Advisory Opinions - Federalizing D.C. | Live From the Alaska Bar Association

Episode Date: August 19, 2025

Sarah Isgur and David French are joined by 6th Circuit Court of Appeals Judge Chad Readler to break down President Donald Trump’s far-reaching use of executive powers—from calling in the National Guard at home to pushing the limits of tariff authority abroad. The Agenda:—Sarah and David and Putin, oh my!— “Presence patrols" in the nation's capital”—Trump administration's 28(j) letter—Judge Readler claps alone for the 6th Circuit—The physics of guns and “bad man stays in jail doctrine”—Navigating failures in legal careers—Answering audience questions 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—including access to all of our articles, members-only newsletters, and bonus podcast episodes—click here. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to advisory opinions. I'm Sarah Isker and that's David French. And for today's episodes, you'll hear audience and commotion. That's because David and I are at the Alaska Federal Bar Association. where it is a balmy 55 degrees this morning, and we thought you'd like to listen in. That's coming up on advisory opinions. If you've run into me in the last couple months,

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form them into a court-ready, rule-compliant e-brief and appendix overnight. They've helped prepare over 10,000 filings in courts across the country, even SCOTUS. Learn more at typelaw.com and use referral code advisory to save 10% on your first order. That's typelaw.com. That is a fantastic solicited reception. Yes. We appreciate it very much. I will say that, you know, I was getting ready to flyer and I was telling some of my colleagues I was going to Anchorage and they say you're going for the big.

meeting. And I said, yes, the Alaska Bar Association meeting is a very big meeting. So we're very happy to be here. And what a remarkable coincidence that we scheduled this eight to ten months ago. I mean, a long time ago, and on the very eve of a pretty crucial world event. So I don't know about you all, but I'm going to be looking out the window for Russia Force One when it arrives, and Air Force One. And we had a discussion. What do they call the Russian President's Air Force airplane, and I think we settled around the Death Star. But it was, we don't know that quite, so maybe one of you can tell us later. But we're not going to be talking about that today. I also learned, much to my chagrin, that Alaska is three times the size of Texas at low tide.

So as a Texan who is here before you all, I will never mention that again. We are going to have a fun show. will come in three parts. We'll do some news of the day in the first part dealing with the National Guard in Washington, D.C., the ongoing tariff kerfuffle, and an interesting Sixth Circuit case on guns. Then we will continue our three-part series on Life Advice for Lawyers. We had former Governor Chris Christie on our last episode. We will have Supreme Court Advocate Lisa Blatt on our next episode. But for this episode of Life Advice for Lawyers, we will be talking failure with Judge Patrick Bumete. And then the third part will be questions from you all. So get them ready. And the more about failure, the better. So with that, let's do this. David, let's start with what is going on in

D.C. President Trump says that crime is out of control and he needs to bring the National Guard in. Is this legal? Can it be replicated? What would you say? we're doing here. Yeah. So this is, we've gotten a lot of questions about this. I've gotten a ton of questions about is what Trump is doing in D.C. legal. And the short answer to the question is probably yes. I mean, we'll depend on how it's executed. But D.C. is a very special city. So for one thing, it is not part of a U.S. state. It is technically governed by Congress. Now, Congress then has delegated some of its, of its authority to D.C. under something called the Home Rule Act. Now, in this podcast, for those of you who have not listened to it regularly,

we will occasionally do something called give a malpractice alert. And what that is, is we're going to be talking about something that is very complicated that we have not, in fact, studied incredibly closely, but we did stay at a holiday in last night of a JD. So here we go. The Home Rule Act does absolutely give the president the authority to engineer a federalization of the D.C. police or elements of the D.C. law enforcement authorities. Now, this is limited. You can do it for 48 hours on his own authority. You can notify Congress. And if Congress allows you to, you can do it for more than 30 days. But there is a particular time period where the president is able to use, to essentially take control, the federal government is it because you take control of D.C. law

enforcement. To me, that is the less interesting part because it is just unique to D.C. Obviously, he can't federalize, say, the Chicago Police Department. He can't federalize the New York Police Department. But D.C. is different. I'm much more interested, however, in the use of the National Guard. And again, this is going to be very special for D.C. So in 50 states, the National Guard is essentially the militia. Think of it as the well-regulated militia. to use Second Amendment language. It is a militia. It is under the command of the governor of the state. Now, the governor is able to call out the National Guard for lots of different reasons, humanitarian relief, tornadoes. You know, when I live in Tennessee, you're going to see the National

Guard out quite frequently in dealing with cleanup from tornadoes and natural disasters, things like this. The Guard is also an important component of the larger United States military, but the governor is in charge of the National Guard, and the governor can call up the National Guard for law enforcement purposes. You might think, wait, what? I've heard of something called the posse comitatis act. It says whoever except in cases and under circumstances expressly authorized by the Constitution Act of Congress willfully uses any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force as a posse comitatus or otherwise to execute the law shall be fined under this title and imprisoned for not more than two years or both. But is the National Guard

the Capital A Army? No. No. Unless, drum roll please, it's federalized. Unless the president of the United States exercises his ultimate commander in chief authority and removes the National Guard from the governor's authority, puts it under its own. There's been many moments when this has happened in American history. Civil Rights Amendment. Arkansas, the governor, pulls out the National Guard to prevent desegregation. Eisenhower federalizes the Guard to enable desegregation. So same group of troops, different commander, but as soon as they're federalized, they are Army with a capital A. In Iraq, for example, National Guard units deployed all the time to Iraq. They were important part of our combat arms. They were federalized to do that.

When the Tennessee National Guard went to Diala Province, they were not under the command of the governor of Tennessee. It was under the National Command Authority. But what about the D.C. Guard, Sarah, there's no state. So is it, because it is always under the president's control, is it a posse comitatis violation to use the D.C. Guard as a for law enforcement? Isn't part of the question here also, though, what is it to be a police force? Sort of part two of the question. So part one is, can you do it? And there is a very helpful 1989 Reagan era, the OJ opinion about the D.C. Guard. Now, this is not binding. This is the,

this is the DOJ's opinion given to the president. No, but these OLC opinions, they're not binding, but this is, you know, Nixon can't be indicted, a sitting president can't be indicted, Clinton, OLC opinions. I mean, we've generally stamped those. with quite a bit of weight and heft. And so what it says is said two things. One, no, no, you have to look at the D.C. Guard as essentially working like a militia, until the president actually incorporates it into a federal, sort of a big army-type mission. It really is a militia, except instead of the governor running, it's the president.

So then they say, but there's also enabling language from the Congress. And this enabling legislation has some of this catch-all language to it. that essentially says the D.C. Code authorizes the commanding general of the National Guard to, quote, order out any portion of the guard for such drills, inspections, parades, escort, or other duties, as he deems proper. And so the Department of Justice says, or other duties can include everything else. Everything else. So this, by the way, is very reminiscent of a number of cases we've talked about. where you have very precise language, comma, and anything else. So what governs, is it the precise language, or is it the comma and anything else language? The short answer to the question of, can Trump do this in D.C. appears to be, yep.

Yes, absolutely. The longer answer to the question, can you do this elsewhere, he can't do what he did in D.C. elsewhere. If he's going to use the guard, elsewhere, he has to use different legal authorities. and those different legal authorities will have different kinds of constraints on them. So although on the one hand, calling out the guard in D.C., you might call it a precedent that builds on the precedent of calling out the guard in Los Angeles. On the other hand, he's doing in D.C. what he cannot do anywhere else. By the way, this canon of construction on what those or anything else's mean in statutes reminds me of that case from a few years back about Sarbanes, Oxley, and throwing undersized fish overboard and the facts that I'm, you know, doing off the top of my head.

So forgive me if they're not exact. But basically off the coast of Florida, guy was catching undersized fish. Oh, and then the monitor is like, hey, those fish are undersized. So he dumps them overboard, thus destroying the undersized fish and the evidence of his crime. They wait like two years to charge him. By that point, the definition of undersized fish has actually changed under the regulation. So the fish he caught would not have been undersized. But throwing them overboard when the federal monitor is like, hey, those fish look undersized, still a no-no.

So they charge them under Sarbanes-Oxley, which had some language about destroying documents, electronic records, or other such things. And there's basically this great line that, again, I'm going to get slightly wrong from Justice Kagan that says something like fish or not documents. She does a little one-fish, two fish in there. There's Dr. Seuss. It's everything you could want in a great opinion that can cover all manner of sin, whether it's canons of construction or, the problem of regulations changing so frequently, and to a little bit, to me, the virtue of precedent. Like, we don't want whether fish are documents to get re-decided every year so that people could be in criminal trouble changing all the time. So that case, to me, is a catch-all. I can use it for everything.

Another case, I mean, we talked about this a lot was the January 6 case that used obstruction of official proceeding. Here was the language, whoever corruptly won, alters, destroys, and mutilates, or conceals a record. document or other object or attempts to do so with the intent, blah, blah, blah, or two, otherwise obstructs. And so this was one where, wait, what's the more important? Does the otherwise obstruct relate back to the altering, destroying, mutilating of records, documents, or other objects? Or is it an expansive catch-all provision?

And if you had the otherwise obstructs language as one, and then the specific elements as two, it might have been construed more broadly to say whoever corruptly obstructs influences or impedes official proceeding to including by altering, then it would be interpreted differently. But these catch-all provisions may be falling out of favor. And so I do think that, however, when it comes to the analysis of the use of the National Guard, the OLC's determination that this is the militia capacity, I think is very compelling. Just to be clear, catch-all provisions falling out of favor with courts, not Congress. Okay, but on that question, too, so you've federalized the

National Guard, but you can't use them for police purposes. Well, arguably in D.C. You can. Right. I know. That gets a little weird. However, it may be moot because, as the Secretary of Defense explained, he does not see them operating as law enforcement, providing administrative and logistical support, then doing what are called presence patrols. Now, this gets interesting. This gets interesting because, okay, let's suppose we're out of D.C. and we're in L.A., where the Guard was mobilized in L.A. What happens if you're a member of the National Guard and you are not able to operate as a law enforcement agency? But you are on the street. You are there visibly present. What is it that you can do? What are sort of your rules of engagement with the community?

And this is where it gets very tricky and requires an enormous amount of training and discipline. The answer is not really much at all, but you can defend yourself. So if somebody attacks you, somebody throws something at you, you can absolutely take action to defend yourself. So like in Los Angeles, their purpose, in theory, was to protect federal building. So let's say they surround a federal building with National Guard. If people are throwing things to get to the building and you have to go through the National Guard to do it, they can defend themselves slash defend the building. But if you're robbing a convenience store

across the street, they're like, good luck to you. Have fun. What about the defense of innocent people who are in your vicinity? For example, if someone's pulling a gun, well, then, you know, I am a former JAG officer and one of the issues that we would have when we were advising our troops who were, say, walking through Vincenza, Italy and they are American soldiers. This feels like a really specific example. Could they go ahead and just, beat the crap out of a suspected pickpocket. The answer that would be a no. The answer, but however, if you're talking about immediate defense of life and limb, this is where I think the, you know, the sounder advice would be that there would be able to be an intervention and to defend life

and limb. So they're robbing the convenience store. You probably can't do anything. They're carjacking a mom whose baby's in the backseat. Maybe you can. Right. Yes. Yes. And, but in that sense, you would be intervening essentially as a citizen. Yeah, yeah. But could you identify yourself as a member of the National. Stop. I am a member of the National Guard. Leave that baby alone. No. But the whole purpose, though, this is where, again, things get very interesting is the presence. There's one thing we know about deterring crime. How do you deter crime? It's a very tough question. We've talked about this. And some of the immediacy of punishment, certainty of punishment, and presence. So this is very common sense. If there's two convenience stores and a

opposite one and not in another. The question then becomes, would there be an incentive to pull out the guard just to stand on corners, which from a guard perspective is a pretty crappy assignment, but would that be something that is essentially acceptable? And that's where I think you might begin to see some real argumental on those grounds. All right, with that, we're moving to tariffs. So to remind everyone where this story left off, the Trump administration, was before the Federal Circuit Court of Appeals a couple weeks ago. It was all 11 judges of the Federal Circuit hearing this case. And I'll just read you some quotes from the oral argument from the judges. One of the major concerns that I have is that AEPA, that emergency presidential power

statute that the Trump administration has relied on for their tariffs powers, IEPA doesn't even mention the word tariff anywhere, said Judge Jimmy Raina. Here's another one. It's just hard for me to see that Congress intended to give the president in IEPA the wholesale authority to throw out the tariff schedule that Congress has adopted after years of careful work and revise every one of these tariff rates, says Judge Timothy Dick. It sort of went like that. There really aren't quotes that I can provide that we're looking good. So the Trump administration then files what's called a 28J letter. 28J letters for our non-lawyers listening are supplemental authority. So So, like, you argue the case and then, let's say, another court or another panel of the circuit court has issued an opinion in the interim that is, like, really on point or relevant in some way.

You file a 28J, supplemental authority. This is a 28J letter, and I will read you portions of it. I don't understand how it's a 28J letter or what it is in any way. But let me read it. Suddenly revoking the president's tariff authority under IEPA would have catastrophic consequences for our national security, foreign policy, and economy. The president believes that our country would not be able to pay back the trillions of dollars that other countries have already committed to pay, which could lead to financial ruin. Other tariff authorities that the president could potentially use are short term, not nearly as powerful, and would render America captive to the abuses that it has endured from far more aggressive countries. There is no substitute for the tariffs and deals that President Trump has made.

One year ago, the United States was a dead country. And now, because of the trillions of dollars being paid by countries that have so badly abused us, America is a strong, financially viable, and respected country. Again, amazing to go from dead to amazing in like one. Lazarus from the tomb, come forth. Truly, these deals for trillions of dollars have been reached and other countries have committed to pay massive sums of money. If the United States were forced to unwind these historic agreements, the president believes that a forced dissolution of the agreement could lead to a 1929-style result. In such a scenario, people would be forced from their homes, millions of jobs would be eliminated, hardworking Americans would lose their savings, and even Social Security and Medicare could be threatened. In short, the economic consequences would be ruinous instead of unprecedented success. This was signed by the Solicitor General and the Assistant Attorney General for the Civil Division, and that is not what a 28J letter is. Don't do this at home. But we have talked quite a bit about whether the president has this authority from Congress

and just the overall trend of presidents finding vaguely broad language in a statute and then running away with it. And certainly President Trump is not the only president to have done this. President Biden was finding in the Heroes Act, for instance, that post-9-11 act to justify by student loan debt forgiveness. That post-9-11 Act was about changing debt payment structures if there were a national emergency. The Biden administration argued that they could use that to forgive debt

regardless of whether the person had been affected by the emergency. I mean, that's a pretty, that's like a jump. The eviction moratorium during the Biden administration, the vaccine mandate, all were based on congressional authority that may or may not have been there. So fast forward to the Trump administration, this is like the best example of a similar, like, ooh, I mean, you know, the president through IEPA that again was meant to curb presidential power during emergencies, has the president basically to sanction countries in a sort of foreign policy national security way. And the question is, are general tariffs across the board, like that sanction? Is that what Congress meant in IEPA? Okay.

that is bucket one on this. But bucket two, and the reason I read that letter is because when we're talking about whether courts can stay the tariff power, several of the justices, but most prominently Justice Kavanaugh has talked about the likelihood of success metric when it comes to the interim docket. But we don't talk a lot about the irreparable harm prong, which is an important one and one that I'm going to argue has been basically. disappeared by good lawyering on both sides. That we have gotten to a point where both sides, maybe even with good reason,

can say that no matter what the court does, the harm will be irreparable and catastrophic and like 1929 style if you rule against me. So that by doing so, irreparable harm has basically

disappeared as one of the factors because it becomes equivalent. And I think when we think about the media, for courts in these decisions. The irreparable harm seems to be the non-government side, where it's like the irreparable harm is a baby born won't have birthright citizenship. That seems pretty irreparable. But the courts have actually said, and I pulled up this case, although it's certainly not the only one. This was Abbott v. Perez in 2018, and it's footnote

17. The dissent argues that we give short shrift to the irreparable harm question, but the inability to enforce its duly enacted plans clearly inflicts irreparable harm on the state, meaning that by definition if a government has a policy that is being enjoined, that alone checks in a reparable harm box because they are the representatives of the people. And so if you always have a reparable harm on the government side, but then you have very sadness for a reparable harm on the side suing the government, you end up kind of washing it away. And it seems to me that the purpose of this 28J letter is instead of just the government sort of having that checkbox irreparable harm, they want to make irreparable harm great again. I interpreted this as nice little economy you got there, court. Be a shame if something happened to it. Now, it's a very open question as to whether removing tariffs are actually going to cause a catastrophic effect on the economy. I think a lot of people argue to the contrary. But that's exactly I interpreted this letter. This letter is saying, wait a minute. If you're, if you're, if you're,

If we're in an injunction scenario, we are going to have to look at some of these equitable factors, such as irreparable harm. And so no, no, there's no authority there. But there is an attempt, I think, to redirect the court to consequentialism to sort of real world effects. But interestingly, I feel like the court's going to be perhaps a little bit less receptive to that because in the cases that you mentioned, the OSHA vaccine mandate, that's huge. There were huge real-world effects of a court ruling in the OSHA vaccine mandate. There's huge real-world effects about stopping student loan forgiveness. There are large-scale real-world effects when injunctions are entered, especially when you're

dealing with nationwide presidential policy. So I'm not sure how persuasive that's going to be, but I'm also not sure how much the Federal Circuit Court of Appeals is going to be – so this is a Federal Circuit case. And the composition of the court, and we don't, and advise your opinions, we don't typically really do the composition of the court thing all that much because I think it's overdone. But in this case, I do think it's interesting. There is not a Trump appointee on that court. So I believe there's eight Democratic appointees and three Republican appointees that heard the case. And so it's going to be very interesting to see if they will produce a kind of opinion that mirrors and mimics the kind of opinion. and you would see from a Supreme Court that has a very different composition. So I'm going to be very interested to see how this goes. But, you know, once again, we say you can't judge how a case is going to come out through oral argument, except that every single lawyer in this room who's had an oral argument has judged how their case is going to come out from an oral argument.

I would say it didn't look great for the Trump administration there. Our aura frame just started over. As you've heard me say before, we set ours to switch phones. one per day and they go in chronological order. So when we get to the end of our photos and it starts over, it goes way back. It started over with our wedding and we just got to the birth of the brisket. It is husband of the pod handing me this little eight pounds something newborn and that's the photo today. This is the joy that ORA frames can bring in your kitchen. Aura Frames was named the best digital photo frame by wirecutter, and it's easy to see why, and it is so simple to set up.

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learn more. That's college solutions.com, because getting into a school shouldn't feel harder than going. Enter the referral code, advisory, and get 20% on. I want to read a paragraph from the Sixth Circuit opinion, and I don't know why the Sixth Circuit is just turning out like the really fun cases this year. And Judge Radler, I'm not just saying that because you're here. You weren't on this panel. Judge Radler clapping alone for the Sixth Circuit. We have a few doctrines at advisory opinions, and one of them is bad man stays in jail, that there's many cases in which you can affect criminal procedure and make decisions. And, Basically, there's also then another axis of how bad a dude you were, and maybe we'll wait for the next time to correct this little bit of criminal procedure.

So I'll just read this paragraph, which is quintessential bad man stays in jail. Like, you don't need to read the rest of the decision if there's a paragraph like this starting your case. This is paragraph number one. Bridges was driving on a highway in Memphis, Tennessee, when he almost struck a police vehicle. As police tried to stop him, he slowed his car. rolled down the window, and fired several gunshots. One bullet hit the police car and narrowly missed an officer's head. Bridges sped off, leading to a pursuit, which ended when bridges crashed into a concrete barrier.

He crawled out of a car, and officers arrested him and searched his vehicle. During the search, police found a loaded Glock 23, 40-caliber handgun with an attached switch device, a device that allowed a semi-automatic pistol to fire more than one round of ammunition with a single pull of the trigger. The Bureau of Alcohol, Tobacco, Firearms, and Explosives examine the gun and determined that it qualified as a machine gun under federal law. Bridges did not have a valid registration for the machine gun and does not contest that the converted pistol is a machine gun, as defined by 26 U.S.C. 5845B. So now he brings a Second Amendment claim saying that he's allowed under the Second Amendment to have a machine gun. Do we think Mr. Bridges is getting out of jail for his high-speed car chase machine gun shooting at cops? shenanigans. No, he is not. That is the universal three judges. But there was a separate opinion

by Judge Nalbandian that I thought was worth just a moment of fun time because the majority opinion was like, text history and tradition. No, we're not. And it was sort of like, yeah, machine gun, whatever, we're not doing this. But I thought Judge Nalbandian's concurrence was interesting because, again, it's pointing out some of the difficulty of the difficulty of this Second Amendment analysis in these 2025, like, real world scenarios. So, for instance, in that Brahimi, Bruin and Rahimi world, you're looking at whether the gun is dangerous and unusual. And as Judge Nalbandian says, is it dangerous and unusual or dangerous or unusual?

Does it need to be both? And is the weapon unusual because they're banned? Or is it banned because they're unusual? and how are you supposed to determine when a gun is banned like a machine gun whether it's unusual when by definition it's banned? And of course, if you're doing sort of a pure text history and tradition analysis,

as Nalbandian points out, quote, from what we can tell, no American jurisdiction prohibited any kind of weapon in the 18th century. Well, that's a problem if you're looking for an analog, right? They were prohibiting the manner of carry, not the actual gun that was being carried because there weren't, I mean,

I'm going to get a bunch of angry emails about this. There weren't that many different types of guns. I don't mean different ways of the gun looking, but like in terms of the manufacturing and sort of physics of the gun, they were all pretty similar. Anyway, another case where you see judges of good faith trying to apply the text history and tradition model and having a lot more questions than answers, except that this guy's definitely staying in jail. No questions there. I'm very happy that we have some new folks here, never listen to the podcast because you're the only ones in the room not rolling your eyes right now because we, if you're a regular listener, we've talked about this text history and tradition

in the Second Amendment. We've talked it to death. Absolutely to death. Because we think we both find it fascinating. How do you do the text history and tradition analysis? What is the relevant history? What do we mean by tradition? These are very interesting questions and very meaningful as the, as the Supreme Court seems to be pushing, putting its fingers on the scales towards that. text history and tradition analysis. And so that's why we just keep going back to it. And so it is very interesting to think through how do you do text history and tradition with a technology that again, I know, I know I've gotten all the emails about the abundance of machine guns in the 18th century that I didn't know about, but let's be real. They were not, there was not a prevalence of

the kinds of weapons that we have now in any comparable fashion whatsoever. So how does text history and tradition respond to that. And so what we're moving towards, it feels like the more cases that we get, it's almost as if we're getting to a point where it's a distinction without a difference. The cases are coming out much the same way. You would expect they would have come out under pre-existing Second Amendment, the before brew, pre-brewing. They're coming out very similarly, but through a text history and tradition frame. And so. But see, I would argue that some bad man stays in jail working. Right. You look at this guy and you're like, well, Well, whatever it is, the founders couldn't have thought that this bro gets to, like, go run around with his machine gun, chasing down cops and shooting them.

So, text history and tradition, I think James Madison's a no one, that one. Now, the case I'm interested in would begin with a very different paragraph. It would begin. Jane Smith is a founder of a local homeless ministry and a deacon in an Assemblies of God Church and who is deeply connected to her fan in studies and is an amateur historian and studies her family history. On the night of October 7, 2025, ATF agents raided her home without a warrant where they found an exhibit she was preparing for a family museum of a Tommy gun owned by one of her distant ancestors. The ATF agents determined it was a still operable Tommy gun and have arrested her and charged her under 18 USC, blah, blah, blah. She brings a challenge to this prosecution on the grounds. That's when you know you're going to get an interesting face about the Second Amendment and machine.

against. Yeah, Mr. Rahimi, remember, he shot up a water burger when his buddy's credit card was rejected. All right, David, should we bring up our special guest for some life advice for lawyers and specifically on failure? Judge Patrick Bumete is a judge on the Ninth Circuit, but far more importantly, we went to law school together, we worked at the Department of Justice together. You and I were chatting about this beforehand, and you said, failure. is a defining feature of your career. That's exactly right. And it's great to be joining you all and here in Alaska. This is actually my first time in Alaska and I've now completed all 50 states.

Anyway, so it is true that I think the salient and defining feature of my career is just been rejection and failure. You know, you mentioned we met in HLS, right? So the fact of the matter is I had to apply to HLS three times before they let me in. My senior year, I applied to Harvard and Yale and got rejected. from Harvard. I got waitlisted from Yale, and I was devastated. I thought I had pretty good grades. I had a good chance of getting in, and so it didn't work out. So what I ended up doing is I worked on some campaigns, actually the Bush campaign in 2000, and I worked on a Virginia's governor's race. And I thought, well, surely this is going to make me a much more interesting

candidate for school, and surely I'll get into Harvard this time. So then I applied again and got rejected from both. Didn't even get waitlisted. that time. So then I took a year off from applying, and I was lucky enough to actually get a job working at the White House, at the White House Counsel's Office. I was a staff assistant and paralegal. I got to meet a young Brett Kavanaugh. I first met a young Neil Gorsuch in that era. So then I applied to Harvard that time, and I think because of that interesting background, I finally got in. You know, so it took me three times. I, you know, I thought I was just going to give up and move on, but I just kept on applying and figuring out. So the third time it was a charm,

and I got in. So that's an example of having to overcome rejection and failure. So another example I want to say is, you know, I spent the bulk of my career as a federal prosecutor in San Diego. But you might not know is that I grew up in New York. I spent all my career before then in the Northeast. I worked in D.C. in New York. I've went to school in Connecticut and Boston, all my families from New York. So I, I've spent, I'm a I had no intention of leaving that area. But I knew I wanted to be a federal prosecutor. I just knew that public service is what drew me to law school in the first place.

And I finally figured out that being a federal prosecutor was how I wanted to serve. And so I applied up and down the eastern seaboard to be a federal prosecutor. I applied to SDNY three times, EDNY, two times. Connecticut, EDPA, DDC, EDVA, and I was rejected by all of them. I couldn't believe it. I was thinking, well, what am I going to do? Should I just give up on this? Or do I keep on going?

Finally, I saw there was an application opening, an opening in San Diego for the Southern District of California. And so I just applied essentially on a whim because, you know, I had no connections to California. You know, I actually never set foot in San Diego. until those interviews. And then I got it. And then I just, you know, accepted it and moved essentially my life from the East Coast to San Diego on a whim. And, you know, frankly, that's been the best decision I ever made because I would not be here as a judge right now on the

Ninth Circuit. It was a judge period if I didn't make that step. So, you know, figuring out how to overcome that rejection was interesting and tough. You know, and what's even more important To that, you know, they say that the sweet spot for applying for an AUSA is three to five years out of law school. And at this point, I was at six years out. I thought I was aging out. And so I was very, very close to giving up on that dream. But I kept with it and it really worked out for the best. You know, as a parent, you have two young girls and I've got two young boys. There's a lot of wanting to teach your kids grit, for instance, of never giving up. They just have to keep trying something because if it's hard. it's all the more reason to like keep at it. But that's not quite right either. Part of life and part of succeeding is knowing when you've failed and should move on to something else and when you've failed and you should keep going at it. And I'm curious if you have thoughts or advice on how to know the difference. When should I push through and when to double down and when to move on. You know, first I would say this like when you're dealing with failure, it's number one, it's okay to take time to process that and accept that. And, decompress from that, you know, that's important part of life and, you know, you can't just

move on from it. The second thing I would always say is that, you know, we don't define ourselves by our professional achievements, right? That when you have these failures, that's not who you are. You're a parent. You're, you know, we're both parents, you're a spouse, you're a son or a daughter. Those are the things that you're going to hold on to and remember. You know, one of the most important things I've learned as a judge is I will be completely forgotten as a Ninth Circuit judge in a few years. You know, he was doing some research on some cases. And I looked for a nine circuit case from, it was only like 15 years ago. And I had literally never heard of this judge before. And I'm like, well, that's good to know. I'm just going to be completely forgotten in, you know,

in a few short years. And so then the question is, you know, how do you overcome that failure? What do you do? I think you need to figure out whether or not the failure, the reason why you're not getting what you want is a structural or not, right? There's just certain things that you cannot fix. For example, I would say, you know, a lot of people want to clerk on the Supreme Court, for example. But if you're not from certain schools, you don't have certain grades, that's a structural problem. That's like just something, you know, it's not going to happen, frankly. But for me, you know, when the reason why I couldn't get the AUSA gig is that I think, is that, you know, for my career, I came late to the idea of being an AUSA. And so I had nothing

in my background or experience that showed any interest in criminal law or any, you know, how that I had cared about or had it, you know, had it, you know, experience in it. So what I did, instead of going to a big law firm in New York and turning down, accepting that big paycheck, I actually went to a smaller law firm. It was a scrappy little law firm, which was full of, um, former AUSAs and all the associates were wannabe AUSAs. And, you know, I really got some great experience on how to do, you know, trials, how to do criminal law, how to interact with, uh, you know, AOSAs and criminal defendants. And so I think that difference is what made me finally get hired.

So it's trying to figure out what is the problem, what's holding you back, and trying to fix it. David, do you have a question? Because I also feel like all three of us have had pretty non-traditional legal careers. I mean, us may be more than you judge. But sort of by definition, when you have a non-traditional legal career, there's just going to be a lot more rejection and failure. In different forks in the road. You know, one thing that I would think is that your immediate response to rejection was to demonstrate straight grit. And I think a lot of people's immediate response to rejection is the opposite. And I have a,

for my own life, I have an experience where I did the opposite. So I grew up, and y'all are going to laugh at this. I was absolutely committed to being an F-14 pilot. I was absolutely committed to this. And then I went and I, I had applied for an Air Force RTC scholarship. I got it. I was on the way. I show up for my first physical, like, exam and everything. And then I find out that it appears that I don't have eyesight good enough for to be a pilot. And this was before LASIC and correctable. And I just folded. I just capitulated to that. There were ways to demonstrate grit in that circumstance that I was 18 years old and I was just very taken aback. And I kind of folded. And I remember years later, I'm in law school and I'm driving home with a classmate of mine. And I looked at him and I said,

do you ever regret not joining the military? And he had, he said something really interesting. He said, every day, I do, every day. And I said, you know what? I do too. I really do. And at this point where we both have jobs lined up for law firms and everything. And I started to feel sort of like the shame about the way I had capitulated. I felt like I felt I could have pushed through.

And we looked at each other and we said, okay, let's make a deal right here, right now. If America's attacked, we're going to join. And we kind of shook on it. And then I just didn't think about it. And years later, 9-11 happens, America has attacked. I'm 32 years old, and I think I can't, I can't join. I'm too old. And then a few years later, they extended the age because we're having recruiting difficulties.

And then I demonstrated grip. I was 36. The age was ranged to the 35, and I just pursued it. I got an age waiver, and I went. And this is a wild, coincidental story. I arrive the next year after I finished Officer Basic, I arrived. in Dialla province with the third armored cavalry regiment. I was a squadron judge advocate for the second squadron, third armored cavalry regiment.

I get into the base. I come in on a, we replace another unit, another armored cavalry regiment that was, had left. And I'm looking at the briefing book from the JAG officer who was there before me. And it is my friend from law school was the JAG officer. we had lost touch after law school and he had joined after 9-11 he had filled his he we had shook on it and never talked about it again and we both remembered it and followed through and for me I think that shame of not showing grit and determination was a transformative positive experience for my life was I did the opposite for me judge I had a dream that kind of got rebuffed

and I just folded, and then over time I realized that that was a serious mistake. And so I think that even, it can even be valuable to experience double failure. I have failed in my quest or my, you know, that my dream. And then I failed, I did the second failure of failing to really respond with grit. And that can actually be incredibly motivating because, you know, it's a marathon, not a sprint. And we can, we can learn from these moments. One specific goal I'd never set for myself is to become a judge. You know, I actually never thought I would be a judge. It wasn't something that was on my radar.

I didn't think it was attainable or possible. And that process was not one of total, I mean, it ended in success. Yes, but yeah, I think three times a charm for me because so, you know, I'm now in the Ninth Circuit, but I had three nominations before I finally got confirmed. I had one nomination to the Ninth Circuit that failed. for whatever political reasons that didn't work out. Then I was nominated to the District Court in the Southern District of California. And because of the blue slip issues, I never got confirmed there.

And it was just only, you know, it's just so happened that there was another opening that happened on the Ninth Circuit. And that's why I got it. And that's how I'm here. So it's... I've now known a few people who have gotten nominations and then the nominations have failed. What is that experience like to get a presidential nomination? At that moment, did you understand this? this is a long shot for confirmation, or when you got the nomination, were you thinking,

I'm probably being confirmed, and then it was a dramatic reversal of fortune. So when I first got the nomination, they had just, for the first time I was nominated in the Ninth Circuit. They just had blown up the blue flip. So I thought, I was pretty confident it would happen. But I never let myself really believe it. And because you just, I was being cautious about things. And then when I remember when I found out the, Ninth Circuit nomination was going to be pulled. I was in South American. I was just devastating. It was a tough loss. I thought to myself, I had, you know, my entire life sketched out before me and ahead of me. And then all of a sudden it was all taken away. But the one thing I always had,

I always had this view that I'm going to end up where I'm supposed to be. I just knew I was going to, I'll be where I'm supposed to be. And I just had full faith in that. And, you know, then the second nomination failed. But, you know, then it all worked out. So it's just. just having some faith. I have another question about failure because we are now all in jobs that are pretty public, all things considered. How do you deal with failure publicly? How do you reach out to maybe before you became sort of more of a public figure?

You failed. How do you reach out to your network and friends to say, like, I have fallen on my face and I need your help? Because especially at least in political circles, et cetera, to me, friendships can feel quite transactional. And I really, really care about my friends knowing that it's not transactional. And so that makes it even harder for me to reach out for help because if I'm reaching out for help, they may think that's the only reason I'm friends with them or something. And so, yeah, how do you deal with failure in your friend group? How do you deal with failing publicly?

Interesting questions. You know, I think what you're getting at is really that the legal profession is one of personal relationships, right? For better, for worse, it's who you know that can really make a difference in your career. So when people ask me, like, how do you become a federal judge? Number one, you can't plan for it. But number two, it starts from your first day of one L year. It's the relationships you build right from the start. My confirmation, the reason I got the nominate and confirmed was the village

and all the people I've met throughout my career. And so when you are doing it without trying to build that friendship, I network without any specific goal in mind when it actually takes up and they need to step up. It was beautiful to see how many people in my life just came out of the woodwork to come help me and make sure I got confirmed. But the second point I would just say is that I actually think lawyers love helping. And I think people love helping their friends and being mentors. So I think you just got to go and ask for it.

And I think oftentimes you're going to see that people would be glad to do it and lend the hand. Judge, we're going to move to the Q&A portion of this podcast, but the first question is for you. So first question, Judge, are you aware of the criticisms of your decisions and how do you handle that? You know, to be honest, I am not. I don't read, I do, I'm on Twitter. I lurk, I guess. I read some of the blogs and I listen to a lot of legal podcasts, but I don't actually look for and search out criticism. But frankly, I'd love to see it. I mean, a lot of the reasons why I write the opinions and the dissents I do is I really think it's important to start a debate and get out there and help develop the law by starting debate. And so frankly, I enjoy it.

I mean, the one example, I guess it was the Moore v. United States, the question of what the meaning of income tax was. And that actually did generate a lot of scholarly dissent. And I love that. It was perfect. It was wonderful to understand. understand how, you know, what people perceived as what I was wrong about. So I think that's, I encourage it. I would love to hear it. And David, as a corollary to that, how do you keep perspective when criticism or failure is visible to everyone? It's a great question. I think in my

role, I have to, I have to be the opposite of, and I'm going to go to a 1970s television reference, I have to be the opposite of Arthur Fonsorelli. Do you all remember Happy Days, some people in here? The Fons was like the coolest guy. I, and he had trouble admitting he was wrong. And he would say, I was woo. I made a mum, because you couldn't say it. And so I think it's very, very, very important for me to be very transparent with my audience. And what does that mean?

It means if I've changed my mind, I say I changed my mind and why. If I found out that I was wrong, I say that I was wrong and why. And if I make a mistake, you know, in a say of a column that requires a correction, that you correct and apologize without reservation. or justification. So that is a very important thing. I mean, a lot of people are very good at apologizing and then providing all of the very good reasons why they did what they did, whereas I think it's just a lost art in our society to say, I'm sorry. Full stop. I messed up. Right. And so for me, I think that is to maintain any credibility to maintain sort of this sense that you're dealing

with the human being here who's going to make mistakes. You have to just be obvious and open and transparent about that. But then there's a second part of that equation, because when you do make a mistake or when you do change your mind, you're going to have a swarm of people who descend upon you. You can't listen to him. He's an idiot. You can't, oh, look at what a fool that person. And they will just pound it relentlessly, relentlessly, as if it's just stripped you of all credibility. And that's where you have to wall that off. The way that I've put it in, and this is a ongoing process, It's a very hard thing to do. You have to have a thick skin and a soft heart.

And the thick skin is what protects you from the bad faith criticism, from the people who are just trying to destroy you for the sake of destroying you. But the soft heart says, I'm a human being. I make mistakes. I need good faith criticism. I should hear people's pushback. I need to listen to it. And I'll tell you, that's a very, very, very hard balance to strike, especially when you're

constantly in a position where at any moment you can log on to Twitter and find somebody saying vile things, it makes you feel more protective of yourself. And I think that one thing that has happened in our body politic is that as people have been attacked more strongly, a lot of people then become, they wall themselves off from all criticism. And this is a very natural human thing to do because criticism is hard to absorb. But if you become the kind of person who walls yourself off from all criticism, then it's a short trip to you becoming the asshole. Oh my gosh. I love all three of these questions. Do circuit judges and Supreme Court justices write separately too much or not enough? And is the average appellate opinion too long,

not long enough, or about right? It's hard you separate what I selfishly like from what is best. So I selfishly like more opinions. I selfishly want to, if there is a big case like Dobbs, I want to know, I loved reading the Kavanaugh separate opinions. I loved reading the separate opinions around the Rahimi decision. I felt like it gave me a lot more insight into the justices themselves, but I know there's a downside. You know, we just had the Volo case that we talked about in which there was a unanimous Supreme Court opinion saying, we're sending this back to the Second Circuit, for the Second

Circuit to take another look. It was, did New York state officials coerce? private institutions to break, to break their business relationships with the NRA over the NRA's First Amendment rights. So 9-0, so do my opinion. Hey, take a look at this. There's a lot of evidence of coercion here. Second Circuit takes a look and it says qualified immunity and relying a great deal on what was the Jackson concurrence in the case. So you had a 90 case and you had a one-judge concurrence, and that one-judge concurrence became, it seemed more important than the other eight justices in the main opinion of the court. And so that showed me some

downside there. Sometimes a court needs to speak very clearly and unambiguously, and perhaps some of these additional opinions can muddy those waters. But if push comes to shove, and you're going to make me choose. I want to see more reasoning, not less reasoning. So I think, like in all things, I'm overly nuanced, perhaps, but to me, there's a really easy answer to this. The court is an institution. It should speak as an institution. If you are concurring in the judgment only and not joining the reasoning, feel free to either just say that or concur and explain what your reasoning would have been to reach the same result. That is very different than, hey, the court didn't reach this issue, let me tell you my feelings on it. Or as Justice Kagan has once said,

Hey, world, I have a thought and I want to share it. Those are very different concurrences and they have a different role. To be honest, though, I think that's helpful to the lower clerks because then number one, it gives us like an insight of what's around the corner. Like, what's the next issue? What's the pitfall? But it wasn't briefed here. It wasn't argued here. And you have one justice, who again, you almost have, I at least have this feeling like it hasn't outsized. I don't know how many justices would have joined that. No, did here, but I think to myself, like, oh, there's, there's votes for that when, in fact, there may only be one vote. I don't know. Yeah, but it just helps frame the issue. I actually really,

I like them just for that reason, just because I, like, well, you know, Justice Thomas, you know, identifies this issue that's around the corner. So, you know, let's help develop that and little courts. Let's see that issue. Maybe we'll write a dissent on that issue or concurrence on that issue and, you know, flesh that out. What about the length of, let's just stick with Supreme Court decisions for now, the length of Supreme Court decisions. And maybe what I've called the professionalization of the Supreme Court justices, Supreme Court decisions, even circuit judges. Like, there's sort of a path. And everyone now is writing, as David has said, the opinions might be better. But there's also, we've lost something in that about the types of people who can

become Supreme Court justices and the experience and everything else. I've noticed that as well, you know, going back to, you know, Supreme Court cases, 80s, 90s, 60s and 70s, the writing and the out is just so much clearer now. I try to interpret these old Supreme Court cases. I'm like, really, that's it? Like, that's all they said. And like, and we're supposed to, you know, extract this, like, doctrinal framework from this. But so, I think that is a very good positive development. I don't think they need to be overly long. I, you know, if I have a majority opinion, the presumption is it's less than 20 pages, right, unless it's some bigger issue. Descents are sometimes longer because I like to go through the history and the first principles. And that takes a lot

of time to go through all that and then show how it applies in certain cases. So it's time and place for things. Just on a point, because I'm a big fan of not necessarily the length, but the clarity of the contemporary court opinions. They're so much better written. And I remember when a lot of the arguments, this is three, four years ago, sort of the culture war of the moment three, four years ago was the removing of books from libraries. And I was, there's a Supreme Court case on that. Pico versus Island Tree School District. I couldn't wait to read it. And then I read it. And then I read I thought, I don't know what I just read. There were some good quotes in there, some big cool quotes, loved them, you know, very interesting. But literally at the very end, I was thinking, I can't imagine what the lower court, how the lower court could apply this decision. How do you do this? And so I do think that, you know, we, there's a lot of sort of longing for the past in America, different factions of America longed for different parts of the past. You know, there's this old saying that Democrats, want the economy of the 50s and Republicans want the culture of the 50s. I think that's

oversimplified, but there's a lot of longing for the past. But I think in the legal profession and the quality and clarity of judicial writing has just gotten exponentially better. Say you are a state or local government attorney and one of your cases might go to the Supreme Court. You have three choices. One, keep the case in-house. You are an expert SCOTUS practitioner, but you listen to advisory opinion so you know your cases really well. Two, pay gazillions of dollars of public money to an expert Supreme Court practitioner that you choose, or three, accept an offer of pro bono help from a random Supreme Court expert who offers it, you know, with what strings attached and everything like that.

This is the decision, right? This is really, really hard. I'm curious what your thoughts are. You know, if you're a litigator, I spent 21 years as a litigator, it's very hard to be a litigator and think you, you're terrible. Like, hire me, I suck. No. So you're going to have a certain degree of self-confidence just to walk into the courtroom, make your case to the jury, walk into appellate court, make your case to the judges. But you also need to be self-aware of your limitations. And so I think that this is one where if you are younger, if you are less experienced, if you look in the mirror and you say, okay, at the bottom line, you have to look in the mirror and you have to say, I have a fiduciary relationship to my client. My obligation is to do what is in the best

interest of my client. Now, it could very well be that my client is not in my best interest of my client to spend $800,000 on a Supreme Court advocate who might be 3% better, or it might not be in the best interest of my client to have a pro bono attorney who, and that pro bono attorney maybe works for an outside organization that has, it's supporting the client, yes, but it has also got a cause. And it's going to be thinking about the cause right alongside the client, which adds some complications. So I can think that you can look into the mirror and you could say with a clear conscience, all things considered, even though I've never argued in the Supreme Court before, all things considered it is in the best interest of my client if I keep this case.

I think that is a valid decision to make. However, however, you have to be very honest. with yourself. I disagree. It gets to this professionalization point. I don't think it is a good thing, but it is nevertheless a factual thing that as the Supreme Court has professionalized, meaning they're doing a different project. And it's why you see great, fantastic, highly successful trial lawyers go to the Supreme Court and fall on their faces because there's a different project going on and everyone's speaking a different language and they're doing a different thing. And if you're not part of that, I think it would be very hard to be successful. Now, will it change the outcome of the case? Usually not, believe it or not, but what the win is,

what the aperture of the win or loss is, is what real Supreme Court advocates are actually usually up there doing. And I mean, I guess this does get to your point a little bit about knowing yourself. Like, if you listen to a Supreme Court argument and you're not seeing sort of the matrix style like bullets flying by slow motion on those wind aperture and losses, then you can't be part of that conversation, which again, I don't think is a good thing. I think practitioners, any legal practitioners, more or less, should be able to argue with the Supreme Court. But I don't think we're there anymore in a way that 20 years ago we might have been. Let me ask you this, Sarah. So let's have two scenarios. Here's one that I think is an easy call.

When I was 10 years out of law school, I had my first what I thought was a credible cert petition. I thought there's a not a 50% chance. There's a 10% chance. And then several years later, 15 years I had, we, that was denied, 15 years out of law school had another cert petition. I thought there's a better chance. This is from my standpoint, the 10 years out of law school me had more self-confidence. And I was like, I'm taking this case, if it's granted.

The 15 years out me had less, was more experience with actually less kind of self-confidence. I would say that the 10-year me should have absolutely positive. said no, but the 15 years out of law school me with circuit court arguments under my belt, a state Supreme Court argument under my belt, and I knew the record, knew the case, inside out better than anybody, can the 15 year out of court, out of law school say yes to that? I don't know. And this gets in the weeds somewhat, but I would want a Supreme Court practitioner to help me draft the question presented, because that's really where you're going to win or lose on this sort of thing of even getting the cert petition granted. Again, like,

if that's not where you're spending a lot of your time, you're not part of that, what that conversation is. So, yeah, it's a really, really hard question. Okay, this is the very last question. Is there legal authority for the president to sell a state to another country asking for a friend? Here's a real answer to this. A president acting alone cannot. A president with Congress?

Probably. Unitary executive theory does not extend that far even near the most extreme reading. I'll just say this. I didn't bring my passport on this. trip. Thank you to the Federal Bar Association for having us here. Thank you to Judge Bumatei for joining us on stage. And thank you to all of you for being here as well.