Advisory Opinions - Justice Stephen Breyer to Retire

Episode Date: January 28, 2022

On today’s podcast, David and Sarah respond to all the questions about Justice Stephen Breyer's retirement and replacement. Who are the leading candidates? Why is all the talk about Justice Kamala Harris or Justice Michelle Obama a bunch of rubbish? Do we expect any real change in the philosophical composition of the court? They wind up with a discussion of seditious conspiracy and all the reasons why it's tough to charge anyone with trying to overthrow the government.   Show Notes: -Laurence Tribe: “No hiding behind Pence's skirt on the Supreme Court nomination” -Office of Legal Counsel Equal Rights Amendment memo -David in The Atlantic: “Georgia Has a Very Strong Case Against Trump” -DOJ: Leader of Oath Keepers and 10 Other Individuals Indicted in Federal Court for Seditious Conspiracy and Other Offenses Related to U.S. Capitol Breach -Reuters: “Hutaree militia walk from jail after charges dismissed” -18 U.S. Code § 2381 - Treason -18 U.S. Code Chapter 73 - Obstruction of Justice -18 U.S. Code § 2384 - Seditious conspiracy Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isker. And you might notice, you might notice this is not an emergency podcast. This is a regularly scheduled podcast recorded the day after Justice Breyer announced his retirement. Now, ordinarily, well, maybe not ordinarily, but in many circumstances, the announcement of a retirement of a Supreme Court justice would be indeed cause for a let's drop everything emergency pod. So I could imagine, Sarah, if Clarence Thomas had retired, we would still be podcasting from the emergency pod that

we began maybe 5 p.m. yesterday. Disagree when Ruth Bader Ginsburg's passing was announced on a Friday night. We did not do an emergency pod. We waited till Monday. And there was no higher stakes. That is true. Vacancy. That is true. We wanted to let it marinate in our own hearts.

Okay. That is true. I retract. I retract. I retract. We would just wait. But what I was going to say was, I am extremely, of course, and of course, this podcast as an institution and all the individuals within it are extremely interested in Breyer's retirement, the Breyer's replacement, the conversation around Breyer's retirement and Breyer's replacement, the conversation around Breyer's

retirement and Breyer's replacement. We're going to dive into all of that. But in all honesty, this might be one of the lowest stakes Supreme Court nomination fights that we've been through in some time uh you don't have the balance of power at the court at stake uh you're you have a democratic president nominally democratically controlled uh senate this is essentially a one-for-one kind of deal um there isn't any particular controversy except with something we're going to talk about in a bit, surrounding any of the leading candidates. It's not like one of the leading candidates that's out there is beyond the pale. They're all solidly and extremely well qualified.

So I'm very, very, very interested in this. But as just a matter of national stakes, it's kind of low. It's a lot like the nomination that ended up going to Elena Kagan. The stakes were low. The pick was, I mean, as uncontroversial as it really could be, although Lord knows there was dust up

over whether she was qualified because she had not served as a judge before. She was the Solicitor General at the time. And that was about as testy as things got. Worth mentioning, by the way, that I spoke at the White House for the White House Press Corps, whatever, for a White House briefing in favor of elena kagan at that point for those curious we can talk about that more later but let's uh here are the candidates that i want to discuss kentaji brown jackson leandra kruger michelle obama kamala harris and sri srinivasan all very different conversations that i want to have. So let me just give little intros about them. So Jackson isn't just the leading candidate. She's sort of the only like she's going to get this nomination.

spent eight years as a district judge before she just recently was elevated to the D.C. Circuit Court, often called, you know, the the stepping stone to the Supreme Court, junior Supreme Court, deputy Supreme Court. She took Merrick Garland's seat. Fun facts about Jackson. She is related to Paul Ryan. Now, it was late last night as I was trying to figure out the relation, and I have to tell you,

it was like an LSAT exam. Okay, so they're related by marriage. Her husband has a twin brother. Okay. And Paul Ryan has said that her sister and brother-in-law Okay. of you. Judge Jackson's husband's brother is married to Paul Ryan's wife's sister. That's the only way it works with those two pieces of facts that he has a twin brother and that the brother and sister-in-law is the same for both of them. They're both brother and sister-in-law,

although it was confusingly written because it said brother and sister-in-law, not brother-in-law and sister-in-law, but I made it work. But really, it was one of those game puzzles. So you know what? I was immediately thinking, and this is how my dysfunctional mind thinks, is if I were writing a clickbait headline of that discussion, it would be revealed Biden's leading contender has ties to Fox News. That would be a headline. All right. So that's Kentaji Brown Jackson currently on the D.C. Circuit. Leandra Kruger is on the California Supreme Court. She clerked for Justice John Paul Stevens. She worked in the Solicitor General's office, was nominated to the Supreme Court in 2014 at 38 years old. You know, widely regarded as just a very thoughtful and smart judge. thoughtful and smart judge. Okay. Michelle Obama. I think we kind of know who she is. Well, although that's kind of the point, right? Who is the most well-known black female lawyer

in the world? It is Michelle Obama. The second most well-known black female lawyer in the world is Kamala Harris. Although the reasons that she's on the list are mostly just for fun and games and what it would mean to pick a vice president. And then there's Sri Srinivasan. So he is also on the D.C. Circuit, a Southeast Asian judge who I think, for reasons we can get into, is sort of considered the for reasons we can get into, is sort of considered the intellectual heftiest of the progressive judges right now. You know, if you were going to appoint someone editor-in-chief of the Circuit Judge Law Review, it might be Sri Srinivasan. So those are the five that I want to talk about. Yeah. And I would add, there's a couple of more that have been mentioned that I would just add as interesting, although I agree with you, unlikely to be selected.

So, for example, Judge Eunice Cheryl Lee has been mentioned. She has spent, and one of the reasons why I want to mention her is she spent a career as an indigent defense lawyer. Also, the judge, Candace Rae Jackson, and I'm going to, I've just already apologized, Akwumi is her last name. Candace Rae Jackson dash Akwumi. And she spent a decade as a federal public defender.

And I have said on this podcast before that one thing that I would like to see in a Supreme Court justice is more trial court experience, more hands-on experience in trials, especially in criminal trials. And so these are a couple of names who've been floated. But I'm with you, Sarah. I'm not quite ready to say that Judge Jackson is in the same sort of clear poll position that Amy Coney Barrett was. Oh, I think she is. I think she might be more in the poll position than Amy Coney Barrett. Even more than Amy Coney Barrett was? Oh, I think she is. I think she might be more in the poll position than Amy Coney Barrett. Even more than Amy Coney Barrett. I think the relationship. So Amy Coney Barrett had judged the par as her sort of stalking horse. I would say judge the par was

closer to Amy Coney Barrett than any of the people we've talked about are to Judge Jackson. That doesn't mean, of course, that they won't get picked. But I think it is Judge Jackson would have to be eliminated for them to get picked. Right. Yeah, that's interesting. That's interesting. Well, that is that's bold. OK, so let me tell you why. Because Judge Jackson had three Republicans come vote for her in her D.C.

Circuit confirmation, which was, of course, quite recently, just a few months ago. Lindsey Graham, Susan Collins and Lisa Murkowski all voted for her at the time, knowing that she was in the poll position to be the Supreme Court pick. Should there be one? And knowing that there almost certainly would be one, almost signaling, great pick, we're for it. It would be very difficult for them, I think, particularly Collins and Murkowski, to say that anything has changed. We've seen, for instance, in both the Gorsuch and the Kavanaugh votes, plenty of people who voted for them for their circuit spots, Democrats, then switched their votes, claiming it had been a long time or whatever, like this has been six months. So there's no real wiggle room there.

Another question that I think is, is there a material so far as we know, because as we know, part of the judicial career track these days is to sort of let it be known where you broadly fit within sort of the judicial philosophy, you know, the two Overton windows of judicial philosophy, but not really let it be known where you precisely fit within the Overton windows of judicial philosophy. Any indication that any of these candidates, leaving aside Michelle Obama, leaving aside Kamala Harris, any indication that any of these candidates are materially different from each other in their judicial philosophies? Is one more likely to be, say, a Kagan versus a Sotomayor, or is that, do we even really know?

a Sotomayor or is that, do we even really know? So I think that is the question, of course. And the problem is the difference between Kagan and Sotomayor, while I absolutely think there is a difference, it's a little hard to pinpoint the difference because when you're talking about actual judicial philosophy, there's not actually a ton of difference. What you're talking about actual judicial philosophy, there's not actually a ton of difference. What you're talking about is sort of this institutional pragmatist aspect of it. I mean, they vote together so, so often. You'd have to really sit there in the cases where they don't vote together to to break that apart. And often I do not think it's on the law necessarily. Do not think it's on the law necessarily.

So, but on temperament, Kentaji Brown Jackson is known as being just super well-liked for what that's worth. And in that sense, it makes her very Kagan-esque. This is not to say that Justice Sotomayor is not well-liked. Nothing about that,

but only that Justice Kagan's kind of known for being a political justice with a small P, not partisan. Political meaning that she is thinking ahead about how votes work, who on the court can be moved by different arguments, for instance. Kentucky Brown Jackson, at least from everything we know at this point, seems to be a little more Kagan. And I would say more Kagan than Breyer as well, which is great if you're the Biden administration. Sri Srinivasan is probably a more progressive Breyer. His intellect is super well respected. I don't know that he has like sort of the Kagan political chops, if you will.

Leandra Kruger, I know the least about, except that, again, she's always been on this list, certainly is considered incredibly well qualified. The California Supreme Court gets very different cases than the D.C. Circuit. And so in that sense, it's a little hard to say. different cases than the DC circuit. And so in that sense, it's a little hard to say. So can you go ahead and just dump a bucket of cold water, maybe Gatorade flavored, you know, whatever on the whole? No, that would be celebratory. No, just dump a bucket of cold water on all this Kamala Harris talk. And if you want to throw in a bonus cup of cold water on the Michelle Obama, that would be. So look, Michelle Obama makes perfect sense if you don't work in politics. Sorry, folks. First, I don't think Michelle Obama wants this, even if they came begging her to do it. She's got

a pretty nice life right now. Her girls are in college. Her and her husband are off doing things that they care about, meaningful projects with this Netflix thing. She's never particularly craved the spotlight from everything we've been told about her. Her book was just like an umpteenth number one bestseller. She's incredibly well respected. But also, I will say, she's not actually qualified to be a Supreme Court justice. Right. Now, do I think that she would do just fine as a Supreme Court justice? Yeah, I do. But she has none of the qualifications that we would normally look for. By the way, we don't pick the most qualified person to be a Supreme Court justice, but

we do pick someone who has certain experiences, recent legal qualifications, and she doesn't have those. Again, she'd be fine in the Supreme Court. She'd figure it out. She's obviously very smart. But I think there would be some hemming and hawing over that. OK, so now to Vice President Harris. Look, a lot of people want to make the case that Joe Biden would be better off without Harris on the ticket in 2024.

And therefore, in sort of a Teddy Roosevelt ish situation, sort of a reverse Roosevelt, if you will, instead of removing him from New York governor and making him vice president to try to make him irrelevant until, oops, you get shot. Instead, you take your vice president and put her at the Supreme Court, and then you get to pick a new running mate. Okay, politically, a few problems with this. One, everyone would know that's why you're doing it. So it would only really be downside. Picking a replacement vice president would be a nightmare. And, you know, for a major Democratic constituency, I mean, black women, I think the last rebalanced exit poll I saw was something like 95 percent. I mean,

they have a little side eye about this as well. They should, uh, you know, she was set up for failure and then kicked off the ticket. Meh. Uh, okay. There's, there's that political part of it, but let's say, nope. They really believe she is the best person to put on the Supreme court. Fair enough. There's a couple issues. One that has been mentioned is that she can't be picked because then she would not be able to break the tie in the Senate for her replacement. So under the 25th Amendment, when there's a vacancy in the vice presidency, the new vice presidential nomination has to be confirmed by a majority of the House and the Senate. And so if she were on the Supreme Court,

she couldn't be the tie-breaking vote. But of course, just like flip the timeline, David, nominate her for vice president, pick someone else to be vice president, confirm that person is vice president with Vice President Harris as the tie-breaking vote. The second she casts the vote, she ceases to be vice president. The second she casts the vote, she ceases to be vice president. She is then only a nominee, an unemployed nominee for the Supreme Court. And you have a new vice president who can break the tie on the Supreme Court pick, too. Like, this isn't that hard.

But yes, I suppose if you confirmed her to be a Supreme Court justice first, then you would have some problems. Hopefully the people in the White House can figure out that math. But the bottom line is this is what this is, is super online political hobbyist LARPing because this is just not happening. Can I talk about some other LARPing? Yeah. I'm always open to talking about LARPing, which by the way, one of my great regrets is that when I was full on nerd, like in high school playing Dungeons and Dragons, I don't think LARPing had actually been existed. So it had actually been invented. So I've never LARPed before, unfortunately. So you're almost like a LARPing LARPer? I can only LARP my LARPing.

Yeah. Wow. Okay. Yeah. Wow. Okay. So in September of 2020, again, after the passing of Ruth Bader Ginsburg, Professor Larry Tribe, who is a very famous constitutional law professor at Harvard, but more importantly, someone who has repeatedly advised the Biden administration on legal things, He is credited with convincing the president to switch his position on the CDC eviction moratorium, extending it, convincing him that it was constitutional, the Supreme Court disagreeing on that point. So Larry Tribe in September 2020 wrote,

the vice president does not have the power to break a tie on the appointment of a Supreme Court justice. Say what now? Okay, so his argument is that the vice president constitutionally only has the power to break a tie on legislation, but the Senate's advise and consent role is in a totally different part of the Constitution, and therefore the vice president is not a tiebreaker that you have to have just of the hundred senators, a majority in order to fulfill the advise and consent role. Okay. A couple of things. One, this wasn't relevant actually in September, 2020. His point was because there wasn't a tie in the Senate. His point was that, um, Republican senators couldn't get the benefit of voting no and hide behind Pence, basically. You couldn't give three Republican senators an out.

None of the Republican senators wanted an out on voting for Amy Coney Barrett. So not concerned about that. Also not mentioned in here is the fact that Mike Pence had already broken a tie, both for Betsy DeVos for education secretary in 2017 and also for a circuit nominee a year later. So, I mean, the boat had already sailed a little bit on this one, but even so, it doesn't matter. Right. There's still the constitutional argument. But let me read you the Constitution for those who don't have their pocket Constitution handy. OK, so I am reading from Article 1, Section 3. This is a standalone sentence. The vice president of the United States shall be president of the Senate, but shall have no vote unless they be equally divided, period. The advice and consent portion, of course, comes in Article 2 in talking about the president's ability to nominate ambassadors and justices to the Supreme Court. So there is nothing in the shall not have a vote unless they be equally divided that limits that, qualifies that in any way. I actually don't really even understand Professor Tribe's argument. He mostly relies on Hamilton,

Federalist No. 69. In the national government, if the Senate should be divided, no appointment could be made. Yeah, I mean, fair enough, but that's not what it says. So, you know, this goes to the argument of like, whoa, maybe they can't appoint anyone without Republican votes. I take you back to one of the virtues of Kentucky Brown Jackson, which is I think she has three Republican votes, at least two Republican votes going for her regardless. And also there's the question of who would enforce this little problem. But the Supreme Court really get into a political question on who breaks a tie in an equally divided Senate when the president nominates someone. No, they would not.

Very similar to the proxy voting question. Remember that the Supreme Court just declined to take a few days ago? They ain't touching this one. And since the Republicans already used a vice president as the tie-breaking vote in advising consent, even more reason the Supreme Court won't take it. But also the precedent has been set. End. won't take it, but also the precedent has been set. End. You know, there is a little cottage industry that's emerging of conservatives using Larry Tribe against progressives or conservatives sort of using Larry Tribe for their own purposes. If you remember in the Eastman memos, the Eastman memos referred back to Larry Tribe's critiques of the Electoral Count Act. Tribe is a prolific writer and is not necessarily the arbiter of what is constitutional and what is not. Well, it's worse than that.

I don't want to compare him to Rudy Giuliani in all aspects, obviously. But in the sense of someone who used to be kind of a leading voice on legal arguments, he has become so deeply partisan. He's making bad legal arguments often. And I think it is more of a like a problem for the Biden administration to the extent they want to rely on Larry Tribe moving forward and a little bit embarrassing that they've already been relying on Larry Tribe. And now they're going to say like, well, Larry Tribe's right on these things, but we don't listen to him on these things. And like, okay, well, either he's a preeminent legal scholar or he's not. He was, of course, on the Supreme Court Commission as well. And interestingly,

came out against term limits. So look, this is not really to denigrate Larry Tribe, but if half of your takes are bad, then it's hard to say that the other half are good. We don't know which half is which. Well, you know, and he is a legendary law school professor. And let me draw in, can I draw a sports analogy here? Sure. So I was listening to this really interesting podcast about the plight of the Los Angeles Lakers, which, you know, I can, we can talk about that for a long time, but it's talking about the difference between

player LeBron and general manager LeBron. That player LeBron is without peer general manager LeBron and his advice that he gives to the front office about who should join the team. You know, his record isn't as great. And there's a lot of critique about the Lakers bringing Russell Westbrook. And I promise you, this is going somewhere meaningful. And that is, wait, LeBron's been in the league for a long time. And his memory of Russell Westbrook is year after year after year after year of being a ferocious, intense, formidable competitor. And he might not necessarily, in all of those those years been tracking that Westbrook isn't quite what he used to be on the basketball

court. All right. Now you're seeing the analogy. Here's Joe Biden. He's the LeBron. He's been around for a long, long time. And in that time, he has this memory of Larry Tribe is the formidable legal mind. And probably because there's no indication at all that Joe Biden is a very online kind of dude, is not exactly familiar with how incredibly partisan Tribe has become, especially during the Trump years. especially during the Trump years. And so going to Tribe because of legacy reputation, given sort of the partisanship of Tribe, is a bad idea. But you can see how it happens, given the legacy reputation. I actually think that's a great analogy, far better than mine. And it also is a nice warning to law students out there. It's either partisanship or it's so much zeal for your client, your client in this case being the liberal progressive movement, that you're not making good legal arguments. You're making zealous arguments, throwing things against the wall.

And it hurts your credibility to represent your client in the future. your credibility to represent your client in the future. Don't make frivolous arguments. Don't take frivolous cases. Your credibility is the most valuable thing that you have as a lawyer. Guard it. Which goes back to a conversation we had during some of the electoral challenges in the closing days of the Trump administration. It was very interesting who did not sign on to some of those briefs and some of those arguments. Okay. So David, I got this meme, this Instagram kind of meme-ish thing sent to me. And it says, is it legal to say we'll put black woman on SCOTUS? Is that considered discriminatory? And this person on Instagram answered, discrimination laws protect certain groups that have historically faced mistreatment and

marginalization. It doesn't mean, quote, you can never give preference to a protected group. So this is a woman on Instagram who has like hundreds of thousands, if not millions of followers. She's a teacher. I have seen her comment on legal stuff a lot. And it's a lot like this, David. It's like a little knowledge is a dangerous thing. I know what she's saying and I know where she's getting that, but she's missing a whole lot of stuff, which makes her answer incorrect. So is it legal to say we'll put black woman on SCOTUS? Yes. Yes, is the answer. Unqualified. Yes. Is that considered discriminatory? Well, it would be discriminatory if you were talking about someone at a private business covered by Title VII who said something discriminatory about

promoting someone to a position. I will only promote a Black woman to this manager position. That would be discriminatory. But Title VII, let me just read you Title VII. The term employer means a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year and any agent of such a person. But such term does not include, number one, the United States, a corporation wholly owned by the government of the United States, an Indian tribe, or any department or agency of the District of Columbia. Fun fact. Also a bona fide private membership club. So yeah, not even a close call. President Biden can say that he will only pick a black woman for the Supreme Court. He can also say that he will never let a black person on the Supreme Court as long as he's president. That would be bad and wrong, but it would not be unlawful. Also, let me just get to her answer real quick. Discrimination laws protect certain groups that have historically faced mistreatment and marginalization.

True. It doesn't mean, quote, you can never give preference to a protected group. It doesn't mean, quote, you can never give preference to a protected group. Well, it kind of does. The only exception that I think she's trying to get at is, again, university college admissions, which has sort of been this carve out where it has to be an individualized assessment and race can be one of those assessment or any other protected status. protected status. Otherwise, yeah, if you are explicitly giving preference to a group based on race for an individual anything when it comes to employment, that's a no. And there's even an entire segment of the EEOC website dealing with what is called quote-unquote reverse discrimination. And there are abundant amount

of cases dealing with that. And the university issue, as we have talked about, is hanging by a thread at this point. Indeed. So look, I think the Sharon Says So Instagram feed is a good public service. However, whenever I see her talk about Supreme Court stuff or legal questions, I cringe a little because she just doesn't always have it quite right. And she's giving people bad information while saying that her whole point is to give people good information because she's a teacher. Sorry, Sharon. You know what you need? Sarah says so. Okay. Last question. And that is, we got a question about what happens to poor Judge Jackson's clerks.

Before that, before that, I want to stop and say, okay, we know absolutely it is not illegal, unlawful violation of, you know, any governing law at all to say, I'm going to only nominate a black woman to Supreme Court. What is your belief about the prudence of saying that? Thank you for reminding me. I did want to get up on my hobby horse about this. I appreciate it because two friends of the pod have said something that I disagree with. So Ilya Shapiro deleted a tweet that said, objectively, best pick for Biden is Sri Srinivasan, who is solid, progressive and very smart, even has identity politics being a benefit of being first Asian, Indian American, but alas, doesn't fit into latest

intersectionality hierarchy. So we'll get lesser black woman. Thank heaven for small favors. And Jonah Goldberg wrote, you know, kind of a similar point, the Democrats dangerous game of identity politics and said the smart play of Biden had not foolishly promised to appoint an African-American woman to the court would be to pick Judge Sreesar Navasan, who, unlike Harris, would actually be a very formidable Supreme Court justice. But legal qualifications really aren't the foremost concern here, even if they should be. If they would, Biden would never have vowed to limit himself to a narrow demographic category, even though I should say that some of the African-American women in contention may be eminently qualified. This is one of the problems with pre-committing to such things. It attaches stigma even when it's undeserved. Okay, so I agree that

pre-committing to saying you will only even consider someone of a certain gender or race or anything else that is not related to their qualifications does attach a stigma. And I remember back in law school on the law review, they had quotas basically for race and not for gender. And I'm going to get the number slightly wrong here, but you know, there were like four spots, four quotas for let's say black students. And then six black students would get on the law review. All six black students were treated as if they were quota black students. And I always thought that was incredibly unfair because the ways to get on law review, one of them is to have the highest grade in your section. And, you know, two black students probably had the highest grade in

their section. For all I know, all six did. But because you had that stigma attached, I thought it undermined sort of the mission, if you will. And there was no gender affirmative action when I went to law school. And in fact, there were not of the 40, 42 spots on the law review, there were not of the 40, 42 spots on the law review, certainly not 20 were women. It was more like 10 or 11 each year. But well, I won't say nobody questioned the qualifications of women on the law review because actually Harvard Law was a pretty sexist place.

At times I was told that one of, yeah, I was told the biggest mistake that the United States made was giving women the right to vote. And that's how we ended up in World War II, to which I was like, are you like, people don't really think of World War II as a bad war we got into, but okay. Yeah. Harvard Law School is a place where you will hear law students with some wild opinions.

I've told you about the guy who thought his property rights extended so far into the sky, he could buy a surface-to-air missile system to shoot down airliners who did not pay him a toll. A lot of bad takes. Many of them quite sexist, actually. So that's all to say, we could actually sort of see the difference in treatment between no gender quota and yes, racial quota. And it's not as black and white, right? As I said, there was still plenty of sexism at Harvard Law School and that maybe a gender quota on the law review would have helped promote more women to get Supreme Court clerkships, et cetera. Maybe getting rid of both quotas would have made, you know, black students, whatever. Like, I don't think this is a black and white issue, but there's no question that some stigma attaches. Here's where I have a beef, though.

I don't think Judge Sri Srinivasan is more qualified than Judge Kentaji Brown Jackson. And I don't know why Ilya and Jonah just jumped to that conclusion with no evidence that they're supporting. I think Judge Sri Srinivasan is incredibly well qualified to be on the Supreme Court. So is Judge Kentaji Brown Jackson. And until someone tells me otherwise, look, the qualification to be on the Supreme Court is not an IQ until someone tells me otherwise, look, the qualification to be on the Supreme court is not an IQ test. There isn't David, as you said, you know, this isn't the NBA draft or maybe more, um, uh, better analogy is the NFL combine. Yeah. We're not measuring lawn jumps and how quick you can run a yards. And so in that sense, truly, they are equally qualified. So I wish conservatives would stop saying that. I'm very grateful that Ilya deleted his tweet. But yeah, just stop.

my view on it is, is really pretty simple. And I think the combine is the perfect analogy because the draft is more subjective. I mean, it wasn't too long ago that everyone thought Zion Williamson was the clear number one and John Morant number two, but who's, who's happy, who who's happy with their draft choice now is all I've got to say. But anyway, you know, this isn't the 40, you know, so this is not the legal 40 where Sri Srinivasan is at a 4.39 and Judge Jackson is a, you know, is a 4.42. So number one, it is not the case that Sri Srinivasan is the clear number one.

There are a lot of different metrics by which you're going to measure what value are you going to place? What are the different values that you place on aspects of a judge's qualification? So for example, one value that I place, if I were ever sitting in the Oval Office, which as we know, Sarah, just almost happened in 2016, just came so close. If only I just said yes to Bill Kristol, there I'd be. And that's an absolute joke, you guys. But anyway, if I was sitting in the Oval Office, I would place a lot of emphasis on trial experience. I want more judges in senior positions that have had real trial experience.

I think that's very valuable. So there's a lot of subjective elements to weigh. So I'm a complete agreement that Sri Srinivasan, who is undeniably qualified to the Supreme Court, undeniably qualified, I'm just not in agreement that he is the most qualified. And to your point, like totally different experiences and his experience is already well represented. He was deputy solicitor general during the Obama years. He had been a lecturer at Harvard where he taught Supreme Court and appellate advocacy. Like we've got that on the court in spades, actually. And look, he was unanimously confirmed in 2013 to the D.C. Circuit spot, which some may see as, ah, well, see, he has more Republican

votes. But remember what I said about Gorsuch and Kavanaugh, right? Like, if it's too far away, they're like, well, different time. Now we've seen his circuit opinions, yada, yada. Plus, I think you could factor in Kentaji Brown Jackson's personality, how well liked she is by her colleagues, et cetera. Her clerk family, as you said, with district court clerks. All in all, I think I would probably pick her over Sri Srinivasan, you know, four days out of the week. Right. Now, here's where I agree with Jonah. is out of the week. Right. Now, here's where I agree with Jonah. Don't run around saying I'm only going to select a black woman as the Supreme Court justice because it just, okay, just from a political standpoint, people don't like that. You know, people both on, on both sides of the

political spectrum, it turns out that people don't like this idea that says, here's my race, gender classification for my qualification for this position. That is not necessarily a position where race slash gender should be terribly relevant to it. I think people don't like it, number one, for a lot of really good reasons. And number two, I don't want Judge Jackson taking the bench with a bunch of Americans saying, well, best available black woman in America. I just think that's in many ways unfair to this future justice who's flat out, full stop in the category of Americans. And it's a small universe of Americans who are super well qualified to be Supreme Court justices. And so I think there's a political sort of faux pas here, if you just want to talk crass politics. Because as Charlie Sykes pointed

out in his morning newsletter, even if you go into California, California, which went to for Biden by I think the I can't remember the exact number, but I think it was by a 187 point margin over Trump at the same election decisively reaffirmed the state's prohibition against the use of race, for example, in college admissions. I mean, this is a kind of formula that, a kind of a political calculus that has a lot more resonance on Twitter than it does in the rest of the world. And so I think there's political problems why it's bad. I think there's just kind of cultural problems why you don't want to be doing that as we, we don't want to be, you know, in this, uh, creating this sort of impression that what you've done is you've, you've checked a box. And then there's just personal reasons for the justice herself, the future justice herself. You know, I, I don't know. So totally agree. Shree Srinivasan is not the clearly most qualified progressive. 100% agree in Supreme Court. I also know full well that everybody, I can't remember if George H.W. Bush said he's absolutely going to pick a black

candidate to replace Thurgood Marshall, but everybody in the universe knew that he was. Okay. This was the least, this would, it would have been jaw open shocking had he not. Okay. It would have been jaw open shocking had he not. Okay. So I know this, there has been bipartisan precedent for this. I know all this doesn't mean that I have to like it. So that's, that's mine.

I actually going to get conservative hate mail on this one, but the wise Latina comment, the justice Sotomayor made that's been taken pretty out of context, in my opinion, making the point about one's life experience being different because of one's race or ethnicity sometimes or religion, and that that informs their view of the law. And a whole bunch of conservatives were like, it shouldn't inform your view of the law. Your view of the law should be informed by the text and the history. And I agree. But like, I mean, we talk about this plenty, David, judges are human and those humans have different experiences and being able to even like,

let me take a different context here. Justice Breyer, I don't think knows a whole lot about Instagram or Snapchat. And so when we talked about the angry cheerleader case, it was a different life experience for Justice Kavanaugh to talk about the angry cheerleader and Justice Barrett than Justice Breyer, because they had children that use Snapchat, presumably. It's not that different, like, unless you say like, well, that is irrelevant to understand how Snapchat works. In the same way, race colors your life experience, religion, ethnicity. And so I don't think that there's anything wrong

with saying that it is important to have different experiences represented on the court. And some of those experiences, as we talked about, are trial judge versus appellate. And some of them are race or religion. Absolutely. But it's a little different than just announcing, here is the only experience I will consider for this seat. Right. Right. Exactly. No, I agree with you on

different experiences. And one of the reasons why I talk about, I want a trial court judge, because trial court judges see, for example, they're the ones on the tip of the spear seeing the real world consequences and fallout from a lot of, quite frankly, discretionary legal rulings and evidentiary legal rulings regarding searches and seizures, et cetera, et cetera. So anyway, I think that that's a, when we're speaking of Supreme Court qualifications and experiences, I think it's really important to sort of say there is not, there is a, there is a constellation of qualified people. There is no clear leader among, in that constellation. On both sides of the aisle, by the way, you know, I'm a big, I'm a big fan of multiple friends of our pod. There's some that if they were nominated Supreme Court, I might just do a cartwheel and a back handspring down the hall.

Okay, last question is about the clerks. What happens to Judge Jackson's clerks? So look, in terms of the actual law or rule, nothing. There's no rule about what happens to them. They become unemployed. She no longer has that job. They no longer have their job. In practice, her clerks, let's assume that she got, this won't happen actually,

but if she got nominated next week and confirmed a month after that, so we're talking like March, her clerks would be unemployed. They would go to their law firms. They might have another clerkship lined up that was going to start in the summer and they get a nice little vacation. However, she will have already hired clerks for the incoming fall. I think she's far more likely, by the way, to be confirmed closer to the summer, closer to when the D.C. Circuit would go on recess regardless. The D.C. Circuit, by the way, the only one who has the Supreme Court schedule. Every other circuit's in business all year round. But the D.C. Circuit takes a summer recess like the Supreme Court. So this year's clerks don't have a lot to worry about.

They will basically fill out their entire clerkship, maybe minus a few weeks at the end. But for the clerks who were supposed to start in July, yeah, they don't have a job. And in practice, what happens is Judge Jackson, let's assume she gets the nomination for a second, Judge Jackson will call around to other like-minded judges, or even not, not just on the D.C. Circuit, but also elsewhere, and ask if they have any room to take on an additional clerk.

She might not be able to find four spots like that, at which point she may ask judges whether they have room to take on an additional clerk in future years to fill one of their four spots. And she will make a few calls like that. It's not required. Not every single future justice has done that, especially if they get nominated far enough away from when the clerks were supposed to start and they can kind of scramble on their own. Now, do those people then automatically get a Supreme Court clerkship? No, they do not. get a Supreme Court clerkship. No, they do not. This is like my back of the envelope memory, but about half will end up getting to clerk for their once and future judge,

which is probably about how many we're going to get to clerk on the Supreme Court anyway. If you're talking about someone who was clerking for Judge Jackson on the D.C. Circuit, easily half of them were going to clerk at the Supreme Court, maybe more. So it doesn't super affect your chances of clerking at the court. In practice, someone like Justice Gorsuch, for instance, went back and hired a bunch of previous clerks for his first year who had already clerked for other justices, for example, to help him set up chambers that first year. That's become more common. Justice Kavanaugh, of course, did something kind of similar, hiring more experienced clerks to come in at the beginning. So you would expect something more like that. So not the current set of clerks for her,

not the incoming set, certainly. And then as time goes by, Justice Alito sort of went back and started picking his former circuit clerks who hadn't gotten Supreme Court clerkships and bringing them up to the court. So it is helpful when your judge, even if you never worked for them, gets picked for the Supreme Court. But it's not a guarantee. 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 you're up to today.

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That's a-u-r-a-frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. All right. Shall we finally have the sedition conversation? Let's do sedition. Everything else we will save for Monday. Yes, let's do sedition. Everything else we will save for Monday. Yes, let's do sedition. Okay. So, you know, one of the things that has been talked about

quite a bit is if you're going to use terms like insurrection or coup or terrorism, for example, to describe what happened on January 6th. And by what happened on January 6th, I'm talking about the actual assault on the Capitol itself. Why hasn't anyone been charged with, for example, seditious conspiracy? And then, as we now know, if you've been paying attention, there have been seditious conspiracy charges filed. These were filed on January 13th, so we're just getting back to it. We're getting to it a couple of weeks late.

But what I want to do is I want to talk about what is seditious conspiracy by statute and why, even though the statute is a little bit broad, it's really, you should be as a prosecutor for legal reasons, leery of bringing a seditious conspiracy charge, and why I think that the seditious conspiracy charges are appropriate here. Okay. Now, one, what does the seditious conspiracy statute say? It's 18 U.S. Code section 2384. If two or more persons in any state territory in any place subject to the jurisdiction of the United States conspire to overthrow, put down, or to destroy by force the government of the United States or to levy war against them or to oppose by force the authority thereof or by force prevent, hinder, or delay the execution of any law of the United States or to levy war against them or to oppose by force the authority thereof or by

force prevent, hinder, or delay the execution of any law of the United States or by force to seize, take possession, any property of the United States contrary to thereof, they shall be fined under this title and imprisoned not more than 20 years. Okay, broad language, it's a way of saying, hey, you can't try to overthrow the government. You can't try to seize government assets. You can't use force to oppose the authority of the government. But seditious conspiracy is rarely charged. And when it is prosecuted, it's actually a difficult kind of prosecution to win on. It's difficult to secure conviction, and the reason is pretty interesting. One of the key reasons is a little something called the First Amendment. So there's this really interesting

story, and we'll give you some show notes on this, of something called the Hootery, and I believe that's how you pronounce it, Hootery Militia. radical Christian militias to engage in, or apparently allegedly hoping to engage in terror attacks that would spark or trigger a broader American civil conflict. So these guys, like a lot of these militias, talked a bunch about overthrowing the government or sparking, not overthrowing the government themselves, but sparking civil unrest. They had plans, you know, allegedly about attacking public officials, then maybe hitting, attacking the funeral for the public. I mean, there was just all kinds of mishmash of plotting and planning. They had a lot of weapons. So they're arrested. They're arrested. And what ends up happening after, you know, in the trial, the judge just dismisses most of the charges. I mean, they pled guilty to possessing machine guns, but the judge dismissed the most serious charges. And why would that be? it turns out under the First Amendment to the United States,

you know what you can do a lot of, Sarah? Talk about violently overthrowing the government of the U.S. You can talk a ton about it. That can be the purpose of, I can form an organization called the Organization for the Violent Overthrow of the United States Government, and I can advocate for it. What I cannot do is actually go ahead and attempt it, is to actually go ahead and attempt it.

It's one of the really interesting aspects of our constitution is that you have, it's a classical liberal structure that tolerates and actively protects an enormous amount of attempted illiberal critique of this structure. And so if you're going to make a seditious conspiracy charge, if you're going to, if you're going to try to prosecute this, what you got to show really is a heck of a lot more than these guys wanted to overthrow the government. I'm reminded of this really,

this kind of funny moment I was interviewing at Cornell Law School. This is years ago. And it was evening. I was driving with the department chair to dinner. And we passed by this little ranch house kind of in the middle of nowhere that was surrounded by a cluster of cars,

just a big cluster of cars. And I said, huh, I wonder what's going on there. And she responded with, oh, I think that's a revolutionary cell. They meet every Wednesday. And it was holdovers from the 60s and 70s who are still plotting and planning that overthrow of the US. So when you're thinking about this, what you're going to have to do is you're going to have to show a heck of a lot more than these guys wanted to overthrow the government. And that gets us to the facts of the case here, where the facts of the case here demonstrate these guys, they didn't just plot and plan. There was an actual attack. there was an actual attack. And then that makes the other elements of the plot or the plan, for example, this stationing, what they called a quick reaction force, the planning to stash weapons, puts it in a different light when you have what the government described as two stacks, stack one and stack two of Oath Keepers who violently injured the Capitol. So I think it's a, but even then, when you're talking about evidence of criminal activity

actually undertaken by the Oath Keepers, the First Amendment is still going to shield, at least to some degree, quite a bit of their intentions. And so I think it's important to demonstrate why a broad statute like the seditious conspiracy statute still operates properly so under the long shadow of the First Amendment. So that's my seditious conspiracy. I'm not going to call a whole album side, like three tracks. All right. So a few notes that I have. One, for those wondering about sort of where seditious conspiracy fits in with treason and obstruction of justice, I will try to do my best to explain quickly. Obstruction of justice at the bottom is really trying to prevent the process of justice, of the laws, but not the laws themselves.

So let me just read you some of the title. Assault on a process server. Resistance to extradition agent. Influencing or injuring officer or juror generally. Influencing juror by writing. Obstruction of proceedings before departments, agencies, and committees, theft of records. It goes on from there. So hopefully you sort of see the difference. Seditious conspiracy, you read, David. Let me read you treason because I think one would assume that, right, it's obstruction, sedition, treason. I'm going to read you treason. Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death or

shall be imprisoned not less than five years. Wait, what? So just to be clear, seditious conspiracy is up to 20 years. Treason, you could get as few as five years. Now, with seditious conspiracy, you could also get as few as five years. But I just found that sort of interesting that it's not less than five years, but still five years for treason, kind of on the low side there. Some other notes of interest. One, have you ever done a background check for a federal job, David, where they ask you if you have ever advocated for the overthrow of the United States government? Yes. And security clearance, you know, all of that. Right. So it's actually, have you ever advocated for the overthrow of the United States government by force or violence?

So your First Amendment rights, it's actually always been a question of whether you can say yes to that question. And it shouldn't actually affect your ability to get the job in theory, because it's protected speech. But I mean, I wouldn't go out of your way to answer yes, I'll just say that. I don't think it's going to help your chances of getting the job. Another interesting question has been, there's right now scuffling over bail and whether the main guy who's been charged, uh, can sort of be let out on bail. I think it's an interesting question. I think the prosecution is likely to lose. Actually, they waited a year to charge him and are now arguing that him being let out is, you know, a danger to the community.

And it's like, well, you let them wander around for a year. So that's a pretty good argument. It seems like he has good lawyers. I've been following their arguments. I think they've got at least an argument that the seditious conspiracy charge is vague, but it's a very high bar. And as you said, it has to be more than speech. They did have weapons stored in Virginia. And when other people asked to go access those weapons,

the main defendant said no. I think that is a fact in their favor. Overall, I think it'll be interesting if he is convicted, how that appeal goes. I think there's a good chance he gets convicted in trial. But on appeal, you know, the parameters of what seditious conspiracy is. I mean, my God, as you said, David, it's a really broad. I mean, anyone who by force prevents the execution of any law. I mean, so for instance, if a police officer is coming to arrest your friend and you shoot him, could you be charged with seditious conspiracy? You raise, I'm so glad you brought that up because this touches on a lot of the analysis we see surrounding all of the events of the election contest. So if you look at federal civil rights laws regarding voting, if you look at seditious conspiracy, you've got broad language. And so a lot of people are popping around these statutes like,

doesn't this apply? Doesn't this apply? Doesn't this apply? And I wrote this piece for The Atlantic, which I'll put in the show notes. You got to look at court precedent. That's right. This is exactly right. This law doesn't tell you anything. You have to go look at what it's been used for because like, okay, so I just had the example of he's coming to arrest your friend and you shoot him. That's pretty bad. But in that language, it also would, he's coming to execute a search warrant and you shove him. You by force tried to delay the execution of a valid search warrant. That, yeah. By force to seize, take, possess any property. So if I see a mailman driving by in his truck and I shove him out of the car and take the mail truck, did I just commit seditious conspiracy? I don't think so.

Right. Right. And, you know, the one thing. So, again, always look to precedent. If you're reading. Here's a here's a good here's a good rule of thumb. If you're reading, and here's a good rule of thumb. If you're reading an article and it's telling you that somebody has violated the law and there's no reference in there to court precedent that could apply, arguably apply, clearly

apply, could be reasonably extended to apply, give it a little side eye. reasonably extended to apply, give it a little side eye. Give it a little bit of a side eye because one of the flaws, quite frankly, in the federal criminal code is that these laws are just really broad. And so what judges have been doing for quite some time is providing sort of putting meat on those bones. And sometimes, well, maybe it's more like taking meat a quote, Sarah, from one of the members of the wife of one of the chief defendants after they were acquitted, after the judge tossed out the serious charges. Quote, we weren't dangerous. We couldn't overthrow F Troop. That they were LARPers in many ways. And so, yeah, you have to be really, really careful about this when you're going to read something and you're going to see this really

broad statutory language. And the other thing is, you might think you want it to be that broad, but you don't. But you don't. You don't really, when you think it through, you don't really want these statues to be as broad as they seem to be on their face. All right. So, David, let's put a dot, dot, dot at the end of this, because I also want to talk about insurrectionist Madison Cawthorn and efforts as written up by The New York Times to prevent him from running for Congress, disqualified under the 14th Amendment. him from running for Congress disqualified under the 14th Amendment. Let's save it for Monday. So to finish up, though, a nice addendum to our conversation about the Equal Rights Amendment. Yesterday, the Office of Legal Counsel, and remember at the Department of Justice, we've talked about them as sort of both being the law professor, the law library of the department, professor, the law library of the department, but also the judicial branch of the executive branch. They deal with sort of intra-judicial, sorry, intra-executive branch conflicts between agencies. So interestingly, on January 6th, 2020, the Trump administration office of legal counsel put out a memorandum describing

why the Equal Rights Amendment was not a validly ratified part of the Constitution, making all the arguments that we talked about with former now Virginia Solicitor General Michelle Kalen. So they just issued a new memorandum, January 26, 2022. And it basically says, hey, we've heard you don't like our previous memo and think it was wrong and inappropriate. We don't think it was wrong. It wasn't inappropriate. It might have lacked some nuance. But anyway, literally, moreover, the 2020 OLC opinion does not preclude the House or the Senate from taking further action regarding ratification of the ERA. David, just prepare yourself, okay? As a co-equal branch of government, Congress is entitled to take a different view on these complex and unsettled questions. I know you really hate the co-equal branch stuff. Oh boy, yes. Throughout our history, Congress has deliberated on its own interpretations of the Article 5

process numerous times and taken actions on that basis, and the shape of any forthcoming congressional action might affect the ultimate assessment of the ERA's legal status. For the foregoing reasons, the 2020 OLC opinion is not an obstacle to either to Congress's ability to act with respect to ratification of the ERA or to do to judicial consideration of the pertinent questions. XOXO, Christopher Schrader, assistant attorney general for the Office of Legal Counsel. But 18 hours, 16 hours later, U.S. President Joe Biden released a statement urging Congress, quote, to pass a resolution recognizing ratification of the ERA. This is reading from Reuters. After a recent legal analysis said there was nothing preventing lawmakers from acting. We must recognize the clear will of the American people and definitively enshrine the principles of gender equality in the Constitution. It is long past time that we put all doubt to rest. No one should be discriminated against based on their sex, and we as a nation must stand up for full women's equality. Cool statement, bro, but that's not

actually what's at issue here. What's at issue here is whether Congress can set deadlines for the ratification of an amendment, whether it must set them in the amendment itself or in the preamble, and whether states can withdraw ratification. That's it. It's not about women's equality at this point. But thank you for playing. Nice addendum.

And I have just one question. Have you or are you watching Station Eleven on HBO Max? No. A girlfriend, the one who's in the Marine Corps, actually, who I told you about, she recommended it and said she couldn't really tell me anything about it, but that I should watch it. I'm going to say the exact same thing,

and I'm also going to say, I don't know why I like it so much. Not a ringing. Okay. No, no, no. The endorsement is I like it so much,

but what's should be alluring about it. Isn't I like it so much? Cause I like Aquaman and I don't think you do, but there's some quality about it that is unlike other shows that I have seen that is extremely compelling. Well, as I said, we're doing some Boba Fett right now, although I was really horrified to find out that they're not through all that. They haven't released all the Boba Fetts, and I will not, not binge something on my own schedule. I hate being forced to wait, So I don't

know what's going to happen with that. And then Narcos season three of Narcos Mexico is how I learn all my Spanish. So. Well, and I can just say we also binged in three days flat season four, part one of Ozark. And that was some good television. You know what the brisket's first word was? Well, actually, his first words were, oh, no. I don't know why, but for like weeks, that's all he would say. It applied to everything. But like his first real world word was huevos. Really?

Yeah. Oh, fascinating. Fascinating. Getting ready for the cartel early. That's right. And I mean, for listeners here who speak Spanish, huevos can mean a few different things, though I hope he was asking for eggs.

Yeah, I don't have no idea what it means beyond eggs. So can you guess what a huevos look like? Okay. Okay. All right. This is a family podcast, Sarah. Family podcast. When he asked for huevos, I made him an omelet.

Oh, good. Okay, excellent. All right. Well, we will be back on Monday and Sarah's going to have, she's going to be teed up with a rant about the Madison Cawthorn situation. Can't wait.

I've got stuff to talk about. I'm teed up. I'm teed up with a rant about free speech in colleges and you know you've heard a little bit of it before but there's some new stuff here and we'll no doubt have much more Electoral Count Act

and the fight continues Oh gosh there's already so much Okay So we will be back on Monday In the meantime please rate us on Apple Podcasts, subscribe on Apple Podcasts, and check out thedispatch.com.