Advisory Opinions - Waiting for the SCOTUS Hit Parade

Episode Date: May 18, 2023

David Lat stands in for Host Emeritus once more to help Sarah catch up on the latest Supreme Court decisions. Too, they take a detour on penmanship. -Why the justices make us wait -On Puerto Rico's sovereign immunity and Kagan's stylistic quirk -Durham Report -Judge Newman, age, and lifetime tenure -New law school rankings just dropped Learn more about your ad choices. Visit megaphone.fm/adchoices

This ad for Fizz is only 25 seconds long, but we had to pay for 30. Those leftover 5 seconds shouldn't just disappear, right? It's kind of like what happens to your unused mobile data at the end of each month. Except at Fizz, your unused data from the end of the month rolls over, so you can use it the next month. Hey, you paid for it, so keep it. Try the other side. Get started at fizz.ca. If you need some time to think it over, here's 5 seconds.

Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to another exciting episode of Advisory Opinions. I'm Sarah Isger, and we've got David Latt back again today of Original Jurisdiction. The other David is in Ukraine, and so we'll be able to talk to him about all of that. But he was sending some wild videos overnight. Patriot missiles taking Russian

missiles out of the sky above his hotel. I mean, so we'll look forward to that and many more stories when he returns. He is a braver man than I. I really salute him. But David, we have a big lineup today. In the meantime, we've got a few more Supreme Court notes to give, including a South Carolina Voting Rights Act case,

racial gerrymandering case that we'll need to dive into a little bit. The Durham report, little bit. The Durham report, we got to talk about it briefly. And then a few other notes here. The lawsuit filed by a sitting federal judge against her fellow federal judges and that shenanigans. The law school rankings are out. And a little shout out maybe for some incoming judges. and a little shout out maybe for some incoming judges. David, to start, we are expecting more opinions later this week from the Supreme Court. They are way behind still of where they normally are at this position. I thought we'd just do a short little rundown of the cases that are outstanding. I mean, there's too many to go through all of them. But of the hit parade cases, now that my dear, dear pork producers has been released, they're all downhill from here.

But we have the Harvard and North Carolina affirmative action cases. We have 303 Creative on those discrimination versus religious liberty interests. We've got more of the Harper, the independent state legislator case that may or may not exist any day now. We've got the Google and Twitter cases. Our sort of tech term cases are still outstanding there. And student loans, that's still out there. And that religious accommodation case with the postal guy on Sundays with Amazon. I don't know, any of these, what's your pork producers, David? Well, obviously, I'm very, very interested in seeing what happens with affirmative action. This is an issue I've written about at Original Jurisdiction.

I think it could have a lot of effects for how college admissions are done, law school admissions, other admissions going forward. So that's one that I am definitely, definitely watching along with, I guess, the rest of the world. And that was argued in the November sitting. So while it's unlikely to be coming out this week, it is possible. They do. I mean, people don't really believe this, but the Supreme Court really does put out opinions when they're ready. The problem is on those most complicated, intricate, hit parade cases, they're ready last because everyone keeps polishing and sanding and responding and footnoting back to one another as they're circulating. That's why those end up

coming out at the end. It's not because they save the controversial ones till the end. So there's some chance that Harvard and North Carolina could come out earlier than the last day of the term. But if you're sort of a betting man, yeah, they're probably coming out the last day of the term. Sometimes they drop a big one or two a little bit early. And then in those last few days, you get one hit after another. You have days with multiple huge cases. So we will probably see more of that. I do wonder whether they're going to creep into July as they sometimes do. No. Why would you even say that? They are historically so slow. Adam Feldman at Empirical SCOTUS tracks this, and this

is basically the slowest they've been since I think the term started in October more than 100 years ago or something like that. And there's so few cases. That's what also makes this kind of egregious. The caseload has dropped substantially and they're way behind. There's been plenty of theories about why that might be. None of them have been particularly satisfying to me because you're seeing it across the board. It's not just opinion writing and circulating, which fine. I understand why everyone has their Dobbs theory that it's taking longer to circulate opinions to fewer people or more secure ways and things like that. But that doesn't explain cert petitions. That doesn't explain emergency docket stuff. So I don't know.

I do wonder, though, whether, say they have a rule where remote work is only allowed under exceptional circumstances, and the justices, they're not in the building all the time. I'm sure the clerks can be made to be in the building all the time, but the justices aren't. And so if you only have the hours that they have in the building and not all of them want to be in the building all the time, that would slow down a broad range of work, not just opinion drafting. So I don't know, it's possible. Send your hot tips to David on that one. Yes, definitely. I'm very interested in hearing. There's one case we didn't mention in the hit parades, and it is a hit parade case,

which is that Alabama Voting Rights Act case. We talked about this case when it came out on this podcast. But right. The idea is, do you is using race neutral criteria to draw your lines enough? Or do you have to consider race to create race neutral lines or race blind, however you want to phrase it, to comply with Section 2 of the Voting Rights Act? That case was argued actually in October. start rolling out, which made it all the more interesting that the justices accepted cert on a very similarly situated South Carolina racial gerrymandering case. Now, remember, these are mandatory jurisdiction cases. So we've talked about... Oh, yeah.

So technically, it's not cert. I guess it's jurisdiction, probable jurisdiction noted. That's right. Yeah. So there's three ways that the Supreme Court can hear a case. One, certiorari. That's what we mostly talk about here, right? That's the vast, vast, vast majority of cases. Two, original jurisdiction.

Suits between states is the best example of that one. That was our New York versus New Jersey, you have to be my boyfriend case. But there's also statutory jurisdiction like this one, which is that Voting Rights Act stuff, where there's a whole different system for these Voting Rights Act cases. They go to a three-judge panel, and then the Supreme Court doesn't have a choice. And it's that mandatory jurisdiction, which like you said, they said probable jurisdiction noted, which is the cert equivalent. There are a few differences in this case, not really in the underlying facts, but in that three judge opinion, the arguments from the South Carolina legislative folks are that they presumed bad

faith. And the one that's more interesting to me is that the three-judge panel created a sort of disparate impact standard for districts. So as in, it doesn't matter if your reasons were partisan if the impact is racial now the other side of this the NAACP and all of their amici are arguing look they may have had partisan reasons for doing it but they used race as a proxy for partisanship that's not allowed you can't use partisanship as a proxy for race but you also can't use race as a proxy for partisanship. As in, if race is your number one thing that you're using, that's just a no-no, no matter what. They had to take the case. I think, David, we're actually not going to hear anything more about this case because it's going to get GVR'd. Granted, well, not GVR'd, just VR'd

because of this weird thing. But basically, in light of Alabama, whenever that comes out, it's going to get vacated and remanded in light of whatever they find in that because it will be applicable. I can't imagine that it won't be. What do you think? I think that's right. And I also think that given their backlog, they probably like law students running out of time or something or looking for ways to reduce their workload. Maybe I'll join that group outline or whatever they can do. I think that if they can, for example, dismiss as improvidently granted Morvey Harper, and if they can basically have them reconsider the South Carolina case in light of the Alabama case, anything they can do to reduce their workload and get things off their plate at this late stage of the term,

I think they're going to want to do. All right. And then we had two other opinions that honestly, we would never talk about on this podcast if they came out a week from now, most likely. But here they are. So we had the Promisa case. This is the Puerto Rican oversight board. Puerto Rico finds itself wildly and heavily in debt. They can't declare bankruptcy. And so this oversight board is created. And it's a question of state sovereign immunity, something we don't even really need to get into because while on the surface, it's going to make a lot of sense, the further in you dig into sovereign immunity, the less sense it makes in my view. State sovereign immunity just says that you can't sue a state unless it consented to be sued. That sounds easy. But then there's also obviously federal sovereign immunity. But then why can you

sue officers? And we're not going to get into all that. But here was the question in Promisa. Well, here was maybe supposed to be the question in Promisa. Is Puerto Rico a state for the purposes of state sovereign immunity? And basically, eight of the justices said, oh, let's not worry about that. eight of the justices said, oh, let's not worry about that. Exactly. Instead, they said, let's talk about whether PROMISA, meaning the Puerto Rico Economic Stability Act, in its jurisdictional provision saying where certain suits can be brought, abrogates or waives or gets rid of the sovereign immunity that this financial oversight board would enjoy. But they never really settled the question of, well, what does it or Puerto Rico enjoy in the first instance? They just focused on whether or not this statute promisa gets rid of what they

presumably enjoy, but we're not really going to decide that. So that's what the eight justices who were part of Justice Kagan's opinion looked at. Justice Thomas was the only justice who actually wanted to reach the underlying question of Puerto Rico, given its weird status, does it have 11th Amendment state sovereign immunity or not? I did like this one line in Kagan's opinion. Does it have 11th Amendment state sovereign immunity or not? I did like this one line in Kagan's opinion. The question presented is whether the statute categorically abrogates parentheses legal speak for eliminates any sovereign immunity the board enjoys from legal claims. But then for the rest of the opinion, she uses the term abrogate. So, like, what if you all agree that it just means eliminate, then use the word eliminate.

But she kind of defined her terms. She told you, lay people, this is what it means. And as usual, I'm a big fan of Justice Kagan's writing. She makes these opinions very accessible as if a lay person is going to read it. But I hate to break it to you, Justice. Lay people are not going to be reading this case of, maybe in Puerto Rico, but Financial Oversight and Management Board for Puerto Rico v. Centro de Periodismo Investigativo, Inc. is not going to be read by that many lay people. One thing I have to say, though, I do have one quibble with one thing that Justice Kagan does in her writing. Overall, I think she's perhaps my favorite writer on the court. I really don't like it when she does this thing where she begins a sentence with two comma, where she's kind of trying to say also, or moreover, or what have you. But

two is so weird at the start of a sentence followed by a comma. It's very distracting. And what I like about Justice Kagan opinions is they go down like cold lemonade on a summer day, but this two thing with a comma gets stuck in my craw. And I just kind of think, is that grammatical? Well, I guess it is because Justice Kagan or her clerks presumably looked into this, but it's such an unusual construction and it's so distracting. And usually she wants her writing to be seamless. So Kagan clerks, if you're listening to this, try to get her to get off this two comma thing. It's really unattractive. I will bet that at least 50% of Kagan clerks are cheering right now.

I mean, if anyone has ever worked, you know, ghostwriting, draft writing for a principal, they always, every principal has these little things that drive you crazy, but that you lean into because you need to speak in their voice. I'll read the portion that you're talking about here. Congress chose not to adopt similar language to govern other kinds of litigation involving the board. Two, PROMISA does not create any cause of action for or against the board or Puerto Rico. Yeah. And it's T-O-O. Why can't she just say in addition or also or moreover, or she could say, well, you could

put the two somewhere else. But to put the two at the start of the sentence with a comma, it's sort of like her little signature, but it's so distracting. But you get why it's weird that we're totally okay with also comma. They are literally the same word. Exactly. So why not just go with also? Look, I agree with you on this. I think if you are a law student out there or anyone at this point looking to become a better writer, one of the best ways to become a better writer is to read good writers. And I think that I would just read all of Kagan's opinions. They're a pretty good masterclass in writing. The other thing I would

point out, though, one other minor little thing I would point out, because again, with these types of opinions, there's probably not that much interesting that can be said. But one thing I think is interesting to note is, so there was this 8-1 split where Justice Thomas was the one who dissented. The case was argued for the losing side by Sarah Harris of Williams and Connell, who's a former Thomas clerk. And it's interesting, basically Thomas siding with his former clerk against all the other eight. And there was actually an interesting study a number of years ago by these two political scientists, both of them named Ryan, Ryan Black and Ryan Owens, which found that former

clerks were 16% more likely to attract the votes of the justice for whom they had worked. So I do kind of wonder in this case, it's not a hugely important case. Thomas is like, oh, I love Sarah. She's great. She's a really respected advocate. Why don't I just give her my vote on this one? So it's not unanimous. And it's not like anyone is going to be, you know, tearing their garments over this Pramisa case. So that was the other thing I thought was interesting. Wildly disagree with your causal arrow there. there first of all the thomas descent here is pure thomas like least institutional on my institution scale thomas who's like no no no why are we even reaching any of this promisa question we should have started with the question of whether puerto rico is a state for state sovereign

immunity purposes and by the way it's being sued by a citizen of Puerto Rico, not a citizen of the state. There's some huge 11th Amendment problems here. That reads like pure, unadulterated, straight to your veins Thomas, A. But second, let me explain the clerk thing, which is, again, the other way around. If you are a client who has a case and you have feelings about who the swing vote is going to be, you're going to hire, you're more likely to hire or want to have argue a case where one of their clerks is arguing the case because they speak fluent, you know, Kagan.

They start their sentences with two or whatever else. speak fluent, you know, Kagan, they start their sentences with two or whatever else. Um, uh, I also am laughing because husband of the pod is often asked about his first oral argument at the court. Um, and it's a, you know, he clerked for justice Kennedy and he lost, I think it was five, four with justice Kennedy as the swing vote against him. Oh, wow. That's so funny. Wow. So I could see on the margins finding your clerk more persuasive, not because of necessarily affection for them, but because again,

they speak fluent Thomas or they speak fluent Kagan. And it's just going to make it a little bit easier to understand their arguments. But I also think that the majority of that 16% correlation is going to be the other way that they were chosen to argue in order to get their judge. You're probably right, actually, in this case. I have always been somebody who watches the courts with an obsession for the personal side of things and personalities and gossip and personal connections. And so, of course, I jumped to that explanation.

But you're right. The dissent is vintage Thomas. Eleventh Amendment jurisprudence is kind of a mess. He wants to clean it up and go back to first principles. So the dissent is very, oh, and also trying to go to an issue that wasn't really totally fully addressed below. That's also a very Thomas move. So it is kind of Thomas. The only other thing I'll say about this case that leads us to the next case is just it's the basic principle here is clear statement, clear statement rule. And this is just kind of a rule of interpretation.

I guess you would call it a canon, basically saying that, look, we are not going to conclude that sovereign immunity has been abrogated unless it has been made screamingly clear by, say, the statute. And there are other, they give examples, Justice Kagan gives examples in her opinion of statutory language that does waive sovereign immunity, and it is super, super clear. And here, just because they say, well, the suits against this board go to federal court, but there are certain suits that could exist that are not like the suit here, which is sort of going to the board and it's sort of decision-making authority. For example, if you were fired from the board for a racially discriminatory reason, there has been a waiver of sovereign immunity for those types of employment

claims. So then it would apply. So they are able to make sense of the statutory scheme here while also applying this clear statement rule. And the clear statement rule is also going to be at work in the next case. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this

frame. Every mom I've ever heard of has this frame. This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off plus free shipping on their best-selling frame. That's a-u-r-a-frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. All right, for you non-lawyers,

like maybe hit your skip ahead 30 seconds button. But for the appellate advocates and Supreme Court practitioners listening to this, David, we have to take a little cul-de-sac into substantive canons of construction because it's actually kind of a big deal that in these two cases, one written by Kagan, one written by Jackson, you have them adopting substantive canons of construction. So let's see, how do we do this in an easy, fun way? There's like canons of

construction about how things are drafted, like serial commas, stuff like that. We've talked about those canons of construction before. And they make for, actually, I think, some of the most interesting cases of, you know, did that adjective apply just to the word that came right after it or to everything in the serial list? That's just a regular non-substantive canon of construction. But substantive canons of constructions have been pretty controversial and do fall more on that ideological spectrum. And here you have Jackson and Kagan adopting substantive canons of construction. How interesting.

Because these substantive canons, hence their name, reflect a sort of substantive preference for one thing or another. So, for example, we like or we favor sovereign immunity. So if you're going to give it up, it has to be done very clearly. Or in the next case, Santos, Zaccaria v. Garland, we don't like jurisdiction to kind of pop out like a jack-in-the-box at the last minute. So we are going to say that most provisions are not going to be deemed jurisdictional unless it's done very, very clearly. So these substantive canons of construction are controversial, I think, because they do put a thumb on the scale for a certain value. But I think in certain cases,

they are generally accepted. I don't think that people disagree much with these cases. And, you know, it's interesting. I guess the Puerto Rico Promisa case was 8-1. And in Santos Sicario, this opinion by Justice Jackson, was it? 7-2? Yeah. So again, I think there's not a huge amount of disagreement over this particular substantive canon.

I think that is exactly right. As you said, it's 7-2. It's on basically a question for immigration appeals coming from the Board of Immigration and whether there's a jurisdictional issue or just a fun time merits issue. And they held that it's not jurisdictional. You can still do your appeal uh this overturned a fifth circuit opinion um and then you have alito and thomas dissenting again or concurring of the judgment i think technically you're right because they uh they agree on one

part but they kind of say the court shouldn't have reached this other issue this is again people are skipping over this uh hitting the 30 second button but um I will say that this issue of is it or is it not jurisdictional is kind of a thing, this term. You mentioned how, for example, this is the tech term. Well, the court actually has had a couple of opinions this term about this issue. So Justice Jackson, Junior Jackson, she gets Justice Jackson, the junior justice, she gets stuck with all of the kind of really boring cases. And so she got stuck with this case. She also got stuck with this case from a few weeks ago, Moac Mall Holdings, which was about whether a particular provision of the bankruptcy code is or is not jurisdictional. But then even more senior justices get saddled with this every now and then. Justice Sotomayor

had an opinion from, I guess, March or something called Wilkins, which is about whether a provision in the Quiet Title Act is jurisdictional or not. So just kind of like last term was sort of like the arbitration term. Let's take a bunch of cases all about arbitration and different flavors. This is sort of like the, is it or is it not jurisdictional? And jurisdictional, by the way, again, it doesn't, well, if it is jurisdictional, it resolves your case in the sense that you go bye-bye. But if it isn't jurisdictional, it just means you get to proceed to actually talk about the merits of your case. So this case, all the other jurisdictional cases just means if it's not a jurisdictional bar, that the court can then hear your case. And often, if you didn't comply with the thing, the requirement of the statute, then you lose on the merits. And this is what Justice Jackson calls a claims processing rule. How do we handle your claim as opposed to a jurisdictional rule? We're not going to even,

like, we don't want to hear that. Like, you know, you were giving that the, you know, talk to the hand kind of treatment for jurisdiction. The other important issue is jurisdiction can't be waived. It can't be forfeited, meaning that whether or not you argue it below doesn't matter. The court has to have jurisdiction so it can be raised at any time, including very late in the proceedings, which is why I was sort of comparing it to this jack-in-the-box just pops up after people have invested years and money in this litigation. And then, oh my gosh, we shouldn't have been here in the first place. We don't have jurisdiction. And so that's why this notion of something being jurisdictional is not favored. Also true. I mean, every appellate clerk will know that anytime they get a case,

the first thing they need to do is make sure they have jurisdiction over the case. Well, I will put in a shameless plug for my novel from many years ago, Supreme Ambitions, for all of the appellate nerds out there. Jurisdiction, including whether or not it exists and whether it might be discovered at a late, late point is a plot point in this novel. So for all the appellate nerds out there who just love jurisdiction, I've written a novel where jurisdiction is a key plot. That is the nerdiest MacGuffin ever. All right. Enough of these poor cases, but it's fun to get to the things that we otherwise wouldn't have the time to get to. All right. Next up, we have the Durham report. And I don't

want to spend a ton of time on this. It's sort of not, in many ways, our core expertise here. But since I worked at the Department of Justice during the Mueller investigation, I do want to highlight where we are in that saga. So you have the Mueller report. It's split into two parts. The first part said that Mueller found no evidence to be able to bring any prosecutions against anyone related to the Trump campaign for working with Russia. Now, also note that the Mueller investigation did bring charges against 12 Russian intelligence officers for meddling in the American election, hacking the DNC servers. They did not find any successful vote switching, changing, anything like that. All right. Then the second part was obstruction. Not relevant to our purposes here. Then you have the Inspector General's report

come out. Inspector General Horowitz found that the investigation was opened with sufficient predicate, meaning they followed DOJ guidelines. They didn't violate DOJ guidelines when they opened the investigation crossfire hurricane into Donald Trump. He also found many examples of, this is sort of a loaded term, political bias or very, very unwise things that FBI agents were saying. And most importantly, Horowitz is the one that uncovered the doctored or falsified email from one attorney at the Department of Justice that was then used to get a FISA renewal. Okay. That brings us then to the Durham report. This was a special counsel assigned by Attorney General Barr to investigate not sort of the minimum that IG Horowitz was investigating were any DOJ guidelines violated in opening and pursuing the investigation, but should the Department of Justice opened and pursued the investigation, which are slightly different questions. Durham spent four years on this report. He prosecuted the lawyer that I just talked about who doctored the email.

That is the only conviction that he got. He had two other cases that resulted in acquittals. Look, here are my punchlines from the Durham report. One, he also did not find any evidence to bring any criminal charges against anyone else, meaning Hillary Clinton, anyone related to the Clinton campaign, anyone at the Department of Justice, Jim Comey, Andrew McCabe. He also agreed with Horowitz that while the Department of Justice didn't violate countries were trying to donate to or aid the campaign, they gave Clinton defensive briefings about how she could prevent foreign interference in her campaign. And then when something similar-ish happened with the Trump campaign, they opened an investigation and went full bore to bring the guy down.

This is, again, according to Durham. Durham says he doesn't recommend any changes to DOJ guidelines or rules. Instead says, this isn't something rules can fix. This is a leadership problem. You have to put the right people in the right positions. This was a lot of groupthink and confirmation bias. And then the last bit is that didn't treat similarly situated situations similarly, didn't recommend any changes to DOJ guidelines, and doesn't have any evidence for criminal wrongdoing. The problem with all of these reports is it's so politically sensitive to everyone across the spectrum that it becomes a Rorschach test.

And so what you get out of the Durham report is all the evidence of the times that they didn't want Donald Trump to be president, assumed that Hillary Clinton would win, are saying just wildly unprofessional things. just wildly unprofessional things. But then on the other hand, the other side is going to tell you, yeah, no evidence of criminal wrongdoing, no evidence they violated DOJ guidelines.

So there's no there there. That's where I'm sort of like throwing up my hands. I don't know what to tell you. I can't resolve that. Both are true. And both contraindicate the other. Yes. And perhaps instead of, you know, nut picking only what you want, read the 316 pages of this report and the IG report and the Mueller report and form your own opinion.

Was there some recommendation he had, Sarah, about having some person at the department or at the FBI who would kind of keep an eye on politically sensitive investigations? So, as you said, he didn't recommend any changes to sort of DOJ guidelines or something. But wasn't there something about how there should be some kind of – I'm trying to remember. I have to confess I did not read the full 300 page report, but I thought he had some suggestion in there about some possible change that could be made. It was 316 pages. It's very possible that I missed that. I will totally acknowledge that possibility. But I think you're right that it is, I was going to use the Rorschach blot comparison. I think basically the Republicans will focus on all the skullduggery and the Democrats will focus on the fact that he basically spent all this time and millions of dollars and

came up with nothing to acquittals, including some ones that came after really quick jury deliberations, and one guy who pleaded guilty, got no prison time. So to the extent that Trump was saying, oh my gosh, this is going to be the crime of the century or whatever he was calling it, that didn't really pan out. But kind of like with the Mueller report, there is enough grist for the mill. There is enough stuff in this report that you did see a lot of conservative and right-leaning commentators and bloggers and people on Twitter zeroing on the parts of the report that they found troubling. And clearly Durham was troubled.

That screams in his just tone and language in the report. He is pissed about some of the shenanigans that he felt like were going on, but they're sort of shenanigans within the lines, if you will. And that's why he says, this isn't about rule changes. They technically followed the rules and I don't see how you could change the rules to even prevent this. This is about leadership and having people in the room who are willing to say like, wait, does this make sense? Has anyone made the opposing argument in this room? And I have to say, from my experience, I actually think that is a very easy trap for senior government officials to fall into because your trusted group of advisors gets pretty small, especially on the more sensitive cases.

And it can be very easy for all of those people who spend so much time together to start thinking in a similar way, not necessarily because of political bias or any specific bias, but just because they're spending all their free time together. They're making all these decisions together. And so they start to see things the same as one another. And so the one thing that I at least hope I worked really hard to do was to be the person in the room who was willing to make the devil's advocate case, even if I didn't believe it myself, just so that we would have to at least struggle with that a little bit. And I'm sure for those of you dispatch

members out there who read my newsletter or listen to the other dispatch podcast, not the flagship, I do that a lot. So you can imagine how annoying that would be if you were working with me trying to actually make decisions. And I'm like, well, wait a second. Have we considered this other thing? And they're like, do you believe that? And I'm like, doesn't matter if I believe it. Well, because your job is also looking ahead to the media coverage. And even if you don't believe it, someone out there might believe it. I did find the thing I was looking for. This is in the Times article about the Durham report saying that Durham did recommend that the Justice Department consider assigning an official to internally challenge steps taken in politically sensitive investigations,

even though he did not recommend any, quote, wholesale changes, end quote, to FBI rules. Okay, you're right. I do remember that part now. It just made no sense to me because we should have someone do that across the board. That's just something that we should be training lawyers and FBI personnel to do. Someone should be saying, okay, but what about the alternative argument? Just doing it in politically sensitive cases is weird to me. Why should those get special treatment beyond the special treatment that they already get under the DOJ rules and regulations? The only last thing I'll say about this is we're still now looking ahead to what's going to come out of those other two special counsel investigations, namely Jack Smith looking into Donald Trump's handling of documents.

And then I believe Rob Herr looking into President Biden's handling of sensitive documents. So the special counsel fund is not over. Yeah, we're really moving apace on these special counsels. So many, so many many more so many more quickly um all right david will you get us up to speed on the newman drama i mean this thing could be a mini series and i would tune in every week oh my gosh it is crazy and it's kind of good in a way that we didn't get this get to this last episode because there were bombshells yesterday.

This is sort of like as the federal circuit turns. It's a total soap opera. So I've been writing about this a bit on original jurisdiction. And you've also, I think, discussed it in the past. But I'll just give people the full background. So Judge Pauline Newman is 95. She turns 96 next month. She was appointed to the Federal Circuit, which is the DC-based appeals court that deals

with specialized things like intellectual property issues and appeals from the Court of International Trade and things like that. She was appointed to the Federal Circuit in 1984 by President Reagan. Yes, Reagan. So there was a complaint filed against her in March, a judicial disability and misconduct type complaint, basically alleging, as you might expect for a 95-year-old judge, and by the way, she is still an active status judge, meaning she has not taken senior status, that form of semi-retirement where you can still hear cases. She is an active status judge, just like all the other full-fledged members of the court. So there was this complaint filed against her in March that basically alleged to kind of be crude about it, that she's kind of losing it, that she's not really cognitively with it. She's taking a really long time to issue opinions. She's super

slow, etc. And so this was this complaint filed in March. And the Federal Circuit has a judicial council which is investigating this complaint. And the members of this council are Chief Judge Moore and then Judge Taranto and Judge Prost, who are two other members of the court. And so they're going to investigate this complaint filed against their own colleague. One clarification, a lot of the news coverage said that the complaint was filed by Chief Judge Moore against Judge Newman. Judge Moore, in one of these orders that was just issued yesterday, clarified that she was not the complainant. The complainant is actually sit on new panels for the May, June, and July sittings of the court, even though she has

repeatedly requested such assignments. And she also has had resources taken away from her, like a clerk and a judicial assistant who were taken away or resigned. There's some ambiguity on this and not replaced. So then Judge Newman filed a lawsuit in federal court, U.S. District Court for the District of Columbia against Judge Moore and Judges Taranto and Prost, who are on this judicial committee investigating the misconduct. And she also named the Judicial Council of the Federal Circuit. And in her 12-count complaint, Judge Newman alleges, in essence, that this effort to force her off the bench, because that's ultimately what this is seeking, it violates her rights under the First, Fourth, Fifth Amendments, due process, separation of powers, etc. So this investigation into her is under the Judicial Conduct and Disability Act.

And she's basically arguing that the act, to the extent that it actually allows for removing her through a process other than impeachment by Congress, is unconstitutional. She's saying, look, I'm an Article III judge. Nobody has impeached me. You can't just take away all my duties under this act. And to the extent that this act says you can have a method for removing judges aside from impeachment, it's unconstitutional. And friend of the pod, Professor Josh Blackman, I think had a discussion of this, and it's been discussed

elsewhere. And her complaint also disputed some factual allegations, whether or not, for example, she had a heart attack or something like that. So that was the lawsuit filed last week. Then last night or yesterday, the Federal Circuit issued these two orders. And one of the orders was this very, I have to say, salacious kind of order trying to document even more problems with Judge Newman. trying to document even more problems with Judge Newman. And it basically describes her as totally out of it, paranoid. I'll just read briefly from one of the orders.

Multiple court staff members have reported concerns that Judge Newman cannot remember from day to day how to perform simple tasks such as logging onto the computer network or remembering where files have been saved. And in seeking help on these matters, she has appeared paranoid and repeatedly insisted her devices are hacked and bugged. And then other adjectives used in this order from yesterday describing Judge Newman, describe her as agitated, engaging in bizarre and nonsensical conversations. And to be honest, and this is, I guess, kind of sad, it did remind me of what some people are saying about Senator Dianne Feinstein, that she just can't remember things, etc. She reportedly, this is Judge Newman, failed a mandatory security compliance because

she's watching this video and then have to answer these really simple multiple choice questions after the video. But she couldn't retain the information long enough to answer the questions after this short video. So again, those are all the allegations. That was in one order released yesterday. Then there was a second order that was chastising Judge Newman and her lawyers who filed this lawsuit for revealing confidential aspects of the proceedings against her. Now, I'm going to actually say, I'm not going to die on the hill of defending Judge Newman. If even half of this is true, she clearly should not be on the bench. But what my big problem with this, again, and she has her defenders.

She has defenders who say she's still issuing opinions. One of the reasons she takes longer is because she does a lot of dissents, which she writes herself. She's made public appearances, including at conferences recently, where she's been very lucid and smart. So I'm not going to go into whether or not she's out of it. I don't have any firsthand knowledge. People can certainly reach out to me, davidlatt at substack.com if you do. But my big problem here is with the process. I think that it really is unseemly for a judge on a court to be basically investigated by three of her colleagues in this way. Usually when there is a conflict of interest, where you have people who might have an interest in the proceedings or who might be witnesses to the underlying events, which these judges are because they're her colleagues. They can attest to how slow she is on opinions or what she says when they meet in conference. You have these people who are

supposed to be witnesses and who may have interests and who may have either things they like or don't like about her or grudges from serving alongside her for decades. These are the judges who are now doing the investigation. And I find that very troubling. I think that as provided for under the Judicial Conduct and Disability Act and its regulations, you should and can transfer this to the judicial council of another circuit. So there was a situation, for example, involving Chief Judge Pryor of the 11th Circuit, where there was an allegation that he did something wrong in hiring a particular clerk. And instead of investigating him, the acting chief judge, who was basically in charge of dealing with this complaint after Chief Judge Pryor obviously couldn't decide on the complaint against himself,

asked the Chief Justice Roberts to send it to another circuit, and it got sent to the second circuit. And so, the investigation was handled by Chief Judge Livingston. This happens all the time, and I can't think of a stronger candidate for an investigation being handled by another circuit, where you have basically a colleague being investigated by three of her own colleagues who may also have underlying jurisprudential disagreements with her. Judge Newman has been called the great dissenter of the Federal Circuit because she takes a different view of patent rights than many of her colleagues. How do we know that this Judicial Conduct and Disability Act can't be abused by judges

because of substantive disagreements with their colleagues, where they can say, oh, well, I don't like you or I don't like your rulings. And you happen to be 95. So why don't I just allege that you're totally senile. And again, I'm not going to speak to the merits. I'm not going to defend Judge Newman on the merits. But I think the process is very troubling. And I think and the other thing that I kind of thought was ridiculous about this second order was Judge Moore is complaining that Judge Newman is airing certain things about the process, but Judge Moore's order dished so much dirt about Judge Newman that, you know, what Judge Newman's lawsuit says is mainly a matter of public record, whereas this dirt in

this latest order about Judge Newman is very damaging to Judge Newman and very embarrassing. And again, I don't know whether it's true or not, but if you're talking about the confidentiality of the proceedings, the dirty laundry, far more of dirty laundry has been hung by Chief Judge Moore than by Judge Newman. So anyway, I'm just very troubled by this because the whole point of due process is that the process is correct and the orders and the public statements of the federal circuit seem to be just going to the merit saying, oh my gosh, Judge Newman is really, really, really, really out of it. But that's not the point. The point is whether she's out of it or not should be determined by a proper process by disinterested people. You can't just override the process because you think that the merits are

so obvious or extreme. We don't just throw people in prison without a trial because the evidence of guilt is so obvious. So I just have two notes on this. One, the IT video thing is described in such detail. It goes to kind of your point about like, you're clearly not an unbiased observer of what's happening here. So I'll just read this paragraph. IT staff also reported that the last time Judge Newman participated in the court's mandatory security awareness training, she was unable to complete it. The training amounts to watching a 10 to 20 minute video and answering a small number of multiple choice questions about the video. IT staff indicated that Judge Newman repeatedly failed the test. She was unable to get the multiple choice questions correct, even after watching the short video several times, even though staff indicated retesting involves presentation of

the same multiple choice questions each time. Ultimately, an IT staff member sat with Judge Newman and watched the video with her, after which she was still unable to answer the same questions. He reported having to feed her the answers in order for her to pass and that she was simply unable to retain the information she had just watched multiple times. The staff member indicated that he had worked with Judge Newman for many years and that he was amazed at how quickly and easily she picked things up when she was in her 80s. Over the last few years, he noticed a change, observing that she now gets easily confused, has trouble retaining information, and forgets how to perform basic tasks that used to be routine for her. That's one paragraph out of 26 similar pages.

It's getting pretty personal over there in the federal circuit. But all of that being said, David, and let's say for the sake argument, that I believe everything that's being said against Judge Newman. I think her argument prevails. That's what impeachment is for. You are welcome to do an investigation and turn that over to Congress to pursue impeachment proceedings in the House, conviction in the Senate. This, I mean, the vast majority of impeachments have been over judges, not over presidents. They can't remove her. They can't prevent her from hearing cases. This whole, her arguments are in that sense, I think totally

correct. And I don't think they can make her sit for medical examinations. I think that they can convene their own investigative board without her involvement, create a report and send that to Congress. Anything beyond that, I think, violates the constitutional rights of Article III. So let me play devil's advocate, though. I guess the question is, what does it mean to be a quote-unquote judge who still has tenure on the bench? So you could argue, or Judge Moore could argue,

well, we haven't stripped her of her judgeship. We've just prevented her from hearing lots of cases and taken away resources from her. But how do we decide how far along you are? It's like kind of like being a little pregnant. Like, oh, well, we only took our off one calendar or like it is kind of a little weird. Because if it were just pay, then anytime you disagreed with a judge's, as you said, like ideological bent or anything else, as long as you're willing to pay them from taxpayer money,

it's not your money, then you can just strip them of the ability to hear cases. There's no limiting principle there. Life tenure, good behavior means hearing cases. But I do wonder, and this also goes to all the ethics controversies that you've been discussing in the pod lately, could Congress come up with some kind of statute which provides for reducing the workload of a judge if they are found to be incapable or something like

that? So senior status, which allows judges to still get their full salary but hear a reduced caseload, that is a creature of statute. That's not in the Constitution. Even the lower courts or the so-called inferior courts, as they're referred to in the Constitution, are not required by the Constitution. Congress gets to decide whether it creates these courts. Congress can also regulate. There are also issues about whether Congress can jurisdiction strip or say, this court can't hear this type of case. So I wonder whether Congress could come up with something. This Judicial Conduct and Disability Act, I see your point in that this may be the closest you could get to unconstitutionality because it does seem to be

making an end run around impeachment. But I wonder if you could come up with a softer thing where you say, okay, if a judge is found to be disabled, then we can reduce their caseload or we can have them only sit on motions panels rather than merits panels. So I'm an extremist on this. I think senior status is deeply questionable. Probably not okay. But at least there, A, the judges opt into it. And B, it is not about an individual judge. There is an age at which you are allowed to opt into it. You can't opt into it at 45. But it's not mandatory and it's not an individualized

assessment. Where I think it's so clearly on the other side of the line of unconstitutional is this individualized assessment part. That's what makes it a no-no under Article 3, a very clear no-no. For me, they're all no-nos. So let me ask you this, actually, because I guess part of this is sort of a separation of powers issue, that the impeachment power has been given to Congress. And this is actually something that my husband, Zach, said, oh, you should ask Sarah about this because I've always been very curious about it. This is Zach's question. Why are conservatives so into separation of powers? It is not really an explicit textual command in the Constitution. I guess we can infer it from the fact that there's

an Article I and Article II and Article III, but there's no explicit provision saying something like, in construing this constitution, the duties and obligations of the branches shall be strictly construed or something like that. Why are conservatives so up on separation of powers? And depending on who controls which branch, you don't necessarily know that it's going to be good or bad for conservatives. I mean, obviously, for me, of course, that part, that veil of ignorance part is what I like, right? I'm all about process, less about outcome. And I certainly think that for those who think it's just very easy to be separation of powers absolutus, there are lots of really fuzzy gray areas at the margins of where these different branches meet all the time. Article I judges, for instance,

being number one on my list. As I've mentioned, I have a conflict here in that my father's a bankruptcy judge, but I think bankruptcy judges are unconstitutional. So the conflict kind of runs the other way. Father's Day is coming up, dad. I'm getting you an unconstitutional shirt. Spoiler alert. I don't, I think, I mean, do you want my real reason?

I think conservatives like bright line absolutist rules because it appeals to something deep in us. Right? Like it just. Kind of like what we were talking about the other day about balancing tasks and how liberals love balancing tests. Conservatives like clean rules. I think they make for a better understanding of our rights. And yeah, I guess I can I guess I can see that. It leaves it less to the whim of the interpreter. And I think there is a good textualist argument for it, which is the executive power shall be vested in a president. So while I hear you that it doesn't, there's not some then article 17 canon of construction on

separation of powers, the text itself provides you that shall not may. That's fair. That's fair. Not primarily and not most of the time and not unless you think it would otherwise be wise. Although it is funny, if you're talking about history and tradition, people who push back on separation of powers love to find these examples in the early history of the United States where we had weird things

like members of the executive kind of serving as judges and all kinds of weird stuff back then. If anything, I feel like maybe we've gotten stronger on separation of powers where we have all string of cases where we say, well, if this person is appointed, but they're not removable, then we got to do something about that. So, and I guess there's a case, is it that SEC case or a CFPB case? There are a couple of cases either before the court or coming before the court that continue to address this saga. Yeah, I think that, A,

it's just totally correct that at the beginning of the founding, or sorry, post-constitution era founding, you have all of these amorphous, weird history and tradition precedents. I mean, the Alien and Sedition Act has to be number one on your list of like, so wait a second, that can't be our history and tradition. That clearly violates the First Amendment. But if you're just using history and tradition, well, alien and sedition acts. You also have the problem, of course, that what if Congress didn't legislate to its maximum? So for instance, when you're thinking about the Second Amendment, and you can't find any analogous examples, well, it doesn't mean that they didn't think it was constitutional. It just means they weren't legislating to their maximum power under the Second Amendment or any other

amendment. But I think the separation of powers getting stronger over time makes sense as the size and scope of the federal government have increased. The need for delineation has also increased, and so you're seeing more delineation. That part makes sense to me. No, that makes perfect sense. That makes perfect sense. So yeah, on this Newman-Moore thing, I mean, I guess just the final thing I would say is if Judge Newman is as much of a mess as Chief Judge Moore and her colleagues think she is, why not have another circuit conclude that she's a mess? Why not have this done by an objective party? I feel like Chief Judge Moore and her team, Team Moore, I think they've given the moral high ground to

Judge Newman by allowing Judge Newman to complain about process. If Judge Newman is basically, you know, like wetting her depends under her robe, like just have it done by another circuit and have judges from another circuit say, I'm sorry, Judge Newman, you're just totally out of it. It looks sketchy if you have these judges who are disagreeing with her jurisprudence and who may have personal grudges from sitting with her on this court for decades and may have access to grind with her for all kinds of reasons. She left her lunch in the fridge too long, whatever. It just looks bad. So I'm begging you, Chief Judge Moore, if you're listening to this, your clerks are listening to this, just transfer this. And I also thought this was completely ridiculous in terms of why they deny the request for transfer.

All these due process points that are made by Judge Newman and in her complaint, they have only one, they have a single line, which I found so unpersuasive, where they basically say the request to transfer is denied because we want Judge Newman to provide some medical records first. Why? I don't see that in the regs or the act. And why can't she provide the medical records to whatever circuit gets this when you transfer it? Let the other circuit decide the process and what records she has to turn over and what exams she needs to sit for. And then the conclusion of the investigation will have so much more credibility if you have a chief judge prior or a chief judge Sutton or a chief judge Livingstone or a chief judge X saying Judge Newman is not capable of sitting on the bench.

It looks so much better. Yeah, it's bewildering because again, I don't think she needs to turn over anything to fellow judges. I think there's an argument about whether she'd have to turn it over to Congress. Okay. Oh, also worth noting that for those wondering, Judge Newman's briefs are being written by a former clerk. Going back to that former clerk conversation. Yeah. Which on the one hand, you could say he knows better than anyone, you know, and why would you want your judge to stay on the bench longer than they are capable of doing so? On the other hand, the answer to that is because you're practicing there. Although Greg is mostly a law professor, he does litigate, I think, but I think he's standing again. I think he's standing up for the right

principle here, actually. So I'm agreeing with his brief. I would say that, you know, if you are a clerk to a judge or a family member or what have you, I think people do try to protect the legacies of their judges. And so I assume that Greg is litigating this case because he believes that Judge Newman is still, whatever the term is, compos mentis or whatever it is, because I think if you are a clerk, you don't want your judge to be embarrassing himself or herself in public or anything like that. And I think a lot of times when judges do quietly retire, it's because somebody close to them, somebody they respect, a colleague, the chief judge, their spouse says to them, hey, maybe it's time to hang up the

robe and put the gavel in the cabinet. But again, going to my point, I think it would be much better if maybe judges from another circuit were to persuade Judge Newman to retire. Because one of the things that came out in the earlier orders was, well, Chief Judge Moore and other judges have been trying to persuade Judge Newman and she's not listening. Well, maybe she's not listening because she feels that they have some agenda. But if it's some other judge from another circuit who doesn't deal with her at all, who says, hey, Pauline, maybe you should think about retiring. I think maybe she would be more open to that. All right. Next up, we have the updated law school rankings. And David, for fear of making you keep talking even more,

I was very confused because we already had law school rankings this year. And then we got more law school rankings, but they were different. And we now have different percentages, weight for things, the peer rankings sliced in half. What is happening out there? It's very confusing. And I will just give the CliffsNotes version here. So back in November, Yale Law School made this noisy withdrawal from the rankings saying it was no longer going to provide US News with certain proprietary data that the magazine needed at the time to prepare its rankings. And then a whole bunch of other schools, something like 60 schools, including Harvard and Stanford and everyone, withdrew as well. So then U.S. News changed its methodology to say, okay, we're going to rely only on public data, plus these reputational

surveys that we sent to professors and judges and practitioners, asking them to opine on the reputation of a school. And they made other methodological changes too. For example, they made in general, the rankings focus more on outcomes like bar passage and whether your graduates can get jobs and less on inputs, like how much money you spend on educating the kids and LSAT scores and GPAs and stuff like that. So they changed the methodology. And then they issued as a teaser in April, these updated T14 or top 14 rankings in which there were, you know, some surprises, but some not. Like Stanford is now tied with Yale for one.

And then I think Harvard and UPenn were tied. And so graduates of your alma mater were already upset. I texted you immediately. Yes, I heard. Exactly. And I heard from a bunch of others who were aghast. But then what happened was after various schools said that U.S. News had some data discrepancies, U.S. News delayed the release of the full rankings because what they gave us in April was just this teaser of the top 14. And then when they released the full rankings recently, last week, the rankings, including the ones that they had released as a teaser, were corrected. They had made mistakes. And lo and behold, Harvard is no longer tied with Penn because it's now number five below UPenn.

So a lot of Harvard graduates are saying, oh my gosh, this just proves what a joke the rankings are. But the rankings, because of the new methodology, which focuses more on outputs and inputs, there was more movement in this set of rankings than I think there has been basically in the history of the rankings. Schools were going up and down 30 or 40 spots. So it was just wild. And some schools are thrilled and some schools are angry. But I would say, I know it's probably too late for a lot of your pre-law listeners or our pre-law listeners, because I think maybe they've had to put down deposits already. But I would just say, top line, don't put too much stock in these rankings. I guess you need to care about the rankings difference between Harvard and the

Cooley or whatever. But really, you should make your decision on where to go to law school based on factors other than these rankings. And especially if you're choosing between law schools that are kind of in the same ballpark. So I think that's right. I think there's brackets. And I think the difference between the brackets is big. I think the difference inside the brackets is relatively small, except maybe inside the T14 bracket. And that's where it gets weird. And that's where the Harvard complaints come. Look, obviously, I'm biased. Though I will say, by the way, for those listening at this point in my law school career, I was going to the university of Virginia and had paid my deposit and had an

apartment. So it's never too late to change. Yeah. I really wanted to play softball and ride horses, man. Like I had a dream and my dream was thwarted when I got a lot of phone calls telling me that wasn't an option. And I had to go be miserable for three years if that's what it took. I had only been to Harvard in like March when it was raining and horrible.

I was like, this looks miserable. Don't make me go. Well, you succumbed to the gravitational pull of prestige. Yes. Yes. And look, let's be real. Harvard can be five on whatever list you want. The name brand, though, is still what it is. And so I question that part, but I don't want to dwell too much on Harvard or even on the T14, because I think what's more

interesting is those big changes that are happening below the T14. Did I think what's more interesting is those big changes that are happening below the T14. Did any of them stand out to you? Well, one thing I did notice when I discussed these on original jurisdiction is state schools seem to do really well. And that makes sense because state schools, A, have really good in-state networks for jobs for placing their graduates. And B, they often are very good at teaching to their state's bar exam. The other thing I will say, just kind of shameless plug, my former website, Above the Law, which I founded, they have had law school rankings for more than a decade now, the Above the Law rankings, which were from the very beginning focused on outputs, like can you get a job and

can you pass the bar after graduating from this school? And so basically, I think US News has kind of admitted, wow, our rankings should have been going more along the lines of the above-the-law rankings all along, rather than caring about things like how many volumes are in your library, because that was actually a thing in the old US News rankings. It's now been eliminated as a factor, but how many titles are in your law school library? Isn't it much more relevant about whether or not you can get a job or pass the bar? Yeah. And again, that's where I think the law school rankings are incredibly important bracket-wise outside of the T14, actually. Because of, again, looking at those

external factors, likelihood to pass the bar and likelihood to get a job, are probably two of the only things you should care about. In that type of looking at where to go, there was one other thing that someone emailed me about, which is the halving of the peer assessment, the peer rankings, this idea of like, what do other people think about? What do other law professors or deans think about your school? That that was used intentionally or unintentionally to discriminate against conservative schools, and that there was a conservative penalty because of the peer rankings. Those being cut in half, you would think, would help with that problem. I'm curious if you think the peer rankings being cut has been meaningful. That's interesting. I hadn't really you think the peer rankings being cut has been meaningful that's interesting I

hadn't really thought about the ideological point uh I'm now kind of curious to look I immediately went to George Mason they actually fell two spots um even though the peer rankings were cut in half but it's not necessarily fair to look at one school uh George Mason had been moving up pretty quickly and taking just one year is maybe too much of a snapshot. But I think that cutting the peer rankings in half... So it was 24%. And now it's 12.5%. First of all, 24% was always way, way, way, way, way too high. Because it becomes the self-fulfilling narrative. I think Harvard has a high brand name because Harvard has a high brand name. Okay, so then you can never really move. So having it, I think, is great. 12.5% might frankly still be a little

too high, but I could also see why that would hurt conservative or just outlier schools. Set aside the ideological bent. Any school that's trying to do something different, if every other school is doing it a different, you know, way and the same way is going to be like, well, I like the way we're doing it. So I don't like that school. Yeah, no, no, exactly. I can definitely see that.

It'll be curious to see now that we have a new baseline, it will be curious to see what the rankings look like next year, assuming they don't radically overhaul the methodology yet again. But I will say that the changes in methodology, I guess you could argue, penalize schools where their reputation, you could argue, is somehow ahead of the merit. So maybe Harvard haters would say, oh, Harvard, you were just kind of coasting on your reputation. And if we actually look at bar exam passage and job outcomes, even though obviously you're still amazing, this is how the argument that Penn could somehow be better

sort of comes in, I suppose. But personally, no offense to my friends at Penn who are very happy about this. If all things were being equal, financial aid, what you want to do after graduation, your geographical ties, if all things were being equal, you'd probably still tell people to go to Harvard over Penn. Again, if you were a total tabula rasa, you had no preference on anything, practice area, geography, ties to Philly, financial aid is

all the same from both schools. And you were just kind of like, I don't know. And I went to both and I liked them equally at my visit. I'd probably still tell you to go to HLS. You said it, not me. All right. Last up, we've got some judicial confirmations coming down the pipeline here. I know you were flagging that we're about to have a first on the D.C. Circuit. Yes. The first Latino judge, Brad Garcia, he was confirmed on Monday, 53 to 40. He got three Republican senators to vote for him, Senators Graham, Murkowski, and Collins, who are usually the three Republicans who are willing to cross the aisle on judicial confirmations. And I would say, and I've

heard this from friends of mine who are involved in the Biden judicial nominations process, he has to be at or near the top of the Supreme Court shortlist. Because here is just one number I will say, 36. He is 36 years old. Brad Garcia was born in 1986, but his birthday isn't until July. He has an amazing resume. He clerked for Judge Griffith, a well-respected Republican-appointed judge on the DC Circuit. Then he clerked for Justice Kagan, who is, of course, arguably the leader in some ways of the liberal wing of the court. He was a partner at O'Melveny, so he's worked for a lot of large corporate clients. So when he was attacked at his hearings

for being some kind of commie or whatever, he said, look, I have worked for numerous Fortune 500 companies. He's just really super impressive. And again, the fact that he's Latino and would be the first Latino male on the Supreme Court, that can't hurt. Again, not that there's a vacancy. And I don't think that justices Thomas or Alito would willingly give President Biden a vacancy. But if there is a vacancy, either this term or in a future Democratic or Biden term, I think Judge Garcia is going to have a number of years ahead of him because he's only 36. You could fast forward 10 years and he'd still be a viable contender. So watch out, Leandra Kruger.

You've got competition. I mean, it's wild to me that he's so young that he clerked for Justice Kagan. That's how young he is. Exactly. There's a DC Circuit judge who clerked for Justice Kagan. Yeah, it's wild. I do want to read just for those conservatives who happen to remember back in the day. I would like to read a memo from 2001 from sorry, it's a memo sent to Senator Durbin.

This group also identified Miguel Estrada, a nominee for the D.C. Circuit under Bush, as especially dangerous because he has a minimal paper trail. He is Latino and the White House seems to be grooming him for a Supreme Court appointment. This group wants to hold off Estrada as long as possible. Indeed, Democrats filibustered Estrada seven times because he was Latino and on a short list to be on the Supreme court. If he made it on the DC circuit before he finally withdrew his name in September, 2003. So 20 years later,

we get our first Latino on the Supreme court. Sorry. On the DC circuit. After what I think is the most disgusting thing that has happened in the confirmation battles. And I'm including all of it, by the way. Yep. Of all of the confirmation battles that have been had,

I think the Miguel Estrada thing is the worst because of that memo. We need to stop him because he is Latino. What? That was a travesty. But this is why it's interesting to me that, I guess you could say to their credit, Republicans didn't just reflexively oppose Garcia because he has this SCOTUS potential. Because, you know, Republicans did resist then-Judge Sotomayor's elevation to the Second Circuit a little bit.

I think Rush Limbaugh at the time said, we have to do something about her because she's on a, quote, rocket ship to the Supreme Court. Because again, she was a well-qualified Latina judge, who at the time was also relatively young, just like Miguel Estrada, who's a renowned appellate advocate, who at the time was quite young and who, again, was Scotus, I don't know what the, you know, Pope potential, Papa Ville, there should be like a Scotus Bile term, but he had Scotus potential. And so it's interesting. I do wonder whether Graham, if say you had Garcia nominated, would as much attention to the circuit court, so they vote with the caucus on that. But then I think he crossed over and voted for, along with a couple of other Republican senators, I think he crossed over to vote for Justice Jackson. So anyway, just flagging that, Brad Garcia, watch out for him. He's definitely somebody worth keeping an eye on. I think we focus a lot on the potential Supreme Court nominees on the conservative side, but for the liberal or progressive side, I think Brad Garcia is definitely up there. I would say that he and Leandra Kruger, who's still quite young, Leandra Kruger, Justice Kruger of the California Supreme Court, I think the two of them are, I would say, well ahead of the competition,

partly also because some of the others are starting to quote unquote age out, like Chief Judge Sri Srinivasan of the DC Circuit, Judge Paul Watford is leaving the bench. So I think if you are young and superbly qualified and diverse, you have the inside track. All right, that's a good place to leave it. David Ladd, thank you so much for coming on to guest host this week.

What a treat. I mean, this won't be the last time you're on. You're going to be on plenty. But you made it so much easier since your name is David. Exactly. I think that's my number one qualification, but it was such a pleasure. David French leaves big shoes to fill. But I was really honored to fill in. Well, thank you so much. Check out Original Jurisdiction. And again, you'll hear from David Latt. Plenty, you know, in part, if nothing else, probably this fall, there might be some,

another host that would have to go missing in a few months. All right. Thank you so much. Oh, oh, oh Oh, oh, oh