Advisory Opinions - The Owner's Manual of This Union

Episode Date: September 17, 2020

After reflecting on the best and worst parts of our country’s founding document for Constitution Day, David and Sarah dive into Attorney General Bill Barr’s Constitution Day address at Hillsdale College yesterday, in which he defended political judgment in bringing prosecutions and railed against federal prosecutors’ propensity to punish as much misconduct as possible. Our podcast hosts agree with Barr that there is an effort by federal prosecutors to expand federal criminal law to an unreasonable degree. But David reminds us that federal prosecutors are not just the instrument to be wielded by the attorney general, they are charged with carrying out laws that have been passed by Congress.  “Perhaps we have gone too far with civil service protections,” Sarah explains, “and that we are unable to remove anyone who is part of the permanent federal bureaucracy even for misconduct at this point really.” Most of the news headlines referencing Barr’s speech highlighted his comparison between career federal prosecutors and preschoolers, as well as his rather distasteful comparison between coronavirus lockdowns and … slavery. “You know, putting a national lockdown, stay at home orders, is like house arrest,” Barr said yesterday in response to a question about the constitutionality of stay at home orders. “Other than slavery, which was a different kind of restraint, this is the greatest intrusion on civil liberties in American history.” Sarah suggests a new legal truism on today’s episode: If you compare anything to slavery, you’ve already lost your argument. Stick around for a deep dive into Lochner v. New York  its relation to coronavirus lockdown court order, as well as a discussion about whether Trump can win enough Electoral College votes without winning Florida. Sarah and David wrap up today’s episode with a reflection on their biggest career failures. Show Notes: -Bill Barr’s speech at Hillsdale College, Three Felonies A Day: How the Feds Target the Innocent by Harvey Silverglate, Yates v. United States, Lochner v. New York, Morrison v. Olson, and William S. Stickman IV’s Pennsylvania District Court decision, The Dispatch30-day trial at . Learn more about your ad choices. Visit megaphone.fm/adchoices

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And was it last week, Sarah, that you were disgruntled? I think so. I think it was last week. And somehow that's carried over into... No, no, you're disgruntled. But I'm disgruntled as a result of the effects of your disgruntlement. And so, listeners, here's what happened. Last week, through no fault of my own, I had some technical difficulties that resulted in a 45-minute delayed start time to this podcast, which I think led to Sarah on the Dispatch Live event that we had earlier this week on Tuesday night, which is a great event, by the way, available to Dispatch members only, which is why you should go to thedispatch.com

and join. But she called me inexplicably her arch nemesis. Inexplicably. But at first I thought inexplicably, but then I realized that there was lingering grudges held. Wow. From the delayed start time, which have manifested themselves listeners here again today,

because I had this great idea for a Constitution Day segment for Advisory Opinions Podcast, the one we're going to lead off with. We're also going to talk about the evolution of pandemic law. We're going to talk about Bill Barr's remarks at Hillsdale and what we think of them and why they're controversial um we're going to talk about the various ways to get to 270 and we're also going to kind of talk about some of our career failures and what we learned about them but i was so excited sarah i had this great constitution day segment outlined where i said we're going to have what is the best and the worst uh aspects what or what is the best part of the Constitution and the worst part of the Constitution?

And then Sarah comes in, and seconds before we start recording, says, you can't use any amendments. Yeah, but David, what day is Constitution Day? What is the date of Constitution Day? September 17th. Every year, yeah. Why did we pick September 17th as Constitution Day? A good time between Labor Day and Thanksgiving.

This is where Socratic method fails. So Constitution Day is a day observed on September 17th because on September 17th, 1787, the Constitution was signed. Now, what happened on December 15th, 1791, do you think, David? December 15th, 1791. Was that ratification of the Bill of Rights?

It was, it was. Yes. So if you want to do on December 15th, of the Bill of Rights? It was. It was. Yes. So, if you want to do on December 15th, we can celebrate Bill of Rights Day. But today

is Constitution Day. I'm going to turn to the authoritative, definitive refutation of your contention, which is a little document known as the U.S. Constitution.

And as I scroll down it, as I was saying in the green room, when I get to Article 7, the scroller does not stop. The scroller continues to the First Amendment. But you know what? I'm not saying you don't have any argument. I agree that today's Constitution obviously incorporates all of the amendments. But I think for the purposes of picking the best and worst parts of the Constitution on September 17th, you should be commemorating the Constitution

as it was signed on September 17th, 1787. So with that, David. And by the way, you can't pick the three-fifths clause. Obviously, we all know that we can have a whole conversation on the original sin of the U.S. Constitution being the three-fifths clause compromise, obviously. So let's just take that right off. Can't even come close to picking it. I don't even want to hear an homage to it being the worst. We know. We know. So, setting aside the obvious, give us something interesting that you think is the best and worst parts

of the originally signed on September 17th U.S. Constitution. So, in the interest of healing this breach that apparently opened uh last week with the delayed podcast i will acquiesce to your terms um ignore the best parts of the constitution uh and talk about the original the original document um so i have i don't have a specific you know we've stipulated that the three fist clause is, uh, the worst and we're, we're, we're stipulating to that. So what's the second worst? Um, I'm going to say, I'm going to have to pull back to the 30,000 foot level, Sarah. And I think there is a flaw, as much as I love the separation of powers, that I think the founders got something wrong. And we've talked about this before, and it dogs us to this day. And I'm not sure how they could have fixed it, but this is my wrongness. I think they incorrectly presumed the extent to which the various branches would view themselves as independent institutions and not as part of a larger partisan whole.

power over the judiciary, over the presidency, the power of the purse, all of these things put Congress as arguably the supreme branch. But that's the intent. That's the intended structure. But the power of partisanship has rendered Congress in many ways the least important branch of the three branches, with the president assuming an ever larger share of the national power. Because Congress doesn't have much unified institutional sort of jealousy about its own place in the Constitution. And I don't know how you fix that, but I do think the founders presume

there would be greater institutional jealousy set it up for institutional jealousy and in fact partisan polarization became more real so that's my 30 000 foot critique okay and that's your worst that's worst yeah so i have um three worsts. Okay. Ranging in importance. Coming in at number three is the State of the Union clause. Ha! I mean, is there a more boring speech that is given than the State of the Union every year?

There's just, they needed to be more specific or less specific i don't know but that thing is miserable to me and just a waste of my time each year and i don't enjoy it uh coming in at number two you got to pick the commerce clause here i don't think they could have known what the commerce clause would turn into in the 20th century, but they could have been more specific. True. Coming in at number one, though, I will borrow from Justice Scalia, who said this was the biggest mistake in the Constitution, which is that the amendment process is far too difficult. Elaborate. Hmm. Elaborate. The Constitution was not meant to be a living document, as the left says, but it also wasn't meant to be stagnant and unable to change because what ends up happening if you're not able to amend the Constitution is the living Constitution theory becomes far more, not just palatable,

but almost necessary in order to read into the constitution. Well, if they had known about the internet, then this term would mean yada yada because the legislature and the presidency are slow moving and they're meant to be slow moving. The judiciary has had to fill in so much of that to evolve as, as our society has evolved, but also just as like technology has evolved and, and stuff that, um, the constitution, we would have no problem fixing if the amendment process were much easier. But at this point, nobody even thinks the amendment process is possible. So there's not even real effort put into amending it anymore. And I think that if I were to guess what will bring down the U.S. Constitution someday, that I hope is far, far in the future, it will be that inability to adjust to new

circumstances with any sort of alacrity. Interesting. Interesting. In other words, what it does is it creates an almost irresistible temptation towards living constitutionalism. Yep. You basically, even at the parts that conservatives would agree, you're still doing some version of living constitutionalism when you have to read the U.S. Constitution onto radically different circumstances 240 years later. Interesting. You may have persuaded me on that point. That's fascinating. That was an unexpected one. The State of the Union, listeners couldn't see, but you could see me almost jump out of, you could see me almost jump out of my seat to give you a standing ovation. Like the State of the Union. Yeah. So can I, can I add a specific sentence that I have grown to dislike?

Yes. I feel like, you know, I'm a constitutional conservative. I feel like this is sort of like somehow like in a secular sense, vaguely blasphemous, what we're doing. But the founders were not infallible, and we've learned a lot of lessons. But here is this sentence, and this actually will help us roll into the next topic, but we still have to talk about the best parts of the constitution. Here's the sentence that has grown to be so contentious about what it means. The executive power shall be vested in a president of the United States of America. This is sort of the, the heart of the unitary executive theory.

It is in that phrase, the heart of the unitary executive theory. It is, in that phrase, the executive power is not a self-defining, obviously defined phrase that has been... Right, and versus Article 1's sentence, the equivalent sentence is,

all legislative powers herein granted shall be vested in a Congress of the United States. Yes, exactly. Exactly. And so that could have easily been fixed by all the executive power here in granted. It doesn't it does not say that. And so this has led to an enormous 200 plus year argument over the power of the president, which the president usually has tended to win. Indeed. And often just winning by acting, winning by doing. So, all right, Sarah,

favorite provision and or provisions? Okay, I'm doing the same thing. So coming in at number three, and this one's really just because, do you ever read something? And as you're like reading along, like for the most part, you're like, yeah, I mean, maybe if I had really sat down and thought about that, yeah, I could have come up with that.

And then you're like, boom, I never would have thought of that. And that is how I feel about the Senate being divided into three classes so that we don't reelect all the senators every six years, but rather we elect one third of the Senate every two years. That is genius. And I just never would have thought of it.

So like kudos to the founders for good job. Good job. Uh, coming in at number two, life tenure of judges. Uh, I think that we're having a conversation now about whether Supreme Court justices, for instance, should have a 20-year term on the court. And I'm actually very interested in that conversation. I don't think it's crazy both to talk about or even to maybe do it at some point. But to initially have judges with life tenure was so important to letting the constitution last this whole time that uh if we change it it will not be an acknowledgement that they never should have had life tenure and but rather that the constitution has endured as long as it has we can now tinker with some things fine so good job on the life tenure coming in at number one controversial though it may be and again this

goes to what i think um the best provisions of the constitution in my mind are what has allowed it to survive for 240 years not like things i think are working super well but no doubt what has allowed the constitution to survive this long? The Electoral College. Ah, elaborate. The Electoral College was a genius compromise in the writing of the Constitution that balanced the population centers of the country with the small states to form a union,

because otherwise you never would have ratified the Constitution. There are other things. There are arguments over whether the Constitution could have been ratified with or without the three-fifths compromise. And I do have opinions on that. But there is no question that the Constitution would not have been ratified without the Electoral College compromise. So A, it creates the Constitution in not have been ratified without the Electoral College compromise. And so, A, it creates the Constitution in the first place. It would not have existed without it. But then, in terms of the enduringness of the Constitution, there have been endless times where the population centers have moved to specific parts of the country. But because we have the Electoral College, the country as a whole's interests,

I think, have allowed it to accept election results that otherwise would have caused endless fracturing. I mean, we have had a civil war. It was based on regionalities. But I think those would have... It would have broken up the entire country in the first 150 years, and it would not have been able to come back together after the Civil War without that compromise being put into place. So kudos, Electoral College. Here we are in 2020, chugging along? Well, you know, it's really interesting you bring that up, and then I'll get to mine. You're singing my song about the Electoral College and the way in which the Constitution has a number of forget is that enduring majoritarian rule, to some extent, still requires the consent of the minority in the sense that the minority has to still say, yeah, I still want to be a part of this union. I consent to be governed in a union, even though I believe or see myself as a persistent minoritarian

faction and that i think is part of the genius of this thing because uh we look at we look at america now and we we presume and we often presume it's union and that's one of the arguments in my book is that we may wrongly presume it its union considering how much we continue to ratchet up hatred for each other red and blue in this country. But we kind of look at it and presume its union. hole, not larger geographically, but certainly larger hole in power and numbers between the Great Britain breaking off from the British Empire, they broke off from a larger hole. So they were keenly aware that if circumstances for a distinct minority grow intolerable according to that minority, they'll leave. It will disrupt the union. And I think that that was one of, I agree with you completely that this was one of those breaks on majoritarianism that was vital and remains vital to the continued existence of the

United States. Now, here's the interesting question though. So this is the response that for most of my lifetime seemed far-fetched. For most of my lifetime, it was completely far-fetched, this idea that this structure could lead to not just a break on majoritarian rule, but could it potentially lead to sustained minoritarian rule by, as populations supercluster on the coasts, leaving potential decisive majorities of the electoral college in the hands of less populated American areas so that you could, in fact, create a political faction that could consistently win in spite of never possessing majoritarian support. And that's an interesting, that was not something that has really been a persistent issue

in American history. But since there were two of the last three Republican presidential victories have come through minority of the popular vote. And as the large state, small state disparity is growing, there's an interesting argument about how much will people be willing to accept potential of minoritarian, not just protection of minoritarian interests, but how much would they be willing to accept minoritarian governance? And that's a fascinating issue of, you know, in contemporary days.

All right, let's hear your favorite. My favorite is, and it's really just sort of a it's really sort of a theoretical favorite, Sarah, but there is this part of the Constitution that a lot of Americans don't know about at all. But I bet listeners of advisory opinions know about disproportionately. Where in theory, the people of the United States could get so frustrated with the federal government

that they can call a constitutional convention all on their own, trumping the House, the Senate, the President, and the Judiciary. And this is in Article 5, when two-thirds of states call a convention for proposing amendments, and then those amendments can be ratified by legislatures of three-fourths of the states. This is in Article V. And so there's sort of a constitutional ripcord against total federal dysfunction. And I just think it's cool. There are Article V groups that are out there. Nancy has worked with Article V groups. My wife, Nancy, has worked with Article 5 groups. And it's just an interesting sort of constitutional sort of like emergency break or

that I think it's probably not going to be invoked because the same reasons you talked about, about the difficulty of amending the Constitution in general. It would require a lot of unanimity or a lot of consensus, but it's an interesting provision. I like it. And then the other thing is, darn it, maybe I'm biased, Sarah. I just like basically all of Article 3. Just an Article 3 fan here. I'm an Article 3 fan, and I'm an Article 3 fan because it really was an important advance to enhance judicial power to such an extent. Because if you go back to sort of the old monarchies,

the idea of an independent judiciary, I mean, the king was the final court of appeal, right? The king, part of this whole thing about a king holding court, for example, was you come in and you present your disputes to the king. There's some great depictions, highly fictionalized depictions of things like that in, for example, Game of Thrones, where Daenerys is holding court and someone brings in the evidence that her dragons are killing people. I don't know why you think that's highly fictionalized. That's weird. It felt very realistic. Just your description of it sounded really realistic of it. Dragons do kill people. But the elevation of the judiciary in such a clear and unmistakable fashion, I think, was a real advance for the rule of law and creating a sustainable constitutional republic. So those are my favorites.

All right. Well, listeners, if you want to know David's hot takes on the Bill of Rights, you can remind us in the runup to December 15th that it's Bill of Rights Day, and we can do that then, can't we, David? And we shall. I will remember, but maybe you will. I might. I'm not sure. Setting a calendar reminder. Let's take a short break and thank our sponsor, ExpressVPN. Have you ever wondered why internet access is so much cheaper these days, like 30 to 40 bucks a month? It's because internet service providers like Comcast or AT&T aren't just making money off subscription fees. They're also making money from spying on your internet activity and selling your history and data to big tech companies. So what's the best way to make sure

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That's e-x-p-r-e-s-s-B-P-N dot com slash opinions to learn more. Well, let's move. Should we move directly to the bar? Let's move directly to Barr, and then we'll get to pandemic and 270 and all our manifold. Yeah, so speaking of Constitution Day, yesterday on September 16th, Bill Barr gave his Constitution Day address, which is fairly customary for an attorney general, at Hillsdale College, which is a private college in Michigan. Pretty sure that's in Michigan. Yes. Known as being quite conservative.

And it's making some headlines. Now, the parts that are making headlines are that he compared federal prosecutors, career federal prosecutors to preschoolers. That's the main headline that I've seen. Let me read that section just so we can get that out of the way. name one successful organization where the lowest level employees decisions are deemed sacrosanct. There aren't any. Letting the most junior members set the agenda might be a good philosophy for a Montessori preschool, but it's no way to run a federal agency. Good leaders at the Justice Department, as at any organization, need to trust and support their subordinates, but that does not mean blindly deferring to whatever those subordinates want to do. However, the speech itself is much longer than that. And he basically sets out the case that one, political supervision at the Department of Justice is not just good, but vital. Two, that detachment in prosecutions is important. And that part of that is advocating just and reasonable legal positions and not expanding

criminal law to fit bad conduct, but the other way around, using the criminal law as written, not creatively, to punish the conduct which clearly fits within it. So David, which parts do you take issue with? We're sort of doing the same thing with the U.S. Constitution. What parts did you like about the speech and what parts didn't you like well the first the part that i loved about it was um when the attorney general talked and in and and spoke with real and and very prime real and very um salient examples about how there is an effort sometimes, not all the time, but sometimes to identify misconduct and then to try to expand federal law to fit that conduct, just as you said. And this is something that has not only been a problem sort of at the

prosecutory level, but it's also a problem with the drafting of criminal statutes, which have been drafted, many of them in ways that are quite broad. I would urge folks who are really interested in the expansion of federal criminal law and how federal criminal law, it's been expanded not just by Congress, but also by prosecutorial discretion to check out my friend Harvey Silverglate. He's one of the co-founders of the Foundation for Individual Rights in Education, which I used to work for and run many years ago. And he wrote a book called Three Felonies a Day, essentially noting that because of this expansion of the law, there are people who can inadvertently stumble into the commission of federal felonies, which is kind of a shocking idea. But I did like his condemnation of that practice. And he

specifically brought up, for example, he said the department insisting that a Philadelphia woman violated the Chemical Weapons Convention Implementation Act, which implemented the Convention on Prohibition on the Development, Production, Stockpiling, and Use of Chemical Weapons and Their Destruction by putting chemicals on her neighbor's doorknob as part of an acrimonious love triangle involving the woman's husband,

which was an application that was rejected in a Supreme Court case called Bond v. United States. So that... See, my favorite... wait, real quick, that's not even close to my favorite, which is Yates v. United States, which is where the guy was illegally fishing Red Grouper and in order to get away with his devious crime,

although actually I take overfishing very seriously, but nevertheless, there's humor involved here because he destroys his undersized Red Grouper so as not to get caught and was charged with a violation of Sarbanes-Oxley, which you may recognize as being really to go after, you know, Wall Street and white collar crime. And Sarbanes-Oxley criminalizes the destruction of any record, document, or tangible object to obstruct a criminal investigation. It was a 5-4 vote, actually, at the Supreme Court. So I'm not sure that it actually backs up Barr's point as well as he thinks it does. But by 5-4, the court said that a tangible object meant, in context, an object used to record or preserve information and therefore did not include fish. Yeah.

I remember that case. I remember. I just like the idea of this, you know, all these undersized red grouper being like, no, no, we're tangible objects, please. But I love this sentence that he used. Taking a capacious approach to criminal law is not only unfair to criminal defendants

and bad for the Justice Department's track record of the Supreme Court, it is corrosive to our political system. And then the next sentence is great too. If criminal statutes are endlessly manipulable, then everything becomes a potential crime. This goes to a lot of what we've been talking about when we talk about police reform, when we talk about criminal justice reform. Way back, right after the George Floyd

killing, I wrote a piece and I talked about our mutual friend Jane Koston at Vox had a pretty simple beginning reform plan that was in qualified immunity reform police unions and have fewer criminal laws. Well, one step to fewer criminal laws is to not read the existing laws in an overly expansive manner. So that was my favorite. What about you, Sarah? No question that that, I think, was not just a point that needed to be made in general, though it did, but a wonderful point to make on Constitution Day. And I wish that the entire speech had been on that because I think it deserved, in fact, its own speech. As we've seen, the headlines are all about the preschool comparison. And I wish that the entire speech had been on that because I think it deserved, in fact, its own speech. As we've seen, the headlines are all about the preschool comparison. And I wish that that had been a separate speech with its own set of headlines because I think that he could have, for instance, sorry, I just love the Yates opinions so much. I mean, this little red grouper, I just feel for them.

But he could have made a whole speech and gotten some good headlines, quoting, for instance, Justice Kagan's lovely dissent in Yates, where she says, a fish is, of course, a discrete thing that possesses physical form. See generally, Dr. Seuss, one fish, two fish, two fish red fish blue fish parentheses 1960 so my here's my question is that a clerk insertion that she ratifies or is that does that spring from the brain of elena kagan i think that is an Allegheny-Kagan special. Okay. And by the way, that dissent was Kagan, Scalia, Kennedy, and Thomas. But nevertheless, I think that this deserves a lot more attention, a lot more time, a lot more speeches by attorneys general. And short of the speeches, hell, I'll take a lot more attorneys general believing it and reining in federal prosecutors

from doing those things. But this brings us to the rest of the speech. I don't know anyone disputing the fact that attorneys general have an important role and that US attorneys have an important role when a prosecutor comes to them and says, this guy destroyed federal evidence. They were undersized grouper. I'm going to use Sarbanes Oxley for the U.S. attorney or the attorney general, the deputy attorney general, who actually is the deputy attorney general is normally the one to make these decisions at the Department of Justice. And to say, you know what? I'm a political appointee. I am accountable to the people or more so rather than a civil servant.

And that is something that we're not going to stretch Sarbanes-Oxley to do. I understand the conduct's bad and God save the undersized grouper. But we have a penalty for that. It's just not destroying the undersized grouper and destroying this tangible evidence.

And we're just not going to do that. And that's what me as a political appointee is going to set as the judgment for the Department of Justice. That is very different than what Barr is actually pushing against when he says that political appointments are necessary to the functioning of the department of justice because he's you know frankly talking about the flynn thing and the stone thing and cases that we've covered that's using political judgment politics judgment let's say not accountability judgment yeah politics judgment i judgment, I don't agree, is the backbone of the Department of Justice and core to its functioning. Accountability is,

and that's why I think the criminal justice part is so important, but using politics to determine whether a criminal defendant is popular or unpopular is antithetical to the role of the Department of Justice. And that's setting aside the corruption side. Let's assume, Bill Barr obviously doesn't think that corrupt motives are a good way to run the Department of Justice. That's not what he's arguing for. I'm taking his argument at face value.

His argument is that political judgment in bringing prosecutions is important. judgment in bringing prosecutions is important. And I think that that is incorrect. Right. So here's what I took issue with, and this sort of goes back to the unitary executive comments I made earlier, is he really comes in as if, and says, it's as if the truly relevant individual in the Department of Justice is the political appointee, the attorney general. And yes, he is the boss with some butts attached. And then under him, the really relevant people are the U.S. attorneys. the U.S. attorneys. The problem that I have is that what's really relevant in my view is the enforcement of laws passed by this entity called Congress. And so the DOJ is not just a sort of, the DOJ is sort of not the president's instrument, and Barr and the DOJ is then not the attorney general's instrument.

This is a creation of Congress required by Congress to enforce laws passed by Congress. And yes, it needs a boss. Yes, it has to have a boss. Of course, virtually every institution created by the mind of man has a leadership structure to it, either de jure or de facto. But what was interesting to me is it seems to be essentially saying that a lot of these traditions that have been built up within the DOJ that are one of the reasons why decisions are often pushed down to a lower level. There's a couple of reasons.

One, if you've been involved in any really big law firm, you know why. Because cases are complicated. And do you know who doesn't know a whole lot about the complicated cases? People often four, five, six steps removed from decision making processes there's a really big a good reason why you hire attorneys you trust and then allow those attorneys to to litigate their cases it's a very practical reason no boss can be the expert on all of all of the cases in his office i mean, there's a lot of authority and autonomy delegated down to JAG officers.

The Army JAG Corps is the largest, aside from the DOJ, the largest law firm in the United States. And there's a lot of reasons why you delegate. The other reason is that what are these folks doing? They're not enacting the agenda of the attorney general. They're prosecuting laws, prosecuting the violation of laws passed by Congress. That's an important distinction here. And so they're not just the instrument to be wielded by the attorney general. They're the instrument of law implementing with supervision of the laws or enforcing the laws with supervision passed by Congress.

In my mind, Sarah, that creates a logic that says we need to depoliticize the decision-making even as we retain the political accountability over the decision-maker. Yeah, I mean, and here's a part that I very much agree with because this isn't black and white. There's a lot of gray in between. So, for instance, he says, line prosecutors, by contrast, are generally part of the permanent bureaucracy. They do not have the political legitimacy to be the public face of tough decisions, and they lack the political buy-in necessary to publicly defend those decisions. Nor can the public and its representatives hold civil servants accountable in the same way as appointed officials. Indeed, the public's only tool to hold a government accountable is an election, and the bureaucracy is neither elected nor easily replaced by those who are. Now, this gets to a totally different problem, which is perhaps we have gone too far with civil

service protections and that we are unable to remove anyone who is part of the permanent federal bureaucracy, even for misconduct at this point, really. And I do think that's a real problem. I don't have a problem with him pointing out that, but instead of him saying, therefore, we should make it maybe perhaps a little easier to remove civil servants. Instead, it's therefore all political judgments by all political appointees are good. And the judgments of subordinates are to be sort of, uh, well treated like preschoolers, I suppose, which I thought was silly. And, you know, there's a lot of straw men he includes in this speech in a speech that again, like if you were just to give me the top level i would agree with but um in he's using scalia's descent in morrison v olson and uh this is bar's speech as scalia also pointed out it is nice to say and please excuse my latin pronunciation it's not i mean can't do it okay fiat justitia ruet column let justice be done though the heavens

may fall but it does not comport with reality it would do far more harm than good to abandon all perspective and proportion in attempt to ensure that every technical violation of criminal law by every person is tracked down investigated and prosecuted to the ninth degree. But that's not what we're talking about. No, no. Total straw man. Yeah. Total straw man. So, some things to like in this speech. Some things that maybe, I think,

could have been more thoughtfully articulated. Well, and then there was the answer, I believe, in the Q&A, where there's sometimes dangers in public officials going off script, such as this statement, other than slavery, which was a different kind of restraint. This is talking about the stay-at-home orders and lockdowns this was the greatest intrusion on civil liberties in american history it was a different kind of restraint that is the understatement of well not just the century but i would say approximately 400 years but I would say approximately 400 years.

Internment, I mean, even apart from slavery, internment, Jim Crow, Trail of Tear. I mean, wow, wow. Every now and then you can, every now and then it leaks through that you can see that even some of the more astute members of the administration have spent too much time maybe online or watching some primetime Fox because that is something else to make that kind of argument. Property owners vote, not letting women vote, really just not extending the franchise was actually a pretty big intrusion into civil liberties and maybe bigger than wearing a mask.

Wearing a mask or staying home for a few weeks while a respiratory infection that is so far killed now more than 200,000 Americans was raging through our communities to an extent that we could not determine because we could not test adequately. My goodness, Sarah. And by the way, that's not to minimize the stay-at-home orders, which I think were pretty draconian in some places. But we've had worse civil liberties intrusions. I'm sorry, just don't make hyperbolic statements. It is draconian. I don't mind if you describe it as such. I agree that it is. The question is whether it was proportionate to the problem we were trying to solve as a nation and whether it was constitutional to do so. I think in this case,

for the first, let's call it three months, I do believe that it was proportionate. three months, I do believe that it was proportionate, and I do believe that it was constitutional. Now, and those are the only questions for me. Yeah, well, and the constitutional aspect of it is probably the least contentious and least controversial of the two. The proportionate part of it was very difficult to determine because there was so much we didn't know about the virus. So, David, let's have a new advisory opinions rule. There's one rule that is just well-known everywhere, which is if you're comparing someone to Hitler in a political debate, you've already lost.

That is a known political truism. But let's make a legal truism. If you're comparing anything to slavery, you've already lost i like legally so it's when you bring up the nazis you violated what godwin's law or the or godwin's law has come has uh has been invoked that's when you invoke godwin's law you lose when you bring the nazis in yep um so we'll just call this Sarah's rule. Yeah, this is a legal rule that if you're comparing anything legally to slavery,

you've already lost. Right. So, you know, here you have, in two important instances, important instances, you have the injection of hyperbole into the argument just begins to drain it of any resonance outside of a very small sort of very small base of a Republican base of American voters. The first being there is a really serious argument to be had about the extent of the autonomy that permanent the, you know, the career civil servants in the DOJ should enjoy in their prosecutorial decisions.

There's a real argument to be had there, and there aren't super easy answers. By strawmanning the heck out of it, you make the worst possible argument for your position. also a very serious argument to be made that, look, we don't need to be, especially as we're now in well into the seventh month now of the response to the pandemic, that the constitutionally, the reflexive argument that these lockdowns and various stay-at-home orders are going to, are valid, have been valid, and continue to be valid. We can't just reflexively make that argument. But then by saying it's, I guess, worse than internment, Jim Crow, denying the franchise, yada, yada, trail of tears, yada, yada, yada, you're not even making an argument, really.

And speaking of the constitutionality of stay-at-home orders, let's move to we're now month six and things are shifting. As we discussed in March, the constitutionality of or the deference to such orders would decrease over time because that is in fact what is contemplated by the constitution. Yeah. Yeah. by the Constitution. Yeah. Yeah, there's an interesting case that sort of lit Twitter on fire briefly that was a district court decision. William Stickman IV,

United States District Judge. How well do you know Judge Stickman? I do not know Judge Stickman. You're pulling my leg. So Judge Stickman, he issued an order striking down a number of aspects of the state of Pennsylvania's closure orders. you know rather than sort of dive into the ins and outs of the district court opinion which is going to be reviewed at the at the circuit level and perhaps ultimately reviewed by the Supreme Court this was the interesting paragraph I have thoughts but I want to read this paragraph to you and get your thoughts Sarah okay to examine the issues presented by plaintiffs

the court first had to determine what type of scrutiny should be applied to constitutional claims. Editorial break. Faithful AO listeners will know we've talked about levels of scrutiny will often determine the victor of the case. Just determining the level of scrutiny is often going to determine who wins, who loses.

Okay, end editorial break. As explained at length below, the court believes that ordinary canons of scrutiny are appropriate rather than a lesser emergency regimen. The court next had to determine whether the question of business closure and the related stay-at-home provisions of the defendant's orders remain before it. Well, all the rest is not that interesting. This is the key. This court held and applied ordinary scrutiny of state restrictions on constitutional liberties rather than the emergency sort of pandemic law that we have seen in the last few months.

And that's why, once it made that scrutiny, that determination, these things had no chance. I mean, they had no chance. So that's the key of this case. Sarah, thoughts? I got an awesome DM from a listener about this exact opinion just like eight seconds ago or something. So I just want to read a part of it because it's awesome. I really felt like the opinion was a good guide warning to governors and executive branches about how even in an emergency, the process needs to be well thought out. Or as you guys have said before on the podcast, the lawyers need to quote, do better. I really couldn't believe that

the judge struck down one part of the order on which businesses were life-sustaining and which were not, saying it failed under rational basis. I'm not sure that's legally the right call by the judge, but wow, if you are a counselor to the governor's office, and I'll put my own princes here, and six months later, you can't write an order that meets rational basis review in a pandemic? I mean, just turn in your bar license at that point. Who is that listener? And put them on the pod. Thank you, Matthew.

And here's why I agree with Matthew. I think part of the leniency that is built in, in the beginning is we also don't want you sitting there, uh, overwriting and sitting there in a room full of lawyers and dotting every I and T for six weeks to address a pandemic when we need you to get orders out immediately within the first day or two. And so there's some leniency there. Oh, you didn't do a good job writing it. You know what? We're going to read this in the most lenient way we can. It has been six months. You could have had lawyers in a room for six months writing an order that could have passed rational basis, frankly. One, I mean, this is the most lenient, still level of non-pandemic law scrutiny that we have

where it needs to be rationally related to a compelling government interest. That's just not hard, as Matthew points out. So to the lawyers in the governor's office, I would say do better. Yeah, so here's why I think that general, the decision that he made to apply ordinary cannons of scrutiny is correct. Like the, the level of scrutiny that he applied,

I believe was correct. And it goes, it, it, it goes all the way back to stuff that we said at the beginning of, of the pandemic, which is look at it like a sort of a sliding scale. The lines are grayish here and blurry, but look at it as a sliding scale. When you open up, when you're beginning in emergency circumstances, what you basically know is this disease is highly infectious. It is far more fatal than the flu, for example.

We have no built-in resistance to it as a as a um as a uh community and there's also by the way a lot we don't know about it including how extensively has it already spread in the country so this is sort of like your classic fog of war, confused pandemic situation in which from the beginning of this republic, it's been pretty darn clear that the police power of the states is going to be at its, basically at its absolute apex. But do you know what happens from that moment forward? From that moment forward, we learn- You mean what's after the apex? Not more apex. Yeah, what's after the apex not yeah what's after the apex not an apex

we learn more right that's very very important here so rules put in place when we you know we might not have known the effectiveness of masking for example or social distancing or the rates of of uh spread at different populations, etc., etc., etc., that the government's primary responsibility, it's still to protect constitutional rights along with public health. And so it should not be saying, well, so long as the pandemic lasts, the same kind of standards that apply in the sort of panicked, scared, terrified, uncertain first few days and weeks continue to apply. And in our good graces,

we'll ease them up as we deem fit. That's not how this works. David, I also want to make sure sure the thing that made headlines about this opinion is the lochner era portion of it can you uh share our listeners a little on the lochner era well this is this is sort of the lochner era is sort of looked back on a uh much a lot of people sort of sneer at this as sort of the pre-New Deal version of economic and economic rights that placed a high premium on economic freedom and a high premium on much more than we see today. much more than we see today. We have all grown up, virtually every single living human being has grown up after the, what was it called, Sarah, the switch in time that saved nine? That's right. Yes. So for basic, a basic bit of background is as during the depression, as, and this is an oversimplified history, but time is a factor, as the New Deal began to roll out, there were legal challenges to the economic regulation

within the New Deal on a multiple basis. And some of these economic regulations and economic reforms were being struck down by the Supreme Court of the United States, which frustrated Franklin D. Roosevelt to a great degree. And FDR at the time happened to be one of the most powerful peacetime presidents in the whole history of the United States, because most presidents who are presidents in time of crisis assume and are given great power. assume and are given great power. And this was when FDR and others began to ponder the possibility of packing the court. Because we go back to our very beginning discussion, our very beginning discussion,

there was no set number in Article III of nine justices. The number of justices is determined ultimately by Congress. And so the question was to allow the New Deal to come forward, should the court be packed? Well, before the court could be packed, a remarkable thing happened, Sarah. Suddenly. Well, something actually that people may find hearkens to today. Yes. The Chief Justice of the Court, Charles Evan Hughes, became the swing vote. He is the switch in time that saved nine, meaning that there would only be nine seats on the Supreme Court.

And it is seen as a very institutionalist thing that he did. And of course, right now, there are lots of conversations about how to change the Supreme Court, add seats, term limits, etc. And you once again see a chief justice become the swing vote on the court who is also seen as an institutionalist. Coincidence? Perhaps. Yeah. I would say coincidence, probably not. But, you know, one of the interesting aspects of it is when you talk about the switch in time that saved nine, it wasn't necessarily that the court

just summarily overruled a bunch of its prior jurisprudence. It just moved on from it that's right um and so you know there's a there's sort of this really small segment of the conservative legal movement that is like you know what do you think sarah did like once a year did they get together and like light a candle for lochner, for sure. This is like the, they're quasi-libertarians. I don't know what to call them, but they're the conservative judicial activists where they believe that the court actually should

take a far more active role in protecting economic liberties the same way they do, for instance, criminal justice rights and things like that. And, you know, it's a minority of the conservative legal movement, but it's growing. Yeah, you know, it's a minority of the conservative legal movement, but it's growing. Yeah, no, it is. And in parts of it, I'm all about,

like the occupational licensing restrictions. Yeah, this is Institute for Justices, pet thing, Clark Neely, who was there, litigated a bunch of those. And his book is called Judicial Engagement

versus Judicial Activism. So if the left wants to call it judicial activism, the right will call it judicial engagement. But they mean the same thing just for different parts of the rights. And in fact, a lot of folks look at that economic libertarian movement within American constitutional conservatism and view it as somehow sort of, gosh, like preserving predatory capitalism or in opposition to social justice, when in reality, in particular,

the occupational licensing, the attacks on occupations. And let's explain what that is real quick. That's like where you have to go to two years of school and pay all this money to get a license to be a florist in Louisiana, for instance, or a license to do hair braiding in Texas or a license to do horse dentistry. It turns out in a lot of places who knew horse dentistry was such a thing. And sometimes even things as simple as like becoming a, say a tour guide or a docent or a, I mean, it can get protectionism of course it's protectionism, right?

It's the people who already are florists in Louisiana don't want increased competition from new florists. And so they create a licensing regime. There's some capture, political capture of the state legislature who then passes a licensing regime because maybe they've gotten a lot of donations potentially. And so then the, let's call it 500 licensed, quote unquote, florists get grandfathered in, and then they prevent anyone else from entering the market. So then their rates can

go up. And then consumers, of course, have to pay more for flowers in Louisiana than anywhere else, because no one else is allowed to make a floral arrangement. Yeah. So occupational licensing is oftentimes an inhibitor of economic equality and social justice. And of course, particularly hits poor communities, people of color, basically anyone who does not have political capital to change those laws or the money or time to engage in a long licensing process. So Sarah, my opposition to occupational licensing has led me to put my civil disobedience where my mouth is. And have you ever gotten your haircut at an underground barber slash tattoo parlor? No, that's interesting. I did go get my haircut for the first time

since the pandemic started quite recently and was talking to my new hairdresser about the licensing process because he has to do, like you have to do cosmetology and a whole bunch of sanitation stuff to get your hairdressing license, even though most of the sanitation doesn't apply to hairdressing. Yeah. Well, I, so I used to be a, I was actually spent some time in

my life as a, as an interim youth pastor. And that was probably about the time when you would have been in the age to be in my youth group, Sarah. It was a killer youth group. But our ministry outreach was mainly to underserved and at-risk communities of youth in our town. And one guy had this phenomenal, just natural talent at cutting hair. And also, he was a tremendous tattoo artist, but he didn't have anything like the financial resources or, you know, and,

and, and just, especially when you're very young and you're just starting out, a licensing process often is a pretty daunting thing. So he just went ahead. Or imagine if you're a new immigrant to the country and you want to do eyebrow threading or, you know,

things that maybe were quite natural in your country. You come here, you're better than everyone else who does it, but you don't have five years to go through a licensing process to be an eyebrow threader. Yeah. So he started his own business and I was one of the first ones in the barber chair, but I did not go through on the tattoo side of the operation. And we're all very disappointed to hear that. Very disappointed. Yeah. Yeah.

So anyway, we've gone off on Lochner a little, but yeah, so he cites Lochner in this Pennsylvania opinion. Yeah. And I think that the really important part of this, because the economic side of this, the economic regulation side of this sort of lit up progressive legal Twitter as outrageous. I thought that was actually much less interesting than the decision to apply traditional levels of scrutiny to pandemic regulations. But that doesn't make us find a headline. Pardon? that doesn't make a spot a headline. Pardon? That didn't make as dramatic a headline.

No, it does not. Federal judge applies traditional levels of scrutiny to pandemic regulations. Clickbait! Yeah. How about, how about statism destroyed?

That would be a good one. But no, but see, here's the thing, though. Here's the thing. Even though I said the levels of scrutiny often determine the outcome, and they did to a large degree here, in part because the existing regulations were drafted in such a haphazard way,

the fact of the matter is well-drafted regulations justified by scientific, by best understood scientific truth, can survive these levels of scrutiny. But they have to be well-drafted, and they have to be justifiable by the facts. I mean, and they have to be justifiable by the facts. I mean, it's not too much to ask that of our public officials. As you and I both said, the time of the sort of fog of war uncertainty has passed.

We know so much more now than we used to know and our regulation should reflect that. Let's take a moment and thank bills.com for sponsoring this podcast. Being in debt is the worst. Credit cards, student loans, mortgages, doesn't matter what kind. Being in debt is the worst. Well, there is a way to defeat your debt. Thanks to Bills.com. If you're losing sleep over maxed out credit cards or stressed out thinking about your mortgage payments or student loans, Bills.com can help you take back control of your life. The first step to lowering your monthly payments and becoming debt

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they don't need Florida? Correct. Bill Stepien is saying they will win Florida, but that they don't need Florida. There are maps to win without Florida. And I think that's worth exploring because I've said previously

on this podcast that I think on election night, all eyes will be on Florida, how Florida goes, so the election will go, but it is worth exploring their point that no, they can lose Florida and still win. So if you put Florida in Biden's column, uh, and then you look at North Carolina, Minnesota, and Arizona, whoever wins needs two of those states. And this is, by the way, let me tell you the assumptions that I'm making. Georgia and Texas go red, as predicted. Ohio and Iowa go blue. I'm sorry, go red, as predicted.

go blue. I'm sorry, go red as predicted. And Pennsylvania and Wisconsin will have to go red. I am giving Biden Michigan in this scenario already. I'm sure there's some arguments that can be made that Trump can take Michigan, but assume Biden gets Michigan. That leaves North Carolina, Minnesota, and Arizona. So right now, Biden is leading in Arizona and Minnesota. That would mean he wins the election. So that's the 270 map right now. The Trump campaign is not wrong. If they take Arizona,

I'm going to see, I'm going to see. I'm going to turn my little map. They have to get Maine. They have to get one of the mains. All right, I'm looking. I've got my little 270 map here. Oh, nope, you're right. If they get Arizona and Wisconsin and Minnesota and keep Pennsylvania and Ohio and lose Florida,

that's 273 right there. And lose Michigan. Nope, it's 269. It's 269 and then they have to get one from Maine. Right, right. I'm assuming that the Maine one and the Nebraska one split as they usually do. Yeah, that would be quite the map. That would be a really strange map.

And I think it's unlikely because it's not, of course, the 270 to win thing, the map that you can play with at 270towin.com is super fun. It's a nice little game if you're bored watching TV. But the truth is, if Florida goes to Biden, it doesn't stand by itself. It means that a certain portion of the population has gone for Biden. And especially now where we have such nationalized elections, it tells you more about those types of voters than it does about Florida being special. And so if Florida goes for Biden, it's not that they can't win by the math. Hell, Republicans could win California. But if Biden wins Florida,

we can assume that Biden will also win California, for instance. And for that same reason, if Biden wins Florida, I think it's fair to assume that he will win Minnesota and that he will win Arizona, frankly. Yeah, the way I look at it is every state has commonalities and every state has quirks. So if you're winning a high percentage of a particular demographic in Florida, you're probably going to win a similar, not identical, percentages of that demographic

in other states because there's commonalities between those demographics, even as there are differences across states. And so that's one of the reasons why people say, hey, if Biden's popular vote margin gets above 5%, it gets really, really, really, really hard for Trump. And in part because that means that certain demographics that exist across the country, including in the swing states, would be moving in his direction.

It's not the case, as a general rule, that the scores run up by doubling turnout in California and nowhere else, for example. Yeah, you and I have also talked about some of these quote unquote swing States from even just eight years ago have, uh, become non-swing States. Iowa was considered blue. It's now considered red. And there's no reason to think that this time around it won't stay red. Virginia used to be considered deeply purple. It's considered blue now.

Nobody really thinks Virginia's up. Ohio, considered really a safe red state at this point. And remember that Ohio was the swing state. When you talked about swing states, you were talking about Ohio. Pennsylvania has clearly overtaken Ohio as that swing state. And Pennsylvania used to be really safely blue. Yeah, Arizona safely red. So the map does shift quickly. Yes, it does. It does. Iowa is one of the most interesting to me that we have reached a point now where the thinking is if Trump is in trouble in Iowa, that's a sign that he's just done, that there's no path for him if he's in trouble in Iowa. And Obama won Iowa in 2012 and Obama won Iowa in 2008. I mean, like, Iowa wasn't all super swingy before recently. So, yeah, these things do change. Although then, Sarah, if you live,

say, where I live, it ain't changing in Tennessee anytime soon. It ain't changing in Tennessee anytime soon. All right. Last up, we got a question from a listener. For each of us to share our biggest professional failures. Yeah. That's a good question. It's a good question.

I've certainly had endless professional setbacks yeah but and i've had a lot of professional poo-pooing if that makes sense of people sort of being mean to me uh-huh many of which i've kept in my heart to forgive and forget no, because it drives me like it's helpful. So in college, I applied for this like honors program in the history department. And I even helped some of my fellow students with their application because my application was so obviously better put together. I had a faculty sponsor already, something you didn't need. I had a, um, bibliography, uh, a partial bibliography for my thesis. Like I, I had done so much more preparation than you needed. You just had to write an essay that was like, I want to write a thesis. Here's vaguely what I think I might want to write on. That was all that was required. And I had done all this other stuff.

I got rejected. And my thesis, by the way, was going to be on religious rhetoric in Lincoln's speeches. And I sort of had a sense for why I might've gotten rejected, which is funny because I was not religious. They misunderstood who I was, but they shouldn't have been discriminating against who they thought I was either. So I wrote back and was like, please reconsider. I will not regret the time I spend on this thesis, regardless of whether you decide to give the thesis honors in the end. I just want to have the class time and the supervision to be able to write the thesis because I find it to be a really interesting topic that I'd like to spend my senior year on.

And the head of the department wrote back to me and said, it is not whether you will regret investing the time in us. It is whether we will regret investing time in you. And that was the entire email, David. Wow. The head of the history department at Northwestern thought that was an appropriate thing to say to a 20-year-old. Good night. Wow. I could see why that would fuel somebody. Yeah. And obviously, I remembered it to this day after sitting in my room by myself with the door locked and crying for two days.

But after that, I was ready to go. Well, that's like you're sitting in the green room in the NBA draft and you drop like 15 rounds and you just have this memory of every single person taken in front of you. Yeah, I think it was Draymond. And you will dunk over them. Yeah, I think it was Draymond Green who I was listening to a podcast because I think he dropped all the way to the second round.

And this is a guy who was first team, all NBA defense, like first team all or second team, all NBA three-time champion. And I think I'm sure a listener can correct me if I'm wrong, but I distinctly remember listening to him on a podcast list, every person taken above him in the NBA draft. And that was like his mantra, his fuel. Well, I will tell you, I was the only person from Northwestern from my year to get accepted to Harvard Law. And while I did not send that admissions letter to the head of the history department, I certainly knew all of the other students who were accepted into the history honors program who did not get in that year.

Fuel. It was fuel. Fuel. You know, I would say for me, I would put, there's two different sort of categories. One is the setbacks you mentioned. And those have primarily come in the sense of, I wanted something that I did not get. I sought something like that. And that has happened on more than one occasion where, you know, there is a position I applied for that I thought I was ready for, that I would have been good in that position, that I was, uh, actually thought I would

get it and no. Um, and then later to find out wasn't honestly really seriously considered, you know, sort of, um, wasn't even really as in the running as much as I thought I was. Um, and those kinds of blows are kind of more like ego blows. They sort of, they sort of readjust. They, they're sort of a signal. Why don't you readjust your opinion of yourself a little bit? Um, and, and readjust your, your, your own assessment of where you should be in this world, which is always really hard. Um, you know, it's one, one of the reasons for the midlife crisis I'm convinced is that

that's the point where a lot of men and women realize I can't reinvent myself. Like I've reached the point where I'm kind of, I am who I am and I have to either like it or not professionally and I think that there are points where you reach this you say oh this is where my limit is or this is an absolute roadblock towards this particular path and sometimes it can be a pretty shattering experience it can be a devastating experience. And at the very least, it shouldn't be an experience that causes reflection. So I've had those. And then there's this other category as a litigator that I just call professional mistakes. call. Or in a difficult case, I prepared insufficiently for a foreseeable challenge. And those have been even more difficult to deal with for me than a rejection. Because a rejection,

it feels like that's just me, right? That just impacts me. It impacts my family, but my family, we don't want for anything. But a rejection and a personal career ambition, that's something that's like self-reflection. You take that and you move on. If you make a mistake in a case, it's not as serious as when a doctor makes a mistake with a patient, hopefully. It's probably second to that, though. Yeah.

I mean, this is often the single most important thing going on in your client's life. And you are the steward of their cause. Their cause is in your hands. And those things are, you want to talk about creating self-reflection. Those are moments that really hit you between the eyes and should hit you between the eyes. If they don't, you've got a problem. And then another category is like mistakes of judgment

just in the path of your own career. Early on, I was too quick to change jobs. Like I had a wrong expectation about what the place a job should hold in your heart and how fun it should be. Yes. And that sounds naive and dumb. But when you're young, you're often, guess what, naive and dumb but when you're young you're often guess what naive and dumb and well we often tell young people like what is your passion pursue your passion and so then they're expecting to show up to work every day feeling passion and i have been very fortunate

i've shown up to work 80 of the days i've shown up i've been pumped to be work 80% of the days I've shown up. I've been pumped to be there. But 20% of the days, I would like to go back to sleep, to be honest. Yeah. Or I come home angry or upset or something else, and it wasn't a fulfilling day. 20% doesn't sound like much, but that's a lot of days. And we should probably set expectations a little better for young people that a job, they pay you for a reason. If it was super fun all the time, you'd do it for free.

Yeah. And the other thing that we should set expectations about is even if you're in a good job, which 80-20 is good. 80-20 is, I mean, the best of anyone I know. Yeah, yeah. 80-20, you're on the power curve towards like, you should be on your knees thankful for your career. As I am. But let's say it's, you know, what ends up happening,

it's like, say it's 60-40 or 50-50, what often, it's not every other day, it's often you'll have extended dry spells. Yes. And that's where it really gets you. Yeah, like when your podcast partners, you know, take 45 minutes to get up and running. Like that can be an extended spell.

So casually careless of your time. Exactly. It's those periods that you're liable to make a mistake. And I have left positions where I had great colleagues, was doing really objectively interesting work. It wasn't as interesting as my First Amendment practice turned out to be, thankfully, but objectively interesting work with great colleagues. And you're well compensated, and you're sitting there at your desk after five straight days of reviewing discovery until 11 p.m. going, my life is the worst. And you will make mistakes.

And you'll sometimes have impose on your – it's an injustice to your employer to impose on them your own unrealistic expectations. And then you make a mistake for yourself by imposing on yourself sort of an unrealistic idea of how awesome, incredible my career should be. Yeah. I mean, the worst year, professional year of my life is what I immediately thought of when I read this email of a professional failure. But it's so interesting, the buckets that you've created, because I'll tell you about it, but I'm not sure. Um, I'm not sure that I shouldn't be thinking about it a little differently now that you've said all of this. So I had joined a campaign. The campaign was put on hiatus and we were all sort of sent off, um, into the wilderness for a year with the promise to come back in a year to restart up the campaign for a variety of reasons. And I did that. So I stuck around, just got a sort of a fill-in job

for a year that I didn't love, that was hard, and went back to the campaign. They were like, yep, great. Here's your job title, et cetera. I quit my job that I didn't like that much because I was always expecting to. And then I was never hired. So I just became unemployed. Um, and it was a really bad time to be unemployed. This was right after the economic crash. And I ended up more or less unemployed for about a year because of that. And I've never gotten a good answer for what happened, why I was told that it was to quit my job, and then why... I mean, it was bad. I was never given where to show up to work. Just all of a sudden, my emails weren't getting responded to, my phone calls weren't getting answered. And I've always thought of that as a huge professional failure. It cost me arguably two years because I'd spent the year waiting for the job and then

the year of unemployment after. Those were important two years in my 20s and for my career. I was miserable about why it had happened. Being unemployed for me also led to a pretty real depressive state, I would say. But I think you're right that I need to really separate that from a professional mistake that could have cost a lot of other people something. And think of that more as a self-reflection on my own expectations and my own sort of choices and inability to make something work. And obviously, in the end, all's well that ends well, as is so often like, and I'm so glad that happened because that led to this and this and this. And this is one of those cases where I don't feel that way even 10 plus years later. It was a terrible thing to go through. I do think it was an unfair thing to happen, if that makes sense. That wasn't the way to treat people. And there's not a whole lot of argument that even if I had done something wrong, that that was sort of an acceptable thing to do.

even if I had done something wrong, that that was sort of an acceptable thing to do. And I think it's important to tell people that as they, you know, we're public, right? We put ourselves out there publicly. And so we almost encourage young people to say like, that's the career I want. And I want to make those choices and look how linear this whole path is.

It's not just not linear. I do think i'd like bang that into people there's a lot of like uh plinko it's a big game of plinko yeah but yeah unlike plinko there's also just failure and that to me was just a like poof a total gut punch for two years oh man so can i tell you uh we're running long, but this was just, y'all, a mistake. Okay. So I'm a young attorney at a big firm in Kentucky. Great colleagues. Probably learned more about how to practice law at that place than any place I've ever been before or since. Fantastic colleagues. Really interesting practice that was centered around representing

everything from coal companies in Eastern Kentucky, which by the way, you haven't met an eccentric group of people until you've met coal operators. And also like horse farms in central Kentucky as well, including, you know, some horse farms owned by, you know, like the rulers of Dubai. So it's like this really eclectic thing. I'm not the main lawyer on these things. I'm a young guy. I'm on the team, you know, I'm on the team and great colleagues, great law firm, high ethical standards, great personalities, great friends. But I worked really hard, and I was kind of ticked off about it, and I wanted to try being a law professor. So I just sort of up and quit. And Sarah, I didn't just up and quit. I wrote a memo. Oh, no.

Yes. You were the Jerry Maguire of this law firm? Before Jerry Maguire, I wrote a memo. Like, telling everybody at that awesome firm that had treated me so well. So, I am just turned 30. Okay. Okay. So, you're full of five years of law practice, basically.

I have five very significant years of law practice behind me. And you're going to tell them what's what. I'm telling the people who built the firm and had worked for it for 35 years how they needed to run the place. Awesome. I still can't believe I did this. Looking back on it, I can't believe I did this, but I did this. So I go to Cornell and teach there for a couple of years in the clinical program. But what I had neglected to realize,

and I had good colleagues there and I had a good experience there, but all my family was back south. We had just had kids. Nancy was pregnant with our second kid. And to go 1,000 miles or 800 miles or however many miles away it was when you have young kids on your vision quest for the perfect job wasn't great. So guess what I did, Sarah? I went back to my old law firm that I had written the memo to, hat in hand. And here is the exact quote from the chairman of the firm to the head of the Lexington, Kentucky office where I was trying to return. He said, quote, if you can stomach him, you can have him. I don't have words. So they did hire me back yeah they did i do think there's a point in everyone's career and it sounds like maybe that was your point and i've certainly had mine where you are so full of vim and vigor and your own self-worth. And at some point,

you overstep your own abilities. Oh my gosh. And overshoot. And you get smacked down so righteously that even you are like, ah, now I see. And it is good news the earlier that happens in your career.

Yes. Because some of the people who I think fail most spectacularly are people where that has not happened to them and they're all of a sudden 35 or God forbid 45 or God forbid older. And they still have that overweening sense of self-worth. And that doesn't mean you shouldn't be confident in yourself. You should, absolutely.

But there is a difference between confidence and delusion, like a 30-year-old who has practiced law for five years telling people who've been doing it for 35 years what's what. Who'd built the most profitable firm in the region, by the way. Yeah. But think about that sequence. It actually was a tremendous combination of discipline and grace in the sense of the contempt of the chair of the firm. If you can stomach him, you can have him.

Really put me on notice that I had been a bit of a... Obnoxious. Pretty obnoxious. But then the grace of the head of the office to take me back, the person who had been my, and I'd still call him my mentor in the practice of law, showed the value of mercy in sort of rescuing people from themselves.

And so that was a great learning combination for me, was that combination of that punitive contempt combined with a really large helping of grace and mercy helped me a lot. It helped me a lot over the years and also helped me as I got into positions of leadership myself, how to deal with the people who would behave remarkably the same as I did. Indeed. Alrighty.

This has been a mouthful of a podcast. Quite. Yeah. So we shall end it at the almost one hour and a half mark. I think if we ever cross over an hour and a half, we have to just keep going to the Joe Rogan four hours. That should be the marker. Cross the 90 minutes and you just keep plowing on to four hours.

But we're not doing that today. So thank you guys for listening. Again, please check out thed.com we're towards the, uh, well, we're half past the halfway mark of our free 30 day trial membership. Um, you can join now for 30 days for free,

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