Advisory Opinions - Receipts on the Senate Filibuster | Interview: Mike “Frags” Fragoso

Episode Date: July 30, 2026

Sarah Isgur and David French discuss the Trump administration’s appeal to the Supreme Court about its mail-in voting executive order. Then the two talk with ⁠Mike Fragoso⁠, former chief counsel to then-Senate Majority Leader Mitch McConnell and partner at Torridon Law, to discuss the food truck nature of Senate judicial nomination.  The Agenda: –⁠Additional restrictions on mail-in voting⁠ – ⁠The headline-to-effects ratio is out of control⁠ – Judicial nominees and the filibuster – All about the Congressional Review Act –⁠Mutual combat at the gas station ⁠ ⁠The SCOTUSblog Summit: 2026 Term Preview.⁠ Order Sarah’s book⁠ here.⁠ Advisory Opinions is a production of ⁠The Dispatch⁠, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including access to all of our articles, members-only newsletters, and bonus podcast episodes—⁠click here⁠. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member ⁠by clicking here⁠. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to advisory opinions. I'm Sarah Isger. That's David French, a short conversation about the Trump administration's appeal to the Supreme Court about their mail-in voting executive order. It is sitting at one first street as we speak. TikTok, tick-tock. Well, that was a different conversation we had. And then, David, we're going to talk to the Mike Fragoso.

He is the former Chief Counsel to then Senate Majority Leader Mitch McConnell, but he also was legislative director to former Senator Mike Flake, chief counsel to the Senate Judiciary Subcommittee on Privacy Technology and the Law. I mean, the man knows the Senate. And in particular, he is an expert and he has the receipts on the Senate filibuster. Now streaming on Disney Plus, the Hulu original series Furious, follows FBI agent Alice Black, played by Emmy Rossum, on the hunt for a mysterious and calculating serial killer. Both walk their own paths toward justice. And as their lives start to intertwine, the line between right and wrong begins to blur.

New episodes week over week. Watch the Hulu original series Furious, now streaming only on Hulu on Disney Plus. Okay, David, before we get to the main event, I do want to start with another interesting. emergency docket petition reaching the Supreme Court this week. On Monday, the Trump administration asked the Supreme Court to allow it to fully implement an executive order signed by President Donald Trump that seeks to impose additional restrictions on mail-in voting. Trump signed the executive order at the center of this case titled, quote, ensuring citizenship verification and integrity in federal elections on March 31st. Among other things, the order instructs the U.S. Postal Service to propose rules for mail-in and absentee ballots, and it directs the Department of Homeland

Security to compile state citizenship lists, lists of individuals in each state who are U.S. citizens over the age of 18. Under the order, the rules issued by the Postal Service must provide that the Postal Service can only send mail-in ballots to voters whose name appear on the state citizenship lists. So, 23 states and the District of Columbia sued about that. the district court enjoined it. The circuit court upheld the district court's injunction, hence the application to the Supreme Court for that stay. David, when this EO happened, I remember there was a lot of other stuff happening and we mentioned it. And I was like, this is such a non-starter. We don't need to spend much time on it. I actually only want to spend time on it today because,

okay, fine, it's at the Supreme Court. But I do think it's worth noting what is. is at the Supreme Court so that when the decision comes down, our listeners can read past the headlines. So to read from the circuit court decision, although the district court held that the EO is unconstitutional, that question is not presently before us because the government does not defend the legality of the EO in requesting a stay.

This will feel a lot like our stipulation conversation from the last pod. Oh, yeah. Instead, it argues only that the plaintiff states do not have standing to challenge the executive order because their claims are premature. And its standing and ripeness arguments focus on a single claim, that the EO was not injuring the plaintiff states at the time they filed their complaint and that it would not injure them soon because the federal defendants were still implementing it. The government also does not contest the district court's assessment of the summary judgment record that informed its final ruling. Before the district court, the government did not dispute the declarations and other factual submissions by the plaintiff states. And in its request for a stay pending appeal, it contests only the legal implications of those undisputed facts. Finally, the government has conceded several points in the district court and in its motion to our court. For example, it concedes that the federal defendants have been moving ahead to implement the directives in the EO, including by establishing infrastructure to complying, maintain and transmit the DHS citizenship lists and taking steps to create a postal service portal for collecting information about individuals who are eligible to vote by mail.

So, David, that's a long way of saying. You're going to see a whole lot of headlines about this in the next few days. This is only about whether the 23 states have standing. It is not about the legality of the EO and whether the administration has any statutory authority to be doing any of this, let alone constitutional authority, because of course, the Constitution, at least as a default, leaves the time, place and manner of choosing to state legislatures. Now, that being said, David, this Supreme Court has had lots of thoughts on standing and to a lesser extent, ripeness.

I think that the states do have standing at this point because it is clear the administration does intend to implement this. The argument on the other side is until you actually see how they're going to implement it, it would be kind of hard to really know what is at issue in this case or controversy. Standing is a jurisdictional case or controversy issue. So there are decent arguments on both sides, but I don't think this is one of those hypothetical implementations. I think we've got enough to be able to have a legal dispute over whether there is statutory and constitutional authority to proceed. I am so glad you went through the specific language from the lower court decision because, as you said, we're going to have a lot of very shorthand summaries of how this comes out. And, you know, they're going to go top line. Who does this help? Who does this hurt?

and they're often going to skip through or give short shrift to why, under what circumstances. And so, yeah, this is primarily a standing matter. I tend to agree with you, although I don't think it is a frivolous argument at all to say that, wait, until we actually promulgate regulations, what are you suing about exactly? And how have you been harmed by us starting to draft memos internally about how we would? to implement this. The states are basically like, well, we're having to now draft memos about what will happen about your memos and like the sort of fear and loathing in Las Vegas that's going on in these 23 states is a harm. That I think is their weakest argument. It is, I think it's pretty hard to say how the states have been harmed before there is actual ability to even implement

this yet. Right, right. And so it's going to to be a more interesting case than I think the actual merits of the EO themselves would imply, because I think if you are, as you and I talked about earlier, very briefly, if they try by EO to do anything material to state regulations on mail-in balloting, good luck with that. I mean, I see that as a non-starter as well. The question here is, how quickly can you stop it? not, can you stop it? And those are different things. So to be clear, if the Supreme Court actually, you know, grants the administration's application, what happens next is not much.

Basically, the administration will be allowed to continue to move forward with the planning part of this EO. And then the second they try to implement it, we go right back to where we were. if they deny the administration's application, then they don't get to even plan how to implement an EO that will then be enjoined immediately before they can implement it. So this feels to me a little like the nationwide injunction case, the CASA case. Everyone feels like it's about their side versus the other side.

And in fact, the outcome no matter what is nothing. It makes no difference. And by the way, this is an interesting case because CASA had a direct effect on this. Remember, 23 states in the District of Columbia sued to enjoin this. And so, you know, it is enjoined against those states. So, like, this is one of the few cases where CASA actually did make a difference. And I'm saying it's like a CASA case that won't make a difference. But nevertheless.

Well, and I'm so glad you brought up CASA because there's anything, I'm trying to think of a case in the last 10 years that generated more heat. beforehand, followed by a bigger poof of nothingness afterwards. Yes. The headline to effects ratio is out of control. Out of control.

And I got to say, I do like to tutor our own horn in the sense like, I think we've got a good pod. Don't necessarily like to just always say when we nailed it. But we nailed it on that analysis. We absolutely nailed it.

And we knew we nailed it early on because how long was it after CASA was decided before the first nationwide class action injunction? I think it was a couple hours, like maybe 12 or 16. Like, I'm not sure it was even a full day. And here, these 23 states had no problem getting an injunction post-Casa. Like, nobody even noticed the difference. Yeah.

All right, David, we had a lot of circuit cases teed up for today, but our conversation with Mike Fregoso was just like so, good that we've pushed all of that off to next week. There's one case that I actually haven't gotten to read yet, which is another reason we may be pushing it off, but you gave me some facts for why we should cover this case, and I'm all in. Yeah, okay, so this case, tell me if this doesn't sound like, say, Tombstone, the movie, Antavio Pierce and Vincent Myers hated each other's. They spent years fighting over a woman. When Pierce saw Myers at the gas station, he pulled up to him in his pickup truck. The state said what happened was contemporaneous in terms

of drawing the weapons. They started shooting. But Myers had badly injured his right hand three weeks earlier while knocking, you guessed it, Pierce, unconscious at the same gas station. So Myers shot with his left, hitting Pierce his ankle, Pierce shot Myers in the chest, and Myers was killed. Horrible, horrible. But here's where it gets wild. Peirce sought an instruction on voluntary manslaughter based on mutual combat. What? What, Sarah? Voluntary manslaughter based on mutual combat. We're going to talk about that. Yeah, I mean, dueling's been illegal in the United States for a long time. I think that is, you know, mutual combat. I'm also not sure that I want to like be incentivizing mutual combat because you could get a lesser murder charge. But there is a conceptual issue here. There is. Is it murder if the other guy is shooting you too?

If you know with a degree of like of incredible certainty that this person pulling up to you is going to pull a guy. David, I guess facts not in evidence. yet. Yeah, yeah, yeah. They just coincidentally keep showing up at the gas station at the same time. Do you know how I've never run into someone I know at the gas station? And I live in a pretty small little community over here. There's not that many gas stations. We all have to fill our cars. So it's much more like dueling. I think they set a time and a place, in which case you could have not shown up. And like people are going to get hurt when you do this. Maybe not just the two of you. So no, it's not like, I don't think we take it in the moment of you've pulled up already and you know this guy's going to shoot you because you didn't have to be there.

I don't know. I'm just fascinated to discuss this for several, you know, a couple of reasons. I mean, one, this is a very heavily armed society. It strikes me as a very interesting conceptual legal discussion. Number two, you know, it's, it is interesting because it does raise the question of short of the sort of paradigmatic self-defense moments. where people, everyone would acknowledge, like somebody is breaking into your house.

Everyone acknowledges, I've got to write a self-defense there. But we talked in the Brianna Taylor case about how what happens if you're mistaken about the identity of who breaks in. Is there such a thing as a legal gunfight? In other words, where you fire, and somebody fires back at you, and nobody's breaking the law.

And this is one that's kind of in a gray zone of a less than murder gunfight. So very interesting. It caught my eye. It caught my eye. It's the summer. It's the summer. I thought it'd be fun to talk about.

All right. Well, after this break, we're going to talk to Frags about all things, the first branch of government. We're going to talk filibuster, judicial and legislative, CRAs, whether the filibuster distorted in, you know, positive ways or just how it distorted. I mean, we are talking to the master of the Senate here. LBJ himself. Robert Caro should write multi-part series just on Mike Fregoso. We'll be right back. So, David, there was this back and forth on Twitter the other day.

And, you know, it's kind of a cesspool or whatever. But actually, I was super into this. Let me read it to you. So Mike Fragoso, former chief counsel to Senator Mitch McConnell when he was majority leader and like all around secret judicial noms ninja. Great follow on Twitter, by the way, like must follow. Okay, so he tweets, want another 6-5 opinion in the Eighth Circuit that shows it's not just a question of putting Republicans on the court? Check out this en banc decision about DEI indoctrination in schools.

Background, there's an opening on the Eighth Circuit right now, and there's a bit of a conservative knife fight going on of who's going to take that spot. As listeners may know, Lee Rodofsky is basically like a family member at this point. So I am not a neutral observer in this. Go, Judge Rudolfsky. Anyway, so Fragoso is making the point that, like, who they put in this spot actually matters. This isn't just, you know, fill it with your buddies. Then we get someone else responding.

This opinion is why it's no longer acceptable to appoint Bush-style squishes to the federal bench in 2026. An opinion shared by many. Fragoso. It's not entirely fair to trash the Bush picks because the filibuster was a real problem. If you look at the first dozen confirmed judges under Bush, Obama, Trump 1, Biden, and Trump 2, you see the Bush and Obama judges tended to be older, less credentialed people pleasers with judicial experience. That's what the filibuster controlled for in confirmation. Since it went away, the picks have been younger, unquestionably better credentialed, and more committed to jurisprinciled.

prudence, conservative or liberal, than state politics. And I thought, I 100% agree with that. And then all these people on Twitter were like, yeah, Sarah's totally wrong about this stuff. And I was like, no, no, no, Mike and I totally agree on the distortion effect that the filibuster had. We may disagree on whether that distortion was good or bad, but I don't think anyone disagrees on the effects of the filibuster on judicial noms. And I thought, huh, I wonder what Mike would say about this. And then I was like, I don't need to wonder. Let's invite him on the podcast. Fraggs. And I'm so excited to happen because I saw that Twitter exchange also. And I thought, just like you did, Sarah, yeah, of course. I would say the only thing that was surprising about it was the more credentialed part

of it, which feels like an interesting twist to it that I hadn't exactly anticipated. But yeah, let's talk about it. Fraggs, welcome to the pod. Thanks so much for having me. I'm excited to be here. You guys are doing great work. And so yeah, happy to talk about this issue. I think it's kind of misunderstood. And so I think it'll be a good opportunity to sort of have at it and see where we come out. And just to underline, you write for National Review. Anytime you're writing something about the NOMS process, it is a tablet handed from on high as far as I'm concerned. Do you want to expand on the effect, the history, the effect of the filibuster, et cetera, because it is true, right, that the filibuster was not really used for judicial noms until really the Bush administration. So like the other part of this that I get pushed back on is like, well, your distortion that you like so much, sort of a pop-up, you know, restaurant at most. Yeah, exactly. It's a legislative food truck. No, yeah. So, I think with the filibuster and the judicial filibuster in particular, you've got two general issues at play.

One of them is just Senate procedure generally and the other one is sort of the policy outcomes that come from that. And so as you're saying, in terms of Senate procedure, it really is this 10-year blip in the course of the Senate. It's really kind of a historical aberration because it just wasn't used traditionally. nominations weren't even part of the cloture process until like the 1949 amendments to it and that was kind of by accident. And so that's because they just didn't use the filibuster for nominees. Abe Fortis is sort of the only real example of that when he was nominated to be Chief Justice, but that was bipartisan and it had to do with his atrocious personal ethics.

It wasn't really ideological. And there are reasons for that, right? Like during the civil rights era, Southern Democrats controlled the committees. You had guys like James Eastland running the Judiciary Committee. So even if they wanted to filibuster somebody, they didn't need to. They could just bottle up judges that they didn't like in committee. And that was sort of generally how it worked. Can I push back on that or give an alternative version of the history?

Okay. Your version's factually 100% correct. But isn't another version of the history, the filibuster did exist. There were just always 60 votes for cloture. So you never heard about the filibuster because nobody ever invoked cloture because they knew there'd be 60 votes. They didn't invoke cloture because they just, I mean, as a practical matter, they'd get timing agreements on these people to just go to an up or down vote. Right. But like that doesn't mean the filibuster didn't exist in some sense. It existed.

It was just never used. Because it didn't need to be because there was this bipartisan agreement on these judges. Not by both. So the example McConnell always uses is Clarence Stomitz, who was confirmed with 52 votes. Nobody even thought about increasing that threshold to 60 to try to stop them. Robert Bork went down on an up or down vote. nobody tried to filibuster him. It just wasn't done. Okay, wait. Let's back up for a second to explain this, because we're really talking about two different votes. There's the process vote and the merits vote, right? So what you're saying is Clarence Thomas on the merits vote got 52, 53 votes. There was no process vote, right? The process vote comes first. Process, do we want to vote on this nominee? That's where you need 60 votes.

The merits vote is always a 50 vote. Well, to proceed to the nominee is at 50. And so the question then becomes, is there going to be a filibuster? And, you know, in the old days, people would stand up and start filibustering. These days, they just refuse to give consent to the order that sets up when the vote is going to be. It's a little more formulaic now. But simply at no point in basically until 2003 were people saying, we need to have 60 votes for these nominees. You know, I'm a month or two older than y'all, I think. And so I have the memory of this time before

the Bush administration. And was there such an era? There was a time. I will tell you, it was amazing. You wouldn't believe the hair and the clothes. They were something else. But I've been reading Bill Bryson's a short history of nearly everything 2.0. He's like revised the whole thing to update it. So I'm actually back in like primordial swamp era, the 10 to the 27th power negative, like, so 0.270s 1, second after the Big Bang. So that's where I am right now in my reading. Oh, okay. Well, I will tell you, I only have the vaguest memories of that time. That was very early. But during my adult life, I know exactly what y'all are talking about because it was, you know, here's, you know, here's that dreaded word that nobody likes to hear anymore, a norm. It was a custom. And then one of the

things that I became a controversy, though, especially in the Harry Reid era, was there was a lot of back and forth about how much was the filibuster really being used and how many times were just cloture votes being invoked. And then the fact of the vote being used as a of a symbol of look at what we're having to do, look at what they're doing to us. This was a controversy, you know, 10, 15 or longer than that. Gosh, time flies 15 years ago or so about how much was the filibuster actually legitimately invoked with appellate court appointments. And so that's a question that I have.

How much was the threat of filibuster a threat in the Bush era and the Obama era versus a reality in the Bush era and the Obama era? Yeah, that's a great question. I mean, it all does come from that era. So what winds up happening is after, you know, George Bush stole the 2000 election. Chuck Schumer has Lawrence Tribe and Cass Sunstein to go meet with the Democratic Caucus in Farmington, Pennsylvania, and explain, actually, no, you should be using the filibuster to prevent George Bush from putting extremists like Miguel Estrada, Jeff Sutton, John Roberts, and Priscilla Owen on the Court of Appeals. And so come 2003, when Republicans retook the Senate, they filibuster distrata. And they tried to break the filibuster many, many times for him and for some others. And they just, they were not able to invoke cloture. But the ones that they filibuster is probably a, I don't know, a half dozen or so Bush picks

that they actually frist would go down and try to invoke cloture to break the filibuster on them. And then when the shoe was on the other foot with Obama, there really were only a handful that McConnell stopped using the filibuster. And so you've got Goodwin-Lew, Caitlin Halligan for the D.C. Circuit. I think Robert Bachrack on the Tenth Circuit was stopped with the filibuster, but that was just to enforce the Thurman rule. It wasn't. He eventually became a judge. But when it became clear that they were going to focus this effort on the D.C. Circuit, that's when Harry Reid said, you know what, we need our people on the D.C. circuit. and he went through with the nuclear option. And, I mean, the other thing that was happening is that there were background negotiations

to smooth over the process to avoid that from happening. So the Republicans made various concessions short of abolishing the filibuster. So they reduced post-closure time to like eight hours. So whenever cloture was invoked, it wouldn't take like two days to get somebody confirmed. And so I think part of why they were also angry at Harry Reid is that they were actually offering concessions for him not to nuke the filibuster, and he did wind up doing it. And on one hand, everyone, all the Republicans were very angry about that. But at the same time, I think McConnell would say it returned things to normal. And to your point earlier, David, about norms,

I mean, he had a line from around that time that he said, he described the judicial filibuster as a lot of things that you could do, but you don't do. And it's a question of tradition that you just, yes, you could be filibustering these people, but simply nobody did it until Chuck Schumer started in 2003. Okay. And then you've got a decade there where that was the norm. And to sort of your point at the beginning, Sarah, I think it leads to some interesting comparisons in terms of who wound up getting through during the filibuster era, especially

compared to the post-filibuster era. Okay. So I think there's two different ways of seeing this history. One, and again, I think both have plenty of evidence for them. One is that the filibuster era is a blip on the history. And the other is that the filibuster is the culmination of these decades of escalation on judicial noms. That, you know, maybe they start with Abe Fordus, probably more that they start with bork. And that it was always, the temperature was always going up.

And the filibuster is just one of the ways in which the temperature went up. So it was like the end point, if you will, of this long history of judicial nom war. wars. Let's set that aside. Now let's talk about, as you say, comparing the filibuster judges to the non-filibuster judges where actually, I don't know that we have any disagreement. Will you tell us what you mean by like better credentialed or, you know, I think we know what younger means. It's whatever David French isn't. Yeah, I'm I'm way aged out of the judiciary at this point. Way, way. I mean, hell, Fragoso and I are aged out because we're not in junior high anymore. Our kids are becoming eligible.

So I ran these numbers a little while ago, and so looked at the first 11 confirmed judges on the circuits, not counting the federal circuits, like the regional circuits, for Trump 47, Biden, Trump 45, Obama, and George W. Bush. And so with the most recent batch, so the Trump 47 judges, about 55% of them want to top. top 14 law schools, 82% of them got high honors or higher in law school. 36% of them were at the top of their class. 64% were on law review. Over half, 55% were SCOTUS clerks. 82% of them were circuit clerks, and 82% spent time in big law. And so I think that's kind of, if you want your sort of Fed Sock Bell ideal of a judge, it does really well in law school, has prestigious, just clerkship spends time in big law and ideally has also some sort of political experience too. These are the circuit noms, right?

Percit gnoms, yeah. The senators always have so much influence on the district. It's really, you're comparing apples to wheelbarrows. Totally. Totally agree. For Biden, you don't have the same sort of academic credentials because he was controlling for other things in that context. but 82% of them went to top 14 law schools, still 18% of them were Scotas clerks.

73 clerked on the circuits, and they were often for, you know, liberal lions like Marsha Berzon people like that, but they're still very prestigious clerkships. 73% were in big law. And 45% of them had prior judgeships, which is more than most of the Trump numbers. Trump 45, you've got 73% of them want to top 14 law schools. Fewer had high honors. It's 36%. But still, same as now, 55% of them were Scotus clerks, 82% of them clerked down the circuit, 82% had big law experience.

So that's all the same in 45 and 47. So if you go back to Obama, Obama and George Bush had virtually identical numbers for their first 11 confirmed. And so for George Bush, you have to be careful because his first judges that he nominated were the ones who wound up getting filibustered, right? The John Roberts is, the Jeff Sutton's, and they're all very different. And it took them a lot longer to get confirmed because of the philobstead. blabuster. The ones who actually wound up getting confirmed, a little under half of them went to top 14 law schools. 18% of them had high honors. 18% of them were on law review. So they all didn't do as well at the beginning of their careers. None of them were Supreme Court clerks. 27% of them were

circuit clerks in both instance. So that's like about a quarter of them compared to now when it's like four-fifths. Only about a third of them had spent time in big law. And in both cases, 10 out of the 11 had prior judgeships. And so clearly, in order to try to get to 60, what you do is you control for people with prior judgeships because them, you know, people from the opposing party can say, oh, you know, this person, he's fine. You can tell him, like, he's got a record. He has a good judicial temperament or whatever. I think an under-remarked aspect of that is how do you get a judgeship? There's a political component to that. You kind of have to be, especially if it's a state judgeship, you have to be pretty politically savvy and well-known politically. And so that also

factors into it. You don't have to necessarily be well-known on the Federal Society Circuit or on the demand justice circuit or like the ACLU or whatever. You have to be well-known in whatever your state capital is. And so I think what you wind up seeing is, again, Biden controlled for something slightly different than Trump in terms of what they were looking for credential-wise. But all told, both Trump and Biden were trying to find people with sort of inside the beltway in Disha of talent in terms of like clerkships, time spent in big law, good academic record, and putting them on the court of appeals to try to move the law either to the left or to the right. Whereas, again, in the filibuster era, they just didn't necessarily do that and wound up being

sort of, not to say, like plenty of these Obama picks. were perfectly left wing while some of these W. Bush picks were perfectly right wing. Some of them are also just honestly people that haven't really made much of a mark on the law one way or the other, whereas I think you're just going to have a really hard time saying that, you know, Amy Barrett and Amulahapar and Joan Larson and Becca Tabelson and Eric Tongue, or on the other hand, Beth Robinson, Toby Heighton's, Katanji Jackson, aren't having a significant effect on the law in the post-filibuster era. So when you talk about all this, which is so interesting and helpful,

it sort of paints two different pictures of a profile of a person who's going to sort of walk into a senator's office and be sort of that that senator's person to put to the president of their party. So now it feels like, and this is also part of the cultural of the culture of the Federalist Society that a lot of people think of the Federalist Society as a culture of connections. In other words, this is a bunch of ideologically aligned people who meet each other, who get connected, et cetera. But also, in a large part, because of its origins and being rooted in an ideological minority, especially in the big elite law firms, it's also a culture of excellence. you have really had to, and this was a part of the Fed Sock from the beginning, was essentially we have to prove ourselves.

You know, we have to prove ourselves every day in the classroom against an overwhelming sort of consensus against us. And there really was sort of this culture of excellence. So what you're describing to me is almost like an ideological slash academic delta force now. And then what you're talking about in the process, previous world would be one where you're looking at people for whom there is an opportunity to build a consensus around them. And so this is where you've got things like prior judicial

experience so that you've got people from across the political spectrum, who've interacted with them and would vouch for their fairness, for example, as a judge. We're talking about them being adept at state politics. So these are people who would be very much known quantities to the entire political establishment on both sides. of the aisle. You know, when I was a younger lawyer, I could peg immediately who some of the potential future judges were because they were people who kept their cards close to the vest and also often opened their wallet, not politically, but civically. Historical societies, civic associations, all of this, where they're becoming sort of an elder statesman or

stateswoman in their community. That very much aligns was the exact profile you're describing, somebody who's spent more time out there, who has had perhaps more experience where both parties can watch them adjudicate, both sides can watch them adjudicate. But at the same time, it is now making total sense to be the credentialing difference, because the credentialing doesn't necessarily grant you sort of that political skill. That's a different skill. But that political skill is more distributed up and down the academic ladder of making these relationships, creating these sort of longstanding professional reputations, and that also adds up for age because you're trying to establish a record. All of it makes so much sense that I'm so curious as to how you got pushback.

I mean, I think that's exactly right. And you still see some of that. In particular, a decent number of southern states. So Sarah mentioned the Arkansas. vacancy. I think it's arguably a play there, but then there's other, we've had other southern states too where the judicial nominees are the ones who aren't federalist society members. And this, in this day and age, the senators will get pushback on that. And their response will be like, yeah, it's called the Biloxi Bar Association. Like they're a lot of Democrats in it. And fair enough. And they're all Republican, sure. But to your point, David, It's different in order to thrive in a, you know,

southern one-party Republican Bar Association, the sort of skill set and intellectual skill set's very different than thriving in sort of federalist society circles and thriving in the kinds of jobs from which, especially the Trump administrations, have been picking these people, right? If you're a, you know, Republican Solicitor General in a red state, there's five more Clarence Thomas Clerks standing in the corners

like waiting to take you out and take your job if you screw up or if you're not working hard enough. And so it's a competitive environment and it controls for a certain level of excellence. Okay. So here's my takeaway. We've got two bundles of sticks. And the post-filibuster bundle of sticks has some really positive things in it, or to phrase it differently, the during filibuster bundle of sticks had some negatives. Basically, the bundles come with some pluses and minuses. For instance, something that I didn't like in the filibuster era was this keep your cards close to your vest. I don't think anyone is going to defend that as being a positive attribute of the filibuster era. Like, don't write anything down. Definitely don't tell your opinions to anyone. You know,

when you're at a bar, like, make sure not to take that second shot of tequila. Like, everyone needs to calm down on that. And that personality attribute of someone who is good at that is not a personality attribute, I think, that I admire in people, generally speaking. That being said, in that same bundle, the idea of having older judges with more just life experience and particularly, like, judicial experience, I think was all to the good, actually. You know, they don't need to stay on the bench forever. I don't, I'm not quite sure why I see that as a good thing. Like the Republican and Democratic presidents have been switching off. So this idea that we need someone on the bench for 50 years doesn't make a lot of sense to me actually. And one of the biggest benefits to me is this idea. And I know this is like a little bit. It's like one of the sticks in the bundle had a baby and that's the stick that I'm focusing on. It's like not even in the bundle. It's just a byproduct of the bundle is the way that folks who want to be judges, behave. toward one another and the incentives that it is set up to have a, you know, as I've described it, a primary election versus a general election, they're no longer trying to show that they are

judicious, that they will evenly apply the law, right? The whole point is that you're fighting a primary. You're fighting those other five Thomas clerks that are sitting behind you and the incentives are all to say, like, I will be the craziest member of the Mujahideen. That's a tremendous image there, Sarah. I think that has been bad for law students because they sort of mirror the behavior they see above them at the most extreme way because they're law students and they think, you know, they're the ones doing dorm room originalism and trying to sort of act out what they see as successful behavior of their elders. On the flip side, also on the credentialing thing, I want to throw this out there. I hear you on the credentialing. I see the benefits.

David has talked about this, right? We have better writing on the courts today than we have ever had in the history of the United States. But that tradeoff to draw from such a tiny, tiny pool of very unrepresentative people, the types of people who can get Supreme Court clerkships, and I've run through this before, right? Let's back up from the Supreme Court clerkship. You needed multiple clerkships around the country from prestigious judges, which means you were able to move around the country every year, unlikely, less likely, to have a family or need immediate income.

You had to then go to a top-tier law school to get one of those clerkships. That, of course, has all sorts of, you know, selection bias over who can get into those top schools. You probably had to go to a top undergrad to get into one of those top schools. That has selection bias. It's like all the way down, we're narrowing and narrowing and narrowing the types of people who are even then eligible to get these jobs. judgeships. And I think it is bad if the judiciary moves further and further away from normal humans. I don't want purely normal humans, right? Everything in moderation. I don't want us to like

pick randos. But yeah, sometimes the Biloxi Bar Association might have someone who's just like more human and I want one of each. I want a Biloxi Bar Association and I want a Fed Sock Judge and they should be on panels together and they can think this through. I don't want all of one or all of the other. Those are fair points. I guess I'd say a couple things in response. One is, I think it's one of the more interesting aspects of, especially this Trump administration, is the diversity in terms of where these people are coming from. You have one of them who went to Yale. And that's the only like Harvard, Yale Stanford graduate that they put on the Court of Appeals. Only about half went to top 14 law schools.

You've had like two or three of them, went to George Washington, Justin Smith, went to like Missou, Mack Traynor, went to University of North Dakota. So they're finding people from all over the place in terms of where they go. What they all have in common

is that they did really, really well when they were there. Okay, I like that. They worked at court students. Yes. And they tend to come from also just sort of different professional backgrounds. But wait, didn't you say 82%

or Supreme Court clerks? About, no, it was six out of 11, so like 55%. Oh, okay. 80% were circuit clerks. That doesn't bother me as much. So I think the Trump administration, it's kind of in the more in the Clarence Thomas Sam Alito approach to hiring, and I think also to a certain extent Amy Barrett, frankly, where they're just not, they want to make sure that the people have the candle power to do it well.

and they're not assuming, like some other justices, that only people who go to Harvard, Stanford, and Yale, and maybe a few people at Chicago, have that record with it candle power. So I think that's a good way to do it, and I think that's the way they have been doing it. To your point about the sort of extended primaries and the problems there, I mean, yeah, I take your point there,

and I think there's a couple of things going on there. One, it's good that we have people like Senator John Kennedy, on the Judiciary Committee, who has essentially your view, and it took us in the first Trump administration when I was working judges at DOJ a long time to sort of figure this out, that he is open about it. He wants people who are like, as he sees a real human beings, he wants them to understand economics.

He wants them to understand politics, but not be political. He wants them to know history. He wants them to know the law beyond sort of, you know, computer-generated originalism. That's why he asks them, like, theoretical questions about originalism. that sound like he doesn't believe in it. And it's not that he doesn't believe in it.

He just wants them to think. And so as long as he's there and actually applying this with equal measure to Republicans, as he usually does, I think that's a good thing. And I think there should be more of that. The other point is there's a guy who I worked with in the last Trump administration, and he worked to good work in this one to Gene Hamilton. He's at America First Legal. He wrote an article, or maybe it was a series of tweets,

about how he thinks the goal, of all the young federal society types to become judges has been distorting. And that a lot of these young people, when they're in law school, they go to law school and sort of like you're saying, Sarah, they do their dorm room originalism debates. And when they get jobs with real responsibility or showing that they are, you know, no, I'm to the right of a bin Laden. You can trust me to truly take a, take dynamite to the administrative state or whatever. insofar as that's their impulse,

it's not necessarily an impulse we want for the bench. But I would have loved more effective guerrillas in the Senate. They should go work there or go work in an administration. The fact that people have been sort of pushed towards the judiciary over the last 30 years within the conservative legal movement, But on one hand, it's good because it means we've gotten, as you were saying, and you and David were saying, like, some of the best judges we've had ever, that's not going to go away. But maybe we should have some people think about other options, too, if they want to be in public service, if they want to advance conservative legal views. And I think Gene made a really good point about that, that, like, people should maybe broaden their horizons a little and not just necessarily focus on competing to get the circuit judgeship. You know, that also raises a Congress-do-your-job question to just return to the greatest hits of this podcast. Because if you're a young and ambitious and smart, talented, conservative, where do you see you're going to have impact in the real world?

Well, right now, the judiciary is, you know, it's firing on all cylinders. I'm not going to say it is, you know, it's doing his job perfectly. but I think, as Sarah and I have discussed many, many times, this is a branch of government that is doing its job. This is where, if you want to be in government and you want to see how government is supposed to work, I would encourage people to spend time in the judiciary, watch the judiciary. And so I do wonder if sort of the sheer functionality of this branch of government and the sheer effectiveness of this branch of government relative to the legislative branch is also, and no shade to those who are doing yeoman's work, trying to elevate the legislative branch to his proper position.

Those folks are out there. We see you. We hear from you. But I do wonder if there is some problem, branch-wide problem, with attracting talent. Oh, I don't know, though. Like, yes, and is my thought about this, David, which is there is also this problem where if you see the people above you

who are getting treated as the winners of, of whatever we call the gold star, you know, grabbing things. And it has been this like very specific path. You go to a top tier law school. You clerk at the Supreme Court. You become a state solicitor general. That one being relatively recent in the last 20 years. And then you become a federal judge.

And this is, you know, Judge Jim Ho's point on the Fifth Circuit. And he's like, why are we treating these judges like celebrities? It distorts the whole thing. they shouldn't be the end all and be all of one's, you know, the apotheosis of a lawyer career. And Fraggs, I think that's your point, is that like, maybe we've played out that path a little bit much. I think part of it is also it's an understandable path, right? Any first-year law student can understand, do well, make law review, go to a law firm, get a clerkship, go to big law, become a state deputy S. become a state SG, then become a judge.

Like it's, you know, like the German or Japanese judge path, right? Where you do really well in school and the judiciary selects you to go down the route to become a, you know, court of cassation judge or whatever. It's kind of like that and it's understandable. Whereas like the administration, like the agencies, it's hard to figure out what you do there and where you go and like what the, there are lines of authority. but especially in this day and age, they're blurry. It's all about reading the power of the moment effectively.

Congress can be similar. I've had superb lawyer friends of mine who joined me in Congress, and they'll ask me, like, is there anything I should read about how to do this job? I'm just like, master of the Senate. Yeah. I think basic rules apply. Read Marty Gold's book on procedure, maybe read Riddix. But no, there's actually nothing to read about this.

because even the point about Congress not doing as much as it used to, a lot of what it does, just nobody sees. And if you're there and you have a boss who's willing to give you leeway to do it and you have the capacity to put in the work to do it, you can actually have considerable influence on a lot of different things that nobody notices. But again, that's not obvious. And it's even hard to come up with examples of it. And so it's just opaque, misdemeanor. serious world in the administration, in Congress, we're asked on the judiciary.

Like, we all know how that worked very well. Very fair. And you have these poster children. Ted Cruz and Jeff Sutton are the two that I will pick out, although I think there's plenty of others that like, oh, and they are prominent and they are respected and they won the gold stars and everyone treats them like they won the gold stars. And we need the poster children for these other paths, which is maybe, maybe why you're on this podcast. Hey, but before we let you go, I do want to ask about this other thing that we haven't

talked about at all on the pod, and since you are master of the Senate, as far as this pod is concerned. All right. When we get back, we will talk to Frags about CRAs and the legislative filibuster. Health check, the Congressional Review Act of 1996. CRAs. We've actually not talked about that on this pod at all, this power of Congress that they have? Will you explain what CRAs are? Are they being used? Can they be used more? Is this a good thing? Teach us, oh, Frag one. They're a great thing. They're a product of New Gingrich's Republican Revolution. And the idea is that federal rules get sent to Congress and then Congress can repeal them. And not only can repeal them, but it can repeal them such that no substantially similar rules in the future

can be enacted. So what that means legally is currently being tested out in the Sixth Circuit. There aren't a lot of cases on that. But at least in theory, it's pretty big. And the way it's worked out. I mean, this sounds like it kind of replaces Chata and the legislative veto. That was going to be my question. It's in response to Chata, but it goes through bicameralism and presentment. And so we did them all the time under Biden. And if we passed them, he'd veto them. And so they're really just messaging vehicles when you have divided government. But we did a whole bunch of them in the first Trump administration, probably about a dozen, just killing a bunch of midnight Obama rules. And they did a whole bunch this administration, killing a bunch of midnight Biden rules. The way it works is that

there's a look back window where you can get privileged status in the Senate. So it's not subject to a filibuster. And because of that, you wind up doing a lot early in an administration because you have that lookback window available. Now, if they were to do it, if anyone's bringing up CRAs for the most part, we can talk about this, there are Trump rules that they're trying to take out. And anyone can do it, so you can't stop them from doing it, but they just get vetoed in the end. What wound up happening is last time, about a year ago, Congress went after some California Clean Air Act waivers. And so under the Clean Air Act, California basically gets to ignore the Clean Air Act.

And they got an exemption to deal with smog in Los Angeles because they might need more stringent rules than everybody else because of SMOG. They've used that to sort of do green policies that apply nationwide because other states can piggyback off the California regulations. And so they had an electric vehicle mandate that was essentially going to put like trucking out of business. and they never sent that over, that waiver over to the Senate. And so the Trump EPA sent it over, and the Senate then killed it to kill that rule.

And so now using that precedent, I think we will start seeing some CRA action because they sent over a half dozen similar California rules just over the last month or two to the Senate. More green auto stuff. There's one that's essentially an import tax that California puts on everything using green rules. for one, ocean-going vessels dock in their ports. There's one about small engines that would, you know, basically mean that you can't use a good leaf blower. And I think Senator Houston's got that one.

And so I think we're going to be seeing some action on that. And it's good because, you know, to your point, David, about, you know, Congress not doing as much. Is this writing new legislation that will, you know, Save America from all the illegals distorting our elections or whatever it is that they're supposed to be doing. No, it's not that. It's actually doing things to help people get by by not paying higher prices due to an import tax that California is putting on the rest of the country. It's letting people do their yard work without having to go buy new machinery, right?

It's actually dealing with the cost of living problem that Republicans are sort of staring in the, the face and not doing much about and using their power to do it. So I think we'll see some action on it, hopefully, and I think it's a good thing. So I've got a, since we've got a master of the Senate here, I have to, I have to, if you've got a couple more minutes, what is in your view the health of the current iteration of the filibuster? And by that, what I mean is for the first time in a while, I know there's genuine bipartisan pressure. So, you know, when Democrats are in charge, We have heard a lot of rumbling about Democrats getting rid of the legislative filibuster. Recently, we've now had some Republicans talking about getting rid of the legislative filibuster

or modifying it in some way to pass the Save Act. So you're starting to see some pressure coming from different directions. What do you think? Current filibuster, is it healthy in the sense that it's going to survive and persist through this current pressure? or is it going to be reformed in some way, putting on your sort of Nostradamus hat, or potentially abolished? What do you feel, what do you think the trajectory of the filibuster is right now? I think the short-term trajectory is about the same that it's been. To your point, this is, there's a lot more bipartisan opposition to it than there used to be.

Last time around, Trump was constantly telling McConnell, get rid of the filibuster. McConnell was constantly just saying no. And that had probably near universal support among his members. Now that's clearly not the case. I think it's very hard to really game out what the numbers are. Senator Kramer had a great on the record interview where he was like, well, I just don't want to get rid of it. And I know most of my colleagues probably agree with me.

But they're just unwilling to say so. And so I think what's happening is the same kind of pressure that Schumer put on the Democrats with like HR1 they're trying to put on Republicans on the Philbuster for the Save America Act. And what Schumer wound up doing is making a lot of people who did not want to do that walk the plank. And I think it's an open question how many of them really were relying on cinema to save them. We talk about this with the Supreme Court, right? Being the fifth vote is so much different than being the sixth or the fourth vote. Exactly.

When Kamala Harris said she wanted to get rid of the filibuster to codify Roe, a lot of the people who voted to get rid of the filibuster just a year or so earlier, we say, absolutely, that's the worst idea I've ever heard. Why would we do that? And cinema would then roast them on Twitter. But I think it speaks to more sort of shy Tory support for the filibuster, even among Democrats, than you might figure, which means that the argument that we have to get rid of it now, because they're going to do it to us, doesn't really fly. And at the end of the day, just the democratic ideological agenda allows them to do so much more with the legislature that's structural and lasting. But we're still fighting about Obamacare stuff, right? From the last time they had 60 votes,

what, 15 years later, Republicans for the most part want to get rid of things or we don't have states we want to add. And so there just isn't the same level of upside to getting rid of the filibuster on the Republican side. Now, I do think that the way the Senate is working these days is not ideal. And I think it could bear some thoughtful reform. I don't think that thoughtful reform is like go back to the talking filibuster and make them work. There's just a whole bunch of problems with that. Senators themselves just won't stand for it first and foremost. But I've written about how get rid of staff holds back in the day when extremely important senators like Jesse Helms were holding a bill, they'd have to actually, Helms,

would be sitting on the floor for days on end protecting his hold. And nowadays, you call somebody, that person calls somebody else, that person calls the cloakroom, and they just put it in a computer that this bill is being held. This is like the filibuster. Do the work. Yes. If you believe in this, if you, like, be a goose with your eggs. Like, get out there and honk and protect your eggs and go bite people occasionally. But if you're not doing that, I guess I don't believe you. There's absolutely no downside risk to holding things. And because everything winds up getting held, everything requires cloture, which means nothing happens. So the only way things get passed, either cloture, which takes a week or two, or it gets tacked on to a spending vehicle, which requires leadership. And so the other

things, if you've got somebody there on the floor having to defend his hold, the other side's going to talk to him. And maybe whatever it is can be improved, because that's the other thing about the - Or they offer him something. Or they offer him something. Like, that's the other problem with the filibuster for judicial nominees. It's like my old staff director on judiciary, Lee Holmes, says you can't amend a nominee. That's part of why the whole thing just doesn't make sense. But with the actual legislative filibuster, it's in part to stop things, but it's to stop things to improve them. And the current system just doesn't have those sets of incentives. Another idea could be like come up with different cloture thresholds. If something gets 80 votes,

maybe you just immediately move to passage and you don't have the intervening 30 hours or whatever. Or move to passage with three amendments in order, right? You can structure whatever you want. But there's no reason why stuff that has not only super majority, but like super super majority support can't pass just because, you know, Senator Paul or Bernie Sanders doesn't want it to pass. Mike Fregoso, this has been illuminating and a treat. And all of the superlatives that I have to offer a first-time guest of advisory opinions,

you know, you're a first-time in-person guest. We talk about your writings frequently and quote you. But it's so much better in person, and I hope you will come back. I hope you invite me back. This has been great. Thanks for having me. I got to say, I was looking forward to this. Did not disappoint.

It was so educational, so illuminating, very much appreciated. Mike Fragoso, aka Frague. a.k.a. The Frags. Which, by the way, that's a great nickname. It's a, yeah. When he's walking down the hall, like, you know, you know, there goes Frags. Well, you know, when you have the kind of nickname that would not be out of place stenciled on a fighter plane cockpit.

Yes. That's a nickname. That's a nickname. Thanks for joining us. Thanks, guys. Well, David, I feel like I actually learned a lot. Totally. Absolutely. Absolutely. I did. Yeah. I mean, you know, it's always interesting when you have a theory, when you have an idea, and then you have actual data. Some of it, as we said on the beginning, totally backed up our instincts. And I was surprised by the credentialing. But then once he talked through the process, made a ton of sense to me, that you're adjusting for different sorts of skill sets. You're looking for different kinds of things. And so it just made a ton of sense. And then to have the bonus content around

the CRA and the actual health of the legislative filibuster was really interesting. I feel like Mike Fregoso convinced me that the judicial nomination process is healthier than I thought it was? I, you know, I kind of got that as well, to be honest. Now, I was very pleased that he also seems to dislike the auditioning, which... Right, right. I think we all agree, but it's like, but the law students are actually wrong. Like, they think they are reacting to the incentives above them, but when you actually look at the numbers, they're not picking those people.

The law students are wrong. And I'm using law students kind of as a stand-in for like law school through 30-year-olds who haven't done much who aren't eligible yet to even be considered for these positions and the types of behavior and choices and everything else that they're making that actually like, They're all shooting themselves in the foot, which I don't like either. I want these guys to correctly perceive what's happening ahead of them in line so that they don't act this way now. But eventually, like, incentives do work. I believe that. So maybe they'll realize that their brethren aren't getting picked for these things and be like, oh, well, then maybe we shouldn't be acting like this. Yeah, yeah.

No, that's a very, that's a very, very good point. And, you know, also I thought it was interesting that he brought up that, wait a minute, this actual judicial filibuster phenomenon is kind of the blip. The reality for much of American history is no judicial filibusters. Now, the part we didn't get into because- But that's because they weren't controversial. Exactly. Like, presidents were sending a nom for the Supreme Court, and that person was getting confirmed the same day. So I don't think it's totally fair to say there wasn't a judicial filibuster.

there wasn't a need to invoke cloture because you were voting for the nominee or you were going to vote against the nominee, but you had no problem with that person getting on the bench. You just were going to vote against them. That's all on the merits. That's different than what the filibuster then ended up like coming into for. Well, and he also, because this wasn't what he was looking at, but he also didn't extend the analysis further back to the pre-abolition of filibuster, pre-filibuster, pre-filibuster. world, what were the norms regarding the profile of candidates who are coming forward in the pre-Bush era? So that is something that wasn't part of it. He wasn't looking at Reagan 1, Reagan 2. He wasn't looking at Carter at Nixon. And so much less looking earlier than that. So there is kind of a missing data set, was there a substantially different kind of person who was coming up in what we'll call the Norms era, followed by the filibuster era, followed by the abolition era. Yeah, good point. Good point. Well, we got to have him back on. I mean, if we're going to sit

here and say, Congress, do your job, we need a Congress expert. Yeah. And he is a great Senate expert who is thoughtful about this stuff. And maybe we'll find ourselves a House expert, too. I have someone in mind, but we're going to put a pin on that. Oh, I would love that. I would love that. And just Frags, may I call you Frags? I know you're probably, might be listening to the very end of the podcast. Extend the study. Go to the pre-filibuster norms era and tell us what those candidates were like. You don't have to do it forever, just for a few administrations.

I thought you were going to say, you don't have to do it tonight. I mean, it can wait until tomorrow. No, no, it has to be not now, but it doesn't have to be, you know, for an extended period of time. Drop that baby. Get to work. All right, David. See you for the next one.