Advisory Opinions - Ketanji Brown Jackson Confirmation Hearings Takeaways

Episode Date: March 25, 2022

David and Sarah discuss Ketanji Brown Jackson’s Supreme Court confirmation hearings and a disruption at Yale Law School. They drill down on claims that Judge Jackson is soft on child porn crimes and amplify their objection to both intolerant students and cowardly administrators. Throughout the podcast, a courageous Sarah fights through COVID to podcast in the face of adversity.   Show Notes: -The Dispatch: “Ketanji Brown Jackson Weathers a Marathon Day Two” -National Review: “Senator Hawley’s Disingenuous Attack against Judge Jackson’s Record on Child Pornography” -National Review: “Ho-Hum: The Cases Senator Hawley Cites Show Judge Jackson Is an Unremarkable Sentencer in Child-Porn Cases” -Washington Post: “Josh Hawley’s misleading attack on Judge Jackson’s sentencing of child-porn offenders” -Original Jurisdiction: “Free Speech At Yale Law School: One Progressive's Perspective” 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. I'm David French with a heroic Sarah Isker. Heroic. Sarah Isker, heroic. So how heroic? Sarah, she recorded a podcast. Was it the day after you gave birth? Two days after you gave? Not quite. He was born on a Friday and we tape on Mondays.

Okay. So you recorded a podcast two days, three, two and a half days after giving birth. And we actually, this tells you how bad you are feeling. We actually missed a podcast on Monday because you have COVID and you're still battling it, but you're here. You're with us. Yeah. So look, uh, am I on drugs? Yes. Yeah. So look, am I on drugs? Yes. Do I sound normal? No. Have I paid attention to anything that has gone on this week in the news? Not really. So I thought we would do a little bit of a different AO, David, where I ask you questions about what happened this week in law, and you fill me in. Well, and to be clear, we'll limit it. We'll limit it because this has been a jam-packed week. We've had three Supreme Court opinions, two that came out today. Both of the two that came out today are wheelhouse issues for us. One is free speech

involving the censuring of a member of a community college board or a member of a college board. The other one involving religious liberty, Ramirez v. Collier, religious liberty and the ability of a condemned man to receive touch and audible prayer in the execution chamber, a case we talked a ton about. He won his case eight to one. The free speech case was a unanimous ruling. And we also had an election case from the Supreme Court. And you know what? We're not going to talk about any of them. I lack the mental bandwidth and frankly, the vocal bandwidth to really wade into those issues. But never fear. They deserve a comprehensive breakdown. I mean, these are three big opinions and we're going to talk about them, but we're just going to talk about them on

Monday. So if you tuned in to hear us break down Ramirez versus Collier, you can go ahead and check out if you want. We don't want you to. We don't want you to because we have two big things that we are going to talk about. We're going to talk about the nomination fight with Judge Kentonji Brown Jackson. And we're going to talk about the disruption of a free speech event at Yale Law School where we just were. So these are two big issues. And we're going to dive into both of those. And we're going to leave the three Supreme Court opinions as well as, Sarah, my goodness, there was an open letter, the resignation letter of a New York district attorney, assistant district attorney, or one of the prosecutors investigating the Trump, you know, the potential Trump organization financial fraud. His letter

leaked out and where he claimed that there was compelling evidence, enough evidence to indict Trump and convict Trump. A lot to talk about. So let's all just say you've got a lot to look forward to on Monday. Namely, having my voice back. Yes, exactly. And we'll dive in. Let's just dive in now, Sarah, to the Jackson hearing. And let's begin with the mea culpa. The mea culpa is we predicted that there was going to be the most controversial case that was going to be discussed was Judge Jackson's. And it almost sounds funny now after two days of hearings. Judge Jackson's ruling on an immigration issue and administrative law. an immigration issue and administrative law. Instead... In fairness, David, in fairness, Lindsey Graham did dive in on that case.

True, true. But on the controversy scale, it was a 1.1 compared to the eight or nine of the, well, relative to this hearing, the 10 is a case called U.S. v. Hawkins, which we can dive into in a minute. I just think that depends whether we're doing like the Richter scale. Are we doing exponential or arithmetic 1 through 10? Arithmetic 1 through 10. Oh, okay. Then, yeah, you're probably right. Yeah, yeah.

So let's just give some background to everybody, and we're going to dive into this issue a little bit. The background is that a couple of days before the hearing, Josh Hawley put together a Twitter thread that claimed that Judge Jackson was, this is the quote, he had noticed that Haw Holly had noticed an alarming pattern when it comes to Judge Jackson's treatment of sex offenders, especially those preying on children, and then went on to list a number of cases in which he claimed that Judge Jackson had let sex offenders go, mainly people who were consumers of child pornography with relatively light sentences. He also took aim at a law review article and a note that Judge Jackson had written long ago about essentially sex offender registries and treatment of sex offenders and what constitutes punishment versus treatment and when does treatment blur into punishment in our sex offender registries to draconian, which is a very live controversy, by the way.

jurists have a lot of questions about the treatment of sex offenders to the extent to which sex offender registries or other laws regulating sex offenders sweep too broadly, impose punishments beyond statutory limits or constitutional limits. It's a very live controversy, one that Hawley's tweet somewhat mischaracterized. But the real controversy, Sarah, centered around a series of cases in which Hawley asserted that Judge Jackson had given slap on the wrist or very, very light sentences. And I know you kind of began to track this issue before COVID hit you. And so kind of give us your thoughts about where the dispute stood before the hearing.

So, okay. Okay. First of all, I find it frustrating, like any logic game, right? If you present this one thing to the exclusion of what is being done generally. So what do I mean? One, judges get three sentencing recommendations, one from the prosecution, one from the defense, and one from the probation office.

office. And what you want to look at if you're trying to determine whether a judge has sentenced oddly or outside the norm is not the sentencing guideline range, but those three recommendations. And then what are other judges doing? Are they always following the probation officer? Are they always going above with the prosecution ass? And in general, what you're going to find is that the sentencing guidelines don't tell you a lot about sentencing really at all. Now, remember, the sentencing guidelines used to be mandatory. And then a few cases at the Supreme Court, they became simply recommendations. And when you talk to prosecutors, what you're going to hear is that in some areas, the sentencing guideline ranges make a ton of sense. And in other areas, they just make less sense. And so if you're telling judges that they're just recommendations, the judges are like, cool. Now, under the law, as a judge, you do have to explain why you're departing from the guideline range, but as long as you explain it, you're fine. And so I think what was frustrating to me,

again, ahead of the hearing, was that this was presented without context. Right. And the truth is, most judges don't sentence within the guideline range on child pornography cases. I think it's fair that we talk about that. Maybe that's a bad thing, and maybe they should be giving more time, and maybe we should be in confirmation hearings for district judges talking about how they view child pornography cases. And David, I'll also say that part of my experience in this is, I think I've mentioned this before, after I clerked, I think I've mentioned this before. After I clerked, I worked in a neuroscience lab that was, at the time, doing criminal justice reform research using fMRIs and sort of the latest neuroscience technology to see what we could learn about recidivism. Because when you think about why we put people in jail,

you've got to have a philosophical standard of this. Is it retributive? Are we just doing it to punish people? Is it rehabilitative? Do we think they're going to get better in prison? I don't think many people think that anymore. Or are we doing it to protect society? I think that's a pretty good reason. Um, and I think retributive is too, like, even if we know that, you know, you only killed your husband cause he cheated on you and you're unlikely to ever kill again, um, because you're, you know, 75 year old woman, we still put you in jail because you should still be punished for that. Even if we don't really feel the need to protect society because we know that it was just specific and that you only would ever kill your husband.

But when we look at that protecting society element, what we're really talking about is recidivism and the likelihood that you're going to offend again. Recidivism rates in this country are incredibly high. And David, recidivism rates in the country are highest for sex offenders. Right. And so it's not that I think this is an unfair topic. Again, we're talking about before the hearings. It's that if we want to have a conversation that will actually be meaningful

about it, then you've got to bring all of this to it. The philosophies of punishment, what other judges are doing. And it turns out, by and large, she's not an outlier. Right. And the White House pushed back. Andrew McCarthy at NRO pushed back, which I thought was really interesting. As a prosecutor, he said, the sentencing guideline ranges don't make sense anymore. They did pre-computer where if you had one piece of child pornography, wow, how did you get that, et cetera. But now, as he said, you could spend 15 minutes on your computer and have hundreds and hundreds of images.

And the other thing about child pornography, of course, is a lot of these images are created through, I mean, truly horrific abuse of children. And so there's a supply-demand economics issue to this, that if there weren't demand, maybe there'd be less abuse of children. But there's an alternative to that, too, which is, no, the pictures are actually simply a byproduct of the abuse and not being driven by the supply-demand curve. Okay, I'm done. But that's sort of your 101 on, as we think about child pornography, are we sentencing harsh enough? And the answer is, I wish we could have a real

conversation about it. I think it's a worthwhile conversation. Yeah. And so there's two conversations in my view. One is the substantive conversation that you just outlined. What should we be doing? And there's a range of conduct when you're talking about sex offenders, everything from indecent exposure to sexual assault to receipt of child pornography to production of child pornography. There's a giant range of conduct, and we really need to have a serious conversation about how we deal with this issue. Because as you noticed, Sarah, and noted, Sarah, the recidivism right here is really, really high. Now, that is a big meta mega conversation that we need to have that is much more legislative in nature. In other words, this is what should legislatures do? What

should the law be? Okay. Then there's another question, which is judicial in nature, which is how do judges apply legislatively created sentencing ranges. And the thing that troubled me about the Hawley Twitter thread, and we'll put the Twitter thread in there and we'll put the Andrew McCarthy response, which I thought was really interesting, along with the Washington Post fact check response, which was very interesting. The thing that I found troubling about the Hawley Twitter thread is it was absolutely guaranteed to make you angry if you knew nothing about how sentencing works. Because what it did is it highlighted the sentencing guidelines, and it didn't talk about prosecution's recommendation. It didn't talk about defense rebuttal recommendation. It didn't talk about the probation department's recommendation.

It didn't get into that range at all. And I think it's, let's just go into that a little bit. And again, this is both the Washington Post and National Review have traced all this out. So there's a case called United States versus Savage. In that case, Judge Jackson recommended a 37-month sentence, which was a month more than the probation department's recommendation. So less than the prosecution, more than the defense, more than the probation department's recommendation. Scandal? I mean, scandal only if the legislature has not, you know, if you are upset with the sentence, it's much more of a scandal of legislation than jurisprudence because this is against Judge Jackson imposing a sentence right there in the range of all of the relevant, of the recommendations of all of the relevant parties. But that one was below guideline range. Yes. Yeah. Okay. So it, well, but not, not re there was a, there was a disagreement

on guideline range. So, so that's interesting because, so just to get into the legal weeds of sentencing here, even if a judge wants to depart from the guidelines upward or downward, you do have to correctly calculate the guideline range, which is an interesting part of this as well. Even though they are just recommendations, if you calculate them wrong, then you can't really explain why you departed from them, yada yada, and that's a way to get your sentencing flipped on appeal. saying flipped on appeal. And again, maybe just a hot second on the guideline ranges are determined through this like chart. You know, you like go down and it's like first time offense. Did they use a weapon? Aggravating circumstances, ameliorating circumstances. I don't know what the right word is there. I've said I'm on drugs, so words aren't going to be great today. And then, so set that into one bucket, the sentencing guideline bucket. But then, as we said, there's three sentencing recommendations. And then, David, there's something called the sentencing report that judges get,

and that's like a huge, chunky file. And fast forward, right, we're going to have Republicans ask for the sentence, pre-sentencing report. Right. For some of these. And right now, at least, the answer has been negatory. Right, right. You know, basically, so you can assume in each one of the cases that I'll run through quickly here that the Hawley assertion is that she's sentenced below the guidelines, and that's the scandal. So in case number one, what I just talked about, McCarthy is saying Hawley might not be right about his assertion that she's sentenced outside the guidelines. So in case number one, there was a guidelines range of 37 to 46, maybe, or 46 to 57. That was the dispute to get really into the weeds. And she gave a 37-month sentence, which was a month more than the probation department's recommendation. All right. Number two, number two case is U.S.

Free Stewart. And that's one where Holly says guidelines called for 97 to 121 months of imprisonment. Okay. The interesting thing about this case is that the interesting thing about this case is that the prosecution in the case recommended below the guidelines range. So this is what... Which is not terribly unusual, by the by. Right, right. Again, so you go into United States versus Cooper. This is where Justice Department recommended 72 months, which was less than half of what Hawley said was the bottom of the range. And then Jackson gave a 60-month sentence, and it was exactly what the probation department called for. So you're beginning to get a sense of a pattern here, and the pattern is, if you're going to talk about what Jackson did, you're generally going to be looking at what the probation department

called for, and her sentencing tracks that. So again, in a case called Chazen, if that's how you pronounce it, probation department recommended 28 months, Jackson imposed 28 months. A case called Downs, a 60-month sentence, is what the probation department recommended. The controversial one, a controversial one was, and the one that ended up being talked about more than any other, was a case called S.V. Hawkins. And here, the defendant was 18 years old. Hawley says the guidelines called for a 10-year sentence. However, and Jackson gave the defendant a three-month sentence, a three-month. Now, what were the recommendations?

Prosecutors, even though there was, Holly says this was a 10-year sentence, prosecutors recommended 24 months. In other words, they recommended eight years less than the preferred sentence. Now, this was one where she departed from the probation department. The probation department recommended 18 months. She says three months. The defense wanted one day. And so that became sort of the hot button discussion for the hearings is this case. And she was press relative again and again and again over, do you regret this sentence? Do you regret this sentence? Do you regret this sentence? And David, am I correct that he violates the

terms of his release after three months and is then resentenced to additional time? I believe that's correct. I'll have to double check. And maybe in the show notes, we can put the double check of that, but I believe that's correct. So in each one of these cases, with one exception, if you're going to look at Judge Jackson's sentencing, it's very close to what the probation department recommends. Sometimes it's a little above, sometimes it's right on it. And in this one case, and the interesting thing is even after this focus on the, you know, after this focus on that one case, the Hawkins case, Andrew McCarthy, again, former prosecutor, this is a guy in National Review who would definitely be considered on the tough-on-crime range here, goes back and he wrote a lengthy piece,

essentially with 11 reasons why, or 11 points to make, why this is just not the scandal it's made out to be. And look, Sarah, if I thought Judge Jackson had a record that was out of line on sex predation and child pornography, I'd be up in arms about it. It would really bother me. But that doesn't appear to be what we have here. It appears that what we have is a, and again, Andy says it pretty well, if you're going to look at Judge Jackson overall, like a lot of judges, her overall prison sentences tend to be on the lighter side, but within the range of between the, within the range of between the defense, the prosecution, and the probation department. In other words, within that mix. And it is not, as has been pointed out by a number of people, it is not the responsibility of a judge to simply impose whatever sentence the prosecutors

recommend. So again, she's been criticized even in some of these other cases where she was squarely within that probation department range by saying, well, you didn't give what the prosecutors recommended. But it is not the judge's responsibility to rubber stamp prosecutorial recommendations. So the question for me was, is she out of line in her sentencing in child pornography cases, in cases involving sex predation. It does not appear to be at all. But there was an enormous amount of time spent sort of honing in on this attack. And I don't know, I've looked at it every which way, Sarah, and it just doesn't appear scandalous to me. Let me run through some Trump judges. Amul Thapar, who we've talked about plenty on this podcast,

now a Sixth Circuit judge who's on the Eastern District of Kentucky, the Washington Post highlighting in 2013, he sentenced a woman to 360 months. The guidelines were life. The government recommended 1,080 months. She was a 33-year-old Canadian, charged not only with child pornography, but enticing minors to engage in sexually explicit conduct for videos and photos. So bad stuff there. And he said he knew he was sentencing below the guideline range. He said, I'm not saying child pornography isn't heinous,

but much more that we want to house because if we release them, they go back into our society and prey on our people. At some point, enough is enough. Saying give her 100 years, you're asking the American taxpayers to pick up the bill. There's more heinous crimes in the world. years. You're asking the American taxpayers to pick up the bill. There's more heinous crimes in the world. Andrew Brasher, Middle District of Alabama, 69-year-old defendant, got 84 months. Guidelines were 151 to 188. Anyway, I don't need to go through all these. A lot of Trump judges, all sentencing below the guideline range and below the prosecutor range. Boy, Ralph Erickson, U.S. District Judge in North Dakota, one, two, three, four, five, six, seven, eight, nine, nine or 10 cases that they found in that one. So again, I think it's a worthwhile conversation to have about whether we're

sentencing child porn cases appropriately, but cherry picking a couple of these cases. And look, I think the Hawkins case is a little weird. And the fact that the guy, again, according to my memory, at least recidivated shortly after and had to be brought back to prison probably means that she made a judgment call, a bad judgment call. But I don't know, again, that that puts her outside the norm of any judge. If our answer is, you have to be 100% right all the time and never allow someone to be released back into society who could offend again, then I don't see how anyone could ever go from being a district court judge to a Supreme Court justice or any other elevation. Because if that's our standard,

I don't think I want that district court judge, because it means they're sentencing so high and so long out of fear for their own career. Yeah. I don't love that. I don't love that incentive system. No, I don't like that at all. And I'm going to just read you this paragraph from Andy that I think is spot on. Okay, this is spot on because we talked about there's a legislative issue and there's a jurisprudential issue. And if the focus of the legislature, if the focus of the legislature is making sure that child, those who receive child pornography, in this Hawkins case, we're

not talking about the creation of child pornography, but the receipt of child pornography. creation of child pornography, but the receipt of child pornography. If it was a priority of members of Congress to impose harsh and draconian mandatory minimums on that crime, they could do so. They could override the jurisprudential discretion here and impose a specific punishment. Okay, so this is what, this is, I like the way Andy said this, the issue brought into sharp relief by Hawkins case, namely the need for Congress to provide courts with rational guidance in the sentencing of nonviolent consumers of child pornography, especially those who are young. Hawkins was 18, has been well known for over 20 years. has been well known for over 20 years. So for over 20 years, there has been controversy about a lack of congressional guidance. By the way, Sarah, do you detect a common theme in our

podcasts? It's so funny because I was going to say it's a great segue to my next question to you, but finish up and then I'm going to ask my question. Okay. Yet Congress has done nothing. Okay. This is back to Andy. If, as he asserted, Senator Graham would like to see nonviolent possessors of child pornography sentenced to decades in prison, he could at any time have proposed legislation calling for a mandatory minimum in possession cases. Ditto Senator Hawley and Senator Ted Cruz. The latter didn't go into the Hawkins case on Wednesday, but he ripped Jackson's sentences in other child porn cases. If these senators are so passionate about the need for nonviolent possessors of child pornography to be sentenced to 10 or more years, why have they not proposed legislation calling for that? So, David, this brings me to my next question to you.

Okay. Related to the hearings. And again, I didn't watch any of it. Not like live on C-SPAN. I've been too sick for that. But David, how do you define what a woman is? I was going to ask you, Sarah. But I got there first, didn't I?

I just blanked. It's a- XX, buddy. Okay. All right. All right. I can read your mind. We're in mind meld, even with COVID. We're in mind meld. We are. So I was trying to think about this. I would say, as a general matter, a woman is a person with XX chromosomes, although there are some rare exceptions where the chromosomal identifiers become blurry. But as a general matter, a woman is a human being with XX chromosomes. That's how I, because other measures don't work, like a woman who, a person who can, has a womb womb i mean if are you not a woman after his direct and you know that kind of that kind of stuff but that would be my decent starting point

okay um however and you gave some of the hedging but in order for that to really work you either have to say that your definition isn't perfect, which I think you're kind of saying already, or that there's more than two sexes. Because you'd have to say that XY is male, XX is female, and then there's some other sexes in there if, again, it's all based on the chromosomal definition. And I think it's interesting when you go to, for instance, the Olympics and how they define it, there are different definitions for women based on the length of track that you're running. So you can qualify as a woman for some Olympic events and not for others because the Olympics uses testosterone amounts per, then they're in the metric system i don't really

understand the metric system but um that's all to say hilariously there's not a great answer to that question and of course i'm referencing the fact that senator blackburn asked judge jackson this question um at the hearing and i'm curious what Senator Blackburn would say was the definition other than, and I know it when I see a definition, which I don't love. But David, to your point, what's so interesting about this is, do you know whose job it is to create definitions? Legislators. That's right. It's actually not Judge Jackson'sson's job now i think a fair question would have been you know if you get a case about blah blah blah how would you define women under blah

blah blah right and i think that your answer could be something more about you know the common understanding of the term at the time or you know apply textualism or originalism, whatever you want. And I thought that Judge Jackson's answers about not being familiar with Justice Ginsburg's opinion in the Virginia Military Institute case, which is a pretty landmark gender case, if for no other reason than it kind of creates intermediate scrutiny for gender issues. And she was like, I'm not familiar with it. I was like, yes, you are. You may not be familiar with that part of it. You may not have read it recently, but you may want to clarify, like, you've heard of the case, right?

Yeah. You know, the interesting thing about that exchange was Senator Blackburn says, what is a woman? And she responds, I'm not a biologist. I love that answer. I'm going to be honest. I didn't like it. No, so let me, there's a lot wrong with that exchange. But let me point something out here that is interesting. As a number of folks pointed out, if your claim is that Judge Jackson is a radical sort of critical gender theory and adherent to critical gender theory, she would not have gone to biology to answer that question. I sent you one of Senator Blackburn's tweets that like drove me up the wall yesterday. me up the wall yesterday. So last night, and look, I haven't really been on Twitter that much either,

but I got extra sick last night and I was just zoning out. Okay, here was the tweet. The Constitution grants us rights to life, life liberty in the pursuit of happiness is in the declaration of independence right two conservatives don't believe the constitution grants you those rights they believe those rights are given by god yeah and that the constitution protects those rights from encroachment against from the government, but not that they grant you. The government doesn't grant you your rights. That is so anathema to natural rights theory. I just. So anyway, the fact that this is the senator asking what's the definition of a woman, it just sets the whole thing on, frankly, the stupid train. Yeah. Well, it is interesting that you have had on a number of occasions here in the hearing,

you have legislators essentially asking or asking essentially legislative questions of the judge, and they're coming from the Republican side of the aisle. How are you using your discretion in sentencing? Well, if you don't like how judges have discretion in sentencing, you know how you can fix that. You can fix that. You can fix it. And if you don't like the definition that they might use for what a woman is, feel free to pass a law defining it.

Good luck with that, by the way. But feel free. And again, I didn't like Judge Jackson's answer. It's not that it was snide. It wasn't, but it was like snide adjacent. And I think there was another answer to give, which is, you know, Senator, as we saw in the Bostock case, these questions actually do come before the court. Now, I think what you're asking is, how would I address those types of cases? And I think I would do something quite similar to what Justice Gorsuch did. I would look at the history and then run through how you would approach such a question rather than saying, I'm not a biologist. Well, no joke, but you're not going to become one when you become a Supreme Court justice, and you may very well need to define what a woman is. Yeah. No, I think that the answer was, I had problems with the answer as well.

I was pointing out that while the attack on the answer was that the answer was woke, the answer wasn't as woke as it first appeared. It was more flippant than it was anything else. And I think that another answer is, well, you know, Senator, legislation is supposed to define critical terms when I am deciding cases. And as you know, most legislation contains a series of definitions of terms. And so I will apply the definition of the term as supplied by Congress would be one way of dealing with that question in a way that would that would have been a way that would have put it back on the legislature in the legislature. the legislator and the legislature. But I agree with you. I think the answer was problematic. I think it was flippant. I don't think it was quite as woke as was said. I think it was flippant. And there were better ways of answering that question. And for those who are curious more about the definition of woman, there's a great podcast series. Radiolab is a podcast that exists, but Radiolab did a series called

Radiolab is a podcast that exists, but Radiolab did a series called Gonads. And Gonads is a six-part series on this exact question. How do you define sex? And they have a great episode just on the sports question and how the Olympics has really struggled over the years. They tried chromosomes. They tried the parts. They literally would check parts. And none of it's perfect because it's over and under inclusive. We're preventing women from competing. We surely should be able to.

And even just this last summer Olympics, two African women were prevented from competing because of their testosterone levels. Born women, they would fall into any definition that I think you would come up with, David, of what is a woman. At the same time, we know that transgender athletes can get their testosterone, transgender women can get their testosterone level below the Olympic marker. But as we saw in Pennsylvania, the UPenn swimmer, those trans women whose testosterone levels meet the marker but who went through male puberty still have muscle mass, bone density, all sorts of things that are significantly higher than someone who did not go through male puberty, regardless of the testosterone level. So, look, it's a struggle struggle and there's not a great definition. I think testosterone probably is the wrong definition, but David, chromosomes isn't perfect either. Chromosomes isn't perfect. It's a good starting point. It's a good starting point.

It's a pretty good starting point. Which will give you a general rule with which you can create exceptions. It is amazing how people are so uncomfortable with that. As a friend said to me, this is why people hate lawyers, because they're so uncomfortable. You have to create a rule that encompasses every possible exception. But that's not totally true. The law is actually quite comfortable with general rules where you then dive in on the exceptions

and try to do the best you can to place exceptional cases within one side of the other while maintaining the general rule. Well, in fact, that was a lot of the subject of my Sunday newsletter was what is the general rule of equal protection? So what's sort of the general principle of equal protection? And I used the swimmer issue to really dive into it. And the general rule of equal protection is similarly situated people should be treated alike. And it's not all people should be treated equally by all laws at all times, which would create a series of absurdities. It's that similarly situated people should be treated alike, which then raises the question, who's similarly situated?

And which we dove into, or I dove into in the Sunday newsletter to argue that Leah Thomas, the swimmer in Pennsylvania, is not similarly situated to the women that lost because Thomas went through male puberty, as you said, has male bone structure, has some inherent competitive advantages. And so I talked about it through the standpoint of who is similarly situated from an equal protection standpoint. But a lot of the law is, as you said, you draw a general rule, and if the general rules were enough, you would have no need for the vast array of law books that we have arranged in any law office. Seemingly countless law books are all about the cases at the margins or at the edges of these general rules. And so, yeah, we're incredibly comfortable. Lawyers are incredibly comfortable dealing with the cases at the edges. But the cases at the edges don't negate the existence of general rules.

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Speaking of general rules, generally speaking, the way to become a good lawyer is to spend your three years at law school learning how to engage, how to spot opposing arguments and learn how to engage with those opposing arguments. You're trying to learn writing skills, persuasion skills, all of which require there to be a dispute. But David, there's a problem at Yale Law School. They don't want to have any disputes anymore. No disputing allowed. So Sarah, after our live podcast at Yale, which was, I thought, a great podcast, had a great Q&A, there was a panel on March 10th that featured Monica Miller of the Progressive American Human worked with Kristen at ADF, and she's really an outstanding advocate. She has litigated at the Supreme Court. She's argued at the Supreme Court and won more than once, I believe. I think she has two victories. I think she's never won less than seven, too. So this is somebody who is an outstanding attorney, and they were talking about how

progressives and conservatives who disagree on a ton of things can work together on free speech issues. That was sort of the theme of the discussion. And a lot of protesters showed up, a ton of protesters. Now, let's sort of break this down for a minute. It is absolutely fine if protesters show up and have signs. It is absolutely fine, in my view, if protesters before the event begins are chanting and, you know, clapping and banging on tables or whatever, making noise. It is fine if they keep the signs up during the event. It's fine to me if they turn their backs. It's fine if they engage in other forms of silent dissent. It is not fine to disrupt the event itself. And what occurred at Yale was, and there was some dispute over this, but now it's been pretty much cleared up by an avalanche of a cell phone video, of course, is that protesters initially protested Kristen and then left after being admonished that they couldn't

disrupt the event, went outside and proceeded to try to disrupt the event from outside the venue, yelling, clapping, pounding, stomping. Not only did they make it difficult for the event to be heard inside the room, and it was the same room where we held our event, it turns out, not only did they make it difficult to hear the event inside the room, they disrupted other classes and tests. So they were disrupting other people's educational experience. So this would be something that even if it was at a public university would violate, would not be protected speech at a public university because it was a substantial

disruption to the educational process. And so on the one hand, this was an unacceptable protest just sort of in its form because it was disruptive of the free speech event. And then also it was a disappointing protest in its composition. in the United States of America. And there are a couple of aspects of this. One is, I am really, so I worked at ADF. I have spoken at countless ADF events. I've been affiliated in some way. I was an allied attorney at ADF going back, gosh, 20 years maybe. And I know there is a, it is called a hate group by the SPLC on the most specious and ridiculous of grounds. It is not. It is not a hate group. It is not. And it really frustrates me when intelligent people who are supposed to be critical thinkers accept unthinkingly and without criticism these hate group designations and these hate accusations. ADF is a theologically small-o orthodox Christian organization that upholds theologically small-o

orthodox standards of sexual morality. I'm sorry, that is not hate. And so here you have an uncritical acceptance of, frankly, a deeply unfair assessment of ADF that is then, there's no dialogue about it. They're just going to go ahead and try to disrupt on that basis. that it's not just an issue of, is this the right way to protest? No, no. And if these were 16-year olds in high school, I'd pull them aside and say, guys, here's how you do this better. But these are elite lawyers in training who should already know, who should already know. So there's a few more details, though, that I think we need to run through, which is one, there's then a letter that's signed on to by 400 out of the 600 law students. I don't know how to summarize the letter except supporting the protesters, which concerned people. And two, that the dean of the law school was in one of the classrooms across the hall that was disrupted. In fact, so disrupted,

it was a job talk by Professor Claudia Flores. The event had to be moved online because they couldn't hear. So the idea that the dean of the law school wasn't aware of what was going on, it doesn't work. And she's right there. She doesn't go out and confront the protesters. She still hasn't sent out a school-wide email. When the Federalist Society president asked to have a meeting with her, she said she wasn't available until April. Right. Look, if you ever need reporting on what's going on at Yale Law School, David Latt's your guy. He's your guy for a whole bunch of other stuff. But when it comes to Yale Law School, no one is better sourced. And he, in fact, got a letter from one of the students who signed that two-thirds of the students signed letter. And basically, there was a lot of

bullying into signing the letter. The idea that you couldn't not sign the letter or there would be retribution was made quite clear. This is a super, it sounds like super progressive student who said, basically, I signed the letter. I did so with an understanding that the police were called on the protesters after they had left the room. My signature reflected a belief that the school could have pursued intermediate avenues of intervention to deal with its own students. Your reporting, meaning David Latt, has clarified that police were involved from the outset in accordance with university policy. My signature was not an endorsement

of the protesters' behavior. I signed with an understanding that advocacy is coalitional and that many in the near super majority of the school that signed the letter did so for reasons like my own. The administrative policy governing police involvement with campus events was unknown to me when I signed, and I've spoken with no one who had knowledge of the policy prior to the administration's response. So I signed to condemn what I thought was the administrative response had been, and not to

endorse the shouting down of an event. In general, what happened at the protest seems symptomatic of a fear of the student culture here that goes beyond student or administrative attitudes toward freedom of speech. Students here seem unwilling to have their beliefs and actions challenged. Many of my peers see the expectation of rigor and precision in classroom discussion and in community deliberation alike as somehow distracting from the normative urgency of their ends, many of which I share. I've heard students deride decidedly liberal professors as conservative or bigoted for clearly articulating challenges to students' intuitions for pedagogical purposes in classroom discussions. In some cases, student commentary has become absurd in its near-purposeful

missing of the point. For example, several classmates accused this one liberal professor of hating women, even as it took paints in the classroom to demonstrate where the law incorporates misogynistic norms. Even as a progressive, I felt uncomfortable sharing even friendly amendments to certain student views in the classroom. I have a lot of folk explanations for why the intellectual climate is like this, but it's nevertheless frustrating to see truth be treated as unimportant here. but it's nevertheless frustrating to see truth be treated as unimportant here. As a progressive, I'm grateful to the conservative academic mentors I've had for challenging me and for sharpening my thinking. I think FedSoc has caused real harm to the country, and that's exactly why students should take care to ensure that they aren't helping the organization build sympathy for itself

through grievance politics. This is all to say, I share my peers' politics, but I think we need to adopt a collective ethic of responsibility for tactics we use in pursuit of those politics because the stakes really are often high. Here, the ADS advocacy against LGBT plus rights is abhorrent, but students should understand that we can't just cancel everyone with abhorrent beliefs. Most people in some capacity. Students should recognize how attempting to do so at an event unconnected to those beliefs only empowers groups like ADF. I mean, a fascinating letter from a student there, and I just wonder, David, what percentage of students would sign on to that letter? I would, and Yale students listening to this, correct me if I'm wrong,

but my guess is if there were zero social sanction involved, if there was zero public shaming involved, you might have a majority that would sign on to that. And again, this student seems to be crying out for leadership from the administration. For instance, you had the police there because of a university policy. Why didn't you tell us that? Number two, the dean was right there and didn't say anything. How is that anything other than siding with the status quo? And the status quo in this case was the disruption of not just the event, as you said, David, but of all of the classroom experience around that hallway. If the dean isn't willing said, David, but of all of the classroom experience around that hallway,

if the dean isn't willing to say anything, why should these students be willing to stand up? And while I can blame the dean as sort of being the one in charge of leading that, all these other professors saying, well, they're worried about their tenure, they're worried about losing their jobs. Grow up. You're the adult. Say something. Stand for something. Why are you a professor if you're not willing to teach these students when they're wrong? Yeah, the amount of timidity is stunning to me. I had a conversation several months ago with a Yale professor who shall be nameless, tenured, impeccable Democratic Party credentials, had worked for every Democratic administration since Carter,

and expressed being terrified of his students. And that was the actual word, was terrified. And I thought, if a tenured professor at Yale, who in addition to being tenured, is also one of the most connected people that you'll ever meet, with a direct hotline to all kinds of members of the media who could defend this professor if the professor got in hot water and would be glad to do so, is quote-unquote terrified. would be glad to do so, is quote-unquote terrified. You know, we've got a real problem on our hands here, and it's this ability, and I phrase it poorly when I say the ability of students to intimidate is the wrong way to say it. The willingness to be intimidated by students is a severe problem here. And I get it. I get it. There is nothing pleasant

about student attacks. There is nothing pleasant about it. But if we're going to defend these values of academic free inquiry and academic freedom that a lot of these professors who are silent, fervently believe in and hope this too shall pass, it's just not going to pass on its own. Yeah. So two points. One, I'm not saying the students are blameless, but the idea that we should ever blame the students more than the adults around them is frustrating to me. And it feels like the students have gotten a lot of blame here and not nearly enough. And when I say adults, I mean the professors, the administration, and not nearly enough. And when I say adults, I mean the professors, the administration,

obviously the students are adults as well. So A, we should blame the adults far more than the students, even though again, I'm not saying the students don't have some blameworthiness here, but two, these are the same professors, by the way, who sign on to all sorts of other things when it's within their in-group interest, when it signals that they're part of the team. And yet also the same professors who think that Republicans in 2015 who ran against Donald Trump were too cowardly to call him out. Exactly. Again, I don't disagree with you.

But like, per usual, David, before you throw stones, check what your house is made of. And if you're not willing, frankly, and this may feel extreme, but if you're a tenured Yale law professor and you're telling me your concern is losing your job, my God, I wonder if you could ever get hired for another job again. If you have remotely the credentials and background that you might be able to work somewhere else. Because while I think losing your job is incredibly serious, then I don't want to diminish that as a sanction. It's not the end all and be all when your job is to teach principles. Academic tenure comes with a special, unique responsibility in my view. Yes. It is, as with so many things, with liberty, which academic tenure grants, comes responsibility. These are things that

come hand in hand. And it's a moral responsibility because you have the liberty to just kind of sit there and watch. You do have the liberty to just sort of sit there and watch. It's a moral responsibility, but you've been granted an enormous amount of liberty and a moral responsibility comes with that. I think to defend liberty, to exercise the freedom in a way that advances the marketplace of ideas, that preserves the existence of the marketplace of ideas, and preserves the existence of the marketplace of ideas, and preserves the existence of the very liberties that you rely on for your job. And to the students, by the way, if you want to defeat Kristen Wagner, and I don't agree with everything ADF stands for. I don't like a lot of it, some of it at least. But if you want Kristen Wagner to stop winning cases 7-2, you might want to listen to what she's saying and engage with her ideas.

Because clearly at least some of the justices who you think you're following in the footsteps of are persuaded by her. And if you think that's loathsome, if you don't think they should be, do a lot more listening and a lot less talking. Because she's beating you right now. Badly. Yep. She got Breyer and Kagan. She got Breyer and Kagan in the Masterpiece Cake Shop case. So if you're saying that her words, what you're saying when you're trying to shout her down is that Breyer and Kagan, two progressive justices of the Supreme Court,

found her worth listening to and agreed with her. But you, in your almighty wisdom, 2L, do not. And there's just nothing, there's just nothing, there's just, it's very rare that I find positions that I just have no regard for. There's no steel manning this side. Yeah, yeah. I just have no regard for the shout down. I'm sorry. I have no regard for the academic shout down.

I've been on the receiving end of them. And you know one of the things that I found, Sarah, when I've been on the receiving end of some of these shout downs, is some of these people who are standing out there in the audience with such certainty that I was a monster were shouting me down for reasons that were factually wrong. They were so certain I was a monster. I remember going to Berkeley and one time I just, throughout a presentation, receiving catcalls and shouts and efforts to interrupt me throughout on the basis that I was a war criminal and on the basis of claims that were just completely factually false. And so, you know, you don't even do your homework. You don't even do your homework. These are critical thinkers, allegedly, who don't do their homework and then walk in with

burning certainty. I'm sorry, I just have no respect for that posture. And the point of law school, by the way, you can be incredibly certain of every single belief you've ever had, but you are wasting your money if you spend three years in law school being incredibly certain of every belief you've ever had. The point, what you're paying for is to spend three years testing those beliefs. And even if you come out with the same ones, the people who I think got the most out of law school become the best lawyers are the ones who allowed a stress test on their own beliefs for three years. And unfortunately, these Yale law students aren't going through that. But more unfortunately, David, as we've, I think, now determined, when they get to law firms, the law partners aren't any more brave than the law professors.

And so this mob mentality and illiberalness toward disagreement is now sweeping through the under parts of the legal community. And then, of course, it's having an effect on corporations and their willingness to hire certain law firms. And this is not cabined to Yale Law School. And it's why we're covering it on this podcast and singing to the choir, because I think most of our listeners agree. The problem is there's not much to do about it if a dean like Heather Gerken isn't going to walk out of the room that just had its event moved online. And as one of her professors told these students to grow up. Yeah. And they heckled her and booed her and said, aren't you a first amendment professor? Oh boy. And the Dean, her boss wasn't willing to have her back. Wow. So, so a couple of things on this. And then, and we said, we're going to have a little bit shorter podcast, but we're already

past an hour, but this is, this is worth dwelling on for a minute. So you are absolutely correct that a lot of these radical students are going into law firms and changing law firms, are going into corporations and changing corporations. But I'll tell you one thing you can't do. Try to use these tactics in a courtroom, Sarah. Try to use these tactics in a courtroom. You're a litigator. Walk in and let's say Kristen is sitting there at council table next to you.

And she gets up to present her side and you start pounding on the table or chanting. You're going to get held in contempt, yo. Yeah. How long is that going to last? And here's the other thing. Here's the other thing. You want to know one reason why Kristen wins? Because of your

animosity. Okay. So let's look at Masterpiece Cake Shop. The idea that Jack Phillips was some sort of evil bigot for not wanting to use his artistic talents to celebrate an event that he didn't agree with was so well established within this Colorado human rights apparatus that they just spewed vile and invective against him in a way that demonstrated manifest hostility to his religious beliefs. And you know what? That's exactly why Justice Kagan and Justice Breyer ruled against Colorado. Exactly why. Can I say another reason why Kristen Wagner keeps winning these cases? Yeah.

Because of all of those who are protesting her, she does listen and she fully understands their arguments. And so her arguments have been tested, honed, sculpted in perfect response to everything that they keep saying to her because she's listening. And yet their arguments don't change because they're not listening to why she's winning. Yeah. Yeah. And one last thing, and I'll just say this. And one last thing, and I'll just say this. Look, I have spent a lot of time, and listeners know that I have spent a lot of time criticizing the way in which many, many, many right- would have condemned in the past. They celebrated Donald Trump.

When a Democrat had done anything like what Donald Trump had done, they would have impeached him instantaneously. So I say this with a clear conscience about the standards to which I hold and try to uphold myself and try to hold the movement that I came out of. and try to hold the movement that I came out of. You are not going to convince anyone that you believe in a tolerant and inclusive society that includes religious believers within it, devout Orthodox, small-o Orthodox religious believers in it, if you don't have room for Kristen Wagner. She is, and I'm just going to say a couple of words about my friend.

Not only is she intelligent, not only is she relentlessly principled in her legal advocacy and a strong advocate of free speech and would advocate for the genuine free speech rights of the very students who protest her, She's also just a kind person. And you're going to say, no, no, no, she's not kind because she believes some things that I don't believe. That's not my definition. My definition of kindness is not agreement, okay? That's not my definition of kindness. It's not even agreement on really contentious issues. She is a kind person who's principled, has integrity, and argues and would defend the rights of her political opponents. And if you're going to say that that person is not acceptable

for presence at Yale Law School, what you are saying to an awful lot of people is, I don't believe, I don't believe that you have an equal place in our society. And I think that is a very dangerous and deeply intolerant message to send. David, a point you made in your newsletter that I think is worth just a couple minutes on here is on the left, we're seeing intolerance toward disagreement from whatever the left has defined as the correct thing to think. Yeah. And because that keeps changing, that creates a chilling effect because no one knows what

the correct thing to think is. But disagreement isn't allowed with the correct thing to think. There is no one on high who sets with the correct thing to think is. And so nobody wants to say anything. That is a problem. But what they say in response is that on the right, they're literally passing laws that restrict free speech issues in some of these CR have government power against speech versus social stigma power against speech. And I thought you had an interesting answer to that, which is, yeah, fair, but if you keep using all of the social levers to limit speech, don't be shocked when they use the power that they have, which happens to be controlling the majority of state legislatures, to push back. Yeah, yeah. And then the other thing is for all of those who say, well, I'm not going to talk about

the culture of free speech. I'm only going to focus on the law of free speech. And again, Sarah, you and I have talked through these CRT laws a lot, and everybody knows where I stand on them. And even in a piece where I talked about the culture of free speech, I condemned these laws that are these speech codes that are coming from and being proposed in red state legislatures. You cannot degrade the culture of free speech and preserve the law of free speech. You can't do it. You can't do it over time. Over time, the law is going

to match the culture over time. The law can be a bulwark and guard and protect marginalized voices or dissenting voices for a time. But if the culture turns its back on free speech, especially in a unanimous sort of elite move, both on right and left against free speech, you're going to see a fundamental change in American law. And it will not be a change for the better in any way, shape, or form. So it is- Not to mention that some of these laws look awfully familiar, like language familiar, to the speech codes that started at university to shut down, right? Language. Yep.

And so literally the two sides are copying each other at this point. Yeah, yeah. It's remarkable. It's horseshoe theory come to life. At the extremes, two sides grow closer together. So, all right, Sarah, take care of yourself. Don't do anything else the rest of the day. Take care of yourself. And we'll be back Monday.

And my gosh, we have an action-packed pod already for Monday, and I'm sure something will happen between now and then. So please come back Monday and rate us on Apple Podcasts or wherever you get podcasts. Please subscribe and check out thedispatch.com. 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. Even better, with unlimited storage and an easy to use app,

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