Oct. 27, 2020 - Rubin Report - Dave Rubin
19:11
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| Speaker | Time | Text |
|---|---|---|
| I'll be waiting late into the night. | ||
| hopefully we'll know the result that night 'cause the last thing I think we need | ||
| is a case going to the court over the election with the deciding vote being cast by a justice | ||
| who was just appointed by one of the litigants to the Supreme Court. | ||
|
unidentified
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(upbeat music) | |
| All right, we're doing a quick on the fly interview today with the legendary lawyer, legal scholar | ||
| and one of the last sane liberals around, Alan Dershowitz. | ||
| Welcome to the Rubin Report. | ||
| Well, thanks. | ||
| It's a pleasure to be on with another sane liberal. | ||
| There ain't many left. | ||
| We'll have to have our next meeting in a phone booth. | ||
| There's about 10 of us left. | ||
| So I just said to you before we started that I'd love to have you back for a full extended hour long interview that I normally do. | ||
| I appreciate you jumping in today because of the Amy Coney Barrett confirmation yesterday, just to clean up some of the legal stuff. | ||
| I know we could complain about what's happened to the libs all day long, but let's just talk about some legal stuff today and then we'll pick up and do that in the next couple of weeks. | ||
| So first off, she was confirmed yesterday. | ||
| I suspect, although you probably don't agree with perhaps all of her past judicial decisions or some of her reasoning, that you think that her being confirmed was the right decision. | ||
| Is that too much of a leading question? | ||
| A little bit too much of a leading question. | ||
| If a decision was going to be made, it was the right decision. | ||
| That is, she was highly qualified. | ||
| She is as qualified as Merrick Garland. | ||
| But Merrick Garland should have been confirmed as well. | ||
| So I object to the process. | ||
| I think the Republicans stole a seat on the Supreme Court from the Democrats, and that was improper back in 2016. | ||
| That was wrong, and they established a precedent which they didn't follow, namely that if a nomination comes within months of an election, it should be deferred. | ||
| Passing that, I basically agree with the vote that was made by the Senator from Alaska. | ||
| She said she opposed the process, but she didn't wanna take it out on a highly qualified justice. | ||
| So yes, she's highly qualified, no doubt about that. | ||
| Right, when we get into the hypocrisy game of what the Republicans did just a couple of years ago, and some of the things that the Democrats are saying, there's nobody that's innocent in that, right? | ||
| Nobody's. | ||
| At this point? | ||
| It started with, more we have a bird now to bork somebody | ||
| it then moved to abolishing the cloture and filibuster | ||
| first on all judges that on supreme court justices and now of course this morning already a_o_c_ and others | ||
| are demanding that the court be packed there's a big op ed or in today's new york times a series | ||
| of op eds about how to fix book court | ||
| I mean, the only thing broken about the court today, essentially, is that it is dominated by conservatives. | ||
| I don't think the people who wrote the op-eds, most of them, would have tried to fix the court if the shoe were on the other foot, and if it were six to three in favor of liberals. | ||
| They only want to fix it because they want their ideology to dominate on the court. | ||
| So I'm curious, back in 2013 when Harry Reid did the nuclear option, I was a lefty, I was a big liberal, I was a Democrat, the whole thing, and there is video on YouTube, people can find it, of me saying, this is a bad move, it will be used against us. | ||
| That's exactly what Mitch McConnell said back then. | ||
| What were you saying back then? | ||
| Same thing, same thing. | ||
| Look, I've always taken the view that I put the institution, the Supreme Court, the country, Before partisan politics. | ||
| That's what got me in trouble with so many of my so-called liberal friends who wouldn't understand a liberal if they fell over one. | ||
| Liberal friends who object to the fact that I defended the Constitution when the House of Representatives tried to impeach President Trump, who I voted against in the 2016 election, on unconstitutional grounds. | ||
| I favor the Constitution and institutional support for the Supreme Court over any kind of ideological preference. | ||
| Do you think that in normal times, and I don't even know how to define that anymore, that because we'd be talking more about ACB's qualifications rather than the process, she strikes me as the type of person that maybe 30 years ago, let's say, she probably would have got 70 votes or something like that? | ||
| Do you think that's something like that's fair to say? | ||
| I think 98 votes is fair to say. | ||
| Scalia got 98 votes and Scalia didn't try to hide his views at all. | ||
| Justice Ginsburg got many, many, many votes. | ||
| She didn't try to hide her views. | ||
| The tradition back in the day was that you affirm somebody for the Supreme Court if they're highly qualified. | ||
| That was broken for the first time with the Bork nomination. | ||
| Bork was extremely qualified. | ||
| He was a professor at Yale, he was the solicitor general, he was a judge, but he had extreme right-wing views and he didn't present them effectively. | ||
| He made statements in front of the Senate, which really put a lot of people off, including a lot of Republicans. | ||
| And so he failed the confirmation process test, but it turned into more of a principle. | ||
| Look, when you get a court, a Supreme Court, that doesn't affect the lives of ordinary people, as the Supreme Court didn't for the first hundred years of its existence. | ||
| Nobody cared who was on the Supreme Court. | ||
| But when the Supreme Court decides desegregation, as it should have, Roe versus Wade, Uh, gay marriage. | ||
| People are going to say, who are those robed people? | ||
| Why don't we get input into who is put on the court? | ||
| They're affecting our daily lives. | ||
| So, you know, there's no free lunch. | ||
| If you want the Supreme Court to be depoliticized, then the Supreme Court should stay away from making controversial divisive decisions. | ||
| If they're going to make controversial decisions, then they're going to become politicized. | ||
| That's what democracy is all about. | ||
| I'm guessing that not much can shock you, but is any of the language coming out of the Democrats right now shocking to you in that there's basically just a let's burn it all down feeling right now? | ||
| Not just let's pack the courts, but let's change the electoral college. | ||
| Let's change every institution that in many ways, someone like you has fought for your whole life to strengthen. | ||
| Yeah, because they're not interested in changing the institutions. | ||
| They're interested in getting their way. | ||
| And whatever it takes to get their way, they're prepared to do. | ||
| If the shoe were on the other foot again, they would be the strongest defenders of these various institutions. | ||
| But there's an intolerance. | ||
| It reflects itself on campuses today. | ||
| Why do we need free speech? | ||
| We know the truth. | ||
| Why do we need due process? | ||
| We know if a woman accuses a man, of course the woman's telling the truth and the man is guilty. | ||
| Why do we need any of these processes? | ||
| We know. | ||
| We know the truth. | ||
| We're endowed with this special ability to discern truth, and we don't need process. | ||
| We don't need speech. | ||
| We don't need due process. | ||
| We don't need the Supreme Court. | ||
| We don't need the Electoral College. | ||
| We don't need anything. | ||
| Just give us the ability to rule and dictate, and we'll dictate in the right way, said Stalin and Mao and many of the students on college campuses today. | ||
| So I'm curious, with that in mind, I've been making an argument, and I did not vote for Trump four years ago, I voted for Gary Johnson, but I am gonna vote for Trump this time. | ||
| I've been making an argument that in an odd way, Trump is defending both liberalism and conservatism at this point, in that he's defending conservatism, that's obvious, the judges and the policies are fairly conservative, and he's defending liberalism because he's basically the last The last door between the lefties just ramming through everything. | ||
| Does that make some kind of sense to you? | ||
| As bizarre as it sounds, Trump is defending liberalism and conservatism. | ||
| Unintentionally, he's defending liberalism and many conservatives defend liberalism today because it's their ox that's getting gored by the extreme left. | ||
| But remember, I'm old enough, you're not, to remember when it was the conservatives who were suppressing free speech on campus. | ||
| I grew up during McCarthyism. | ||
| And so, as you said in the beginning, there's enough hypocrisy to go around on both sides. | ||
| What we need is a core of liberal centrists, conservative centrists, who have to work together | ||
| to preserve institutions without regard to what the outcome is. | ||
| We have to be focused on process and fairness. | ||
| It was Felix Frankfurter, the great justice, who said the history of liberty is primarily the history of process and procedure. | ||
| If you get that right, you're going to lose the outcome sometimes, but next time you'll win. | ||
| But if you change the process and eliminate due process and free speech, democracy is done. | ||
| Do you think there's enough of those liberals, of those centrists? | ||
| Are there any left? | ||
| I mean, we can joke about, you know, there being about 10 of us. | ||
| Obviously there are other, you know, just good folks out there, but it seems like they've lost all power. | ||
| I don't see any of them represented by the Democrats at the moment. | ||
| I mean, where are they? | ||
| Well, I think you're right. | ||
| I would have thought That Joe Biden would be one of the last of the liberals, the centrist liberals. | ||
| And I hope maybe he will be, but he has to resist the pressure from the squad and from the people on the extreme left. | ||
| Look, we're going to see a move toward court packing immediately. | ||
| And I know that Joe Biden doesn't want to pack the court and I know he won't push court packing, but what if the Senate and the House passes court packing? | ||
| Will he veto it? | ||
| Does he have the courage to stand up against his own party radicals and veto it? | ||
| I think that's the great question. | ||
| And I agree with you. | ||
| We need to build the center. | ||
| We need to build... Look, I used to have these great debates with Bill Buckley. | ||
| He was a centrist conservative, I'm a centrist liberal. | ||
| You and I can have these debates, but I can't have any discussions with anybody on Martha's Vineyard. | ||
| I can't have discussions with members of my own family. | ||
| They just know the truth, they want the outcome they want, and anything that stands in the way of that is fascism. | ||
| So I'm now fascist because I believe in due process. | ||
| Hey, you're in good company. | ||
| All right, so we'll obviously spend a lot more time talking about that in a separate interview, but just let's dive into it a little bit more here, because I think a lot of people watching this, especially just basically a week before the election at this point, they're feeling that. | ||
| These are people who are... | ||
| There are lifetime moderate conservatives or moderate liberals who now family members won't talk to them. | ||
| They're being pushed out of their communities. | ||
| Do you remember as someone that comes from the institutions, that comes from Harvard, that has been in the media game for decades, do you remember, was there a moment that you saw that you got, whoa, this thing really is out of control? | ||
| Yeah, I think it really did come to fruition with the election of Donald Trump who did, reflect a division in the country. | ||
| Look, there's still some place that people can go to. | ||
| They can listen to you, and they can listen to- I have a podcast now, too, called The Ders Show. | ||
| It's on- The Ders Show! | ||
| And I- Not bad. | ||
| stand for this position. | ||
| I always represent kind of the center liberal position, never take positions on who should be elected or who should be appointed. | ||
| I talk about The implications of what's going on in America. | ||
| And you can get it, you know, on Spotify or YouTube. | ||
| So, you know, listen to you, listen to me. | ||
| We'll link to it. | ||
| And I do think that podcasts and things like that are the wave of the future because, look, look what's going on today with Hunter Biden. | ||
| I'm a liberal Democrat. | ||
| I like Joe Biden. | ||
| I don't believe he's corrupt. | ||
| But NPR and National Public Radio, ...has now made a policy that they won't report on whether or not the laptop is genuine or not. | ||
| I want to know whether the laptop is genuine. | ||
| I want that to influence my vote one way or another. | ||
| Maybe it's not enough to change my current predisposition, but I'm entitled to know, and Twitter and Facebook and NPR are not entitled to keep that information from me. | ||
| Are you shocked then at the way that the media has crumbled in conjunction with all of this? | ||
| Because, you know, I'll see a lot of times when you go on CNN or now you go on Fox or whatever it might be, and by the way, Fox is the only one that puts me on CNN. | ||
| Well, CNN has banned me as well. | ||
| Yeah. | ||
| Oh, they've banned you? | ||
| Congratulations. | ||
| But I see you, when you've gone on there, I suddenly see people who you've taught, people that were your former colleagues, people that you might've even learned from, who are suddenly going off on you in the worst sort of ways, and usually have almost no legal backing behind what they're doing, and then you lay out a calm legal precedent, but they're basically just calling you names. | ||
| And I'm constantly amazed by that. | ||
| True of Jeffrey Toobin. | ||
| And Jeffrey Toobin was my student, And the point is, Jeffrey Toobin has been wrong 100% of the time when he's predicted the outcome of court decisions, and I've been right 100% of the time. | ||
| It's not that I'm smarter than Toobin. | ||
| He allows ideology to influence his predictions. | ||
| CNN tells him, essentially, how to come out. | ||
| Because he doesn't want listeners of CNN to be upset that the Supreme Court may come out in a way different from his prediction. | ||
| And I don't care about that. | ||
| And so I get it right because I don't allow ideology to skew my predictions. | ||
| I follow what Oliver Wendell Holmes said. | ||
| The job of a lawyer is to predict in fact what the courts will do, not what the courts Should do. | ||
| So Toobin has gotten it wrong, and I've asked CNN, probably why I've been banned, I've been asking CNN, show Toobin's predictions and then show what happened so that the listeners and the viewers can judge him and decide whether to listen to what he has to say. | ||
| Then show my predictions and show what happened. | ||
| They, of course, won't do that because people don't care really about the truth. | ||
| They only care about their truth, their capital T truth. | ||
| So I know that you might be in the legal prediction game, but nobody wants to be in the political prediction game, you know, seven days out. | ||
| But what do you think? | ||
| I mean, what do you think is gonna happen at this point? | ||
| I can't predict. | ||
| I'm not in a position to make that judgment. | ||
| I did predict in 2016, in August, that Trump may well win. | ||
| And I told that to Hillary Clinton, who I was supporting. | ||
| Because I had just come back from Europe and I had seen the growth of populism, Brexit, all of that. | ||
| And I saw a wave sweeping the world, and I thought it would sweep America as well. | ||
| And I got that right. | ||
| But I don't know how to assess the polls. | ||
| The polls show Biden ahead, obviously, but we know that there's a gap between polls and Trump voters because there are a lot of Trump voters who won't tell pollsters the truth. | ||
| So I'll be waiting late into the night. | ||
| Hopefully we'll know the result that night, because the last thing I think we need Is a case going to the court over the election with the deciding vote being cast by a justice who was just appointed by one of the litigants to the Supreme Court. | ||
| So I hope we avoid that. | ||
| Right, but doesn't it seem in a bizarre way that that is sort of almost where we have to end up now, that the world has gotten so crazy and that, you know, I keep telling people, it feels like we're in the odd stage of democracy where it's now just the show must go on. | ||
| We just need the show in an odd way to keep us all focused on that, that it would ultimately lead us to taking this to the Supreme Court, because in a bizarre sense, that's the show. | ||
| Well, if it goes to the Supreme Court, I hope that whoever loses will do what Al Gore did and what Richard Nixon did and concede defeat and have peaceful transition. | ||
| Let's hope that happens. | ||
| I think there's some possibility the election may be decided on that night. | ||
| If Florida, Pennsylvania, Ohio, Michigan all go for one candidate, that will probably be the winning candidate. | ||
| All right, let me ask you one other thing for now, and then we will pick this up in the next couple of weeks. | ||
| So I get that on the left, there's this burn it down feeling, and they wanna change all of the norms. | ||
| But what I'm also seeing now, as I've been, let's say, more welcomed on the right, is there's a version of that on the right as well, which is, oh, well, the lefties are so bananas, and the institutions have failed us at such a level, that we also should burn it all down. | ||
| I'm not a full burn it all down guy, right? | ||
| I wanna keep some of those things for the reasons you just laid out there. | ||
| What would you say to the conservatives who now hold that position, especially if Trump loses, who at that point, they're all gonna say, all right, they wanted to burn it, well, now we'll show them who's boss. | ||
| Well, I've already commented on that with Lindsey Graham, who I liked as a person. | ||
| Lindsey Graham said, look, I'm never gonna allow a nomination at the Supreme Court to come within a year of an election, and you can use my words against me. | ||
| So they used his words against him, and he said, no, no, no, no, the rules changed after what they did to the prior justice. | ||
| To Kavanaugh, yeah. | ||
| Kavanaugh, and they raised all these fake issues about, you know, his 15-year-old. | ||
| And he said, I'm gonna burn it down, basically. | ||
| He didn't use the words burn it down, but I'm gonna change the rules. | ||
| I don't think that's right. | ||
| I don't think you fight dirty politics with dirty politics. | ||
| And I hope that if whoever wins continues to play by the rules, | ||
| none of us will gain by a burning it down mentality because you know who they're going to burn down? | ||
| They're gonna burn us down. | ||
| We're gonna be the guys who they burn down. | ||
| And if you think you're exempt from that, forget about it. | ||
| Just remember the French Revolution. | ||
| Nobody could get far enough left to avoid being guillotined. | ||
| Even the people who thought they were leading the French Revolution ended up losing their heads. | ||
| When you have violence and riots and the kinds of lawlessness that I think both sides are capable of engaging in, The losers are our democracy. | ||
| So, you know, get ready to lose whether you're a Democrat or Republican and then prepare to win next time. | ||
| That's the answer. | ||
| Don't go to the streets and don't engage in violence. | ||
| And I'm afraid we may have some violence following this election. | ||
| And that's a great concern. | ||
| Yeah, spoken like a true liberal. | ||
| And as a guy that's a talking head for a living, I'd like to keep my head attached to my body. | ||
| We shall see. | ||
| All right, the Der Show is available on iTunes and YouTube and Spotify and everywhere that you can get podcasts and we'll get you back after the election and we'll unpack the whole thing. | ||
| That would be wonderful. | ||
| I had a great time talking to you. | ||
| You're a terrific host. | ||
| Thanks, Alan. | ||
| I appreciate it. | ||
| If you're looking for more honest and thoughtful conversation about law instead of the nonstop yelling you get everywhere else, check out our law playlist. | ||
| And if you want to watch full interviews on a variety of topics, check out our full episode playlist. | ||
| They're both right over here. |
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