Transcript of OA393: Gabe Roth of Fix the Court

Interview with Gabe Roth of Fix the Court

[Segment Intro]

Thomas:         And we are joined by Gabe Roth of Fix the Court.  How’re you doing today, Gabe?

Gabe:              Good!  Thanks so much for having me, guys.

Thomas:         We are so happy to have you.  So there’s a lot to talk about today.  Justin Walker, among other things, but we wanted to start with sort of an introductory question.  What is Fix the Court?  What’s your mission?  Why don’t you talk about that?

Gabe:              Sure.  So I started Fix the Court about five and a half years ago.  It’s the nation’s only nonpartisan organization that advocates for greater transparency and accountability in the federal judiciary, primarily in the Supreme Court.  We do that across half a dozen fixes.  Those are things like ending life tenure at the Supreme Court, requiring that the Supreme Court and other federal judiciary oral arguments are livestreamed to the public; requiring stronger ethics rules for federal judges and justices; stronger recusal and conflict of interest rules; ending of stock ownership; publicizing their trips and meals and fancy hotels and their travel; and just trying to push the judiciary into having as much oversight as the other two branches.

Andrew:         So was there a precipitating event that got you interested?

Thomas:         I was trying to think, was that Merrick Garland or?

Gabe:              My background’s actually in broadcast journalism.  After undergrad at Wash. U. I went to the Medill School of Journalism at Northwestern and did local news for a bit, but then moved to D.C. and did political consulting.  A lot of my clients ended up being litigants at the Supreme Court; whether that be voting rights or marriage equality or immigration.  They would always say to me – they were located across the country though we were based in DC – they would say “oh, we’ll just watch our case on CSPAN-4, and I was like “that’s not a thing.”

In 2013 I started something called the Coalition for Court Transparency, which was a lot of media groups that were advocating for cameras in the Supreme Court, but as I did different events over the 13-14 I realized it wasn’t just this one issue that made the Supreme Court the most powerful, least accountable part of our government.  I stopped doing the coalition work and set off on my own on getting staff and grants and all that to have my own nonprofit, so that’s what I’ve been doing since then, and realize there’s just a need for this. 

Any sort of oversight of the judiciary’s always, too frequently I think, tinged with this partisan “what partisan advantage can we get” whether it be Kavanaugh or Ginsberg or what have you.  I really think there needs to be a disinterested party looking at what’s going on in the judiciary from a journalistic prospective and from a research prospective and really push them to do better.

Andrew:         Yeah.  Well I definitely endorse that.  One of the things that we have talked about on the show is that while the Chief Justice – John Roberts I think has twice issued in I think 2016 and then again in 2018, general ethics guidance for the Supreme Court, the ethics rules and the complaint procedure that applies to them explicitly does not apply at the Supreme Court level to Article 3 judges that have lifetime tenure.  I think I can say that we support what you’re doing from an organizational perspective.  Your journalistic background [Laughs] is, uh, why we invited you on the show this week!

Gabe:              Well thank you!

Andrew:         You have uncovered some really interesting information about Justin Walker, who is well known on this show as somebody that we’ve had in our crosshairs for a while, ever since his surprise nomination to the U.S. District Court in Kentucky, and now at the age of 37 with-

Gabe:              I think he just turned 38 last month, so.

Andrew:         Oh!  Just turned 38, I didn’t send him a birthday card!

Thomas:         Well now he’s too old for the court.

Andrew:         That’s on me.  Is about to be elevated to the U.S. Court of Appeals for the D.C. Circuit which, you know, our listeners know, is and has been for at least half a century the grooming grounds for the Supreme Court.  100% that is the track that he’s on.  Why don’t we start with this: I know how Justin Walker caught my attention, I debated him at an event in Louisville put on by the American Constitution Society, and he was thoroughly dishonest.  I was shocked when he was then nominated to the court.  How did he hit your radar?

Gabe:              As you may or may not know, or as your listeners may or may not know, the judges and justices of the federal judiciary are required once a year to submit an annual financial disclosure report.  The deadline for that is a month after Tax Day, so May 15th.  There was some question with the pandemic if that would still be the deadline for these annual reports.  Turns out it is and we ask for every single report each year from all – it’s really 1200 judges because you’ve got all the Article 3 judges plus all the senior judge – and we get them eventually.  Sometimes it takes months, sometimes it takes years to get them and there’s this backlog.  We’ve only gotten half of 2018s.

Andrew:         Do you get those voluntarily?  Or do you FOIA request?

Gabe:              It’s like a FOIA request.  The Freedom of Information Act doesn’t apply to the judiciary, but it’s Form AO 10A that we submit each year at the beginning of the year and then we have contacts in the financial disclosure office and they send it to us on a thumb drive.  It’s not uploaded digitally, which is very frustrating.  We do that in a group called the Free Law Project.  If you wanna see the 2013 disclosure of Douglas Ginsburg, that’ll be in our archive. 

We’re still waiting for half of the 2018s, which is crazy, but there’s again supposedly on the thumb drive at this building in D.C., and we’re waiting for it but no one’s in the office so they can’t send it to us.  I’m trying to figure out if we can get – so this is going on in the backdrop a couple of weeks ago, or I guess last week, and I was looking at the calendar on the judiciary committee and said “oh, Justin Walker’s up for a vote, I guess I’ve never seen his financial disclosure report.” 

Because to have actually a financial disclosure report you have to be a judge for at least 90 days in a calendar year and that didn’t happen in 2019, so Walker’s disclosure report wouldn’t be in the batch that may become due in a few weeks, you’d have to get instead something called the “nominee disclosure report,” which is similar but a little bit different.

Again, I just hadn’t seen it, and people ask me all the time for disclosure reports.  Fix the Courts is sort of the go to source for that, so I started asking around and found a member of the Senate Judiciary Committee staff who happened to have it.  They sent it to me, I think, on Thursday and then right away this one line stuck out to me, which was that he lent – and I can tell you now because I got subsequent documents – about $86,000 – somewhere between $86 and $100,000 to two of his former law students which is something that I’d never seen before and really struck a nerve.

I started doing my own research and uncovered all this other mishigas –

Andrew:         [Laughs]

Gabe:              If your viewers understand Yiddish – around it.  There’s still more coming out.  I’m getting calls from folks associated with the university, I’m getting emails from House and Senate staffers, from reporters.  People are interested in this and it’s just a very weird thing to do.  We’re gonna keep digging until we find more.

Andrew:         I wanna continue with that.  I want to ask you two questions based on what you’ve just said.  The first is you said you’ve never seen this before.  Place that into context.  You get 1200 financial disclosures every year-

Gabe:              Yeah, look, we don’t read every single one of them.  We do as many as – we usually do a cross section of about 10% of them just to be sure.  Look, we know there’s certain judges – the best example is I think [Sighs] I wanna say either the Western or the Eastern district of Texas.  One of these districts in Texas has become this patent mill where all these patent cases, for reasons that I don’t quite understand, are being litigated.  So, one of the judges who’s in that, I think it’s the Eastern District of Texas, has been going on these all expense paid trips to East Asia to talk about patent law.  Now why this one district, I think it’s maybe because of patent trolls-

Thomas:         Yeah, yeah it is.

Gabe:              There’s a lot of patent cases in this one district, and dude’s going on all these trips because of that.  There’s another judge out in California who’s like military advisor for like military justice, so he’s getting all these trips to the Middle East.  There’s certain judges we know are famous for taking all the trappings of the judiciary.  The ones we care about the most are the justices, the nine justices of the Supreme Court.

Andrew:         Sure.

Gabe:              Three of them own individual stock, which is a huge conflict of interest.  The other six don’t, but the bottom line is we’re looking over the course of five and a half years several hundred if not a thousand of these disclosures and I’ve never seen a line that’s like “oh, by the way I loaned a bunch of money to my law clerk and my teaching assistant.”

Andrew:         You got to the topline conclusion.  I was gonna ask something else, but now I need to know, who are the three Supreme Court justices that own stock?

Gabe:              Sure.  So Chief Justice Roberts.

Andrew:         Mm-hmm.

Gabe:              Made a lot of money at, I think it was Hogan and Lovells back in the day and invested in the market.  Each year he’s been slowly divesting.  He had I think about 15 or 20 stocks when he started, now he’s down to about half a dozen.  A lot of it has gone through mergers and acquisitions, he owned a lot of Telecoms.  But he sold his Microsoft stock when a Microsoft case came up, because if you own even one share of stock by law you’re not allowed to sit on a case if that company who’s stock you own is a litigant. 

Justice Breyer, his wife is British royalty as you may know, so they’re up to their ears in wealth and they’re heavily invested in the market.  The most stock is owned by Justice Alito, who’s father in law was heavily invested in the market and he and his wife were bequeathed a lot of stock after his father in law passed away.  He’s got a lot of energy stocks, telecom stock.  Again, there are only 9 justices, justices aren’t fungible, so if there’s a case where United Technologies is a litigant, all of a sudden a justice or three could be off of that case which is kind of ridiculous because you could easily see owning one share of stock leading to a 4-4 case and then a 4-4 case, tie goes to the “it never happened” and you’ve got law that’s different in these different Circuits. 

It’s just a really dumb thing that the justices still do.  Each year they have been selling stock because we keep yelling at them about it, but it should be 100%, they should put their money into a blind trust or they should be like Brett Kavanaugh and Justice Kennedy and put all their money into a government-backed retirement fund.

Andrew:         Yeah.  When you see – it’s why I paused to go down that rabbit trail, I apologize, we’ll get back to Justin Walker.

Gabe:              He only owns Apple stock, and only about $7000 bucks worth.  Not too bad.

Andrew:         [Laughs] I’m not too worried about that.  But when you see a justice, a Supreme Court justice recuse him or herself, often it just says “I have a potential financial interest in the outcome of this case and therefore am recusing myself.”  Justice Sotomayor did that on a recent case and I forget exactly why, but we get very little explanation.

Gabe:              Exactly.  It doesn’t even say financial interest, it just says they took no part in the consideration of this case or the determination, took no part in the determination of this petition.  Right now, there’s a federal legislative proposal that was introduced a few months ago that we helped write that would basically say if you are a judge or justice and you are recused, just explain which part of the law is the reason for your recusal.  Write 455(b), financial interest; 455(c), wife’s a lawyer and involved in the case.  Just tell us. 

The Supreme Court used to do that about 100 years ago.  That was more due to the fact that a lot of the justices back then were still writing circuit and getting sick and couldn’t make it back to the Supreme Court in time, but they used to actually say the justices weren’t around for this case for whatever reason.  That practice fell out of favor for some reason, like 1911.  We wanna revive it and hopefully the proposal will move forward once we’re back to normal times, should we ever get there.

Andrew:         Excellent.  Alright, I steered us off course a little bit.

Gabe:              It’s alright!

Andrew:         [Laughs] You see this literally unprecedented in hundreds of disclosure forms that you’ve reviewed, loan of almost $90,000 to two former law students.  Then what?

Gabe:              Turns out they’re married, fine. 

Andrew:         To be clear on that-

Thomas:         Who is married?

Andrew:         The $86,000 was the sum total that the two students, I believe-

Gabe:              Yeah, it’s a single loan.

Andrew:         Yeah, okay.

Gabe:              Yeah, so it turns out they’re married.  Loan is for land to purchase in suburban Louisville so they can build a house.  There are really two issues I have with this, besides the fact that it’s unprecedented and super weird.  One is that while the time the loan was in existence – supposedly it’s all been paid back or at least that’s what I was told by the Department of Justice on Tuesday. 

While this loan was out there two things were happening:  One, Justin was preparing for his nomination and I’m told first the Western District of Kentucky and then the D.C. Circuit, and I’m told he just wasn’t in class that often.  The guy he got to fill in on a lot of his professorial duties was Jake Grey, the guy to whom he offered that loan.  From what I understand, Jake was not a faculty, was not adjunct at the University of Louisville Law School, so essentially having this loan was a chip for taking over Justin’s classes when he wasn’t able to make it because he was either moonlighting in litigation or preparing for his nomination.  So that’s just a little weird.

Then the second thing that really struck me is that-

Andrew:         Wait wait wait.

Gabe:              Oh, sorry.

Andrew:         No no no no! [Laughs] Sorry, every part of this I can’t help but want to unpack a little bit.  Justin Walker’s a professor at the law school at the University of Louisville.  That is a public university funded with taxpayer dollars, right?  His salary is, what, about a little over $90,000 a year, right?  So he’s receiving $90 plus thousand dollars a year for teaching his classes, he’s not teaching his classes because he’s off doing interviews and this, he was added as a partner of counsel, which is a very weird designation, to a local law firm to try and cram in some experience prior to his nomination coming before the Senate Judiciary Committee.  That didn’t work, by the way, that’s just me editorializing.

He’s not around, he’s not teaching his classes.  Former law student is teaching his classes, and then all of a sudden gets a loan.  Does that inherently violate any of the judicial ethics rules that you know of?  And if you don’t, that’s fine.

Gabe:              No, that’s something that as I was preparing for this interview, I was writing an email to the codes of conduct committee that exists in the federal judiciary to ask them that very question and I’ll be hitting send on that when we’re done here and will let you know if I hear back!

Andrew:         [Laughs]

Gabe:              Yeah, that is something that I do want to look into because it’s something, again, that’s just so novel that I don’t know if there’s been – clearly nothing directly says “don’t give your former law students an $86,000 loan” and then “don’t hire one of those former law students as a clerk and hire the other one as a co-teacher.”  That line is clearly not in the canons of judicial ethics, but there could be something construed where yeah, it violates the canons and that’s something I think needs to be addressed, either by Justin himself or by the – right now he’d be governed by something called the 6th Circuit Judicial Counsel, but it needs to be addressed because it does look like it is a violation in some way, shape, or form.

Andrew:         Okay.  Again, I apologize.  You were getting ready to go onto item number two, but I had a bone there, I had to run with it.

Gabe:              No, look, one of the things that Fix the Court tracks is the relationship between federal judges and their law clerks.  One thing that we’ve been really, I guess, saddened by is that over the time that we’ve been in existence there’s been instance after instance of judges exploiting the power dynamic – the uneven power dynamic between themselves and their law clerks.  Some of the more famous cases – Judge Kozinski, Judge Reinhardt out of the 9th Circuit, Judge Murguia in the District of Kansas – these were relationships that led to harassment and that’s just awful.

Andrew:         I know Judge Kozinski resigned, what was the disposition in those other cases?

Gabe:              Sure.  Reinhardt actually died before this came out, this came out after he died.  He died in early 2018 and this came out in 2019 – or actually maybe even 2020.  No, 2019, it’s just that time doesn’t mean anything anymore. 

Thomas:         [Laughs]

Andrew:         [Laughs]

Gabe:              But anyway, he died before it came out, and then Murguia it came out in September of 2019 and then we pushed for his resignation for several months and then he finally resigned affective April 1st of this year.  They got pushed out. 

Andrew:         Good work!

Gabe:              I’m sorry?

Andrew:         I said good work! 

Gabe:              Thank you!

Thomas:         Yeah, there are still consequences sometimes for stuff!

Gabe:              Oh my god, it took a while.  But look, no one’s suggesting that’s going on here.  What I am suggesting is there’s uneven power dynamic and if one of your clerks is financially beholden to you, again I don’t know when the loan was fully paid back.  It could’ve been fully paid back Tuesday when DOJ emailed me saying that it was fully paid back.  But the idea that you have this financial burden over your head while you’re working in chambers with this powerful judge just adds to this uneven power dynamic between judges.  It just smells funny, it’s not ethical, it doesn’t look good, there’s no reason for it.

There’s nothing wrong with hiring your former student to be your law clerk, but again you just wonder about that dynamic given that there’s this financial aspect involved that, again, to us is novel.

Andrew:         Yeah.  A couple of things to amplify on what you’ve said.  Number one, I don’t think it is possible to overstate the degree of power imbalance between a sitting judge and his or her clerk.  I’ve talked about this before, but you- [Laughs] as somebody who clerked, and I clerked for the Maryland State Supreme Court, the Court of Appeals of Maryland.  You know, a less prestigious on paper clerkship than clerking for somebody who is on the D.C. Circuit and fast-tracked to the Supreme Court.  Those clerkships are going to be incredibly valuable commodities. 

One of the things that’s true in the relationship between any clerk and his or her judge is your just out of law school.  This is what you want to do with your life, and you are in awe of this person who has all of the power.  To a person, the people that I know who clerked, you develop this kind of “I would take a bullet for my judge” kind of mentality.

Gabe:              Absolutely.

Andrew:         Yeah, you work around the clerk, you work crazy hours.  You do that because what they give you in return is – here is a judge, the kind of person you are going to practice in front of, that you may hope to be one day, who is inviting you to share your legal opinions with them and they are treating you with respect and letting you in the room in a way that they do not the most prestigious and famous lawyers in your community. 

There is nothing better – my judge was a Hyde bound traditionalist, conservative.  He was frequently mean and cranky.  [Laughs] But man, he would let me in to his private office in his chambers.  We had a death penalty case and I tried as hard as I could to persuade him to go the other way.  I lost that argument, but he let in this 21-year-old kid to argue with him about it.  That level of – it’s hard to over emphasize how much that means to a recent law grad.  I wanted to emphasize on that dynamic of the – it’s as big a power dynamic as I can imagine anywhere in the government.  Folks who aren’t lawyers or who didn’t clerk, it’s kinda hard to grasp.

Gabe:              No, it’s a really good point.  That’s, again, why we were so stunned by this.  We saw her name popping up in some of his legal opinions, which is also weird to cite your clerk, but that’s nice.  We thought that was nice.  But at the same time the fact that he did that was a lightbulb that went off in my head, I was like oh wait, maybe she’s still clerking for him.  We called his court and she is.  It’s again, just the fact that both parties in the marriage are having these dubious financial relationships – other relationships – sorry.  Having dubious financial relationships with this soon to be powerful, currently fairly powerful, but soon to be very powerful federal judge raises a lot of red flags.

Andrew:         Yeah, I agree with that.  Have you made Walker’s disclosure form publicly accessible?

Gabe:              Yes.

Andrew:         Okay.  We’ll include a link to that in the show notes so that folks can [Laughs] read it for themselves.  What does the disclosure itself say in terms of the financial commitment that was involved?  Talk about your math with that and we can go down that rabbit hole.

Gabe:              Yeah, sure.  The federal law that requires these financial disclosure reports basically just asks for filers to note the range in which their assets – the range of their assets.  In other words, is your asset, whether it be a stock or a house or a mutual fund or an IRA, is it between $0 and $15,000; $15-$50,000; $50-$100,000; $100-$250,000; and on and on and on.  Each of those ranges gets a letter, and then on a line on the disclosure report it’ll say – in this case it’ll say “Loan to Jake Grey and Leah Spears” and “L.”  It just says L.  So we know it’s between $50 and $100,000 dollars.

But it also says on that same line, that Walker made between $5 and $15,000 dollars off of that loan, theoretically in interest payments, maybe principal payments, during 2019 and early 2020.  Doing the math, initially I thought, okay, if he’s getting $15,000 back on a $50,000 loan that was dispersed over a 15-month period, that’s a 23% interest rate.

Andrew:         [Laughs]

Gabe:              Which is super high!  I think that’s why we initially caught your attention on Twitter is because we wrote “this is crazy that it’s up to 23%.”  It turns out, at least according to the DOJ spokesman who emailed me on Tuesday, that it was 4.25% which is I guess market rate. 

Again, the fact of the matter is, he’s gotta know better on this.  Not only just for the loan, but even if you just wanna explain it out there’s a section of the financial disclosure report where you can explain any weird stuff that appears in the financial disclosure report. 

For example, Justin received $8500 in honoraria from the Federalist Society.  Okay, fine, but the key thing that he did was he said in that extra section where you explain weird stuff, “I received this money before I was a federal judge,” which I think was nice.  It says okay, we all know that you’re dyed in the wool conservative, Fed Soc, etcetera, but you weren’t still on the payroll when you were a federal judge, fine.  So he utilized that section to explain “look guys, I’m not a dolewalla judge,” but again he could have used that section to explain this really weird line which A, just led me to believe that he was charging usurious rates, and B, shouldn’t have been dispersed in the first place.

Andrew:         So based on the best information you have now – in other words do we have any reason to think that this was simply a market value loan made out to the two students at the time?

Gabe:              Yeah.  [Sighs] Again, because I don’t have the dates.  I know that the loan existed, because I just got some more paper from the Senate Judiciary Committee, I know the loan existed in 2018.  The two of them graduated in 2018, but I don’t know when the loan was dispersed.  If it was dispersed in February of 2018, they were still his students then.  If it was dispersed in November of 2018, they were not his students. 

One was working at a law firm and the other was, I think clerking, either to nonprofit or government agency.  Regardless, you’ve got these two white, privileged young people, power couple, probably could get money from anywhere that they wanted, and yet they’re asking their former law professor for a giant amount?  I don’t know if this is his way of paying them because he assumed at some point they would be helping him with his faculty duties? 

This is a guy who, since 2017, was thinking about being on the federal bench.  Was this loan given out in anticipation of the fact that he was gonna have to split his time between moonlighting as a partner of counsel, whatever the hell that means, and doing some teaching and doing some nominations work?  I don’t know, but the whole thing … and I’m very doubtful that DOJ’s gonna give me more information.  This is judicial nominations in 2020, the less you know the better and this’ll be passed quietly next week and then he’ll be a federal judge until 2078.

Thomas:         [Laughs]

Andrew:         Yeah.  You said something interesting there that I didn’t know, which was you said he’s been thinking about being on the federal bench since 2017.  What’s … that seems pretty specific.  What causes you to identify 2017 as the moment where now he’s taking affirmative steps towards being on the federal bench?

Gabe:              Sure.  In questions for the record – every federal judicial nominee has something called the Senate Judiciary Questionnaire. 

Andrew:         Mm-hmm, mm-hmm.

Gabe:              It’s a standard questionnaire, it’s horrible, it needs to be reformed.  I’ve asked for that like 100 times and no one listens to me.

Andrew:         [Laughing] Yes it does!

Gabe:              But whatever.  That’s a battle for another day.  Anyway, it’s 50 questions like “are you ethical?”  “What are the major cases you’ve litigated?”  “Where did you go to law school?”  “Who are your mentors?”  Stuff like that.  Then judiciary nominees have a hearing with the judiciary committee, as we’re all familiar with, and then after that there’s something called questions for the record, where members of the judiciary committee can submit written questions to the nominee and the nominee has a few days or weeks to answer them.

In response to a Feinstein question, Walker wrote that approximately in mid-2017, “I had a friend, a friend who used to work on the staff of Senator McConnell, had asked if I’d ever been interested in judicial service.  I don’t know when or if this conversation made it to Senator McConnell from my friend, but that’s the first time I talked about judicial service.”  He acknowledges that, because the first official conversation that he had was he was at an event with Senator McConnell in June 2018, but in fact we learn from these questions from Feinstein that about a year before that in 2017 the discussion about being a federal judge came up while Justin was 35 years old, which is…

Andrew:         [Laughs]

Gabe:              Obscenely young to be talking about a lifetime appointment!

Andrew:         Again, I think a testament to how deeply embedded you are in these issues.  You anticipated what I was seizing on with that, which is I have reviewed his 50-page answer to the questionnaire – he has now filed two.

Gabe:              Yeah.

Andrew:         He filed one when he was nominated to the Western District of Kentucky, which was the first one that I looked at and the reason I looked at it is because you are required – it’s question 12 – to disclose all of your public statements, and I wanted to make sure that he had disclosed our debate in Louisville.

Gabe:              Oh, did he?

Andrew:         Which he did.  It’s on page 9.  The link is actually the link to this podcast, to episode 224 of this podcast.

Thomas:         I was gonna say, did he characterize it?  Like “here’s when I totally trounced that Andrew Torrez?”

Andrew:         It says this: “September 27, 2018, speaker, church/state debate, American Constitution Society, Americans United, Louisville Kentucky, recording available” and then it’s a Libsyn link to our show.

Gabe:              Wasn’t September 27, 2018 the day Kavanaugh testified for the second time before Senate Judiciary on the Dr. Ford allegations?

Andrew:         Indeed it was. [Laughs]

Gabe:              Wow.  Quite the day. 

Andrew:         Yeah, I had agreed as a courtesy beforehand, an agreement I’m not sure I would have honored today, not to bring that up.  Again, I did so on the basis of the lengthy point that I had made when we were talking about relationships between judges and their clerks.  It was really out of the compassion for, hey, I don’t want to have to ask you bad stuff about your former boss because I know you would take a bullet for your former boss.  In any event, I think I would do it differently today, but so be it.

Notwithstanding that bit of trivia, in connection with that, question number 26 is describe the selection process, which I have read, which said “I expressed an interest in judicial service to Senator Mitch McConnell on June 22nd, 2018.  On October 11, 2018 I discussed the topic with Senator Rand Paul in a meeting where Senator Mike Lee and a member of Senator Paul’s staff were also present,” then continues.  When you said 2017, knowing that he had made that answer, that was what perked up my ears.  But if he truthfully answered that question from Feinstein, that explains what I was thinking was a potential discrepancy. 

Thomas:         Well I really wanna ask about Kavanaugh, but I don’t know if you guys are still on the Walker topic. 

Gabe:              I’m still getting Kavanaugh documents from all the FOIAs that I filed in 2017.

Thomas:         Oh, really?

Andrew:         Yeah.  So okay, as we are doing this interview Justin Walker has been voted out of the Senate Judiciary Committee on a 12-10 party line vote.  Probably as folks are listening to this show we will be moving towards a full Senate vote to confirm Justin Walker to the D.C. Circuit.  What’s the topline summary?  What should we still be looking for, what should we think about this?  How do you view that?

Gabe:              Sure.  I just look at this through the ethics lens.  What are the ethics of loaning between $86 and $100,000 to two individuals who you have some power over?  One individual you’re basically assigning your teaching roles to as you’re being vetted for federal judicial service and the other loan recipient is your law clerk and in chambers with you as you discuss issues of federal law for however long that clerkship lasts – about nine months in Walker’s case in the Western District of Kentucky. 

It’s a unique part of a financial disclosure report, it’s a unique part of a nomination, and I’m hearing that there’s more to the story, is basically what it comes down to.  There’s talk on the University of Louisville campus that folks were not happy with the nomination, they were not happy with the kid gloves way Walker was treated in terms of being able to moonlight for a law firm in preparation for the ABA gauntlet, being able to assign several of his teaching tasks to someone in their late 20s who only a year ago had graduated from law school.

We have several other avenues to search in terms of, you know, faculty support and interactions with the dean and FOIA requests to open records.  In Kentucky I think it’s called the Kentucky Open Records Act requests to the school trying to get records and emails that show some of the underlying reasons for this unhappiness in the faculty.  If there are any complaints about his teaching service – there’s rumors about those as well. 

The bottom line is I think that there’s more to the story there.  At the very least it just goes to show you that there needs to be a longer time horizon for vetting judicial nominees.

Andrew:         [Laughs]

Gabe:              Especially when there is a once in a hundred years pandemic and once in 50 years civil unrest.  When there is a federal judge who hasn’t even vacated his seat and won’t be doing so for another three months.  The speed is awful and unnecessary.  I think that the committee – I’m hoping the committee will take some time to consider these very serious ethical issues because that’s really the point of their existence and otherwise he might as well just have a rubber stamp.

Andrew:         Well I’m not sure that we don’t…

Gabe:              [Laughs]

Andrew:         It predicates my last question.  I’m usually the optimist on the group, but the entire Republican Senate has sort of fallen in lockstep behind Mitch McConnell’s plan, which included shortening the time to vet each nominee down to two hours to avoid the embarrassment that characterized some of Trump’s earlier judicial nominees.  Is there any indication that there’s anybody in the Senate that is gonna care about this?  Or are we gonna rubber stamp Justin Walker onto the D.C. Circuit for life?

Gabe:              It’s very hard to know at this point.  I think one of the real untold stories of the hyper partisanship and the hyperpolarization in Washington over the last quarter-century is that there’s just fewer staff members doing the work that needs to be done.  Obviously no fewer issues being raised.  The Senate Judiciary Committee just doesn’t have the staff – just think about what’s going on in the Senate Judiciary Committee now. 

In addition to COVID, in addition to the protest movement, you’ve got Lindsey Graham trying to subpoena the entire Obama administration over the Flynn unmasking.  You’ve got all these other issues, all these tech issues with Section 230 and Twitter, the Bureau of Prisons is letting coronavirus run amok.  There’s a hundred issues that the Judiciary Committee is dealing with right now and it’s hard to say if this is gonna break through when you know that there are 53 Republican Senators and why even try?  I don’t know. 

Look, under normal circumstances there would be reasons to slow this down, but now given the extraordinary circumstances, the lack of vetting and the pandemic and the civil unrest, it behooves the committee to do that.  Unfortunately, I don’t see that happening despite interests from Senate Democrats, but what’s that gonna amount to in the end?

Andrew:         Well and I didn’t mean to get overly pessimistic-

Gabe:              No that’s my job.

Andrew:         But that’s easy to do given, yeah! [Laughs] Given the environment you’ve just described.  But look, it is important to document this for the record.  If Justin Walker is elevated to the D.C. Circuit he will remain subject to the judicial ethics rules and can be sanctioned, can be the subject of disciplinary complaints.

I wanna emphasize – maybe I should let you emphasize this as well.  The major takeaway that I took away from your summary is not “don’t vote for Justin Walker,” but rather is hey, there’s a lot that we don’t know.  Some of that is packaged together in a way that looks fishy.  Why wouldn’t you – if you’re just helping out two students why wouldn’t you explain that in the same way you explain your speaking fees?  It’s not a prejudgment – I mean, we’ve prejudged him here, but we’re separate.  [Laughing] We are not a nonpartisan podcast!  But the takeaway is we don’t have all the information, maybe we should hold up on the vote until we do.

Thomas:         So, I really wanted to ask about Kavanaugh if you don’t mind.  I don’t know that, you know, you’ll have the info now because you mentioned you were awaiting some documents and stuff.  But as a news observer and someone on Facebook in lefty circles I did see a lot of posts and conspiracy theory-esque things about his tuition, something was paid off.  Debts were paid off, that kind of thing.  I kinda took the attitude that well, if this is something, I’m sure I’d see more about it, I never really looked into it.  So I was wondering, was there any there there?  Or what kind of work you guys have done on Kavanaugh?

Gabe:              Yeah, not that we could find.  This is also from his financial disclosure reports as a judge on the D.C. Circuit.  Same form, basically, that a nominee like Walker would be filling out or any justice or federal judge would be filling out.  But for several years he had fairly high debts, mostly to fortune 500 banks that we’ve all heard of – Bank of America, or sometimes on a credit card.  Again, this is not something that we had typically seen.  This is separate from a mortgage; these are just consumer debts that we just hadn’t really seen as high.

Thomas:         Just beer money, probably.  [Laughs]

Gabe:              Could be.  The highest is $200,000.  Yeah, so we looked into that and it just – we couldn’t find anything fishy.  The one thing that never got traction with the press that we tried to get traction with – so he’s got season tickets with three other people.  They do like a ticket lottery, I don’t know if they get all 81 games for the nationals or they get some sort of package, but usually Kavanaugh’s the one footing the bill and the other three folks pay him back.  That’s what he said most of the debts were.  Maybe country club dues as well, fine.

But we’re fairly certain that one of the other people from his baseball ticket group is Judge Laurence Silberman, who I’m pretty sure Kavanaugh clerked for and is a senior judge on the D.C. Circuit.  So there was nothing in his financial disclosure report that would have mentioned this or whatever, and it wouldn’t even really show up because you’re paying $5000, $10,000 for season tickets and playoff tickets or whatever, but just the fact that not enough people asked the questions? 

It’s probably not nefarious, I know that there are definitely – I’ve seen the same tweets in lefty circles and the same Facebook posts.  Probably not nefarious but at the same time we never got to the bottom of it and Kavanaugh was never really fully forthcoming about it.  I know he’s a huge baseball fan, whenever my friends go to Nats Park and see him they take pictures of him and send me.  He’s there, he’s there a lot, I get it (or at least he was before the pandemic), he goes to every Nationals playoff game that they’ve ever had, home game, including the World Series. 

You know, that’s all well and good and we know your parents are very well off, but just, like, you know, cop to it if your parents are paying your debts or taking out – whatever it is, there were definitely holes in that narrative that there didn’t need to be, which is why people wanna fill in those gaps with those conspiracy theories.  I feel like honesty is generally the best answer, everyone who knows Kavanaugh knows what a huge baseball fan he is, so it’s understandable but he wasn’t as forthcoming as he should have been, as he wasn’t on a lot of other things which was very disappointing to me as someone who’s known him.  That’s why these questions still are being asked today.

Andrew:         Yup.

Thomas:         Yeah, well-

Andrew:         Wait wait wait.  I’ve gotta – you wanna amplify on the last part?  You said that he’s somebody that you’ve known personally?

Gabe:              Yeah, I mean just- [Sighs] Back when he was on the D.C. Circuit we’d email about issues.  You know, ethics, audio, live audio.  I was trying to get the D.C. Circuit to do live audio because I knew that Chief Judge Merrick Garland was the first judge in the country outside of the 9th Circuit to release a same day audio recording of their oral arguments.

Andrew:         Mm-hmm.

Gabe:              This was 2017, yeah, we were talking about that.  One of the cases, actually the first live audio case in the D.C. Circuit was a case that Kavanaugh was one, so that was kinda cool.  As I’m trying to get more and more federal courts to move forward on ethics and recusals and conflicts of interest, I’m also trying to get more of them to live stream their oral arguments.  I’m very happy to say almost all of them, including the Supreme Court surprisingly, did that during the pandemic, during the last two months they’ve done live remote hearings. 

Outside of that framework during normal times I want all the courts to livestream and was very pleased that Chief Judge Garland and then judge Kavanaugh were really sanguine on doing that.  It’s a practice that continues at the D.C. Circuit to this day.

Thomas:         So I just wanted to ask the catchall final question.  Are there any other instances of potentially questionable conduct that you’re looking into?  What should people be aware of at any level of court?

Gabe:              Sure.  Yeah, so the Supreme Court financial disclosure reports are supposed to come out on June 11th.  We’re anticipating that two justices – Justice Sotomayor and Justice Thomas – are gonna be amending earlier year reports because we found … so we’re talking about FOIA, you can’t send a Freedom of Information Act to the U.S. Supreme Court because they’re not under that law, but state universities, state colleges/universities are under state open records laws so we’ve sent about two dozen to different state universities where the justices spoke and we’ve just learned a ton of information.

A, that justices are sometimes leaving those trips off their financial disclosure reports, which technically is illegal but they can just say “oh I’m sorry,” and then include it in the next year.  Thomas went to Kansas and didn’t put it in his disclosure report but we found out about it and Sotomayor went to Rhode Island and didn’t put it in her disclosure report and we found out about it. 

From those FOIAs we found all sorts of crazy information in terms of honorarium that justices were getting, like $10,000 worth of hotel rooms and $500 dinner fundraisers they were speaking at.  Overall I think one of the things we’re going to be looking at coming up is the extent to which justices are participating in Federalist Society and American Constitution Society events, because there is a recent draft opinion that was leaked that basically says that judges should no longer be participating – sorry, not participating – should no longer be members in organizations like those that could be construed as supporting one type of partisan agenda.  There’s been a lot of backlash to that from the right because supposedly the Federalist Society is not partisan, which is crap.  Whatever.

Andrew:         [Laughs]

Thomas:         [Laughs]

Gabe:              You know, same thing on the left, to a little less extend of the American Constitution Society sort of leans into their progressivism, I guess a little more than Fed. Soc. does on their conservatism, but there’s just a lot of back and forth with a bunch of National Review pieces and Wall Street Journal pieces.  A very large overreaction from the right on this, which has just been really weird because Fed. Soc. is super effective and ACS, not as much so?

Andrew:         [Laughs] Yeah.  That is absolutely a fair assessment.

Gabe:              The opinion wasn’t saying don’t go to these events, it was just saying don’t pay $25 annual membership dues in the events, and the legal right just went ballistic.  And it’s just like super- again, what is going on?  I don’t get it.  So that’s something we’re just trying to figure out because it’s a very measured opinion and we supported it, a lot of legal ethicists supported it and we think the judiciary is just gonna drop it which would just be a horrible look.  That a partisan group could tell the judiciary “hey, we think you’re being too partisan by calling our group partisan so you should drop it.”  It’s not a good look, so we’re gonna be doing a lot of work on that over the summer, I would expect.

Thomas:         Wow.  Well, why don’t we toss out the plug:, is there anything else if people wanna find out more information and support the work you’re doing, anywhere else we need to send them?

Gabe:              That’s the best place to go.  Or, and if anyone wants to reach out and ask some questions, I’m just gabe@fixthecourt, would love to hear from you guys.

Andrew:         Well Gabe, thank you so much for coming on the show, this was really fascinating.  Your organization is doing good work and I think, as was evidenced by the conversation that you’re doing amazing investigative work.  In my view the best kind of investigative journalism, which is reading legal documents for minutia.

Gabe:              [Laughs] That’s all we do!

Thomas:         [Laughs]

Andrew:         I might have a slight bias on that! [Laughs]

Thomas:         Yup, you two are doing it so people like me don’t have to, ever.

Andrew:         But no, thank you so much for coming on.

Gabe:              Of course, thank you Andrew, thank you Thomas, it’s been a lot of fun!

Thomas:         Thank you!

Alright, and now it’s time to thank our hall of famers, our all-time greats, here on Top Patron Tuesday.  Hope you’re enjoying the goodies, the bonus length episode on Friday, all that good stuff at

[Patron Shout Outs]

Thomas:         Okay, and now it’s time for T3BE, answer time.  Hmm, let’s see how I did?

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