Advisory Opinions - McKay Coppins Talks Kavanaugh

Episode Date: May 13, 2021

Atlantic reporter McKay Coppins joins the show to chat about his latest profile of Brett Kavanaugh, which tracks the Supreme Court justice’s journey from his contentious 2018 Senate confirmation hearings to the bench. After what David calls a “frank exchange of ideas” about the piece, our hosts give us their take on a federal judge’s decision to dismiss the National Rifle Association’s bankruptcy case, the Facebook Oversight Board’s decision to uphold the platform’s ban on Donald Trump, and lower level judicial confirmation hearings. Show Notes: -Coppins’ Atlantic profile of Brett Kavanaugh -Coppins’ Atlantic piece on stockpiling food -David’s National Review piece on the Kavanaugh allegations -David’s Time piece on the Facebook Oversight Board Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isker. We've got a fantastic podcast today. It's going to begin with a bit of relationship advice, Sarah. Very, very quick, short relationship advice that I've given before. It's a teaser for what's going to happen later in the podcast, but here's the very short relationship advice. Find someone who loves you as much as the board of directors of the National Rifle Association loves Wayne LaPierre. But we'll get into that later. We'll get into that later, talking about the bankruptcy or kind of, sort of,

maybe not bankruptcy of the NRA. We're going to talk about the Facebook Oversight Board's decision to uphold the removal of Donald Trump from the platform and what it means, what comes next, and what the heck is the Facebook Oversight Board and why does it matter? But first, but first, we have a special guest. Do you want to introduce Sarah or do you want me to introduce oh i would love to okay go for it mckay coppins and i first met over a milkshake at bull feathers which those of you who have ever worked on the hill or visited dc it's right next to the house side and sort of a local watering hole.

Reporters, it's a very popular thing to ask someone out to coffee to meet them, but I don't drink coffee and neither does McKay. And that started a long and fruitful relationship based on delicious, delicious milkshakes. McKay was a Buzzfeed, I think, when I met him. And my, how stars have risen. McKay stood out even then from a young age. He is now a worldly Atlantic writer. I think has really found his groove writing long forms on politics. Although McKay, and I've told you this before, my favorite piece I think that you've ever written was about the Church of Latter-day Saints tradition of stocking foods at your house. And I just thought that was such a beautiful piece. We'll put it in the show notes because I think that that gives you more of an insight into McKay than any of his other stories.

But why is McKay on Advisory Op advisory opinions, you may ask yourself? Because the Atlantic is out today with a piece published this morning. Is Brett Kavanaugh out for revenge? Three years after his polarizing confirmation hearings, the Supreme Court's 114th

justice remains a mystery. Byline, McKay Coppins. Now, McKay knows this. I think he is, uh, I mean one of, although I'm hard pressed to think of someone better, but I'll just, I'll keep it at one of the most talented reporters out there right now. Uh, my favorite long form writer right now. Uh, and I hated this piece. So that's what we're gonna talk about today welcome mckay wow such a such a a detailed introduction and and such a friendly introduction setting up that shivving right right as we're about to start um i i i feel like i need to to

we're about to start. I feel like I need to gird myself for this interview. You told me you were writing this piece a while back, and we've talked about the court on and off for a while. I want to start with your process. You're a political reporter most of the time. How do you approach writing about the court? How long does a piece like this take to write? How do you find sources? Walk us through a process before we get to what you actually wrote. Yeah. I mean, you're right that I should say up front that I am not a kind of veteran court watcher, Supreme Court expert. I do not pretend to be in this piece. I came to the subject because I write a lot about, as you said, national politics with a specialty in conservative politics. And in kind of the post-Trump era, I felt like a lot of the kind of center of gravity was shifting

to the courts, right? Where you were still seeing conservative power being flexed, it was in the judiciary on the Supreme Court, which is now decidedly conservative or at least right-leaning. And so that's kind of where it started. My editors were the ones who were interested in Brett Kavanaugh and kind of pointed me in that direction and said, just see what you can find. And so, you know, I did not start out with like, you know, dozens of sources in inside the Supreme Court. So this was actually a more difficult reporting process than a lot of my magazine pieces. You know, I had to spend a lot of time cold calling former Supreme Court clerks and, you know, friends of the various justices and kind of, you know,

begging them to talk to me. And so many people would you say you reached out to? And how many people would you say you actually spoke with for this piece? Oh, man, that's a good question. How many actually ended up talking to me? It was in the, you know, low dozens, probably, you know, 20, 24 plus, I would say, how many did I reach out to at least twice that probably more? Um, I actually definitely more because at one point I literally just went through the Wikipedia that has all the like Supreme court clerks listed, you know, for over the last several years and just like sent emails to almost all of them. So I reached out to a lot of people. And you know this, Sarah and David, probably, like there is a very, what I found was

the culture of the Supreme Court is entirely different from any other institution I've covered, right? Like I've covered the White House, I've covered Congress, I've covered presidential campaigns, but there is this like code of omerta that Supreme Court clerks especially abide by where it is really hard to get them to talk about their former bosses, to talk about what they saw behind closed doors. And honestly, it's admirable in a lot of ways. They really take seriously the idea that if they're going to be allowed to kind of witness the deliberations over these really important issues, that they shouldn't just go blab about it to reporters. That said, I did get some to blab about it to me.

And I also, you know, talked to a lot of people who knew Brett Kavanaugh at various points in his life. And again, like I didn't necessarily think of this piece as a... And I'm curious, Sarah, what your objections are. This might be at the root of it. But I didn't see this as a jurisprudential analysis of Brett Kavanaugh. If you read it, there definitely... I hit on some of his decisions and some of his kind of judicial philosophy. But it's not the center of the piece in part because the thing I was actually most surprised by and interested by in reporting, and this isn't specific to Brett Kavanaugh, is how much messier and kind of more personal the internal dynamics of the Supreme Court are than I realized. Like, I think I had bought into the idea that a lot of Americans have of the Supreme Court as these kind of nine enlightened, like above the fray figures who are just going into their

chambers and then dispensing wisdom from on high. And, you know, it's certainly there are aspects of the process that are like that. But there's also interpersonal dynamics and internal politics and, you know, personal, you know, grievances and status anxieties and politics and ego that all play into this because they're human beings. how in particular Brett Kavanaugh's very contentious path to the Supreme Court, the confirmation battle, might influence his approach to being a justice. And so that was kind of what I ended up being most focused on in the piece. Okay, where do I start? First, let's just start at the silliest. One, it says the Supreme Court's 114th justice remains a mystery. That is accurate that he is the 114th overall justice to serve on the Supreme Court. However, the Supreme

Court actually distinguishes between the number of chief justices and associate justices. They changed that a few years back. So I found it interesting that you declined to follow the new model of counting justices in the Roberts court. If that's the entirety of your beef, Sarah, this is going to be a much less interesting conversation than I thought. It has changed when they now swear in new justices, they use the count of associate justices, not the overall count. And I mean, you know here at Advisory Opinions, we don't shy away from the footnotes of Supreme Court coverage, David. Look, we laugh at this, but there is a fact checker at The Atlantic who's going to hear this and be extremely upset. So I'm sorry to that fact checker that we didn't discuss that specific situation.

For all I know, actually, the fact checker did and made the decision that 114th was better. But I'll leave that to them to talk about. Okay, but more to my larger beef. And it's interesting that you said you were trying to cover more of the humanity of what it is to be a Supreme Court justice, because actually that was my beef. I felt like you covered this like it was Mitch McConnell and Nancy Pelosi and didn't treat the court as enough of a different institution. They're not like Mitch McConnell and Nancy Pelosi. There's not the kind of log rolling that is assumed, the kind of political expedience that I think is assumed at various points in the piece. To give an example, for instance, you talk about when Justice Kavanaugh

gets to the court and Justice Ginsburg says some nice things about him, Justice Kagan, Justice Sotomayor, and you frame it in such a way that it's as if they are doing it for political reasons, not acknowledging the possibility. You say like trying to perhaps win him over on an opinion when it counts and not acknowledging the possibility that maybe they really just believed that that confirmation hearing was total bullshit. And so they actually believed what they were saying. Whereas I think when you're a political reporter on the Hill and everyone's thinking about their next move and the strategy that like, yeah, reading into someone's comments in the press, there is more to that. Whereas, you know, when Ginsburg took grief for saying that, you know, this is our work family and it's just as important as our personal family, that Brett Kavanaugh was a very decent and very smart person. Maybe she just meant it. Maybe there was no politics behind it. Maybe

she wasn't trying to get his vote. I know it's your job to like, that's not an interesting piece, but I thought you missed some of the humanity of what it's actually like when you're in a monastic environment with only eight colleagues day in, day out for what might be the rest of your life. Yeah. Well, okay. Let me respond to the specific there and then pull back because I think the specific complaint you have here is not totally fair, but the broader argument is more interesting and actually is a point of contention even among my sources and the people I talk to. So the specific idea that I didn't allow for the

possibility that they actually just really believed that, I don't think that's totally fair. I actually write in the piece that Kavanaugh's future colleagues were primed for sympathy over his confirmation process. Because as I write, the justices had long been united in a shared disdain for the confirmation process. Yes, but you also write, the liberal justices knew Kavanaugh wouldn't vote with them on a regular basis, but they hoped they could pick off his vote occasionally when it mattered. Having a relationship would help. And to me, those two things aren't mutually exclusive. I think that it's both true that there is clear internal politics going on and also that these justices, including the liberal justices, hate the confirmation process. They hated his confirmation process, but they also kind of hate

confirmation processes in general. I heard this again and again from people who are close to the justices. They hate, they can't, the grandstanding senators, the media, the way that it's turned into almost a campaign with attack ads running on TV. Like they all kind of feel like they're above that. And so all of them kind of, you know, relate to on some level how partisan and how vicious Kavanaugh's confirmation process was. as in particular Elena Kagan did, I think. Kagan is known as somebody, as I report in the piece, who's always kind of seeing all the angles and thinking about the politics. And I think, as I write in the piece, she knew Kavanaugh well before he became a Supreme Court justice. She actually hired him to teach at Harvard Law School. And, they had a relationship beforehand, but she also felt like at this moment, as he was coming onto the court after this extremely dramatic confirmation process,

there was an opportunity to make a show of allying with him in hopes that that would, you know, help going forward. So I don't think those two things are in conflict, but Sarah, to your broader point, I do think this is an interesting conversation we should have because the question of how much politics there actually is on the court, like how much the interpersonal dynamics of the justices and, you know, actually influence the decisions is a real point of debate. And I would talk to tons of different people. Some former clerks would completely dismiss that idea. Other former clerks would say, yeah, look, I would never say

this publicly, but that actually matters a lot. You talk to other people in the judiciary, and they would say, yeah, it's not as simplistic as log rolling on the hill, as you point out. But it's not a non-factor either. So I'm curious what you and David think about this. Do you reject the idea that the interpersonal politics between the justices has any influence on the way that these decisions come down? It has a lot of influence on the way the opinions are written, how narrow they are, whether someone writes an additional concurrence. No question about that. Does it have an influence on the way the decision of the case comes out? I think quite rarely and in a way that can't really be captured in the political style of

reporting. Look, let me summarize my overall thing here. I think you as a political reporter have a lot of political readers. They're used to reading political news. And I think that in a profile, the best thing that you can do is bring those readers to the court instead of bringing the court to those readers. And I think overall, I felt like... And look, David, I want you to talk about the confirmation aspect of this piece because I am still too angry about it. And I, I actually, I know we have a podcast that I'm supposed to be able to put things into words. It's literally my job. Um, I tried really hard, uh, over the last few days to come up with a way to talk about this and I can't. So David, I'm hoping you'll take that part on. Um, you know,

people talk about how they were radicalized by that process. You know, folks on this podcast know I have a relationship with Justice Kavanaugh. I am not unbiased. I am not a neutral party. To watch someone you know go through that is one of the most, most awful things. So, David, you take it. Yeah. So, OK, Well, where do I begin? So number one, McKay, I honed in on the very same passage you used to defend yourself against Sarah as, okay, yeah, there is a lot of shared

disdain for this process. But then there was something else that I thought, if you know, if you sort of know the arc of Elena Kagan, that I thought, ah, Justice Kagan is Justice Kagan. to the court is she came to an incredibly contentious Harvard Law School. Incredibly contentious. I mean, vicious place. Vicious place. I have this PDF that's open in a tab of a story called Beirut on the Charles that was written about the law school before she got there. And the funny thing about it is you can pull out pull quotes about Harvard at that point and it sounds like it was written about the battles

over wokeism and cancel culture etc. today well it was about critical race theory back then that's what's

sort of fascinating about it that's when critical race theory takes over Harvard Law School so yep it was as contentious then as it is now yes exactly and so the interesting thing about the Kagan arc which I thought over Harvard Law School. So, yep, it was as contentious then as it is now. Yes, exactly.

And so the interesting thing about the Kagan arc, which I thought was fascinating about your story, was she comes in and she walks in and she says, I love the Federalist Society. Sarah wore a t-shirt. It said, I love the Federalist Society. You know, quoting just, well, she wasn't Justice Kagan then, but Dean Kagan.

She hires Kavanaugh. The reach out to Kavanaugh, to me, seems completely consistent with that entire history that she has. Was there something behind the charm offensive towards conservatives in law school that was sort of like politicking? Maybe sure, I guess. Was there something very genuine about it as far as like who she is? I think so as well. It was really interesting. And I've told advisory opinions listeners this before. When she was nominated, a lot of, there was this effort behind the scenes to organize Harvard law students against her, conservative Harvard law students against her. It was hard to find them who were willing to go against her. Well, and one person on this podcast did the exact opposite and in fact,

went to the White House press briefing to endorse her nomination to the Supreme Court. I'm not sure who that was. It was me. It was Producer Caleb. It was Producer Caleb. Anyway, so I am, I just found that as an aside. Now, on to the confirmation battle itself. So, I don't know Justice Kavanaugh at all.

Never met him, so I don't have that relationship. Also, nobody, I don't have that relationship. Also, I don't think anybody could fairly accuse me of being light on or excusing towards sexual assault allegations. A lot of my work has been exposing, especially some of these abuses within the larger evangelical community. So I'm not easy on this stuff at all. I'm also an advocate of due process. And I think, here's what I think when I read your piece. What I wish people would do is place in better context the progression from christine blasey ford

to the swetnick gang rape allegations which landed right before you know he came in very angry um and how unbelievably you know so the blasey ford situation when that came out i wrote a piece and i said look if her allegations if there's a preponderance of the evidence that it's true, he should not be confirmed about Blasey Ford. However, at this point, I don't think there's a preponderance of evidence that is true. And then the allegations got more specious and more specious, sort of culminating in this gang rape allegation. more specious, sort of culminating in this gang rape allegation. And I think the thing that is sticks in the craw of a lot of people, and I'd be really interested in your analysis of this, having talked to a lot of people, is has there been a reckoning for how specious some of this stuff got? Because it's often treated as if well

there were allegations and he got mad about them as if there's no sort of underlying evaluation of them um and and there's as if and also that there was a frenzy around it like i i remember tweeting doubtful uh tweeting doubtfully about the Swetnick allegations because I just read the story and I thought. This story, I would not print this story like I would not print this story and and just getting gang tackled by all kinds of respectable people for expressing doubt about a facially bizarre allegation of gang rape. And I feel like there isn't context placed around that. It wasn't just a Blasey Ford allegation-allegation. There was a progression there that was increasingly specious. And just from my standpoint, what were people saying to you about that? Because as I read it, I think, man, it is really,

really understandable from a human point of view that Brett Kavanaugh would be deeply, deeply wounded. Yeah. Well, this is a good point. And I should say that I made the decision at some point in the process. I don't know if it was while writing it or in the reporting process, but I felt like I had to make the decision to essentially not re-litigate every accusation in this piece,

in part because they have been so picked apart and written about and covered that I wanted the piece to break new ground, basically look at him as a Supreme Court justice and looking forward, right? But here's what I'll say about what you just said. But here's what I'll say about what you just said. There is no question that his anger and his reaction in that kind of infamous Senate hearing was a reaction to a ramp up of accusations, not just Christine Blasey Ford, right? And it's not even just what we saw playing out in the media and on Twitter. It was also that he had this kind of team helping to get him confirmed. And part of the process was every other day, he had to get on the

phone and answer questions about the latest accusations. And it wasn't just stuff in the media. It was every crazy accusation that came in through the tip line, right? So it would be completely outlandish things. And he had to sit there and answer like, did you do X, Y, Z? Insert insane accusation that's completely not credible. And he had to answer it. And this was days and days and days of doing this. And what I heard from people close to him is that that really got to him. That contribute in addition to the national media pylon and the democratic attacks on him and all that stuff. It was also just having to answer really truly outlandish accusations all the time leading up to the Senate hearing that contributed to it. So I think that's totally fair. I do think that I should make a confession here that my experience of that Kavanaugh story was

kind of unique in that I actually was on paternity leave at the time. So I was not covering the politics of it or the day-to-day story. I was actually experiencing it from Disney World with my children, where I was for those two weeks, actually, walking around Magic Kingdom and Epcot Center and getting push notifications on my phone. And it was a very surreal experience, I should say. But I still, when I look back at the Trump era, and maybe I'm in the minority here, that whole episode still, to me,

it was the most kind of, the hottest, the most high temperature, the craziest that the national discourse felt. Like maybe you could also add on like January 6th eventually, which was at the very tail end. But when I think of all the periods of a very chaotic Trump presidency, that was the time where I felt like people were most angry and frankly, kind of losing their sense of proportion and propriety. Definitely that means some journalists, some people in the media, Democrats, Republicans. I just felt like everybody was losing their minds every day. Well, you know that Dahlia Lithwick, here's the line, the veteran judicial reporter Dahlia

Lithwick wrote that she'd been unable to return to the Supreme Court because she was still so angry. wrote that she'd been unable to return to the Supreme Court because she was still so angry. What? You're a Supreme Court reporter. That is not your job. And to just agree with you, McKay, it's the only time, only two-week period I can think of in DC, in my entire 20-year career here, In my entire 20-year career here, where you couldn't really talk to people who were otherwise your friends. It had become so personal outside of what had actually happened, not happened, the accusation, and any evidence for it. It was in the height of the Me Too movement, and everyone was bringing their personal experience to it, and it was awful. Well, this is the key, and I write about that at the top of the piece. The problem was that Brett Kavanaugh, the confirmation stopped being about Brett Kavanaugh and started being about this thing that everybody was projecting their

entire life experiences onto, and these kind of high-pitched debates about the nature of predation and privilege and all the Me Too debates we'd already been having. And he almost kind of blurred into abstraction while we had these really pitched fights about all these other things. And Kavanaugh was just kind of the stand-in for those fights. And that's why I think it got so kind of out of hand. No, I think you're 100% right about that. And what Sarah said about relationships

is really interesting because I had relationships with people on the other side of the aisle that I've had for decades. And they were very deeply strained in those moments. And after the sort of the confirmation was over, it was sort of, there was as if amongst folks of goodwill, it was like a kind of a fever passed. But you know, you would even get accusations sort of directed at me, for example, that opposition to, my opposition to Donald Trump in part because of so many of these corroborated

sexual predation claims against him or Roy Moore because of corroborated claims of sexual predation that my opposition to those figures was just all subterfuge setting me up to really be you know setting me up to have fake credibility defending Kavanaugh. I mean, that's how weird a lot of this got. And I think one of the things I think that is going to be, and that I think about your piece that's interesting to me, as a human being named Brett Kavanaugh, as opposed to a person in the office of justice,

as a human being named Brett Kavanaugh, as opposed to a person in the Office of Justice. As a human being named Brett Kavanaugh, how do you emerge into any kind of normal life after that moment? Because you're a human, you want to have it. Especially because, as McKay said, for the rest of us, it turned into an abstraction. But when you're Brett Kavanaugh, that's not an abstraction. And when you're friends with someone, that's not an abstraction. But when you're Brett Kavanaugh, that's not an abstraction. And when you're friends with someone, that's not an abstraction. You are talking about a person and his family and his life and treating it as if it needs to be the vehicle for this larger

movement. Again, to quote from the piece, Irene Carmen, a feminist journalist who covered the Kavanaugh hearings closely, told me the episode was especially painful because it took place at a moment when accusations of sexual misconduct seemed at last to be taken seriously. People had started to think this time would be different and it wasn't. And that's why it was so crushing. They just that that means that it was a vehicle, right? It was not about the specific. It was about a moment to finally have vindication for all these

other wrongs that had happened in the past with no acknowledgement that there was a person, there were specifics, this was real. It was incredible to me as someone who, again, had endorsed and supported very publicly against my party, my career, everything to say that Elena Kagan should be confirmed to the Supreme Court. that were said to me were outrageous and particularly hard because of my own experiences at about that age. I had to, as many people did, no doubt, I had to work through things from my past and sort of how dare these people question who I am and what my life experience is because you happen to disagree with me about something. But that's how the narrative happened across the country. And McKay, something I do appreciate about your piece, even if I disagree with it, is what David said. You know, the headline, of course, you didn't write, is Brett Kavanaugh out for revenge.

The magazine headline is also different. I think it's like, whose side is Brett Kavanaugh out for revenge? The magazine headline is also different. I think it's like, whose side is Brett Kavanaugh on or something like that. But it ends with, and I'm just going to read this paragraph, which brings us back to the nature of the Supreme Court itself. There may be no greater indictment of America's democratic system than the fact that Brett Kavanaugh's feelings are so potentially consequential. But at a moment when the court is routinely called upon to fill the void left by a dysfunctional political system, a single justice has enormous power to set policy and settle national debates. If Brett Kavanaugh is quote unquote dangerous, as his critics contend, it's not because he is part of some brazen right-wing conspiracy. It's because he has managed to ascend to the height

of American power while remaining, perhaps even to himself, a living Rorschach test. Where I take issue is the idea, there's an assumption that Brett Kavanaugh's feelings are so consequential because other people have projected that if it were them, they wouldn't be able to set aside what happened to them. And I think it really misses a possibility that Brett Kavanaugh has a much larger capacity for forgiveness in a way that his friends don't. And in a way that it is hard, I think,

for some people to even imagine, including the people who, and I don't want to, who did this to him, that they can't imagine ever forgiving someone for doing that to them, even though they are the ones who did it. What about the possibility that Justice Kavanaugh actually very much wants to and can set that aside in a way that perhaps you could draw more comparisons and non-comparisons between him and Justice Thomas. Yeah, well, so I think that's interesting. And I should say that if you read the piece, I start with the question of, is he out for revenge? Because that's where a lot of liberals and critics of Brett Kavanaugh are beginning, right? They assume because of his testimony and because of maybe some of their own projection, as you note, Sarah, that he's going

to use his perch to exact partisan revenge. Where I end up in the piece is not actually quite there. You know, if you read through the whole piece, the other possibility is that Brett Kavanaugh, and this is a real thing about him that all of his friends will talk about too, his position of being like a public supervillain is very uncomfortable for him. He doesn't want to be that, right? That's part of the reason I start the piece kind of narrating the confirmation process from the point of view of his like rich liberal neighbors in Chevy Chase. And that was kind of my, actually the part that I enjoyed most of both the reporting and the writing, just kind of driving around, walking around his like

affluent neighborhood in Chevy Chase and seeing the no justice no peace signs and and talking to people who knew him I mean that like like so anyway but my point is he he is somebody who also and all of his friends with the status wants to kind of be able to move past all this like he he actually doesn't you talk about Clarence Thomas. They're very different personalities, right? Clarence Thomas is somebody who brags about how he puts a 99-cent sticker on his law school diploma because he takes elite credentials so unseriously, right? That is not Brett Kavanaugh. Brett Kavanaugh is not at war with the Ivy League or the establishment or even these liberal, you know, the liberal media commentators. I have a quote from one of his friends who says that, I don't think Thomas or Alito,

I'm not going to curse here, but I don't think they care what the New York Times says about them, but I think Brett does, right? So anyway, all of that is to say that it's not necessarily the case that he is actually out for revenge. But the point you're making is that could he just set aside his personal feelings altogether, whether that means bitterness over the confirmation or his desire to be kind of readmitted into polite society and rule as a judge, you know, unbiased objectively. I think that's completely possible. I think he already has done that in some cases. But again, the point that I, the thing that I came away from is that I think most Americans already assume that Supreme Court justices do that. If you look at polls, they overwhelmingly support the idea that the Supreme Court

is by far the most functional and best institution in the American government, that they are trying to do the right thing. These justices, they are cloaked in the kind of pomp and circumstance and formalism that the court encourages. And the point that I was making is that all of that might be true, but it's also true that these are human beings. And if so many Republicans and Brett Kavanaugh allies say that they were radicalized by that confirmation process, I think it's at least worth asking how that confirmation process might influence Brett Kavanaugh, whether it's radicalizing or something else.

I think that it would be silly to assume that there's that to just completely dismiss the idea that that could influence how he how he behaves going forward. You know, I think one of the things that I think about this is. One thing I liked about your piece is how you talked about how there might be people on the left who, or not might, there are people on the left who fear he was radicalized, and there are people on the right who hope he was radicalized. Right, who want him to be more radicalized, in fact. Exactly.

All these conservatives, kind of MAGA types, I quote in the piece saying like, why isn't he acting like the, you know, incredible Hulk that we saw in that one Senate here? Like that's the person they thought they were getting on the Supreme Court. And the fact that he hasn't turned into that on the bench is very alarming to a lot of a certain kind of conservative. is very alarming to a lot of a certain kind of conservative. Yeah. The interesting thing to me is it's in a way, if, if there has been an assault on your character as a human being, that there's something fundamentally wrong with you.

And, and, and it's also an assault on your character in an interesting way to say that, but I, because I defend some, a movement defended me that I then owe them something, uh, in an interesting way to say that, but I, because I defend some, a movement defended me, that I then owe them something that I wouldn't otherwise, you know,

that that's an assault on your integrity as well. And I think in an interesting way, the best revenge, to use that word, would be just to be Brett Kavanaugh, just to continue to be the human being you were, which rebuts both sides of this. And so if I'm looking at it as an outside observer, what I'm looking at is I'm seeing,

oh, wow, yeah, Brett Kavanaugh was confirmed to the Supreme Court of the United States, not the angry guy of the right-wing hopes and the left-wing fears, but this judge who has a record, who has a particular temperament, who has a particular approach and philosophy. and all of that, I'm not saying I can predict how he's going to rule in every single case, but nothing about his record on the court so far surprises me in the least. If you'd asked me what kind of justice was he going to be, going in on the front end before the Christine Blasey Ford stuff, and in an interesting way, I think, I mean, I admire that response.

I mean, I admire that response. And in an interesting way, it is a kind of way of asserting yourself independently of this controversy because it seems like the worst possible response would be either would be that that vengeance mindset because it's it's making you beholden to a movement and reactive to a movement and that's not what a justice wants to be okay now there is one thing that is incorrect in your story you say that as a judge on the dc circuit uh kavanaugh spent most of his time on wonky regulatory cases, which meant his conservative voting record attracted little attention in the culture wars. And when a politically charged case did fall into his lap in 2017, involving an undocumented 17-year-old immigrant seeking an abortion in Texas, Kavanaugh tried to find a middle ground.

Except Kavanaugh as a DC circuit judge had the Heller case, the DC gun case. He had the Obamacare case. He had- Yeah, the Obamacare case was definitely, yeah, but come on. I mean, yes, the Obamacare case actually is the most notable exception, right? I mean, that was one that came up a lot during the vetting. But if you talk to some of the people in the conservative legal movement who were debating and discussing Trump's shortlist before Kavanaugh was nominated, one of the complaints you heard a lot was, we don't have enough to go on to know how he would rule on abortion cases or some of these other cases. Some of the issues

that most motivate or animate a certain kind of conservative legal activist, they would say the D.C. Circuit, they tend to have a certain kind of case. So you have a really good sense of where he is on Chevron. You don't necessarily have a really fleshed out view of where he is on abortion, right? Or on Roe. And so anyway, that's all I was trying to convey. Of course, he had some high profile cases. The Obamacare case was one that came up a lot in the run up to his nomination. But that's the point I was trying to make. I mean, compared to Gorsuch, who was on the 10th Circuit, who actually had no cases like that, I just think that made it seem like it was unusual or there's not a record to compare

his record to now or his judicial writing to now. I think his opinions now, his votes now, are incredibly consistent with the judge he was on the D.C. Circuit. And that's a really interesting story. I know you don't want to take your readers necessarily into jurisprudential walk land as we do here. But it's relevant to the overall point, which is if he's the same judge in terms of his judicial philosophy that he was on the D.C. Circuit, then doesn't that undermine the entire premise or at least makes a more interesting premise? Well, it undermines the revenge premise. Yeah, it undermines the revenge premise, which again, I don't actually agree with. I don't think he is. If you read the whole piece, I think that's clear. But this is actually interesting.

And this is a point that I heard a lot of expert court watchers make to me, which is that like in the, even though he's now been on the court for almost, you know, for more than two years, that's actually a very small sample size for a Supreme Court justice, right? Like these are people who serve lifetime, are on the bench for their whole lives. And you can't, a lot of the people I talked to were like, well, I'd be careful to draw, you know, sweeping conclusions about what kind of justice he's going to be based on just these first two years. Because for a lot of justices, it takes more than a couple of years to evolve into the kind of justice you're going to be.

So that's like the actual big caveat hanging over all of this is we still don't know totally what kind of justice he'll be. And I know people on the left and the right are waiting to see how he will, you know, decide some high profile cases that are coming down the pipeline. So that so again, like I think we'll learn more about it going forward. But and why not mention more of the hypocrisy? You know, you do spend a lot of time on the confirmation. You don't mention some of the more

outrageous and false accusations that were made against him. Do I spend a lot of time on the confirmation? It felt like it. I actually don't have anything about the confirmation. I have very little about it. I had in my outline a whole section that was supposed to be about the confirmation, and I made the decision at that point, we cannot weigh down the whole piece relitigating this because everybody already knows where they stand. And you're not going to break any new information. But there's nothing about now the hypocrisy

on the Andrew Cuomo side, those very same people. There's no frenzy around Andrew Cuomo from the press or from the very same people who said that this was, okay, fine, second. i'm gonna disagree with that there's no there's no there's no media like i i think there was a uh we had a bit of a media frenzy about the cuomo stuff well sure but i'm just saying we there was a lot of coverage well brett kavanaugh had a two-week confirmation process andrew cuomo what you couldn't fit it into a tight yes that, that's true.

Unfortunately, the media doesn't get to decide who's governor of New York. No comparison. And I think if you polled the average New York journalist, they would not pick Cuomo, but anyway. No, you talk about sort of a side eye, referencing other side eye, I suppose, about Kavanaugh being allowed to take communion. No reference to the side eye of others. I mean, it just felt like it came from a very specific

perspective, assuming that he's a bad guy instead of what it would feel like if you were wrongly accused of all of this. I think this might be, Sarah, where you're projecting some of your own feelings about Kavanaugh and confirmation onto this piece. The communion thing, actually, I thought was really interesting. But again, that whole first section is supposed to be narrated from the point of view, and I would say with an arched eyebrow toward those neighbors, but those kind of rich Chevy Chase neighbors channeling how they were feeling about all of this, you know, Chevy Chase neighbors, um, channeling how they were feeling about all of this, which I don't think I, uh, took them overly seriously, but I guess readers can decide if they read that piece. I, I just want readers, I mean, listeners to know

this is a, uh, a, a discourse conducted with obvious Zoom affection, even though. is conducted with obvious Zoom affection, even though... There's lots of smiling and, you know, heart emojis coming to the chat on Zoom. Well, look, McKay's used to this from me because we've done it in the political context when it's about one of my candidates

or anything else. So McKay gets this in private from me plenty. Listen, I would much rather take somebody just like calling me up and arguing with me about a piece as opposed to the past four years, which is like planting stories about me and weird right-wing websites and trying to get me fired, you know?

This is a much more healthy approach to disagreeing with the story. So I appreciate you, Sarah. Do not fire McKay. Do not. So this is a little bit of a digression, but it was interesting to me, you brought up calling up all of these clerks. So I'd be interested to know your experience in what a lot of people don't understand is in the run-up to a Supreme Court nomination. And this didn't happen with the Barrett nomination because

it was a super compressed process and it was sort of almost a foregone conclusion before it even occurred. But with others, if you're in the media and you're covering the Supreme Court or you're writing about the Supreme Court, you're going to get the clerk offensive. And that is the former clerks of the judges who are up for potential nomination. They're going to write you. They're going to share with you memoranda. And I never encountered a clerk army like the Kavanaugh clerk army. It was the SEAL Team 6. And I know I'm mixing army and navy. Okay, I get it. But it was the SEAL Team 6 of clerk forces. And I was just wondering if you got a sense of that in talking to former Kavanaugh clerks

for this piece. Yeah. Well, actually, can I make a broader observation first about the Supreme Court clerk breed? That is a very specific breed of person who I don't think I had a lot of experience with before this, and you probably both have. But like I said, I've covered politics for a long time and I know a lot of different kinds of, you know, staffers and candidates and people, the Supreme court clerk, it's, they take themselves very seriously, which, you know, they're successful people and, and an important profession. So that's fair enough. They, um, but they also like, it is a weird relationship where their devotion to their

former bosses is just unlike anything that I've ever seen. Sarah has been very devoted over the years to people, the candidates she believes in, but nothing like this. It's almost fanatical. And one thing I will say for the Kavanaugh clerk army in particular is I would actually say they are very organized. And I heard a lot about the kind of war room that they set up during the confirmation and they were ultimately successful. But I will also say they were very polite and genteel compared to some of the other, uh, the, the other clerk teams that I talked to. Um, not that they weren't, you know, serious and, and effective in driving a certain message, but they, uh, this kind of goes with my broader,

you know, take on Kavanaugh, which is like, they don't see the media as the enemy of the people. They actually, I appreciate it. They wanted to have good faith conversations about it and point out which pieces of journalism they thought were fair and which pieces weren't. There have been a number of books, and I've read all of them now about the Kavanaugh confirmation. A lot of them had like worked on those books or worked with the authors and pointed out different things that they liked and didn't like. So anyway, I actually didn't mind working with the Kavanaugh clerk team. I thought that they were, you know, fair and professional. But overall, the Supreme Court clerk,

But overall, the Supreme Court clerk category of human is one that I had not encountered. And I don't know. I don't know what else to say about it. I meant SEAL Team 6 of clerk armies entirely as a compliment. It's a very effective group. But again, I was dealing with his, his appellate clerk clerks, you know, the folks who had clerked for him. Some of those were the ones that I had talked to too. The other thing that I would say about the clerks is that like, um, they, they, at least

in his, in his case, they've all been through this very intense battle. And so at this point, their boss has the job for the rest of his life. I think they've toned down probably to a certain extent. An Atlantic profile is not the scariest thing to them because at the end of the day, their boss is going to have this job either way. So I thought it was helpful to get their perspective and, you know, they've obviously gotten to know him very well, but they weren't like, you know, bombarding me with demands or, you know, angry phone calls or emails throughout the process. I wish you had spent more time on the comparison between Thomas and Kavanaugh. I think there's an interesting jurisprudential comparison to make. Obviously, you can start from the perspective of the two most contentious

confirmation hearings in U.S. history. And you do speak about it in the piece, but I think it could have been the frame of the entire piece is sort of the difference in how confirmation hearings shifted between the 90s and now, and then how it can look, how two different justices can wear that. I'm wondering as you talk to people, what else didn't get included in the piece on that line? Yeah, well, so, you know, in the kind of near the top of the piece, I write about how the fears about whether Kavanaugh would be radicalized basically go back to Thomas, right? There are fears that the idea that Thomas, after going through his confirmation process, kind of retreated from public life, rarely spoke in

public, became more and more conservative, that liberal fears about Kavanaugh were that he would follow the same trajectory. And as I write in the piece, he didn't really. It's funny, though, I have this little kind of detail that Thomas actually thought initially that he would kind of take Kavanaugh under his wing when he got to the court because he had been through something similar. And I talked to Armstrong Williams, a longtime friend of Thomas's, who said, oh yeah, he wanted to kind of teach him, teach Kavanaugh not to bother trying to like ingratiate yourself with the left

or the people who had smeared you. Just let your own work speak for itself and don't bother with the rest. And what I ended up finding is that that was not Kavanaugh's inclination. He ended up, if anybody, gravitating toward John Roberts, who really ended up being kind of his, if he had a mentor, it would have been John Roberts. And Kavanaugh loved Roberts well before he got to the Supreme Court, stuck with him, especially through that first year. And kind of in style and temperament is very similar to

Roberts. Let me give you an alternative version of that same fact pattern, which is that when Gorsuch was nominated to the court, he was a very important fourth vote, let's call it. They needed a rock solid fourth vote. When Kavanaugh gets to the court, he's replacing Kennedy, but he is not going to be the fifth vote. He's going to now be the fourth vote. And Roberts is then going to move into the Catbird seat as the fifth vote. The Gorsuch vote was meant to be the super conservative rib rock. The Kavanaugh seat was meant to be someone who could woo that fifth vote because they did not think they would get any of the other four seats on the court. So Roberts was going to sit there as both chief and swing vote for the foreseeable future. And so Kavanaugh was actually sent to woo Roberts, not the other way around. And when you look at some of the opinions in the past year,

specifically some of the pandemic law opinions, I think David will agree, it's the other way around. It's Kavanaugh courting Roberts. Yeah, but Sarah, in the past year, things year things have changed though right because now with Amy Coney Barrett's addition to the court the balance changed so like I do think you're right that early on there that that was the dynamic but one one thing I heard from somebody uh inside the court or was, you know, Roberts is not really in charge anymore in the sense that, like, he's not the deciding vote. Like, he can't just decide what happens. And so... Well, he's the one assigning opinions. Sure, he's the chief justice. And that matters. But he's not the swing vote. He's not the deciding

vote. To the extent that there is a swing, you have to have two swing votes, basically. And so it's probably going to be Roberts and somebody else, whether that's Gorsuch or Kavanaugh. It's mostly Kavanaugh. Well, but there have been some where it's Gorsuch, right? And when you talk to people, they'll say, depending on what kind of case it is, Kavanaugh is more likely to be the swing vote, but maybe it could be somebody else. It depends on what the issue is. So, again, we don't know exactly what the... We're very early in this, in the lifespan of a Supreme Court justice.

So, we'll see how it evolves. Let's come back on advisory opinions in 2032 and see how things have shaken out. You know, I'm going to say I read your piece and I came away from it feeling like,

I admire, based on your reporting, I admire the way he is trying to navigate this post-confirmation battle. That's how I came away from it. As a person who's a human being who was social and was engaged in a community in a very sort of real, tangible way prior to a confirmation battle that's one of the most toxic events in recent American history until the post-election fight from November through January 6th. re-enter society to be the same person as much as he can as he was before. Which to me, you know, this is such a theme of advisory opinions as judges are people too.

They're not, you know, philosophy, you know, they're not ideology, you know, ideology bot 9,000, you know what? And it just came across to me that this is a guy who is trying to recover something that he lost, something that was good that he lost. And nobody really knows how to do that, let's be honest. Nobody knows how to do that, especially in this climate and this time. that I got. And that is to the extent that there was, and that the, you know, the headline about revenge and all of that, it just was, look, he went through

something horrible, and then now he's trying to still be Brett Kavanaugh, both jurisprudentially and individually. That's how I, that's kind of how I took, that's what I took from the piece.

I think that's a great place to end it. McKay, any last thoughts? No, I appreciate coming on and fighting with you, Sarah, as always. I hope that I can come back again next time I write a piece that pisses you off. I hope we can do that.

You bet, McKay. Thanks, guys. 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, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go to gift. My parents love it. I upload photos all the time. I'm just like bored

watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame. That's a-u-r-a-frames.com. Use code advisory at checkout to save. Terms and conditions apply. code advisory at checkout to save. Terms and conditions apply. And we're back. That was what diplomats refer to, Sarah,

as a frank exchange of ideas. Any closing thoughts now that McKay is not listening? Well, I'm sure he'll listen to the podcast, but any closing thoughts before we move on to NRA and Facebook? I feel like a lot of people are going to listen to that conversation and be dissatisfied with it on circular, like all the reasons from both sides above and below. And, you know, I get that.

I just want to be very clear. I understand why you may not be satisfied with that conversation is what it is, right? understand why you may not be satisfied with that conversation, um, is what it is, right? That's sort of, that's, uh, adulting in the sense that like, there's a situation that I don't like, I can't do anything about it. There's a story about that. Uh, and I didn't like the story. I felt like it came from a pretty specific angle and a little unlike McKay in some respects. Um, you know, he, he entered the story from the perspective of the neighbors, the liberal neighbors. And I felt like that colored how you walked through it. You walked through it as someone who already bought into that specific narrative. And I feel

like at least half the country doesn't buy into that narrative. No, not half of Atlantic readers, I will grant you. But there's a reason that there is at least some data to support the idea that that is why Republicans gained seats in 2018. Yeah. No, I think, yeah, in the Senate for sure, yeah. And then, of course, from a judicial nerd standpoint, I felt like it was too political and not enough law. I wanted Atlantic readers to get to know some of the jurisprudential questions. Um, you know, his Obamacare opinion on the DC circuit is really relevant. His Heller dissent is really relevant to me. If you're going to judge him as a justice now. And, um, and even talking about his voting record, the percentage he's voted with Kagan versus Roberts

versus CT or Gorsuch, well, let's break that apart. Because if it's a unanimous opinion, take those out. I want the non-unanimous ones. And then what are they about? What actually divided them? And if you want to argue after looking at specific cases that, yeah, these are the reasons on the top, on the surface, but actually you can read into it. Obviously, I'm great with that. We do it on this podcast all the time, but you can't just stick to the surface and say, see, here's evidence. You know, one of the things I thought about it as I read it was, so I'm, as I was reading it, the way I summed it up, our conversation, it's how I felt about it that, oh, look, Brett Kavanaugh was nominated at Supreme Court and he's still Brett Kavanaugh. that you've always been before in spite of this just hurricane that you, you know, he was just in the middle of this unbelievable hurricane.

I honestly think this is such a polarizing issue, Sarah, that I will bet you that his Atlantic readers will be angry at him because it didn't, it was not a story that condemned Brett Kavanaugh. Yeah, that's probably true. Uh, I,

I think, I mean, that's how, that's how in, in incredibly polarizing this is still to this day. Um, I hate it. David,

I hate it. I know, I know, I know, no, I, I know. And I just, I said it earlier and I just want to be very clear. I am not arguing. I am by it. I unbi. I know. I know. I know. No, I know. And I just, I said it earlier, and I just want to be very clear.

I am not arguing I am unbiased or that I am a neutral observer in this. I'm just not. And that makes, it's unlike me. I think I am able to set aside a lot of stuff when I talk about issues. And I think it's what makes me a good political operative for the most part. And yeah, I would have been terrible at this because I'm angry about it.

I still am. Well, I tried to be a neutral, unbiased observer of this during the confirmation process. As I said, I, at the very beginning said, look, if Blasey Ford's allegations are true, if there's a preponderance of the evidence, not even proof beyond a reasonable

doubt, a preponderance of the evidence that her allegations were true, I think he should step aside. And I just thought the evidence was lacking severely for a lot of reasons we could talk about for a long time. And then as it went to the Deborah Ramirez allegations and the Julie Swetnick, it just got worse and worse and worse. And if you want to approach it to see what my thought process was in the time, if you really want to dive into this, I wrote a long piece that broke down all of the allegations in detail. And I just, legendary producer Caleb, I just put it into chat for the show notes. So if you really want to get into it, this is where I, and I, you know, I tried my best to come at this from, I'm neutral about it.

In fact, you know, there were other judges that I might've preferred to be nominated just from a sort of a philosophical standpoint to Kavanaugh. But I tried to be as neutral as possible about it. And I just didn't see it. I just didn't see it. And so anyway. Well, let's talk another hot button issue, bankruptcy law. So.

Yes. Well, the hot button issue is the NRA. Is the NRA. I thought it was bankruptcy. I thought people were just really pumped. All these headlines. All right. So the NRA filed bankruptcy in Texas a while back.

That was dismissed without prejudice by a Texas bankruptcy judge. We have not gotten the chance to talk about it because we've had so many awesome interviews, but we wanted to save a little time here at the end to talk about it because we've had so many awesome interviews, but we wanted to save a little time here at the end to talk about it. This would have been the result, I think, in almost every bankruptcy court in the country. The only potential differences were, I think some bankruptcy judges would have dismissed it with prejudice, by the way, meaning the NRA can refile this bankruptcy petition if they want to. I think some judges would have found that the lack of good faith here would have prevented them from doing that again, at least without certain caveats or something.

So just to do a quick discussion of it, the judge found that they had filed this bankruptcy in order to basically stay the ongoing litigation brought by the state of New York against them. And that when asked, Wayne LaPierre said that they were in great financial condition. And that means you can't file bankruptcy. Now, you can file bankruptcy in anticipation of being in financial distress. For instance, you, your company, something has gone horribly wrong. A lot of people were injured. There's now a mass tort claim. Hundreds of lawsuits have been filed. None of them have moved to liability stage. You can file bankruptcy in anticipation of knowing that you're about to be put into bankruptcy because you know you were liable for that mass tort.

And when that happens, it does stay those lawsuits against you. And basically what happens is you get all your creditors in line. They set aside some money for the mass tort. It basically organizes how this is all going to work out. And then those tort lawsuits proceed, and we actually determine liability in that process. But here what the NRA appears to have been trying to do, and I say that with some question mark because strategically I don't really understand what they were trying to do here. But New York has used its police power to argue that the NRA should be dissolved. The bankruptcy court, like police power issues are not within really the bankruptcy court's purview. And then to go in and say, and we have no financial problems.

Okay. So this is just to delay what New York is doing. It's some argument, of course, that like, well, New York is seeking money, or if they dissolve us, obviously, that will have some financial repercussions. But bankruptcy law is pretty clear. It has to be directly financial, not there are financial repercussions to the police power. So this was a stupid lawsuit. The filing in Texas, we already talked about the sort of jurisdictional issues with that. It was dismissed as could have been easily predicted. It's a pretty good opinion, though. Recommend it. Shout out to our Texas bankruptcy judges. Yeah, you know, I would summarize this opinion is you cannot file bankruptcy to own the lib. In this case, the lib was the New York attorney general who's

pursuing proceedings against the NRA. And the key line is based on the statements of counsel and the evidence in the record, the court finds that the primary purpose of the bankruptcy filing was to avoid potential disillusion and the New York Attorney General enforcement action. So this was a defensive move in another court proceeding to try to forestall another proceeding. That's not the purpose of bankruptcy. proceeding. That's not the purpose of bankruptcy. And Sarah, as you identified, they sort of had this legal strategy and a PR strategy. And the PR strategy was at odds with the legal strategy because they're trying to assure everybody, man, we are still a mighty powerful force. We don't have any financial problems. We're totally cool financially. Oh, but we filed bankruptcy.

And as you said, it's a completely different situation than like, say you've got, let's say you're a manufacturer of brakes and you're very profitable. Then all of a sudden you realize that, oh, one of our brakes have a product defect and we're about to get hit with a $500 million class action lawsuit that's going to have some merit, filing anticipatory bankruptcy there or filing bankruptcy because the anticipation of the massive liability is one thing. This is not that thing. So yeah, it's not a super surprising outcome. All right. Do we want to talk facebook yes yeah okay so this is and we should disclose um that the dispatch is a um part of facebook's fact checking program so

get that out there so the oversight board which is this idea that facebook had came up with to say, okay, look, we're the largest social media company in the world. A lot of people don't understand our moderation decisions. Here's what we're going to do. We're going to set up a sort of a Supreme Court of Facebook. We're going to bind ourself to its decisions. And that Supreme Court of Facebook is going to act like a Supreme Court of the United States.

It's going to issue printed opinions and to give some people some ideas on how our moderation rules are interpreted. And a lot of people sort of say, why are we even talking about this? This is a fake court, blah, blah, blah. My position is, well, when you've set up a independent entity or quasi-independent entity, bound yourself to it, and it's going to determine the moderation decisions on a platform that hundreds of millions of people use, including leaders of nations, it's worth talking about. And we don't have a whole lot of time, but I'll just say the interesting thing about this, I read the whole thing, wrote about it in time. The interesting thing about this is it

really dealt with this issue of how should Facebook, which is also going to inform sort of how social media companies think in general, how should Facebook think about powerful influencers on its platform? Because one of the arguments has been about moderation decisions is how do you treat powerful influencers like a president, like a prime minister, like a secretary of state, like you name it? Do you kind of give them more freedom on the platform

because what they say is newsworthy? And Facebook actually has a newsworthiness exception to some of its moderation rules. Do you just treat them just the same way you treat anybody else? Or because their words are so powerful and they have the ability to impact the real world in a much more profound way than if John, the insurance agent, posts about, say, the election, do you put a higher level of scrutiny? And the oversight board functionally decided on a higher level of scrutiny without saying that. It essentially said that all the same rules are going to apply, but context matters for

an influencer's speech, and the context that matters is how powerful they are. And so that there should be specialized staff that Facebook has insulated from political pressure that evaluates powerful influencer speech according to its potential real world impact. And my conclusion about that, Sarah, is that essentially what the oversight board was saying is, hey, powerful influencers, we're ordering Facebook to apply a heightened level or extra degree of scrutiny to your speech. And I have to think this is heavily January 6th informed. I think a lot of that changed after January 6th. I think you can look at social media content issues as pre-January 6th and post-January 6th. I think we'll say that 10 years from now. I think it is the KT boundary

of social media platforms for my dinosaur fans out there or asteroid fans, depending on which side of that you came out on, I guess. I mean, we should be asteroid fans. We benefited. Came out on, I guess. I mean, we should be asteroid fans. We benefited. Yeah. Well, I mean, I'm not an, I'm a fan of that asteroid. Yeah. Fair. Yeah. Yeah. Future asteroids, less of a fan. Right. Less of a fan. But yeah, I mean, I admit January 6th impacted me. I did not think what happened on January 6th was a reasonable possibility in the United States of America.

Before we go, there was a judicial confirmation hearing that happened this week where a district court, federal district court nominee, was asked by the Republican Louisiana senator what rational basis review was. And her first answer was, it's the lowest level of review by the Supreme Court for state actions. And then he said, yeah, but can you name the standard? And she said, no, I cannot right now. And at a much lesser degree, Twitter kind of blew up about whether that was disqualifying. I was curious what you thought about it. We haven't talked about this before. was disqualifying. I was curious what you thought about it. We haven't talked about this before, because to me, it felt a little like a standardized test in the sense that some people are really good when they're put on the spot and other people's whole brains go blank. And so it actually doesn't tell us much about whether she knows what rational basis review is

when you get asked on the spot to name it. Now, someone I saw compared it to like, that's like a surgeon not knowing what the heart is. I mean, I guess it would be more like asking a surgeon on the spot, what are the names of the four ventricles of the heart? Yeah, like they definitely should know that. But if in a moment of extreme stress, when all the cameras are literally on you,

if you suddenly forget what the four ventricles of the heart are, I actually still think you probably know what they are as a surgeon. But I'm curious what you thought of it, David, and whether you think those sorts of questions, which are becoming more prevalent in these lower-level judicial confirmation hearings, are good, fair, bad, there's a better way to do them? I have mixed feelings very quickly. One is, and while you were asking the question, I was trying to find this, but there was a pretty, a semi-famous moment where a Trump trial court judge nominee completely failed to answer basic questions about trial procedure, just

completely failed. And in his defense, he wasn't a trial lawyer, et cetera, et cetera. That was a little different also. They asked him whether he knew what emotion and lemonade was, and he did not know what it was at all. Not that he couldn't name the standard for it. That's more like knowing, I don't know what the heart is versus name all four ventricles. Now, again, I'm not sure if that's disqualifying. In that case, he did not get confirmed. My point, and I posted his confirmation

after I saw that because I thought, I felt like he just didn't even take the confirmation seriously. Because I had a boss when I was a young lawyer who was nominated for federal district court judge and you would not believe how much he prepared for his hearing.

And it was two questions and he was done, but he prepared literally for weeks. And so I kind of took this as, did you take it seriously? And if you didn't take it seriously, do I want you on the bench? But then on the other hand, I'm also very down on these kind of gotcha questions

like in politics. So name the prime minister of Uzbekistan. Oh, you don't know the prime minister of Uzbekistan and you're going to be talking to him? So some of this is like, hey, there's a gotcha question with technical lingo and not as much of a fan, super basic stuff, and you're not answering it,

and you don't even know what it is, then I'm going to have some pause there. So where does Rational Basis Review fall on that line? Because I think it's somewhere in between name the president of Uzbekistan and do you know what emotion and lemonade is? I mean, I think saying, okay, it's a lowest level of review and then not necessarily being able to quote

exactly how the Supreme Court phrases that is directionally correct, whereas I have no clue what emotion and lemonade is, is when you're about to be a trial judge is a little bit different. Yeah, I mean, look, I didn't think it was great. I think you probably should be able to muddle through the standard,

but it did, as I watched the video, felt much more like the standardized test deer in the headlights moment where over drinks that night, she was like, oh my God. I mean, reasonably related to the, you know, like she's saying it in her head. It, to me, did not show a lack of preparation.

That, you know, that doesn't mean someone should be a federal judge necessarily, but that alone is not dispositive to me. That's, I guess, where I came out. Right. Well, and she also knows he's probably sitting there with a quote from the court that is the precise definition of rational basis of view. And if she can't remember that precise definition, she's going to be roasted. So yeah, yeah, that feels different.

All right, David. Monday, maybe we'll have opinions. I hope, I hope. I mean, surely we will because the next Monday is Memorial Day. We're not going to have opinions then. Surely. Surely. But we'll have a great advisory opinions nonetheless. And this has been a great advisory opinions. My goodness. Look forward to getting the listener feedback on this one, Sarah. Please go, as I say every time, please go rate us on Apple Podcasts. Please subscribe to our feed and check out thedispatch.com. And we will be back with you on Monday. Thank you.