In this week's episode...
- VP of news and programming Shani Hilton talks to legal reporters Zoe Tillman and Chris Geidner about Judge Brett Kavanaugh’s confirmation hearings this week.
- Science editors Virginia Hughes and Dan Vergano talk about Europe's interestingly high rate of anti-vaxxers.
- Jane Lytvynenko joins us again to quiz host Julia Furlan on the week's fake news.
We’re everywhere you want us to be, including right here as well as Apple Podcasts, Google Play, Stitcher, or Spotify!
The Lede - 1:20
SHANI HILTON: We are recording this on Thursday evening. Give me a 30-second description of who Brett Kavanaugh is.
ZOE TILLMAN: Brett Kavanaugh is currently a judge on the US court of appeals for the DC circuit, which is often referred to as the second highest court in the land, because it deals with a lot of cases out of official government Washington, and a lot of Judges from that court go up to the Supreme Court. He's been there for more than a decade. Before that, he was a senior official in the Bush Administration serving in the White House. Just a long time rising conservative star, who's been on everyone's Supreme Court shortlist, as long as he's been a judge.
SH: And so what did we see this week overall?
CHRIS GEIDNER: I mean what we saw this week overall is both the reality that the Democrats don't have the votes to stop the nomination, unless they can convince multiple Republicans to break ranks, which doesn't appear to be a possibility, and then in the alternative, an attempt to sort of paint him in his as an extremist, and to paint the process as unfair so that Democrats can hopefully politically use this for the upcoming elections, and just sort of change the perception at least along their base about the importance of the Courts.
SH: I'm going to get back to that with you in a minute Chris. But you know, I think one feature of the week has been a really high level of civil disobedience and I have to ask. because you guys were in the room. What was it like being in the room with you know, protesters being thrown out, you know at regular intervals.
ZT: There were sort of constant a constant stream of disruptions throughout the hearings this week, this past week.
ZT: So it was sort of some of it was specific to Kavanaugh, and some of it was just more generally protesting the Trump Administration, and Kavanaugh as a manifestation of that. So there were a couple references to it, some Republicans lamented the disruptions, Democrats sort of heralded it as a part of the democratic process, but it was certainly a constant feature throughout the week.
SH: What was the vibe, were people receptive, were they stunned, were they quiet, were they just waiting for the police to grab the protesters and toss them out.
GD: I mean it was it was aggressive. By the time we got to the second day, especially the second afternoon, I mean there were 61 people arrested for demonstrations in the room, the first day of the hearing. So by the second day, they basically had almost a dozen I'd say Capitol Police around the hearing room, ready to literally grab them by their full body, and pull them right out the door. The door is right on the side, and they were just ready to pull them right out the door. There were I think three from Wednesday different people with limited mobility, had their wheelchairs literally pulled, pulling them out behind them. It was it was quite a scene.
SH: That's that's incredibly vivid. So with that as the backdrop, and as you put earlier, you know Democrats don't have the votes to block it and they are seem unlikely to get Republican colleagues on board of blocking the confirmation. What is their strategy for these hearings?
ZT: I think the strategy was to call attention to how some of the key issues that have come up within the Trump Administration, how they can be addressed within the context of the Supreme Court. So it was a chance for Democrats to highlight their concerns about Trump's overreach of power, his abandonment of the rule of law, you know, raising that in the context of will Kavanaugh stand up to the president if a case comes before The Supreme Court where Trump is being accused of overstepping his bounds, or the administration is being accused of going beyond the law. All these issues that have come up in the context of the administration. I think this was a chance for Democrats to bring them up again, and talk about how the courts also play a role in this. And it was a chance to just protest the Trump Administration. It was a chance to show their bona fides, as members of the resistance and opponents to the administration and whatever they're going to do. Even if they can't actually stop judge Kavanaugh, from being confirmed to the Supreme Court.
SH: Yeah. Our DC bureau chief Kate Nocera said that this week we're seeing a lot of people running for president right from the dias. And what you saw were people like Kamala Harris and Cory Booker, Booker in particular, talking about the way that the documents were released and you know kind of doing a little bit of grandstanding but using the norms as a way of protesting the process.
ZT: Right so on the second day or the third day of the hearing, the second day of Kavanaugh's questioning Senator Booker during the introduction, basically said there are all of these documents that have been designated as confidential. What's me which means they can't be released to the public. They can't be brought up in the hearings and he said. There was some back-and-forth later in the day, about whether Senator Booker was actually violating any rules and it's gotten a bit messy about that. But I think there was this sense of senators using this very highly publicized hearing, to make themselves known as outspoken members of the opposition to the Trump Administration, who are willing to do more than just talk. This was an instance of the senator saying I'm willing to put my career on the line to stand up for what I believe is right.
SH: The most frequently talked about issue this week, was also the one that people started bringing up immediately after Justice Kennedy retired, which is abortion. Roe v. Wade. And Dems have completely taken the stance that Kavanaugh will be a part of a process of overturning Roe v. Wade, and that he is against women's rights, and and they've clearly staked out that claim. How did that play out over the course of the last few days.
ZT: Basically what Judge Kavanaugh said and actually I should start by saying that, you know Judge Kavanaugh has not had a chance to rule on a major abortion case or really any abortion case in I believe 12 years on the DC circuit. Kavanaugh has had an opportunity to rule in one case that related to abortion. Although it wasn't squarely about Roe versus Wade and the overarching right to an abortion. This involved a pregnant undocumented teenager who was in US custody. She was pregnant. She wanted an abortion. The administration was blocking her from getting that abortion, a lower court judge ruled in the teen’s favor, and when it went up on appeal the DC circuit ended up ruling in favor of the teen. But Judge Kavanaugh wrote a dissent saying that he would have given the administration some more time to try to find a sponsor for the teen, so effectively delaying the time when she could get an abortion, and that has been held up as an example of proof that Kavanaugh would be the deciding vote to take a stab at abortion rights, or try to chip away at abortion rights if he were confirmed. But he's never directly said how he feels about abortion. So at the hearing this week, there were a lot of questions about it and what he basically said, and this is an answer that we've heard from many judicial nominees, is basically saying it's settled law.
TAPE OF BRETT KAVANAUGH: As a judge it is an important precedent of the Supreme Court by it. I mean Roe v. Wade and Planned Parenthood v. Casey. Then reaffirm many times Casey is precedent on precedent.
ZT: But I think a question that he wouldn't answer, and you know, there was no expectation. It's not surprising he wouldn't answer it is, what would happen if abortion cases came before you in the future, that's just not a question that he or any nominees is going to answer in this context.
So we just don't know ultimately what will happen if he's confirmed.
SH: Another area obviously and one that prompted a really pointed but sort of murky exchange was between Senator Kamala Harris and Judge Kavanaugh in which she asked him if he ever discussed Robert Mueller and the Mueller investigation with members of Donald Trump's personal Law Firm. What was that?
CG: Well, we don't really know, it was it was a really weird moment. It was well past the 12-hour mark of the hearing, and Senator Harris was one of the last two people to go, and she asked her really general question about whether he had spoken to anybody about Mueller’s investigation. He eventually said that he had spoken with other judges about it, but that was all that he knew of, and then she asked his very pointed question. That was like,
TAPE OF KAMALA HARRIS: Have you discussed Mueller or his investigation with anyone at Kasowitz Benson and Torres, the law firm founded by Mark Kasowitz, President Trump's personal lawyer.
CG: It wasn't really clear if he was just genuinely confused by the question, if he didn't understand if I mean, I think he felt that it was a trap question. He sort of was like well.
SH: I thought that it was a trap question.
CG: Well, yeah, I mean he was asking like do you have a person in mind and she was like, I don't know, do you and it was this back and forth that was very weird and I think I mean from my perspective knowing her as a former prosecutor, I presumed that she had the answer if she was posing the question. I expected that she was going to tell us that like, there was this member of the firm that he in February, had talked with about Mueller’s investigation and questioned his authority or something, but that's not where it went. And it just sort of went back and forth. I mean the problem was, while she didn't have any evidence to sort of say where this question came from. He also gave a really bad answer, like he wouldn't give an answer, like he didn't say not that I know of. Republican Senator Orrin Hatch sort of came back and basically gave him an opportunity to clean up the answer, and he gave an attempt at that, and basically said I don't remember having any conversation with anybody from that firm about it, I haven't had any inappropriate conversations about the Mauler investigation with any lawyer, but it was discomforting, I think to watch that he was getting what should have been a rather simple yes or no question, and he either felt like he was being tricked and wouldn't so wouldn't answer or didn't really know what the answer was. It was it was weird.
SH: But I think it points to the bigger picture of we're still waiting to see what the outcome of Muller's investigation is, and where that all is going, but people have been spending a lot of time speculating about you know, in a worst case scenario what can Trump do to excise himself from I guess an indictment, or from prison or whatever and that's a question that would ultimately I think end up in the Supreme Court's lap.
CG: Well yeah, and I think that the reason why this question I think had a lot of salience to people is that he does have this history of some sort of divergent writings on executive power, and he had he had worked for Ken Starr's investigation as an independent counsel into President Clinton that led to his impeachment. But then after he left that job, he later worked for the Bush White House, and he's basically written two law review articles about this stuff, and talked about it that he's basically sort of changed his view, and said that he thinks that he wasn't writing about what he thought the Constitutional limits were, but he said that he did think that Congress should think about setting some limits on what sort of Investigations can take place of presidents while they're in office, and maybe Congress should pass a law that sort of would defer investigations of a President until after they left office. And so when that comes up and you are nominated to the Supreme Court in the course of this ongoing Muller investigation, it makes particularly Democrats in the minority, really really suspicious about giving a vote to this person who also has refused to say that he would recuse himself from any cases on this matter. That was another question that was asked of him on Wednesday. And so when you put all of that together, it sort of leads Democrats to sort of want to pursue every angle they can to try and nail him down on these questions and any discussions he's had about them.
SH: So, how does this play out then? Like what do you like? What what's going to happen? Tell me the future.
CG: He's gonna join the Supreme Court and he will be the ninth Justice. I mean absence something really really unexpected happening in the absence of some bombshell document that's released over the weekend, the votes aren't there right now for the Democrats to stop it. Unless Susan Collins or Lisa Murkowski or Jeff Flake or Ben Sass, unless they change their mind on this candidate does nominee. He will probably be confirmed by it sounds like the schedule they're looking at would be before the end of the month
SH: I want to talk directly about executive power. There is a real question that there's a real question that senators are poking at the last week about whether or not Judge Kavanaugh believes that a sitting President should be investigated and prosecuted.
CG: Yeah. The thing is that Brett Kavanaugh has some of the most experienced of a lawyer alive today with these issues. He worked for Ken Starr's investigation of President Clinton, when Ken Starr was in independent counsel, which led eventually to his impeachment. He then worked in the White House counsel's office. for George W, Bush, he was there in the a big point of the hearings this week. He was there on September 11th. He was there dealing with the aftermath of September 11th, and then he's been a federal judge an appellate judge on the DC circuit for the past dozen years, dealing with a lot of questions of the role of government and the question while the special counsel is looking into these things is where is going to fall out on this are those views about what Congress should do going to be part of the way that he feels the Constitution itself limits what government can do.
Wait But Why? - 18:19
VIRGINIA HUGHES: 40 percent of people in France are distrustful of vaccines. 25% of people in the Ukraine, which just like blew my mind. Can you talk a little bit about how this movement is different or if it's different in Europe versus the US and you know, where did it come from in either or both places?
DAN VERGANO: It seems to be different in Europe is what the experts are telling us. Of course, it's hard to know exactly where that comes from. If it's been there all along, or if it's something that's sprung up from the Wakefield paper in 1998 and just kind of became widely settled.
VH: Yeah, so tell talk about that wake Wakefield paper. This is Andrew Wakefield in 1998. And why is this important?
DV: This paper comes out in the Lancet and it's just in a few children. It's about a dozen children a suggesting there's a link between Autism in kids and vaccination. Results are you know immediately question but also taken up by people who are just becoming aware of autism as a problem, and sparks this huge row. It turns out that the data was suspect. Let's put it that way and the paper was withdrawn. Wakefield was censured and you know that it's basically seen as bad science.
VH: And they didn't retract it right until years after the fact.
DV: Years after and lawsuits and it is it was a gigantic mess. Yeah.
VH: Yeah, so it's interesting. I knew obviously the, the anti-vaccine movement here in the US really pounced on that paper, and you think of people like Jenny McCarthy and Jim Carrey when they were still together, you know being champions of this now disgraced doctor, but you're saying that at the same time, the same paper was also making waves in Europe.
DV: Right. Well, obviously got huge attention the UK which is where the Lancet’s based, and there's a medical press there that picked up on it. And you saw these sort of anti-vaccine campaigners and voices taking it up at the time, you know, and it's yes supporters there. It wasn't clear how much impacted made throughout the rest of Europe but they have medical reporters too and the problem is, in looking at distrust across the continent, nobody was doing that until around 2015.
VH: Hmm, you mean in terms of like surveys rigorous or?
DV: Yes surveys, it’s rigorous surveys. Yeah, and so we're only now getting a complete picture of opinion across all of Europe in a sort of uniform way where you know in the U.S., we had that, you know going back to 1998. And so the people who did the vaccine confidence project or did the big survey of Europe that we cited in the story that we just did. You know, they said there was, there was a little bit of resistance. They said from public health officials to actually quantifying the idea that they didn't want to know just how much resistance there was, they just wanted you got to do this sort of be the attitude and overpower that there was kind of a feeling of you know, if we don't make a big deal out of this, it won't become a thing.
DV: And perhaps that kind of attitude explains a little bit of people's distrust. It was clearly burgeoning and growing to an even greater extent than is in the U.S. right now.
VH: Mhm. Yeah, I mean the movement here despite the headlines and kind of the way the movement is often portrayed, here, I think is as this may be bigger and more important than it actually is and you know, there's there's lots of stories about wealthy, you know, mostly white people and crunchy Montessori schools are Google Executives like choosing to not vaccinate their kids, but I think what from what I understand the movement here is actually quite diverse and quite small and fringe, you know hits all parts of the political spectrum from people like Alex Jones and you know free-market conservatives telling the government to get out of my business, to you know, the hippie Lefty types who want natural non no big Pharma type stuff. What's your sense of just do we know how big it is here, and how influential it is here in real numbers.
DV: In terms of influence, we can say that the anti-vaccine movement in the US. Is not very influential then we know that because something close to 99% of toddlers in the United States get their shots. So while distrust has been measured at something like 18% of the population, and undoubtedly some part of that is the anti-vaccine movement, they aren't changing laws in a big way. But there are these states where you can ask for sort of personal conscience object — objections or other sorts of things, and they tend to be taken advantage of in clusters in some cities, we've done stories about this. And you see outbreaks of disease, and some of those cities they tie pretty closely.
VH: But still the outbreaks here, you know, the measles outbreak in 2015 was a huge story. It felt like it went on for weeks and weeks and weeks, and ultimately what a hundred and twenty or something cases?
DV: About a hundred twenty cases. There was one measles death that year, but it wasn't related to that outbreak. At the same time in Berlin, there’s 600 cases. And nobody saying anything I mean that's part of the problem in Europe too. Apparently they’ve just been more blase about it. They've got 12,000 in Ukraine this year.
VH: Yeah, and 41,000 across all of Europe so far this year. That's just striking.
DV: Yeah so far. It's just kind of amazing that even though the European health system is regarded as this model of equity and you know, it's a part of the developed world and you have this going on and for but for preventable diseases, you know, what is a preventable disease measles is, it’s incredible.
VH: One thing you mentioned in your story that I wanted to get into a little bit is that the anti-vaccine movement in Europe this what you're talking about deep cultural skepticism of medical authorities seems to be especially prominent among poor and marginalized communities.
DV: Yeah, that that's a little different than the U.S. to me what they described in the reporting is poor communities just being distrustful of vaccination is another thing imposed on them in a way in the U.S. you might not see that kind of resistance in public schools in places like France you have these communities that are you know, ghettoized where the parents might just refuse to get vaccinations. It's also part of this populist movement that's striking across Europe, just like in the US, and you do have politicians in places like Italy pulling back from a law requiring vaccinations in kids, saying like well parents don't have to do it.
VH: I actually was not vaccinated as a child and my parents’ decision, I grew up in rural Michigan. We were not wealthy, and they came from a more sort of like libertarian conservative bent of not wanting the government to tell them what to do, and also just being very confused by the research and not really thinking that it was, if there was any type of risk like why bother when no one has seen the measles or some of these things for forever.
DV: Yeah. That's something you definitely see and that sort of attitude of you know, why should I take the risk? Let other people take it if there is any, is part of the reason you see in resistance in Europe as well I've been told. The whole ideas with vaccinations as you're doing as much for other people is for yourself to try and build up this wall against transmission of the disease, and that's why that's such a dangerous approach to take but it's a free country and then so you see people on all sides of the political spectrum sort of taking that, that tack.
VH: I was thinking about you know, this idea of the other countries affected France Italy and this rising populist movement. Obviously, the U.S. is having its own moment with populism, both on the left and the right and I was wondering if you thought is what's happening in Europe and the kind of scary level of disease outbreak there, is that possible here?
DV: Only locally. I mean you see these weird outbreaks in communities that sort of have slipped under the radar, for whatever reason. The community in Minneapolis, I think it was a lot of Somali immigrants, there have been cases among the Amish. So, you know in the Disney Orlando case was unvaccinated kids. So you might see these sort of hot spots, of people who've communities essentially that have resisted it, but it hasn't become a thing. U.S. let, you know president Trump flirted with it at the beginning of his term meeting with anti-vaxxers, and got a lot of pushback and he walked away from that. He didn't put anti-vaxxers on a health council like he was threatening to do, or seem to be threatening to do and that seemed to be almost a wire he didn't want to touch.
DV: If you could see a populist like getting votes doing that, if there was some Midwestern politician, who was becoming popular by getting government off your back that way, and that's somehow getting him into office. Then you'd really have to worry, but in certain sense the immune system the United States has gotten pretty strong about antivax although the you know in our current era, who can say what's going to happen next.
VH: Nobody knows anything, right. Who knows.
DV: No one knows anything about who knows. But so far it does look like a locality kind of thing rather than a Statewide or national kind of possibility of an outbreak.
VH: Well, I despite not being vaccinated myself when I was a kid, I did get my daughter vaccinated on schedule. Dan, how about you, are your kids up on their shots?
DV: You bet your ass. Yeah, I mean none of my kids gets.
Fake News You Can Use - 28:48
JULIA FURLAN: Jane Lytvynenko, you are here as always a challenger to the fight against fake news.
JANE LYTVYNENKO: I feel like I should have an elite array of Pokemon with me.
JF: Ooh, yes, I feel like okay. Let's do this. This is Poke fake news. I'm sorry about that. Jane Lytvynenko. You are the Ash throwing the Poke fake news my way. What have you got for us this week?
JL: I hope I hope you catch em all, I’m sorry. All right, three really fun questions for you this week. Uh let's start off with the first one a woman survived for 10 hours in the sea after falling from a cruise ship. Is that real or fake?
JF: I'm going to say that that is real, mainly because I can't see how it would be politicized into a fake thing. Like I don't see how this like, one story could be nefariously promoted to secretly do something bad. So I'm going to say it's real.
JL: So you're correct.
JL: She fell off a cruise ship off the coast of Croatia. She was headed for Venice and uh she was rescued. She's fine now. There's a picture of her on Facebook drinking martinis. So, you know, she's doing well, but it is real and uh, I don't know for me anytime I see a story with a really like, grabby, can you believe this happened to this person headline. I always do a double-take. I'm like, can I believe it? I don't know.
JF: Yeah, I mean, I feel like it's pretty believable. I feel like maybe one person falls off a cruise ship every year at least.
JL: It's true, it's true, especially if it's like a booze cruise.
JF: Yeah. I mean aren't all cruises booze cruises?
JF: Okay, so I'm one for one.
JL: You’re one for one. Well done.
JL: All right. Here's the next one. Dozens of men in New York showed up to a fake Tinder date. Is that real or fake?
JF: Ooh I really have no idea about this one. Dozens of men in New York showed up to a fake Tinder date. You know, I'm going to go with my gut here. I think it's real because it seems weird. I don't know, I'm gonna say it's real. We're playing we're playing fast and loose with the pokeballs today. I'm sorry. I don't know anything about Pokemon.
JL: Yeah, there was a lot of Pokéballs in New York City in one place uh.
JF: Oh no. Oh no. How dare you.
JL: I’m so sorry.
JF: Yes, you should be sorry.
JL: Yeah, this is the real. Congratulations you’re two for two.
JF: Oh my gosh. Oh my gosh, please explain though. I don't understand anything about it.
JL: All right, so dozens of dudes showed up to a Tinder date with this lady named Natasha who basically message them to say hey, my friend is DJing. Do you want to come hang out get a drink? Winkie face. They all showed up. It was a sausage fest to quote one of the attendees.
JL: And it was this hilarious incident until the Gothamist who first reported this story found out that it was actually a viral video maker who got them all there in the first place.
JF: Oh, no, this is this seems extremely early 2000.
JL: Yeah, right, but also what a brilliant idea like, I think this is the only good use of Tinder.
JF: Is to make viral videos.
JL: To dupe men. So in the immortal words of Madeleine Holden dick is abundant and low value.
JL: I'm so sorry to disappoint you but this is actually not all the penis news that I have for you today.
JF: Oh God.
JL: Are you ready for the last question?
JF: Um sure why not. I'm never quite ready for you Jane.
JL: Alright, so this is a little bit visual because it's been posted on a website that has a Fox News logo on it. And it's the Fox News Alert and the headline says Bloomington Police discover over 200 penises during raid at funeral employees home. Is that real or fake?
JF: Sorry, I'm a little bit stunned. Police in Iowa discovered dicks in somebody's Funeral Home thing, right?
JL: Yeah, 200 penises during a raid at a funeral employee’s home.
JF: Oh God. I have so many questions, but I think what I'm here to do is actually answer the only one which is this real or fake. I'm going to use a piece of Jane Lytvynenko advice here, which is that funeral parlor news is one of the factoids that makes fake news spread. It’s it feels like a commonality in a lot of fake news. And so I'm going to say that this has the trappings of fake news. Aside from the fact that it's completely bazonga anyway.
JL: Congratulations, it’s fake.
JF: Please explain.
JL: Yeah, Julia. You're exactly right. To make a play on this fake news. Here's a tip.
JF: Oh no.
JL: Don't believe anything you read about funeral homes. Funeral home news is almost always fake news. I've never read a funeral home headline that was not fake news.
JF: Jane thank you very much. I just want to establish that I have in fact caught them all. Okay Jane. Thank you very much for all of this learning. I really appreciate you. No, thank you for being willing to learn.
JL: Always. About penises.
JF: Oh my God. Bye Jane.