KAI WRIGHT: Hey, Stakes listeners. If you’re into what we’re doing on the show, let us know. Here’s two things I need you to do: Rate us on your podcast app and sign up for our newsletter. I just finished writing the first edition! It’s where I’ll talk about the news and share some bonus reporting and other great stuff. Go to TheStakesPodcast.org and get on the list.

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If you’re following anybody from our team on Twitter, you know that we all really really geeked out over the special event we had to launch this podcast. I got to sit down with former attorney general Eric Holder, Jr. and talk about the state of our democracy and the Supreme Court and the upcoming elections, and a whole bunch of stuff.

We talked for over an hour, with a live audience here at WNYC. And I wanna do something a little different here than what we’ll normally do on the show, I wanna share at least part of that conversation with you.

We began with Special Counsel Bob Mueller’s report and I asked Holder, what now? Can there be any form of accountability here for the disturbing things detailed in that report, even they’re not proven to be actual crimes? And does he think House Democrats ought to be pushing toward impeachment?

HOLDER: Well you know I certainly think that we Democrats have been railing and I think legitimately so about Republicans not doing their constitutional duty. And to have appropriate oversight of this president. They've been complicit in what this president has done. And I'm a little concerned now that Democrats seem a little sheepish now about doing that which I think the house is called upon which is its constitutional duty. You've got this report you've got investigations that are underway. I think that there's the need to gather I think more information. And I think that impeachment ought to be on the table. I don't say that right now. I don't think that there ought to be a vote in the House of Representatives as to whether or not the president should be impeached. But I certainly think that investigations should occur. The information from the special counsel should be examined. And if that leads to impeachment that should occur. The notion that we don't do this because we'll have potentially a negative political consequence from my perspective is unacceptable

KAI: because of the accountability

HOLDER: because we can't. I mean that's not the way in which our system of government is set up. If the OLC opinion is that we cannot indict a president and then we're gonna say well we can't impeach this president because of political considerations that then makes this president as we always say and which we always abhor puts him above the law. And that simply is inconsistent with the way in which our democracy is supposed to function.

KAI: You are a person who has spent all of your adult life working inside a system trying to make it work for the purpose of justice trying to make create social justice through law and order through the federal government. And here we arrive at a moment where every apparatus of the federal government seems seems as though it's it's aligned against law and order and against justice. do we take from that that That we cannot count on the institutions themselves? What I'm groping around for for how to answer that ask this question. But many of us myself included have a lot of skepticism about the idea that the institutions that that you have spent your life building can protect us from the evils of our society. Why should we have faith in these institutions.

HOLDER: Well I'm not sure that our institutions have failed. Which I think it was kind of what you're going at and I don't think that our institutions have necessarily failed us. You know we're still in the middle. This is a movie that's going on. It's a three act play on. We're somewhere in the middle of this. This thing you know it'll be interesting to see how how how it plays out. You know the courts I think have done a good job. They've held and there've been some rulings. This administration in court has an abysmal batting average. I mean you know they go in there and get their heads handed to them like on almost a daily basis.

So I think the courts have held the career people in in critical positions I think have done have done a good job. And you know keeping the system on track. There's no question that the system and our institutions are being tested now. There's no question about that. And unless they are appropriately supported by people in leadership positions now. You know the systems could I don’t know if crack is the right word but they could be irreparably harmed. And that's why I think the determinations that have been made over the course of these next few months are really so you know so very very critical. We cannot have a situation where at the end of the day a president of the United States is allowed to do the things especially if you look at that obstruction component of the Mueller report and not be held accountable. That simply is unacceptable. Now exactly what form that accountability will take be it impeachment and ultimately you know a prosecution something else. I mean that has to that has to occur. Something has to that has to happen. We can't simply have that report look at it and say Well that sets that that was wrong that was that was terrible.And that be the end.

KAI: And let's move on.

HOLDER: Yeah

KAI: let's talk about the state of our democracy that's something that you are working on feverishly now. You have announced that you are not going to run for president.

HOLDER: Well it depends on how this goes.

KAI: I mean would you like to announce something now would you be happy to make some room for that.

HOLDER: That wasn't that I was not a great joke. No.

KAI:  You be sure to call me should you change your mind and need a place to talk about that.

HOLDER: Sure

KAI: So you have instead taken on leadership of the National Democratic Redistricting Commission where you are trying to do the work of of of fixing are our gerrymandered congressional districts.

HOLDER: right.

KAI: Can we start in 2010. 2010 I think it's an election that most people that we don't think enough about today is

HOLDER: the shellacking as President Obama described it

KAI: As President Obama described it it was a wave election for the Republican Party but not just in Congress at the state level as well. What happened as a consequence of that election?

HOLDER: Well it was that you know it was it was a consequential election. You knew that at the time. But now looking back eight years now, ten, whatever it is. I mean you realize how consequential that election was because redistricting occurred in 2011 and the people who did the redistricting were the people who were elected in 2010 and you had Republicans taking over state legislatures all around the country and getting trifectas which has meant the governor and in both houses of the state legislatures and they used that power to gerrymander in a way that Princeton did a study that the worst gerrymandering of the past half century. Now we've been we've had gerrymandering in this country I guess almost since its beginnings. That doesn't mean we shouldn't try to fix it try to eliminate it but what the Republicans did in 2011 was truly truly breathtaking. And we've had to live with what they did in that partisan gerrymandering effort over the course of this this last decade. And it was all fueled by the 2010 election

KAI: It redrew 213 congressional districts. And you know some stats which you wrote about in the Harvard Law Review I believe it was 2012 one point four million of the more votes for Democrats for Congress Republicans went to 33 street seat majority 2016 the majority of votes for Democrats in Congress Republicans were in a 33 seat majority. And so --

HOLDER: and it goes on. I mean you know you look at 2018 Democrats had what was a wave election. If you statisticians kind of look and look at the gerrymandered districts and say that Democrats should have gotten an additional 16 seats if the districts were drawn in a fair way. And Democrats should have flipped seven state House chambers but were unable to do so because of the way in which the lines were drawn in in 2011. 

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KAI: I asked him how to fix it. The Supreme Court will rule this term on two cases that could put new restrictions on partisan gerrymandering... But Holder is now leading the National Democratic Redistricting Committee -- which is running point for the Democrats on getting ready for 2021, when the next maps are gonna be drawn. He laid out the strategy for that fight.

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KAI:So we're going to bring lawsuits where we can on the basis of the Voting Rights Act if there is racial gerrymandering but racial and partisan gerrymandering fight those we support reform measures.

HOLDER: We support efforts to have let's take this out of the hands of politicians all together. That's how these independents have independent commissions actually draw the lines. They do it in Arizona, they do it in California, quite successfully. We supported five states who had it on the ballot in 2018. And every time that people get the opportunity to vote for independent commissions they vote for them overwhelmingly. So Missouri Utah Ohio Michigan Colorado all of those states voted for.

KAI: And so that's a universal fix to you? if every state with an independent commission appointed by whoever state law appoints instead of having the legislature.

HOLDER: I actually think that's the best way. I think that's actually the best way to do it. So we file lawsuits we support reform independent commissions and then we also support direct electoral support. We'll support candidates for those critical redistricting positions who say that they will do redistricting in 2021 in a fair way. That means governors, sometimes it means secretaries of state. I was in Texas campaigning in 2018 when we picked up 12 House seats, state House seats. We need nine more to take control of the Texas state House of Representatives. And if you do that that would prevent the kind of excesses that you saw in 2011 in Texas.

KAI: I often think about, when you take a step back from the immediate questions one of the ways we got into this in the first place is of course the legacy of Jim Crow, and there's this tension that I'd love to hear you tease out for me between the idea that in order to have black political power and a number of places we need to have densely black political districts which is a form of that gerrymandering versus in order to not have these skewed districts in the first place we need to spread people out such that they such that everybody has to represent a full slice of the of the of the electorate. Setting aside the explicit partisan piece of  it, that those seems like they're in conflict with each other when we think about gerrymandering and drawing districts.

HOLDER: And yeah I don't think there's quite the tension that you talk about. I mean if you draw these districts in a fair way so that they are relatively compact that they are contiguous. You know that they have bizarre shapes you know so that they are contiguous. Do they respect natural boundaries and that they also take into consideration communities of interest and you take those four factors to draw up district lines. You can come up with lines that are both fair and also or done in a way that's consistent with the Voting Rights Act. So that communities of color will have the ability to express themselves in ways that gerrymandering as done by the Republicans in 2011 does not allow, where they took advantage of that which the Voting Rights Act says. You've got to have communities of color give them the ability to express themselves politically and so they pack, pack, you know African-Americans Hispanics into districts which decreases ultimately. So yes you get a Black legislator congressman. But the reality is that you have these other districts that could be impacted if you do the lines in a more fair way could have a greater sensitivity to those the interests of African-Americans of other people of color. They've done this very cynically and you know appoint themselves out as protectors of the Voting Rights Act. I mean you know one of the arguments they're making now with regard to the census which I guess we're gonna talk about is that Wilbur Ross said that Jeff Sessions told him that he needed to have the citizenship question on the census form so that Jeff Sessions could be more effective at enforcing the Voting Rights Act.

Now if you want to understand hypocrisy there it is. I mean that is the def - whatever the definition is in Merriam Webster now of hypocrisy that needs to replace it.

He’s talking here about another Supreme Court case this term, in which they’ll decide whether the Trump administration can ask people about citizenship while taking the decennial Census. He sees this case as very much tied to the one they’re considering on partisan gerrymandering… Like many people, Holder thinks the Trump administration’s real goal is to scare Latinos away from filling out the Census in the first place, and thereby further game the redistricting process.

This led us into a conversation about the Supreme Court overall -- and the case that may well be Eric Holder’s most famous defeat. That’s after the break.

MIDROLL

KAI: Ok, so Eric Holder and I were talking about the Supreme Court -- that’s kind of a fun thing to say -- and we landed on one of the most infamous rulings of the 21st century.

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KAI: You know one of the big moments in history and I can imagine in your life was in 2013 when the Roberts Court ruled in Shelby County vs. Eric Holder Jr

HOLDER: -- we just call that the Shelby County case. that's like you don't want your name on the Dred Scott case. You know I mean like so let's just call it that we call Dred Scott. Let's just call it Shelby. Forget the v. Holder thing.

KAI: Well so on Shelby

HOLDER: there we go.

KAI: where they essentially defanged the enforcement provisions of the Voting Rights Act.

HOLDER: They gutted the Voting Rights Act. They gutted it.

KAI: Do you do you remember when you got that did you see it coming?

HOLDER: You know it's interesting Don Verrilli was the solicitor general and I'm not naive but I thought given all that Congress had done the hearings that they had held the margins by which the Voting Rights Act had been renewed. The fact that it had been signed by a Republican president and in fact all of the renewals of the Voting Rights Act had been signed by Republican presidents. It just didn't seem me that there was a basis to do what the court ultimately did. That is as ideological a decision as I think we have we've ever seen. You know you have what you could potentially a real suite of cases here,  Citizens United are going to let you know all kinds of dark money, Shelby County we're going to allow the gutting of the Voting Rights Act and that then spawns all these voter suppression measures. And then if you don't knock down this partisan gerrymandering in those three cases you would really have I think altered the arc of our of our democracy. And my hope would be that you know the chief justice who is said to be an institutionalist would understand the impact of those those three cases. But I thought in the Shelby County case that Justice Ginsburg clearly had it right. You know she said if you're standing in a rainstorm with an umbrella over your head and you're not getting wet. That doesn't mean you take down the umbrella you know. And that's exactly what happened. We took down the umbrella and we got rained on with all of these voter suppression measures

KAI: and has it been as bad as you expected or have you been like well OK we're we're hanging in there.

HOLDER: No it's been bad. It's been extremely, extremely bad. And I think the courts have been the lower courts have certainly you know been I think amenable to the kinds of cases that have been brought. We were not left with no tools there’s such Section 2 cases that could be brought, but they're more difficult to bring in. The Section 5, the genius of Section 5 was that in those covered states before a jurisdiction could change the location of polling places or change the way in which candidates, just whatever he had to get them pre cleared and so you could stop things before they happen. Section 2 you have you can only bring cases after the vote has occurred. And that makes it that there are harder cases to prove and the negative impact is already. Have you tried to undo something as opposed to preventing something with Section 5.

KAI: But think so thinking about this suite of cases that you laid out. I mean there's the Voting Rights Act and now we have Citizens United and now we have this gerrymandering decision coming. One, are you hopeful on the gerrymandering decision that they will in fact act and if they don't where does that leave us with. With a court that's going to be the way it is for some time?

HOLDER: Yeah I can't say that I'm optimistic about the gerrymandering case. I had some degree ,a greater degree of optimism, when Justice Kennedy was there who at least had indicated that you know you can go too far with partisan gerrymandering but I'm not sure where, How do you draw the line? That is essentially what he said. Justice Kavanaugh said some positive things during the oral arguments of the partisan gerrymandering, oral argument and so we'll see you know what he does. I think the other four justices were not likely to get what so it may rest on Kavanaugh. I'm not sure that you know again he said things in oral argument that

KAI: that led people to believe that he was considering

HOLDER: give you gives you some degree of hope. But here's the deal. So my hope is that we win. My hope also is that if we don't win they will do the least damage possible because one of the things that we have been doing now is to understand all right. We're not likely to get a federal court the United States Supreme Court determination that you can go too far when it comes to partisan gerrymandering so let's look at the state constitutions and let's look at the state Supreme Court's case was brought in Pennsylvania, using the Pennsylvania State Constitution, Pennsylvania's Supreme Court said that partisan gerrymandering there was inappropriate and the congressional delegation went from 13 Republicans, 5 Democrats, to nine nine as result of the changes that were made there and which is pretty much a 50 50 state. We have now filed a lawsuit in North Carolina, again using the North Carolina state constitution and that will go before a North Carolina Supreme Court

KAI: and this court overall? We joke that we're waiting for Judge Kavanaugh, on this opinion,  we're looking at a court where Roberts and Kavanaugh are essentially the swing votes.

HOLDER: Hm. I mean that shows you how far right the court you know has moved. I mean you know the swing vote was Sandra Day O'Connor, then it was Anthony Kennedy, and you know now it's I guess Chief Justice Roberts. You know the swing keeps going further and further. You know to the right.

KAI: I mean I guess this brings me back to what I was fishing for earlier around institutions and where we turn for help. I mean I feel like there is a amongst reform minded people liberals progressives however they identify there is there's this look to the courts, there's this look to law to save us. And and we're now looking at a Supreme Court that is not reform minded. Thinking of somebody who as a prosecutor is as somebody who has sat inside these institutions what do we where do we turn? Has that been folly that we've put so much weight on the courts in the first place?

HOLDER: I don’t think it's been folly. But I don't think that we have understood the history of the Supreme Court in a way that we should have the Supreme Court has never. You know there's the Earl Warren period and we think about that as defining the history that is defining what the Supreme Court has always been. And the Supreme Court has always been a pretty conservative institution, maybe but for those years but for the Warren years. So yeah I think we should do what we can in the courts but, at base, at base we have to win elections. We have to win elections. Progressives Democrats need to win elections. And that's why I think this whole gerrymandering effort is so vitally important because the reality is if conservatives are in control of the courts, and they certainly are in control of the Supreme Court. The way to get control and push a progressive agenda is to control the state legislatures which ultimately draw the lines for the House of the United States House of Representatives, win Senate seats. The court's going to have the ability to make decisions on things other than legislation. But so much of what bedevils this nation from my perspective comes from you know what these legislatures are doing. These these heartbeat bills now you know that are being passed that are really attempts to just say that abortion should be illegal. That's the kind of thing where if you had a more representative state legislature you would have to deal with that statute. That would not be a question that would ultimately result have to be resolved by the by the Supreme Court. So we've got to get out there and do the blocking and tackling the hard stuff of winning elections but also winning elections not just the presidency. You know progressives Democrats we get all excited about you know who's running for president and the only Democrat who's not you know. And that’s

KAI: Again, this is an opportunity for you to.

HOLDER: I'm not feeling this here and so. And that's true. That's true.  You know that's this election this presidential election coming up is an existential one existential. We have to pick somebody who is going to win. You know we have to win that election but, we can't do that at the expense of taking attention away from these state and local races, where on a day to day basis, people's lives are really more directly impacted if you care about you know reproductive rights. If you care about expanding Medicaid and doing the appropriate thing with regard to health care. If you care about climate if you care about voter suppression criminal justice reform almost all of that stuff is decided at the at the state level. And we as progressive Democrats have let the Republicans kind of have their way there. And that is one of the things at the NDRC is bound and determined to stop.

The 2010 elections -- and, the very ugly political combat that followed, for the rest of the Obama presidency -- they seem to have shaped Eric Holder’s own political perspective. There’s his intense focus on organizing for elections at the state level. And then there’s -- well, there’s this joke he made, just before the 2018 elections -- When they go low...we kick em

HOLDER: I got a lot of grief when I said you know when they go low we kick them. You know. Maybe not. All right. So but you know what I was trying to say there is that we don't do anything inappropriate. We certainly follow the law follow the rules the norms but we got to be tough. You know this is not as I was saying before we have to win this election. You know and I don't want to come out of this next election thinking well you know we made a good fight and you know we followed principles and that was great. And Trump is still there. No we have to win. We have to beat him.

KAI: Ultimately it's a question of power in the end.

HOLDER: Right, and progressives need to be comfortable with acquiring power and using power. You know? we've got to get to the point where that's an OK thing. You know? it's we're going to we're going to we're going to fight fight to get power. We're going to use power in appropriate ways. And if we're not comfortable with both the acquisition of it and the use of it you know we're forever going to be bemoaning our fate. It's that's got to change. This has simply got to change.

HOLDER: We've talked a lot about the state of this country the state of this democracy. One of the silver linings in the Trump cloud is that it has awakened people to the notion of their civic responsibility and what I would urge all of you to do is to not only come to events like this and hopefully this has been something that's been meaningful that you have enjoyed and maybe even lit a fire under you. But to get out there and to fight for this democracy, to fight for this country, to understand that if we're going to have a better America it's going to depend on what each and every one of you do. And every week look back at the prior we can say ask yourself what have I done what have I done to make this country better, more just, more fair. We have that capacity within ourselves. We have that ability. Dr. King said that the arc of the moral universe is long and it bends towards justice but that only happens when people like you put their hands on it and pull it towards justice, and so I would urge you all find the way to move that arc towards justice. Let's go out and change the world.

[applause]

CREDITS

The Stakes is production of WNYC Studios and the newsroom of WNYC. A very special thanks to Melissa Eagan and our launch event host, The Jerome L. Greene Performance Space at New York Public Radio.

This episode was produced by Jessica Miller. 

It was edited by Karen Frillmann, who is also our executive producer. Cayce Means is our technical director. Jim Schachter is vice president for news at WNYC. The Stakes team also includes. Amanda Aronczyk, Karen Frillmann, Christopher Johnson, Jonna McKone, Cayce Means, Jessica Miller, Kaari Pitkin, (and) Christopher Werth, and Veralyn Williams…

You can join the team too, by signing up for our newsletter at TheStakesPodcast.org. You get bonus reporting and musings from me and, most importantly, a chance to help us find stories. You can also hit me up on twitter at kai_wright.

Thanks for listening.