Advisory Opinions - How and Why We Change

Episode Date: April 18, 2022

In a glorious pod about which songs will be sung and tales will be told, Sarah and David talk about our puzzling and arbitrary death penalty, briefly discuss a pronoun case, and then talk about change. Why aren't we the people we were 10 years ago? Finally, they ask and answer the question: Do we need more trial lawyers on the Supreme Court?   Show Notes: -Supreme Court order list -Love v. Texas -French Press: “American Racism: We’ve Got So Very Far to Go” -National Review: “How the Supreme Court Became the Province of Cloistered Elites” Learn more about your ad choices. Visit megaphone.fm/adchoices

Sasquatch here. You know, I get a lot of attention wherever I go. Hey Sasquatch, over here! So, when I need a judgment-free zone, I go to Planet Fitness. Get started for $1 down and then only $15 a month. Offer ends April 12th. $49 annual fee applies. See Home Club for details. You ready? I was born ready. welcome to the advisory opinions podcast this is david french with sarah isger and sarah says this is going to be a mediocre podcast

and i disagree i had i just had to throw down the gauntlet just right from the start it's Sarah says this is going to be a mediocre podcast. And I disagree. I just had to throw down the gauntlet just right from the start. It's going to be an outstanding podcast. David already shamed me in the green room in saying it's what you put into it, Sarah. All right. Well, here are some things going on. One, the brisket is home sick. And so you might hear some right now it's Go Dogs Go,

the television show on in the background. And David, the Supreme Court had put out some orders today and there was an interesting case, but not like a barn burner. No, it was interesting. Not a barn burger, but you barn burger barn burgers are good and delicious, but not a barn burner. But you do have some update on an update on a previous case that we talked about, uh, where we, we had Seth Kretzer as a guest, um, in the Ramirez Supreme court case seeking the death penalty. It turns out drum roll, please. So let's back up a little. Ramirez, remember, went up to the Supreme Court arguing that he wanted his pastor to be able to lay hands on him and say an audible prayer. Despite the Texas prohibition against that, the Supreme Court rules eight to one for Ramirez. So it goes back down to the state of Texas to schedule an execution date.

And everything seemed to be moving along. They requested an execution date, I believe, in October. And then the district attorney announced that his staff had sent in that request without his knowledge and that he was going to seek a withdrawal of not just the execution date, but of the execution. He says that he has been evolving on the issue of capital punishment. And quote, it was based on his firm belief that the death penalty is unethical and should not be imposed on Mr.

Ramirez or any other person while he is in office. David, there's a few things that are interesting about this. This is not a new district attorney. He has been the district attorney who I believe has submitted two or three execution date requests for Mr. Ramirez specifically. Five, I believe, of his convicted defendants have been either set an execution date or executed. And so his point is not that those things didn't happen, but that he was no longer going to seek

the execution and someone being tried, you know, today forward and that it would be unfair to seek an execution for Ramirez just because he had been convicted earlier, kind of a mess. The victim, if you remember, was stabbed 29 times, Pablo Castro. And one of Castro's children told the New York Times, you know, they're incredibly angry. They've flown out at least once for this execution that then didn't happen, prepared for it mentally several times for various execution that then didn't happen, prepared for it mentally

several times for various execution dates that didn't happen. Quote, I'd like to talk to this guy face to face and give him a piece of my mind, which is just a little bit heartbreaking. Gonzalez is a elected Democrat, a criminal defense attorney, styled himself as in his campaign as a quote, Mexican biker lawyer covered in tattoos elected district attorney in 2016 uh despite the you know quite conservative leaning district he has defended members of a motorcycle game they asked him to become a member of the motorcycle gang of course yeah so he is in the local police database a member of the motorcycle gang. Of course. Yeah. So he is in the local police database, a member of a gang, which is odd.

Anyway, David, like another really crazy twist to this story. Yeah. And kind of goes to me, I just have to say like, what a waste of judicial resources. If you were going to not seek the death penalty, we didn't need to do all of this. Well, and it really goes to, you know, look, I have, it highlights the issues I have with the

death penalty system in the United States of America. So I did this debate, dialogue, discussion, whatever you want to call it, with Elizabeth Brunig on the New York Times Argument podcast months ago about the death penalty. And she was taking the position of firmly against, and I was taking the position of conceptually, I'm not against it, but as a practical matter, the way we do it, I'm against it. And one of the things I dislike about it is really so much depends on who's your DA. Who's your DA? That's a key determinant as to whether or not you might face the death penalty

is how does the district attorney exercise his or her discretion? And here you have a death penalty sought, a death penalty imposed by the judicial system, not overturned by the Supreme Court. And then the DA says, eh, change in my mind. Now, you might be opposed to the death penalty and agree that the DA should change their mind, change his mind.

But man, think of the arbitrariness of this, Sarah. Exactly. It's incredibly arbitrary. And I mean, even the quotes from Seth Kretzer in the New York Times, the New York Times says, Mr. Kretzer said he was mystified by what had changed. Quote, once an office has made a decision to do one course of action, usually they don't undo it. Helter skelter. The pastor in question, by the way, Walter, the pastor in question, by the way, also seemed quite surprised, gave up quite a lovely quote, I thought, in reference to the victim's family and says, whatever happens, I pray they find peace. And part of this is because they can't find peace right now because now this has all been thrown up again.

Will this, you know, they had already sent in the request for the execution date. Now they're trying to recall that request. So now there are going to be other parties involved of, do they grant the recall of the request? Anyway, if you are the Castro family, this is a mess. If you are Mr. Ramirez, his pastor, his lawyer, this is a mess. And I have to say, again, to your point, David, I also am not opposed to the death penalty in theory, but I am in practice. This is the most arbitrary thing that I have seen. It's separate from some of the other problems that I've seen from the death penalty. But this is just, this is a district attorney. And I watched the video that he posted

on facebook the district attorney explaining this and it i have to be honest it felt immature it felt um attention seeking well i mean i can't imagine sarah that somebody calls himself what a mexican lawyer with tattoos what was it a mexican biker lawyer with tattoos. What was it? A Mexican biker lawyer with tattoos? Yeah. That would have a single attention-seeking bone in his body. And it's frustrating, again, not because I think it's inappropriate to not seek the death penalty, but if that was your plan, then you needed to talk to your staff. You needed to do this the right way. It's like, we sent in the date, and now we have to recall it, and I'm putting up a Facebook post. But again, to quote from him, I have to deal with my own growth and my own rationale and thinking and logic.

I did this because I thought this would be the right thing to do. Fair enough. I mean, I take him at his word. Yeah, I take him at his word, but our justice should not depend upon whether a DA had a come to Jesus moment about the death penalty. That's just so unbelievably arbitrary. After 12 years of being sentenced to the death penalty, having execution dates set, some of those dates being taken down way in advance,

and some of them being taken down only hours in advance. Yeah. Yeah. Okay. Speaking of the death penalty, you want another wild case? Yeah. Okay. So this is a dissent. There's a dissent from a denial of a writ of certiorari. Cert.

I never have been able to pronounce the word certiorari. Did I do it all right? Cert. Anyway, certiorari. Did I do it all right? Cert. Anyway, cert. Okay. It's called Christopher Love v. Texas. And here's the fact pattern. The fact pattern is a jury convicted Love of capital murder

in the course of a robbery that occurred in 2015. Convictions in 2018. Prior to trial, prospective members of the jury filled out a questionnaire that included the following questions. Number 68, do you sometimes personally harbor bias against members of certain races or ethnic groups? Question 69, do you believe that some races and or ethnic groups tend to be more violent than others? To the first question, the prospective juror at issue answered no. But to the second question,

he answered yes. He explained that statistics show more violent crimes are committed by certain races, I believe, in statistics. Which is, by the way, different than the question. Right.

Those are slightly different and it's worth just stating that, read the question again. So the question is, do you believe that some races and or ethnic groups tend to be more violent than others? And he says yes, and then offers the explanation, statistics show more violent crimes are committed by certain races. I believe in statistics. Right.

Those are different statements. I just wanted to point that out. Yes. Yes. So defense counsel does what defense counsel should and moves to strike the juror. The court denies the motion to strike the juror without explanation. The defendant is convicted. The defendant is convicted. He is sentenced to die. And he appeals this jury, this failure to strike this juror on the grounds that even a single juror who is tainted by racial bias can infect the case. And so he loses at the Texas, going up through the Texas system, on the grounds that he had been granted two additional preemptory challenges.

And that, in theory, he could have used one of those preemptory challenges on this juror. However, he'd already used the preemptory challenges by the time it got to this juror. So this is like the preemptory challenges by the time it got to this jury. So this is like the preemptory challenge marshmallow test. You didn't hold on to your preemptories long enough and you could have known that you needed to save at least one until the very end. That doesn't make any sense really. That's why, and it's worth explaining just for cause means that person cannot serve on the jury and the judge then agrees with you, you know, racial bias, they know the defendant or the victim, something like

that for cause peremptory is, I just don't like the look of them. I want them off. Um, you know, maybe it's their profession. Maybe it's, um, you know, they look to prim and proper and you don't think they'll understand the rough lifestyle of your defendant or something like that um you can't use a peremptory strike uh for racial reasons gender reason you know protected classes but peremptories otherwise kind of just the wild west but that's why the four causes exist is because regardless of whether you've already used your peremptories if there's now someone who can't serve on the jury, it doesn't matter, then you strike them for cause. Yeah.

So here's the way, and so Justice Sotomayor is dissenting, joined by the two other Democratic appointees, and she says, the court reasoned that the trial judge, the Texas court, reasoned that the trial judge had previously granted Love two extra preemptory challenges, which he had already used up by the time the prospective juror at issue was called up. Nevertheless, in the state appellate court's review, each extra preemptory challenge operated

to cure any harm from the erroneous denial of any challenge for cause. That's just not even close to how that works. I mean, they're unrelated. you don't cure one like because even if even if the judge denied your for cause and you used a peremptory well then you've been denied one of your peremptories because they should have been struck for cause right like so what a mess but also, David, there's another distinction here of harmless error. You know, if the evidence was so overwhelming for his guilt, did it matter that this one juror shouldn't have been on the jury? And the answer to that gets really interesting of, you know, as Sotomayor was quoting there, like even one juror that's constitutionally tainted due to racial bias, it doesn't matter whether it's harmless error. That's an interesting legal

argument. Right. And essentially the argument is that they never got to the federal, really examine the federal constitutional issue because of this sort of state law quirk and then certs denied sort of anyway and this is the kind of thing where i read it sarah and i was just as i was scrolling down i was thinking please let there be like a kavanaugh or alito response to this nope um nope nope so we're left with a pretty stinking compelling dissent from denial from pretty compelling dissent from denial. And so to my or Kagan and Breyer on the dissent from denial. Right. Right. Exactly. Exactly. So so that's our Supreme Court doings. And then I want to also do a little additional housekeeping on a case that we

have talked about before. And this is a case involving a professor named Nick Merriweather. And you might remember this name from months ago if you're an advisory opinions loyalist, which you probably are and definitely should be. And this is a professor who sued because he refused to use a transgender student's preferred pronouns and suffered reprisals. And in that case, he had prevailed at, in other words, the motion for summary judgment

had been denied and he had prevailed with the Sixth Circuit. And so this case was going to be heading to trial. And rather than head to trial, the university settled, settled favorably, pays $400,000 to the professor. Most of that's probably for the lawyers, for the attorney's fees. He wins. He wins. He wins. Sarah, your thoughts?

Interesting. So what happened, just to be clear, the district court had granted, had dismissed the lawsuit. Sixth Circuit reversed the dismissal, just to be clear about that. And so then it was heading back to the trial court. And then they settle. So I don't know that I would say that this is a legal win, even though obviously it's a win for this individual And so then it was heading back to the trial court. For those interested in these topics, it doesn't do a whole lot for the next teacher coming down the lane, if you will, because we're not, you know, that's why you settle a case because you're not quite sure which way that's going to come out at trial.

Yeah. If you're a college professor in the Sixth Circuit, though, and you're facing reprisals. Yep. You're in pretty good shape. You're in pretty good shape. You're in pretty good shape. Outside of the Sixth Circuit, like you said, it's a little bit of a thumb on the scales, but it is not the whole thing. So, Sarah, we have gotten a little bit of housekeeping out of the way. And so the bulk of this podcast is going to deal with an accusation that is hurled in our direction on more than one occasion.

And the accusation essentially goes something like this. And you often see it in the form of, say, a tweet thread or commentary, and it is, I knew you before this current political era. I knew you, David, before Trump. I knew you, Sarah, before Trump. And you are different now. And I knew you when you were much more hostile to the left or you were much more zealously committed to combating the left or you were much more zealously Republican. And how do you account for who you are now, essentially? Okay, so for example, somebody tweeted out that in the before times that I was a bit of a firebrand. Okay, so here is what I said about the crits, the critical legal theorists. I've used that term before, critical race theorists, critical legal theorists at Harvard Law School, and this is me writing in 2012, 10 years ago.

ago. This was the era of proud political correctness, including booing, hissing, and shouting down dissenting voices in class. Combined with the vocal ascendance of the crits, critical legal theorists rejected American legal systems root and branch, decrying them as the products of an irretrievably broken racist patriarchy. Their scholarship was unorthodox, and that's being charitable. Their voices were strident, and their student followers tended to be vicious. Many of the crits also had magnetic preacher-like personalities, and it was more than a little disturbing to see the psychological hold they had over their student constituency. So that is a paragraph of mine from 2012, which I find interesting for listeners of this podcast because how many times have I told that story? I've referred to this piece called Beirut on the Charles that was written in 1993.

And GQ reported essay in 1993 about how vicious things were when I was there in law school. In fact, the funny thing is I just read that Twitter thread about me after I'd given a speech where a key part of the speech is tracing sort of my development and my theological approach to politics, grounding sort of the start of my adult formation and my political approach with the hostility that I experienced in law school. So it's something I go back to a lot. But there was a contrast. He was saying there was a distinct contrast in the tone in which I talk about those things in 2012 to the tone with which I talk about those things, including critical race theory in 2022.

And you sent me a note about that and thought, huh, maybe we should talk about that. And also in the context of some similar blowback that you get. And so I thought, this could be an interesting and you and I both thought this could be an interesting conversation for a little bit of a slower news, legal news day yeah so i have a few questions one is yeah um and i'm gonna lay them all out you know do you agree that your tone has changed and second um do you think that the substance has changed and third you know assuming you answer yes to either of those questions um why and then And then do you think that your critics or the criticism you receive,

like, do you understand why they are confused or annoyed that, like, you got to have that tone and now you have this tone, but they don't get to keep the tone that you had 12 years ago without, you know, being subject to David French criticism. I think those are, that's,

that's their version of the question to you. And I think it's, I think it's an interesting one. So was that tone in 20, like that was, that's my question to you. Do you think that it's different? Do you think substantively that it's different?

So let me, let me answer, um, has my tone changed and substance changed? Tone, yes. Substance, to some degree. Here, let me explain it like this, Sarah. A lot has changed because the debate has changed.

All right. Okay. So let me give you a good example of a much more current controversy than what I was referring to back in 2012, which was referring to stuff back from 91, 92, 93. So when Colin Kaepernick first took a knee, the debate was, should Colin Kaepernick take a knee? The debate was, should Colin Kaepernick take a knee? Like, if you're going to protest American, you know, police brutality, is that, should you do that? Should you take a knee? And my position was, no, I don't think you should take a knee.

I don't like that form of protest. Even if I have concerns, and I do, about various different aspects of American society, I'm not going to take a knee. You know, I have profound objections to Roe v. Wade, right? That we have legally enshrined the ability, you know, that an unborn child has zero legal standing, especially early in pregnancy, in the womb. Zero constitutional rights. That's to me a tremendous tragedy, but I don't take a knee. So the question was early with Colin Kaepernick, should you take a knee? Should you not take a knee? And I said, no, don't take a knee. Then months later,

the controversy is really kind of fading out. There's three or four football players who are still doing it. Donald Trump says, fire them, okay? Fire them, crowd roars, you know, all of this stuff. So then the controversy moves from should you take a knee to should you fire them for taking a knee? And then I'm saying, no, of course not. You totally should not fire them. And then a lot of people bombard me with, well, what happened to you? Wait a minute. What do you mean? What happened to me? One is what are the merits of taking a knee? Another one is should we, quote, you know, cancel these people for taking a knee? I don't like cancel culture. That's a separate question from the merits of the taking the knee and in my sort of free speech oriented mind the debate moved a debate shifted okay um similarly with crt when i was dealing with crt especially early on the debate were was two things primarily. One is this theory, what do you think of the merits of this theory?

And two, how do you respond to some of the ways the universities have incorporated the theory into their policy? And so one of the ways that universities had incorporated CRT into their policies is they began, and I've said this a million times when talking about CRT, one policies is they began, and I've said this a million times when talking about CRT, one of its profound weak points is it really questions American classical liberalism.

And so they began to forsake American small L liberalism and put in place speech codes. So I had some problems with the merits of CRT, and I had problems the way it was implemented as policy in the form of speech codes, and I litigated against those speech codes for years. At no point ever was there an argument that I was confronting that, A, CRT was somehow, to its core, unchristian. In other words, if I'm a Christian person, I can't— that CRT, if I'm reading Derrick Bell or Kimberly Crenshaw,

I'm essentially reading something that is defying my Christian faith, or B, that it should be banned. In other words, very similar to the Kaepernick situation, rather than do I want him to take a knee? No. Do I want him to be fired? No. Do I agree with CRT?

No. There's some things that are? No. Do I agree with CRT? No. There's some things that are insightful, some things I disagree with. But should it be banned? And is it unchristian? So then the debate fundamentally changes. And so I'm sitting here waving my hands with the free speech argument that I had with Kaepernick, the free speech argument that I had with the opposingernick, the free speech argument that I had with the opposing speech codes, both at public schools where they're unlawful and private schools where

they were lawful but unwise. And then everyone's saying, well, what happened to you? And I'm thinking the debate changed. Right. But there is something that did also happen to me. And there is something that did also happen to me, And there is something that did also happen to me, which was I began to have a much more dim view of American progress on race, in part because my family experienced things that I did not realize people experienced at scale.

And it makes you think about stuff again. And it made me think, and it kind of, frankly, Sarah, made me a little bit ashamed at how many times I'd heard Black Americans say to me, I experienced A, B, C, and D. And I kind of wrote it off as anecdotal, right? And I kind of wrote it off as, well, that's the exception. It's not the rule. And then all of a sudden, our composition of our family changes. And what happens? My two oldest kids have an experience of life that is different in kind from the experience of life of my youngest kid. And you start to say, wait a minute, a lot of that optimism that I had or the way that I wrote off certain ideas from before wasn't right.

Okay. It wasn't right. It doesn't mean I'm now a critical race theorist. It just means that, man, I'm a lot more humble about the way I approach this issue. You know, I used to kind of be pretty confident about how I approached it, and now I'm not so confident anymore. So that's interesting. I think that there's also another factor at play. And I say, I put that on you because it's true for me. And so I want to explain it and see if you agree, which is, um, there are different ways of talking about something that you believe. And, you know, when I worked at the republican national committee um and you talk about i don't know limited government or high debt and deficits or something like that um you're not yeah because of the media environment you are not rewarded for the nuance uh of argument. You're not rewarded for granting the other side concessions

and what might be right about their argument. You're rewarded for pithiness, soundbites, all of the things that our politics has evolved into since, you know, you can argue when debates started being televised in Nixon-Kennedy era, there was then a big leap during the Reagan era in terms of how information went to voters. Clinton perfected it in a lot of ways, and it evolved from there. Then you added social media and all these other things. And I think for me, I got really bored with that because it's not that interesting. You know, I've talked about how I entered the political world through opposition research. And I always like to joke that, like, I don't do like digging through your dumpsters for your mistresses, you know, love notes, opposition research.

I do, you know, financial stuff, deeds, loans, debts, and votes. And the votes, you know, I would go through every vote that you took as an opponent, although you do self-oppo as well on your own candidate. And no matter how you voted, I could write a television ad based on that because either you compromised on something in order to get it done, in which case you didn't go far enough and I can hit you for that. Or you voted against it because it didn't go far enough and you didn't want to compromise, in which case you voted against getting the thing done. Yeah. And, you know, that was. That was interesting. It was my job. Like many of us, I think, I enjoy being good at my job. And I was very good at my job. But then at some point, it's not interesting. If I can take any vote you've done and turn it into a hit, it becomes intellectually lazy. It degrades our conversations. it becomes intellectually lazy. It degrades our conversations. It's very easy to assume bad faith,

not just assume it, but to state that the person is acting in bad faith. Therefore, I don't have to engage with their ideas. And so I think another aspect of this, at least for me, in terms of tone change, especially, is I find it far more intellectually scratching all my little brain itches when I steel man their argument and have to engage only with the argument, not with the person, not with the soundbite, and actually explain why those ideas work or don't work and, well, if this and, you know, I don't know that they fully grappled with this and that can make it sound like, I don't believe what I used to believe. Um, and there are some things that I don't believe what I used to believe. I'll absolutely. If you believe everything that you believed at 22 years old, I just don't think you're an interesting person by and large. So for sure I have changed,

but I mean on the things where I haven't changed, but it can sound, you know, that I've squished out that I'm a rhino that I'm not even a rhino. I don't know a dino, whatever, you know, attacks that I get even from friends, you know, tongue in cheek. Again, it's not that I think that my opinions on those issues have changed very much. I think they're used to sort of the Twitterification of people who believe things versus what it looks like to engage with the alternate view. Because look, if half the country, half the Congress, whatever you want to phrase it as, thinks that you're wrong, it doesn't mean that you're wrong, but it means they at least have a good faith argument for why you might be wrong. And so you should grapple with that because you're not going to persuade anyone by just yelling at them. You're wrong, stupid, and bad. And that's what I think so much of the conversation

was and what I, as a political consultant, was often engaged in. Some version of you are wrong, you are stupid, and you are bad. And another thing that I think is really important that has, times have changed and also in a very particular way. And that is, look, political rhetoric has never been, you know, what's the old statement? I've heard it a million times is to justify a million bad things. Politics ain't beanbag, right? So politics ain't beanbag. I get it. Nothing's beanbag, but beanbag. Business isn't bean bag. It's kind of an all-purpose rationalization. Is bean bag, by the way, is that corn hole? Is that where you toss the bean bags into the slanted wood that has holes in it? What is bean bag? I don't know. What is this calm, lovely sport that people are playing that is lovely?

I've never played something called beanbag. Listeners, tell us what beanbag is. It must be cornhole. It must be. No, it must be cornhole. Because cornhole's a new thing. I've heard politics. Well, maybe new to me. Cornhole's not a new thing. Well, I mean, it's only in like the last five or 10 years that it blew up. Oh my God see it. It's slanted wood with holes in it. You think they invented that in 2010? No, I know, but became a thing. Like it's a thing. You can see it on ESPN now. Okay. Yeah. I guess it's a thing on ESPN, but no cornhole has been a thing. It's just called different things in different regions. That's why I'm explaining these slanted wood with holes in it aspect. Um, cause it's actually, I think only called cornhole in the Midwest, But not surprisingly.

Cornhole down here in Tennessee. Y'all call it cornhole? Okay. Yeah, we call it cornhole. But so anyway. Yeah, continue. Politics ain't beanbag, yada, yada, yada. But vitriol has gone way up.

I mean, nobody's disputing that anymore. And so if vitriol is one of our big problems in this country, do I want to go along with that? Do I want to be a part of that and just sort of say, well, you know, not just maintain the positions I had, but adapt or change them and adopt the mores and the norms of the time. And when it comes to politics and political discourse in this country, the norms of political discourse are extraordinarily skewed towards vitriol. And so I think it's a kind of an urgent thing. And in fact, one of the reasons why we do what we do and the way we do it at the dispatch

to try to tamp down the vitriol and to reintroduce a degree of calm reflection to our political discourse, because in so many ways, vitriol is the problem. Okay. Vitriol is the problem. And then I want to say another thing about another couple of things real quick about

the race situation. So when I was writing and I have that paragraph, pull that sucker back up from our tweet thread, I was thinking of something very specific when I said their scholarship was unorthodox, and that's being charitable. I was thinking of a class that I had called the Foundations of Constitutional Wisdom, which had very specific different reading assignments, Rawls, the Federalist Papers, et cetera. But one of the reading assignments was a book called Faces at the Bottom of the Well, The Permanence of Racism. Okay, it's a seminal work and it's published in 1992. I was reading it hot off the presses. And it really is, when I say unorthodox, it's unorthodox.

A lot of it is a series of short stories of fictional stories the most famous of which is called the space traders you can you can look it up I'll put a link to the book in the in the show notes but the most famous of which is called space traders and essentially that here's Derek Bell who was one of the sort of founding fathers of CRT. And here he is talking about a series of short stories that are, Sarah, how shall I put this? Profoundly pessimistic about the permanence of racism, to use the subtitle. Just profoundly pessimistic. And I just read it and I was thinking,

A, how is this scholarship? Because these are short stories. And B, this is dark. Like, this is dark stuff, right? And then, you know, fast forward to 2015, which is, you know, 23 years or so after I read it, and just the hellstorm of some of the stuff that we experienced in our own family, just a hellstorm of stuff. And then here's what's so distressing to me.

I would talk about this, and I had close friends who were stricken by it, just stricken by it. But the majority reaction amongst Republicans that I knew when they found out of some of the just absolute, unbelievably vicious, racist vitriol that was directed towards us, their primary concern wasn't for us. It wasn't for my daughter. It was, but that's not going to make you turn against Trump, is it? That was the reflective concern was, but that's not going to make you turn against Trump, is it? And you're thinking, what on earth is going on? I mean, look, I'm not even asking you not to vote for Trump because of this. I'm sharing an experience of what it was like to be publicly in opposition to Trump in 2015, 2016, 2017, 2018, 2019, 2020, 2021, 2022. And the response is, well well i hope that this shouldn't turn you against trump and it's just on a human basis sarah just on a human basis how is that a response and then you know some of the other things that we have seen and experienced it made me have a darker view

of where we are and sort of look back on this and say, man, I was awfully confident about where things stood in 1992 and 1993, and I don't feel as confident about where things stand as I was. And so do you see a change in that? Yeah, and I've written about it at length. I'll put the piece in the show notes where I basically say to everyone at the end of it,

don't be like me. Don't be like me where you have to wait for something to impact your own family before you believe what other people say. So yeah, that is absolutely a source of change for me. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what

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plus free shipping on their best-selling frame. That's A-U-R-A frames.com. Use code advisory at checkout to save. Terms and conditions apply. Okay, David, I have a last topic for us. And I'm curious what your take will be on this. There is a book that came out called the credentialed court inside the cloistered elite world of American justice by Benjamin Barton. And the argument is a pretty simple one. Quote, we have confused prestige with useful experience when it comes to justices on the court. So none of this will come as a surprise to those

who know who's on the Supreme Court right now. But the Washington Post put together a helpful graphic. um ivy league law school all but one eight to one supreme court clerking uh seven there's basically three thomas alito and sotomayor did not clerk on the supreme court court of appeals judge everyone but kagan had been one um you know a remarkably similar upbringing. Gorsuch and Kavanaugh went to the same high school. Right. And the point of this book is that that wasn't always the case. So, for instance, Byron White was a sports hero who wrote the Navy report on the sinking of John F. Kennedy's PT-109.

William Cushing was an undistinguished legal mind, but he kept the Massachusetts courts open while the Revolutionary War raged on. John Marshall, Oliver Wendell Holmes, Louis Brandeis, Benjamin Cardoza, Thurgood Marshall, Ruth Bader Ginsburg, all had interesting careers. And now the average on the bench, 4.4 years of experience in private practice compared with more than 20 years in the mid 80s. Stephen Breyer has no experience in private practice. And, you know, the argument goes like, sure, the practice of law has changed. In 1872, there were only 14 firms in the whole country

uh with more than three lawyers which is just a crazy stat david that's wild yeah before 1869 there were no federal appeals courts below the supreme court lawyers were trained as apprentices robert jackson appointed in 1941 was the last justice without a law degree and arguably one of our best. Okay. So the argument goes something like this, David. We used to have more varied experience on the court, and now we value one thing above all else, sort of this legal mind. And the result of that has been on the one hand, we have, I think, far more consistent legal doctrine that's being created and applied. But on the other hand, have we lost something about that varied experience? People who used to be, you know, politicians. Earl Warren

was the governor of California and a twice presidential contender. And that would be hilariously unheard of now. So what do you think, David? Who's got the better argument? Do you like having the high-minded legal doctrine that is thoughtful and logical and all of that good stuff? Originalism, textualism, ooh la la, or the experience? Because I'm not sure you can have both. I was going to ask you because you're walking through all of the different similarities, Harvard, Yale, whatever, clerking, whatever. I was screaming in my mind, how much private practice experience? And you answered it, 4.4 years of private practice experience. I think back to myself at four and a half years, I was still, I'm not going to say a baby lawyer,

I was a toddler lawyer at four and a half years of private practice. I was a toddler lawyer. And it's not that I think that every justice needs to have 20 years. I did 21 years of private practice litigation. It's not that I think that every lawyer needs our Supreme Court justice needs that. No, of course not. Do we need one or two or three who've spent some real time seeing how the doctrines play out? And, you know, especially since a lot of this stuff, you know, one of the things that when we're talking about originalism and textualism, and one thing I'm proud of our podcast for doing is we talk about how much play there is in the joints, even from an originalist textualist perspective, and how much equity, principles

of equity come into play, even if you are an originalist and a textualist. and how much equity principles of equity come into play even if you are an originalist in a textualist and you know words like unreasonable search and seizure unreasonable is not a self-defining word and so i really do think that we're lacking something by not having more people in private practice who have been in the legal trenches and see how doctrines work. So yeah, I think some more private, that's a kind of diversity and breadth of experience I'd like to see more of, to be honest. What do you think? I'm torn because again, I think that the legal world that existed pre-1980 on the court was just so, so different. There was a lot of just shooting from the hip.

How do you think this case should turn out? And it's why when we talk about cases, David, you know, Pruneyard or Pico, that we say that's probably not good law anymore because it was really based on, well, this defendant seems sympathetic. They make a good case. You know, Appally seems like the bad guy and now we have these doctrines that you're right they may not know how it works in reality but if you sort of apply it faithfully consistently that is what we've decided the rule of law is. But, you know, I wish we could pick different people for the court in general. But, you know, in part also because I think the credibility of the court depends on some of that.

The court could use some PR. No, I'm totally with you that a weak point of a longtime practicing lawyer is you're looking for the bad guy, right? You know, that is a weak point of a long-time practicing lawyer is you're looking for the bad guy, right? That is a weak point. Who deserves to win here? It's sort of something that works in the back of your mind. Even if you're a practicing litigator who's been with an originalist, textualist kind of philosophy, you get so steeped into the dynamics of the litigation that often you kind of drift in that direction. I totally agree with you,

which is why I would not want a court where every last person was a 20-year litigator. Those folks who are saying, okay, hold on, wait a second. I get what you're saying about the appellant here, but think this through versus somebody saying, wait a minute, I don't think you understand if you define a search and seizure,

this kind of search and seizure as reasonable, this is what that looks like. I also think the overall rush to expertise that we have in our society is probably overall looks like. I also think the overall rush to expertise that we have in our society is probably overall not good if it is to the exclusion of others. So, you know, for instance, David, when I left the Department of Justice, I was initially hired by CNN. And the backlash was that I hadn't done things other than being a journalist and that journalists should only be journalists. You know, set aside how ridiculous I think that journalist and that journalists should only be journalists.

You know, set aside how ridiculous I think that is and how just not accurate it is. You know, I'll note that like not, you know, the Washington Post, I think, wrote three pieces, Daily Beast wrote five or seven. I mean, why? I don't think I don't think my career decisions need quite that much ink spilled about them. Not one of those pieces mentioned that I had gone to law school, that I published in law reviews, that I published in neuroscience journals. It was like, Sarah's never written a thing in her life. She's this dumb, dumb press secretary who we found off the street. Then they distinguish it between how I'm different than George Stephanopoulos or something. Okay, fine. But the underlying argument I think is just fundamentally corrosive to all these careers, that the only way to be in

this career is to have wanted to do this since you were 16 and then only done that. It's a way to, I think, further sow distrust in media, further isolate the Supreme Court, because what we have now on the Supreme Court side is basically your whole career, you wanted to be a Supreme Court justice in the sense that you went to prestigious enough schools along the way that you went to an Ivy League law school, that you clerked at least an appellate court, if not the Supreme Court now, and that, you know, your writings have all been geared to that, by which I mean you have written things interesting, but not too interesting, and your career choices have been carefully selected. You know, you worked in the Solicitor

General's office. Maybe you did a brief, oh, so brief stint as an AUSA, or I'm glad we have someone who's a public defender, but it frankly suffers from some of the same infirmities. And it's this idea that we want specialization. And I think probably in any given career, we want about two-thirds specialists and one-third not specialists because you need some hybrid vigor in there, David. And so I do want journalists, for the most part, who have been journalists their whole careers. But you need people in that newsroom, in that editorial boardroom saying, but that's actually really normal. Like if you've ever been in the room where it happens, here's what that conversation looks like. And if nobody in that editorial boardroom has ever been in the room where it happens,

they are going to lose something because of that. And vice versa. If nobody in that conference room of nine people has been a partner at a law firm, not an associate toiling away on doc review, you're going to lose something at some point in the theory versus the practice. So I think I don't want to go back to presidential candidates going on the Supreme Court, probably. But I think we could diversify the experience. I think that Judge, soon to be Justice Jackson's experience is helpful. But I actually don't think that's why she was picked. And I wish it was more the reason why not back on Thursday with more, more legal developments. And heck, maybe after listeners have weighed in on some of our changes in the last 10, 15 years, we'll have more to say about that because it's an interesting conversation. But as always, thanks so much for listening.

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