Transcript of OA 478: Why Biden’s Judicial Picks Are Hardball

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[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 478.  I’m Thomas, that’s Andrew.  How’re you doing, sir?

Andrew:         I am fantastic, Thomas, how are you?

Thomas:         Not as good as you over on the beaches of Cancun with Ted Cruz, I hear.

Andrew:         [Laughs]  No, you know, more of the same, but I am very, very excited about today’s show.

Thomas:         Me too, and you know what I’m also excited about?  Tuesday’s show.  I have been dying for part 2-

Andrew:         [Laughs]  

Thomas:         -of the originalism breakdown.  So, it’s all good, make sure you listen to right now what you’re listening to and also [Laughs]  Tuesday’s-

Andrew:         More of this, yeah.

Thomas:         Let me tell you, Tuesday, normally I’m the time police because weirdly I’m the one who has to edit so [Laughs]  I’m concerned about how long it’s gonna take me to edit, but you know, this was a really good topic so Tuesday’s show, it’s a long one.  It’s going a little extra.  You’re gonna get all that you bargained for in terms of the originalism stuff on Tuesday.  Let’s see, other announcements.  Hey, happy Trans Day of Visibility yesterday, this is our first recording after that so it’s our first opportunity to say happy Trans Day of Visibility to all our Trans listeners and friends and family.

Andrew:         Yeah, and a couple of things in connection with that.  First, again, in terms of the way in which the world is different, we had a Department of Defense and a Secretary of Defense in Lloyd Austin that released a press release celebrating the Trans day of Visibility and reminding everyone that pursuant to the day 1 executive order by the incoming President, the Secretary of Defense has now repealed all of the regulations from the Trump era that were designed to keep Trans service members out of military service.  (Quote) “To that end I am pleased to announce we have updated departmental policy governing the open service of Transgender individuals in the military.  This updated policy reinforces our previous decision to allow for the recruitment, retention, and care of all qualified Transgender individuals.  It allows for a short implementation period for the military departments and services to update their policies.”  That’s awfully nice to be back on the right foot again.

Thomas:         That’s a lot different than what I remember from the previous administration, Andrew.

Andrew:         Just a little bit, yeah.  I would be remiss if I did not point out you have just released, along with Dr. Lindsey Osterman, a terrific two part SIO debunking the end of gender.  Tell the listeners a little bit about that.

Thomas:         Oh my gosh, well thank you for mentioning it.  Yeah, if you are somebody who still sees Richard Dawkins Tweets occasionally, he tweeted out this book that … you know, I didn’t know what it was, I don’t think Lindsey knew what it was.  It was just like “wow, just finished The End of Gender by Dr. Debra Soh.  If even half of what it says is true we’ve gotta fight back against the” whatever.  And, as with every Richard Dawkins tweets after the year 2000- I dunno, 12?  It’s like oh god, what fresh hell is this.  We looked into it and it is this incredibly, awful, transphobic book making the rounds, but it does so under the veneer of science, of course.  It’s been an effective bit of propaganda for the Trans folks.  Lindsey, somehow, I don’t know how she did it.  She read the whole thing.  I read an excerpt, I was like “that’s enough for me.”

Andrew:         [Laughs]  

Thomas:         Lindsey read the whole thing and debunked it and has got the actual science.  Spoiler alert, it’s not a good book, it’s a very bad book, but it’s made the rounds-

Andrew:         Is even half of it true?

Thomas:         Well, if you count the harmless premises that one might use to set up a bunch of slippery slope nonsense afterward then I guess, sure, like half of it is true, but it’s the harmless premises half. 

Andrew:         Yeah.

Thomas:         Like if you say “well, if we let gay people get married,” and like, okay, you got that part right. 

Andrew:         [Laughs]  

Thomas:         Then it’s the part after that.

Andrew:         It’s proceeded by an “if,” but yeah.

Thomas:         “Then people are gonna marry their dog!”  You know, it’s like that.  So, half of it is true.

Andrew:         Right, right.

Thomas:         Anyway, it’s very important to get this out there if you see anyone referencing this book because it’s really bad.  She, of course, because there’s a pipeline, the mediocre writer to every conservative show posing as liberal pipeline – Joe Rogan, Dave Rubin, the Weinstein brothers have one or two shows, I don’t even know.  All of those types, Bill Maher.  God, freaking Bill Maher.  There’s just a pipeline.

Andrew:         Ugh, uch.

Thomas:         You know, once you write a book defending certain culturally conservative things, there is a lot of opportunity for you to go and blast it out in the world, including getting retweeted by Richard Dawkins, an account that is like a million and a half followers, I think?  Anyway, that was our day.  [Laughs]  Thanks for the shout out, Andrew.

Andrew:         [Laughs]  

Thomas:         I’m just a little fired up about it, sorry.

Andrew:         You should be.  I am most of the way through part 1 and so far it is excellent.  As you point out, a necessary resource, and kind of a good companion to what we’re doing here-

Thomas:         Ooh.

Andrew:         -with respect to originalism.

Thomas:         Yeah.

Andrew:         Taking something that has a veneer of respectability to it and has a dedicated audience of individuals who go and, you know, sell soundbites in public.  I thought it was great stuff, I’m super happy to plug it, and I can’t wait until we finish recording this show and then I can listen to the rest of it.

Thomas:         Ah, well that’s my podcast, Serious Inquiries Only, find it on the pod thingy.  Your podcast, Cleanup on Aisle 45, covered a lot of the George Floyd stuff.  Let’s see, you had a good interview.  Anything else you want to mention?

Andrew:         You know the typical Aisle 45 playbook by now.  We talked a little bit – I was pretty proud, we had a discussion, because we record that show Monday night, it goes out Wednesday morning, and we had a discussion about news leaking out of the Biden administration regarding the return to science.  Yesterday that kind of went big everywhere, that there are going to be numerous firings over at the EPA, the kind of [Clears Throat] cleanup on aisle 45-

Thomas:         Yup, yeah.

Andrew:         [Laughs]  that we designed the show around.  It’s a little bit of red meat now, but if you like red meat.  I was proud, it was one of those things where we did a lot of behind the scenes research to tell you what everybody knows now.

Thomas:         Well, I’m a vegetarian, do you have any Beyond Meat for me in there?

Andrew:         [Laughs]  

Thomas:         I do like my Beyond Meat, Impossible Burger.

Andrew:         Impossible Burger’s delicious.

Thomas:         Okay.

Andrew:         I will say, it’s a medium rare Impossible Burger from here on out.

Thomas:         And one more quick announcement, Andrew, we are of course due for another Patreon Q&A.

Andrew:         Woo!

Thomas:         It’s amazing how fast a month flies by.  We are doing that on the 6th, that’s this coming Tuesday.  Ooh!  After our originalism volume 2 drops, can’t wait.

Andrew:         Yeah, might be a lot of questions.

Thomas:         Yeah.  As usual, the patrons get the chance to ask the questions on the Patreon thread, check your feed, check your email patrons and you should see that, but everybody else can come watch on YouTube, look for the links on our social media, all that stuff, and it will be Tuesday the 6th at 3 pm Pacific, 6 pm Eastern.  That’ll be a lot of fun, can’t wait!

Andrew:         Always is.

Thomas:         Alright, well, let’s get to our show.

Open Carry in Hawaii (Young v. Hawaii)

[8:59.9] [Segment Intro]

Thomas:         So, Andrew, let’s talk about this 9th Circuit case that ruled there’s no Constitutional right to open carry.  I already am priming to be disappointed by the Supreme Court, but! [Laughs]  What happened here?

Andrew:         You cut to the punchline.  This is definitely headed to the Supreme Court, we will tell you why.  I don’t think it’s a great argument for the Supreme Court if you have honest interlocutors listening at the Supreme Court, which is to say I am not optimistic about the fate of the decision.  Here’s what’s going on, I think this is worth discussing even if the Supreme Court trims this back on public policy, “I like guns,” grounds. 

Here’s what’s happening, because this shows how robust the field remains even after D.C. v. Heller.  Antonin Scalia would have liked to have believed that, you know, Heller  was it, we’re done, gun control is over, give it up, go home liberals, you got owned.  That’s not the case, and this is another in a continuing line of decisions that shows the path forward.  That’s enough stalling, let me tell you about it.

Thomas:         [Laughs]  

Andrew:         In 1988, [Laughs]  Again, you might notice with all of these cases, this dovetails in rather nicely-

Thomas:         Hmm.  Originalism, yeah.

Andrew:         The originalism discussion continues next week, yeah.  You’ve got a law that’s been in place for multiple decades, that everybody knows, that everybody has been able to follow, that covered both open carry and concealed carry of firearms in Hawaii.  It was Hawaii Revised Statutes 134-9, and it said if you want concealed carry you must be (quote) “in an exceptional case when an applicant shows reason to fear injury to their person or property, the Chief of Police may grant a license to an applicant over the age of 21 or to a duly accredited official representative of a foreign national over the age of 21, to carry a pistol or revolver and ammunition therefore concealed on the person within the county where the license is granted.”  That part’s not at issue in this litigation.

The second half of that same subsection (a) said “where the urgency or need has been sufficiently indicated, the respective Chief of Police may grant to an applicant of good moral character who is a citizen, 21 or older, engaged in the protection of life and property-

Thomas:         Hmm.

Andrew:         -and is not otherwise prohibited from owning a firearm, a license to carry unconcealed.”  To open carry in the county.  It also has provisions for a background check.  The license is only good for a year, it’s gotta be renewed, and you have to be qualified to use it safely.  Not what we think of as A, a particularly onerous restriction, or B, a particularly controversial kind of restriction.  There are laws like this everywhere.  Basically it says in order to open carry in Hawaii you’ve gotta have urgency or need, you have to have good character, you have to be engaged in the protection of life or property, and then you have to follow the other stuff.  You have to be 21 and not a felon.

Thomas:         I assume the urgent need is like you’re a Bond villain or something?  Or a henchman, I guess, a Bond henchman.  Is that?

Andrew:         Primarily in Hawaii it was for security contractors.

Thomas:         Yeah, so a Bond henchman.  They’re like yeah, I’m gonna carry the gun and then the guy’s gonna get me, I’m gonna fall off of something tall and go like “Aaaugh!” and sometimes shoot it as you’re falling.  Like “Gaah!”  They’re like yeah, that’s a normal permit.  Do you need 24 hour, 48?  How long do you need this permit?  “Oh, I’ll be dead any minute.” [Laughs]  

Andrew:         [Laughs]  

Thomas:         I’m one of the lesser henchmen, I promise.

Andrew:         [Laughs]  Yeah, right.  My boss has this hate with a blade built into the rim. 

Thomas:         [Laughs]  

Andrew:         Now we enter a guy named George Young who applied for the license in 2011.  He applied twice, and he filled out the application showing his good character, he filled out the application that he was going to use it in the protection of life and property, that he was over the age of 21 and that he wasn’t a convicted felon, wasn’t otherwise prohibited from owning firearms.  But he left out the urgency/need part.  Instead he just wrote in “I’d like to carry a firearm for self-defense.”

Thomas:         Oh, okay.  Denied.

Andrew:         Right, exactly right.  The administration was like “um, go back, read the law and fill this out like a normal person.”  He said, “Mmm?  I’d rather sue you instead.”

Thomas:         Oh jeez.

Andrew:         Okay.  So, challenged that law under the 2nd Amendment and under the Due Process Clause of the 14th Amendment incorporating it out to the States.  The District Court said “get out of here.”  This is a perfectly reasonable interpretation.  By the way, D.C. v. Heller, 2008, McDonald v. Chicago, 2010.  These are all post-Heller cases.  The District Court said “yeah, yeah, yeah, even counting Heller this is not interfering with your 2nd Amendment right, this is about how you can exercise that right, not whether you have it.”

Thomas:         Yeah.

Andrew:         This is whether you can strap it to your belt.  The right to keep and bear arms strapped to your waist in a Wal-Mart, not a part of the Constitution.

Thomas:         That is how Scalia read it, but …

Andrew:         [Laughs]  It is indeed.  He then appealed up to the 9th Circuit and the 9th Circuit panel decision reversed on a 2-1.  Then Hawaii petitioned for en banc review, and that’s the decision that came down a couple of days ago reversing the panel, reinstating the District Court’s affirmance that the law is indeed Constitutional under the 2nd Amendment.  It’s a 7-4 decision, and as you anticipated, the Circuits are split on this question of whether there is a 2nd Amendment right to open carry.

[15:30.8] [Commercial]


Thomas:         Am I – okay, am I wrong or it sounds like it’s a 2nd Amendment right to open carry and not have to fill out a form properly?

Andrew:         Yeah.  [Laughs]  

Thomas:         I mean, right?  Because you have the right to open carry-

Andrew:         Yup.

Thomas:         -assuming you fill out the form properly.  So, is the real case getting turned into you have an absolute right to open carry no questions asked?

Andrew:         That is absolutely correct.

Thomas:         Oh my god.

Andrew:         The reason for that – I was actually gonna skip this part of the discussion, but I love how far we’ve come on Opening Arguments that you’re basically getting at the distinction between what came before the Court, which was a facial challenge to the Constitutionality of the law.  That is, it’s wrong to make me fill out the form and meet certain criteria, versus an “as applied” challenge to the Constitutionality, which says look, it’s supposed to be this kind of minimal do you demonstrate the need?  But in practicality it’s really hard to demonstrate need, etc. etc. etc.  That would be, by the way, a much more compelling case.  If you could demonstrate there was an invidious discrimination in how need was evaluated?  Now, probably wouldn’t apply to this guy, but might apply to certain groups or associations of individuals.  That would be a very, very different case.  Spoiler, it is – if the Supreme Court declines to rule on the merits, if they take up this case because there are a lot of right wing pro-gun activists on the Supreme Court.  If they take up the case and then sort of think better of it and decide to kick it back down, it will likely be on that very point you just raised.  It will be okay, we’re not gonna evaluate this as a fascial challenge that says you have an absolute right to open carry and States can put no restrictions on it.  Which is – that’s the reasoning you have to reach in order to strike down the Hawaii law in this case. They could send it back or otherwise dismiss and just say yup, you should have brought us an “as applied” challenge.  That’s an excellent, excellent question.  I think we got a little more into the nuance than I was intending to, but I love it.  I’m glad we were able to do that.

What I wanted to emphasize is for the fascial challenge, just how restrictive things are at this point.  This en banc 9th Circuit opinion lays it out pretty clearly.  You have a two part test.  You first say “is this law infringing on historical 2nd Amendment rights?”  If it does, the law gets struck down immediately, no matter what.  If it doesn’t then you have to figure out which level of scrutiny applies.

Thomas:         Hmm.

Andrew:         And [Laughs] you will notice, thinking about the traditional breakdown of scrutiny, there are three levels of scrutiny here.  It is not what you think.  It is, and I’ll quote from the decision, “if the regulation amounts to a destruction of the 2nd Amendment right,” whatever the hell that means.  By the way, that was invented out of whole cloth by Antonin Scalia.  “If it amounts to a destruction of your 2nd Amendment rights then it is unconstitutional no matter what the level of scrutiny.”  It gets super-duper strict scrutiny equals no. 

The second is a law that implicates one of the core 2nd Amendment rights and severely burdens that right receives strict scrutiny, which means it’s almost always struck down.  [Laughs]  And every other case just gets intermediate scrutiny.

Thomas:         So, this is the fogged mirror the other way.  If the gun can fog a mirror then …

Andrew:         [Laughs]  That is right!  Intermediate scrutiny is the level of scrutiny that the Supreme Court uses in gender discrimination cases.  Think about what this means, this means the test is the same for any law that restricts your gun ownership, display, whatever, in any way, must meet at minimum the same justification for excluding women from a particular practice.

Thomas:         Right, all because of A-hole Scalia.

Andrew:         That’s where we are.

Thomas:         Basically, right?  Didn’t he create all of this in the 80s?

Andrew:         100% created out of nothing in 2008.

Thomas:         Right, okay.  2008, yeah.

Andrew:         You are thinking about my analysis more than the date of the case.  In the late 80s was when these arguments for the first time started appearing in law review articles.

Thomas:         Oh, gotcha.  Okay.

Andrew:         Prior to the late 80s no one even though this.

Thomas:         Yeah.

Andrew:         This position is such a fringe, I mean obviously other than it’s the inchoate, inviolate, sacred minds of each and every one of our founding fathers, whom, if you could teleport to the 21st century would say “right, I totally intended to protect everything that’s on Lauren Boebert’s bookshelf.”

Thomas:         [Laughs]  I just feel like not enough people know this.  I mean, half of the country listens to our show, but the other half [Laughs]  I know you’ve broken it down for us, but I just don’t know that the average person realizes how much originalists just created this out of nowhere minute ago, and that’s just looked at as how it’s always been even though it’s absolutely not.

Andrew:         Yeah.  That’s right.  This was entirely a creation of the legal intelligentsia in the late 1980s.  By the way, that’s why it’s important that we do the kind of shows like we did last Tuesday and we’re continuing next Tuesday.  Arguments that seem fringe now get normalized just by people talking about it for a long enough period of time.

Thomas:         And populating the Supreme Court with enough of your fundamentalists.  That’ll do it too.

Andrew:         [Laughs]  That will do it.  Yeah, that’s how the Hawaii decision breaks down.  The majority says this is obviously not the kind of right that was implicated as a core 2nd Amendment right, this is about how – this doesn’t restrict any firearm that you can own whatsoever, this is about how you can display it.  It gets that intermediate level of scrutiny, and we think it’s reasonable for a State to decide who gets to walk around looking like Yosemite Sam and who doesn’t.  Four members of the 9th Circuit felt the opposite.

Thomas:         I have to imagine there’s some poor city employee or whatever, government worker, just like “just fill out the form, man.  [Sighs] Come on, Karen Young, apparently.  Just … you don’t have to take me to the Supreme Court, just fill out the rest of the form and then…”

Andrew:         Yup.  We will be following this decision, absolutely.

Biden Playing Judicial Hardball

[24:13.7] [Segment Intro]

Thomas:         Alright Andrew, I’ve got a question for you.  Is Biden (quote) “borrowing a page from The Federalist Society playbook?” (End quote).

Andrew:         [Laughs]  Look, I absolutely love Dahlia Lithwick, I think she is probably the best Supreme Court reporter out there right now.  Amy Howe, Howe on the Court, is also really, really good.  I read everything she writes.  I don’t mind, as you know on this show, a little bit of attention grabbing, but no.

Thomas:         [Laughs]  

Andrew:         I think it’s meant to be cheeky, I understand it, but I will tell you this, what she is calling “borrowing a page from The Federalist Society,” in my view, the reason why it’s worth pushing back is because the truly pernicious things The Federalist Society did are not present here.  I would say this is a little bit of hardball, though.

Thomas:         Yeah.

Andrew:         It’s a little bit of Constitutional hardball.  I want to talk about what it is.  It’s not like she’s 100% out to lunch, but it is worth talking about now that Biden has released his first 11 judicial candidates, and in fact, the first thing that’s worth talking about is those headlines that say “11?”  It’s really 10 and 1. 

Thomas:         Uh-huh.  [Laughs]  

Andrew:         I know, I know.  That is because D.C. is not a State.

Thomas:         Ah.

Andrew:         One of those appointees is to the Superior Court for the District of Columbia.  That is the D.C. Trial Court.  Look, still an important thing, but D.C. really ought to be a State so the President isn’t nominating these kinds of judges in the first place.  The other 10 are typical U.S. Federal Court nominees.

Thomas:         Oh, okay.  One is not a (quote, unquote) “federal judge.”

Andrew:         Exactly right, exactly right.

Thomas:         Okay.

Andrew:         But 10 are.  We’re gonna go through, again, not in a huge amount of detail, I want to give you a summary guide here.  Again, if you are a progressive, and look, I have called out the thing that Joe Biden has done.  His bipartisan judicial commission I thought was terrible and I explained why both on this show and on cleanup.  If you’re a progressive you need to be unambiguously elated about what Joe Biden has done here.  I’m about to tell you why.  The first is he reversed a longstanding Biden/Clinton/forever policy that judicial nominees would first get disclosed to the nonpartisan American Bar Association so that the ABA could vet them in advance.

Thomas:         Huh.

Andrew:         Look, that’s the kind of thing you do if you’re Barrack Obama if you’re interested in good governance.  You’re like look, a lot of people are recommending a lot of people to me, I want to make sure my federal judges meet the gold standard, so I’m gonna tell the ABA in advance, I’m gonna give them time to thoroughly vet these folks and to make sure they meet the kind of criteria that a nonpartisan neutral body would say “who’s qualified to sit on the federal bench?”  Now, the very progressive wing of the Democratic Party criticized Obama for continuing those policies at the time, and here’s their criticism:  It says, “if you are trying to make the bench more diverse and more progressive, putting those nominees before a neutral centrist body is likely to get you two kinds of objections.  Number one, ideological objections; and number two, the things the ABA” (and that Andrew Torrez on this show) “have used as a proxy for qualifications are often things like past experience.”  Well, if there’s a systematic bias against certain minorities being on the bench in the first place, saying “oh, you haven’t previously been on the bench,” or “you’ve only been on the bench for two years-”

Thomas:         Mm-hmm.

Andrew:         -is the kind of thing that is likely to disproportionately hurt otherwise qualified minority candidates.  It is true, by the way, that progressive criticism, in the two Obama terms minority candidates were more likely to receive lower grades than so-called “mainstream,” and by that, that usually meant white candidates.  So Trump did away with the practice.  [Laughs]  Not because Trump’s picks were diverse, but because Trump’s picks were incompetent and having the ABA pre-clear your picks would have done two things.  Number one, it would have slowed down the breakneck process.  Remember that Mitch McConnell stole over a hundred federal judgeships.

Thomas:         I was gonna say, 10 is what we’re talking about today, we’ve got a lot of work to do, right?

Andrew:         Yeah.  We absolutely do.  So, McConnell stole over 100 federal judgeships and handed them to Trump.

Thomas:         [Sighs]

Andrew:         And so you can’t ram through 140-odd judicial nominees if each and every one of them is subject to a lengthy vetting period by the ABA.  And, number two, you can’t appoint your unqualified Justins and Coreys to the Supreme Court if every single one of them is vetted by the ABA, so Trump got rid of it.  Biden, in describing how to fix the mess we’re in, said “yeah, we’re gonna continue that Trump policy.  We are not going to pre-vet from the ABA, we’re not gonna let it slow us down, we’re not going to wait for them to sign off on candidates, particularly on candidates with diverse or atypical backgrounds.”

Thomas:         It really is a “fool me once, shame on you, but we’re not getting fooled twice here.”  I feel like Biden’s actually learning lessons from Obama, which is great.

[30:48.8] [Commercial]


Andrew:         I want to explain a little more deeply what that means.  Now the ABA is going to vet afterwards.  By the way, they’ve already sent an angry crunch wrap to the White House. 

Thomas:         [Laughs]  

Andrew:         They were like “uhhh, we thought better of you Democrats,” and Biden was like, “well?  You know, sorry about that.”  It diminishes the importance of the ABA.  It 100% is more likely to result in those ABA ratings being skewed downwards, and some judges being described as-

Thomas:         Yeah.

Andrew:         -qualified instead of well qualified because they’re upset about it, and it 100% will cost Joe Biden Republican votes.  It will give Republicans cover for your Susan Collins’s to say “well, I’m just really disappointed that we didn’t do a bipartisan process, blah blah blah,” and Joe Biden doesn’t care.  If you’ve been saying “I want him not to care and I want him to play more hardball,” this was hardball.  Second thing, this is being covered and I want to cover it in a little bit of detail because I want to help you ward off the arguments from Uncle Frank here.  These are picks that are undertaken with diversity in mind.  Of these first 10 federal picks, there is not a white dude among them.

Thomas:         Wow!

Andrew:         Yup.  No white men.  Two white women, 6 other women of color, and two men with diverse backgrounds.  This is an area where [Laughing] white male liberals like you and me, sometimes there’s a little bit of that burr in the back of, like, well, you know, I would want a good qual- I need you to understand this.  Right now the federal bench is terribly, terribly non diverse.

Thomas:         Yeah.

Andrew:         Society is bad, the law is bad, and the federal bench is worse than all of that.  It really matters in a couple of important ways.  The first and the biggest one we’ve talked about on this show a lot, but it is the lived experience.  I think back to a story that we played for laughs, but there’s a guy rotting in jail because of this, and that was the Louisiana case of Warren Demesme.  He’s the guy who said “yo, man I didn’t do any of this.”

Thomas:         Oh yeah.

Andrew:         “And if you think I did you better give me a lawyer, dog.”  The Louisiana Supreme Court is 6 old white dudes and one woman of color, and that Court voted 6-1 to deny cert in that case, and one of the old white dudes wrote a concurrence of, like, “I don’t understand, he requested a lawyer dog and you have no Constitutional right to a lawyer dog.”

Thomas:         By the way, side note, maybe you should! 

Andrew:         [Laughs]  

Thomas:         Maybe you should have a Constitutional right to a lawyer dog, but that’s a topic for another show.  I keep asking Andrew to do it, he won’t do it, it’s okay.

Andrew:         [Laughs]  

Thomas:         Just putting in my two cents.

Andrew:         I think it is not a stretch to say if there were more people of color on the Louisiana bench that maybe you wouldn’t have a 70-year-old white guy going “well this was a very puzzling request for a lawyer dog, but that’s not a thing that-” come on.

Thomas:         So, that never got fixed?

Andrew:         No. 

Thomas:         Oh my god.

Andrew:         He’s in jail, yeah.

Thomas:         My brain couldn’t accept that.  I think I figured well, surely they will just fix that.  Someone would be like “hey, dummies, obviously he was asking for a lawyer.”  They never – none of that ever happened?

Andrew:         The way to fix that is to have more lawyers who aren’t white dudes, because then people like me will not be able to use neutrally seeming but inherently biased metrics to judge qualifications.  Look, I did this.  When we talked about the ABA I would say “well, you want to have 12 years on the bench.”  We give you a really, really good example of this.  Less than 1% of federal judges right now are LGBTQ.  That’s bad.  Here’s what that means in practice:  for half of the federal circuit, 6 out of the 13 circuits, there are no judges, not just at the Circuit Court of Appeals, but over every district court in every State that that court sits over, there are no judges who are LGBTQ.  In other words, in half the country you can get all the way up to the highest court to which you are entitled as a matter of right and never have the possibility that a person who is LGBTQ will take a look at this case. 

All of that is to say, let’s take a look at these nominees.  They fall into, really, what I would call four different buckets.  Before I get to that, the nominee to the Superior Court for the District of Columbia is Rupa Ranga Puttagunta.  At 39 she is the youngest of these nominees.  Again, she’s going onto a State court, not a federal court.  She’s been an ad-law judge in D.C. since 2019, she was in private practice as a solo practitioner, like me, representing indigent criminal defendants.  Basically an outsourced public defender, put a pin in that.  She is Indian-American.

The federal appointments really fall into four different buckets.  The first are former Obama nominees who were stonewalled by McConnell.  That is Julien Neals for the District of New Jersey and Regina Rodriguez for the District of Colorado.  These folks tend to be older.  Neals is 55, Rodriguez is 57.  They tend to have the kind of unimpeachable backgrounds that you would expect.  Julien is African American, Regina Rodriguez, Latina.  Julien has been corporate counsel, that is basically the Attorney General of the City of Newark and he’s been county counsel for the entirety of Bergen County for more than a decade.  These are the kind of people who should be on the federal bench, and they would have been on the federal bench had Mitch McConnell not screwed them over.  Older, don’t quite fit within the pattern of “I want everybody to be [Laughs] the left’s version of Justin and Corey,” but folks that deserve that spot that was taken away from them.  That’s kind of the first bucket.

The second bucket are incredibly qualified women of color.  There are four of those.  Quickly, Judge Ketanji Brown Jackson.  If that name is familiar to you that is because she is a rock star.  She is currently on the U.S. District Court for the District of Columbia.  She was the one who wrote the very lengthy, almost bulletproof, opinion that Don McGahn did indeed have to testify according to the Senate subpoena, that was then overturned 2-1 very briefly by the Neomi Rao-led panel of the D.C. Circuit, and then reversed again in favor of Judge Brown Jackson’s original opinion by the en banc D.C. Circuit.  She’s 50 and has been nominated to the D.C. Circuit.  Good for her, not at all surprising, somebody who, you know, if you asked me to list current judges on the District Court for the District of Columbia who would be very likely D.C. Circuit nominees, this would be one of them.  Amy Berman Jackson would be one of them, Amit Mehta, my former partner would be one of them, but I don’t think anybody thinks that Judge Brown Jackson is not a rock star.

Next up is Tiffany Cunningham to the federal circuit.  The federal circuit is a weird one, it’s basically where you go for patent appeals.

Thomas:         Huh.

Andrew:         Yeah, shockingly, President Biden’s pick is a career patent lawyer.  She’s 45-ish, graduated in 2001, was a partner at Kirkland & Ellis, a big law firm.  Lateral to Perkins Coie, another big law firm.  Perkins Coie has kind of a liberal reputation, they’ve taken on a lot of sort of leftie cases.  She, Harvard law school 2001, so she started in ’98, we didn’t overlap at all. 

Also, love this one, Candace Jackson-Akiwumi, who is President Biden’s nominee to the 7th Circuit.  The reason I love that is the 7th Circuit is currently all white.

Thomas:         Wow.

Andrew:         Yeah.

Thomas:         #CircuitSoWhite

Andrew:         [Laughs]  Yeah.

Thomas:         Let’s get that trending! [Laughs]  

Andrew:         Again, look, some of my favorite judges are on the 7th Circuit.

Thomas:         Are you saying you … [Laughs]  

Andrew:         Yeah. [Laughs]  

Thomas:         Some of my best friends are 7th Circuit right judges.

Andrew:         I’m saying I have some of my best friends are all white, yeah.  [Laughs]  Yes, there are liberals on that Circuit.  The 7th Circuit is where Hively v. Ivy Tech came out of.  We are familiar with many of those judges, but nevertheless it is not a diverse Circuit right now, it’s all white.  Candace Jackson-Akiwumi, 41.

Thomas:         Nice.

Andrew:         Graduated from Yale, which we won’t hold against her.

Thomas:         When they go low in age, we go even lower is what I want to do!

Andrew:         [Laughs]  

Thomas:         30-year-old justices.

Andrew:         That’s what I want!  And, spoiler, we didn’t quite do that with this batch.  It’s one of the distinctions I would draw.  What’s super interesting about Candace Jackson-Akiwumi is private practice for a couple of years, then in 2010 went to the Federal Public Defender’s Office and has been there for the last 10 years.  Was just hired – this is total coincidence – as a partner by my old firm, Zuckerman Spaeder in D.C., but literally has been there two months, so I never got a chance to know her at all.  But I told you to put a pin in when we were talking about backgrounds.  One longstanding stepping stone to the federal bench and to partnerships in big law firms has been serving in the Department of Justice.  Being, you know, an Assistant U.S. Attorney or other kinds of public service.  The reason for that is when you’re in AUSA, when you’re a line prosecutor, you try dozens, sometimes hundreds of cases a year.  It is a fantastic way to make sure that you get up to speed on trial practice immediately, because you’re handling – I’ve had friends who, you know, had four trials a day.

Thomas:         Jeez.

Andrew:         You learn a lot from trying a couple of hundred cases.

Thomas:         Mm-hmm.

Andrew:         Well, public defenders are the same way.  They’re trying the same number of these cases, and you don’t have the question of – I mean, you know, again, as we have pointed out I know lots of liberal lawyers who started off as prosecutors.  I don’t know too many conservative lawyers who started off as public defenders!  It is a great way to open up and look at the background of folks who wanted the same kind of experience but on the other side.  Anyway, career public defender, was just hired by a big corporate law firm to come in and try big white collar cases, and with any luck she will not get the chance to do that because she’ll be serving on the 7th Circuit Court of Appeals instead.

Finally, Lydia Griggsby, in my home district.  Nominated to the U.S. District Court for the District of Maryland.  She’s 53, has spent 7 years as a judge on the Court of Federal Claims, which is an Article 1 court.  It’s an interesting experience, it’s where that Court has – so, an Article 3 court is the judiciary.  Article 3 is the part of the Constitution that establishes the judiciary.  Article 1 courts have limited special jurisdiction to hear unique cases that come about because of decisions made by the legislature.  It kinda gets overlooked because different rules apply because it’s an Article 1 court, not an Article 3 court, but nevertheless talented folks who are on there.  Now she will be put up for a position on the U.S. District Court for the District of Maryland.  That’s the kind of “B” bucket.  Talented women of color with unimpeachable backgrounds.

The third bucket are magistrate and state court judges who have unique backgrounds.  That includes Zahid Quraishi; 45, Pakistani background, Muslim, was in big law, left to become a judge advocate general, was deployed twice to Iraq.

Thomas:         Wow.

Andrew:         Then left that, made partner at another big law firm called Riker Danzig, I know some folks over there, but I’ve never met this person, and was appointed as a Magistrate Judge for the District of New Jersey in 2019.  He’s been a Magistrate Judge for the last couple of years.  If you’re wondering “how did that happen?”  Magistrate Judges are appointed by the Court itself, by a majority vote of the judges on the Court and are not subject to approval by the Senate.  That’s how folks who are qualified and potential Biden-nominees could have made it to those positions over the past couple of years. 

Relatedly, that includes Deborah Boardman, who is a Magistrate Judge here in Maryland.  She actually was the person who was appointed to fill the spot that was vacated when my friend Judge Gallagher was elevated to the District of Maryland back in 2018.  Like Quraishi, Magistrate Judge is appointed by a majority vote of the current bench.  Deborah Boardman, not somebody I know particularly well, but 7 years as an associate at a big law firm, Hogan & Hartson, then 11 years as a public defender.

[47:31.7] [Commercial]


Andrew:         Again, you kind of see this effort to bring folks with traditionally overlooked backgrounds onto the bench.

Finally, Florence Pan for the District of the District of Columbia, she’s 54, she’s from Stanford, she’s worked at the DOJ, she took two positions at the Treasury Department under Clinton, she went back to being an AUSA for a decade, and then was appointed to the Superior Court for the District of Columbia in 2009.  That is, as we’ve discussed, a State trial court.  That was an Obama appointment.  Has been there for the last 12 years and now is going to be – State court judges hate it when you say “elevated” to the federal bench-

Thomas:         [Laughs]  

Andrew:         [Laughs]  Because, you know, it’s one trial court job for another.  But nevertheless I think that’s fair usage.

Finally, last bucket, the only kind of analogue to The Federalist Society that I would come up with is Margaret Strickland.  It’s somebody to keep your eye on for the next couple of years.  That is the District of New Mexico.  She is the second youngest at 40.  Law degree out of NYU.  Six years as a public defender, then co-founded her own firm in 2011 and was President of the New Mexico Criminal Defense Lawyers Association from 2017 to 2019.  Again, somebody who tries cases all the time; all of these people have – you know, none of them are gonna get up before the Senate Judiciary Committee and be unable to answer what a Motion in Limine is.

Thomas:         Yeah.

Andrew:         They’re qualified, they’re good candidates.

Thomas:         It’s not as though getting rid of the bar thingy, ABA thingy is “here, let’s ram through a bunch of SJW podcasters, for example.

Andrew:         No, that’s right.

Thomas:         Damn.  I didn’t – I mean, good!

Andrew:         [Laughs]  Yeah, Dahlia – and Dahlia’s arguments are that The Federalist Society – she makes basically four points.  She says first, having a big list and flooding the field.  You don’t get a focus on one person at a time to let them get picked of piecemeal, you sort of force Republicans to pick one or two members off of this list, then everybody else presumably escapes the defenders, I guess, if we’re gonna stick with the analogy.  Second, downgrading the ABA, that’s true.  Third, she says “many of the nominees are young, some in their 30s or 40s.”

Thomas:         Yeah, that’s not even-

Andrew:         No.

Thomas:         First off, we should be doing that now-

Andrew:         Yes.

Thomas:         You have to.  You know, it’s like oh, the headline should just be like “Biden, I guess, has to bring gun to gun fight.” 

Andrew:         [Laughs]  Right.  That’s exactly right.  Here’s how I would summarize the first 10 of what will likely be – if President Biden has a normal term – 160.  We’re 1/16 of the way through.

Thomas:         Alright.  Hmm, music to my ears, though!

Andrew:         Yeah, let’s hope for more!  There are folks who held off on retiring when the other guy was President for precisely that reason, and not just Democrats.  Lots of honest Republican moderates-

Thomas:         Huh.  Really?

Andrew:         Non-originalists.

Thomas:         Alright.

Andrew:         Yup, I happen to know one personally.

Thomas:         Wow.  Well, good on that person.

Andrew:         Absolutely.  We’re judging the tip of the iceberg.  I don’t see how, if you are from – anywhere from the center left to the far left of this party, I don’t see how you can’t be popping the champagne corks when reading this list.  There’s not a compromise among them.  It has been done with zero play towards getting Republican votes, but at the same time will expose – there’s nobody on this list who is our equivalent of Justin Walker.  There’s nobody on there who, you know, is not gonna be able to answer what a Motion in Limine is.  It’s a great list, and it’s a testament to an administration that has hit the ground running on 12 different fronts, which we were nervous about that.

Thomas:         Yeah.  Still a pandemic, too.

Andrew:         I care a lot about this.

Thomas:         There’s a lot to do.

Andrew:         Yeah.

Thomas:         And, uh, seems like they’re doing it, so that’s good.

[53:47.6] [Patron Shout Outs]

T3BE Question

[55:00.1] [Segment Intro]

Thomas:         And now it’s time for T3BE, I’m back at it again.  [Laughs]  Still T-Sisyphus takes the bar exam, here we go.

Andrew:         Alright, well I have a boulder that I feel comfortable you can roll.

Thomas:         Mm-hmm, sure.

Andrew:         At least almost all the way up the hill, how about that?

Thomas:         Yeah, that’s true.  [Laughs]  

Andrew:         [Laughs]  

Thomas:         Sisyphus Second Chance Boulder Rolling Firm.

Andrew:         [Laughs]  Yeah, that’s right.  Alright, Thomas, a young man suggested to his friend that they steal a large screen TV from a neighbor’s house.  The friend was angry with the young man and decided to use the opportunity to get even with him by having him arrested.

Thomas:         [Laughing] Oh-ho!

Andrew:         So, the friend said he would help, and that night-

Thomas:         Entered into a criminal conspiracy, yeah sure.

Andrew:         -he drove the young man to the neighbor’s house.

Thomas:         This would be my story as well.  [Laughs]  

Andrew:         The young man, yeah, broke in while the friend remained outside.  The friend called the police on his cell phone and then drove away.  Police officers arrived at the scene-

Thomas:         Wow.

Andrew:         -just as the young man was carrying the TV out the back door.  The jurisdiction defines crimes as at common law.

Thomas:         Ah.  Okay.

Andrew:         Of what crime, if any, can the friend properly be convicted?

Thomas:         [Sighs] Wow.

Andrew:         Here are your choices.

Thomas:         This seems really hard.

Andrew:         [Laughs]  A) No crime; B) Conspiracy; C) Burglary; or D) Conspiracy and larceny. 

Thomas:         Let’s get the facts straight.  Young man suggests to friend that they steal blah blah blah.  The friend, according to his story, was angry with the young man, but is gonna get even by having him get arrested.  So, the friend goes along with it.  Goes along with it, says he would help, drove the young man to the neighbor’s house.  Young man broke in while the friend then calls the police and leaves, and police arrest – so the friend called the police, young man, blah blah blah.  Okay.  Basically what crime can the friend, who went along with it and then called the police, properly be convicted?  I feel like we’ve talked about this before, now part of the complication is I don’t know about this common law thing.  I don’t know what you and I have talked about that’s like oh, this is such and such law versus common law.  You know, this could be tough.

A, no crime.  I feel like … hmm.  Yeah, I feel like we’ve talked about this and there was something about renouncing the conspiracy, you know.  [Sighs] This is gonna be really hard.  I’m just not sure where we are with this.  My instinct on this is that he could, could be convicted of some sort of conspiracy.  That’s kind of where I’m leaning?  He drove a person to a place to break in.  The level that he went along with it of driving the person to the thing, yeah he did call the cops, but like, I dunno, I feel like you don’t get away scot free.  Maybe they wouldn’t prosecute you, but it’s asking what can the friend properly be convicted?  Let’s assume a prosecutor is just really out to get them.  I think I’m gonna eliminate A, no crime, although I wouldn’t be surprised if Andrew tells me “oh yeah, because he renounced the conspiracy by calling the police then he’s fine.”  I dunno, I feel like it’s a little late in the game, because like bad things could have happened.  The robbery could’ve gone wrong, and you drove the person there and they broke into someplace.  I dunno, I feel like not A. 

B, conspiracy.  That seems pretty good.  C, burglary.  D, conspiracy and larceny.  Conspiracy and larceny is the weirdest thing.  Okay, the difference between the burglary and the larceny is one that I think I remember.  The larceny is just you walk off with something, burglary is I think it’s more like either a violence or a threat of violence, or maybe a breaking and entering kind of thing?  I can’t remember if that counts.  If you walk off with a watch, that’s larceny, but I think if you smashed a display case and took a watch maybe that’s burglary?  Maybe that’s the line.  Conspiracy and larceny is weird.  Now are they saying broke in – the young man broke in.  I feel like that’s burglary, so I feel like D is a weird one.  I would have a hard time believing it was D.  If a young man breaks into a house and steals a TV, that’s not larceny, right?  Isn’t that burglary?  Pretty sure?  Once you start breaking and entering?  Or is the difference just the threat of violence, like a weapon or … I dunno, I feel like that’s burglary.  Because I think where it’s gonna get me is like once you’re in a conspiracy as Andrew has taught me, and I don’t know if this is at common law or whatever, you can be convicted of everything that happens in the conspiracy?

What crime, if any, can the friend properly be convicted?  It feels weird to say C, burglary, but not conspiracy.  That would be under the logic of you kinda rejected the conspiracy, which I think you’ve talked about, you can renounce it sort of by calling the police or whatever, but then you’d still get convicted of burglary?  I feel like you have – I feel like it has to be conspiracy or conspiracy and something, is my thought.  In order to get convicted of the thing you have to be in the conspiracy, because all he did was drive, unless … yeah.  The driving’s gotta be conspiracy, or does that make you part of the burglary?  Oh my god!  I don’t know, Andrew, every question’s impossible!

Okay.  Eliminating A, not no crime.  If you are just the driver, are you also convicted of burglary or are you convicted of conspiracy and burglary?  It’s gotta be both.  But then again, if they’re like well you renounced the conspiracy by calling 911 but you still participated in the burglary by driving the guy.  Is this like the hardest trick question ever?  Or I’m just overthinking it, I dunno. 

Okay, I’m between B, C, and D.  I think – I can’t even second chance it.  Okay, maybe I’m between C, burglary, and D conspiracy and larceny.  I’m gonna eliminate A and B and I’m gonna go – the logic behind C would be yes, you renounced the conspiracy part, but you still drove the person there.  You know, you kinda undid the conspiracy by turning him in, but you drove a guy to a place and he broke in.  You participated in a burglary.  That’s kinda the logic behind C, so, uh, tell you what, I’m gonna go with C.  I dunno, I’m gonna say he renounces the conspiracy by calling 911 but he still participated in the burglary by driving the person there.  Screw it!  I’m sayin’ C.  Question over.

Andrew:         Alright, and if you’d like to play along with Thomas you know how to do that.  Just share out this episode on social media, include the hashtag #T3BE, include your guess, your reasons therefore.  We will pick a winner and shower that person with never ending fame and fortune!  Fame and fortune not guaranteed.

Thomas:         And that’s our show, thanks so much for listening everybody!  And a reminder, join us on that Stereo app.  I know Andrew was a little vacay this week, but each and every other Wednesday that Andrew’s not on a vacay-

Andrew:         [Laughs]  

Thomas:         Which is just this one week, we are on the Stereo app.  Get that on your phone, follow @Torrez, follow @SeriousPod, catch us for a Q&A every Wednesday at 5 pm Pacific, 8 pm Eastern.  We’ll see you on Wednesday.  We’ve got our Q&A Tuesday, lots of Qs and As, but we missed one, so, you know, plenty of catchup Qs.

Andrew:         Exactly.

Thomas:         Check us out, each and every week, on the Stereo app.  Alright, thanks so much for listening, we’ll see you Tuesday for originalism episode 2, can’t wait!

[Show Outro]

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