Advisory Opinions - Live from the Mayflower Hotel: An AO Holiday Special

Episode Date: December 23, 2021

On our last podcast of the year, Sarah takes you to the 2021 National Lawyers Convention at the Mayflower Hotel in Washington, D.C., and introduces you to a dozen judges from all levels of the judiciary. You get a little law, singing, bourbon and bullets, and some important advice for law students. Did you expect David and Sarah to end the year any other way?   Show Notes: -Give someone a Dispatch subscription this Christmas -"We'll Be Back" by Judge Elrod and Judge Eskridge -Read David in The French Press -Read Sarah in The Sweep Learn more about your ad choices. Visit megaphone.fm/adchoices

And if you're just joining us, we're live from Evan's living room. It looks like Evan is about to purchase tickets to today's match. Kate, the real test is, will he use the BMO Toronto FC Cashback Mastercard? Well, if he wants to earn cashback on his purchases, he will, and... Oh, hang on. He's at the computer with his card, and he's done it! Oh, clicky-click magic trick! The clicker around the room! You guys just about finished?

Sorry, we got excited. Thanks for snagging those tickets. Make every purchase highlight worthy with the BMO Toronto FC Cashback Mastercard. Maple syrup, we love you, but Canada is way more. It's poutine mixed with kimchi,

maple syrup on Halo Halo, Montreal style bagels eaten in Brandon, Manitoba.oba here we take the best from one side of the world and mix it with the other and you can shop that whole world right here in our aisles find it all here with more ways to save at real canadian superstore Merry Christmas and Happy New Year. Welcome to the last Advisory Opinions of 2021. And we thought that we would do something special.

We've been saving this one up. This was Sarah Unleashed at the Federalist Society Convention where she went and talked to, I believe the technical term is Boku judges, many federal judges. And so, Sarah, give us a taste of what you're about to hear. You know what? I'm going to leave who the judges are a surprise. First of all, we've got a dozen, a dozen judges of all stripes.

We've got state Supreme Court, federal district court, lots of appellate circuit court judges. Don't you worry. And we touch on everything. I mean, we've got a little law in there, no question, but we've also got the designated hitter rule, which is kind of still law when you think about it. That's law. Yeah. We've got singing, is kind of still law when you think about it. That's law. Yeah, we've got singing, bourbon, and guns. The most annoying thing about circuit judges, according to a district court judge.

I can't wait to hear that. I mean, everything you could want. So I think this is a good mix of, well, it's mostly fun. I was going to say fun and serious, but there's not that much serious about it. Well, and this is a great reminder of a theme that we constantly hit at Advisory Opinions,

which is judges are people too. And you're going to hear that live and in person. So let's roll the tape, Sarah. We are here with the Judge Chad Radler of the Sixth Circuit. It's not Reedler, guys. It's Radler. So if you're an advocate, if you're a law student interviewing to clerk, I just want to emphasize to you that you're all mispronouncing it.

It's Radler. Judge Radler is going to talk to us about a pet peeve. Is that a fair pet peeve? Waiver versus forfeiture. Judge, what's the difference? Thank you, sir. Well, first, let me say congratulations on the podcast. My clerks, without my instruction, regularly listen. And if I don't get to listen, they'll report back on what happened during that day's session. So

thank you for doing it. And thank you for informing the next generation of lawyers. Waiver versus forfeiture is an issue that comes up quite frequently, and especially with new clerks coming in every year, we have to relearn sort of the basics of it. The two terms get used interchangeably, but they're actually quite different. The idea is you've not argued something at some point, but most things are a forfeiture. A waiver is an intentional relinquishment of a known right. So waivers are instances where you sort of acknowledge that you could be something. Maybe the judge says, are you arguing X? And you say, no, Your Honor, I'm not arguing that.

I'm instead arguing something else. In that case, you have probably knowingly relinquished or intentionally relinquished a known argument you could make. Everything else is essentially a forfeiture, which means you had the opportunity to argue something and you didn't do it. Whether it's putting something in your complaint, whether it's a summary judgment making an argument, whether it's a jury instruction you didn't submit. And those are typically considered forfeitures. The bottom line is that the court repeals on review. If you have waived something, then you're pretty much out of luck, whether it's

a criminal or civil case, and you're not going to be able to make the argument most likely. If it's a forfeiture in the criminal context, by the criminal rules, we will review for plain error or clear error. In the civil context, we will sometimes review a forfeited issue, although the presumption is we won't. So there is some more flexibility or discretion with respect to forfeiture. But I think that's it. Probably covered the topic. Okay. So how often in your court is someone misusing the terms? The terms get misused pretty regularly. I mean, they're oftentimes conflated.

And the reason it matters is that the standard of view is slightly different between the two. But honestly, when I first started, I may too have misused those terms. And I may have had a colleague point out to me that there are some slight differences. So it's an honest mistake. And you're passing this wisdom on to us. Thank you. Thank you. Since you brought up your clerks, what do you look for in a clerk, both on paper and then maybe more so of the people that you interview? What are you looking for in an interview? So of the people that you interview, what are you looking for in an interview?

That's a good question. I will say that, you know, in terms of supply and demand, the demand for clerks who might want to work for a judge who was appointed by the last president, for example, is exceedingly high. We have a lot of judges who I think consider themselves conservative libertarian. And I'm not sure the supply of law students on that spectrum is necessarily at its apex. So clerkships are quite competitive these days, both from the student perspective but also the judge perspective. So I just want to find someone who's smart, who can do the work, and that's really important. But also we spend a year together.

It's a pretty intimate environment. I have five clerks and myself, and we spend a lot of time together. We go to Cincinnati once every seven weeks. Otherwise, we're in chambers together. And so I want to find someone who I enjoy working with, who has maybe some shared interests, who's a fun person to be around, who, if we engage on issues, will share their viewpoint, but would also be a good support about arguments. So, you know, a good colleague, just like you were at the Justice Department. How about that? Okay, what's a go-to interview question to get to that personality fit that Judge Radler might use in a clerkship interview? Well, I don't want to give away all my questions because these are supposed to surprise the clerks.

But I do, I mean, I spend the first 30, 40 minutes really just getting to know them. I spend a lot less time on sort of what is your view on originalism or statutory interpretation? My clerks do a lot of that when they have a chance to interview incoming clerks. So I really want to get to know them, where they're from, who they are, why they went to law school, why they want to clerk, why they want to clerk for me, what their future ambitions are. I think that's just as important. This gets to a real truth about their future clerks. The clerk interviews are always doctrinally harder than the judge interviews. The clerks are the ones who really enjoy putting you through your paces as a interviewee because it's fun and they get to

pass along that misery, I think. But the judges tend to be nicer, gentler, more fun interviews. That's my approach, but I think there are some exceptions to that. But by and large, yeah, I tell my clerks to sort of put the interviewee through their paces and sort of delve into some things. All right. Thank you, Judge Radler. I have just run into Judge Smith of the Fifth Circuit. Now, Judge Smith isn't my judge because I clerked for Judge Jones, but because we share chambers, including a kitchen and like a hangout eating area and the library, he's sort of like my judge once removed. So bear that in mind during this interview. And Judge

Smith, as I've talked to people in the hallways, I've received a lot of requests for what interview they want to hear. You're number one right now, but they are very clear about the topic. The designated hitter rule, you are one of the chief spokesmen against. Please explain how this fits into your judicial ideology and the rule of law. Well, I put it this way. There are a lot of reasons to be in favor of the designated hitter rule. If you believe that individuals should not be held responsible for their decisions and choices, you should support the DH rule. If you believe that life is a free lunch, you should support the designated hitter rule. If you believe that life should only be about figuring out how to get free stuff, you should support the designated hitter

rule. If you believe that Cocker Spaniels are qualified to be Major League Baseball managers, you should support the designated hitter rule. If you believe that Babe Ruth, generally regarded as baseball's greatest and most famous player, was not both a great pitcher and a great hitter, you should support the designated hitter rule. If you believe that a major league baseball player shouldn't necessarily be expected to own or ever use a glove, you should support the designated hitter rule. If you believe in releasing violent offenders without bail and free from consequence, you should support the designated hitter rule. In 2021, a player named Otani of the Los Angeles Angels, which is in the American League where they have the designated hitter rule, he was voted to play

in the All-Star game as both one of the best pitchers and one of the best hitters on all 30 teams. So there are lots of reasons to support the designated hitter rule. Unfortunately, I don't agree with any of those. And are you an Astros fan? Not since I moved to the American League and started using the DH rule. So that is a deal breaker for you? That's a deal breaker. It absolutely is. So who is your team? I grew up as a Dodgers fan, actually. My dad taught me to love the Dodgers and hate the Yankees, and I kind of stuck with that. And do you consider yourself an originalist, a textualist?

In some ways both. The two go together pretty well, but I generally don't try to define my own judicial philosophy. Fair. And when it comes to the history of baseball, how should we think about the history in terms of the designated hitter rule and whether this was intended to be? Well, part of it is just sticking with history and tradition unless there's a reason not to. And the DH rule was implemented only as a way of trying to hype the game and increase scoring, when in fact low-scoring games with a lot of strategy are usually the most interesting. So it was a fix for a problem that didn't exist. And last question, what is your favorite book about baseball that you would recommend to listeners? Well, I'm going to answer the question differently.

The greatest movie ever made is Field of Dreams. Did you watch the game last month? Unfortunately, I was not able to, but I watched the news reports of it, and it was great. Judge Smith, thank you so much for that insight. I am with the notorious bromance that is Judge Andy Oldham of the Fifth Circuit and Judge Amul Thapar of the Sixth Circuit, a well-known couple in FedSoc circles. So the first question is, how do y'all think about circuit splits between the Fifth and Sixth? You're right next to each other in number. Respect or disrespect?

We're going to start with you, Judge Oldham. I like to take the par descents and turn them into majority opinions. I try to do the same, but Andy is very effective at not only writing descents, he writes concurrences too that we can use in the six. So we are in the process of making some of his stuff majority opinions. Interesting. Now, Austin, well-known for its breakfast tacos, what do you provide this relationship between Covington and Austin?

How does this work? How do you all do the long distance? So we talk on the phone a lot. We text regularly. I can't say that we really FaceTime very much. We teach together. Yeah, but we do teach at UVA. So we teach a class every January at the University of Virginia.

Called Founders and Foes. But the most important cement of the bromance relationship is the bullets and bourbon. So every year we do a home and home. One year we do it in Kentucky. Next year we do it in Texas. We do the bourbon in Kentucky, the bullets in Texas. As I like to remind everybody, guns and alcohol do not

mix. So we do them separated by 365 days. And that's the message for your folks, is don't mix guns and alcohol. Both can be good. Exactly. But celebrate them separately. Celebrate them, yeah. I think there's some genius to this. Have you ever fought over a clerk hire?

No. No. Actually, we have a great way of resolving this, which is we both hire the student. But I'm against multiple clerkships. How could you do this? Oh, well, then we violate your rule. Yeah. Because we do this.

I think we violate every one of them. We have both hired. Yeah. When we talk about them, we hire them together. Yeah. And we reject them together. No. We've done that, too. No, you haven't. them, we hire them together. Yeah. And we reject them together. No. We've done that, too.

No, you haven't. Yes, we did. So if someone screws up their interview with Judge Oldham, they're screwing up their interview with Judge LaPorte? Yeah, it's joint. It's a package deal. And we want everyone to know that. It's one reason we're doing the pod.

Well, future clerks, that is a surprise to your interviewer here and a good. This now just became a very valuable podcast out there for law students. Breaking news. Breaking news. Send it to all the law schools. It's a package deal.

You can do one, you can do two, or you can do zero. It's a high stakes game. Yeah. That is a high stakes game like this pod. Like the pod.

That's right. Thank you. I'm proud to be a friend of the pod. Thank you, friend of the pod and Judge Dupar, I hope we can consider you a friend of the pod moving forward as well. Okay. Friends of the pod that's right i'm proud to be a friend of the pod thank you friend of the pod and judge the par i hope we can consider you a friend of the pod moving forward as well okay friends of the pod thank you so much judge elrod i have just grabbed you you've got your tea you're excited for the olsen lecture but before i let you go in to do that first i talked to judge smith about the

designated hitter rule does the designated hitter rule. Does the designated hitter rule, being against it, fit within your view of the rule of law? Absolutely. We need to have players that can do all things and we need to not worry about the fact that some pitchers are not as good at hitting as others. There are memorable moments in baseball by complete players like Nolan Ryan who hit a grand slam home run in his debut at the Houston Astrodome and I remember it well. And indeed, Zach Greinke in the World Series set two records regarding his hitting. He came in and pinch hit. We need to not have the designated hitter role. And proving just how versatile you are as a jurist and human, perhaps what you are

best known for as a judge, aside from brilliant opinions, of course, well-reasoned, etc., is that occasionally you have perhaps been known to go to some karaoke, but beyond that, a famous parody musical that you put on. Will you tell us how that came about and a little bit how it went? Well, you know, actually, your judge, Judge Jones, was instrumental in that. Was she really? Yes, she suggested that Charles and I do some one of our silly song things and Charles and I stepped up because we listen when Judge Jones suggests something like that and we did one of our silly song things and then the Southern District of Texas Lee

Rosenthal asked us to repeat it. And then thereafter, it went viral. Although my daughter reminds me that it didn't go viral in the real sense of viral, only in the judge, amateur sense of viral. You can always count on a teenager to bring you back down to a humble place. Okay, so we're going to put that in the show notes so that everyone can enjoy it. It was a real highlight of COVID for a lot of lawyers, frankly. So everyone can have some nostalgia. Go back, check the show notes for this. Judge, what is your favorite musical?

Or you can even give us top three if you want. Well, I'm kind of a hokey rated G person. So I, you know, I like Mary Poppins, the musical. I liked it when they danced on the ceiling. And I like Mary Poppins' philosophy of life. You know, she says that practically perfect people never allow sentiment to muddle their thinking. And I think that's a good rule of thumb for judges. I'm hardly a practically perfect person, but I do try to keep sentiment from muddling my thinking.

You know the song Practically Perfect, don't you, Sarah? If I say no, will you sing some? Practically perfect in every way. I'm practically perfect. That's all you're getting. No! That's so mean to only sing the first few bars. No! That's so mean to only sing the first few bars. I also love Phantom. You know, I once got to do a parody in a program that was raising money for legal services for the poor back when I used to be allowed to do such things. And I was Christine in Phantom of the Law Firm, you know,

where you get to sing things like, Think of me fondly when you go away. Anyway, that's just kind of silliness. But it's a lot of fun to sing parody Broadway songs. And, and, you know, so I know that for the, obviously, the younger generation likes, likes Hamilton much better. And I have seen Hamilton many times. And my whole family sings along in the car. I need to join your family. Peggy Parks. And Peggy. Because I have two daughters who can sing really well. Of course you do. Of course. Yeah, no, having now just an all boy family, I feel like I'm the only one who sings Hamilton. Nate's just not that into it. It's a real bummer. Really? I think I've heard on good authority that Judge Ho will sing all the words

of Hamilton with you if you ask him. Okay, well, perhaps we need to rove the hallways a little more this afternoon. Judge Elrod, nothing impresses people looking for clerkships more than when I tell them that I have sung karaoke with you. It is the highlight of my, it seems, whole career. So thank you, Judge, for talking to us, for singing a few bars. And folks can look forward to perhaps some more videos in the future. Well, I'm not making any promises of that. But I do want to tell you that I think it's wonderful that what you do with your podcasts,

they're very educational, you know, about appellate law, but also you bring joy to the world and we need some more joy and some more levity. So thank you, Sarah, for bringing that. The highest compliment from the most joyful judge I know. Thank you. We've got Patrick Bumate of the Ninth Circuit. Judge Boumete, how do you think about when to dissent? When it's appropriate? When you should just not write something separately? What goes into that? That's a great question. It's actually one of the harder questions that I

grapple with as a judge. What I've come down with is that I realize I don't want to be complicit in anything I just disagree with and I think is a wrong statement of the law so if there's any time that in the majority opinion either does an analysis that I disagree with I'll go ahead and write a concurrence saying I agree with the judgment but I have a different analysis the judgment if the majority gets a different the wrong outcome I'm happy a dissent and and, I think it's an important job and one that judges should embrace and not be too afraid to do, because I think some do. They try to, they think there's some more legitimacy in the idea of unanimity, and I just don't agree with

that. So it's interesting, because we've seen, I think, a proliferation of concurrences and dissents, both at the Supreme Court, but also circuit court level in the last, what, 20, 30 years, it's really taken off a lot more than previously. Some say that that does make it look like, you know, there's no law. It's just an individual judge's opinion. How do you push back on that? Yeah, you know, that's a great question because I actually looked at this history because I was wondering that question. Am I contributing to this crisis?

The downfall of law. The quorums, exactly. So the first thing you should know is, you know, what's our historical precursors for the Supreme Court? It was the King's Bench in England, like most of our... Okay, we're going way back. Yeah, exactly. I'm starting way back, going down to first principles, back to 1166. And what was interesting, the King's Bench, which is the precursor of the Supreme Court today, didn't have what we have today known as an opinion of the court. They had seriatim decisions. So each judge would read orally their opinion in the case.

And so there wasn't this idea that unanimity in courts is something that goes way back. That's just not true. something in courts is something that goes way back. That's just not true. And indeed, when you read our initial Supreme Court opinions in like, you know, 1790s and such, they're really hard because you're just reading five, seven different things. You're like, wait, but what is the rule? Exactly. And it wasn't until John Marshall became Chief Justice that they started to consolidate and make unanimous decisions. And there was a reason for that, is that Marshall wanted to ingrandize the power of the federal judiciary because prior to that point,

everyone thought that the court was the weakest branch, and that's probably the way it should have been. But the idea of making the Supreme Court stronger meant that having unified opinions of the court strengthened that. So that led to that. So there's nothing inherent in judging that requires unanimity, is my point. And so the idea of dissenting when you disagree is a good thing. And you should look historically at amazing dissents that have changed the course of history and changed the course of our legal landscape. You know, John Marshall, John Harlan, the dissent in Plessy is something that everyone

should read. And I remember reading it first in college and being inspired about it. And I think it means it beautifully articulates the greatest ideals of this country. And so and that changed the future. And if this pod has a mascot, it's John Marshall Harlan. So it's the great dissenter. That's a good one. He's also my mascot. I almost want to get a framed

photo of him. One with modern colors and stuff. You know how they did? Like an Andy Warhol, John Marshall Harlan? I think there is one on Google. I checked one. I'm going to get one one day. Christmas for Boumete. Yes. Anyone out there? Just kidding. Okay. But there's different reasons

judges, justices can dissent. Sometimes it does look to be more, sometimes it is for posterity. The culture is not with me now, but I hope down the road someone can see the wrong that is being done to the law. But other times it does feel more the opposite of log rolling, of proving a point to a colleague. Or in the circuit level, sometimes auditioning for a different job. No. Yeah, I think that's right. And to me, the defining of the threshold of whether a dissent is useful is whether or not it furthers a dialogue. It could either further a dialogue between generations like we're talking about,

between Harlan was speaking to the future America, the one that we are closer to today than the one he lived in, and whether or not it could form a dialogue with the Supreme Court, for example, like, hey, bosses, look at this decision. You got to fix this and tell us that we're getting it wrong. But you're right. There are some dissents that are personal and and um i think sometimes overly personally and but and don't contribute as much to the debate but that's i i stay away from that i think that's uh not the way i've been going but i think there is a proper place for dissent all right the defense of dissents judge patrick bumate of the ninth circuit thanks no problem thanks

here come the carrots making their way upfield, followed by the whole wheat bread, over to the two dozen eggs. Sir, do you do this every time? Sorry, I've been a little excited ever since I got this BMO Toronto FC cashback MasterCard. Oh, and the broccoli boots it over the line. What a goal!

How would you like to pay, sir? Credit, please. Make every purchase a win with the BMO Toronto FC Cashback MasterCard with up to 5% cashback on your purchases in your first three months. Terms and conditions apply. Judge John Cronin of the Southern District of New York, also known as the Sovereign District of New York. Thank you so much. You were at the Department of Justice quite a few years before this as a prosecutor. What was your favorite case?

Well, I was at the U.S. Attorney's Office for the Southern District of New York for about 10 years in the criminal division. I had many favorite cases. Probably the one that I am most proud of, the work we did, was the prosecution of Osama bin Laden's spokesperson at the time of 9-11, Suleiman Abu Gaith, who was charged with speaking at terrorist training camps and al-Qaeda guest houses to inspire people to join and fight for Al Qaeda. And also doing the same after 9-11 in videos that were widely disseminated. I've worked with the Joint Terrorism Task Force in New York and several of my colleagues at the U.S. Attorney's Office to investigate the case, build a case to charge him, and we were able to apprehend him when he was transiting between countries,

brought him to the United States, and went to trial about a year later. The trial was an incredible experience for many reasons. I thought it was a very meaningful case. Although he was not charged with planning the terrorist attacks in 9-11, he spoke a lot about it and being able to put that on display in a public trial. And in New York no less. And in New York just a matter of blocks away from where the attacks occurred was a tremendous responsibility and a very powerful experience for me. Now you switch sides. You're wearing the robe. You're the guy giving the prosecutors a hard time from SDNY.

What's been the biggest surprise, change that maybe you weren't expecting? I don't know if it's been a surprise, but the breadth of cases that come before the court in the Southern District of New York, we handle such an incredible range of civil and criminal litigation, areas of the law that I hadn't thought about really since law school. It is such an intellectually interesting and challenging job. It's a tremendous amount of cases, a lot of work to keep track of and keep the cases moving. But I think the most surprising part has been the incredibly wide range of interesting cases that we have. Do you understand antitrust yet? Because I don't.

we have. Do you understand antitrust yet? Because I don't. There are certainly many areas of the law where my law clerks and I are getting up to speed. And that's made the job very, very fun. So a lot of people, even people with very important jobs, will say that being in AUSA was the best job they ever had. Do you ever miss it a little? I loved being in AUSA. Standing up in court and saying that you were representing the United States of America was such a tremendous responsibility and honor. I enjoyed every moment of it, but I was ready for something new. I wanted to stay in public service. I wanted to continue to serve in any way I could, and this opportunity came up, and it's been a wonderful change.

Last question. What's your advice to those baby prosecutors out there who may come before your court? I guess one piece is to be prepared. I am a judge who I think at court proceedings asks a lot of questions of the parties. I want to make sure I understand the case. court proceedings ask a lot of questions of the parties. I want to make sure I understand the case. I want to make sure that everyone, including most importantly the prosecutors, are complying with their obligations, their disclosure obligations, and are taking them seriously. So I will be asking questions like that. And it's been my experience that all the prosecutors have been prepared, but that is something that I will be taking very seriously.

There has been a, not even a criticism, but a, let me think of the right word. There are those who want to see more diversity of experience on the federal bench in particular, more criminal defense attorneys or more, I don't know, personal injury attorneys, things like that. As a prosecutor, some profession that's very well represented on the bench, what do you think about that push? I think the most important quality for a judge is respect for the law and being willing to follow the law and take the law where it brings you. I think having a diversity of experience on the bench is important, but I think the most important thing is to have judges who understand the appropriate role of a judge in our judicial system.

Thank you, Judge Cronin. I have now found Judge Lee Rudofsky from the Eastern District of Arkansas. That's right. This is a federal trial court judge. Judge, let's be real. What annoys you most about circuit judges? Not much. They're my bosses. They can't really annoy me. Or they can, but I won't tell you. Here's what I would say. I think the hardest thing, or at least the thing I didn't really understand or have a good understanding of, is how quickly we at the trial court level have to make decisions. And we get to look at something and think about something for a day, maybe if you're lucky, two days. Our law clerk maybe gets to think about it for another day or

two days. But the appellate court then has, you know, weeks and months and maybe even more than that to figure out if they agree with what we did. And so it doesn't annoy me as much as it is important that they remember that. So fair. Then when you have on the times you've been reversed, for instance, did you think, OK, yeah, if I had had more time, I could have gotten there or were you like no that they have a different opinion and I respect it and I will follow it but we think we got it right you can see it going either way this is my favorite question Sarah because I get to say I have not been reversed now now to be, I have only been on the bench for two years, and I would say of probably the maybe 200 to 300 dispositive rulings that I've really had to make,

only about 20 or 30 have been appealed. And I don't think that's because my rulings are so great or anything. It's just the real-world practicality that people don't tend to go up to the appellate court much compared to how many cases we deal with at the district court. And the folks who tend to go up, to be perfectly honest, tend to be prisoners who, for one reason or another, end up not perfecting their appeal or missing the briefing schedule. So when I say I haven't been reversed, it's true. But really, there's only been a couple of occasions where the Eighth Circuit could have reversed me. What's been the hardest area of law that surprised you? I don't know I'd say it surprised me, but from an emotional perspective, I'll say

the only thing I really lose sleep over is sentencing people. That is without a doubt the hardest thing we do. And there's just not a right answer there. And even with the guidelines, which help, there's still a lot of space. And, you know, on one hand, you want to protect society. But on the other hand, you don't want to have someone spend any more time in prison and lose their liberty than they absolutely need to. And that's just a very hard call to make. That was a very good human answer, but I'm sorry, the correct answer was antitrust. I haven't had any antitrust cases. It might be antitrust the next time you ask me. All right, Lee Rudofsky, what is the thing that you wish 1L Lee Rudofsky

had known? And I only knew 3L Lee Rudofsky. So this is a Lee Rudofsky I didn't even get to meet. I wish the 1L Lee Rudofsky knew Sarah Isker. I think probably the real thing that I would have liked to know as a 1L is how important it was to actually study really hard, be in class all the time, and get the best grades you can. I did not do a good job of that. It wasn't terrible, but it just wasn't my highest priority. It should have been because it helped set up the rest of your legal career. And how he has suffered for those choices. Federal District Judge Lee Rodofsky. Thanks, Lee. District Judge with the emphasis on district.

We have found Judge Britt Grant of the 11th Circuit. A little after hours FedSoc time. And what is most pressing that we need to ask her about? Judge, the cleaned up parenthetical. First, you need to explain what it is, and then I want your thumbs up, thumbs down. Well, thank you, this is an important question. I think the cleaned up parenthetical supposedly is a way to smooth out quotations if you need to say bracket a capital letter

or remove punctuation, you can make it read a little bit smoother. But in my experience, that's not always how it goes. So I'm pretty skeptical of the cleaned up parenthetical. Thumbs down from me. Okay. Now in the cleaned up parenthetical, right, instead of having like a bunch of dot, dot, dots, and like you said, a bunch of brackets, you just get rid of all of that and you just make it like look like it was all a smooth quote. And then you write cleaned up at the end. Are you getting a lot of this now? I'm starting to see it a little bit

more and more. And I think that some people have different definitions of what it can mean. I've seen the smooth down and I've seen, you know, parts of the quote omitted, et cetera, et cetera. And that's not cleaned up. That's a straight up change. That's different. That's not cleaned up. So I object especially to that use of clean up. But I can tell you, if I ever see a clean up parenthetical, I'm going straight to the actual source to look and see what it really says. It is kind of a flag. Like, please, go look up that I didn't just lie to you about that. Right, exactly.

Okay, so last question on this. What would you like to see instead? You want messy parenthetical? So I think there are ways to clean up. Maybe you don't quote the word. You have to change the capital if it doesn't change the meaning. Maybe, you know, there are ways to work around. Maybe you don't quote the word. You have to change the capital if it doesn't change the meaning. Maybe, you know, there are ways to work around it, but I'm open to suggestions. Anyone, any of your listeners have a different wording to use for cleaned up, I'm open to that.

And also, please, if you use cleaned up, at least keep it actually minimal. Don't be changing the meaning on me. Otherwise, you're just flagging to her. She is definitely going to go look up to see what you did. And, yeah, we do need a different term for cleaned up. It sounds like you're trying to sweep something under the rug, literally and figuratively. So maybe something in German? I don't know about that.

We'll figure it out. We'll figure it out. All right. Thank you, Judge Grant. Thanks, Sarah. Judge Lee, I have found you in the hallway, roped you into the registration room. And we're going to talk a little bit about the difference, well, what should be the difference between trial litigators and appellate litigators. What's your advice?

You know, one thing that's surprising is you expect someone who appears before a federal appeals court to understand the difference between talking to a jury and talking to a panel of judges. But I'm still surprised by a number of lawyers who still think they're talking to a jury and they're talking like Southern Baptist preachers or making melodramatic statements. But you're supposed to pound the table when the law isn't on your side. Yeah. Apparently they forgot they should just be wearing powdered wigs when they come for appellate arguments and not pound the table. You know, actually, this was from when I was in private practice, but I still remember a Ninth Circuit argument where opposing counsel went up to the panel. It was, frankly, a frivolous case representing the plaintiffs. And he told the court, you know, Your Honors, this may be the single most important case the Ninth Circuit will hear this year. And Judge Reinhart, who probably should have been receptive to this

plaintiff's case, yelled out, God, I hope not. So, you know. So that means you're doing well in your argument. So, you know, I'm still surprised with a number of lawyers who still try to do that. But thankfully, most are aware of the difference between appellate arguments and a jury. So what if you are a trial litigator, and that is your career, and then you are asked to do an appellate argument? What's your advice to them other than hire appellate counsel? Good trial lawyers know how to simplify complex things, and I think they should do the same,

but instead of you're simplifying complex legal issues for the judges because, especially now given the number of new judges out there, we may not be as familiar with every intricacy of the law. And if you can simplify it for us, it helps us. So for example, for the 20 years I practiced before going on the bench, I did my best to avoid ERISA and I succeeded in avoid ERISA. And I succeeded in avoiding ERISA my entire legal career. Now I have four or five ERISA cases. And if lawyers simplify things for me in the briefs, as well as oral argument, it helps tremendously. Okay, last question. You are known for being a snappy dresser, sartorially smart. Are you that way underneath your robe?

You know, I probably wear a little more baggy pants under the robe. You know, the hipster, you know, tight pants aren't there anymore. It's the baggy, baggy pants, which may be coming back according to Gen Z or millennials. I don't know. We should never listen to Gen Z about anything. True. That is true. All right. Thank you, Judge Lee. Thank you. I have just run into Justice Evan Young of the Texas Supreme Court. Tell us how long you have been Justice Evan Young for. A little over 25 hours at this point.

25 hours. So you're old hat at this. A ton of experience. I mean, more than a day. Let's talk about what those first 25 hours have been like. Well, they started with a chance to be sworn in by Governor Abbott in the Capitol. We had my whole family come in, all the members of the court and some very close friends. My little girl was with us, and the governor said, place your left hand on the Bible and raise your right hand. And my little girl heard the governor of her state give a command. So she put her left hand on the Bible and raised her right hand and she took the oath right there along with me. So

I said, we've sworn in two justices today and that'll be pretty fun. But that's how it started. Then we went and had a really lovely ceremony at the Supreme Court where the chief justice, who has now served for more years on the Supreme Court where the Chief Justice, who has now served for more years on the Supreme Court than I have served hours on the Supreme Court, introduced it. And my dear friend, Judge Don Willett, a former member of the Texas Supreme Court. Friend of the pod. Friend of the pod and now federal judge, was the speaker who introduced me. So I got to introduce myself to the people of Texas that way. And immediately,

it was upstairs. They showed me how to turn on my computer, which was full of emails and assignments. The chief justice told me with a bit of a twinkle in his eye that they've got some opinions ready for me to write and votes are due on such and such a day. So there was no rest for the weary. State judges in Texas are a little different, right? They're elected, different topics than federal courts. So what do we think the role of state courts are going to be moving forward? The role of state courts has always been a big one. The American people are 100 times more likely to experience the judicial process in a state court than a federal court.

the judicial process in a state court than a federal court. And the United States Supreme Court has the potential to require a lot more of the state courts as federal jurisdiction may be reconsidered in some respects or the authority of state legislatures and the people of states to make decisions that are not going to be as much superintended by federal courts, then the people in each state will have a greater need to make sure that their courts are doing the right thing. And in our state, in Texas, as in a number of other states, all the courts really do belong to the people in a very direct way. We elect our judges in partisan elections, and people can have lots of different views about that. But what it does mean is that there is a more immediate truth to the idea that courts, like

every other part of the government, really do belong to the people. And so the judges have an obligation in our state, and ideally everywhere, to make sure that they're conveying to the voters of their state why courts matter, why an independent judiciary is important, what it means to have the rule of law in state courts. And if I'm right, that state courts across the country are increasingly going to amplify an already important role, then citizens, whether they elect their judges or not, ought to be able to see what's happening in their state Supreme Courts and lower courts more and more. So I plan to use this opportunity to get out and visit with the people of Texas as

much as I can and to share with them the vision that I have for the rule of law and the role of our courts. There's going to be some good barbecue in that, I think, as you travel the state. Okay, last question. It has been five years since Justice Scalia passed, and you clerked for him, and I was wondering if there were any nuggets of wisdom that he passed on to you that perhaps you could pass on to us. Well, that's right. It's been that long, and I still miss him every day.

I still have moments in which something happens, and I have a brief flash of saying, I can't wait to tell the boss about this, and then realize that I can't do it in quite the same way I could before. And he taught me so many things. He taught me how to shoot clay pigeons. I had done target shooting, and he took us all out to shoot, and I think he was so disappointed that I had such a hard time at first but he was patient and that's

that's one thing I'll just tell you all about Justice Scalia is that I was scared the first day of my clerkship with him because he had such a reputation as being a taskmaster a take-no-prisoners type of guy suffer fools gladly not at all those are true. But he was the best boss that I have ever had. And one thing I really learned from him was that you can expect great things from people, demand their best, and yet treat them humanely and even lovingly. He and Mrs. Scalia took us under their wings. They had us over for dinner. We went shooting. We did so many wonderful things with them, wholly aside from being an employee. And I model myself consciously.

I know I can't ever reach his level on anything. But when I'm writing, when I'm interacting with colleagues, now 25 hours in with my law clerks, I try to think about how he would have done it. And I know that if I get close to that level, I will be doing better than I ever otherwise possibly could have done anything in this profession. Justice Evan Young, thanks for spending hour 26 with us. A pleasure, a pleasure. We have found Judge Ben Beaton from the Western District of Kentucky, Louisville. Correct. Correct. And you clerked for Justice Ruth Bader Ginsburg before becoming a judge yourself. And as she has now been passed for a year, wondering, has it been a year or two years? One year. It's been that last year is like a weird time warp.

It was. Last year was an unusual year. It was an unusual year. So one year after her passing, I was wondering if you had any memories you wanted to share, thoughts about your justice. Sure. Well, the one moment that sticks with me the most is the first or second conversation we ever had

after she interviewed me. She called the next day and she said, Ben, I've got some bad news and good news. And the bad news was she told me that she talked to Nino and despite my interview, he was all full for the next term, so he couldn't hire me as his law clerk. But the good news, or at least he hoped the good news, she hoped the good news was that she would like to have me in chambers for that coming term. And I, of course, graciously accepted. We had a very brief conversation. Most conversations with Justice Ginsburg were not terribly long. And she wrapped up with a note that I've always associated with

her professionalism. She was, I think, well known, for instance, by people like Judge Bork, Judge Scalia, Judge Randolph in the D.C. Circuit for her consummate professionalism. And she says to me, having just hired this strange card-carrying Federalist Society member from Kentucky, she says, Ben, I'm looking forward to next year, and I think you will enjoy it as well. You'll meet so many great people. We have such interesting cases here. And I think you and I, in particular, may cause one another to think a little bit harder than we might otherwise about some of these cases. And that was her caveat emptor message to me. It was the only time all year that we had any sort of discussion of ideology or priors. And mind you, this was

the term in which, among other things, NFIB against Sebelius was decided. So, you know, that's saying something. And I've always taken away that professionalism of hers, and it's something that I try to model now with my own law clerks. Did you get to tell her that you were going to become a judge before she passed? Yes, indirectly. The ABA interviewed her, I have come to know. Yes, indirectly. The ABA interviewed her, I have come to know. And I also have reason to believe that my all-too-favorable recommendation from the ABA did have something to do with Ginsburg's willingness to speak on my behalf.

So, unfortunately, she passed away while my nomination was pending. She passed away while my nomination was pending. But I think we had corresponded through her secretary even in those last sort of weeks. And I think she was pretty impishly happy that President Trump had nominated one of her former law clerks who looked like was going to end up on the bench thanks to someone like Mitch McConnell and others. Well, thank you so much for sharing that with us. Thank you. So Sarah, that was awesome. Thank you for doing that. I mean, waiver versus forfeiture alone, right? Don't you feel like you learned something? Totally worth the price of admission. Totally worth it. Which was zero.

So listeners, a couple of things. One, as we said at the start, Merry Christmas, Happy New Year. We're so grateful to you because you've made us the flagship podcast for The Dispatch. And we're grateful for your emails. We're grateful for your feedback in the comments.

Grateful for stopping us on the street or in an airplane to say that you love advisory opinions, both of which have happened to me. So I'm most grateful when you stop husband of the pod and tell him how grateful you are for his wife. That's my favorite. That's that's good. That's the good stuff. Yeah, that's the good stuff.

So thank you. We hope you have a wonderful Christmas, a wonderful new year. And then we're going to start the very first Advisory Opinions episode of 2022. It's going to contain a musical surprise. So you're not going to want to miss it. The voice of the people has been heard. So tune in. The intro music.

It's finally you. We'll see. We'll see what it is. We tune in. The intro music. It's finally, you will see, we'll see what it is. We'll see. We'll see. Who knows? Who knows? Who possibly could know what it's going to be?

Just legendary producer, Caleb. But until then, please, as always go rate us on podcast, Apple podcasts, please subscribe on Apple podcasts and please check out thedispatch.com, and we will talk to you in 2022. And we'll take a quick break to hear from our sponsor today, Aura.

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