protection clause and the court's decisions in Brown. So you know, she outlines in her questioning how there would be an equal protection violation if the descendants of slaves could not have their experience living for multiple generations in North Carolina considered, but you know, for example, a legacy applicant who is more likely to be white and privileged could have their family history considered, right? And the idea that the 14th amendment would prohibit that consideration is the source of the irony. I think one of the things that is especially concerning from the standpoint of using Brown in this co-optation of Brown to avoid dealing with the history of segregation and the equality in our country, is that in addition to the history of the reconstruction amendments being designed to remedy through the freedman's bureau and during reconstruction, the reality that newly freed slaves were being subordinated in new inventive ways, right? That was directly the purpose of the Civil Rights Act of 1866 and of the 14th Amendment. But moving us forward to the brown decision, not only was brown establishing the principle of separatism inherently unequal and desegregating and outlawing Dijora segregation, but it also implemented, right? It wasn't just that there was the brown decision but then we have brown too and all deliberate speed and we have an entire doctrine of case law around desegregating schools that is explicitly about racial classifications, using racial classifications to remedy segregation and inequality and to address the subordination that comes from separating students into different buildings based on race and upholding a caste system through this process. So there continue to be school desegregation cases that arise out of brown that LDF is very involved in litigating across the country and that are explicitly race conscious not just through race neutral means but actually classifying students to assess where are we? There's an entire set of five factors under a case called Green V Kent County School District where courts have to look at not just the race of students in different buildings but the race of staff, the dynamics in terms of assignment to advance placement courses in terms of discipline, all of these things, right? And so this is an entire race conscious process and project that developed out of brown. So to try to use brown to then say that it has nothing to do with anti subordination and it has nothing to do with classifying people based on race to assess where we are and addressing inequality is just not only a historical but denies that entire ongoing body of law. - We'll be right back after a few words from our sponsors. This episode is brought to you by the Stupski Foundation from rising wealth and equality concentrated economic power, devastating pullbacks and government funding. 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Application times and rates may vary. - Kara, I've been a little bit disrespectful of the notion of diversity partly because I do think it doesn't get us necessarily where we need to go and partly because as you just noted, it ignores the real purpose of the civil rights laws and of the reconstruction amendments. But there actually is a good answer to why, even if you only can play in the diversity playing field, we absolutely need to have diverse classrooms. And you know, we heard a lot of this from Solicitor General Elizabeth pre-logger at oral argument. So I want to play Clarence Thomas asking in this kind of almost zoo-lander voice, like what is diversity? What is this even? Someone explained to me what it, I'm sorry I shouldn't have, I love zoo-lander. But anyway, let's listen to him. - I've heard the word diversity quite a few times and I don't have a clue what it means. It seems to mean everything for everyone. And I'd like you first, you did give some examples in your opening remarks. But I'd like you to give us a specific definition of diversity in the context of the University of North Carolina. - And I guess Kara was really struck by the fact that time and time again in the face of that questioning, people gave very good answers about why diversity matters and why this is an urgent constitutional value. I guess I wondered if you could, you know, you've just made, I think, a very good case for why the remediation of past harms is not a value that has disappeared, post-brown. But can you also just make the best case you can give us for why even using the idea of diversity, which is not maybe necessarily directly an answer to the harms at issue. Why diversity actually really matters and why this is not this ephemeral vaporous value that Justice Thomas would suggest? - So I would start by saying, you know, many of us can attest to the ways that diversity is life altering, right? Being in an environment where you're able to interact with people from different backgrounds can literally change the path of someone's life and career both in terms of being able to become educated about the history and the ongoing social justice and other issues in our country. It's about being prepared to work in a diverse workforce and in world. But it's also, you know, on a personal level, you know, people talk about for the first time being exposed to new languages, to new foods, to new people that they didn't have the opportunity to have relationships with before. And through that, there is a disruption of stereotypes that would otherwise form. Interestingly, you know, in the testimony that we heard at trial, that even exists within racial groups, right? Having consideration of diversity within diversity is part of the ways that people see more diverse representation within folks who share their racial background. So Asian-American students, for example, talked about for the first time being, for example, exposed to Southeast Asian students if they came from, you know, an East Asian background, for example. So there's so many ways that having diversity within diversity on a campus can expose students to really intersectional experiences. and the complexity of our identities. And that really runs in contrast with the way that the justice is and the advocates on behalf of SFFA suggest it that diversity is somehow stereotyping and itself, the idea that through diversity you have more diverse viewpoints represented is somehow stereotyping, it's actually the opposite. And everything we see in the data and in terms of how students describe their experiences with diversity on campus shows that it really serves to combat stereotyping and to create an environment that is more welcoming and more inclusive for everybody just by having diverse students on campus. You're less likely to have isolation, you're less likely to have hostility. And so despite the fact that Justice Thomas describes this as us just feeling good or something like that, it really is directly connected to students not just having access to universities but having an environment that is conducive to learning once that they're actually on campus. And that matters too. - Kara, one of the things that was so talk about Feelings Bowl at oral argument was this idea that college is all zero sum and their winners and losers and some people start before the starting line and some people start after the starting line. And I think that this whole construction of zero sumeness really, really is just such a deeply problematic way to think about this in no small part. And we heard this from some of the advocates and the justices on the left that everybody is entitled some level based on their grades to get into these schools, right? - Yeah, I mean, what the evidence showed at trial was that without consideration of race there would be a reduction of black and Latino students on campus by about 50%. And really the other data point that I think is important to know is that even if you removed every single black and Latinx applicant from the entire admissions pool to Harvard, the chance of admissions for other students would only increase by about 1%. And the reason is there's just not enough applicants who are coming from black or Latinx or Native American backgrounds to really have an impact on the chance of admissions for other students, right? So this idea that black and Latino students are taking up slots for other people is just as a statistical matter, it doesn't make any sense because the pool of applicants is so disproportionately made up of white and higher income students. The other thing I think is important to remember that came out in trial is that for the years that were considered during trial and the class of, if we look at the class of 2019, for example, specific to Harvard, there were 35,000 applicants for 1,600 spots. And of those, 2,700 had perfect verbal SAT scores, 3,500 had perfect math SAT scores and more than 8,000 had perfect GPAs. So if you were going to put together a class and admit people solely based on having high SAT scores or high grades, they're literally are not enough seats for just those students at Harvard. So we have to start with the understanding that the university has to be considering something else because it can't be just those factors alone and you wouldn't want them to just be considering those factors alone. You would want diversity in other ways and to consider other things. And so with all of that in mind, by the time we're talking about applicants who are admitted and where there was some consideration of their race, these are already applicants that are so extremely qualified on so many different fronts that the consideration of race is only a factor of a factor of a factor and really what is most determinative or what's distinguishing them from the other 35,000 applicants is that they are very high achieving and then some other things, right, considered on top of that. But there's nobody who's being admitted that's not qualified. And so then considering that there would be a reduction by 50% of black and Latinx students is incredibly concerning again, going back to really making sure that there's opportunity and that there's a perception that anybody who is talented can have access to these universities. - Kara, I'm gonna skip the question. I was gonna ask you that is entitled, why does Justice Gorsuch hate squash? Because I don't think that that's a question we need to spend a lot of time on. But I do want to end with this question which is gonna feel very Steve and Hawking but this question of time and of when is the, I think Justice Barrett described the Grooter opinion in terms of it coming with a self-destruct button, right? That boom, we're gonna hit 25 years after Grooter and we're gonna not need any of these remediation mechanisms. And I wondered if you could talk a little and I think you've really sort of laid the tracks for making this point when you said, you can't look at Brown one in isolation from Brown two and the progeny of the cases that did use race very mindfully to remediate past harms and discrimination. But I wonder if you can talk about this weird moment that the court wants us to be in. When it wants us to just get together and all agree that racism is over and that more urgently and in my view more insanely, the way to make racism be over is to stop doing any race-conscious measures in any, whether it's in the racial gerrymandering case that we heard earlier this term or in the admissions cases. And to just talk about the absolute, I wanna say weirdness but I actually wanna say privilege of this court's conservative supermajority, time and time again, brow-beating advocates and the dissenting justices on this idea that like, why isn't this over? Why can't this just be over? Why can't you give us a day on which we're all fine again? As though this is something that we can just all agree upon that in 2028 or 2030 we're done with this project. And I just wanna maybe for you to land the plane on this question of what is even the answer to? When are we gonna know that it's enough? - So first of all, the idea of a time frame is usually tied to a remedial justification as we've already talked about. The court has rejected that. And yet this question of timing keeps coming up again and again as if there's a time limit for diversity, right? Diversity is a value in our country regardless of time. It should always be a value. And knowing that there is access to universities or to leadership position that are created through the pipeline of these universities is important in our country in terms of the legitimacy of a meritocracy and knowing that talent is everywhere and knowing that because of that opportunity is available to everybody. Universities and these pipelines should be available to everybody. That is gonna be a value always in our country I would hope. And the idea that it's time limited is just preposterous because it's part of what it means to be in a multifaceted democracy where there's people of all different cultures wanting to know that there's access to opportunity for everybody and see that reflected in universities and pipelines down the road is always going to matter. I thought that was something that the solicitor general really conveyed effectively where she talked to the justices about the message that sent, for example, to women advocates when there's only two female advocates before the court and an entire term, what message does that send? And likewise, the idea that our country's most elite universities could become almost exclusively available to white and wealthy students again, right? That was the case for the vast majority of the history of these institutions and the idea that that would become true again is really a threat to our democracy and the legitimacy of merit in our country. I think the reality is that because of ongoing segregation in the ways that resources continue to be disproportionately available in white and wealthy schools, the reality is that students of color and students of low-income backgrounds are going to continue to be undervalued in the admissions processes that exist, particularly when it comes to standardized test scores, but in general, their ability to create a competitive application based on these standards that are so connected with having access to privilege to do extra-curricular activities to take AP classes to get coaching for standardized tests that without some consideration of the realities of race in our country, these universities are going to continue to be incredibly exclusionary to students of diverse backgrounds. And so we still need to be able to consider race. It's really at the core of ensuring merit and opportunity in our country. And Carol, we've barely talked about precedent and what it means yet again for the court to be poised to really explicitly, I think, overturn decades worth of precedent on this kind of utterly fatuous idea that precedents are self-detonating after some amount of time, but I think that it's really, really worrisome and dangerous that almost in the course of this conversation, we now take for granted that precedent is rather meaningless at the current court and how really chilling that is. Carol McLennan, former counsel with the NAACP, Legal and Educational Defense Fund, is the founding director, of the advocacy for racial and civil justice clinic at University of Pennsylvania, Carey School of Law, Cara, thank you so very much for joining us today and also for just this deep, deep clarity about all the ways in which even six hours of oral argument sometimes utterly elides the point. Thank you. For years, we've been talking about how law makers relentless attacks on reproductive health and rights in the courts, in Congress, and in state houses harm patients everywhere. Throughout it all, at Planned Parenthood Health Centers, the doctors, nurses, staffs, and volunteers show up with one mission to provide essential reproductive health care services to all patients, no matter what. They haven't stopped, and now they're asking you to join them. Give today at PlannedParenthood.org/Defend, because they never stop showing up, and neither should we. Hi, I'm Angie Hicks, co-founder of Angie. When you use Angie for your home projects, you know all your jobs will be done well. Roof repair, done well, kitchen sink install, done well, deck upgrades, done well, electrical upgrade, done well. Angie's been connecting homeowners with skilled pros for nearly 30 years, so we know the difference between done and done well. Angie, the one you trust to find the ones you trust, find a pro for your project at Angie.com. We're now going to turn to a question that I've been thinking about for a long time, which is, do you stay or do you go if you're in the Trump administration? We're joined today by David Rothkopf, whose brand new book, Out This Week, is called American Resistance, the inside story of how the deep state saved the nation. David is a former editor of Foreign Policy magazine, who worked on international trade policy in the Clinton administration. He's written several previous books. He's CEO of the Rothkopf Group, host of the podcast, Deep State Radio, that I've joined many times. David is also a regular columnist for the Daily Beast, and David's book is about the story of how what he calls an informal alliance of women and men working in agencies across the US government, managed to work together to keep a really dangerous Donald Trump and his closest allies from doing irreparable harm not just to the country and its allies, but to the planet as a whole. David, congratulations on the brand new book. It is absolutely wonderful, and it's a treat to have you on the show. Thank you. It's good to be here, good to see you. And I think I just have to start with the phrase deep state, because as you and I both know, this is kind of, you know, Steve Bannon territory. It's a notion of, you know, a bunch of pernicious lawless people who are not patriots working diligently to undermine the presidency. And I know you're obviously flipping that on its head, and you're valorizing it. But I am really curious about the choice both in the title and throughout the book to use the words deep state and resistance, which have been kind of co-opted in some sense by the Trump team to mean something really nefarious, and you've chosen to flip both deep state and resistance to mean something good. I guess resistance meant something good before it meant something bad. So I just want to start with your choice of nomenclature here and why it is that you opted to frame the book around ideas that some might say were irrevocably damaged by Donald Trump and his use of those words. The reason I chose the term deep state is precisely because it has been delified by the right. And I think we need to ask ourselves, why are they trying to discredit this group of people? Because for the same reason that they came up with fake news to discredit the media, they are now trying to discredit a group of people who are public servants who have sworn an oath to the Constitution and worked in the government for less money than they could have made someplace else. And there's a purpose behind all of this. Well, the term deep state goes back a long time. It's term deep state goes back to Turkey in the time of Ataturk. And there have been conspiracy theories like it from the dawn of time. There's always been a theory that there's some secret group that's actually controlling everything, right? But the term deep state started getting traction in the United States right around the time Donald Trump started running because Steve Bannon and others embraced it because it was their variation on Ronald Reagan's idea that government is bad. Because that was a very powerful idea. In fact, it's one of these sort of organizational principles of the modern Republican Party. Reagan used to tell the joke, I'm here from the government and I'm here to help is the big lie, right? And why do you say that? You say it because then it lets you cut government programs that are helping people because everything in the government is bad. You say it because it lets you argue that what the government tries to persuade you facts about an election say are not true. And in this particular case, the concern of Steve Bannon and some of the people around Trump was that these people would actually not follow the president blindly, but they would actually follow the law. And this is really about people and being a nation of laws rather than a personality culture and authoritarian regime. And we go from the idea of the deep state to now today, this idea of schedule F where it's like they want to say, well, we want to be able to fire all these people. And why do they want to fire them? Well, they want to fire them for the same reason they want to do each of the other things that are involved in weakening democracy, packing the courts, getting secretaries of state who are done to rig elections, putting in place provisions that make it harder for certain kind of people to vote. It's so interesting, David, because one of the things that really comes through loud and clear in the book is how hard people work. And whether it's folks at DHS or national security folks or folks in the foreign service, you just get such a sense that their jobs are really freaking hard, and that they work very hard at them. And one of the animating themes in the book is one that's been really worrying me. We might have talked about it on your show, which is the ways in which the current sort of conservative supermajority on the Supreme Court is similarly using that sort of Reagan-esque language to just deride civil servants to deride government lawyers in case after case after case, both at argument, and when you read the opinions, you get the sense that it is just so manifestly easy for Neil Gorsuch or Samuel Alito to take a pot shot at a government lawyer who's trying to do her job, whether it's, you know, issue gun permits, whether it's issue guidance on COVID, whether it's a school lawyer trying to figure out how to finesse First Amendment religion requirements and prayer. And I'm just really struck by the ways in which your book is pushing back on the idea that really I'm hearing coming clarion clear from the highest court on the land, that every bureaucrat in every public servant is a hack, and that they're all just pencil pushers and trying to apply the complexity of life to some law that's unerringly wrong and bad, and that it's kind of interesting because it is coming from inside the house, that I hear that critique coming from the court itself in ways that make it really hard for people who are just government workers, as you say, people who got into this to do service, to be taken seriously. That's exactly right. And the origins, I think, go back, as I said 40 years, they go back to the Reagan era. And again, we have to ask ourselves, why do they want to get rid of these programs? Well, you know, it's because having a representative democracy is not in the interests of a minority, particularly the minority that used to control the country. Having a government that regulates industry is not in the interests of big businesses. Ensuring that there is equity throughout the society or a fair tax code is not in the interests of the 1% who have disproportionate power. And so it's not the dismantling of government or completely made up and you've written much about this, you know, the rationals for the dismantling of the government, you know, whether it's originalism or whatever it is, you know, they're just nonsense. It's not about that. It's about the result. The result is people pay less taxes. Companies are less regulated. The majority in the society has a smaller voice. They're less threatening to the interests that are established in the society. And that's what they've been working towards the whole time. It's interesting because I came away from a book, David, really struck by the fact that both you and I might be the most small sea radicals in the history of the left because we're such deep believer in institutions and the people who power them. But I do feel like for me, the book cracked open this problem I've been grappling with from almost the beginning of the Trump administration, which is this, you know, thing that the economist A.O. Hirschman calls exit loyalty or voice, right? How you do this work of figuring out do I stay and serve as the adult in the room or do I go? And if I go, how do I go, right? Do I write a letter of resignation? Do I write a tell-all memoir? And I think this book more than any that I've seen tries to apply some of that thinking to a lot of people who stuck around and some of them, you know, have been vilified as we'll discuss in a minute. It seems to me you can always justify staying, right? Right till the bitter end. You can always say, and I think one of the things that Hirschman says in his book is the worst things get, the more you feel you have to stay, because you're the bulwark against, you know, pull on detonation. And we can talk about some of the individuals you talk to later, and you frame a lot of this in terms of you have to figure out what your own line is. And at some point, when you know what your own line is, you don't cross it. But do you have some overarching theory of exit loyalty and voice that you came out of this project with in terms of, I'm a good person, I'm a holdover, I'm just trying to do, you know, the right thing here, and it seems that if I go, Steve and Miller is going to replace me with a complete nutter. Who stays and who goes and why? Well, you know, it is a big issue. And before the Trump administration took office, Brent Scowcroft, Republican former national security advisor, very sober, sensible guy, who was zero, no fan of Trump at all, said, good Republicans need to join this administration, because they need to take care of the government. And even at the very end of the administration, I talk about one story where a very senior person in the Trump White House on January 6, calls up another former very senior White House official, crying. And he says, I don't know what to do. And the other official says, you got to stay, because we need a transition. And these people aren't going to do a transition. But that's really what's important. And, you know, you make reference to this idea of having your own line. And that came to me, or is illustrated in the book by a number of people who before they took a job went to see Steve Hadley, who used to be, by the way, an aide and colleague of Brent Scowcroft, and became a national security advisor. And they said, you know, what should I do? And he said, we'll go in. But know what your red line is. Know when resignation is called for. And I think resignation is called for when you are asked to publicly do something that you can't live with. That's the critical red line, right? I think a lot of people overestimate the power that their resignation is going to have in the press. You know, if your Secretary of Defense and you make a big fuss, it'll have a big impact. If you're the undersecretary of state, it will have no impact. And so you have to keep that in mind as well. And staying can help. So it's a very personal thing. And honestly, you know, I talked to 100 people. Some of them grappled with this from the beginning of the administration. Others put it off for reasons that I attribute to ambition. You know, some of them put it off for the wrong reasons. They tolerated really intolerable things for too long for the wrong reasons. They remain silent for too long for the wrong reasons. And some of them are the good guys. It's not Bill Barr, who like, you know, was the bad guy up until the 11th hour and then said, oh, no, I'm not going to support a coup. I don't think that redeems him, although I'm glad he did it. But people like Secretary of Defense Mattis should have been more vocal sooner. Should have stood up and called after, and now it's totally contrary to all of his bringing up as a military officer. But a lot of the things that he knew and other people knew should have been out there sooner because Donald Trump was not just an incompetent president or an ugly personality. He was profoundly dangerous in ways that we still don't even know. And came close to launching wars, wreaking havoc with the global system, injuring people's lives in grotesque and profound ways. And it became an imperative to try to stop it. And some people found the way to do this was lawyers and working the system. But for others, you know, calling him out in the press worked, you know, when when Vinman walks out of the meeting where the president's going to blackmail Zelensky. And he says, the president can't withhold this $191 million because the Congress says already appropriated. It's illegal what's he's doing. And he goes straight to a lawyer and whistleblower does the same thing coming out of the same meeting. Within two weeks, it went to the Congress. And as soon as it went to the Congress, Trump released the money. Now, the Congress didn't follow through. They didn't convict Trump as they should have in the impeachment process. But at least it, you know, it worked and, you know, sort of drawing attention of these things worked. So it's a very personal choice. But when you're an administration run by rogue president who's real danger, it's one I think a lot of these people grappled with almost daily. And it's striking. There's such a dividing line between people who are thinking about national security. And you know what I mean? Like for me, I had the opposite feeling I remember writing the night of the 2016 election. Any lawyer who stays on at DOJ, you know, is wrong. Like you cannot be part of an administration that is misogynist and xenophobic and anti-Muslim. And I was, that was wrong for the same reason that, you know, everybody should rush in. Might be wrong. It was too absolute. But it is clear to me that there is such a sense of urgency I'm thinking of Olivia Troy, you know, saying about the travel ban. Like you don't understand. You can't just walk away from this. She says because, you know, we're going to use intelligence and it's going to harm people. I'm just so many of the people who stuck it out to try to cleanse the travel ban over three iterations. We're doing it because they were afraid of what it would do to future Iraqi translators, right? I mean, this was not just the travel ban is anti-Muslim, so I'm out. And I did have a very deep sense reading this that at least the national security folks that you spoke to had a much wider scope of the harms of leaving. No, no, that's clearly true. And Olivia Troy, somebody I didn't just talk to for the book. She was one of the inspirations for doing the book. I talked to her a number of times in the podcast. And I was really struck by, you know, here's a person who, as a young woman, right after 9/11 says, I've got to go serve my country. And her first assignment is Baghdad, you know, and she's in the green zone and she's putting her life at risk and she works in the national security community throughout democratic and republican administrations and ends up first at DHS and this administration. And then later on the vice president staff and was the point person on the COVID test course. And she is in almost the perfect example of a dedicated public servant who sought to do what was best for the country and follow the law and was able to use that to diffuse some of the really pernicious ideas. Whether it was the Muslim ban, which as you said, had many dimensions that Trump and company had not thought through at all and was really fundamentally at its core, just racism and an effort to institutionalized race of them all the way through to COVID. Where, you know, she also saw something, which, you know, even on this day, I just have to say panathetically, even through this day, I am shocked, the million Americans died. Several hundred thousand of those Americans didn't have to die, right? Several hundred thousand of them died because the administration resisted science, resisted common sense, resisted social distancing, didn't provide the right equipment, didn't provide the right statistics and so forth. And it's not a scandal. How is it? That hundreds of more people than died in all of the wars that America's ever fought died of COVID many unnecessarily Where's the commission? Where's the study? Where's the accountability? I don't I don't I don't get it But the point is that every day she would show up at work like Tony Fauci would show up at work and like others and the administration would show up at work and they would say Not only how do I fight the disease? But how do I manage the president so he'll let me fight the disease and that's how he came up with you know 15 days to stop the spread Because they said he won't do anything that's longer than that So let's get him to bite into this and then we'll extend it So I want to stay on this theme of Shades of Grey David because one of the things you say very explicitly I think even in the introduction is look I'm not making a global judgment on you know who's a hero and who's not and you know That's for every reader to make for themselves But I am really struck by who gets redeemed in the popular press and who doesn't right so you've got a lengthy conversation With Kirsten Nielsen Who I think is still deemed as someone who just got it wrong on family separation and I think You know her narrative in the book is look I was doing my best to make it not appalling There's an a funny moment where I think you quote Liam Panetta Saying that he redeems John Kelly and then he says quote Mick Mulvaney and Mark Meadows I think they just became hacks and I guess I just find myself wondering and I know this is I you're gonna fight the hype Oh because it's the thing you didn't want to do with the book But do you have a way of thinking through who Stayed too long who cleansed something that could not be cleansable who under cover of I'm just trying to make things better Was just wrong and who actually served a larger purpose or in the end is this just Leon Panetta thinks these guys are hacks and this guy isn't you know Kirsten Nielsen feels like On balance she did more good than bad in terms of the border because the wall didn't get painted black Between the US and Mexico like is there a way to think about this Systemically and ethically or is it just a question of who you speak to and how folks justify their own conduct It depends on your objective, you know if your objective is to grade everybody Then you know it's who you spoke to and how much information you have Here's the reality It's not black and white with anybody if you joined the administration you were validating the administration If you took a senior post and you went out and spoke in defense of the administration from time to time As many of the people who've now turned against the administration do You own some of that people who recognized the problem earlier and did more To fight against bad decisions deserve more credit for that Kirsten Nielsen's an interesting case, you know who Is a lawyer who started out as a you know and chief of staff and has served in past administrations and expected certain norms to be followed And dealt with almost from the very beginning The reality that there was a separate department of Homeland Security From the one created by the Congress that was essentially in Stephen Miller's office And Stephen Miller and a bunch of other characters some of whom were in in Jeff Sessions office over at the attorney general they Didn't really care about the law. They didn't care about regulations. They didn't care about the bureaucracy They wanted and they were fundamentally racist And they were in a constant battle literally every day People in DHS and I spoke to lots were like we can't be in a room with these people We can't let these people know what we're Thinking we have to create a parallel process and They did diffuse the Muslim bit and they did moderate some of the elements of Separating families not enough of them They were too tolerant of that. They did too many defenses of that and they deserve to be judged for that But you know even after that You know, Kirsten Nielsen was part of the group of people that said we have to protect the 2020 election And they got together and that included the FBI director and the national security agency had and Chris Krebs Who was working with in DHS and so and they all worked towards that and they achieved something and so You know nobody in the top levels of the Trump administration with very few exceptions Gets 100% as their grade um, but there are a lot of them who deserve a higher grade than we are willing to give them Because we are so politicized and it's very hard for a lot of let's I think bill bar was Repugnant on many many levels and did a huge disservice to the United States on many many levels But I might also able to say that by him saying to Trump no way. I'm not going there with your coup plan We that helped us no, I can see those two things and I think You know, there's what is the F. Scott Fitzgerald quote the sign of of a mature mind is the ability to keep two contradictory thoughts and it together at once I think we just we have to be mature and looking at this and say what worked What didn't work What was a success for the government? What was a failure? And that's why I try to present it objectively and let people draw their own conclusion You know where this is going next and last which is I love this book in no small part because it's doing the work of saying See what's happening under the surface take note of and appreciate Particularly because the law is one of the guardrails as you say it's the thing that folks keep citing to say no I actually will not cross this line the line is a lawful line But where it's going depressingly David is what happens now right what happens when the quote-unquote resistance the quote-unquote deep state all of the folks Who you are lifting up and saying it's complicated and they ultimately did a lot of good Where are they right now and I find myself in a moment where you know we're we're taping this the week In which the Republican Party not just dismisses an attack on Paul Pelosi, but laughs at it And you know is spewing misinformation about it and I find myself saying Is this book kind of a road map forward to how to conduct oneself ethically and in With dignity even in trying times and or is it sort of the last gas of ethics and dignity in government Because we have now crossed this line into that's gone in other words I've been really mindful Jamel booey's been tweeting this week About you know the need to restore you know real valor and service and dignity all the values that your book Really, I think highlights in government service, but holy cow it feels like we are the trainers left the station on those values Do you do you look at the book as the end of something or possibly as the beginning of a redemption that I'm just not seeing right now Well, first of all, I think we're at a crisis of ethics and morality in our government And it's uncertain how that crisis is going to be resolved one of the reasons to tell this story Is because the crisis is working on many levels some of which people aware of some of which people are not aware of There is a multi-tiered effort To weaken the protections that Americans have But guarantee their rights protect their rights and move us towards authoritarianism One of them is by packing the Supreme Court and letting them do what they're talking about One of them is by changing voter laws and making it harder for voters to vote One of them is by electing secretaries of state who promised you know or you know governor candidates as the one in Wisconsin the other day said You know he said he said If if I'm elected no Republican will ever lose an election in Wisconsin again I mean, this is shock it absolutely shock Um, and people are aware of those things because we tend to look at sort of the big stories of politics But what I was wanted to focus on is that there are stories that we don't look at that are equally important There are guardrails that we're not aware of that are equally important And there is a movement of foot in the Republican Party right now Schedule F Let them fire all these people these unelected bureaucrats That Trump tried to get in and was reversed by the Biden administration But now the entire party not just Trump but Newt Gingrich and all the other officials and they're all saying you know We're going to do this and if they do it And if they're able to say we're going to fire people who put their oath of office And the Constitution ahead of their loyalty to the president Then we're going to have a government of Rickton Grinnells and Kashpitales and Chris Miller's and Chad Wolfe's and so forth Who don't protect us but protect the president And so we're heading into a fight Whether we're going to be able to Reverse the efforts of these authoritarian or not and we have to know the lay of the land. We have to know where the fight is being fought. Now, I do think, and that's the slightly optimistic point of this, that the US government's the biggest most complex organization in the world, and no president can change all of it. And so there will always be a large group of public servants there. And if they stand up, do their jobs, respect the law, then they can play a big role in rebuffing whatever these attempts are. And so, you know, we should celebrate them. And I think the other thing we need to do is we need to celebrate public service. You know, what happens when you denigrate public service? You get Herschel Walker as a candidate. You get Senator Tommy Tuberville. You get people who have absolutely no business in office. And we've spent 40 years saying serving government isn't so great. And so future generations aren't going to do it unless we change the story, change the narrative, and let them know that even if they're in the middle of that government, they can make a big difference. And so it's about the fight to come. It's about the lessons of the past. And it's about the values that I think we have to embrace if we're going to have any chance in winning that fight. I love that. I love landing on that, David, because it's so been my personal beef when I hear, again, Supreme Court dicta, maligning government lawyers who are trying to figure out how to deal with a deadly pandemic or government lawyers who are trying very, very hard to figure out how to deal with immigration problems. And to hear the court dismissing those people as a bunch of flunkies and to suggest that we as justice is actually no better how to deal with the lethal pandemic, you know, we as justice is no better how to deal with global warming or other crises is a way of doing exactly the thing that you deplore in the book, which is saying that all of these folks who did not go into these jobs for the money or for the, you know, getting invited to the right cocktail parties because most of them get invited to really bad cocktail parties. They did this out of an ethos of service and of civic virtue. And I think we all have to really recognize that if we continue to talk about those people as though they are all in the tank or corrupt or part of the deep state, their ranks will not be filled with better people. Their ranks will be filled with opportunists. And I really, really think this book comes at exactly for me at least the right minute to think through some of those questions. David Rothkopf is former editor of Foreign Policy Magazine. He worked on international trade policy in the Clinton administration. He's written several previous books and he is host of the podcast deep state radio and a regular columnist for the daily beast. And the book is American resistance, the inside story of how the deep state saved the nation. And I really did love every minute of reading it, David. And I thank you not just for the book, but for the work that you do to really lift up. I think the ability to think in nuanced and complicated terms in a moment when we really resist that. Well, thank you. I admire the work you do. I hope we can keep our long conversation going podcast to podcast in some day, maybe in person. But I think this is a fight everybody's in right now. And if you're not in the fight, then you're helping the other side. And it is a crisis. And you doing this podcast and you doing your great book, these are the ways that we fight back. And I admire what you're doing and I consider real honor and privilege to be able to join you here. Thank you for the book, David. Thanks for being with us. And that is a wrap for this episode of Amicus, the pre-midterm edition. Thank you so much for listening in and thank you so much for your letters and for your questions. You can keep in touch at [email protected] or you can find us at facebook.com/amicuspodcast. Today's show was produced by Sarah Burningham. Alicia Montgomery is vice president of audio and Ben Richmond is senior director of operations for podcasts here at Slate. We will be back with another episode of Amicus in just two short weeks. And until then, do take good care. Have you ever put something off because you were so overwhelmed you couldn't even start? I get it. I'm Dana K White and I wrote for Crestinators Get Stuff Done. In the book, I teach you my practical shame-free anti-procrastination process to help you make real progress and actually finish the things you want to do. For Crestinators Get Stuff Done is a New York Times Best Seller and it's now available in all formats. Get your copy wherever books are sold or at DanaK White.com/procrastinate. Hey there, it's Mary Harris host of Slate's Daily News Podcast. What next? I don't need to tell you that the midterms are mirror days away because I tell you that like every day. I can't wait to move on from discussing what might happen to what actually happened. And I would love it if you would join me and talk about what actually did happen as soon as we know it. On Wednesday, November 4th, right after the midterms at 12 noon, we are going to host a live Zoom event just for Slate+ members. We're going to debrief on what went on on election night, answer questions about what we're still looking for and what could come next. So the next time we're about to click on a headline recapping the latest polls, instead go visit Slate.com/surgelive. We promise it's going to be better for your mental health. That is Slate.com/surgelive.