Advisory Opinions - The Access Grift

Episode Date: November 22, 2022

As rumors swirl about another Alito leak, David and Sarah examine DC’s corrosive obsession with “access.” They also discuss the DOJ's appointment of a special counsel for the Trump investigations, revisit their discussion of protective orders, and ask whether we should care about law schools pulling out of the US News & World Report.  Plus: get your bingo cards ready! Show Notes: -AO Bingo -Lincoln’s Thanksgiving proclamation Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isker. And I always say this, because I always mean it, we've got a lot to talk about today. It's going to be an action-packed podcast. Not so much analysis of legal cases, but some events, some events that matter in the law. So we're going to start with a super fast correction. We're going to go to a big New York Times piece over the weekend,

alleging a leak in the Hobby Lobby case from years ago. We're going to talk about the Trump special counsel appointment. We're going to talk about law school after law school dropping out from the U.S. News and World Report rankings. Also, if we've got time, we're going to talk a little bit more about protective orders and end with bingo. Bingo. I'm just going to not tell you what that means yet.

But Sarah, before we get to the New York Times and the Alito leak allegations, we've got a super fast correction. Oh, David, I fell for the oldest trick in the Texas book, Judge Pittman versus Judge Pittman. Look, Judge Mark Pittman of the Northern District of Texas, Fort Worth, is the one who wrote the student loan opinion

that we talked about last week. He's got two Ts in his name. He is a Trump appointee, all of that. But Judge Robert Pittman from the Western District of Texas in Austin wrote that SB8 opinion that I attributed to the Pittmans writ large. However, I was actually messing up which Pittman opinion I was referring to. Again, Pittman with two Ts who wrote the student loan opinion, because my overall point was that sort of ideological consistency was worth noting when we saw it.

Judge Pittman with two Ts. The Trump appointee was the one that rejected the lawsuit from the United Airlines employees asking for the vaccine mandate to be enjoined. That wasn't brought to the Fifth Circuit. Two to one, the Fifth Circuit upheld rejecting the United employees who didn't want the vaccine mandate by a company. So the same Trump judge appointee who enjoined the student loans is also the one who rejected sort of some of the vaccine stuff back in the day. But yeah, I screwed up the Pittman versus Pittman. And thank you to all of you in Texas who let me know.

You know, I feel like the two Pittmans should come up with some nicknames or something. Yeah. Because that's just hard. Yeah, that is hard. But the two T's versus one T, at least there's that, right? That's just hard. Yeah, that is hard. But the two T's versus one T, at least there's that, right? That's right. Well, whether it's the pronunciation of Belknap or confusing our Pittmans, we like to get things right at AO. So thank you for letting us know.

And when we get stuff wrong, we'll correct it. Let's talk now about a story that kind of lit up the online world over the weekend. And it's a story that is both long and short. So the short part of it is that it's essentially a claim by a guy I know, Rob Schenck, who was a very longtime pro-life activist, who's kind of switched sides from conservative to progressive on a lot of counts and has become very critical of the current Supreme Court and become very critical of the pro-life movement, very critical of sort of conservative evangelicalism writ large. And he came forward to the New York Times with an account. The long part of it was sort of his account of how in his previous conservative days, he tried to influence the court. And that's

a longer conversation. I think a conversation actually worth having now, but that's sort of the longer part of it. The short part is this, and I want to read you the short part and Sarah, get your reaction, and then we'll have the longer conversation. So here's the short allegation. In early June, 2014, an Ohio couple who were Mr. Shank's star donors shared a meal with Justice Alito and his wife, Martha Ann. A day later, Gail Wright, one of the pair, contacted Mr. Schenck's star donors, shared a meal with Justice Alito and his wife, Martha Ann. A day later, Gail Wright, one of the pair, contacted Mr. Schenck, according to an email reviewed by The Times. Rob, if you want some interesting news, please call. No emails, she wrote. Mr. Schenck said Mrs. Wright told him that the decision would be favorable to Hobby Lobby. This was the case where Hobby Lobby was challenging the Obamacare contraception mandate,

specifically challenging the requirement that their health insurance plans cover some contraceptives that could potentially also be abortifacients. Okay, in sidebar, Ms. Wright told him the decision would be favorable to Hobby Lobby and that Justice Alito had written the majority opinion. Three weeks later, that's exactly what happened.

The court ruled in a 5-4 vote that requiring family-owned corporations to pay for insurance covering contraception violated their religious freedoms. Sarah, what was your reaction to this part of it? I know you read the whole thing. We'll dive more into other parts, but just as an entree, what was your thought about this?

Well, the whole point of this story was to insinuate that the leak of the draft opinion and dobbs came from alito himself but this story has no relevance to that at all to me um first of all even assuming all of that is true and we'll get to why I don't think it's all true here in a second even assuming all that's true wildly different for someone to wink and nod about the outcome of an opinion where you don't really know anything else about it versus the draft opinion leaking and being published right like yeah proving the one in no way as any evidence for the other in my view, but on the substance itself, um, people misunderstand things all the time. You know, David Latt was saying that he was writing a sequel to his, um, fictional thriller about the Supreme court. And in the sequel, it's going to have a lot to do with the Dobbs draft. And that the justice, again, this is like the fictional version or whatever,

the justice steps outside to like go get something from the kitchen when they're having this dinner party. Mind you, this was before this New York Times story came out, of course. Goes into the kitchen to get something out of the oven. And the wife says, my husband's cooking up something real nice for y'all right it's a like that's the joke is that he's actually just getting something from the kitchen and that they misunderstand and think that they've just been told something that in fact they haven't been told at all um Okay. But that's even assuming that all of this is true.

And there's real reasons to believe that at least pieces of it are a game of telephone or not true to begin with. So this guy says that someone else told him about something that was said to them at a dinner party. Those people haven't come out at all all so we don't know what was actually said to them or what made them actually believe that they knew anything whatsoever about it well the white so the the husband who was there has died and the wife said that she um that she said it was something else entirely that she's denied it she says that she did not say, she did not say what it was, but the subject email. This is a game of telephone that happens all the time in DC.

You know, there was a version of this, I remember with Rick Perry and I just, forgive me for what is totally, not just unsubstantiated, but like sort of the grossest form of gossip. But all the time people would say, Rick Perry's gay. And all the time people would be like, well, how do you know?

And it's like, well, my hairdresser knows his boyfriend. And people would be like, aha, see, it's gonna come out. And it was like, no guys, like this is just a game of telephone where someone's misunderstanding at best, by the way. And it seems very similar to me. Anytime you're around a justice, people try to read into what they say. And then they pass on to their friends so that their friends know that they have this access and are in the know. But there's always that great line, David, people in the know don't talk

and the people who are talking don't know. Right. You know, this, as soon as I read this, I thought this has eerie. I have, it was a kind of eerily reminiscent of so many conversations I've had over the years. So what happens is someone will be around the justice in a social setting or justice's spouse or, and they'll try to pick up cues. You know, they'll talk about cases. They'll try to pick up hints. And I have been the recipient, Sarah, and I'm sure you have too, of breathless emails saying, breathless emails saying, had dinner with justice so-and-so or justice so-and-so's spouse. And, you know, and never, I have never, ever heard anything like, and they told me that this case was coming out a particular way and who was writing, never has that happened. A lot of times what you see happening is somebody who's kind of flexing a little bit, to use a term the

kids use, about access and trying to read tea leaves based on access. And the truth is, you don't hear it when they get it wrong. I.e., people say this 100 times and 20, 30 times they're going to be right just through guessing. Like as in, they think that the justice tipped them off to something the justice didn't. But of the 70 times that their quote unquote tip off doesn't pan out the way they thought, they're not going to say anything after the fact. And so this also feels a bit like buying the lottery ticket that wins and saying that somehow you had insight into which lottery ticket to buy. Well, no, because a million other people also bought lottery tickets. They just didn't win. Right, right. Let me just put it this way. I would be shocked if the Alitos had dinner with donors and then just spilled the tea

on an upcoming court case in detail. And then, you know, which then resulted, because here's the thing, Sarah, this is a very small world, right? This is a really small world, this world of people who are communicating with Supreme Court justices, having communicating with Supreme Court justices, having dinner with Supreme Court justices, and talking with those who have dinner with

Supreme Court justices, the thing that makes me skeptical, I feel pretty sure I would have heard about this. Because I actually was working for an organization at that exact time that was super close to Rob Schenck. And I feel like I heard about this. So I had some, I was skeptical when I read it, I was skeptical. And so I'm not saying it didn't happen. Obviously, I can't prove a negative, but I have just been around too many conversations where people are flexing access to a justice and are trying to read social cues. And I just, I've been around that too long to sort of think that this is something of a different magnitude, of a different order of magnitude. So I'm very skeptical. And also, even if it all happened, it provides no insight into how the Dobbs draft leaked because this is so different. But there was an interesting part of this that I think is worth discussing because it exposed a little bit of sort of the way money, how grifts are created. So one of the things thatank talks about was sort of his effort to influence the court back in the

day and so he would solicit donations that these donations would then be used to like purchase membership and say a supreme court historical society or whatever that would then allow him or others to go to events where justices were present. So then you're around justices, you have maybe your picture taken with justices or whatever, and then that's reflected back out to the people who gave you money to give you more money, to give you more access, which gives you more access, which then gives you more money. And there is this cycle of sort of, and it's not to say that Rob became more influential, but because he was in those rooms, but he was in those rooms, not sure that he'd be in those rooms without those donation dollars. And so there is this

thing that does happen where people solicit money, which that money is then used to buy membership in organizations, fundraising type organizations that can give you access. And then that access is you then used to raise more money and you kind of see how the system works. I just haven't seen it be influential, Sarah. I have seen it be beneficial to those who raise money. I haven't necessarily seen it be influential in the judicial system, if that makes sense. And just imagine how many times these poor justices, and they're law clerks, by the way, people try to get information from them. And, you know, it's like, well, if you order the grilled cheese, I'm going to assume the case is coming out our way. But if you order the hot dog and it's like, dude, stop. If you're writing the opinion, just don't say

anything. Right. You know, I mean, how many, and then, and then the other thing is, as you know, Sarah, having shepherded candidates around and having been around candidates, the fact that someone's at a dinner with you or has a picture taken with you or with a candidate is not the same thing as evidence that a relationship exists, that a meaningful conversation has occurred. Oh, David, do I have a story about that? So I'll try to give the shortest version of this. Back in 2015, there was a guy and I'm totally forgetting his name, who called and wanted to donate or host a fundraiser for Carly. And the whole thing got really weird quickly. And I don't know whether I actually talked to him or sent an email, but somehow he was rude to our staff. And I communicated that he should not talk to our staff anymore moving forward. He never actually donated to Carly based on my memory, but he certainly had my contact information at that point. Fast forward, during the course of the 2016 campaign, there was a young staffer at the Democratic National Committee who was murdered named Seth Rich. And it was just awful. You know,

I don't know every detail, but it looks like a robbery gone horribly, horribly badly. a robbery gone horribly, horribly badly, but all of these conspiracy theories popped up around his death, which is even worse. Right. And so, um, the conspiracy theories, and again, I'm not an expert on this, but it's something like Hillary had him killed to cover up the DNC hack or who knows, just awful stuff. And, you know, the RNC and the DNC are only a couple blocks from each other. And our staffs, you know, they look identical. These are young kids who spend all of their waking hours trying to make a difference and push the ball forward. And I remember just being really heartbroken when I saw that news. But then these conspiracy theories pop up and somehow the conspiracy theorists turn against each other. They like sue each other for defamation or something like that.

And all of a sudden there's this lawsuit where the one guy I mentioned back from 2015 has now claimed that told the rest of the conspirators that he was in touch with me, a DOJ, and I was helping look into this, you know, murder investigation that the department was running or who knows what, right? But he kept using my name to get himself access and credibility in this weird little circle he was running in. And so this lawsuit basically states that I was helping this guy who I do not know and had no contact with, certainly after the Carly campaign, definitely not a DOJ. He was, I was getting like weird voicemails from him or text messages. I just didn't answer them because like, I don't know this guy. And all I remembered was that he was rude to our staff and didn't actually give any money or donate or anything like that. And it just goes to show you that, you know, the people who want access, like you just can't necessarily trust any of that. They can swing around anyone's name. I mean, I'm not even a famous person, actually.

And here's this guy who sort of vaguely had my contact information, knew I was at the Department of Justice and tried to string all that together with this weird conspiracy theory to, you know, further that among his weird clique of access seekers. And so, yeah, I mean, you can find this on the internet and like Wikipedia, maybe even that I was involved in these horrible stories about this young man's murder, which is simply not true. In fact, I ended up helping his parents and some of their legal stuff by just providing everything I had that basically like I had no contact with this person. And so everything he was telling all these people was just made up, which is kind of creepy in its own way.

So anyway, that's what I think of the access grift. Yeah, exactly. And I think, you know, I'm not going to say there is no such thing as corruption. I'm not going to say there's no such thing as people who use money to buy influence. But I think as a general matter, this idea that you're going to be able to buy special kinds of access and information is way overblown. And that is a general rule.

And that is a general rule. People like Justice Alito and others, they may have a very, in all likelihood, they have a tight knit group of friends, people that they trust, right? People that they've got a lot of history with. And the ones who wrote big checks aren't in that category.

If your relationship with somebody is related to you writing a check the odds are really good that you're not their confidant right again that is not saying that there isn't such a thing as as political corruption related to money we know that that has existed since time immemorial that that is we know that people do buy proximity. People do buy sort of access. A lot of those things are not the same thing as influence and are especially not the same thing as information. So take these games of telephone with a huge, huge grain of salt. And also, if you're considering writing a check to somebody

in the belief that they are influential, the very fact that they are asking you for a check to guarantee their influence could be a clue that they're not influential. Sarah, special counsel, you've had some stuff to say on Twitter. A few weeks ago, I just remember there was a time where I think I was one of maybe the only former DOJ official willing to go on the record and say that I didn't see a way around there being a special counsel just based on the statutory

language in the regs. So here we are, and now there's a special counsel. So let's go through it a little. 600.1, grounds for appointing a special counsel. The attorney general will appoint a special counsel when he determines that criminal investigation of a person or matter is warranted and that investigation would present a conflict of interest for the department so why did i think that it kind of had to go down this way because donald trump once he announced for president is a direct conflict for all of the political appointees in the Department of Justice who would lose their jobs. This is different than, I think, investigating a member of Congress or

congressional candidate, other appointed or elected office holders. You could argue that a member of Congress could have a vote on appropriations or that the member of Congress could open an investigation. I also heard like, well, a member of Congress could vote to impeach the attorney general. OK, but again, we're talking about all the political appointees in the Department of Justice and the chain of command on that investigation. They can't really impeach them all. The appropriations is just one vote out of 435. It's not really a direct conflict of interest the way that a presidential candidate is

when they're running against your boss. So I just thought the regs, I mean, doesn't say should think about it. It says will appoint a special counsel. So some things that are fun to note, um, a special counsel is basically the exact same as an additional us attorney. There's 93 us attorneys for 94 districts. So this basically adds a 94th us attorney in. attorney in terms of their power and how sort of their their realm, if you will, David.

Now, there are some differences. Has to be there. There's a lot of reporting to Congress about their budget. And if they're removed, you have to report to Congress, things like that, which are a bit unique compared to a U.S. attorney. But most importantly, for our purposes, U.S. attorneys report to the attorney general. So does the special counsel. So this doesn't really take anything off Garland's plate. Now, the attorney general has said that he is going to obviously follow the recommendations of the special counsel. So be it. That's also true of the vast majority of things that a U.S. attorney does.

But the buck does still stop with the attorney general. The same, by the way, as when Rod Rosenstein was acting attorney general for the purposes of the Russia investigation and Mueller as the special counsel. He oversaw the day-to-day investigative efforts of that investigation and they reported to him at the end of the day. That's why Rod became the most famous acting attorney general in history. What else is worth a quick note?

You know, to me, so what does this all mean? I guess is the important thing. Yeah. Look, if they had decided that they were not going to indict Donald Trump, I don't think they would have appointed the special counsel, but that still leaves the two other buckets. One, they've decided to indict him fine, or far more likely they simply have enough in their investigation to continue and so all of the career prosecutors and fbi agents who have been on this case will continue on this case they will just report to this new special counsel and it will take out all of the political appointees that had been involved between

the attorney general and those career prosecutors, you know, that head of the criminal division, the deputy of the criminal division, the deputy attorney general, even the FBI director is really taken out of that chain of command. So that's all relevant to some extent. And then of course who is this smith guy um i don't know david i feel like they found a rare breed of prosecutor someone with the stature to take this on but who's really really, really apolitical. Like you can find cases, political cases that he's done on both sides. So he's the one who came in after the Ted Stevens debacle

during the Obama administration. Oh, yes. And he then shut down the investigation into Tom DeLay and said all of the others going on. Now, on the other hand, he was part of the investigation into Bob McDonald, which the Supreme Court then overturned. So he's been in a lot of these. I think it's really hard to say what his politics are. He's a registered independent. He's never given any money. Probably a good choice. You know, you and I had talked about how they

might look for a Republican to do this case against Donald Trump, but really someone who's just apolitical is probably even a better pick than all of that. Right. Last two things. One, why isn't there then a special counsel for the Hunter Biden investigation? Ah, because the conflict in the Trump investigation is to investigate him because that's what then, quote unquote, helps Joe Biden or the political appointees at the Department of Justice. The conflict in the Hunter Biden investigation would be to not investigate him. But they are investigating him. And it's the Trump appointed U.S. attorney who's overseeing that. So hard to say what the conflict for the Department of Justice

would be if they're moving forward with that investigation. And also, David, we don't want a world where every single investigation goes to a special counsel if there's any political component of it at all. In fact, that's the opposite of what the special counsel reg is really meant to do. These should be really unusual, unique circumstances, really meant to do. These should be really unusual, unique circumstances, like the former president running for president against the same guy he ran against before. I mean, hopefully this doesn't happen very often. And of course, when I was at the Department of Justice, we investigated and arrested two Republican congressmen. So again, the conflict is not going after someone, quote unquote, on your team at all. The department does that all the time. It investigates people of both

political parties. That's just not a conflict at all. Lastly, the one thing this doesn't touch, now remember, they've put in both the Mar-a-Lago investigation about the classified documents, but also the piece of the January 6th investigation to the extent that it touches Donald Trump, this will have no effect on that state investigation going on in Georgia. Although I still think it's worth noting that I think there could be a sort of foundational problem with a state investigation because if on January 6th, in the phone calls that he was making to Georgia, you can argue that that was part of his official acts as president, then I don't know that a state prosecutor can prosecute a sitting president for official acts. I get it. There's plenty of arguments that they weren't official acts. You and I have gone round and round on this to some extent,

but I think it's at least debatable. Presidents call governors and secretaries of state, secretaries of state, they call members of Congress and tell them how they want them to vote on things. Those are considered official acts. I'm not saying this was one, but I don't think it's so easily dismissed either. Yeah, we've talked about that. That's one of the areas where we have some, I don't know that you would call it a disagreement. I think you are

more intrigued by the argument than I am. I find it unintriguing, but I'm with you. I don't see how the special counsel was avoidable, especially after he announced logical, appropriate, and, you know, some deja vu. of news stories that provide snippets of additional information in which the analysis is going to be something like, well, if true, then, but we don't know if it's true. So we just have to wait. And very, very unsatisfying until the special counsel's report is released and we can have a lot more information. But this seems entirely appropriate to me. And as you said, necessary. So hurry up and wait. I would like a day where the Department of Justice has no special counsel. Wouldn't that be great? Wouldn't that be great? All right. So this one is, let's move on to, this is, I've gotten so many emails about this. So many requests for some thoughts about this. The number of law schools,

top law schools, I think is now five that are dropping out of the U.S. News and World Report ranking system. So Yale, Harvard, Stanford, which are usually Yale won, Harvard, Stanford in some order beyond that, although I think Harvard dropped to number four recently. Yale, Harvard, Stanford have dropped out of the U.S. News rankings. A couple other big law schools, prestige law schools, have dropped out of the rankings. A couple other big law schools, prestige law schools have dropped out of the rankings. Interesting.

It's very interesting, although I'm not sure how consequential it is, to be honest. But Sarah, I'm super curious about your thoughts. Okay. So I feel as I bet that you do also that the U S news and world report rankings put a thumb on the scale for whatever they were measuring, right? Whatever you measure is what gets done. And that a lot of those were either pointless or harmful. Many of them were somewhere in between, but very few of them were sort of a positive good. And the law schools catered to the rankings, which wasn't great. Like run your own race, law schools, but they didn't, they were running the race for the rankings. Um, so there's plenty to criticize about the rankings. I will be thrilled if the rankings go away. They're not going to, by the way,

pulling out of the rankings just means that these schools are not going to provide information to U.S. News and World Report. But U.S. News and World Report has had schools pull out before. They just basically make their best guess on their missing categories and rank you anyway. So we'll see how this goes. That being said david the motivation for dropping out of the rankings is worth thinking about and yeah i think that there could be very different motivations for each of the schools in question now of course dean gherkin at yale law school this is a quote from her, the U.S. news rankings are profoundly flawed.

They disincentivize programs that support public interest careers, champion need-based aid, and welcome working class students into the profession. We have reached a point where the rankings process is undermining the core commitments of the legal profession. Totally agree with that. There's just nothing I disagree with. But there is a bit of a why now. That has been the case the entire time she's been dean. In fairness to her, we've heard rumblings of her mentioning being unhappy with the law school rankings before, so this doesn't come

out of the blue for her by any means, but nevertheless, the timing is certainly interesting because there was a lot of rumblings that Yale might drop from number one this year. Now, David Latt had a really interesting interview with someone who is, you know, understands the rankings really well. the rankings really well. And I think it's worth diving into sort of the arguments for and against why they might lose their number one spot. So A, there's the peer assessment and lawyer judge assessment scores. So basically the peer assessment, your peer institutions and how they rank you for prestige or whatever is 25% of your score. Whoa. Second, the lawyer judge assessment that gets 15% of your score. So first of all, the peer assessment had already fallen from 4.8 to 4.6. And that was before any of the, you know, events shutting down and the police being called and all of the drama from the spring. So presumably, I think we can guess that was

going to fall some more. That's 25% of the overall score. Second, on the lawyer-judge assessment, that actually goes in a three-year rolling average. And so the question is, was that going to drop substantially enough this year to affect basically a three-year average? And does that really matter? Because if it was going to continue to go down next year, then that would have gone down enough with two bad years and only one year, you know, at some point that was going to affect 15% as well. Um, you know, there was other things pointed out that are maybe less insidious. Basically Yale had decided to up their sort of fellowships

and those fellowships hurt their rankings because if Yale is paying for the fellowship, it's not treated as unemployment, but it's they, you get sort of full points for every law school graduate that goes to a law firm. And David, you and I have talked about this, about how the law for the law schools are basically a conveyor belt to big law. Why? Because it helps the US News and World Report rankings because that's what they measure. For someone like me who knew that they really probably didn't want to go to a big law firm, there just wasn't a whole lot to help me. It was sort of up to me to find my own way in the world. They weren't discouraging it,

but there just weren't a whole lot of people holding my hand the way that I felt like the big law kids. It was like, let us help you with that. And gift baskets and all sorts of stuff. So that had gone from about 8% and it had jumped to about 14%. And that employment outcome is 14% of your overall score. So that was also perhaps going to drop their rankings. Lastly, expenditures on instruction.

You know, to the extent Yale wants to spend money, for instance, on those fellowships instead of hiring new faculty. Well, that counts for about 9% of the overall score. And so it was tying their hands on that front. But David, I got an email from a current student at Yale. And there were other students who David Lack quoted as well, that they're concerned that this was a key external accountability factor.

accountability factor. And that by pulling out of the rankings, there's now not that accountability. And I'll read from part of this email. Instead of working to repair her institution's reputation, such as by hiring a conservative public law professor, it seems Dean Gerken has decided to take her ball and go home without objective outside measures to hold YLS accountable to academic excellence and if Yale fails to hire any conservative public law professor who could hold YLS accountable from the inside it seems to me that YLS will have little incentive to provide an intellectual culture that is hospitable to conservative students in the future. So before we get to the other schools, David, I'm curious what you make of just the Yale part of this. Do you buy what Dean Gerken said were the motivations?

Do you buy what sort of the insinuation is that they dropped out of the rankings before they could drop in the rankings? Is it a combination? I mean, I think it's certainly possible that they dropped out before they could drop. Yale's been number one forever. Literally, since the rankings started in 1990, Yale has been number one from day one to today. And I remember looking at those rankings when I was applying for law schools and looking at, you know, things like average starting salary, which was a, that was also at that time, if I remember correctly, in the rankings. And so I think that's possible, but there's also something else that was very interesting to me.

So I was reading, David Latt has written a lot about this, and he has a piece in Slate, which is based on a piece he wrote in his own sub stack. This is like the David Latt themed podcast. He says, U.S. news rankings place so much emphasis on lsat gre scores and gpa is about 20 percent of a law school's overall ranking schools fixate on these numbers they overlook students who don't have great stats but show promise in other ways including students from modest means who can't afford expensive test prep classes. And they throw financial aid dollars at students with the best numbers, not the greatest need. You know what word absolutely jumped into my mind at that point? Harvard. But not Harvard Law School, Harvard Undergrad Admissions Supreme Court case. That's why I mentioned that the

schools might have different motivations for taking the same actions. Yes, exactly. So I think what you saw in the Harvard case, if you dived deep into the record, or not that deep, but if you dove deep enough to read some of the various different scenarios, is you found that actually Harvard could be quite a bit more diverse without putting its weight on the racial scales if it was more focused on class, but the cost of focusing on class was that SAT score. So the SAT score would go from, say, a 99th percentile to a 98th percentile. Well, you might think, well, why does that matter? I mean, so what? Harvard is still Harvard, right? It's got 300 plus years of institutional sort of gravitas built up and going from 98 to

99 to 98 percentile in the LSAT. Well, what if you're also really focused on that U.S. News ranking? That one of the reasons why you're saying that Harvard is still Harvard is the U.S. News ranking, and the U.S. News ranking fixates a great deal on that score. So I don't think it's any coincidence that a bunch of these schools, five big ones so far, are dropping out right before we get the affirmative action ruling. Now, my feeling on that is maybe that's a good thing. Maybe that's a good thing because we talked about at some length, well, we had two whole podcasts where we talked about what are ways it can be race neutral in application, but race disproportionate in effect that could be more fair than placing your thumb explicitly on a racial scale.

And when I saw this, knowing about the extreme weight the rankings place on things like on the LSAT, on GPAs, et cetera, that's what came to mind. So I think if Yale only dropped out, I've got side eye at Yale, Sarah, for different reasons. But I'm looking at these other schools and I'm feeling like maybe this might be a situation where some of these schools that feel like they have a name that is more powerful than the rankings may feel free to not participate. Because the reality is the rankings, I think, actually provided a lot more benefit for other schools other than the sort of, you know, for lack of a better term, For other schools, other than the sort of, you know, for lack of a better term, you know, like those schools that are like the royalty of college football, you know, like the top, top tier.

No, I think the rankings provided a lot more benefit for schools that were not in that legacy top tier historically in the U.S. And so for those who don't know, the rankings often got very granular. You know how if you have a book on amazon.com, you can suddenly become number one bestseller in regional explorations of, you know, number one bestseller in regional dialects or something like that, that is extremely niche category. Well, U.S. News started to do that. Number one, midsize private liberal arts college,

you know, that kind of ranking system that schools would then really promote. That doesn't do much for Harvard, doesn't really do anything for Harvard, but it created this intense interest across the higher education spectrum to rank up in a lot of these niche areas. And I think a lot of the critiques of those rankings are correct. They're good critiques. But I'm going to say we might look for more of the top, top schools to drop out in a post-affirmative action era for the reason that I just said. And just to provide more fodder to the Yale might have had a different reason than everyone else. Yale was two points out of a hundred ahead of Stanford and four points ahead of Chicago. So the number two and three schools. You're telling me that with 40% of that

score based on the peer assessment and lawyer judge assessment and the year that Yale just had, really? We don't think that might've dropped them two points. It was just too close. I don't see how Yale was going to maintain its number one spot. Now, you can argue that Dean Gerken and the professors at Yale were fine with that, that they understood that that could be a consequence and that they'd get it back, you know, the next year or that it didn't really matter to be number one as long as you were in the top three. Certainly, you know, there is Harvard at number four and it's still the focus of all the movies. And it's probably the most famous brand name law school in the world.

But I don't think you can really argue that Yale was at risk of losing that number one spot. Well, and again, like I have special side eye for Yale for that very reason. Like if you, and the idea that sort of the dean and some professors can say we're sort of above the rankings, we don't care about the rankings, doesn't mean that sort of there's armies of alumni who don't really care that they went to the number one law school in the country or that there are donors and other constituents, you know, Yale Law School constituencies who would say, wait, under your leadership, we had our worst PR disaster in the modern history of the law school. And for the first time, since rankings have been published, we dropped to number two or three or whatever. That would be a serious issue. And so therefore saying, well, well, we were not sure we dropped to two or three, but we stopped participating is is kind is convenient. So, yeah, major side eye there. The other the other schools. I get much more of a sense that it could be related.

So I one there's longstanding resentment about these rankings, just to be clear, internal to these schools. The idea that the U.S. News gives them hoops to jump through is the source of a lot of resentment. So there's sort of this simmering resentment. And then you add to that the Harvard case, which is going to put a lot of incentives to the schools if they want to remain diverse to not be so LSAT, SAT, GRE, GPA focused. I think that's an interesting confluence of events. Agreed.

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. Let's move on to protective orders. Yeah, I just wanted to address something that I saw in the comments because I had, in talking about

that domestic violence gun case, talked about how dangerous domestic violence is for women currently, regardless of protective orders. And if guns aren't taken away in that temporary status, that it can, you know, the protective order is a piece of paper. It doesn't do you a lot of good

if it doesn't come with any teeth. And many people in the comments noted that perhaps I was poo-pooing getting a protective order. And I just want to be very clear that while protective orders are a piece of paper and they will not protect you against someone who shows up at your door with a gun, absolutely protective orders have a purpose. And if you or someone you know or love is in a relationship that is dangerous, getting a protective order is an important thing to go do. It tells the police that there's an issue at that home. So if you do need to call 911,

having that protective order kind of tells them what the situation is in advance. And when they show up, if there's two people there and one of them's holding a protective order, it's a pretty good sign to the police of who's on the side of the angels at that moment. Now, of course, things can change as they dig in, but in those very critical few seconds,

it can be very helpful. And of course, down the line legally, it can be meaningful. So I just wanted to be clear that I was not suggesting that people somehow, the protective orders are pointless and there's no reason to get them. Like definitely go get one.

They're not a panacea, but they're useful. And sometimes they're life-saving. My main experience with protective orders is in the military equivalent, where I was a former JAG officer, and JAG officers are one of our core practice areas is military justice. And military justice often deals with all of the same kinds of criminal issues that arise in any town or city or any civilian context because military bases are, and some of them, not so small cities, but they're like small cities. And many times you issue protective orders to protect spouses from their soldier, you know, soldier husbands.

And one thing that's very effective about a protective order is that oftentimes a person will start to ignore a protective order in a nonviolent way. order in a non-violent way. And that allows law enforcement to intervene punitively, where without a protective order, you couldn't. And that you can begin to forcibly sever contact the instant that somebody starts to violate that protective order, because things don't always escalate immediately to violence. A lot of times that stalking might continue, phone calls might continue, you name it. And when that occurs, you're able to intervene decisively, whereas without the protective order, you couldn't. And that's, in fact, the very reason for the creation of the protective order regime in the first place is because the law didn't have a good way of dealing with things like stalking, harassing, etc. Because many times you were in

a position where you had to wait for violence before a law enforcement could get involved. And what the protective order does is say here, it's like an injunction. You have demonstrated enough threatening conduct that we're going to limit your liberty to the extent that it's like an injunction. You have demonstrated enough threatening conduct that we're going to limit your liberty to the extent that it's going to just keep you away from the people who fear you, who legitimately fear you and have proven by presenting evidence that there's reason to fear you. And there are countless examples of protective orders being enforced to forcibly sever contact before violence can occur. So yeah, in that ultimate moment, a piece of paper doesn't do anything. But that piece of paper does end up preventing those ultimate moments many, many times.

So I think that that's a good thing to clarify. 14% of all homicides in the U.S. are committed by intimate partners. 64% of female homicide victims were killed by a family member or intimate partner. That's a 64%. 64%. Women are much more likely to be killed by someone they know. Men are, you know, more likely at least to be killed by a stranger. Right. Yeah. Only 10% of female victims, murder victims are killed by a stranger. That's

an, that's an amazing statistic. My goodness. Yeah. 24% of female homicide victims were killed by a spouse or ex-spouse. 21% were killed by a boyfriend or girlfriend, 19% by another family member. Goodness gracious. It feels almost weird to transition to bingo after that. But nevertheless, we want to end on a happy note. A listener created an AO

bingo card. There's a website for it, David. There's an ao bingo game website now it's amazing and it works offline so you can do it without a internet connection you know if you're listening on a plane and um once the game is complete you can start a new one the creator says he is open to adding more squares. Each new game randomly generates a set of items and the location of those items. So his Twitter handle

for any bugs you come across or suggestions is at J-C-A-S-A-B-O-N-A. J. Casabana. And the website for the AO Bingo card drumroll is aobingo.com and i i'm so surprised aobingo.com was not taken that he could get that domain i know shocking so when i just pulled it up for this iteration judge Judge referred to as spicy. Home state pride. David mentions Star Wars. David mentions Lord of the Rings.

Sarah sings. Impressive listener email. Oh, we had an impressive listener email though because we had the Yale student. We did. The host corrects mispronounced word. I don't know. The Pittman Pittmanman that's pretty close

mention belknap mention belman sarah knows the person they're talking about oh wow sarah i think we might have hit that one wow i like that i i took a look at it and it's really clever. So I don't know that we would fill out a bingo card this podcast. So we've got to do better. Yeah. Sad. It's the pre-Thanksgiving slowdown. That's what it is.

Well, David, after Thanksgiving, I am putting together what I think will be a very fun First Amendment focused pod for Monday. And I'm going to send you lots of things to read. Oh, yeah. We've talked about that. I'm looking forward to that. And we've got more. We've got some First Amendment developments to talk about. We had other things that were sort of bigger news,

Alito League, special counsel, law school ratings. But there was a big district court opinion in Florida blocking part of the Stop Woke Act, so to speak. That's right. And so we'll talk about that. We'll talk about some Fifth Circuit stuff. We've got lots on our plate. But until then, listeners, please enjoy a restful, peaceful, happy Thanksgiving holiday.

Thanksgiving is my favorite holiday, Sarah. Same. Same-sies. Yeah. Same. Same-sies. Yeah. Yeah. We do a big extended family Thanksgiving and the rolls are the real focus of the Thanksgiving. The rolls take all day to make.

They're really, really elaborate, butter-soaked rolls. Love it. I just love it because Christmas is a busier time. Thanksgiving really is a priority around family, a meal, fellowship. I like the no presents. No presents. Yeah, presents, especially, you know, the bigger your family gets and you start to think about like the sheer number, it becomes a to-do list that is hovering over your head.

Thankfully, Nancy is great at that. She's amazing at that. And so that's been a long-term delegation of authority. But yeah, it is still, it is still much more difficult than Thanksgiving. So I love Thanksgiving and they're just the rituals. It's one of the few times when you feel like virtually everyone in the United States of America is kind of doing the same thing at the same time.

And it's neat. It's true. It's neat. It's really wonderful. Have you read the Thanksgiving proclamation by Abraham Lincoln yet for this year?

His 1863? I have not. I have not. Well, maybe we can put that in the show notes because it's really quite lovely. Yeah, that's a great idea. At a time when the country was in peril and the outcome was uncertain. And I don't mean just the outcome of the war, but the outcome of what the country would look like moving forward was uncertain. It's a beautiful, it's a beautiful proclamation to give thanks and the blessings

that America was still enjoying. Yeah, let's definitely put that in the show notes. Happy Thanksgiving listeners. And thanks for hanging with us through another excellent podcast. And if you agree, please go rate us on wherever you get your podcast, please subscribe and please check out the dispatch.