Episode 09 - Ed Warren - Part 1: The Supreme Court & Roe V. Wade
Will Roe v. Wade get overturned in the Supreme Court? And what is the effect the decision will have on women's rights and Planned Parenthood?Supreme Court Litigator Ed Warren joins CurtCo Media's Head Curator Bill Curtis, co-hosts Historian Ed Larson and former News Anchor Laurie Dhue in a discussion of "settled law" and Roe v. Wade
Historian Ed Larson presents a history of the Supreme Court and Ed Warren talks about the makeup of the current court and the future impact of new picks to the court. How is the Supreme Court likely to rule on Roe V Wade and the effect the decision will have on women's rights and Planned Parenthood. 2:00 - Supreme Court History, 3:15 - Constitution Interpretation, 4:10 - Partisan Court, 7:40 - A Conservative Court? 9:35 - Can Democrats filibuster a Supreme Court pick? 15:00 - Is Roe v Wade Settled Law? 19:20 The Handmaidan's Tale, 20:50 - Separation Of Church And State, 23:15 - Individual State's restrictions, 27:00 - Planned Parenthood.
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Bill Curtis: Happy New Year from Politics, Meet me in the Middle, everyone. I'm Bill Curtis. Maybe your New Year's resolution is to become a better informed citizen. Or perhaps you just want to be that dinner party guest who seems to know what you're talking about. In any case, we begin this year the way we ended the last one, showing you that the best place to see the many sides of an issue is from the middle. In the next two episodes, we'll be focusing on the Supreme Court and a few of the cases they may be deciding this term. In part one, we discuss the history of the Supreme Court, the court's makeup and whether or not we want to review it again -one of the most hotly debated topics in the Court's history, Roe vs. Wade. We have an amazing group joining us today. And I'm pleased to welcome Laurie Dhue. If that name sounds familiar to you, it's because she's been anchor on CNN, MSNBC and Fox News. Welcome, Laurie
Laurie Dhue: Thank you, Bill. It's great to be here.
Bill Curtis: Now, of course, our co-host. Pulitzer Prize winning author, historian, international lecturer and our human sourcebook of historical expertise, Professor Ed Larson. How you doing Ed?
Ed Larson: Great to see you again. I am delighted to say also joining us is a person who's become a dear friend of mine, of counsel now and living the life of Riley on the beach in Malibu and the mountains of Montana. Ed Warren was a veteran Republican Supreme Court litigator for the storied law firm of Kirkland and Ellis. He knew most of the current Republican members of the Supreme Court before they were even judges. And he also hired Whitewater prosecutor Ken Starr as one of his co litigators at Kirkland and Ellis. What a treat to have him here.
Bill Curtis: So Ed, I wonder if you could give us a quick history lesson on the Supreme Court, its inception and its purpose?
Ed Larson: That is a great question, because if there's anything that's an originalist’s nightmare, it would be the current Supreme Court. If our founders had envisioned the many headed hydra, the monster that is the modern Supreme Court, they never would have created it. It was the one body that they almost overlooked. But if they thought this court was going to review laws for their constitutionality, well, they never would have created it. Indeed, the founders didn't even create lower federal courts. They just thought there had to be one federal court to give a unified interpretation to federal common law and federal statutes. It was only later that they added the idea that they would be the definitive adjudicator in what was or wasn't constitutional,.
Bill Curtis: Gorsuch wrote in his book. "We were told in classes that the Constitution is a living document. And judges were supposed to decide cases by updating the law to reflect the more enlightened views of today. And then Scalia said that he rejected that view and he argued that judges should not act as politicians by changing the law, just simply interpreting it."
Ed Warren: I think that's correct. I mean, I think that it would go too far to say that there hasn't been some expansive interpretations of laws so as to avoid constitutional problems. But in general, I think we have to stick with the idea that we have a written constitution and that constitution can override legislative actions. I think Scalia has been very, very important. Scalia has pushed the court back in the direction of the statutory text, and that's what we should be interpreting, not the legislative history or other tertiary evidences of legislative intent.
Bill Curtis: The most profound thing that a president can do in their term is to appoint a Supreme Court justice, which actually flies in the face of everything that we're talking about here, because the judges are supposed to adjudicate based on an independent view of the law.
Ed Larson: Well, every justice brings an ideology to the Supreme Court. They've written before. We know what they think before, they vow to uphold the United States Constitution. But they have a different view of what that document says. For some things that's really easy, like every state has two senators. But then you can get to other things, like what is cruel and unusual punishment that can mean different things to different people.
Bill Curtis: So Ed Warren. Are the judges actually operating from the standpoint of an independent view of the letter of the law?
Ed Warren: I think the answer to that is yes. I think Ed and I completely agree on that subject. And the thing that I think stands out about today's court, I think and Ed can check me on this if I'm wrong, I think this is the first time that we've had every member of the court, with one exception, which is the Elena Kagan, has been a judge on the court of appeals.
Ed Larson: Well, there's certainly been a trend recently of appointing people whose primary, is primarily appointing people whose experience has been on a circuit court. And part of that, I think, is to have a better feel of how they will rule.
Ed Warren: Exactly. I think that, I think we have a better gauge for that. But let me say this. I think that everybody on the court, everybody on the court wants to avoid the perception that the court is another legislature, that it's political, that it's predictable.
Laurie Dhue: The court has been consistently evolving since its start. And so I guess my question is, with a continuous evolution of this court, the perception is that these days the court is more partisan these days than it has been in the past and especially during the Trump administration. I'm going to read you a quote that John Roberts said recently. First of all, the current court has decided more than 20 percent of its cases by a 5 to 4 ruling, this court. Chief Justice Roberts said that if the court is perceived as clearly divided along partisan lines, it's going to lose its credibility and its legitimacy as an institution. I'd love to hear both of your thoughts on that.
Ed Warren: I think ,if I can start, I think Roberts completely agrees with the perspective that I'm talking about, which is to say, he wants to avoid 5-4 decisions. He wants to avoid polarization. And that's that helps to explain cases like the census case, the Obamacare case and a bunch of others.
Laurie Dhue: And so he's the one who's going to be willing to make that.
Ed Warren: He has shown he.
Laurie Dhue: And you think that'll continue .
Ed Larson: But the problem with that is ,those the decisions you just mentioned were 5-4 decisions. And they ended up giving a, what appears to be a partisan stance, the court partly because of Roberts. Because you got a lot of Trump supporters and a lot of Republicans that I've talked to that hate Roberts and says, oh, he just, he just sold out. And it's a partisan decision and he's doing this or that. He's not following our partisan line. As for whether it's more partisan now than in the past, and it was never more partisan than when Dred Scott was decided 5 -4, which was in the 1850's.
Bill Curtis: Hold on. Hold on a second. Let's take a look at the last few years for just a minute Ed. You have to look at the shift in the court during the last few years. The GOP Senate's refusal to confirm Garland in 2016, combined with Trump's picks for the court, combined with what could happen if Trump gets another nominee to replace Ginsburg, going forward, then, is it
Laurie Dhue: And he probably will
Bill Curtis: Is it a court that is actually making that decision based on your altruistic, independent thinking out of the letter of this constitution.
Ed Warren: Well, the decision you're talking about, which is Mitch McConnell's decision not to bring Garland up for a vote. Personally, Garland's a great judge. I'd be happy if he were on the court. So don't attribute that to conservatives, because I think many, many agree. So we shouldn't blame you for that one. Not me or any anyone else,.
Ed Larson: But except Mitch McConnell and the Republicans in the Senate who went along with.
Ed Warren: Well, I mean, but that's all true.
Ed Larson: So that was a partisan.as opposed to an ideological, I agree with you
Ed Warren: But, you know, there's where the partisanship comes in. And the Robert Bork decision was a perfect example. This was a payback for Robert Bork.
Ed Larson: Oh but with Robert Bork, twelve Republicans voted not to confirm Robert Bork. That was bipartisan.
Bill Curtis: I asked, what do you see as the function of the court in the event that Trump gets another pick? How do you see that court adjudicating these cases on that altruistic, independent point of view that you just talked about?
Ed Warren: Well, that's really going to be a tough decision if it happens, because I think his instinct is going to be to appoint, if I had to pick someone this Notre Dame professor who's now on the Seventh Circuit, who's this woman who is a Catholic. And, you know, she's, that would be a in your face kind of nomination were it to occur. I think, I don't know what will happen. I think it will be a big problem. I'd be happy if Ruth Ginsburg stays there for a while.
Bill Curtis: Ed Larson, can I bring you in for just a second? Cause I'd be interested in your thought. Do you think that there's a chance that the Democrats may succeed in finding a way to block that vote through filibustering or some other method on the Senate?
Ed Larson: No, I don't. I think that Mitch McConnell is a master of maneuvering the Senate. He's a master of the rules of the Senate. And just as he was able to keep a perfectly qualified judge from even getting a vote for a year in the last year of the Obama administration, he won't follow that precedent. He's already said that he would run a judge through faster than a bat out of hell. Now he has the votes. And I think this is very unfortunate. He has the votes because he chose to get rid of the filibuster for Supreme Court judges.
Ed Warren: That's not his fault, though.
Ed Larson: It is his fault. I don't think there should be a filibuster for presidential appointees to the cabinet because they should be able to get their cabinet members unless less 50 percent of the Senate says no. But when you get a Supreme Court justice, I really thought the filibuster made sense there because it required you to reach across the aisles and get 60 votes. Now, he had the precedent that his Democratic predecessor got rid of it for lower court judges. And I thought that was unfortunate, too.
Ed Warren: Mitch McConnell did what he did because the Democrats were united against a highly qualified, obviously talented judge, Gorsuch. So the only way he was going to get him through was by getting him through with 53 votes. And that's what he did. Now, the question of.
Bill Curtis: So is the Supreme Court supposed to be about politics?
Ed Warren: No, if you start with that proposition, the answer to that is no. And if I'm Donald Trump and if I think about this thing in a holistic and broad based way, I would say what I care about is preserving the Supreme Court's reputation. And that means that I should try to pick somebody more moderate than some.
Bill Curtis: Do you think there's a chance of that?
Ed Warren: Well, who knows.
Ed Larson: You're nodding, no, because you know that Donald Trump is not that sort of guy. And he knows one of the key reasons he got elected was for his base, that he always goes back to his base, was changing the Supreme Court and making it strongly anti-abortion, strongly conservative, and therefore he is going to, for his own political purposes, appoint as hard a right a person if he can, and actually might even hope the person goes down because it helps him politically.
Ed Warren: That may be true. I guess I would say I am hypothesizing something that is not true. That is, that Donald Trump is John Roberts. I'm saying, What would John Roberts do? He would say, hey, let's trim the sails. We want to preserve, above all, the reputation of the Supreme Court as being fair minded. And he probably say, let's appoint Merrick Garland. That would be kind of what he would say. I think Donald Trump is not that. And he's a politician and he's got a base and he's going to try to play to the base. And so I guess I agree with Ed, as unfortunate as it is. But I still would like to like for Trump to think like John Roberts.
Bill Curtis: So you want to go to sleep at night thinking that we have an altruistic motivation when in fact, you know, we don't.
Ed Warren: Well, I think that even when we say we're going to have a conservative appointee, it's lost on the public to appreciate how different the views are of this, all members of the court on many, many important subjects. I mean, John Roberts was in the dissent in an opinion which Judge Kavanaugh issued five to four in an antitrust case. Judge Gorsuch followed the liberals in a criminal defense case.
Bill Curtis: You're saying sometimes the judges actually adjudicate based on what is right and wrong in the letter of the constitution rather than politics?
Ed Warren: Well, these are not constitutional questions. They're usually statutory interpretation questions.
Bill Curtis: So we're going to get to a couple of constitutional questions in just a few minutes. But first, take a break. And when we come back, Ed, we'll discuss one of the most controversial questions facing the court today, a ruling that most consider settled law, Roe versus Wade. We'll be right back in 30 seconds.
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Bill Curtis: And we're back with co-host Ed Larson, our guests former news anchor Laurie Dhue and our Supreme Court litigator Ed Warren. So, Eds, this is for both of you. I'd like to ask you to help me understand the correct answer to the questions that have been asked during some of our confirmation hearings for judges over the last couple of years. It's been asked, is Roe v. Wade settled law?
Ed Warren: I believe yes, probably is the answer. The Supreme Court has overturned in the past a few very significant decisions. There's a very strong bias against overturning Supreme Court precedents, particularly interpreting the Constitution. So the question is, how is the court going to address this question if they get a overturn question as opposed to how about this law? Can it be reconciled with Roe versus Wade? How about this law? I think on the former question and this is just my personal opinion, that Roe vs. Wade is not going to be formally overturned,.
Bill Curtis: Even if Trump gets another,.
Ed Warren: Even if, I was just going to say that's exactly what I was going to say, even if he gets another pick, because I think the institutional issues are strong enough that John Roberts and Brett Kavanaugh are going to say no to a flat overturning. Now, does that mean that the court is not going to allow various constraints, statutory constraints? I think the answer to that is they are going to allow them. I mean, I think there's a a consensus within society that third trimester abortions are a problem and are not really covered by Roe versus Wade. That's kind of where I come out. And I don't think Roe vs. Wade is going to be overturned.
Laurie Dhue: Well, as a woman, of course, I have very strong feelings about this. And I'm glad to hear you say that. Nevertheless, we know that three of the justices have indicated some sort of readiness to move towards overturning Roe v. Wade. Justice Thomas voted to do so shortly after he joined the court in 1992. Alito and Gorsuch would probably join him because they have been skeptics for a long time of the Roe decision. So I just wondered, is it because of what you said earlier that the chief justice and Kavanaugh being skeptical of directly confronting the right to abortion right now?
Ed Warren: Let me let me put it another way. I think if you could poll the Supreme Court on whether or not Roe vs. Wade was a mistake, I think you might even get nine zip. You certainly would get a majority of the court saying this was an issue that was going to be solved politically and should have been solved politically. And maybe we have a few states which would have banned abortion. But the direction was all in favor of abortion without the court stepping in and coming up with a not very well justified or explained constitutional right. But I think this is a different day. I mean, we're talking now, you know, 1973 to 2020. And I voted.
Bill Curtis: So the court can, in fact, change the letter of the constitution based on a different day.
Ed Warren: Oh, well, the court has done it before and will do it again. I don't think there's the votes right now. Nor do I think there are the votes with one more vote. Now, you know, Trump gets elected to a second term and Elena Kagan leaves the court for some reason. I mean, who knows?
Ed Larson: Or Breyer where?
Laurie Dhue: We will not stand for it. We will not stand by it.
Ed Larson: Laurie, what I think you're facing is a situation much like the capital punishment issue. Capital punishment for a while was stopped and then they said, okay. States can pass new statutes. And my guess is that's what they're going to do on Roe versus Wade. What they're going to do and it leads to the same practical result that you're talking about, the same practical result that is worried about in Margaret Atwood's book, about the new book about Testament or the earlier one about.
Laurie Dhue: Yes, The Handmaidens, Handmaid's Tale.
Ed Larson: Because what they're going to do, they're going to say, no, we're not going to resurrect the old laws. But what they're going to do is they're going to say you can pass new laws. The old laws are out, but you can pass new laws based on this, based on these broad standards and those broad standards are going to include what Alabama does or Georgia does or Ohio does. Yes, that brings back the hand maiden tale. And I think that's what you're going to see this Supreme Court do.
Laurie Dhue: And I have to tell you, as someone who just moved from Georgia to California, these two states couldn't be more different. In so many ways,,ideologically, culturally and otherwise. I'm appalled that this is even an issue in 2019. And it scares me to death. And I do have to make the point that we women have been trying to make for the last 50 years or so, and that is that it is not OK for men to legislate a woman's body.
Bill Curtis: Ed Larson has heard me ask this question of quite a few of our guests on Politics. Meet me in the Middle. I am consistently haunted by the idea that our country was founded on, among other things, the concept of a separation of church and state. And here we are talking about the regulation of what you do with your body because my religion tells me that my relationship with God should lead me toward certain decisions. Isn't the basis of this country supposed to be that I don't get to inflict my religious beliefs on you?
Ed Warren: First of all, let me make it clear that I think it is extremely unlikely that the rates of abortion are going to be affected in any significant way by what the Supreme Court does. And we're going to be talking about restrictive statutes that are primarily going to apply in the third trimester. In a few states in the south. Now, this is not just, it seems to me, a freedom of choice question in the same way that the that freedom of religion or freedom of speech is an issue, because there is an other side to this question.
Bill Curtis: But reversing Roe v. Wade means that, you are,.
Ed Warren: I'm not in favor of it. I don't think it's going to happen.
Bill Curtis: Making any change...
Ed Warren: I don't think it's going to make any significant difference in terms of the number of abortions that are done every year. I just don't believe it
Ed Larson: I think you're wrong there. I think that if they do what I predict they'll do. This court will do. And that will be allow new state statutes limiting, restricting, preventing abortion. That it will impact not the people, not the rich people, not the Gorsuch's friends who can travel,
Ed Warren: Not to California residents, or the New York residents.
Ed Larson: Not the Atlanta residents who can travel, the Gorsuch friends, but rather the inner city people in Atlanta, the people who don't have money, the people who don't have resources.
Laurie Dhue: But there are women who now may hear something on the news or their friend telling them. And they live in Birmingham and they hear, well we can't get abortions anymore. And so maybe they hear that.
Bill Curtis: They go next door.
Laurie Dhue: And they maybe they go to another state. But the bottom line is that it is denying women the right to safe
Ed Larson: Or even worse still, go to some illegal provider who kills them.
Laurie Dhue: Yes.
Ed Warren: Don't you think? I mean, seriously, you don't think that there's not going to be nonprofits established which will take that person from Georgia and Georgia is not going to do this either. I mean, maybe Mississippi and Alabama.
Ed Larson: Georgia has already done it.
Ed Warren: No, but Georgia did ... Baloney. It's never going to affect... Georgia's a civilized state. You could in in a day put together a billion dollar fund so that women that you're talking about could leave Georgia.
Laurie Dhue: But we shouldn't have to
Bill Curtis: But Ed
Laurie Dhue: We shouldn't have to start a fund that's worth a billion dollars.
Ed Warren: On the margins. On the margins in terms of what the Supreme Court is going to do, which Ed and I basically agree with, is that it's going to affect it only on the margin. And this is something that can be dealt with privately through private funds and so forth.
Bill Curtis: But let's talk about what led us to this conversation. We were talking about the new personality and makeup of the Supreme Court. There's supposed to be ruling based on the letter of the Constitution. And in this case, you're talking about making adjustments to settled law.
Ed Warren: Right. Well, but that's the point...
Bill Curtis: Because of politics and because of partisan beliefs. Worse, you haven't answered my original question, which is why is it in a country where we say you have to separate church and state? And I can't inflict my religion on you. Why is this an exception?
Ed Warren: Because there is a viable fetus at some point. And so therefore, there is a tradeoff between the choice of the mother and the fetus, I mean, that's the question.
Bill Curtis: So you want me to regulate your body and say you now have an indentured servitude.
Ed Warren: I mean, there's no question.
Bill Curtis: You have to then not only give birth to this baby, but you have bring it up.
Laurie Dhue: And you have to pay for it.
Ed Warren: But we can throw all these social issues in. And I agree with them, which is to say, oh, gee, if we had a lot more abortions of these people who are impoverished and can't provide...
Bill Curtis: Well You don't want to say that
Ed Warren: of course because that's not true.
Bill Curtis: It's Just a question on do you want to inflict a decision on someone who has the right to make that decision themselves.
Ed Warren: But you take it back, too. What about infanticide?
Laurie Dhue: Is that what you're calling abortion?
Ed Warren: No. I'm not calling it that. What I'm saying is that if you ask the American population, what do you think of third trimester abortions, there's alot of
Laurie Dhue: No one is pro-abortion. Nobody.
Ed Larson: And Ed, you keep talking about third trimester abortions and viable fetuses. But that's not the law that is being passed in Alabama, in Ohio and Georgia. Those ones deal with abortions at any stage. And that's where.
Ed Warren: They're going to be overturned. They're going to lose.
Ed Larson: Because that's a religious distinction, because the Catholic Church maintains that at the very beginning, the very beginning of conception, that that's a line. And that's the justice that you're suggesting that Trump is going to appoint from Notre Dame.
Bill Curtis: So if the Supreme Court rules in that direction they are basically eliminating the concept of a separation of church and state.
Ed Larson: And then you're going to first trimester abortions.
Ed Warren: But they are not going to do that so.
Ed Larson: I think what they are going to do is say these statues are ok.
Bill Curtis: Are they going to o that if we have such a such a plethora of conservative judges.
Ed Warren: I've already said I think Roberts and Kavanaugh are going to join the three to prevent that from happening. But I think institutionally, the court is not going to do this.
Bill Curtis: Let's talk about an offshoot of this discussion for a minute. One of the issues that is up for discussion is whether or not the government should be funding or creating revenues for Planned Parenthood. That is an organization that is far beyond just abortions. But right now, the federal government has decided there's no funding for that organization. They've taken it away.
Ed Warren: It's a political decision. I mean, it's a religious decision. I think what you say about Planned Parenthood is undoubtedly correct. But the question is, do we support them financially or not?
Ed Larson: I have to agree here with Ed. This is a politically minded administration. Trump wants to appeal to his base. So dumping on Planned Parenthood appeals to his base.
Ed Warren: This is the problem with this endeavor to make the Supreme Court appear partisan.
Bill Curtis: I'm sorry make the Supreme Court appear partisan
Ed Warren: Because. I basically don't think it is. These are policy issues. And what this Supreme Court is endeavoring to do and I again credit Chief Justice Roberts and Kavanaugh and really the court in general is to move away from the notion that the Supreme Court is the ultimate umpire of policy issues. It decides balls and strikes based upon a narrow list of legal principles. They can differ on those. The courts of appeals are full of justices , are here to here too here, to here. And in between. But what they are not into, what they shouldn't be into, is making policy choices. That's for the legislature. That's for the people. That's when we elect Trump or.
Bill Curtis: Shouldn't or don't?
Ed Warren: Or Biden. I mean, you know a majority of people, given the functioning of the electoral Congress, make a decision. We made a decision. OK, people don't like it. In 2020, they throw Trump out and they put Biden in or they put Elizabeth Warren in and they are going to push a different agenda. So that's life. That's the way it's always been. That's the way it should be.
Bill Curtis: But at least at least you're finally admitting during this show, Ed, that the Supreme Court has a political agenda.
Ed Warren: I think the political agenda of the Supreme Court is overwhelmingly to not appear to be partisan and to call balls and strikes as best they can based upon the narrow set of considerations that they universally agreed to.
Bill Curtis: Well Ed, I've got to say, sitting here in the middle and looking out, this particular issue, especially the Planned Parenthood issue, makes me a little bit queasy. And I certainly wish that we as a country would stop inflicting our morals, our decision on how we're going to serve God or not, or not believe in God. Inflict that upon you and how you treat your body. I think that's a very strange.
Ed Warren: But those are.
Bill Curtis: Way for us to proceed. And I think that it's making the country unsettled, thinking that this may reappear.
Ed Warren: Not going to happen.
Bill Curtis: at the Supreme Court level.
Ed Larson: And the point you make there is very interesting, because Planned Parenthood could live with the Hyde Amendment. The Hyde Amendment prohibited certain things and allowed certain things. Planned Parenthood was fine with that. They would split their funds up and they take funds serving women's health and then they wouldn't take funds, federal funds with respect directly with abortions, so they could live with that and they could still serve the American people. But the Trump administration has gone way past the Hyde Amendment to say no federal funds for any organization, no matter what they do, so long as they also give women the option of abortion. And suddenly Planned Parenthood, which in many areas provides in fact, in some areas the only women's health. Nothing to do with abortion,.
Laurie Dhue: Contraception and education.
Ed Larson: Now they're cut out entirely. And I fear that is for a narrow partisan political ideological agenda.
Bill Curtis: That was a great way to end our show. That music you hear behind you, Ed, is that we're out of time. Laurie Dhue, I hope you'll come back and help us host once again. Ed Larson, as always, you're a veritable compendium of constitutional knowledge. And Ed Warren, this has been a truly dynamic discussion and I hope you'll come back and continue it. Thanks very much for joining. And we'll see you right here in the Middle.
Bill Curtis: Come back for our next episode with our two Eds discussing major environmental cases, executive privilege, there's one for the ages, and a couple of other red hot topics around gun control and the Second Amendment. If you like what you heard, please help us by telling your friends. And of course, subscribe to Politics, Meet me in the Middle. And if you have time, please leave a review. It really matters to us. You can also check us out at Curtco.com. This episode of Meet Me in the Middle was recorded at Curtco Media's Malibu Podcast Studios and was produced and edited by Mike Thomas. Audio engineering was by Michael Kennedy and our theme music was composed and performed by Celleste and Eric Dick.
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