Advisory Opinions - A Charge on Gettysburg

Episode Date: May 20, 2025

Sarah Isgur and David French invite Judge Kevin Newsom of the 11th Circuit to discuss his time clerking for Justice David Souter and the strong humility that defines the late justice’s legacy. Then, Sarah and David recap their annual Legal Eagles trip to Gettysburg. The Agenda:—Justice David Souter’s independent mind and the significance of his judicial philosophy—6th Circuit Judge Chad Readler breaks down Legal Eagles trip to Gettysburg—The Constitution and the Civil War with 6th Circuit Chief Judge Jeffrey Sutton—Chief Judge Edmund Sargus of the Southern District of Ohioshares the story of Thomas Drummond and his overlooked role in the Civil War—Pickett’s Charge! Show Notes:—SCOTUSblog: “David Souter, Retired Supreme Court Justice, Dies at 85” Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings, ⁠⁠⁠⁠click here⁠⁠⁠⁠. Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions! I'm Sarah Isgur, that's David French, and we have a special episode for you today. But first, David, for our next episode this week, we've got a lot of actual law and news to get through, some additional thoughts on the birthright citizenship argument from last week and Barnes v. Felix, the opinion that was handed down that morning as well. Plus, we got a late night opinion from the Supreme Court on Friday in that very unfortunately named AARP case, which is not about old people, but in fact about the Alien Enemies Act and due process. What's your bottom line up front about that?

Seven to the Supreme Court says, hey, you know, we've been telling you need saying you need to provide due process. We meant it saying you need to provide due process. We meant it. You need to provide due process and due process is not some instant process. It's a due process. And so nothing about that outcome is surprising. The lineup isn't surprising. The outcome isn't surprising.

But we do need to talk more about the reasoning and that is coming up. And I cannot wait to talk about Barnes v Felix Sarah husband of the pot has never been prouder of me david because I was on abc This week and was asked about uh that decision And got to cite future and metro boomin and said the supreme court was basically saying We still don't trust you and nobody on the panel got that. But definitely some viewers out there knew about the Drake, Kendrick Lamar beef and got my We Still Don't Trust You album citation. So that I think is the album side for AARP

from, it was a per curiam opinion. I don't think it was written by the chief. But nevertheless, we still don't trust you has a certain chiefiness to it, in my view. All right. So let me tell you about today's special episode. We are going to start with Judge Kevin Newsom of the 11th Circuit sharing memories of Justice Souter, who he clerked for in the OT 2000 term. You may remember something that happened in December of 2000, especially at the Supreme Court. Lots of fun, interesting tidbits about Justice Souter and just his impact

on the Supreme Court and the legal community. Then we'll move on to Legal Eagles 2025, starting with Judge Chad Radler of the Sixth Circuit. We'll also move to Chief Judge Radler of the Sixth Circuit. We'll also move to Chief Judge Sutton of the Sixth Circuit and then Judge Ed Sargas, District Court Judge in Ohio, also on the Sixth Circuit. Finally, we will end with Pickett's Charge. And I think you're in for a treat as we'll have some audio from our tour guide, Jim Hessler. He is a licensed Gettysburg battlefield guide,

as well as the host of the podcast, The Battle of Gettysburg. So David, let's start with our memories of Justice Souter. Welcome back to the podcast, Friend of the Pod, Judge Kevin Newsom of the 11th Circuit. Judge, we've asked you here today to talk a little bit about your old boss, Justice David Souter, who passed away last week. And in so many ways, he was the quietest of the justices.

And I mean that both literally and metaphorically and his role on the court. He is appointed to the bench by George H.W. Bush in 1990, serves until 2009, and he's an incredibly important part of the story of the Supreme Court, and especially the conservative legal movement as well. He plays a pivotal role in how the entire thing unfolds. I'm wondering if you could tell us about his jurisprudence, sure, but I guess a little bit more about the man. Yeah. I mean, I guess I'll just say first, anyone in my seat would say the same thing, but it really was the honor of a lifetime to work for him, to work for the court and really to work for him. As I've said before, I think he knew exactly what he was getting when he hired me.

You could sort of look at my resume. I was coming off an O'Scannling clerkship. You know, I had been a member of the Federalist Society at Harvard. And so, I think he had a pretty strong sense that, you know, he and I might sort of do law, so to speak, a little bit differently. And I think it's a great credit to him that he brought me on board anyway. And as I've said before, one of the great lessons I learned from him is, you know, just sort of independence of mind.

He, you know, he himself was very, was quite independent minded, but he also expected of me that I be independent minded. He never wanted yes men and women. He really wanted to hear what I thought, you know, sort of what I thought about the cases, how I thought they would ought to come out. And I think he kind of wanted to I thought they ought to come out. I think he wanted to be pushed and prodded and challenged. I've tried to bring that attitude over into my own chambers.

I don't hire ideologically. Neither do I hire people necessarily in my own mold, nor do I go out of my way to hire so-called counter clerks. I'm just hiring people who I think are smart and hardworking and fun and who believe that the law is a real thing, you know, something to be, you know, sort of discerned and found and applied. But I tell them, yeah, I tell them, look, don't ever try to channel me. Like I'll figure out what I think.

I need you to be your own best selves. That's the only way this idea lab is going to work is if everybody feels sort of empowered to, you know, be doing their own thing. And I really do think that I learned that from him. We've noticed your independent streak, Judge. Everyone has noticed your independent streak. Yeah, for better or worse. In all the best ways. In all the best ways. Yes, absolutely. So, but speaking of Justice Souter's independent streak and not following the crowd, I know this is like a silly example, but it has always struck me as a bit bigger than its literal form which is, did you ever see him eat a whole apple? My understanding is he ate the core and everything because it is actually almost more of just

a cultural norm that we don't eat the core of the apple. And he was like, why? I eat the whole apple. That struck me as like so independent minded where it's never occurred to me to eat the core of an apple. And I was like, I am just a follower. I'm going on with the crowd wasting a good quarter of my apple here. Yeah, I really think that this like this is pretty reflective of his personality, that he just in the best way, kind of didn't give a damn about like what people thought about him. Like he, I think he really thought he had found the best way. And he didn't really care if people thought eating the entire apple core and all and a yogurt was weird.

He had, he had like hit upon something that worked for him, and that's how he was going to do it. I don't know, I think all of us, my wife and I have said to our kids, but one of the happiest moments of your life will be the day when you realize that you really just don't care what other people think about you anymore. That's a really freeing thing.

I just think he was always that guy. I don't know if he ever had like any like angsty teenage moment where he was like deeply concerned with what other people cared about, you know, thought about him. But he was always just his own man. And I think, you know, sort of in every way. And the core of the apple is reflective of that. So there's also something that is seemingly reflective of that. He's his own man. And that is that he retired after 19 years and then had a you know, 16 years of life after the Supreme Court this is

Not the norm now So, you know that there's there's a sense almost that you're almost like letting down your side if you retire or maybe no, actually what you need to do is really time that retirement for the sake of your side. And it seems that he just stepped away when he wanted to step away. Do you have any insight into sort of that whole process and why he left at a point where he was going to have many, many years after the court? Yeah, it's a great question. And I don't, of course, like I've never, I wasn't there when it happened, I haven't

talked to him about it, but it doesn't surprise me that he chose to walk away sort of when and in the manner that he did. You know, I think he was like the one guy who didn't think that being on the US Supreme Court was the pinnacle of one's existence. He thought it was like cool and an honor and that he had done it and tried to do it well, but I really think he thought, my life is bigger than this and there's more to it. And for him that really meant being outside and reading books. And that's how he really kind of wanted to spend his golden years. And it's pretty cool that he did it.

Because there are, as David, as you say, there are so few people who really, I think, can muster the courage and the self-awareness and the self-possession to do it. You know, you see so many people in so many walks of life who hold on too long, you know, kind of foul everything up. And I'm thinking about, you know, like for, I won't even talk about politicians and judges. We can just talk about Michael Jordan, right? Like who wants to remember, who wants to remember Jordan playing for the Wizards? That's not cool at all.

Exactly. Exactly. He should have ended with the push off on Russell and it was a push off. That could have been, that should have been the moment. But you know, absolutely. Now I will tell you this, I was in a room full of journalists recently and this will just tell you kind of what a group of nerds, sort of like nerds journalists are sort of as a tribe. I use that exact analogy, Judge. We were talking about when it was time to sort of end one part of,

when do you end a column, when do you end a podcast, when do you end something? I said, we got to go out at the Byron Russell 98 moment, not the Wizards moment. Yes. People looked at me like, what are you?

What are you talking about? And so, but yeah, I love that concept that you are not defined and identified and defined by the highest position that you reach in life. And then that's what you need to cling to as long as you can or the position where you make the most money. You know, we talk about golden handcuffs, for example. There are handcuffs related to power and prestige as well. It seemed like, as you're saying, he was immune to that.

That just didn't work on him. It takes a lot of humility because we've all been in these jobs at one point or another and you will start to feel indispensable. If I leave, the person who replaces me can't be as good as I am, as good at the job, as good morally, define good however you want. Therefore, I cannot leave even if I want to, of course, and even if I wish I could.

The humility is really what strikes me about it. Yeah, it's crazy. I just think the depth of his humility is almost impossible to get your head around. He just, he didn't think that he was all that big a deal. You know, I think he, he really just thought he was serving a function, an important function, but that there were likely dozens of people who could serve that function just as well. And you know, like famously he hired for his clerkships late because his attitude was, well, I think mine is probably kind of like the least desirable clerkship in the building. And so I'll just hire late.

But now, of course, I beg to differ with that. It was a magical experience for me. But you know, I think he just never really thought he was all that. And I have said, and I don't really know whether I learned this with him, but I'm sure you guys rub elbows with so many smart, fancy people. The very best kinds of people

and the people you really wanna surround yourself with are the people who really are all that and a bag of chips, but who not only like don't tell you about it, but don't even know it. Like subjectively seem not to understand how great they are. And that was him. I just don't think he really fully understood how bright, how disciplined, how, you know, just sort of what an other worldly kind of intellect he was. I want to move to his jurisprudence, but before we do,

give us a sense of how his chambers were decorated. Well, let me, I remember that we had an oil painting of Bushrod Washington that was important. Very early justice on the Supreme Court who was the nephew of General Washington, President Washington. And I mean, who doesn't think about naming

their first son Bushrod, really? We need a name revival. Where are all my Bushrods out there? I tell my older son, whose name is Marshall James, we call him MJ, but I said, you know, it came down to Marshall and Bushrod. We decided ultimately to go with Marshall. So we did have an oil painting of Bushrod that I remember. Other than that, frankly, I don't remember much, just lots of books, books and more books. But, you know, the chamber's operation was, you know, sort of for all of his quirks and idiosyncrasies, he loved being kind of out with us and mixing it up with us. and he would come out, you know, to

sort of shoot the bull with us. And I think he was pretty self-aware about his own adorable oddities, you know, so he would tell stories on himself. So many of these have made the rounds, but I've got stories on top of stories on top of stories. But like, you know, like a really short one, he came out once and we were talking about something, you know, to a co-clerk and I with the justice. And he said, that reminds me of what Dryden said. And then he just turned and walked out. And like my co-clerk and I were like, okay, number one, who was Dryden? And number two, what did he say? Because I don't know either of those things. Like the only person who understood the punchline

of the joke was him. Because he was like in this other, you know, sort of this ethereal realm that my co-clerk and I had never entered. So we just like didn't get the joke. He once came out and said, how many of you read Latin? And we looked at one another and we were like, hate to disappoint you, but none of us. And he said, well, maybe you'll remember from when your parents read Horace to you as a child. And he was dead freaking serious.

And we were just like, sorry, dude, you know, we were reading like Dr. Seuss, not Horace. So he's just a crazy, different, different gear kind of intellect. But I think he was he also recognized how kind of weird it was, you know, as so many people have said, and it's just so true. He was kind of a 17th or 18th century guy who had been teleported to the 20th and 21st century and was just like completely out of place. But, you know, sort of embraced it. How hysterical would it have been if he'd retired to Colonial Williamsburg or Mount Vernon, where you know that you have the people walking around in full character all the time? He would have been perfect, it sounds like.

Exactly. And it's funny because as you probably know, so he did retire to his beloved New Hampshire and his original house, I think the house that he grew up in and that he retired to was essentially a log cabin. And there, I don't think there's any other way to describe it. But it was, he got a surveyor or an engineer who came in and said, dude, you've got to move because the structure of this house cannot support all of the books in here. And so Souter had to move to like a proper suburban house

with like a proper foundation in order to like sustain his book collection. Wow. So when push came to shove, the books did win. Yeah. He was a lifelong bachelor, of course, which we haven't mentioned. But okay, what do you think his most important opinion was or contribution to legal jurisprudence? Yeah, great question. So, I mean, even as a clerk and a student of his, I don't really think of him as having signal opinions.

I just don't, I really don't. I think that the broader arc of his jurisprudence would be, and has been described as something like common law, constitutionalism or something like common law, constitutionalism, or something like that. I think he took sort of the common law mode of reasoning and applied it in effect to everything he did, whether that was interpreting statutes or the constitution. And that's one way I think in which he and I just see the law a little differently, I think really that there are several ways of thinking about law, but that interpreting written documents is a different discipline.

You know, whether you're talking about a statute or a regulation or a contract, or even though it's a very different kind of document, the Constitution, That's a little bit different from, you know, sort of reasoning from one unwritten principle and norm or custom to another to another to another. But I think he was really a common law judge. And I think that is reflected even in his decisions interpreting written documents. Interesting. So, he joins the court relatively shortly thereafter, we'll have Ginsburg and Breyer join the court as well. And that's going to be one of the longest periods of stability

on the Supreme Court from 1994 to 2005. Kind of incredible. And even then, when the Chief, Chief Justice Roberts replaces Rehnquist, Breyer, poor Breyer is still the junior justice on the court, of course, because the chief can never be the junior justice. So Breyer's like, oh, Sandra Neal-Connor's retiring, finally, nope. I hadn't even thought about that, Sarah, that's funny. Right, he has this like year-long period where he was supposed to finally not be junior,

and then he still is. Anyway, poor Justice Breyer. But in that 1994 to 2005 period, an incredible 11 years of stability on the court with seven justices appointed by Republicans. Ginsburg and Breyer are the only two appointees by Democratic presidents, President Clinton, of course, and they're the two most junior justices. And yet, it is not considered a particularly conservative court for those 11 years. And this, I think, really does... The conservative legal movement, of course, you can decide when you think it started, but the Federalist Society starts in 1982.

So the Federalist Society was long in existence. Originalism was already a project before this 11-year period. But there's something about this period, which I think gives a lot of wind under the wings of the legal conservative movement because it's a 7-2 court, but it doesn't feel that way. And so a lot more focus will be paid to exactly who we're appointing. What proof do we have of their jurisprudential priors? And you can hear this today. It's almost like a, remember the Alamo rallying cry among conservatives to say, no more suitors. And there's this moment that has been documented, not by me to be clear. I'm repeating what others have written. I clerk for Judge Edith Jones, as many of you know.

They are both invited to the White House. George H.W. Bush sits down with both of them. They are put in separate holding rooms as he makes his decision. The Sununu family comes out strongly in favor of Souter, makes various assurances about the type of judge injustice he will be and Souter is taken out to the Rose Garden

and EHJ is taken out, EHJ, Judge Jones. Judge Jones is taken out the back. And it's this moment that conservatives reflect on, you know, like Gettysburg, David, which we'll talk about plenty on the rest of this podcast. But right, it's the, this turning point in the war, if you will. And so I'm wondering Judge Newsom,

how you see Justice Souter's legacy in that regard. Yeah, oh, there's so much there. I mean, I guess the first thing I'll say is that I really do feel privileged, not only to have clerked for him, but to have clerked for that court, that court that was together for 11 years. And you know, I've heard him say it publicly. He's my circuit justice.

So, you know, I see Justice Thomas more often than the others. But Justice Thomas has said he loves his current court, but he has this really deep affection for that Rehnquist court, the 11 years of togetherness with those judges, those justices. And that was certainly my impression when I was there. There were tough times. You know, everybody wants to talk about Bush versus Gore. That was my term.

But my strong impression was that the relationships among the justices were really, really good. You know, I know, for instance, that Justice Thomas adored Justice Souter. Justice Souter famously was mugged when he was out running. You know, again, of a piece with his humility, never took the security guards with him. He just left his apartment and ran down to Fort McNair. And one night while doing so, while coming back, was sucker punched and basically woke up in the gutter. The first person to check on him was Justice Scalia.

So, Scalia and Thomas and Justice Souter, they saw the law very differently, but I think these people really had deep affection for one another. That court was a really special place. Yeah, so it's hard to imagine how the Supreme Court and Supreme Court politics, so to speak, would have been different had Judge Jones been the nominee instead of Justice Souter. I think it's not all that surprising. I'm not a great student of politics, but I don't think it's all that surprising that George H.W. Bush put David Souter on the Supreme Court. I'm not really sure that their judicial politics, so to speak, were all that different.

They were both quintessentially sort of New England. And my guess is that George H.W. Bush saw in Justice Souter sort of a kindred spirit, someone he recognized. So I really don't think it's all that surprising. And then frankly, if you watch Justice Souter's confirmation hearing, you know, when he says that his judicial model is Harlan the second, that tells you a lot, right? That tells you, I'm not really sure that the balance of his career is inconsistent with that, you know, sort of representation that he made to the Senate Judiciary Committee

about Justice Harlan. You know, when we think about that history and that sort of branching tree of decisions, I mean, a couple of things come to mind. One is just the human element of imagine the sensation and the feelings of the two people, Justice Souter heading to the Rose Garden and Judge Jones heading out the back door. And I don't know if you think in that moment, I will never have this chance again. There's probably, probably you're thinking that.

You're probably thinking, well, this is the moment if she had that dream that this dream died at the most excruciating moment possible. But David, she knew that somewhere down the line, she would get to have me as a clerk, which wouldn't have happened otherwise. That solves all wounds. It really all turned out pretty aces.

But she didn't know that then. She didn't know that then, Sarah. Somewhere in her heart, she must have. Yeah. Sorry, Judge Jones. The other thing is I wish that more modern conservatives looking back at this time with such contempt would realize that there was this thing called a filibuster, a judicial filibuster.

And so it was just not the case that you had a situation where the president could just work his will in judicial nominations as the Robert Bork nomination showed. And so you had to make very, very difficult choices on the basis of uncertain outcomes because unlike now, the Senate could actually did check the president in that arena. And so, you know, you do wonder if you, if you look back in this record of the 7-2 Republican nominated court, how much would history been different if the judicial filibuster had been abolished 35, 40 years ago? How would things be different?

Yeah, it's so true. And, you know, and so, Sarah, you had mentioned and David picked up on it sort of the no more suitors rallying cry, you know, a story that I've told, but that I'll retell is that, you know, no more suitors comes from my now colleague and chief judge, Bill Pryor and, and, and long time buddy, Bill Pryor, right? Like, so he was the one who made the quip, please God, no more suitors. And so I did not know that. I just want to like state that I had no idea that came from him. No, but it's a great connection. It's a great connection because and I've told Bill, I've told Chief Judge Pryor this story as well that when you know, as you may know, Bill is the one who hired me to book to be Alabama Solicitor General when he was Alabama's

AG. He's the one who hired me to be the SG. So when he offered me the job, I called among other people, but I called Justice Souter to ask for his professional advice. You know, this was, it was a big deal. It was to move from Washington to back to my home state. I think there was some reason to believe that if I took the job, and as it turns out, you know, we'd never move back to Washington. So, it was kind of like, it was a lot of, there was a lot of upheaval. So, I called him to sound him out about it. And I said, you know, so here's the deal. I've been offered the job. And, you know, here's what I get to do. It'd be pretty cool. I'd get to argue cases in the US Supreme Court. Seems like a pretty good professional opportunity.

And he said, let me ask you this. He said, this fellow who is appointing you, isn't he the one who prayed for my untimely death? And I said, no, no, I said, he did not pray for your untimely death. I think Pat Robertson did. But that was not Bill Pryor. And I said, he made this quip at an event about, please God, no more suitors. And just true to his character, David Souter was just like, eh, who cares? Like, you totally ought to do this. This is a no-brainer. Yes. So, I've got this lovely connection between Justice Souter, whom I adore, and Bill Pryor,

whom I adore. And they are both, you know, and, you know, sort of my sort of judicial philosophy is obviously a lot closer to Bill's than it was to Justice Souter's. But, you know, as I've said before, you know, I think there are different ways to be a good judge. And Justice Souter's first principle was not rigorous adherence to text and original understanding. His was kind of, as I said, sort of a common law constitutionalism. And if that's your first principle, then I think he did it really well. That is not my first principle. But if that is your first principle, then I think he was just an outstanding judge. And I think one way in which we could be a bit more humble is to recognize that there are different ways to be a really good judge.

Talk about those forks in the road. Obviously, I think the one that people focus on the most is Souter versus Jones. But of course, there's Roberts versus Ludwig in 2005 for chief. And then to bring it back, the one that nobody really talks about, but maybe we should more is Gorsuch versus Bill Pryor in 2017 when it comes down to the two of them, a fascinating... Selfishly, I'm glad that I've still got Bill across the hall. He would have been great on the court and is very deserving, but I'm thankful to have my friend across the hall. Well, you mentioned Bush Vigore. This was your term, although you're of course not allowed to say what you actually worked on,. One might feel from the outside that perhaps this was an all hands on deck situation.

You probably weren't on some Arissa case and being like, Oh, is there something going on down the hall? Yeah, it was just a vacation. What was everybody else there for all the time? We were just kicking it. Bush v Gore, the oral arguments. I listened to them again recently and I think from this podcast or perhaps even reading about him, you can get the impression that because of Justice Souter's humility and his deep intellectual life, that perhaps he was shy. And I highly encourage people to go listen

to the oral argument Bush v. Gore. He was not shy. He spoke plenty and forcefully at that oral argument. But there's this one moment in oral argument and we'll play the audio now. The legislature would have to create one, sir. I don't know what's the... You're saying that they can't interpret a statute in which there is no explicit definition. What I'm saying is... They have to throw their hands up. No, Justice Barr, what I'm saying is that...

I'm just a suitor. You better cut that out. So, there's a few things about that that are funny. It actually is this very well-known is that I'm just a suitor. You better cut that out. There's a few things about that that are funny. It actually is this very well-known moment in Bush v. Gore where the advocate keeps messing up all of the justices. He gets Scalia wrong. Obviously, just a suitor is referring to the fact that it's happened several times. But someone who is not self-confident may not actually correct someone who gets their name wrong or someone who's too shy. That's not him.

He's humble. He's not lacking in self-confidence. Correct. Yeah. Yeah. What he wasn't was showy, but he was, and not in a mean way, but I guess I argued in the Supreme Court four times. He was on the court for all four.

He never voted for me once. And I was always, always perfectly and properly terrified of him at oral argument because like I guess, you know, sort of given who my clients were and given what my positions were, I guess I might have assumed going in that he was unlikely to be on my team. But Justice Breyer likewise was unlikely to be on my team. But Justice Breyer's manner at OA was completely different. He would ask these very long, and you guys have talked about this, but these very long

hypotheticals and you would sort of spin them out for several minutes. And while he was asking this question, you could be gathering your thoughts to try to say something intelligent in response, but suitors were always sucker punches. They were, I mean, they were smart and quick and over. It was like the Mike Tyson, sort of like uppercut, and you just had to be so good on your feet. And frankly, like that's never been my strength. Thinking

immediately on my feet is, it's just very difficult for me. And so I was always most afraid of Souter at the OA. But Sarah, to your point, no, didn't remotely lack in self-confidence. It's just that he didn't show it. He didn't sort of flaunt it, I should say. All right. Last memories of your justice. What's, you know, when you hear his name, what's your go-to moment or sound or smell or whatever that visceral memory is?

Yeah. I mean, I think really just to me, the sheer magic of being in that building for a year, I just never once took it for granted. I could not believe that I got to do it. And so, you know, sort of walking, you know, sort of up the steps into the entrance every day was just magical. I can still literally like smell the hallways, smell the sort of the chambers, hear the clickety-clack on the marble floors. I think he took a real chance on me in many

ways. And I'll just forever be so grateful to him for giving me that opportunity. Justice David Souter, thank you for your service to our country. Indeed. Thank you, Judge Newsom. Thanks for having me. And we'll take a quick break to hear from our sponsors over at FIRE. Free speech on campus is under attack

and professors are too often among the first to draw administrators or their institutions' attention. FIRE, the Foundation for Individual Rights and Expression defends faculty when universities try to silence or punish them for their views. FIRE's the Foundation for Individual Rights and Expression, defends faculty when universities try to silence or punish them for their views. FIRE's Faculty Legal Defense Fund connects threatened professors with attorneys ready to fight for academic freedom and the First Amendment. FIRE is expanding their national network of lawyers who believe that the right to think,

speak, and teach freely is worth fighting for. If you're a lawyer who's ready to fight for free speech on campus, visit thefire.org slash network. That's thefire.org slash network. Protecting academic freedom has never been more important, and it can't happen without principled defenders like you. David, what are your biggest takeaways of the impact Justice Souter left on the law? Boy, that's a big question, Sarah. As we were walking through this, and I was very intrigued by Judge Newsom's description

of his jurisprudence and that the conservative critique of him is that he was faithless to conservatism. But what if that wasn't his basic underlying philosophy? His basic underlying philosophy was this constitutional common law and he was quite faithful to it. And I just thought that was a very interesting takeaway. And then the other thing that I keep thinking about is we have made a lot of changes in politics and in culture to de-emphasize process and to emphasize outcome. And are we really better off for it? So on the one hand, you might say, okay, if I'm a judicial purist, sort of I'm a purist originalist, well, the filibuster, a process point,

was really bad. It was really bad because it prevented a lot of good judges from getting on the court. The other hand, when you're talking about judges, all of whom who have to be nominated and confirmed with a degree of consensus behind them, is that actually better for the democracy long term, even as it might be bad as I think of bad for the jurisprudence I would like to see short to medium term. And so these are the kinds of questions

that I don't think we've wrestled with quite enough as we've gotten more and more and more polarized. Is it really the case if you have a long-term interest in the health of the American Republic that you can now ram through people without consensus? But I'm torn on it because on the other hand, I think a lot of good jurors jurists were blocked on the basis of nothing more than sort of like very qualified, highly qualified people.

So for example, Amy Coney Barrett, who a lot of people are realizing is a quite independent thinker would have never made it through the old process. And yet I think she's just a tremendous asset to the court. And so I don't, I'm just saying that I'm just talking out loud because I don't know how I necessarily reconcile this, but there are trade-offs. There are trade-offs and some, we often walk into these decisions without thinking the trade-offs through fully. I think for me, I am prone to admire people who are the least like me, who don't have

my flaws. And Justice Souter is like the epitome of the person who doesn't have my flaws and his humility and quiet leadership, his deep intellectual life are all the things that I just truly admire and take as serious examples that I hope I can, I sort of struggle with every day and always want to be striving to do better at. Well, you know, I think that is just a wonderful, what Judge Newsome laid out, that Judge Souter, Justice Souter's mindset was not, I am my career, or his identity was not SCOTUS justice core identity. And I think we're seeing like the wages of that realism work is a mindset that essentially where we define ourselves by who.

By our power, by our position. And, you know, this has direct application to not just, you know, there's a lot of news around Joe Biden around the, the book launch, Jake Tapper's book launch about the decline that he experienced, how it was hidden. It doesn't just apply to Joe Biden. It applies to that layer of people who are all around him. Who were deriving their own power, their own prestige. They were living in his refracted glory and they couldn't give it up.

And so that, that identity problem isn't just for people at the top of the pyramid, it's for the people who benefit or are who they are because of the person at the top of the pyramid. And it goes and it flows down from that as well. Well, speaking of a story filled with egos and humility and dedication and selflessness all wrapped into one. Let's talk Gettysburg and Legal Eagles 2025. We start with an interview with Judge Chad Radler of the Sixth

Circuit to introduce us to what Legal Eagles is all about. Judge Chad Radler of the Sixth Circuit, thank you for joining us and thank you for including us on the 11th annual Legal Eagles trip. Well, thank you for coming both to you and David. It's great to have you. Congratulations on your continued success with the podcast and your ever-growing empire. I was sort of wondering when the anti-trust laws kick into Supreme Court coverage, but you might be broaching the line, but keep up the great work. Tell us a little bit about the origin of Legal Eagles.

Yeah. So if your listeners want a real deep dive, they can listen to your podcast from about exactly two years ago, but you did a great show covering your first time covering Legal Eagles. You did a great interview with Alan Norris. Alan Norris is a wonderful American. He was my boss. So he's a judge on the Sixth Circuit. He was my boss in 1997, 98 when I clerked for him. He still serves on our court. He turns 90 this summer. I hope he doesn't mind me saying that on a national podcast.

And for the last basically 12 years, he has led a group of judges and lawyers, basically, or law clerks, basically all from the Sixth Circuit to tour the Gettysburg battlefield. Judge Norris was a, I would say a Civil War enthusiast when I clerked for him, but he took a very special interest in Gettysburg. And I think on average, he probably visits the battlefield four times a year with his wife Carol. And they really kindly agreed to, again, take judges and law clerks annually, which is great for the judges because we get to go

regularly and do this. But for the law clerks, they just clerk for a year. So each group of law clerks gets to come in, see all three days of the battle. Until this year, Judge Norris has led the trip, which has really been fantastic because he is a scholar on the battle and he takes us through each day of the battle. This year, he wasn't able to join us, so we improvised, hired some terrific guides to take us around Gettysburg and just had a wonderful time. It was great to have the two of you there and even in the rain. Thank you for putting up with the elements. you there, even in the rain. So thank you for putting up with the elements. And why does Judge Norris end up focusing on Gettysburg and what's his thesis about the Civil War? Like how did he become, well, the battalion commander of legal eagles?

Yeah, I mean, it's a deep roster. Judge Sargasso, you're going to have on the show as a real scholar. Judge Sutton has picked up quite a bit of information over the years as well. I'm going to consider myself the least scholarly of the three when it comes to Gettysburg. But Judge Norris has had a real interest in history. And I think all the lessons at Gettysburg, both the individual lessons from the battle, sort of the larger reflection that the battle had on the outcome of the Civil War, sort of the two sides approach to the battle and to history. And then of course, all the history that unfolded, legal and political history, both leading up to the Civil War and then after the Civil War.

I think, I assume it's sort of that collection of things that really drew Judge Norris to the battle. At this point, he really has got to be one of the leading scholars and experts on the battle. David, what was your favorite moment from this trip? Oh, easy. It's the picket's charge in the pouring rain. There's something more fun about doing it when the elements are bad because it makes you remember all of it more vividly. But I think the thing that really imprinted on me was you just stand there, you look across that almost mile long

or mile long field. And I've always thought of this as this sort of act of total folly and futility, sort of a last desperate play with the Confederate Army on the verge of defeat. And what was so interesting to me about that moment was talking through, and the guide that we had did a phenomenal job of sort of getting in Lee's brain, why would Lee think this would work? Why would he think this would work? Because it had worked before. And this is not something that had really been emphasized in my prior learning about Gettysburg. And so as you walk it and you realize how brutal the entire thing was, just brutal beyond words, and then at the same time, how contingent history was at that moment, because this was not a foreordained doomed charge.

This was something that could have potentially swung the battle and potentially swung the course of history. And just sort of thinking through all of that was very, very, it was very impactful. And then also the way all of our guides put, tried to put us in the heads of the commanders so that we are thinking through the decisions with the information set that they had versus the information set that we have now. And it really helps you understand how things transpired and why things transpired.

Well, Judd, you say you're not an expert on this, but when we think about moving from the Declaration of Independence to the Articles of Confederation, which really then is almost like a treaty between states, like a sort of perpetual friendship idea, we move from then the Articles of Confederation to the Constitution, which is more of a union of the states, but nevertheless, it's the states really driving the car of union, if you will. And then we refer to the Civil War as the second founding because that changes dramatically the relationship between the states and the union. It's then really the union and the states. But you have a theory that today we're

kind of in the midst of another transformation and the role of states is once again shifting. Yeah, yeah. I'd love to talk about that. I'll just say a couple of things about what David mentioned. One, we were in the rain, which was far different from, I think, the conditions in 1863 and July 3rd when it was 90 plus degrees and the soldiers, of course, wearing these very heavy uniforms in addition to, of course, all the danger they were putting themselves in. So I think our big fear was ticks while we were in the field and some mud puddles. So we were a little different posture

than the soldiers that day. And there's one last thing about this year's tour. We got a lot of lessons about the battle, but also a lot of lessons about leadership. Our guides really emphasized decision making and how decisions are made, how they're communicated, how they're executed. And we, of course, talked about that in the context of a very bloody battle. But there are a lot of leadership lessons you can draw from Gettysburg that apply to

sort of everyday life and work. And our guides did a really terrific job of emphasizing that, you know, apply to sort of everyday life and work. And our guides did a really terrific job of emphasizing that, which I really, really enjoyed. There's just so much to learn at Gettysburg. And so you can go back every year or even four times a year, like Judge Norris does and never not learn something new. But I do think, yeah, I teach a presidential powers course, which I sort of modeled after my time at the Department of Justice in 2017 and 2018 when I was the acting head of the Civil Division and doing some of the high profile cases for the administration. So I teach at Ohio State and at Michigan Law Schools.

I'd like to say I'm very bipartisan in that respect. But I start the class, I actually really enjoy when you have judges,kridge and Starr on, because they talk a lot about the founding and sort of the structure of the constitution. My class is really forward leaning to sort of this century, really the last 25 years, and kind of how presidential powers have developed. And I sort of come to the conclusion that the real check, you know, of course, our system is based on checks and balances, that the courts still remain a check on the executive. But in place of Congress, which I think was thought to be not only a historical check

on the executive branch, but in many ways, the most powerful branch of government, the states have stepped in. You've had other guests talk about sort of the declining role of Congress and its inability to legislate, let alone maybe sort of curtail executive action through funding or impeachment or legislation or all the different tools available to Congress. But in this place, we have an executive and this is executives from all parties, so Republican and Democrat presidents, taking action to solve the public policy challenges they see, whether it's immigration or national security or budget or other regulatory matters. They're doing that through executive orders and

rules and regulations. And the check these days is our lawsuits. And most of those lawsuits or many of them are brought by the states. A lot of the leading cases are brought by the states or the nationwide injunction argument at the Supreme Court this week, I think there are three cases to those are brought by the states, the student loan case was a state case, DACA, the travel ban, the census, you know, you think a lot of the big cases over the last, say, seven or eight years and states are leading those cases. So they've really, really stepped in to be sort of a countermeasure to the executive and they're about 25, you know, sort of Republican states, 25 Democrat states.

So there's always a field of folks available to bring lawsuits. And I think there have been a, because states have sort of stepped to the floor, that's made a huge impact on kind of the trajectory of federal litigation. And of course, these cases work their way through the courts and oftentimes up to the Supreme Court. But of course, anyone can sue the executive, but states have a lot of advantages. One, they have, to some degree, endless resources. So if an interest group wants to bring a lawsuit or something, they have to fundraise to be able to pay for the case. States sort of have that taken care of.

Two, the standing rules for states have been modified by some recent cases and states have the advantage of proving standing over say a collection of citizens that want to sue the government. Take the student loan case, for example, where there was a huge question who would have standing to sue the federal government and it was finally determined that this entity in Missouri that service student loans did. And then think about relief, obviously nationwide injunctions, national injunctions, universal injunctions on the news quite a bit.

But even a court that's trying to sort of follow very traditional rules about only granting relief to the parties in front of it, if you have a collection of five or 10 states bringing suits against the government, you can more easily justify broadly, perhaps even a nationwide injunction, if you think that's necessary to protect the states. And again, that's something that's harder maybe for a different organization to put forward. Is this a good thing though? I mean, obviously we spent a lot of time on this podcast

talking about Congress do your job and sort of the original vision of how those checks and balances were supposed to work between federalism, which I've always referred to as like vertical, between the federal government and the states, and then horizontally within the three branches of the federal government, it feels like without Congress, the whole thing gets out of whack. And I guess my take, up until hearing you at least, was that this federalism check that you're describing between the states and the federal government is out of whack too. Because the states weren't meant

to really be a check on the executive branch. And the result is that everything ends up in the judicial branch. It drags the judicial branch into what would otherwise be political fights that involve Congress. And the whole thing maybe still is out of whack. Yeah. I don't leave it to listeners to pass judgment whether this is a good or bad point fights that involve Congress and the whole thing maybe still is out of whack. Yeah. I don't leave it to listeners to pass judgment whether this is a good or bad point in history. But I do think your point is right about the pressure this puts on the courts, and oftentimes including the Supreme Court. Congress, if it used the tools available to it, could check the executive in ways that wouldn't always or typically involve the courts.

But in these circumstances, that's where all these disputes are ending up. And that's definitely putting the courts more into the public mind. And I'm not sure that's a positive development, but I don't know, I'm sort of biased since I said I won. So I'll leave it to everyone else to judge whether they think we're in a good point in time or not. You know, I do think the states are more immune from the pressures in DC to total conformity with the, you know, the, so if you're the, if you are in Congress and you're a member of the president's party, there's just this enormous pressure to conform to the president's wishes. And this, if we've seen this again, both sides of the aisle, the states, I think have less incentive just to fall in line, uh,

with the president's party or to the extent that they do fall in line with the president's party. There's plenty of states who are not interested in that. So there's always the presence of a vibrant check. And I do, I have found myself reading anti-federalists with a little bit more interest lately, because it does seem that some of the concerns that they had about the central federal government that had not been fully realized throughout much of American history are becoming more realized now. And I'm finding some of their arguments for states and decentralization a bit more compelling

than I used to. Yeah. And in some of these cases, they aren't as political as others. Sometimes you have 40 states, you know, joining a lawsuit or at least lead states getting supported by a number of amicus because there's just a state interest that they feel needs to be vindicated where they think the federal government's trampling it. But a lot of these cases do sort of break down along politics as well, where you have 20 states suing and then 20 states filing amicus brief on the other side of the case. Oh, sure.

Thank you so much for joining us. I do have one last question. So the way that we're friends is because we worked at the Department of Justice together. You were the Assistant Attorney General for the Civil Division. Any thoughts on how the Civil Division is doing these days? I mean, it's an incredibly busy place right now. Yeah, it sure is. Yeah, it's such a privilege to work there. I had about two years at DOJ. So many great lawyers. There's a thousand lawyers in the Civil Division. You know, unlike most criminal cases in the Department of Justice, you know, most of the work is really done out, I would say, in the field in the U.S. Attorney's offices. There are some criminal

cases that are kind of overseen by Maine Justice, but a lot of the criminal is really done out, I would say, in the field in the US Attorney's offices. There are some criminal cases that are kind of overseen by Maine justice, but a lot of the criminal work is done out by the really talented lawyers, the USAs around the country. But the high profile civil cases are mostly done at Maine justice, oftentimes in conjunction with the US Attorney's office. And there's just terrific lawyers in the civil division. I would emphasize probably the Federal Programs branch. So obviously in the news lately, but over a number of years now, we have, as we discussed, executive action attempting to solve problems through executive orders, rules, regulations.

And definitely there's a lawsuit. And the lawyers who end up defending most of those lawsuits on the government's behalf are in the civil division in the federal programs branch. I sort of think of them as kind of the Navy SEALs of the Department of Justice. The typical case is that there's a rule issued by an agency. The agency's been working on it for two years and immediately, and then you can of course consume the government wherever you want. So case can be filed in Ohio, DC, California.

And a district judge draws this. They're probably very interested. It's an interesting case. And they set up preliminary injunction hearing for three weeks. And in that three week period of time, the lawyer at federal programs has to learn the substance of the rule, has to learn the law in that area,

has to write a brief, and has to go argue the case in court. It's really challenging. That's not being sped up where it's sort of three days on a TRO basis or maybe three hours. And so I really admire the work that these lawyers do, whether you agree or disagree with a policy, I mean, the lawyers are just there to represent their client and they're doing it in really challenging circumstances these days. So as you read about these really high profile cases are being litigated all the way up to Supreme Court. You know, the lawyers in the inferior courts, as the Constitution calls us, but the lawyers in the district courts and the court appeals are really working quickly, not always with perfect information.

And I think, you know, doing their best to represent their client. Inferior in the Constitution, but superior in our hearts. Thank you, Judge Radler, for joining and we'll continue our Legal Eagles tour. Great, hope to see you in Gettysburg next year. David, that was a fun conversation. I mean, I think you had a great time on Legal Eagles. I had an incredible time.

I'm so grateful to Judge Norris for starting this tradition and for allowing us to interlope. Is that a verb? I think it is. Well, we can make it one. Yeah. All right. Well, next up we have Judge Sutton talking about the constitution of the Confederacy. And this was a real treat. And we are here overlooking Cemetery Ridge with Chief Judge Jeffrey Sutton of the Sixth Circuit. Thank you so much for including advisory opinions on your trip. We're grateful you came.

Your talk today was about the Confederate Constitution, the Constitution of the Confederacy of the United States. Before we get to that though, I was doing my own research last night. Don't even ask how I ended up down this rabbit hole. But we've talked about feeder judges. And of course, a feeder judge is measured by how many of their clerks end up clerking for a justice on the Supreme Court. And it's just sort of a numbers game. You know, ex judge has had X number of clerks, that makes them more or less of a feeder based

on that number. But I hadn't seen anyone do brets of justices, like how many chambers have you placed clerks in? So I got really curious about that last night. And as of June 29th, 2022, you were the only active judge who had placed clerks in all nine justices' chambers. Now, Justice Jackson is then confirmed on June 30th, 2022. That wipes the slate, you know, clear for everyone. You are now in a race with Judges Wilkinson and Thapar, who were all at eight with you.

None of you have placed someone in the Jackson Chambers, but the last time this happened, of course, was when Justice Barrett joined the court. You were at that point in a race with Judge Wilkinson also, and you beat him. So I'm just curious if you have any words for the Wilkinson Chambers or to your own clerks that, you know, time is of the essence here.

You're at eight, there's a three-way tie, you know, time is of the essence here. You're at eight, there's a three-way tie. You know, someone's gonna win this. You know, in this day and age, there's so many complaints about the press, but I'm the first to make this one. Why would you ever try to make judges compete with each other? You know we're incredibly competitive.

You know how pathetic it looks that we would even think about these things. And you, my friend, choose to put them in our minds. I was doing just fine as an even keeled, dispassionate, non-competitive judge. And Tara Sarah Isker and David French interviewed me. And we're going to have to shorten this interview because I so badly want to win this competition and find one of my clerks who could, perhaps, if they're lucky, work for Justice Jackson.

Well, let's see what you've got here. What would we do without the First Amendment? Oh, particularly for David and I. We are grateful for it every day. David, I will hand this over to you to talk about the Constitution of the Confederacy. But this was just a fascinating talk we sat through. Oh, yeah, absolutely fascinating. And I would love for you to start the podcast talk where you started the live talk, which

is this concept of there's been this historical debate. It's, you know, on the merits, it's very one-sided, but there has been a historical debate or whether is this with secession really about slavery or was it about federalism, states' rights? And you took a look at the Confederate Constitution and said the Constitution of the Confederacy tells the tale. So, yeah, explain.

Yes. Well, um, let me just, first of all, point out that, uh, we've been doing this legal legal's tour for about 11 years. Judge Alan Norris led it all these years. This year, judge Radley was kind enough to step in battlefield promotion because judge Norris wasn't feeling well. But one of the key themes of all of those trips with Judge Norris was this question of, okay, why did we have the Civil War?

Was this a legal war in the sense of fighting about what federalism means, or was it really a war about slavery? And hearing him talk about that for one year after the other got me thinking, just look at the Confederate Constitution and see what it has to say. It's really striking how similar it is to the US Constitution.

I mean, you would have thought in a world in which these two sides are fighting each other, you know, thousands, hundreds of thousands of people dying, that they would have chosen to write constitutions that were very different about such an epic fight. And it turns out the key differences are all specifically about slavery and slavery by name, not slavery by implication. I mean, there are a few other, I mean, great trivia question. What's the first constitutional world history to have a line item veto? It's the Confederate constitution. I have no idea why that's true. They have a single subject provision. We don't. They allowed impeachment of federal officials in the state in which the federal official

served. That's quite extraordinary. But if you really compare and contrast what you're gonna find is the key differences that just jump out at you are making sure that they could take their slaves to the territories or other states, that it was a property right, a property right that could not be impaired. And same with privileges and immunities. One privilege and immunity was to be able to take your property, a slave mentioned by name, to another state and not lose that property right and bring it back. So to me, you know, it's kind of a best evidence rule. To me, you know, it's kind of a best evidence rule. You know, constitutions are political documents in a good sense, in the sense of they're not only saying how the charter of government works,

they're telling their people, this is what we believe in, this is what we want. And what they wanted was to be able to preserve slavery. There's just no other way around it. And there's so many different ways you could have talked about federalism and amendments to the Constitution. I mean, you could have gone back to something that looked more like the Articles of Confederation. You could have weakened the national government. They do very little of that. And so to me, and it's a very easy exercise. It's just as short a constitution as the US one. And you can see pretty quickly what the differences are. So, you know, I think the lost cause is,

and happily I don't think it's with us still, but I haven't polled everybody. It clings to life on the edges of American society. And parts of the quote unquote new right still buy into it. Parts of the new right buy into very old right concepts. And so it's still, it requires constant confrontation. I'd put it. Well, if I ran into someone that wanted to debate it,

I would ask them just to pick up the Confederate constitution and explain to me why those provisions are there. I'm very familiar with the idea that federalism's complicated. I think there's lots of room for debate about how that should have worked then, how it should have worked at the founding, how it should work today.

But the Confederate Constitution is not a federalism-changing document. It's a slavery-changing document. Will you read the quote from the vice president of the Confederacy to us? Sure, sure. So this was Alexander Stevens. And he says the Confederate Constitution is quote, decidedly better than, unquote, the American one. It quote, put at rest forever

all the agitating questions relating to our peculiar institution, African slavery as it exists, and the proper status of the Negro in our form of civilization. This was the immediate cause of the late rupture and present revolution. Jefferson and his forecast had anticipated this as the rock upon which the old union would split. He was right." Close quote. So this is the vice president of the Confederate Constitution talking about the Constitution that they ratified and explaining that it was premised on slavery. And that, of course, was the key flaw in the original Constitution that they could not resolve,

had to paper over, compromise, whatever you want to call it until the Civil War made that no longer an option. This is your eleventh trip to Gettysburg with the Legal Eagles. Happy anniversary. Thank you. You drive here from Ohio. It is a long drive. Do you drive with your clerks? This time on the way back, yes.

On the way here, no. What do you do with your clerks in the car? Y'all playing like license plate games? Well, sometimes I do work. I'm very sad to say we do not play license. So you trust a clerk to drive you? I do. You know, I think their reaction times are better than mine.

I turned 65 this year, Sarah. I think they've got to face facts here. And I even consider myself semi-athletic, but I don't know. Reaction times are going down. How do you pick which clerk drives? I don't, I wouldn't do that. I mean, they have to have a driver's license. Some young people these days don't have driver's licenses.

So I do follow that rule. So then do you DJ? That's a good point. I drive a very old car, so DJing on my right over, you'll be quite amused to hear this, consisted mainly of changing the radio station. If you're going to West Virginia, Western Maryland, it is just one country radio station.

That is all there is. I had NPR for a little bit, but otherwise, it was one country music station after another, then a bunch of phone calls. So Sarah, I have a question. When was the last time you listened to a radio station? Oh, that's really easy because when I drive in Texas, I'm always just doing the radio usually. There's some great stations in between Houston and Austin that are like Texas country. So it's actually a real treat to get to find some of those radio stations.

What's your answer living in the DC area? Wow, actual radio. It's been several years now, but I mean, I used to listen to it a lot, but you're right, now I don't. I'm doing podcasts or books on tape or Spotify sometimes. It's refreshing. I don't want to drive.

I mean, I should be doing books on tape. I should be educating myself. I don't like knowing what song is coming next. So I've always preferred radio or Pandora. Cause I don't, I like that too. It's like a mass tying exercise. I can't not look at what's going to play next on Spotify.

Then I just like skip, skip, skip. Cancel, cancel, cancel. Yeah. Yeah. Yeah. Ridiculous. Well, good luck, skip, skip. Cancel, cancel, cancel. Yeah. Yeah, ridiculous. Well, good luck to the clerks. That would be pretty nerve wracking. This is like six hours, right? It is a long way.

And as we've already established, these clerks need to impress you for a whole year. They've got to be amazing like all the time. That's hard to keep that up. And then in the concentrated six hours in the car, when your whole future is on the line, you've had a hundred clerks? About a hundred, I think it is getting to there.

And you've ranked them one through 100. So these clerks are buying for their stocks. I did not. I will tell you, I'm not gonna name it the name, but there was a very great judge that did write them. A very, very great judge. She's no longer with us. So I'm not gonna name the name, but...

There was at least some lore about some judges in a neighboring circuit that would rank their clerks as well. But not the six. I never heard about such behavior. You do know why I don't do this. Rank your clerks? Yeah, self-preservation. Because what do you think they would respond with? Ranking the judge? I don't do this. Rank your clerks? Yeah. Self preservation. Cause what do you think they would respond with?

Ranking the judge. I don't need that. I have enough hard cases. I have a very difficult job. I do not need my law clerks ranking me. What was your favorite part about the trip this year? Uh, well, Judge Radler was heroic. We had two great guides.

We're about to have the third, but the guides were just awesome. I think the best part though is doing it with the clerks. I think most of them have not been here before. So seeing it through their eyes for the first time is, um, you know, there's something about being on what we learned is 30 miles by what 30 miles, roughly square and, um, you know, thousands of people died here doing pretty heroic things, whether for a good cause or a bad one. They still died, they were still brave.

Something about seeing people think about that is really great and it never gets old for me. And then you add to it, Lincoln's connection to Gettysburg, I don't know, just brings the whole thing together with the Gettysburg address and so forth. Last question, your addition to the trip schedule was to take us to a speakeasy at a Best Western? Quality in, I think actually false advertising. Sorry, it was a Gettysburg speakeasy that was like a mine shaft with a, there was, looked

like a real railroad track running through it. Um, how'd you find that? I did not, that's a Judge Norris, uh, attraction. And what is it called? The Reliance Mine Saloon, I think. It does look like a speakeasy. I don't know where the mining theme comes from. Gettysburg mining. That's not a hundred percent obvious to me, but, uh, yeah, that is

the place we've been going. You know, one of my favorite parts of the trip was just the value of walking the ground. Because there's this kind of thing that we have now in this online world where it feels like you can become expert on something without ever actually seeing it. Without ever actually walking around on the ground and seeing the terrain. And there's just something about walking this that puts it in a different perspective. Makes you understand the choices that they made.

My definite high point, walking pickets charge in the pouring rain. And it took us what, Sarah, about the same 20 minutes or so, and you just realize it puts it in just a completely different perspective, just walking 20 minutes with that brutality and death and chaos all around you. And it's hard not to imagine the bullets, their artillery, and of course with a guide reminding us constantly it's impossible to ignore it. I guess it's a, you know, these battles, you're the military that a lot of battles are battles of place. This is definitely a battle of place.

Yeah, that is something about military history that you often just simply cannot understand what's happening until you actually physically look at it. I remember going north of Kiev in 2023, in May of 2023, to see where the Battle of Kiev unfolded, just north of town. And you hear about this road that the Russian, Russian army was coming down in the birch forest and they said it was suicidal for them to come down that road.

Thinking really? And then I go there and I was thinking, I was looking and I was saying, this is suicidal to come down this road. It was very obvious. Did you have that reaction to pickets charged? Oh, of course. I mean, yeah. You know, the only thing that made me, one thing that I thought was interesting about it was I think we popularly think this was just insanity.

Why would he do this? Why would he do this? And the, and the guides both for day one and day two and day three made it very effective point to say, well, why would he do this? Because he'd done it before and it had worked. 8-0-1-1. He was 8-0-1-1. Yeah.

Exactly. Exactly. And, you know, the high hopes for the artillery barrage beforehand that it would be more effective than it was. The, it's just, it's just very interesting to see people take a moment in history and explain what people knew and when and why our Monday morning quarterbacking of this move or that move is often just worse than useless.

Yeah. It's fascinating. Yeah. Well, we are gonna be late for our last tour of the trip. That would be awkward. You gotta go. You're the chief. Thank you.

Thank you. Great to meet you both. David, that was incredible and thought-provoking. I mean, when you just do the side-by-side comparison between the Constitution of the Confederacy and the American Constitution, you can do this online at home, guys. Again, if this were about federalism, you'd expect to see changes to the relationship between the states and the federal government. Nope. Instead, you just see a lot of mentions of slavery. I mean, it's the biggest takeaway I think you can have from how much time and

ink has been spilled on what caused the Civil War and what was the South really fighting for. That's it for me. I don't need any other evidence. Well, you know, it's amazing how cultural consensus can develop around ideas that are directly contradicted by the plain facts of history. So I grew up, I was educated in the South, and literally, I think I've said this before, it wasn't until college, late in college, that I didn't, that I learned anything other than the lost cause narrative. And what's crazy about the lost cause narrative is it's just read the secession documents, like just read Alexander Stevens cornerstone speech. And in this case,

read the Confederate constitution if you want to know what it was about. But then I think because people have such a hard time, we're human beings have such a hard time acknowledging error and acknowledging, you know, for lack of a better word, sin and committing grave wrongs. They want to retcon. They want to revise in their minds what everything was. And there is a powerful cultural force behind that. And so that's why you just got to read the documents. You just got to go back

and know something and read what people said in their own words. And I thought this was just a tremendous interview. Really enjoyed it. Well, let's go from the big picture philosophical reasons for the war and why we end up at Gettysburg to the very human. And let's focus on a single person, Tom Drummond. And to introduce him to us is Judge Ed Sargis. Judge Sargis, what a treat to have you back on the podcast. Last time we were talking about West Virginia's statehood and the sort of legal shenanigans around that. For those who are curious, you can go back and check out that Legal Eagles podcast from two years ago. But today, you have done another historical deep dive. Tell us how you found out about Tom Drummond.

Well, first, thanks to you and David for inviting me back to my all-time favorite podcast. There's a legal story here. I'm on the district court, which covers the southern half of Ohio, which takes us right to the Ohio River across from Wheeling, West Virginia. We did a retreat there, down from a very small but mighty little town of St. Clairsville. I was living there at the time,

living there most of my life, and the judges all came to St. Clairsville for a tour. And my fear was how to spend a few hours in this town and fill their time. So a few days before I went through a graveyard I lived next door to for close to 45 years of my life, wrote down some names of people I was familiar with but hadn't really researched, and discovered a really sad but fascinating Civil War figure. I say Civil War in all aspects.

He was part of the drive to defeat slavery. He joined the Union Army even before Fort Sunker. He was close to Lincoln, died at a very young age, very famous in St. Clairsville during his lifetime. By the time I picked up his trail, I could find no one who had ever heard of him. So I thought it was a shame. He was really an American hero. So, when you discovered this person, you decide to pull the thread and we were listening to you talk about this person. And it's a when you pull that thread, it is

fascinating how far and long it goes. So talk a little bit about this extraordinary life. Well, it's interesting, because in a lot of ways, the internet has made him discoverable. Well, it's interesting because in a lot of ways, the internet has made him discoverable. There's never been a book written about him. He doesn't have a statue anywhere, doesn't have a monument. But I did some old-fashioned kind of researching. I called people into town where he was a state senator in Iowa. Part of the story is he had a conflict with his father over drinking, and he fled. He fled out west, goes far away from Wheeling, West Virginia, or St. Clairsville as he could. But in the meantime, old-fashioned research, I discovered his newspapers. I did a lot of Google

searching. His name is Thomas Drummond, by the way, which is a very common name in history, both in the US and Scotland and in the UK. The problem is you need a segment. Yeah. So it's taken years to find other sorts of modifiers to put in Google searches with him. But I found letters he's written. I bought some things on eBay that he wrote. Over time, I've put together a pretty good idea of who he was, where he was, because he also is in every major battle of the Civil War. On the eastern side, at least, has quite a pedigree. I mean, Bull Run, Stoneman's Raid, Gettysburg, he only lives to, what, 33 years old.

Yeah. And the sad part is he made it through four years of the Civil War and died in the last week. He died on April 2nd. Appomattox was April 9th. He was in a unit. Lincoln personally put him in this unit of professional soldiers, which were few and far between. 16,000 of them when the war began, a million volunteer troops by the end. So he was in this elite group, which also meant he saw the most combat of people in the US Army. They would generally tend to favor the professional soldiers as the tip of the spear, for example. And he made it all the way through until April 2nd, 1865. That is absolutely extraordinary. Crank me if I'm wrong, that even though there's no monument to him,

didn't the town begin to honor him after his death? There's a monument now. There wasn't when I started. I'm part of that. It's the Ohio history connection, which used to be the Ohio Historical Society has a system of honoring prominent people. And he's now someone given that recognition. But didn't you tell us there was a parade in his honor for years in the town and then that, you know, fell off after one of the world wars maybe. And it, that sort of all became lost to history. But every year the townspeople would have like Tom Drummond Day. Right. Well, this is how I would have mentioned it. So the Civil War ends and a year later, they formed the Grand Army of the Republic, thinking

that it's like the VFW or American Legion, four people who fought in the Union Army in the Civil War. And they voted to name the lodge after him. So for every year thereafter on Memorial Day, they do a huge parade under the banner Thomas Drummond GAR Lodge. His father, with whom he had a lot of conflict, but they reconciled by the end, would march in the parade and would also give the eulogy at his tombstone.

That's where they would do the ceremony. The GAR, though, had a restriction that you had to be in the Civil War. So by 1929, the last Civil War veteran in St. Clairsville died, and the lodge dissolved. And by the time I discovered him, there wasn't a person left in town who had ever heard of a person that I'm assuming in 1929 everybody in town would have known of. So it's kind of a chilling thought. It takes us back to Gettysburg. I looked this up, there are over 1300 monuments there. We drove by almost all of them. And they're almost all done with volunteer money from the people who fought there.

My impression of all that is they didn't want what happened there to be forgotten. Yeah. You know, what you raise about fame being fleeting, he shouldn't feel too bad because when my son was in middle school, I was talking about going to a U2 concert and he said, what's U2 and who's Bono? Which it's, I know, a little diversion from the Civil War,

but you know, it's interesting, Judge, you talk about this individual and making, and through your efforts, sort of have revived his memory. And this goes to something that I've been thinking a lot about over the years, is we've been fighting battles over memories and been fighting battles over monuments. And one of the thoughts that I've had is we need more monuments. We need actually more memories. And so, how challenging was it to go from no memory to recreating, reviving the memory, and then

to actually getting to all the way to a monument? Well, St. Clare's was a wonderful little town. I had an article about him published in the New York Times where he worked. And immediately, the city council, the city rotary, the mayor all said, we need to do something for this young man who ever made it to comb gray hair, as they would say. So, no, the town was pretty excited to have somebody that had a letter written about him by Abraham Lincoln. And the I would say with him too, what an up and down career. He had joined the Republican Party when he was 23 years old. He becomes a delegate to the first national convention. Not to go too deep into each year, but their whole platform, their whole reason

for being was to end the advance of slavery into the territories. Within a year, the Supreme Court declares their entire platform unconstitutional and Dred Scott. So that's in 1857. That had to be really depressing. But by the time we get to the Gettysburg, I mean, just think of what's changed. Now we're six months into the Emancipation Proclamation. Just two weeks before, West Virginia, where he also spent lots of time, had become a new state to join the Union and stay out of the Confederacy. So, I think one reason why I feel terrible that he's been forgotten is that he was a generation that really changed America. He's up there with the people who fought in World War II,

the people who are D-Day. We're trying not to forget them. We shouldn't forget other people who fought in World War II, the people who are D-Day. We're trying not to forget them. We shouldn't forget other people who were really around in very critical times of our history and did really good things. And since this is a Gettysburg podcast, will you just tell us what was his role at Gettysburg? Where was he on some of these battle days? He commanded a very elite group of U.S. cavalry, the 5th U.S. cavalry. These were professional soldiers. They were mostly, the 5th U.S. Cavalry. These were professional soldiers. They were mostly in the army before the war started.

They were the best of the best. The cavalry, as you remember, was spread out in Gettysburg. He was under the command of John Buford. He was south of Gettysburg when the battle started. They were not concentrated. By the end of the second day, where a little round top had almost been taken, he and several other cavalry units were used to form an L along the Union line to make sure the line was secure and not enveloped, as they would say back then.

So he actually didn't – this is one of the few places he didn't see combat, but one of his closest friends was killed right before him, Elon Farnsworth. He dragged the body back from Confederate lines, which had to be gripping. And then he had the sad job of writing a very poignant letter to his family. Well, Judge, that is a remarkable story. And, you know, look, I think it takes a lot of people around the country doing exactly what you did, which was finding the stories of people who have been forgotten but should be unforgettable and reviving their memory. And I think it's one way, it's a key way we maintain our connection to our past. And by remembering kind of the best of us, we help ensure our future too. So I really appreciate you, A, doing this research,

and B, spending time allowing us to come along with you at Gettysburg. That was a real treat. And I appreciate it. And just one final point, I think we live in sort of a dark period. We elect presidents on both sides. This is not a Democrat, Republican thing that had negative approval ratings. That never used to be the case. Our presidents used to be well-liked. And I think we've done the same thing with our history. And I would just pitch that Thomas Jumlin is one of these people. If you go back and read every one of his newspapers, there's no sense that he's on the wrong side of history, that his words back then couldn't stand the light of day today. There's a lot of good in our history.

He represents that. Well, thank you, Judge Sargas. And thank you, Thomas Drummond. Sounds like we haven't been thanking you enough. Thank you both. Great to talk to you. David, I find Judge Sargas to be one of the most remarkable and wonderful minds that we have on this podcast.

He just loves finding these pieces of under covered forgotten history and does the deepest dives into them. His love for it is so clear and what he does, whether it's how West Virginia becomes a state, he has a book on that by the way, if you'd like to go find that, or this like finding Tom Drummond and breathing life into his memory. It's a meaningful project,

but it's an important one. Yeah, absolutely. Well, we'll finish on a more fun note as we take the field at Gettysburg with the Legal Eagles 2025 to do Pickett's Charge. So it's three o'clock July 3rd, 1863, what we will do to minimize water and picks and all that stuff. That's Jim Hessler, our battlefield guide and host of the podcast, The Battle of Gettysburg. It's the third day of the Battle of Gettysburg.

General Robert E. Lee is eight, zero and one since the war broke out. His aggressiveness and audaciousness has paid off in every other battle of these two armies. Now he's marched his army into Pennsylvania, well into Union territory, in the hopes of encircling Washington, D.C. from the north. Day one of the battle, Lee pushed Union troops back. Day two was a draw. But a draw doesn't do Lee any good. The only win for Lee here is an all-out victory.

He decides to commit 12,000 of his men to charge the Union Line for the chance at an all-out victory. We are now in the Confederate camp to the west. Our objective? Break the center of the Union Line on Cemetery Ridge. It's one mile away through an open field uphill. It's beautiful countryside with rolling hills through farmland. The town of Gettysburg is just to our north. On July 3rd, 1863, it was blisteringly hot.

Day however, it's raining a lot. We started by getting into formation, two rows taller in the back. Right off the bat, we lacked a certain military discipline, but ready or not, it was time to take the field. We're going to follow a specific brigade under George Pickett under the command of Louis Armistead.

Louis Armistead was an old army officer, mid-40s. He had a son here on his staff with him. The son probably would have been maybe close to some of your ages. But Armistead, serving under Pick Pickett would kind of be stepping off from the treeline here. As Armistead's men stepped forward he would have had two brigades of his colleagues and again a brigade is about 1,500 dies give or take two brigades of his colleagues in front of him. Richard Garnett's brigade over here and then James Kemper's brigade further down the ridge, kind of about where the Red Barn is. So where we're stepping off today, we're almost kind of like a

back line, or like a second line that would be following some of our colleagues forward. It's again, target, target, Cemetery Ridge. Break the Union line on Cemetery Ridge. Cemetery Ridge. Break the Union Line on Cemetery Ridge. That's primarily the objective. Forward march for Virginia, for your wives, for your sweethearts. And then the artillery fire starts depleting our ranks. Incoming round, incoming round, you're out.

You know, you're out, you're out. So, you know, let's do that. You fall out, you're out of action, you're out of action. What do you gotta do now? So close up, close up, close up. And so that line will keep getting shorter and shorter as we come across. Incoming round, you're out.

Piece of advice, water resistant hiking shoes can't withstand being actually just submerged in water like this. Oh yeah, this is the soggy stuff I signed up for. Squish, squish, squish. We make it to the first ridge. But the real idea is to keep moving. So we're not stopping to shoot. We're not even in gunfire range yet.

The idea is to keep moving and, you know, to kind of to use the modern term, to kind of shock and awe the enemy, you know much as 12 000 slow moving people can shot at all you but in the 20th 19th century you were able to do that the other the other thing too though is is we're walking especially now as we get up on top of this ridge no doubt a little round top on the horizon what would be our right flag is we're moving across there is a union battery up on the top a little round top that is also hitting our right flank with artillery fire as they cross the

field. Now we're talking in the front here a little bit about the range of those guns. The range of a cannon is about a mile and a quarter. That is give or take about a mile away from us. So we are within range of the artillery. The shells as they would come in remember that close. Remember those good times we had with the close formations six minutes back in the day, back in the day. Those are good times, weren't they? Well, when we did that one of the one of the weaknesses of that thing is you are susceptible to artillery fire like bowling shots and shells can come in and knock all

of your men masks together down like 10 pins in bowling. So think of that too. We've got those, we've got accounts. We know that's coming in here as these guys are taking casualties. The march continues. The red barn in front of us is the Nicholas Kadori farm. The Kadori farm was here during the battle, although that's a post-war burn. The trees are the Kadori Orchard. So as we go over there, you'll see we're going to go uphill into that orchard. Some people think the low ground in front of that orchard would have been kind of like the last stop. At about the two-thirds mark, we make it to Emmitsburg Road, fences on both sides of the

road just like there would have been back then. The same two lanes today that it was then. Union soldiers can rise up from Cemetery Ridge and start throwing bullets in our direction. So casualties are clearly mounting. Nobody knows how many Confederates got to this point. Nobody knows how many got across the road. There are wildly diverging theories what I always say is you know 12,000 start the charge maybe half get across the road and half don't. We do have burial maps that were plotted in the fall of 63 that do show large concentrations of bodies at that time across the road which does tell you hundreds of people made it we just don't know we don't know guys in the back we'll leave accounts saying at this point though more and more of our colleagues are walking wounded other guys

more and more guys started falling back some of the guys in the back line said so many people were falling back we thought maybe the charge was over so you know that that's a factor as well. How you experience Pickett's Charge would depend on where you were in the line. The front line, though, keeps going. And so you get to the Amersburg Road, some parts of the road were probably still fenced like they are today. And so now you're going to have bullets splattering across these rails as the guys are trying to crawl through the fence, climb over the fence, pull rails down, whatever they could do with bullets flying at them. One 16-foot piece

of fence post from the fence along the Amersburg Road later was counted to have 836 bullet holes in it. So the lead is flying at these guys as they go, and really amazing to anybody, whether it's whatever the number is, that any of them get across the road. But they do, and some of them keep going. We make it across the road. The legal eagles are wet.

And our objective is right behind us. Notice as we said earlier, there is a gentle sort of up slope here, which is more obvious when you stand down here in the field than back there. But clearly at this point now with bullets flying at us, also from the from the enemy artillery would be grape and canister, which the Trandhauk bow. So kind of like the big tin can that you put into the cannon. And when shoot the tin can it's loaded with these iron and lead golf balls and it's just like hitting it with like a giant, like a giant shotgun. I'm just screwing around at this point.

Yeah, I watered it anyway, sir. So, so they're getting hit with both casualties or mounting. Several of the officers riding with the regiments, several of the officers will be riding mounted. Now you might be, you know, you might say, what kind of idiot would be on a horse today when you make a better target? But a leader wants to be seen by his men. And the best way to do that is on horse. The other problem though, as we get into this field, is now Longstreet's flanks are going to be in velo and I would be remiss if I didn't talk to you guys for a minute about on

what would be Confederate left flank a unit from the Cleveland area the 8th Ohio will come out will come out from Cemetery Ridge so they'll come off Cemetery Ridge and you see like how that car is moving in the distance. Imagine like the 8th Ohio coming out to across the Emmitsburg Road and kind of on a line where that big brown building is in the distance. The 8th Ohio would come out and fire into Pickett's left flank. All right, so the 8th Ohio is pouring into the left flank into our right flank so the 8th Ohio is boring into the left flank. Into our right flank, a unit from Vermont has also come out of the line.

And can you see like the, did Fran show you the big Pennsylvania monument yesterday? So in front of the Pennsylvania monument you see a statue with a pedestal, and one guy on top of the pedestal that's a Vermont Memorial. Guys from Vermont come out and are now shooting into Pickett's right flank. So defeat is officially in progress for the Army in Northern Virginia at this point. They are taking it on the left, they're taking it on the front, they're taking it on the right. The only way to go is to either go back or go forward. Some of them choose to go back, but others choose to go forward.

Now we said we're following the footsteps today of General Louis Armistead. Armistead realizing at this point he needs to rally his men for the final push, has this big black hat and he takes it off and he jabs it onto his sword. Come on boys, follow me and we're gonna go across. They probably at this point break into something of a run. A clerk for Judge Bush and I charged the hill at a full run and it is uphill. Ah!

No! We did not make it through the Union line. General Armistead and a few Confederate soldiers charged across this wall, reached the Union cannon behind it, and were soon overwhelmed. We take shelter under a tree and protected by a wall less than two feet high, made of piled up stones.

Eventually the rest of them catch up with us. Now they do gain a foothold here at the wall, so all is not lost. There is 15, 20 minutesothold here at the wall, so all is not lost. There is 15-20 minutes of fighting here around the wall. This unit that I'm pointing at, which is Philadelphia Brigade, that's the 71st Pennsylvania, they are a unit raised in the Philadelphia area, they happen to be defending the stone wall right where we're standing. Now the stone wall where we're standing, if you notice, forms a right-handed angle. So what do we call this area?

The angle. So we're at the angle. So the angle is kind of a weak point in the line. The 71st Pennsylvania is seeing hundreds, maybe thousands of screaming soldiers coming across the field. They pull back, which gives the Confederates a little

bit of a foothold here in Stonewall. General Armistead, our guy with the hat and the sword, he is going to pause here at the wall for a minute, talk to one of his officers and they will basically come to the conclusion, okay we can't stay here, let's go over the wall. We're not done yet. General Armistead, who we've been following, breaks over the wall at about this point with several hundred men. Again, we don't know the number,

but for a few moments as we approach 3.30, four o'clock in the afternoon on July 3rd, there is hand-to-hand fighting here in the Union Army perimeter. Couple hundred guys though, are not gonna overpower thousands of Yankees. And that's what you've got here in the center in the center of General Meade's line thousands of guys. And so once they kind of respond to the breakthrough, reinforcements just kind of come in from all different points of the line. Up here, well you see this big cop some trees, you call it the cops and trees. They have reinforcements coming in over there

from behind us where the road is today, just swarming all in around Armistead's guys. And after a few moments, all of Armistead's men are gonna be either killed, wounded, captured, or they're gonna start to head back towards Seminary Ridge. The little tablet here, the little tablet here, marks an approximate position commemorating General Armistead's breakthrough of Union lines. He will be shot down in the arm and the leg, wounds that were not considered serious, but he was carried back to a Union field hospital and some sort of post infection or whatever set in and he died at the field hospital a couple of days later.

So, so pause on that for a minute. You're right here. A guy got mortally wounded right here who started all the way back at the Virginia monument, which is now directly across from us under fire. I mean, it's, it's, it's a hell of an accomplishment, but ultimately not enough to break General Meade's position. of an accomplishment, but ultimately not enough to break General Meade's position. One thing we do a disservice to when we walk the Confederate charge and we spend the whole time talking about the Confederate soldiers and Confederate valor, we do a disservice to the Union soldiers by neglecting to mention the Union soldiers who defended this part of the ridge.

And since I only have what, about four minutes at this point, I just got a kind of a big picture I want you guys to remember as well, the maybe as many as 1900 Union soldiers here on the ridge were also killed or wounded defending the charge. So it's not totally one-sided. Bullets are flying both ways. We are standing in the battery commanded by 22-year-old

Lieutenant Alonzo Cushing, a West Point graduate who was killed defending this position. He received the Congressional Medal of Honor for his Gettysburg death in 2014. So he is the last Medal of Honor recipient for the Battle of Gettysburg. He was shot in the groin, he wouldn't leave his position, he was shot in the shoulder, he wouldn't leave his position. Finally a bullet came through his mouth and killed him and he fell he fell here on the spot. Just one of as I said 1900 union casualties. One last thing before we start the the long dry walk back. Take a moment to ponder General Meade's Equestrian statue. That's General Meade up on horseback over here back on the ridge. General Meade during Pickett's charge we kept Confederate shells, many of which had gone overshot over the ridge here and had

landed in among General Meade's headquarters, had put Meade out of touch with the army for a little while. His headquarters was under fire, so he had to leave the headquarters. He came back up here on the ridge as the Confederates were now streaming back across the field. And the Yankees were cheering, they were laughing, they were punting the Confederates. This was a Union army that had suffered

so many defeats in recent months and even in the preceding two days finally has a big one-sided, lopsided victory. And it's really now going to be the Union victory of July 3rd that's going to convince Robert E. Lee on July 4th that he no longer has the ammunition, the men, or the firepower to take this position. So George Meade, only been in command of the Union Army for three days, you probably heard that yesterday. Very often gets overshadowed by historians, doesn't get the credit that he should have gotten for winning the battle of Gettysburg. We call Pickett's Charge in a lot of ways the high watermark, and that's the memorial over here by the trees,

because symbolically, probably more symbolically than reality, but symbolically we remember this as a high watermark, not because it was raining on July 3rd like it is today, but a high watermark is sort of a turning point or the farthest that Lee's army gets before their turn back. Lee was defeated at Gettysburg, and to this day, there are raging debates about what might have happened if the battle had turned out differently. The Battle of Gettysburg claimed more than 50,000 casualties on both sides. Lincoln would dedicate the cemetery here at Gettysburg on November 19th, 1863, to honor the Union soldiers who fought to save the Union on those three days.

I'm sure you've heard it before. You may even still have it memorized. But I wanted to end this episode with Sam Waterston reading Lincoln's words on that day in the hopes we all might hear something different today. Not his words for the ages, but his words that day for the widows and orphans and soldiers and politicians and citizens that met on a battlefield still scarred from that summer and in the middle of a war that would last another two years. Four score and seven years ago, our fathers brought forth on this continent a new nation, conceived in liberty and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battlefield of that war. We have come to dedicate a portion of that field as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this. But in a larger sense, we cannot dedicate, we cannot consecrate, we cannot hallow this ground. The brave men living and dead who struggled here have consecrated it far above our poor

power to add or detract. The world will little note nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us, that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion, that we here highly resolve that these dead shall not have died in vain,

that this nation, under God, shall have a new birth of freedom, and that government