Advisory Opinions - The Federalist Society Takes a Stand

Episode Date: November 11, 2025

Sarah Isgur and David French recap the Federalist Society's antisemitism panel at last week's National Lawyers Conference before interviewing Judge Jennifer Elrod about the judicial funding crisis.  The Agenda:—Court denies review on Obergefell—Contrasts between Tucker Carlson and the Federalist Society—Supreme Court sides with Trump administration on sex designations on passports—The president issued pardons for Rudy Giuliani, John Eastman, et al.—Ohio school pronoun policy likely violates First Amendment—A federal judge retires—A shutdown going on since July 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

You ready? I was born ready. Welcome to advisory opinions. I'm Sarah Isger. That's David French. We have a fun show for you. We have a denial. We have a grant from the Supreme Court. We also have a report. We also have a report. from the 2025 Federalist Society National Lawyers Convention that I just finished attending. And by the way, David, I actually do have a vocal cord injury from, from talking so loudly at some of the parties. Okay, we'll also talk about the passport decision that we finally got from the Supreme Court's interim docket, as well as a sixth circuit on Bonk case. And then we have a special guest, Chief Judge Jennifer Elrod, is joining us to talk a little bit about the shutdown and its effect on the judicial process. branch, as well as

pardons and retirements. All of this, yes, all of this, on advisory opinions. When I think about the holidays, I picture those quiet moments, relaxing under a blanket with my family, the lights twinkling, just enjoying being together.

And there's always that one person who's tough to shop for, but cozy earth has gifts everyone will love. It's the kind of present that doesn't just get used once. It becomes a favorite all year long. For me, it's about giving the gift of comfort, calm, and home. And that's exactly what Cozy Earth does best, with quality and coziness that truly stand out. And I got to tell you guys, I got this bubble cuddle blanket about

a month ago, and now I can't live without it. Every single night after the kids go to sleep, I'm reaching for my bubble cuddle, and husband of the pod and I are cozying up on the couch. Plus, their sheets, their robes. My house is basically a Cozy Earth shopping center. Shopping with Cozy Earth is risk-free. You get a hundred-night sleep. trial. So if you don't love it, you can send it back hassle-free. Plus, there's a 10-year warranty, because once you feel this kind of comfort, you'll want it to last for years. Black Friday has come early at Cozy Earth. Right now, you at least can stack my code advisory on top of their site-wide sale, giving you up to 40% off in savings. These deals won't last, so start your

holiday shopping today. And if you get a post-purch survey, be sure to mention you heard about Cozy Earth right here on advisory opinions. Wrap the ones you'll love in luxury with Cozy Earth. First of all, thank you guys so much for all of the pre-orders of Last Branch Standing. You know, David, my editor said, people have to hear something seven times to act on it. So I just thought, you know, we probably need to start keeping track. So last episode was one. This will now be mentioned two.

The book is called Last Branch Standing. All right. Also, if you signed up for CLE credit, you should be getting that email today or tomorrow about how to go retrieve that. And up in the news, David, as we started to hit record on this podcast, the Supreme Court put out their usual Monday's order list and surprise, surprise, or not at all surprising, that Kim Davis case seeking to overturn Obergefell was denied without comment. No justices noting dissent, no written anything. It was just in a long, long list of cert denials. Yeah. And no, so cert denied, no writing in response to it.

No justice wrote anything. This was not held over for more consideration. No one was asked to brief more. I mean, this was just about as summary as it gets, right? And nothing about this was surprising at all, not remotely surprising. Dobbs explicitly said it was not calling into question Obergefell. There was no other external indication at all that Obergefell was right for additional review. So nothing about this surprises me.

Okay, but David, there was one thing that happened that I wanted to mention. So on Friday, where they have their conference in the morning, there was a headline that came out. The headline read this. Supreme Court to weigh long-shot bid to overturn same-sex marriage precedent. I will admit that I was driving when I read this, David. I read that to mean they had granted cert. And like in the first moments, right, you have to kind of go with me that like I'm driving and I'm reading this.

Like, it's a Friday, so I should have known they're not doing cert grants on a Friday, but whatever, like suspend all of that as you sort of process this. I read it as they had granted cert. And what was kind of fascinating about that, David, is I realized that I would have to change my entire paradigm of how I understand the court. because I could not come up with a way in which the court that I understand and how we have explained it on this podcast for six years could grant cert in this case. And like, it was really interesting to me to have the sort of five-minute period before I

realized that they just meant they were considering it in conference, as we knew for weeks that that was conferenced for that day, that I was trying to come up with this new paradigm for the Supreme Court to understand it, and I just couldn't do it. And I was sort of panicking, texting you to see if you had some paradigm that I could glom onto. The fact that it turned out not to be true, of course, made my head stop spinning and I went back into the paradigm that I lived in. But it was sort of a fascinating moment because I hadn't really realized that I had such a stiff paradigm around certain things until that's really challenged in a way. Yeah, that's funny because, you know, you said that earlier. And I,

No point was I thinking that they were going to grant cert on this. It was just not something that was in my mind at all, not because I feel like I figured the court out in all respects. No, of course not. I mean, as listeners know, we have been surprised on more than one occasion by the things that the court has done. But they've been surprising within a range, like surprising within a realistic set of probabilities

or possibilities that we were assessing. this would have been a surprise completely outside of the realistic set of probabilities or possibilities. And I'm just glad I didn't go through that. It was really disorienting. I don't know how else to describe it other than disorienting. All right, David. Well, the reason I was driving is because I was in a rush to get to downtown D.C.

Because this week was the National Lawyers Conference for the Federalist Society. and boy, you know, we haven't talked a whole lot about the changes at the Federalist Society since they announced their new president, Sheldon Gilbert, who has taken over. This was like a coming out party for Sheldon Gilbert. Like, wow, the vibe at the conference was very different than the past several years. The actual panels, both the topics felt different and the energy in the room felt different. much I don't know how else to say this David it was like a very high energy joyful vibe at the conference the panels were very timely issues I mean there was a panel with professor Akeel Amar very good friend of the pod where they were discussing immigration and originalism and by the way they didn't even get to birthright citizenship until the very end of that it was a fascinating panel just on the idea of how you think about immigration with the idea of originalism. But David, there was one panel in particular

that I wanted to talk to you about. This was a panel entitled, A Person Without Prejudice Against Any Group, the American Tradition of Religious Respect. And first of all, that quote, a person without prejudice against any group was a quote from a lawyer who had been turned down for a job at Bork's law firm because he was Jewish. And Robert Bork, even as a young lawyer, really fought his law firm's hierarchy to say that that was ridiculous. They hired the Jewish lawyer because of Robert Bork. That guy goes on to run, become the managing partner of that law firm. And that law firm is Kirkland and Ellis, you know, one of the largest law firms in the United States. Howard Crane was the name of that managing partner. And when he testified at Bork's

hearing, he described Judge Bork as a person without prejudice against any group. So, David, this was a panel on religious liberty, but it was in the shadow of the conversation at the Heritage Foundation and about the Heritage Foundation, in which Tucker Carlson interviews Nick Fuentes, who is a avowed white supremacist and anti-Semite, and Kevin Roberts, the president of the Heritage Foundation, then put out a video saying basically, we stand with Tucker. He then put out another video saying later that he finds Nick Fuentes' views abhorrent, but the damage was already done at that point. And nothing more about, nothing condemning Tucker in that, by the way, in the backfilling. Although I think it's worth mentioning, my beef isn't that Tucker interviewed Nick Fuentes.

In fact, I don't think many conservatives' beef is that Tucker interviewed Nick Fuentes. I think there is a debate to be had over whether sunlight is the best disinfected for these views or not giving them any platform. But that's a real question, and I don't really judge people on any side of that conversation. But if you're going to interview Nick Fuentes, you should be asking hard questions.

Yes, yes. That is the core beef here. It is not that Tucker sat down with Nick Fuentes. Tucker absolutely can roast people as he roasted Ted Cruz over the Iran strike. I mean, absolutely in a vicious and I thought unfair way went after Ted Cruz. So we know that Tucker is no teddy bear when he is interviewing someone

that he's skeptical about. And we know Tucker is a teddy bear when he's interviewing people. He's sympathetic to. I mean, it would be hard to watch his interviews, say, with Vladimir Putin and think that he was in an adversarial stance towards Vladimir Putin, for example. But when you watch him interview Ted Cruz, you know where Tucker stands here. So a lot of this critique where people are saying, how dare you go after Tucker for interviewing? I mean, the New York Times publishes the Taliban or the New York Times interviews people all the time who are awful people. Yeah, well, if we're doing our job, we're doing it rigorously and putting people's, you know, holding people's feet to the fire. This was not that. That was, and this is also

not happening in a vacuum. This is not, Tucker has been completely normal. And then here comes Nick Fuentes coming out of nowhere. He's interviewed this pseudo-historian Daryl Cooper who calls Winston Churchill the chief villain of World War II. I mean, we don't need to go down the whole Tucker brief. I mean, we have dear friends and colleagues in Steve Hayes and Jonah Goldberg who left Fox before Tucker left Fox in large part because all of the ways in which Tucker was utterly unhinged. And so when Kevin Roberts comes out, and first, it wasn't. just that he stood with Tucker. It's that he called the people critiquing Tucker's conduct a venomous coalition. So there's a, there's stand with Tucker, and then there's stand with Tucker,

and he absolutely circled the wagons around Tucker. Let me tell you, the Federalist Society did not stand with Tucker, and it seemed quite an intentional comparison, you know, contrast, if you will. This was the largest panel I have ever seen at the Federalist Society, both on stage and in attendance. It's also probably the largest panel I've ever seen on stage and in attendance. So let me read you who all was there. First of all, Ted Cruz gave the opening remarks to the panel. Judge Lisa Branch, Judge Ray Grunder, Judge Ryan Nelson, Judge Andrew Oldham, Judge Martha Packle, Judge Lee Rudolfsky, Judge David Strauss, Judge Amul Fapar, and Justice Evan Young, moderated by Judge Roy Altman.

David, that's a lot of judges on stage. And my estimate was probably 1,000 people in the audience. It was standing room only in the biggest ballroom you've seen. So the Federalist Society turned out to send this message as a whole. And I will admit, you know, Judge Altman is obviously a first. friend of the pod, I was worried that it was just going to be like 10 judges going in a row saying, I don't like anti-Semitism. Me neither. Me neither. And that was going to be a really boring panel. But still sometimes may be necessary. I mean, like, just, you know. Sure,

but it would have been relatively short. I mean, David, there were tears in this room at various points. So I don't, I can't, I don't have time to run through what everyone said, but let me just give you some high-level notes from each of these judges. First of all, Justice Evan Young from the Texas Supreme Court has worked in religious liberty his entire career. So he talked about being in Iraq writing their constitution with regard to religious liberty and the economic impact, just just the economic impact of the Sunni-Shiya divide there and what religious strife can do to a nation. Judge Ryan Nelson is a member. of the Church of Latter-day Saints, and he talked about religious persecution of his church members

through history and, you know, making the point, like, it's not that America has always gotten this right, but my God, it's important to get right. And it was just a really beautiful moving sort of ally ship to borrow the liberal term. Judge David Strauss, and this was what really brought down the house, talked about his grandparents' experience in Auschwitz. And what that meant for them and for him as the grandchild of Auschwitz survivors, his father at one point was planning an escape. And three of the people were caught. They were, you know, beaten to try to find out who their co-conspirators were. They didn't give up his father. And so he not only watched as his friends were hung that morning, but in fact was told that he was the person who would be taking

their bodies down as well. And it's all because they didn't give up his name that he survived. He at one point became so ill that he couldn't work, which I think we all know what happens to people at Auschwitz who are too weak to work. He was sent to the sort of nurses station where if you're not better in a couple of days, you are killed. And the nurses moved him around. to hide him, to help him get better. So it was also that kind of kindness of strangers that allowed him to survive. And truly, I mean, the room lost it. I think it's worth mentioning also, you know, Judge the Parr, Judge Oldham,

these are two of the top feeder judges in the country. They are sitting on that panel talking as devout Christians about why anti-Semitism is anti-Christian, not being anti-Semitic as anti-Christian. is, but rather the act of witnessing anti-Semitism and not doing anything about it is anti-Christian, very moving from them. And then Judge Branch finished it off, also, by the way, a renowned feeder judge. You know, she talked about what October 7th was like for her, again, as a devout Christian. And she really ended up by saying, like, I realized that I couldn't just stand by my Jewish friends. I needed to stand in front of them now. And so when that, when NYU,

law school said that Ilya Shapiro was not allowed to speak on campus on October 7th. She dropped everything and flew up to NYU to be there for that event so that she could just lend support and credibility to the event. I mean, a, special shout out to Judge Roy Altman for pulling this all together and Judge Rudolfsky, best friend of the pod, really best friends of the pod, both of them. And for Sheldon Gilbert, the president of the Federalist Society for thinking this was important enough to dedicate real time to, David, there were a thousand people standing at the end. And it goes without saying that Senator Cruz's talk at the beginning was pointed toward... It was spicy, right? He said it's really easy to denounce Nick Fuentes, but will you say Tucker's name?

And of course, cited what I think, I mean, is it our favorite quote from George Washington? it's not only i mean this is the quote a centerpiece quote of george washington in my book uh i've multiple sunday french presses i'm not allowed to to start previewing what's in my book but let's just say it's in mine too everyone shall sit in safety under his own vine and fig tree and there shall be none to make him afraid from george washington's letter to the hebrew congregation in newport rhode island and that's how ted cruz opened his talk so david What do you think? Contrast between Fed Sock and Heritage. Well, you know, this is not coming out of nowhere because the Heritage Foundation, look,

I know that a lot of our left-wing listeners are going to start to tune me out the moment I say this. But look, if you're going to look at a through line of conservatism with integrity, I'm not going to say every member of the Federalist Society has shown that. I mean, like we had the John Eastman situation, for example, in 2020. But by golly, if you're going to look at the overall thrust of the Federalist Society, how Federalist Society judges have responded to this moment in American history, how they have responded not just in law, for example, it was, as I've said a million times, federalist society judges were the ones who threw themselves in front of the effort to steal the election in 2020,

when many of them might have had a direct personal interest in Donald Trump becoming president again in 2020. And yet they stood in front of that. effort to steal an election. And then you fast forward to now where you have, think of it this way, if you're going to think about the pantheon of significant conservative institutions in the United States, Heritage Foundation is huge, but so is federalist society. And you saw a giant contrast on the stage as to what the conservative movement has become versus what the conservative movement can be. And I think that that panel that you're talking about, where there's absolute unanimity in this moment, that there's a necessity to stand against this bigotry

and prejudice, I think that that shows what the conservative movement both has been in the past and can be again in the future. And I'm also incredibly glad that there were that many people, that the response was that overwhelming. Because on a number of fronts, Sarah, I think we're living through a moment in history where our grandchildren and our great-grandchildren will go back and they'll say, what were my ancestors doing? What was grandpa doing at this moment? What were you doing? And I think that we're at a moment in American history

where, for the first time in my adult life, if you're Jewish in America, you're seeing serious, serious threats to your very life emanating from left and right in this country and enormous factions on both sides. Now, thankfully still minority, enormous factions on both sides who are willing to do things like revisit the very idea of the Holocaust, for example, or you're having these factions of people on both sides who are,

whether it's trolling or genuine, vicious bigotry, are willing to save the most vile possible things. We're way past the era of the dog whistle, where we're trying to figure out if a okay sign is anti-Semitic. No, we're now in the age, I've said this before, the age of the bullhorn. And you need a bullhorn back that says absolutely not. And I feel like it was, I wish there was more attention paid to that contrast, that contrast between the Heritage Foundation and Federalist Society. So I'm glad that we're doing our part to show that contrast because I do not want anyone to think for a moment that conservatives, that anti-Semitism, it should be or is conceptually linked to any kind of conservatism that has any kind of integrity or staying power

in the United States. That being said, David, there is no question that there is a generational divide emerging within Fed Sock the same way that it has emerged within the political right as well. I don't think that should be surprising since a lot of folks on the political right who then decide to go to law school are going to immediately think, I'm sure I belong in the Federalist Society. And so you are seeing this is not to equate all of these. but the common good constitutionalist branch within the Federalist Society, along with a lot of Nick Fuentes curious types within this like the very, you know, sort of 1L, 2L class of the Federalist Society.

My hope is that this kind of united front panel where you have basically a thousand people who have flown in from across the country standing up and clapping for 10 judges on a stage as well as a U.S. Senator, who was a lifelong member of the Federalist Society, all singing from the same hymnal book, no very pun intended, actually, will send the message that these are not views that are compatible with the Federalist Society, of course, and that if you want to clerk, if you want to be one of these prestigious, you know, federal or state Supreme Court clerks, or become one of these federal judges or state Supreme Court justices who has the federal. of society, you know, in premature, that ain't going to happen if you're out there doing the based ritual in your Fed Sock chapter. I am so glad you said that because, Sarah, one of the problems in the last five to ten years has been the inversion of authority in our institutions. So I don't know if you saw this, but the Times had this really interesting expose of the meltdown inside the Sierra Club, how the Sierra Club, the young staff at the Sierra Club,

had sort of turned the place upside down on hyper-wokism. For example, like issuing new language guides internally that, you know, forbade people to use terms like vibrant because that might be ableist, et cetera. And they began to do, you know, sort of the internal struggle sessions and everything. And really the consequences for the Sierra Club were catastrophic. And we had seen that, we'd seen reporting like that for years

around a lot of these left-leaning groups that the young hyper bar-legged, hyper-activist staff had come in and really kind of through sheer intimidation, wild accusations of racism, homophobia, transphobia, had inverted the power structures where essentially this more senior people were yielding to these younger, angry staff. And you've seen a similar dynamic taking place on the right, where sort of this idea, well, if Gen Z believes it, then we need to adapt to it, as opposed to why are we taking our cues from kids, okay? Like, there's a very valid, just starting presumption question. You know,

the conservatism I grew up with did not worship in the cult of youth. And, you know, that was something that we viewed the other side doing, worshiping at the cult of youth activism. We didn't do that. Like, we didn't think that 21-year-olds had figured out the world. But we're beginning to have a world in which an awful lot of these very young, very angry, mainly young men are coming into these conservative organizations. And in many ways, inverting just as happened on the left, they're inverting the power structure by putting relentless pressure up the chain. And what you're seeing with the judges here, and I totally agree with you, Sarah. I mean, you can't spend any time in law schools without knowing that there's a divide on their young right. But so far, so far,

the power structure hasn't inverted. These judges are not taking their cues from their clerks. Okay. And to even say that out loud, you know, like, it sounds hilarious that they would, right? But there is, I think, still a healthy enough hierarchy in the practice of law, perhaps because status in the practice of law is not as linked to your bespoke ideology as it is to your professional accomplishment. And that often doesn't come for a while, Sarah. That doesn't spontaneously spring out of you when you're coming out of law school. You are not a person, you are not a force to be reckoned with when you come out of law school at all. You are a person to be trained. Yeah, your Instagram followers aren't really relevant to your hourly billing rate. And totally irrelevant to whether you're going to win an oral argument or sway a jury. None of that's going to matter at all. So I think that there are some traditions and realities of the law practice that help keep us healthier, but we have to stay vigilant. Well, look, I also have heard from a lot of

law students about this divide and how frustrating that can be. I hope this panel was helpful to those students who are trying to fight back against this in their own chapters. And I would just say to the judges, you know, don't be afraid to ask the questions in these clerkship interviews, because what I'm hearing from some of these students is you guys are accidentally, non-intentionally, hiring some of these guys because you're asking them about, you know, substantive due process or something on their resume. I don't know, David. Maybe it's not the worst thing in the world to say, what did you make of the Federalist Society panel about this if you went to it? Or what did you think of the heritage controversy? How do you think about platforming people?

And there's no wrong answer to that, except one, which is, I loved Tucker's interview with Nick Fuentes. I also would encourage people to take a look at clerk applicant's social media with awareness, with a sort of a handy guide of some of the phrases and words that people use that are subtle ways. of signaling anti-Semitism. So if somebody says they're noticing things, for example, stay away, stay very, very, very far away. That's, you know, one of the, that's one of the key words. And, you know, you'll see different kinds of words and phrases that I think it's very worth brushing up on, learning about, so that you're not hiring somebody who is a Fuentes sympathizer. All right. When we get back, it's time to hop in to some decisions. Starting with passports.

You may have heard of the sex cult nexium and the famous actress who went to prison for her involvement, Alison Mack. But she's never told her side of the story until now. People assume that I'm like this pervert. My name is Natalie Robamed. And in my new podcast, I talked to Allison to try to understand how she went from TV actor

to cult member. How do you feel about having been involved in bringing sexual trauma at other people? I don't even know how to answer that question. Allison after Nexium, from CBC's Uncover is available now on Spotify. The problem with these huge tech companies is they don't just want your money. They want to know everything about you.

Shadowy data brokers make a living, compiling detailed profiles of your online activity and selling them to marketers and other corporate interests that want to control you with targeted ads. They're not selling a product. They're selling you. But you don't have to let them. There is a way to keep your browsing history truly private. It's an app called ExpressVPN. One of the easiest ways for data brokers to track you is through your device's unique

IP address, which also reveals information about your location. With ExpressVPN, your IP address is hidden. That makes it much more difficult for data brokers to monitor, track, and monetize your private online activity. ExpressVPN also encrypts 100% of your network traffic to keep your data safe from hackers when you're on public Wi-Fi. ExpressVPN works on all your devices, phone, laptop, tablet, you name it. Just tap one button to turn it on and your data.

protected. It's that easy. It's important for everyone to keep their privacy and online activity protected from hackers, trackers, and internet providers. If I needed this product, it's what I would use. Secure your online data today by visiting expressvpn.com slash advisory. That's eX-P-R-E-S-V-P-N.com slash advisory to find out how you can get up to four extra months. ExpressVPN.com slash advisory. Get no frills delivered. Shop the same in-store prices online and enjoy unlimited delivery with PC Express Pass. Get your first year for $250 a month.

Learn more at pceexpress.ca.c.a. All right, David, let's get to some of our case law here. First up, we do have a cert grant. We talked about the cert denial. There's a cert grant in the ballot counting case. This will be a question over mail-in ballots that come in after election day. 30 states or so have laws that allow them to count those ballots after election day. The question is, does federal law prevent that?

Does your mail-in ballot have to be received before election day? So the court has agreed to hear that case. David, we also had a decision on the interim docket question of that passport case that we discussed a couple episodes ago. it was six three along ideological lines, and there was a dissent from Justice Jackson joined by justices Sotomayor and Kagan. David, was there anything that stood out to you about this that you want to run through about this? But their basic point was, you know, this is causing real problems at airports, and the individual plaintiffs in these cases talked about, you know, it taking much longer to go through airport security if you have your biological sex on

your passport, but then there's nothing telling someone that you're going to look like the opposite sex. And so you get taken away for screening or pat-downs or you're sort of given derogatory remarks, et cetera, in that process. They also walked through the history, I thought, pretty helpfully, that basically from 1992 to the Biden administration, if you had kind of medical documentation that you were post-surgical, you could mark that as your sex on your passport, then the Biden administration changed it so that it was basically like the vibe theory of gender. You could mark whatever you wanted, including X. And then the Trump administration went pre-1992, where no matter what, it had to be your sex assigned at birth. So again,

this is only the interim question of what the law will be, what the policy will be, frankly, while this case makes its way through those lower courts. So it was 6.3 allowing the Trump position policy to go into effect for passports while this is being litigated. David, thoughts. This happened pretty much exactly the way we thought it was going to happen, that from a just a pure legal argument standpoint, is there a right to have your gender identity marker on a passport? Not surprised at this outcome.

But from a, we talked about the policy aspect, what should the law be, as opposed to what must the law be? and, you know, recall that we, as you mentioned, we talked about, okay, what is the purpose of the passport? It is to accurately and easily identify American citizens. It's to distinguish American citizens from non-Americans. And so some of these stories that were in the dissent, I think, were troubling. And from a policy standpoint, what should the law be? And I'll read a little bit this. In addition, the current record demonstrates that transgender people use gender incongruent passports are exposed to increased violence, harassment, and discrimination. For example, one of the

plaintiffs who is a transgender and intersex person asserts that he has been sexually assaulted by TSA officers conducting searches on his body. Another plaintiff, Chastain Anderson, attest having been stripped searched when traveling with identity documents to do not match her current gender expression. Another, Zaya Peresian, has been subject to invasive pat-downs by TSA agents to confirm her gender after they observed the disjunction between her female gender expression and the male sex marker on her passport. And two others, Ashtonore and Ray Gorman, have been accused of presenting fake identity documents and were forced to out themselves as transgender and non-binary to TSA agents. That's the thing that we're talking about. If the law

is inhibiting accurate identification of people as citizens, then it's a bad policy. And so that's that's the concern that I have on a policy basis, on the legal basis. As we said, it was hard for me to see what is the source of the legal right to have that marker. Well, David, one interesting question on the legal right, as this makes its way through the lower courts, is the right to travel. Have you put such a burden on the right to travel internationally for someone who basically is going to face much longer security process than someone else? And is that at all, you know, part of an unannumerated right to travel? I don't think so, to your point, to what we said last time. But that to me is a far more interesting. question than, for instance, an equal protection claim, which I think is a zero, a zero runway argument. Yeah, I would agree with that, especially, you know, after Scermetti, an equal protection claim is going to be really, really, really tough to make. But the travel question is an interesting question, and this is one of the ones where some of the factual determinations around the challenges transgender individuals have faced would make a big difference.

All right. Well, continuing on a theme, we had an en banc out of the Sixth Circuit on pronouns. And David, I just have to tell you, you know, we talk about en banc cases relatively frequently on this podcast, and it may make you think that there's a ton of unbant cases out there. But in fact, of course, sort of by virtue of the fact that it goes en banc means it's more likely to be important. So they, percentage-wise, are going to get a lot more attention in legal conversation than the number of cases that have actually gone on bunk. That being said, the Fifth Circuit has an on-bunk. bonkers coming up. They are hearing eight, eight cases at their en banc sitting in January.

And first of all, that's the highest number I've ever heard for an en banc sitting. There's 17 judges on the Fifth Circuit who are going to sit there and hear eight cases. Two are consolidated, so it's seven hearings, if you will. But the cases they're in this are going to be on bonkers as well. This one sitting has the Alien Enemies Act, 10 commandments being posted in school, and the ban on drag shows at West Texas A&M, all cases that we've talked about before. So anyway, that January on bonkers may require special advisory opinions attention. But this was a sixth circuit en banc about a school that barred its students from referring to

transgender and non-binary classmates using the pronouns that match their biological sex if the classmates prefer to go by different pronouns. The case was brought by parents and students who believe that a person's sex is immutable. They wanted to continue to use biological pronouns. They believed that using preferred pronouns conveyed a falsehood, and so they challenged the school's policy

under the First Amendment. David, this was a pretty fascinating discussion, to me, having very little to do with the pronoun part of it, if you will. It was far more between the majority opinion, several concurrences by some of our favorite judges, and the dissent. There was actually just quite a bit of, I thought, thoughtful disagreement over what the standard for First Amendment review should be in these schools and like even where the standard comes from. And that confusion, I thought, kind of begs for the Supreme Court's attention. I mean, we noted this after angry cheerleader

that I didn't think that cleared up a whole lot about the school's role for student's speech even, you know, with a tinker standard. So the problem is I don't think the Supreme Court is going to want to take this just because the, frankly, the pronoun policy was a little unclear on what the school actually, where they banned it, but then they definitely said they were banning it, but then they kind of took it back, then they changed the policy. It's a messy vehicle for this. But boy, I thought the Sixth Circuit judges did a really nice job showing the confusion over what law to apply.

Yeah, you're exactly right. This is a case that I would really recommend people reading just as a primer on post-tinker student case law and all the tension points and confusions. It's also a great primer about the intersection between harassment, law and First Amendment law. And, you know, spoiler alert that the majority on mock majority found that the pronoun policy did inhibit the free speech rights of the students, but still properly acknowledged that there are circumstances in which pronoun usage in particular ways

could still be harassing and bullying. In other words, if you use a pronoun not matching gender identity, that there are ways in which that could be harassing and bullying is just not inherently inherently harassing and bullying. And I thought it was very particularly valuable how they highlighted this tension that we have talked about many times, which is, okay, is the substantial and material disruption element here related to the nature of the speech? Is that defined by the nature of the speech? So it's a black armband and tinker that is inherently quiet, whereas if somebody

had come in with a bullhorn, that would be inherently disruptive? or is it the and or is it the response to the speech? Is the fact that somebody is going to be disruptive in response to that speech? Is that going to be a justification for suppressing free speech rights? And you and I are both very uncomfortable

with judging material disruption by listener response. And the Sixth Circuit is as well, but it also notes that there are certain kinds and categories of speech that seem to be maybe more likely to trigger the hostile response and maybe schools have some discretion in those neighborhoods,

but that the blanket prohibition of pronoun, of using pronouns that match biological sex, that that's too much. That presumption that that is going to be disruptive is too much. And I think that's exactly right. The idea that you're going to read Tinker and then say certain words are inherently disruptive is going to be alien to the tinker.

formula to the tinker mindset. Judge Batchelder had an interesting concurring opinion that I actually thought, like, if you are going to go read this, I would almost start with her concurring opinion and then go back and read the majority and dissent. That would be my order of operation. This whole thing's 112 pages, so you might want to do some skimmy skims at some point. But here's her opening paragraph. The school district's policies are unconstitutional for at least three separate and

standalone reasons. One, they violate the constitutional prohibition against compelled speech. Now, compelled speech, right? The government making you say something that you don't want to say. They're arguing that the school required them to use preferred pronouns. Now, the school says, no, we were happy to accommodate, and just you could use the student's name and never use pronouns. And the argument there got a little messy, I thought, even in the dissent, where we all

kind of know that that would be impossible to do without ever making an error. but the school said, well, it's only if you intentionally use a pronoun that is not the person's preferred pronouns. So as long as a student is sort of attempting to not use any pronouns, I just feel like this is asking way too much for students. Like that is not an accommodation when you're having to sort of not use natural English language, which by the way, Judge Bush's whole concurrence is on how basically you cannot regulate grammar. that the government can't do that. That's something France does, not America. He has this great, like, whole historical rundown, including Governor Morris about government's

attempts to control language and that we don't do that here in America. Okay, so that's the compelled speech argument. Two, the preferred pronoun policy constitutes impermissible viewpoint discrimination. So this was really interesting, too, David, because the argument was that there's this debate over whether sex is immutable and gender identity, and the school is taken aside in that debate with this policy, and that's viewpoint discrimination. You're letting one set of views be spoken and, in fact, mandated, and another set of views on this policy debate are not allowed. Now, the school's response to that, the dissent's response to that, is, yeah, but that's because it's bullying and harassment. So it's not viewpoint discrimination. You're

allowed to have these views basically, but when you do it intentionally, to use someone's non-preferred pronoun, you know, we're in a school environment, and there's just going to be different needs that the school has to ensure that students feel welcome. And then three, and this is where things I think get really, well, the Supreme Court should be paying attention to it, David. Three, while Tinker v. Des Moines Independent School District, and remember, that's from 1969, it's been a while since we've really done some more Tinker stuff, I thought, would permit the school district to suppress certain types of student speech under certain circumstances by showing that the speech would cause certain consequences, i.e., would materially and substantially disrupt school

activities or would infringe the legal rights of others. The school district has made no such showing, and in fact, it produced no evidence whatsoever to support such a showing. This gets to your disruption point, David. But her point is, you don't apply tinker in number one or number two. as in if it's a compelled speech case, tinker is irrelevant. If it's a viewpoint discrimination case, tinker is irrelevant. Tinker only comes into play when, you know, you have a black armband that is neither compelled speech nor viewpoint discrimination, right? Let's say the school had banned any commentary. You know, if you wore a red, white, and blue arm band, that was banned too. So it wasn't viewpoint, it wasn't compelled speech. Now you get to tinker. Is there a

disruption being caused by this? But if there's compelled speech or viewpoint discrimination, that is a normal First Amendment analysis, according to Judge Badge Elder. And that's not really what the majority opinion says. It applies tinker kind of because it's a school environment. And again, I thought this was pretty interesting. You saw some history and tradition analysis in the other concurrences. And as I mentioned, Judge Bush's, like schools just have no right. Governments, therefore, have no right to have any grammar-based policies. But David, in the school context, this just remains pretty hard because it's not hard to imagine this becoming, this turning over into bullying quickly. Oh, it's not hard at all to imagine it turning over to bullying quickly,

which is why the opinion was so valuable as to carve out that, look, the school still, this blanket prohibition, this blanket categorical ban on use of pronouns that don't match gender identity, that's unconstitutional. protecting students from harassment is still mandatory. Those two things have to exist side by side. And fortunately, however, we have about 30 years of experience now trying to deal with this legally. And not to repeat my, what is the difference between harassment and free speech, little spiel, but let me do it very briefly.

There's a couple of very helpful frameworks for thinking this through. One comes from a Eugene Volick framework that I read that has been really fantastic. one to many speech is almost never harassment. In other words, if I am chanting in the quad, just to go back to some of our post-October 7th examples, if I'm chanting in the quad from the river to the sea, Palestine shall be free, that's going to be constitutionally protected. If I'm following an individual Jewish student from class to class screaming that in their face, one-to-one speech, as opposed to one-to-mini, that one-to-one speech that very personally directed unwelcome communication. That is when you start to raise the harassment concerns. The other kind of

way of thinking of it is, and some people cringe when I say this, but I think it's very helpful. Think of the time, the place, the manner of the speech. So, for example, let's suppose you're somebody who you have a disagreement on the definition of marriage. If you are working at a law firm and you teach a Sunday school and you talk about the biblical definitions of marriage and you say that marriage is a lifelong union between a man and a woman, and you're doing that in Sunday school, you're doing that on your Facebook page, you're doing that on your Twitter feed.

Not harassment, not harassment. You walk into a gay married colleague's office on a daily basis and walk in and say, you know, Bill, you're not really married, and you're doing that one-to-one to Bill in the office setting while he's trying to work, again, there's a very different kind of context there, And so thinking through how is the speech done, to whom is it directed and why, all of these things help us discern the difference between free speech and harassment. As Judge Murphy's majority opinion says, nothing we say here forecloses the district from enforcing its anti-harassment policies against the abuse of transgender students just as it enforces those policies against the abuse of all other students.

This was a 10-7 decision from the Sixth Circuit sitting on Bonk. David, we had a complaint from a listener because at the end of one of our episodes, we said, up, we're running out of time. And he said, no, you're not. This is a podcast. And so it's for you, dear listener, that this podcast is going to run a bit long because now, after this break, we're going to bring on Chief Judge Jennifer Elrod of the Fifth Circuit to talk about how the shutdown is affecting more than you think in the judiciary.

And by the way, that shutdown didn't start last month. It started in July when we get back. At Desjardin, we speak business. We speak startup funding and comprehensive game plans. We've mastered made-to-measure growth and expansion advice, and we can talk your ear off about transferring your business when the time comes. Because at Desjardin Business, we speak the same language you do, business. So join the more than 400,000 Canadian entrepreneurs who already count on us,

and contact Desjardin today. We'd love to talk, business. Get you and your crew to the big shows with Go Transit. Go connects to all the main concert venues like TD Coliseum in Hamilton and Scotia Bank Arena in Toronto. And Go makes it affordable with special e-ticket fairs. One-day weekend pass offers unlimited travel across the network on any weekend day or holiday for just $10. And a weekday group pass offers the same weekday travel flexibility from $30 for two people and up to $60 for five. Buy yours at go-transit.com slash tickets.

Chief Judge Jennifer Elrod, thank you so much for joining us. We are here as the shutdown is hopefully coming to an end because there is a piece of this shutdown that folks have. not talked about it. Understandably, we as a country have been focused on SNAP benefits, on air traffic controllers, sort of the things that are most affecting people's day-to-day lives in a really obvious way. But there has been a shutdown going on since July in part of our judicial system that needs a lot more attention. And of course, in the meantime, I was in New Orleans, as you know, attending the Fifth Circuit arguments down there. And the law clerks who had flown out, by the who were still paying their student loans,

they had to fly out on their own dime, get a hotel room on their own dime while paying their student loans and not getting paid. So it's not to say, maybe you can tell us a little how the shutdown has affected the judicial branch

because we were told it's not affecting it at all. I don't think that's true. But in particular, this other shutdown that nobody is talking about. I don't know who told you that because I can't imagine

anyone in the judiciary would actually say that. As you know, I have the extraordinary honor of being the chief judge of a large circuit with hundreds of judges and literally thousands of employees, clerks office employees, federal public defenders who work with the judiciary, staff attorneys, librarians, chambers law clerks, probation officers, many more are all involved in the administration of justice in the three states of Texas, Mississippi, and Louisiana. and we have definitely been affected by the shutdown. And this has hit us hard and it has hit us faster than ever before. Of course, you know, it was the longest shutdown. But it was hit us faster because we didn't have a lot of savings built up that we could help weather the storm.

So it hit us quickly. And so, you know, every week I've been getting list of employees that need to be furloughed and having to sign off on them to be furloughed. for each week. I know of people taking second jobs at grocery stores and driving for the food services that you drive, you know, Uber eats or DoorDash or whatever. And desperately hoping to have these, have their be paid again. You know, not everybody has a three to six months savings like Dave Ramsey recommends. And so being not paid for a month is a big deal, especially for people starting out in our clerk's office. We have a lot of new entry-level clerks. And it's really hard to

attract people who want to work in your IT department if you can't guarantee them pay it on regular periods. Especially when these shutdown seem to be happening now at regular intervals. Yes. People go to government work, as you know, sometimes because it's a steady job. It's a very dependable study institution, and that makes up for some of the risk involved in taking other jobs that might be more high paying. Well, if this isn't a steady job, that takes away one of the benefits of us being able to require talented people. And so those are all concerns we have. You know, and the federal judiciary is only 0.1 to 0.2% of the federal government's budget, which is a rounding error, I've heard some people say. I didn't say 1 to 2%. I said 0.1 to 0.2%.

So, but this is where the justice is administered and we've had some issues about that. And one of those that you alluded to has to do with our CJA attorneys. Our CJA attorneys. Our CJA attorneys, it's not that they've just not been paid for 30 some odd days. They haven't been paid for months. The last time CJAA attorneys were paid was in July of 2025. And CJAA attorneys, for those who don't know what that is, are lawyers who represent indigent criminal defendants in our proceedings. And to break this down, so I think most people, you know, know about federal public defenders. These are people who sort of are the mirrors of assistant U.S. attorneys, AUSAs, the federal prosecutors, federal public defenders have their own office,

et cetera, et cetera. That's only about 40% of the representation for indigent clients. About 60% come from these CJAs. Exactly right. Yes. There are about 16,000 attorneys in private practice nationwide who have agreed to accept appointments to represent indigent defendants in federal criminal cases. And the federal public defenders can't do all this work. They don't have all the resources. And in fact, there are conflicts sometimes in cases where they can't represent multiple criminal defendants in the same cases. So we must hire outside private attorneys to represent these individuals who have been accused of crimes. So these people are very important to the administration of the criminal justice system in the federal government. And they have been going

without pay for months. Judge, what is the reason why they in particular have been endearing this month's long loss of pay? I would say the first reason is that Congress didn't fully fund the judiciary in fiscal year 24 or 25, and it underfunded the CJA programs by $100 million. As my colleague, Amy St. Eve, Judge Amy St. Eve, in the Seventh Circuit, warned Congress in April, This meant that the judiciary's funding to pay CJA attorneys ran out on July 3rd, 2025. And we hoped that we would have supplemental funding over the summer for these hardworking lawyers. And we hoped again that they would be funded and paid for their work that they had already done when the new fiscal year happened.

But then the shutdown happened. And so they haven't been paid for months and months and months. But the Constitution mandates that we provide attorneys for people who cannot afford one. It's literally in law and order. That's how I know it's true. Well, you know, law and order is always, you know, one good source you can go to learn about the law. But you might also know about the Supreme Court who was spoken in Gideon v. Wainwright back in 1963, discussing how our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assuade.

fair trials before impartial tribunals in which every defendant stands equal before the law, you know, there's that too. Sounds vaguely familiar. Dun, done. The noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to a system. That's what our very, my bettors on the Supreme Court said many years ago. And so this is an issue, you know, and as you know, because you have read Federalist 78,

many times and discussed it with many people on your program. You know, we're a co-equal branch, but we're the weakest branch, and we don't have any power of purse. So if people want to help provide criminal justice for, and it's good for victims, it's good for the accused, it's good for the witnesses, it's good for us as a society, it's good for everybody that we have a due process for people accused of crimes and that we try cases quickly and that we give people resources for their cases. And, you know, it's not just the lawyers themselves. They can't hire interpreters or other experts and people to help with their cases

because those people don't want to not be paid for five months. This is a little like free speech, right? Because nobody likes to be the one to champion the really odious speech. And I think a lot of people don't feel a lot of need to champion someone accused of some horrific crime that they need this, you know, private attorney who's being paid by the government. But first of all, Judge, as I think you've noted before, DCJA attorneys are usually solo practitioners, very small firms. Like they themselves are not some wealthy attorney. You know, and we talk about whether people should go to law school. you know, we're often talking about cravath-scale lawyers. CJA attorneys are not crevath-scale. They are making very, very little money and depend on this. But even if you don't care about the lawyers or the criminal defendants, you mentioned something pretty important there. This is important to the victims, because not only are we violating Gideon v. Wainwright by not having attorneys to provide to people, we're also violating their speedy trial rights. And while it is a right for the accused, it is also pretty important for victims.

not to have this thing hanging over them for years and years before justice can be done. And basically, the system is ground to a halt. You have CJA attorneys, for instance, in New Mexico saying they cannot do this anymore and they won't do it anymore and they're not taking on new cases. So we're just dismissing cases against criminal defendants. There's no option to just go ahead and try these people or keep them in jail and maybe that people, some people would be fine with that. No, no, no.

you just have to let them go. So you've been accused of some horrific crime. If we don't have an attorney to give you, if we can't meet the Speedy Trial Act requirements, you simply get to go free unless we fund this program. And that is not fair to victims, and it's certainly not fair to the larger public either, who now has these, you know, the bad guys are not staying in jail.

Well, that certainly is a possibility if we don't have lawyers for the people who have been accused of, crimes. I do know of that I've heard of judges who have stayed proceedings. We haven't yet heard whether proceedings are going to be dismissed in any cases that I'm aware of, but we have had cases stayed. And as you said, that's not good for the person accused, nor is it good for the witnesses or the victims of crimes. It's not good for anyone. to bring our criminal justice system to a standstill. And so we, you know, like you've seen me say in my shows and when we've been here for

light or fair, you know, I enjoyed getting to be in Star Laws. And, you know, I'm a big Star Trek fan, Star Trek's fan and Star Wars fan. I think that what Princess Leia said implies here. Help us Congress. You're our only hope. And we depend upon Congress to help us provide for our criminal justice system. So what are the prospects of Congress coming through any time, on a timely basis here? What's the legislative handicapping here?

How close are we? Oh, I would leave that to others. You know, I'm not a Washington person. I am, but I hope that people will see that this is an important need. to fund our judiciary and that they, that this will get on someone's radar because I think it's more, it's not just about paying law clerks who are, who are, who I think are super important and who I'm very fond of. This is about the functioning of, um, of the justice system itself. Chief Judge Elrod, before we let you go, will you just do a little AO community service and

explain to us how one becomes a chief judge and why anyone in their right mind would accept being chief judge. Oh, Sarah, I'm not sure why anyone in their right mind would ever accept this. But it was not a popularity contest in my circuit. You were the most senior judge who has not yet reached 65 at the time you were chosen. And you serve for seven years or until you reach the age of 70. And so this is a, you serve your court. You don't boss your court. You serve your court. And that means you serve the judges on your particular court, you know, like the circuit that I have, which is a very large circuit. And you know many of the judges on my circuit. who are one of whom you clerked for,

but also you deal with all of the business of the over 3,000 employees and 200 judges in your circuit. And in fact, today we have our Judicial Council meeting, which I will be chairing very shortly. But so it's a great, it's an honor to serve the court. You know, the court is bigger than any people as we've talked today, and we must keep keep it functioning and we try to help, which also means that if a pipe burst in a courthouse

in a different state, then I might get a call. I don't have a toolbox that I run around to the various courthouses, but some think I do. And so, but I'm always happy to try to help people. I try to help people get their security needs met. That's a very important thing that we have right now, as you know, judges are face more security concerns these days. And it's very important that we have adequate security for them. So I spend some time trying to help judges and their staffs with that. I spent a lot of time on a lot of administrative tasks these days. And sometimes I don't get to my case writing until 2 o'clock in the afternoon. But fortunately, they gave me an extra law clerk. And everybody knows I needed an extra law clerk because, you know, I

I need all the help I can get. Maybe it'll keep me from getting reversed by the Supreme Court to have an extra law clerk. And Judge, you though, one of the things you don't have on your plate, you don't decide which circuit judge gets assigned to which case. Absolutely not. We have a double-blind system where cases are assigned to panels. Judges are assigned to panels. This is a, and that's very important for the integrity of our system, that we are not picking which cases and we're not picking which people to sit with. And it's all, it's done in a randomized system so that we

can, you know, for fairness and integrity. Well, Chief Judge Jennifer Elrod, thank you so much for joining us. I thought this was important enough to bring you on urgently to talk about those CJA attorneys. And if you are a CJA attorney out there who listens to this podcast, thank you for the work you do. You'll go under thanked way too much. And as it turns out, underpaid as well. Thanks so much. Well, David, I thought that was a very helpful and important thing for us to all understand about what's actually going on with some of these budgetary problems and what happens when Congress doesn't actually go through all the steps of a budget process since the Clinton administration at this point. You know, I've heard some people

suggest that we could, and it's accurate, we could, simply change the law so that there are no more government shutdowns, basically everything continues to get funded until they pass a new budget. I hate that idea. The point of the shutdown is a forcing mechanism, the last forcing mechanism, I guess, to make Congress even remotely do its most core job to have the power of the purse. I understand they're not doing a great job, but here we are. Could you imagine a greater gift to the grifters of Congress? And I'm not saying all congressmen or grifters. There are grifters in Congress. Could you imagine a greater gift gift to the grifters in Congress than permanent government funding? What would they do? All they would do is tweet and post.

That is all that they would do. Well, I mean, it's basically it now. No, you're right. It's hard to think of a worse idea than, hey, let's pass a perpetual continuing resolution where everything is funded at present levels adjusted for inflation, and then if Congress so chooses at some point, it can break into that process and adjust the numbers, oh my gosh, what a disaster that would be. So, you know, there's a lot of discussion over who should get blamed, Republicans or Democrats. No, I think the answer should be which branch should get blamed, Congress or the executive branch. And it's not truly in either or. I think actually everyone gets a little bit of blame here, but you won't be surprised to hear that I think Congress should get the most blame.

figure it out, guys. This is literally, literally, your first job. Power of the purse. It does not get more fundamental than this. It does not get more. Yeah. All right, we had some more pardons, David. The president issued pardons for Rudy Giuliani, John Eastman, at all. Interestingly, these folks were not facing federal charges. So the pardons have no current consequence, though they still face state. charges this pardon won't have anything to do with those. Yeah, it's still gratuitous. It's just not as consequential. Jenna Ellis pled guilty, for example. She was included in the pardon list. She pled guilty to state charges. The president for all of his pardon power, thank the Lord, does not have the ability to pardon state crimes as well. But that's not the only pardon.

While you were talking, I forgot that at the end of last week, he also pardoned. This was something I to pay particular attention to, our extremely corrupt, extremely gross former speaker of the Tennessee House was pardoned along with one of his Confederates of public corruption charges where we had them dead to rights. They were dead to rights. And why? Why? There is no apparent reason other than friend of Trump here. And it's just stunning. I mean, there is no public. It's no public. corruption law right now that applies to friends of Trump. It's hard to think, I mean, and this is coming on the heels

of the pardon of the Chinese Bitcoin billionaire who only after his company Binance helped pump up the value of Trump family cyber currency. I mean, what are we doing here, Sarah? Trump is not the first

president to issue outrageous pardons, though I think he might be outdoing the rest in terms of sheer number. But there's a really good fix to this. It's not an easy fix, but there's a good one. Ratify an amendment to require the Senate to advise and consent on pardons the same way that they advise and consent on cabinet appointments and judicial appointments. I think that would nip this whole thing right in the bud. Sarah, I think at this point, an amendment to the pardon power is my number two amendment.

Number one amendment is make it easier to amend the Constitution. But I will tell you this, if we can amend the pardon power, I'll skip. skip one. Let's go straight on to two. Amend the pardon power. I don't think people are, it's not sinking in how dangerous this is. I'm also not sure who's against it. Like I actually think we just need someone to like take this up and, you know, do the hard work. But both parties have now seen presidents of the opposing party issue egregious pardons. So let's give Congress some extra work here. Last up, David, a judge in Massachusetts retired or quit, depending on how you want to look at it, because he wanted to criticize the president of the United States. And so

he decided to leave the bench to do that. Now, Judge Wolfe took senior status in 2013. He's a Reagan appointee. As best I can tell, he's about 75 years old. That also means his resignation leaves no vacancy for Trump to fill, and frankly, he was basically at retirement age anyway. But, you know, this to me stands in sort of stark contrast to those judges that are filling out anonymous surveys from the New York Times so that they can complain about things. This seems like the right way to do it. Absolutely. This is 100% the right way to do it. When you're a judge, your role in the constitutional superstructure is not to engage in critiques of the, it's to decide the cases before you not to engage in critiques of the other branches

of government. This is how it's done. Resign and make your beef known. This is old school. I love it. This is the way it's done in an honorable fashion, and I appreciate it. By the way, speaking of having no vacancy to fill, the administration, or their allies at least, are certainly out there, you know, beating the bushes with sticks to try to get some of those older judges off the bench, Mike Fregoso was writing in the National Review, quote, we cannot take a Republican Senate for granted next Congress. And quote, so any judge who wants to be replaced by a Republican appointee should announce their decision to step down as an active judge no later than May 1st of 2026. You know, I've got to wonder, if you've got some of these Reagan and Bush appointees,

I'm wondering how many of them are going to be super excited to step down right now. Except, David, you actually look at the circuit-level appointments. They've been fantastic, by and large. Whitney Hermanndorfer, Rebecca Tableson, you know, these are Sixth and Seventh Circuit picks. I mean, those aren't just like good picks. They're great picks. I'll also bet that the administration's pretty open. Like, they just want to fill the seat.

They don't actually care who fills it. Oh, I forgot Jen Mascot in that previous list. as well, up on the Third Circuit. You know, these are all basically either people who clerked for Kavanaugh as a judge or as a justice. It's like the Kavanaugh family ascending to the circuit bench. I agree Bovi stands out as a different pick, although his one opinion so far has actually been very well done.

Yeah, he has no business on the bench at all. I mean, let's just be really clear about that. He has absolutely no business being on the bench. But I agree with you on the others. There have been some really good picks. but I don't think it's possible to look overall at Trump's posture towards the justice system in this moment. And if you're a federal judge to feel an enormous amount of confidence about what's going to come next. And so I just wonder, I don't know, but I wonder if that is playing a

role in some of these decisions. Okay, David, that's it for us today. If you like what we're doing here, there are a few easy ways to support us. You can rate, review, and subscribe to the show on your podcast player of choice to help new listeners find us. And we hope you'll consider becoming a member of the dispatch, unlocking access to bonus podcast episodes and all of our exclusive newsletters and articles. You can sign up at the dispatch.com slash join. And if you use promo code A.O, you'll get one month free and help me win the ongoing, deeply scientific internal debate over which dispatch podcast is the true flagship. And if ads aren't your thing, you can upgrade to a premium membership at the dispatch.com slash premium. That'll get you an ad-free feed and early access to all

episodes, two gift memberships to give away, access to exclusive town halls with our founders, and a place in our hearts forever. As always, if you've got questions, comments, concerns, or corrections, you can email us at advisory opinions at the dispatch.com. We read everything, even the ones that say David's right. That's going to do it for our show today. Thanks so much for tuning in. We'll see you next time. Oh! Oh! Oh! Wow!

Oh! Oh! Oh! Oh! Dream. Thank you. Dream.