Advisory Opinions - What Would James Madison Do?

Episode Date: June 22, 2020

David and Sarah discuss the president's rally in Tulsa, the firing of the U.S. attorney in New York, the lawsuit over John Bolton's book, and they process last week's Supreme Court decisions. Show Notes: -David's Sunday newsletter -Drew Griffin Twitter thread on Tulsa rally -28 U.S. Code § 546. Vacancies -Barr's statement on on the nomination of Jay Clayton -Berman's statement on firing -Trump remarks on Berman -Barr's letter to Berman -Ross Douthat on the Supreme Court -Jack Balkin on the conservative legal movement -Ezra Klein's podcast on polarization Learn more about your ad choices. Visit megaphone.fm/adchoices

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It's through their Uber Teen account. It's an Uber account that allows your teen to request a ride under your supervision with live trip tracking and highly rated drivers. Add your teen to your Uber account today. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger, and we are part of The Dispatch Media, thedispatch.com. I've been very lax in reminding all of our many, many thousands and thousands of listeners, Sarah,

about our affiliation and that there's more than the Advisory Opinions Podcast to The Dispatch. So please go to thedispatch.com, check us out. Here's your periodic reminder to also please review us on Apple Podcasts. We've been getting some great feedback and really appreciate it. Now, we had to call a little bit of an audible this morning because... Because once again, I was wrong. That's why. I think we were both anticipating that the Supreme Court would issue an interesting opinion

or two this morning. It did not. At 10.02, David and I were like, uh... Yeah. We're not talking about equitable disgorgement on the podcast today, though it is definitely going to be the name of my garage band. I would listen to that band.

I will not read that opinion. So we're going, but it's not like we lack for topics. So we're going to avail ourselves of Sarah's political organizing expertise to talk about the meaning and potential fallout or lack thereof of Trump's sparsely attended Tulsa rally. We're going to talk about the Friday night massacre. Nope, nope, not Friday night massacre. Saturday morning massacre. Nope, nope. Saturday night, finally, massacre in the firing of the U.S. attorney

from the Southern District of New York and what that means. And then we're going to do something we haven't done, which I think is kind of a fun idea. I'm looking forward to it. We're going to talk about two pieces of commentary about last week and how people are processing a really momentous week at the Supreme Court last week and what it means.

We're going to save our assessment of the conservative legal movement more broadly until the term is over because we've got a lot of major cases yet to be decided. until the term is over because we've got a lot of major cases yet to be decided. But we're going to analyze some thoughtful commentary about what has happened and we're going to wind up with a discussion of,

man, we're going way back. Well, not really way back. I re-watched the Hunger Games series over the weekend and I have thoughts. So we're going to have some bonus cultural commentary about Katniss Everdeen.

And with that, Sarah, you have helped organize rallies. You have been a part of a presidential campaign that held public events on daily, I guess sometimes multiple times a day. It better be multiple times a day. You try to pack those events in, man. So tell us what to think about what went down in Tulsa

on Saturday night. So, okay, let's back up to how presidential campaigns are organized. You have your press team. I think that's what people think. All presidential campaigns are basically just one large press team. Actually, a pretty small part of the team. You have your legal department, which is what I did for Romney's 08 and 12 campaigns. Pollsters and stuff like that are actually usually outside the campaign. They run their

own businesses. So they're outside of outside consultants considered senior strategists. They like pop in and out and annoy everyone. Same with the media buyers, things like that, the ad guys. The largest by far component of a presidential campaign is the political team. The finance team is usually pretty large, but even so, usually eclipsed by the political team. Digital teams are becoming much larger. These are the guys who do micro-targeting, vote scoring, things like that, that I'm sure we will talk about before November. But let's leave that topic and really concentrate on the old school gumshoe political team that used to be like 99% of campaigns. And certainly,

as you get lower down the ballot, they become bigger as a percentage of the campaign, even more so. Okay. The political team is made up of lots of different groups, but the group we're going to talk about today is the advanced team. Oh, they're not having a good week this week. They're having a bad week. Advanced is really hard for a few reasons. One, you One, you've got to pick your venue. And for instance, everyone's like, well, why didn't they have an outside venue? Well, same reason you don't always plan for an outside wedding, weather. And with a wedding, we're only talking about maybe 120 people that you've got to find tents for. What are you going to do with tens of thousands

of people at an outdoor venue? So that's one reason why you try to hold them indoors. There's a lot more control over the visuals, things like that. But all of that pales in comparison to crowd building. Crowd building is the nightmare scenario. People don't show up to rallies because you tell them about the rally. People show up to rallies because you get them to the rally.

It's a huge, huge undertaking. And what we saw this weekend was, well, first of all, remember, it got moved from June 19th. Juneteenth, by the way, shout out to a great Texas holiday celebration. That is the date, of course, that Texas, I believe through Galveston, found out about the Emancipation Proclamation. And it has been always one of my favorite, favorite Texas holidays because it is really joyful and there's some fun stuff that goes on. So I'm so glad that I feel like the country has really been educated and learning about Juneteenth this year. So I think that's a really good thing. Yeah.

So then the rally gets moved to the 20th. They are setting expectations sky high of how many signups they have. The venue holds 20,000 people. End of the day, they got about 6,200. So what does that mean? It can mean several things. One bucket.

You know, I love my buckets. One bucket. The advanced team didn't do their job in crowd building. Right. And if this were, you know, 2012, I think that would just be the obvious thing to point to. It is actually rarely about enthusiasm for the candidate so much as do you have an advanced team that can like turn out humans and pick the right venue for the size of the humans that are reasonable to think you're going to turn out in Tulsa, Oklahoma. Yes, some people are going to travel,

but Tulsa's not on the way to a lot, you know? Yeah, and it's not a huge city in its own right. Oh, no, no. So you've got the advanced team. I don't think that's what happened here, obviously, which, I mean, anyone listening knows that that's probably not the most likely scenario. But second scenario is enthusiasm around the candidate, which I think a lot on the left.

We're like only sixty two hundred people. This shows that the polling is right, that Biden's really up and that there's no enthusiasm among the Trump base for Trump anymore. We should get into that, but I think that is almost just as flawed as the first one. Right. And again, if this were 2012, maybe so, but it's not. And so then the third bucket is, you know, force majeure, if you will. And not just the act of God of the virus and the riots and just general, I think, uneasiness around the country of people being in large crowds away from home, traveling to a rally, all of those things. Where are they going to stay? A hotel? Are there restaurants open? All of this.

But also perhaps the force majeure of the candidate where the staff is unwilling to tell him, sir, I'm not sure this is going to work exactly how we've normally done it. Let's try something else. And so that's the 2020 scenario here, which is very different, I think. So you had, and you said this to me, and I thought it was really helpful. Drew Griffin, who was in 2004 Bush-Cheney campaign and did a lot of advance for that campaign, both for Bush and Cheney, it looks like, tweeted out how life worked in 2004. And I think he's spot on, by the way, and we'll include a link to his Twitter thread for anyone who wants to read

it. But it's spot on about 2004 to 2012. Right. And 2016 for those of us who lost. 2012. Right. And 2016 for those of us who lost. Yeah. And I think you just have to add in that I don't think this was about enthusiasm. I mean, David, did you take this as like a drop in base enthusiasm for Trump? I mean, to the extent there's a drop in base enthusiasm for Trump, I don't think it is as dramatic as going from 20,000 people to 6,000 people. In other words, I have seen and we have perceived slippage in Trump's support, but not material, not huge. I took it as a lot of really bad planning, and that also people are more concerned about the pandemic than perhaps you would learn from reading shock, shock, MAGA Twitter.

Right, or the polls, really. Like, what you're willing to tell a pollster who asks you in their effete left coast accent, you know, are you afraid of going out in public? Will you wear a mask at all times? And you're like, no, whatever. And then it's like, yeah, but do you want to get in a car and be in a crowded venue where six people just tested positive? Right. Maybe I'll pass. Yeah, exactly.

Let's say you really, really, really like Donald Trump and you're 60 or 65 or 70 years old. And you're maybe your wife doesn't is, you know, has a preexisting condition, or maybe you do. And it's no, you would crawl over broken glass to get there, but broken glass doesn't cause contagious wounds. And so you're not going to risk it. And so look, I mean, if we had zero pandemic, we had zero pandemic and he had 6,000 people there. It would really be eyebrow raising. It would really... Agreed. But this is...

We have a pandemic. I think the thing that really stood out to me is the way they hyped these numbers of signups. Well, that's something else to talk about, which is the effect. So, like, we talked about cause a little bit. Yeah. But two effects here. One, they hyped the numbers and I don't, you know, I have no idea whether to believe the numbers, but if the numbers are true, they got a ton of data from that. If they really got a million people to sign up, even if it was all, you know, lots of Antifa or TikTok users, et cetera, they have their data. Yeah. Uh, and that's incredibly valuable for what I mentioned before on voter scoring and turnout models down the road come early voting and election day voting. So, you know, in some sense, maybe it was a win regardless for them. And then second, and this is something Drew points out in his tweet thread, there are sort of psychological consequences to sending your candidate to a crap event. Yeah.

And I think those are real, but they're not huge. Right. And maybe that's one area where the 2012-2008 analysis or 04 flips around. They might be bigger with this guy. The psychological effect might be bigger with Trump because he put such a store in these things.

That's an interesting point. Put such a store. And we saw it with some of his tweets today, I think. Yeah, exactly. Exactly. So, I mean, this is something that I think he he wanted to make a huge statement in Tulsa. It was to me, it was much more. OK, now the campaign starts. Now the the pandemic for all practical purposes in a way that should regulate our behavior should be deemed over. I'm the candidate of ending the pandemic and Biden with his mask and everything is the candidate of the lingering pandemic. I think there was a lot of emotional store that he put into it. Now it could be cured. You know, I think that that wound will be healed the instant he has a successful rally.

But the other thing that I thought was interesting, it just makes all the sense in the world, is this expectations game and how the overflowing room is just an important visual dynamic. So if you're... For sure. If you're playing... I mean, this is like 101 for anything. Whether you're at a business or politics or anything else, like you don't have your guy speak to a half empty room. Yeah. It looks terrible on TV when, uh, so I have the tiniest bit of insight on how hard it is to actually get people from point a to point B. Yeah. And I I'm wearing a hat right now that is,

if you can't see me because you're not on our Zoom, but it's a Romney hat. And the O is the three stars of the state of Tennessee for East Tennessee, Middle Tennessee, West Tennessee. And this hat, Sarah, dates back to March of 2006. Impressive. What happened in March of 2006? My wife and I organized a shocking second place finish for one Mitt Romney in the Southern Republican Leadership Conference, where he came in second to, and this is a name blast

from the past, Tennessee's own Bill Frist. Oh, wow. Yeah. And he beat every other frontrunner for the 2008 presidential nomination. And I'll never forget it, A, how much hard work it was to get this coalition of evangelical and Mormon citizens to Memphis, Tennessee in March. to Memphis, Tennessee in March. And then it was my first experience in turning around and immediately addressing the media to try to talk up what just happened.

And I was extremely unsophisticated in that, Sarah. So you're going to laugh. Your professional mind is going to laugh at what- I laugh at you all the time. So here's what happened. Here's what happened, but only in the friendliest of ways. Of course. But here's what happened.

So I positioned myself right by the media gaggle because we knew how many people we had and we'd kind of, you know, all these conferences, you get rumors about how many people the other people had. And we had kept all of our people at an offsite hotel and brought them in during the quaining moments of voting so that no one really knew. I mean, this was a textbook op.

I mean, like we'd never done it before, but it went off without a hitch. So no one expected it. And so they do this as descending order, like fifth, fourth, third, and they're going through the list and we were realizing, hey, we came in second. And so they announced second place, Mitt Romney, the crowd just gasps. And I turn to the assembled national media and I point at this very hat and I yell at the top of my lungs, this is the story right here. Yeah, you know what? That's a great idea. Tell them what they need to hear, you know?

Don't hide the ball. And sure enough, everybody swarmed me immediately, and the next thing you know, Nancy, who was wearing a very similar hat, was positioned in the eyeline of Chris Matthews. Yes. And she was the only Romney supporter. Like we had pre-positioned all these people

because we knew it was going to be a complete surprise. And she was the only Romney supporter and eyeline of the producers. And they grabbed her from the crowd and were about to put her in the chair with Chris Matthews. But unfortunately, they ran out of time but well the other psychological aspect of this there's the candidate for sure um i think we're seeing the results of that i actually think i take your point that that one actually may be larger than in previous cycles where you know the candidates

have been pretty focused on you know eye on the prize type thing. They'd be mad at their advanced staff for not filling the venue, but more from a, yeah, like this looked bad on TV type thing. But there's also the psychological impact potentially on supporters. Right. Whether you're watching on TV

or you showed up to the venue, you know, it's deflating balloon, if you will. And that's a question that's still outstanding. I don't know how many people are truly affected. Certainly it wouldn't affect their vote. We're talking purely turnout. Are they less likely to turn out to vote because they're not sure that there's the throngs

that there were last time? I don't think so. I don't think it'll have a huge effect at all. Certainly not an effect that will last to November by any means. No. And, you know, I think most people correctly would write it off as, well, pandemic.

So it really will come down to Trump himself and his ability to say, false start, five-yard penalty. Yeah. The ball's back in play. Right, right, exactly. But what we've seen this morning is him instead talking about how November's rigged.

Yeah, not exactly responding with, you know, calm, cool, collected, above-the-fray resolve here. No, and still, then back to the huge problem for his advanced team who will, you know, they dovetail and will largely turn

to voter turnout efforts once early voting starts and push mail-in ballots, absentee ballots. Yeah. And so this is making it much, much harder on the same team

that just got their asses kicked in the field. Yeah, that's a very good point because they are going to have to push mail-in ballots and with a disproportionate... For the same reason people didn't show up this time. Exactly. Exactly. Yeah. I mean, it strikes me as self-defeating to condemn the mail-in balloting, especially with an older voting base. Well, although, you know, to an extent, whether or not he has the older vote now is up for grabs when it wasn't in

2016. Okay, well, let's move on from there to the events of Friday and Saturday. Yeah, so we're back to my second world, which is my DOJ world. Again, listeners, I worked there for 2017 to 2018 as the head of public affairs and left in early 2019. So Jeffrey Berman was the U.S. attorney for the Southern District of New York. Now, the blue slip process is very important here, David. And this is basically what has happened in the Senate is if you don't have the approval of your two home state senators, Lindsey Graham or whoever is the head of the Judiciary Committee when it comes to U.S. attorneys in particular, district court judges as well so far, has said you're just not going to get confirmed. U.S. attorneys has

another wrinkle to it, which is they have only done U.S. attorneys by unanimous consent. Another wrinkle to it, which is they have only done U.S. attorneys by unanimous consent. So we haven't really run into this where there's blue slips returned, but then people still want to vote no, but that could happen. So the point is,

there's like a no controversy U.S. attorney rule in the U.S. Senate right now. Right. Berman, when he was initially appointed by the president, was not going to pass that. Schumer was not going to return the blue slip.

He wasn't going to get through an unanimous consent. He was seen as a Trump crony from the campaign. And so they did this alternative appointment instead under 28 U.S.C. 546. U.S.C. 546. So basically you appoint an acting attorney general and after 120 days, the district court. Acting U.S. attorney. Sorry, sorry, acting U.S. attorney. I'm used to some acting attorneys general as well. Yeah. So you appoint him acting U.S. attorney, and then the district court in the district that he's in after 120 days can appoint him as United States attorney. To fill the vacancy, Part D says, the district court for such district may appoint a U.S. attorney

to serve until the vacancy is filled. That will also become relevant. Okay, now this takes us to Friday night. Bill Barr issues a press release late Friday night. I was sitting home with my little brisket, and then boom, my phone starts buzzing quite, quite late, I will say. And he says,

I'm pleased to announce that President Trump intends to nominate Jay Clayton, currently the chairman of the Securities and Exchange Commission, to serve as the next United States for the Southern District of New York. What? I was very confused. What had happened to Berman? I thought to myself, sitting with my brisket. And then it goes on and on about Jay Clayton. And I'm like, yeah, but I must have just missed it. You know, I did have a baby. Maybe I've been behind on news. I didn't think so. And then you get to the bottom of this three

paragraph press release and it says, finally, I thank Jeffrey Berman, who is stepping down after two and a half years of service as United States attorney for the Southern District of New York. With tenacity and savvy, Jeff has done an excellent job, yada, yada, yada. I appreciate his service to the Department of Justice and our nation, and I wish him well in the future. Huh, I thought, knowing some of the background of what had been going on between Berman and Barr. Why would Berman have all of a sudden changed his mind and resigned

when I know that six months ago he had no interest in leaving? Hmm, I pondered and went back to feeding the brisket. But then, along came another buzz of my phone. But a few moments later, Jeffrey Berman puts out a statement that, by the way, is like done in PowerPoint. It has his picture on it. Very professional. Yeah. This was not a fly-by-night statement. No. And this statement says, I learned in a press release from the attorney general

tonight that I was, quote, stepping down as United States attorney. I have not resigned and have no intention of resigning my position to which I was appointed by the judges of the United States District Court for the Southern District of New York. I will step down when a presidentially appointed nominee is confirmed to the Senate. Until then, I'll keep doing my job, basically, is what the rest says. So now text messages start flying between all the former DOJ-ers with variations on WTF and emojis, lots of emojis. That's sort of it. We're all left wondering what in the world is happening.

So let's take a pause here of what then we all think about over the night, Friday night. Again, I have to wake up several times to feed the brisket. So what Berman's referring to is that part D that I mentioned in his appointment, where he is United States attorney, no longer acting until the vacancy is filled. He was implying that therefore he could only be removed once the vacancy is filled. That's what replaces him. There is, however, a 1979 opinion from the Office of Legal Counsel, which are considered sort of the law professors of the executive branch, and they sit in the Department of justice that actually speaks to this exact question. Uh, can you remove a U S attorney appointed by a district court pursuant to USC 28 USC 5 46?

Uh, and they said to our knowledge, the question is one of first impression back in 1979. So it is not a first impression now. Right. And they answer this. It's actually three pages. We'll put it up on the website as well. And it's pretty readable. And it basically says, absolutely, the president has to have the ability to remove a U.S. attorney, even when he's been appointed by the court or else you raise massive separation of powers issues, not to mention just practical issues. If a judge can remove a prosecutor when he doesn't approve of something he's done. Right. Big problems. But then the second question is, can the attorney general remove a court appointed U.S. attorney? And they find the answer to that, quote, in the negative.

The bar can't fire him, but Trump can. That's the bottom line. And the very end says like, now look, probably the president could give an oral decision to the attorney general and the attorney general could deliver that oral decision, but we do not recommend this course of action is what it says, but fine. They leave open that possibility. So, okay. So all that needs to happen is for Trump to fire Berman. And this is wrapped up in a nice little bow and Berman has to go. So we drift off to bed, me, the brisket and the rest of America. So we wake up Saturday morning waiting to see what will happen. Bill Barr has issued a, you know, a long letter. Oh, but first Berman goes to the work, goes to work. Oh yes, he does, Berman goes to work. Oh, yes, he does.

Berman goes to work, surrounded by a gaggle of press, and basically says, I've said all I'm going to say about this. I am the U.S. attorney. And then we have this letter from Barr. Dear Mr. Berman, I was surprised and quite disappointed by the press statement you released last night. Mr. Berman, I was surprised and quite disappointed by the press statement you released last night. As we discussed, I wanted the opportunity to choose a distinguished New York lawyer, Jay Clayton, to nominate as U.S. attorney and was hoping for your cooperation to facilitate the smooth transition. He goes on to say, I offered you some other positions, including chairman of the Securities and Exchange Commission, the position currently held by Jay Clayton,

the head of the civil division. Unfortunately, with your statement of last night, you have chosen public spectacle over public service. Because you have declared you have no intention of resigning, I've asked the president to remove you as of today, and he has done so. By operation of law, the deputy United States attorney, Audrey Strauss, will become the acting U.S. attorney, and I anticipate that she will serve in that capacity until a permanent successor is in place. It goes on about how disappointed he is. Yeah. We do not need to rehash. Okay. So we're done, I thought, on Saturday morning. Done. Easy. Yes. All is well. 3.54 p.m., David. The president is walking out to Marine the president I shouldn't be laughing at this because it's chaos but in an important

office but okay keep going I'm sorry the president's walking out to Marine 1 to head to Tulsa and the president the first question that he gets asked why did you fire Jeffrey Berman why did you fire him

over the buzzing of the helicopter blades and the president answers well that's all up to the attorney general attorney general Barr is working on that

that's his department not my department but we really have a very capable attorney general so that's really up to him wait for it I'm not involved.

Oh my. Oh my. Yeah. Luckily, this all ends a short while later when Berman, officially exhausted

from, I think back to like the nature shows I watched with my parents on PBS as a kid where like the, you I watched with my parents on PBS as a kid where like the, uh, uh,

you know, thrashing gazelle versus the lion and the gazelle just not dying. And then finally the gazelle like probably could fight some more and is just like, you know what? This is all going to end the same way. I might as well just die now. So Berman released a statement that's like,

you know what? I'm out. I'm resigning. It's over. I leave right now. And Audrey Strauss is great. Yeah. Thus endeth the longest massacre. The roughly 24-hour Friday night to Saturday night massacre. Yeah, most massacres are just shot fired.

That's right. This was a torture death, basically. And so, okay, a couple of things that are important additional context here. So one is, why would Twitter be collectively freaking out about, and off Twitter as well? Why would text messages be blowing up? My DMs going crazy about this. Beyond the drama that we just went through, which is interesting and bizarre and incompetent on 19 different levels, because he occupies an important position,

he supervises a squadron of prosecutors who happen to be investigating business partners and entities that do business with Donald Trump. I mean, this is the office that put Michael Cohen, his former lawyer, in prison. Although worth noting, Berman was recused from that. Right. But he's running, but this is his office. So it leads to all kinds of speculation

that is this obstruction, all kinds of completely, really rank speculation. We just don't know the backstory that much at all. But what is interesting and is different, and this is where sort of Berman won, is that what was going to be unusual about the Berman replacement is that the original intention of the replacement was to bring in someone from outside the SDNY. Correct. The New Jersey U.S. Attorney Carpentino. Exactly. Instead of his first assistant taking over, which is customary until the permanent U.S. Attorney is appointed. And automatic if you don't name someone else. Exactly. So what ends up happening is Berman effectively blocked the importation of the outside attorney outside of SDNY. And now his assistant is taking over as is customary and will probably be there, you know, in at least through the end of Trump's first term.

Now, Sarah, I don't know the answer to this question. Maybe you do. Was his assistant recused from the cohen matters uh no she was not very much not so in other words the person who was probably more instrumental than the recused berman in uh actually supervising and actually in in engaging in the trump investigation the matters related to Trump's still there. Right. And now in charge. And now in charge. So that's why I say by the end of the day, at the end of the day,

if the goal was to bring in somebody completely new who could change the course of the investigations materially, and that's one thing that was very interesting about the Berman statement, is he went out of his way to say investigations would continue. So if the goal was to bring in somebody who would materially alter those investigations, I would say that goal was almost certainly frustrated. But here's what's so, okay, two points that I have to make. One, good luck shutting down investigations in SDNY, by the way. You can't do it secretly. Right.

You can just go out and say, you will no longer do this and cut off the leaks from the office if you tried to do it. But to do it secretly was never going to happen regardless.

Right. So, to the extent that's like one of the like Twitter conspiracy theories, I reject it from a practical sense. Right.

Two, just a little press lesson, David, just quick, you know, from, from you to me, please. Um, if you put out a statement at 10 PM on a Friday night, it's called a Friday night news dump. Yes. Reporters know what you're trying to do. So does everyone on Twitter. And it will simply raise suspicions that you've done something shady. If they had put out that initial press release at 3 p.m. on a Wednesday, a couple things would have happened. One, people would have been busy with other stuff, probably not thought it was shady, probably thought they, like me, had missed Berman resigning and would have moved on with their day or two if it does go south

by 6 p.m. on Wednesday something else will have happened to overtake the news cycle yes by doing it Friday night at 10 p.m.

you guaranteed people would think you did something shady try to find out what you did shady and that nothing could overtake the news cycle for the weekend until the Tulsa rally

happened 24 hours later so you owned a crap news cycle for 24 hours, totally unnecessarily. Yeah. Yeah. I mean, there was so much to this. I mean, the timing raised all kinds of questions. The immediate response from Berman, which references continuing investigations. I was surprised by that. Yeah, I mean, that immediate response was remarkable. And the reference to the investigations was remarkable. I mean, everything was, the way it unfolded

was almost perfectly textbook calculated to raise all kinds of antenna that something nefarious was going on behind the scenes. Well, as I hinted at before, Berman has known for many months that he was on the chopping block. So he has been prepared for this mentally, if not literally with that PowerPoint slide. Yes. For a long, long time, many months, going back well into late 2019. So this wasn't news to him that they had been trying to remove him,

but it sounds like it was news to him at 10 p.m. on Friday that they had at least attempted to do so. Yeah. Now that next question is, will we get a Berman book or a Berman op-ed? Well, he's been invited to testify at House Judiciary. No surprise there. Nadler had that letter also ready to go, it appears. Exactly. Exactly. I don't know, David,

I'm getting kind of over the books, I have to be honest. If you want to take a brief cul-de-sac into Bolton, I don't want to talk about all the details, except what he said this morning on ABC, which when he was asked about why he didn't testify at the impeachment hearing, you know, because that's the big question. You could have said all of this to Congress when what you had to say

was relevant to our constitutional system for removing a president who you think is unfit. Yeah. But instead, you waited and released this book in sort of a bizarre manner. I want to get your take on Friday's hearing as well. But because the punchline was, he could have asked the court to step in

and speed up the pre-clearance publication review process, and he didn't. Instead, he did it this way. So anyway, the question to him was, why didn't you want to testify at the impeachment hearing? And his answer was, I didn't want to help the Democrats, basically. What? Yeah. Yeah. I mean... So how did Friday go? I tried to get in. It was full. I couldn't get in. I texted you. Many, many frustrations. You tried to send me updates and I fell asleep.

So tell me how it went. Yeah. So by the way, this is just an open letter to elite law firms in the United States of America. Can you please make sure that your senior attorneys have good internet connections and know how to use Zoom or whatever video conferencing software. I mean, the first 15 minutes where it's literally featured this kind of dialogue. I think you're on mute. Maybe it'll work better if you turn off the audio and turn on the audio and turn the video off. No, I'm sorry. This is not going to work. No, you cannot have a hearing like this. No, not that icon. I am not even kidding. And these are some of the leading litigators in the United States of America. And we're having that conversation. It was,

you couldn't parody it. You could not parody it on Saturday Night Live. It was, so that was the first 15 minutes. Honestly wondered if the thing was going to come off. And then it goes, basically, it was really interesting because what the Trump administration was trying to do was to enjoin distribution of this book. And it was very clear right from the get-go that was not going to happen.

I mean, the judge basically said, the horse is out of the barn here, guys. I mean... Wait, didn't he say the horse isn't just out of the barn, the horse is out of the country? Something like that. I mean, and while it was happening, Ben Witt is from Lawfare, was live tweeting huge chunks of the book onto Twitter. Just like, here you go, you know, enjoying this. And so it was very clear. It was very clear that that book was not going to be enjoyed.

The publication of that book was not going to be enjoyed. But then what happened next was up comes Bolton's lawyers. And it was very clear that Judge Lamberth was not amused or impressed by Bolton's conduct. He asked the question, why didn't you file suit if the process was improper? If you believe the process was being abused to prevent non-classified information from coming out, there's a remedy. You can sue. Why didn't you sue? It was very clear to me from the get-go. The first thing, I thought two things at once. One, we're going to get the book, which is the constitutionally correct response. And number two, John Bolton may not get his money. So wait, what was their answer to why not file the declaratory action up front?

It was not great. It was a little scattered, but essentially it boiled down to we didn't think we had to. We just didn't think we had to. We thought we could just publish a book. We thought we could just publish a book. We pursued the process in good faith. The process was not being pursued in good faith by the administration. There's not classified information in this book. We have the April 27th letter or email from the head of the original classifying review authority. Yes. And there are some bad facts for the Trump administration, including some of the stuff was classified later,

after the first phase of the classification review was completed. We don't know how legitimate are the Trump administration's classification determinations. We don't know that. Lambreth is on the record, and as we mentioned in a previous podcast, as being unimpressed with how the government overclassifies information. how the government overclassifies information. No, but he did say he had reviewed ex parte the government's evidence for things being classified and said that he believes it is classified

and appropriately so. Right, right. And so, but this is all, you know, quite summary. This is very early in the process. This is about four or five days into litigation so um and so that was essentially you know essentially he was setting the stage for punitive actions against bolton post publication and in so doing i think he might have, regardless of the law, captured the zeitgeist, which was, yeah, we want to read what Bolton has to say, but it just feels super gross that he is making a giant pile of money when he could have said this earlier in the context of a constitutional process, holding the president accountable. And the book goes on to argue that the Democrats made a mistake because they could have impeached him for more.

Well, okay, why not come forward as a patriot and say that? And I know there have been defenses of him and some of the defenses say it wouldn't have mattered anyway with the Republican senators, et cetera. Probably true. But it's sort of like the declaratory action, but you never gave it a chance. Never gave it a chance. Never gave it a chance. So, you know, Judge,

I felt like Judge Lamberth was kind of all of us at a few moments in the- A pox on both your houses. Yeah, yeah. Come on, Trump administration. You are not enjoining a book that people are reading right now and tweeting the contents to. Please.

And come on, Mr. Bolton. You signed these contracts. You had a way, if you thought the administration was doing this in bad faith, you had a way through. You didn't choose it. And there are consequences for that. So it feels like that.

Kind of sounds like a divorce. It does. It does. Like child custody over the book, over a nasty divorce. Well, and this was a very messy divorce between the Trump administration and John Bolton. So yeah, so that's where we are on Bolton. So I'm going, are you going to read the book, Sarah? Honestly, no. I'm going to read it. I'm going to do. Thank you read the book, Sarah? Honestly, no. I'm going to read it. I'm going to do.

Thank you. Thank you for your service to our podcast. Yes, I will read it and I will report back dutifully to our listeners. I'll ask you questions about it. How about that? I'm reading a great book on Churchill. I can't really go from Churchill to Bolton. I'm sorry.

Understood. Understood. So that's the Bolton detour. Let's pause here to talk about today's sponsor, Gabby Insurance. We are all looking for ways to save money, especially now. When's the last time you looked at how much you're spending every month on car insurance, on homeowner's insurance? Now's the time to check out Gabby and see about getting a lower rate for the exact same coverage you already have. Gabby takes the pain out of shopping for insurance by giving you an apples-to-apples comparison of

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It's totally free to check your rate and there's no obligation. Take two minutes right now to see how much you can save on your car and homeowner's insurance. Go to gabby.com slash advisory. That's gabby.com slash advisory. Gabby.com slash advisory. Thank you, Gabby Insurance, for sponsoring Advisory Opinions. Shall we talk about the Supreme Court a bit? Let's do it because I feel like Bostock, Bostock more than DACA,

was really the opinion that launched a thousand ships of internet takes. Yes. Yes. It was much more so because I think when you're talking about DACA, outside of like, well, let's put it this way. The conservative legal movement has not centered nearly as much around the Administrative Procedure Act as it has around the First Amendment and religious liberty. And the Dreamers issue, while a hot button and volatile, is also not quite as wrapped up in the culture war as the way the conflicts between religious liberty and LGBT rights is wrapped up in the culture war. And so there's much more gnashing of teeth right now about Bostock than there is. I think that's true. I also think that Roberts wrote the DACA opinion in such a narrow cabin fashion. It's hard to apply that opinion to anything else that could come down

the pike except for the next DACA case. Yeah. And that's not true for Bostock. Everyone's sitting there going like, well, wait, what about this? What about this? How's it going to apply to this? Like we talked about the affirmative action take by Cass Sunstein. So that being said,

there's the larger, there's a lot of conversations. But David, I want you to talk about this Ross Douthat op-ed from today. Yeah. So this is a really interesting op-ed. And I think Ross, as usual, is he's always worth reading.

And on this issue, he makes a really interesting point that I'm going to agree with in large part and I'm going to disagree with in a material part. And again, we've thrown this up on the website. So check it out. You can read it for yourself and take on David in all of his tapes.

So his fundamental theory is that we essentially have 2.25 branches of government right now. We don't have three branches. We have a presidency, and this is the quote from him, that acts unilaterally whenever possible, a high court that checks the White House and settles culture wars, and a Congress that occasionally bestirs itself to pass a budget. And I like that he said occasionally because we did go through many years without even passing a budget. Um, and so, and, and so one of the, and this is something he's amplifying points he made on Twitter that essentially power will flow to the entities that are willing to exercise power. And he says,

what we have here is a juristocracy, an emerging juristocracy, where the judges are willing to exercise power, and they're doing so. And that this is different from years past. And he says, while Grant and Sherman prepared their offensives in the Civil War, Abraham Lincoln didn't demand that the Supreme Court declare slavery unconstitutional. Instead, he pushed the Senate to amend the Constitution to abolish it. Battles over Catholicism and public education, women's suffrage, and temperance all had similar legislative goals. The long struggle for civil rights was aided by Brown v. Board of Education and Loving v. Virginia. But the crucial action was in Congress, where the major civil rights laws ultimately passed uh the following decade feminists naturally sought their own constitutional amendment the era and its defeat was seen as a milestone in conservatism's rise and that's all

completely completely fair um that major social movements of the past have emphasized Congress over the judiciary. And that's different. The judiciary now exercises a large amount of power. And that's a problem. And I agree, that's a problem. Now, where does the fault lie? Look, yes, absolutely, there are some judges who are quite ambitious, but we have, and they're in the way in which they wield power, we have seen that for quite some time.

It's one of the reasons why judicial restraint was a rallying cry for much of the right for many, many years. It's less of a rallying cry now for reasons we can get into. But there is an important factor here. But there is an important factor here. So on the one hand, we don't seek, and I think Ross would absolutely recognize this, we don't seek Congress to intervene because we know Congress will not. It won't. Let's take free speech on campus. Although I think there's probably wide idea in theory of a public approval for a free speech legislation to protect the marketplace of ideas on campus. I even drafted model free speech legislation for Congress all the way back in 2004, Sarah.

For some reason, I misheard that a little and thought you were saying from model Congress, like in high school. You should see my my resolutions to end the Israeli-Palestinian conflict and model you in. Perfect. Sorry. Yes. You actually did draft. Okay. Yes. I knew it was going nowhere. I knew it was going nowhere. And so there's a lot of how much energy and money are you willing to pour into an act of futility? Whereas if you file a lawsuit in a court, you know what? The court has to rule on the lawsuit. It cannot just simply say, yeah, we'd really rather Congress do this. No, you're filing a set of legal claims based on legal doctrines. And so I have been in the meetings where we discussed the goal

is to blanket the United States of America with free speech lawsuits. And we knew they were going to have to be resolved. And we knew that not all the resolutions would be uniform. If they were, great. I mean, that would mean, you know, hopefully that we'd won. But to the extent that there were conflicts, you can't have one set of First Amendment doctrine in one part of America and another set of First Amendment doctrines in another part of America. The Supreme Court has to settle it. So unlike Congress, which doesn't have to act and chooses not to, you know who has to act when you file a lawsuit? The judiciary. You know who has to act when you file a lawsuit? The judiciary. It has to act. If we could have passed free speech legislation through Congress in 2004 to wipe away speech codes at all public universities in the United States, that would have been a lot less difficult than the amount of time I spent litigating, Sarah, I mean, to tell you. Yeah. But we knew it was impossible.

We knew it was impossible. And we knew the court had to act. And so this goes back to my rant. I'm not so much angry at the court for resolving lawsuits when it has to resolve lawsuits. I'm going back to Congress and I'm saying, look, guys, you're breaking us. You're breaking this system by your unwillingness to act. And this is one I'm

going to recommend you guys listen to. Ezra Klein, I'm going to find and put in the show notes one of his older podcasts in his book, Why We're Polarized. And he talks about how Congress is not able to exercise power now. And the changing way in which Congress, the changing composition of Congress, where it's so uniformly ideological between the Republican and Democratic side, in part because of the big sort, in part because of gerrymandering. But it used to be you could pass major legislation on a bipartisan basis because there were different ideological coalitions within the parties. And so you could cobble together a coalition of Midwestern Democrats and Northeastern Republicans to pass the Civil Rights Act of 1964 over the

objection of the Southern Democrats. You could do that. You could pass legislation with this big mix. But now it's lockstep R and lockstep D, and it becomes extraordinarily difficult for anything to happen. And then, by the way, you then have people running to Fox and MSNBC saying, Congress is broken, say congressmen. I think you also have some of a cycle going as the executive gained more power, including the power, not gained this power, but including how powerful it became then to appoint judges as Congress receded like Homer Simpson into the bushes. important. And so you have all these members of Congress who don't want to take controversial or unpopular positions that could cost them the presidency and why you see 20 people running for president and then running for president on the platform of appointing judges. I mean, think about Marco Rubio's presidential run. The Gang of Eight bill killed it. How dare he even propose legislation to try to fix a problem? Whether you agree or disagree with it, the other candidates who hadn't tried to fix the problem were far more base fan service legislation that you know has no chance of passing but does have the effect of terrifying the other side.

And so you have these platforms that have these arrays of proposed legislation that aren't going to get through. They're not going to get through. legislation that aren't going to get through. They're not going to get through. But then, you know, on the other side, you say, well, if I don't vote for Trump, then look at this legislation. And you're thinking, it's all LARPing. It's all partisan LARPing. I'm fascinated to watch Josh Hawley, let's call it, I'm going to call it 2019 Josh Hawley to 2023 Josh Hawley, when he is really in the throes of a presidential campaign as sort of the new, the emerging model of the senator of what you're describing and how effective it is and whether voters respond to it. Again, assuming that Trump were to lose this election. If not, just fast forward,

take my numbers and add four years. But I think that Hawley is charting, sort of graduating from the last 20 years of congressional disengagement, and we're seeing a new form of it, an advanced form. Yeah, I would agree with that. I would agree with that. He's become the, he's become very good at drafting legislation that can't pass and is likely unconstitutional. And then using that as a tremendous platform to speak to the populist base on Tucker. And then by conversely terrifying a number of Democrats who say, we'll look at what's coming down the pike. And none of this stuff is passing. Right, but this is because Senator Josh Hawley doesn't think

he can get anything passed right now anyway, because nobody's going to join that coalition. The Democrats aren't going to help him pass anything. So he needs to become president to get anything done. And so here's how he can become president. Like, again, I'm actually not criticizing Josh Hawley. I think he may have found a pretty good method for doing this in the system and in the framework that exists.

Because even if he wrote really, really reasonable legislation, David, it still wouldn't pass. So what's he supposed to do? Well, he needs to become president to do those things. So yeah. So I was reading Jack Balkin. He's a professor at Yale. He is a liberal professor, but an originalist liberal is how he describes himself. Which, by the way, is a whole thing of we're all textualists now, we're all originalists now. adoption of textual and originalism, which was originally heralded as a huge success of the Scalia legacy, is now an interesting debate of like, ooh, is that bad? Like they're taking the conservatives' words

and using them against them? How dare they? So Jack Balkin writes this great piece. It's like, hey, look, as an outsider who's been watching the Federalist Society and the conservative legal movement for a long time, here are my observations in the wake of Bostock. And again, we'll put it in the show notes. But here's the paragraph that I think is most a good summary of his point. The move from judicial restraint to judicial engagement

by the legal conservative movement once they gained power and appointed all these judges, of course they became more engaged, had unexpected consequences for the conservative alliance. It benefited all parts of the alliance to some degree, but some parts more than others. In particular, the move to judicial engagement tended to benefit libertarians, small government conservatives, and business conservatives the most because they're the ones who wanted to push back against regulation and undermine bureaucratic capacities, which he argues previously was something that judicial conservatism was very good at targeting. That philosophy was very good at dismantling. By contrast, he says, it crossed up the interests of the national security conservatives some of

which wanted to limit the executive some wanted to defer to the executive but most importantly of course uh it undermined the social and religious conservatives the most and put them at odds with the libertarians and the pro-business conservatives who didn't really care about those issues and weren't going to fight on that ground with them. And what's fascinating, and he points this out as well, but I would take it much, much further. As the Reagan stool was disintegrating, I think everyone thought the legal conservative group was its own leg and doing just fine. Scalia had left us with this legacy and like, wow, it's thriving. Look at the Federalist Society. Look at all these judges. And nobody noticed the rot in the stool. And I think this week people are like, wait, is it possible that legal conservatism will fall apart too and the Scalia legacy won't exist so shortly after his passing? that would have been unthinkable in late 2016. Unthinkable. Yeah. What I thought was interesting, and I'm going to come at this from a slightly different

way. I think one of the foundational breaks in communication was over what is originalism. breaks in communication was over what is originalism. And I think that what seeped into the body politic was original intent. That when you talk to originalism, and I will admit years ago to being quite sloppy in my use of that language myself, like John Adams would be shocked to discover that his constitution had been interpreted in XYZ way.

It's kind of an easy thing to say. It's sort of an easy, it's an easy critique to make. But what I think a lot of religious conservatives thought, I'm going to take this in a direction that you might not be anticipating. I'm going to take this in a direction that you might not be anticipating. I think a lot of religious conservatives thought that the Constitution should be interpreted the way Scripture is interpreted. And that when you're talking about reading Scripture, you're trying to understand the mind of God. Intent is everything. It is everything. And so, yes, the words on the page are absolutely vital. They're vital because they're the window into intent. And so, if you're a religious conservative and you're looking at the Constitution,

which a lot of people sort of on a documentary basis are like number two behind the bible when you're talking about amazing you know marvelous documents uh in human history the constitution is up there in in a lot of people's minds and so their view of what original originalism was was kind of like WWJMD. What would James Madison do? Yeah, yeah, for sure. And so if you take that approach, then a lot of the emerging moral structures of modernity, a lot of the culture war arguments, you're thinking, James Madison would not be down with this, okay?

He would not be down with this. But that isn't what originalism is. It's original public meaning, not original intent. In other words, what is the meaning of the words? And as a matter of fact, that's what makes originalism adaptable to a changing nation, but it is not what people envisioned. And I think that's where people say, well, there is a difference between the conservative legal movement has failed because it isn't doing what James Madison would want it to do,

is kind of an underlying argument. Because I think that the real thought is this nation has changed in ways that would shock the founders substantively. And therefore, that substantively, and therefore those changes that would shock the founders substantively, must fail. When much of what the founders were doing was not putting in place a series of substantive, a constitution that would result in particular substantive outcomes. They were putting in place a structure through which conflict was to be mediated. And this is what, you know, people who critique me, they call that process liberalism. You know, because it's supposed to be a process and an outcome. And I think that that's part of the disconnect, Sarah. You know, I've been around a lot of religious conservatives my whole adult life. I'm a

religious conservative. And I think there's, that's where some of the disconnect exists. Does that make sense? It does. And I think this will not be the last time we're not leaving this conversation. Something you wrote in your newsletter was sort of, let's see where the rest of the term goes on some of these religious liberty cases and what we have left. So let's put a pin in it there and come back to this in our Supreme Court roundup. And one other plug, and we'll put it in the show notes.

Please read my Sunday French press. If you're not a dispatch member, it's free. All my Sunday newsletters are freely available. One thing that I realized when I was watching a lot of the response to the Bostock

decision is a ton of people with public platforms were making arguments about religious liberty when I realized with a sudden shock, they don't know the law. And so I tried to just very basically say, okay, okay, guys, here's what the law of religious liberty is post-Bostock. If your pastor's nervous, if your school principal is nervous, if you're nervous, please read this. Please read this because you will see that there is an immense array. I called it a citadel of religious liberty in the law, and that citadel is still there.

It's still there. So take a look at it. And I also noted, went out of my way to put the dates. A lot of these cases were decided. And you'll see that most of them are post-rise of the religious, I mean, the post-rise of the conservative legal movement. Um, and so anyone who says it's done nothing, just read that please. Um, I think you'll see that it's not done everything it could do, but it's done a lot. Well, as our producer, Caleb said,

he was surprised that Sarah and David wanted to take on young adult novels that have been turned into film. But Caleb, you don't know me and David actually you do. And it is a little surprising. But David, you are rewatching the hunger games based on the trilogy books. Also called the hunger games. Yes.

By the way, there's a new one, a prequel coming out or wait, it just did come out. It came out. I haven't read it yet. I haven't read it. But the original books were released 2008 to 2010.

The movies came out shortly thereafter. What do you think re-watching it? What are your thoughts? I have lots of thoughts. You know, I do this. I like to watch something and then re-watch it five ten years later see what i think about it um and i'm just

i remember ending that series and and to put into some perspective i read these things as they came out after i got back from iraq and so this is dystopian future. But what was always so resonant about the books is they were emotionally realistic to the wreckage that often follows heroism. And one of the things that I thought was so fascinating is she painted a picture of a heroine and a hero who were incredibly, I mean, they did all the things that you expect fictional heroes to do,

but suffered the consequences that you do not expect the fictional heroes to suffer. Time and time again and the movies portray this well i mean they're just shattered by their experiences just shattered by their experiences and i had a feeling of isolation a feeling of loneliness um because they are made different yes by their experience and i i remember finishing the books and thinking did she talk to veterans um when before she wrote this like did she and even to the very ending of them all which is quite bittersweet and and you know spoiler you know should we do spoiler alert for books that are

a decade old no we can just spoil them. You know, the love triangle is resolved with Katniss with Peeta. And it just felt like because they were the only ones who could understand each other. Like, because at the end of the day, they were the only ones left who could really understand each other.

Not because of some incredible torrid romance, but because they just... No, that's right. And in in fact there's not a particular feeling of true love or passion it's uh moving on yeah i am able to move on with this person with my life yes and that enough was sort of and that will be enough was like the ending, which is a far, far different, uh, trilogy than for instance,

Twilight. Yes. So my whole shtick on this is I, when the hunger games came out, I thought that, and they were so popular. Oh my goodness. Uh,

28 million copies sold. I think in the U S alone. What does it say when we have these massive popular cultural moments? TV counts for me to some extent, but books, because they're less common, I think speak to a bigger hunger zeitgeisty-wise. Right. And so for me, this is a young adult novel, came out in 2008.

We assume, let's call it a 10 to 15 year old female audience is the highest audience like the the largest median audience whatever so what does it say about these young girls and women that this is the book they were attracted to and 10 years later how will it have affected them like for this to have been a a formative trilogy that they read uh and they're kind of different questions but to me what stuck out from a like feminism standpoint is not only can she not rely on the men in her life like she doesn't rely on them she's from the beginning though not relying on the men in her life. Like she doesn't rely on them. She's from the beginning though, not relying on them.

She's the one hunting, catching things for food, taking care of her family. Her dad's gone. This is like, women take care of yourself. Like there's no one coming to your rescue. And instead of making it like she's so unusual

or there's something special about her, you're sort of told like, no, there's nothing special about her. Yeah, maybe she's smart, she's clever, she's tough, but she's sort of just put in this position to have to act in the moment. And I really liked the message that the love story was not just secondary, maybe tertiary to the entire story. The love story doesn't end up with a Prince Charming moment at all. Mm-hmm. Uh, she's the Prince Charming who rescues him over and over again. And then she doesn't pick the hunky one.

She, as you said, picks the one who shared her emotional experience. Right. as you said, picks the one who shared her emotional experience. Right. Uh, so I'm very curious to see what that generation of women turns out to value in feminism and their careers in terms of their family life. Uh,

I'm not sure. I don't know how I feel about telling them that, um, you have to compromise when it comes to marriage. Marriage is a series of compromises once you're married. Don't get me wrong. But compromising on the person you're marrying maybe is not a message I would have included in the book.

So I would... Okay, I'm going to disagree with that a little bit because... Go for it. Yeah. So one of the things... I hate this, the twilight trope of you know confused idealistic young girl meets brooding bad boy with the mysterious past and mysterious life story yeah twilight okay i mean come on um i mean but you know lots of people loved it whatever

uh no but it's terrible the interesting on on many levels storytelling is just one of them yeah so the interesting thing i thought about so just taking it from a perspective of the two male characters in uh twilight and not sorry and uh hunger games you Gale, the brooding guy, impulsive, you know, the one who it seems like that's, if you're going with standard YA fiction,

I felt like, oh, well, of course, Katniss is going to end up with Gale. This is the type. Right, he's sort of her equal. Right, exactly. From the start. Exactly.

He hunts with her. He, you know, he is as proficient in combat as she is. And then you have this guy, PETA, who he just, he doesn't lack for any courage at all. Of course. I mean, he demonstrates ridiculous amounts of courage time and time and time again. And selflessness.

And selflessness. So you can't say he lacks courage. You can't say he's selfish. He just loves Katniss. And he has for a long time. And that's always the guy that's like the roadkill. You know? And the interesting thing...

The piner. He's just pining. The interesting thing, though, about it is, of the central insights of the book series is that if you're talking about building a... It showed the flaws of the Gales of the world and the virtues of the Pitas of the world in a way that few works of fiction have because they're biased towards the Gale perspective. And PETA was more than just a piner because that makes him sound kind of creepy when he wasn't. No, I actually, I didn't mean it in a creepy way, but I meant it in a beta way. Yeah, I mean. It does make PETA more of a beta than Gale. Gale's the alpha and PETA's a little bit of a beta. Yeah, and see,

that's the thing that I thought was interesting about the book. But betas can be courageous, and betas can be selfless. Like, it, I think, made it less of a caricature of a beta. Yeah, and that's what I appreciated. You don't have to be

a dominant personality. And he was not a dominant personality. Katniss had the dominant personality. He didn't have to have the dominant personality, but he did have to, at the end of the day, exhibit virtue in ways that ultimately exceeded Gale's, even though Gale had the dominant personality. I think at the end of the day, the person who confronted more, who overcame more, think at the end of the day the person who confronted more who overcame more who forgave more was him and you know i so one of the things that i thought that was really interesting about the ending is that you know if you're wanting to say okay here is marriage is going to be this thing

where you can have every single aspect of awesomeness wrapped into one uh wrapped into one package that would be typical sort of like fictional resolution that what gail happens with gail is gail is still gail but he comes just enough pita right right towards all all the things right it's perfect yeah but instead what ends up happening is you have two flawed human beings two imperfect human beings and i think katniss with absolute conviction by the end understands that for her that there is only one person and it's not a doubt thing and i think it's it's part of the way in which you know gale's recklessness at the end of the third book in the fourth movie demonstrates. And it's not a, so anyway, that was to me,

it just showed a different type of male character that was every bit as courageous and virtuous as you could want, but with a completely different kind of personal temperament. And I just, I don't know, I liked that. I thought that was really very well done. So around the same time, of course, Fifty Shades of Grey also becomes incredibly popular. And yes, David, I did read them. And no, Sarah, I did not read them. Well, but let me tell you, because... Okay, so we have a totally different generation that that is attracting.

So, like, sort of the... Let's, like, skip a generation and then that generation above the Hunger Games young women. And they are obsessed with Fifty Shades of Grey. And that, to me... And the reason I bring it up is because I think it's, um, uh, far more again about masculinity and how we're defining masculinity and what, um, you know, to peacock, right? Like, uh, men have to have all these like colors and types of masculinity,

whatever. And we, as women get get to be the choosers. We choose who to procreate with. And that's how natural selection happens with peacocks and humans as well. So The Hunger Games, as you said, shows this complicated version of masculinity where she picks the PETA. The courageous... The guy who does not peacock at all. That's right. The non-peacock, courageous, less dominant personality. In Fifty Shades of Grey, it's totally the opposite.

He is, I mean, right? If you've even heard of Fifty Shades of Grey, he is dominant by definition. And she is submissive. And I think it goes to like the cultural war, religious liberty, even to some extent question, as people think about where gender is going in our discussions around all of this,

look to popular culture. Women are still interested in struggling with this question and the 50 shades of gray women are saying, nope, I want the dominant male personality. I want a peacock. And the Hunger Games generation potentially is saying,

I actually think that I am the better provider, the more, the better Katniss. I'm going to hunt better. I'm going to win. I'm going to beat the government. By the way,

super libertarian message in the Hunger Games and weirdly pro-life message in Twilight, but that's sort of beside the point. There's really no message in Fifty Shades of Grey. As I wrote to you, it showed that that generation of women does not particularly value the English language, but does value masculinity. So here's another, let me throw another thing at you. so here's another let me throw another thing at you all right so i think one of the reasons why people may pursue and you tell me if you tell me if you think i'm completely wrong about this i think one of the reasons why people pursue a dominant personality in addition to the charisma there's sort of you know an innate charisma of people who can carry off a dominant personality well is that all kinds of other virtues

are presumed along with it. Strength, toughness, a degree of physical courage. And especially in a peaceful, prosperous society where you don't have an opportunity to demonstrate those virtues. So, as opposed to when I deployed to Iraq,

there was every kind of personality type of guy that I was with, you know, quiet and reserved, bombastic and loud. And I will tell you, there was zero correlation between personality type and physical courage or zero correlation between personality type and physical courage, or zero correlation between personality type and a sense of honor and conviction. And you put all of that group of people through a crucible, okay? And what emerged was quiet guys who demonstrated phenomenal courage.

We saw some bombastic people who demonstrated some, in one instance, one of the most unbelievable acts of cowardice I've ever seen. And you couldn't, so, you know, but everyone emerged from that crucible having been tested in these very important ways and, you know, and having passed. And so, I think, so I think one of the things about the Peta-Gale situation is, in fact, they were both faced ultimate, ultimate tests. One of them, in Katniss's eyes, fully passed, and one of them, in her eyes, didn't pass. And that was what was interesting to me about it because she departed from the correlation between the personality and the temperament and you see some of this and this goes back to arguments about masculinity in the age of trump people treat treat their tweets as

evidence of strength as evidence that they fight is evidence that they're combative. And they treat civility or decency as evidence of weakness, as evidence that you're not willing to fight. When in fact, often, when you look at the actual incentives aligned for different kinds of behaviors now, it's the people who are seeking decency and civility who are actually having to demonstrate

greater conviction in the face of cultural headwinds than those who are going along with the tidal wave of outrage. And so we're getting the strength and courage thing exactly reversed. Well, for Scott's part, he fixed the toilet this weekend. And that was a show of courage to me and bravery in the face of overwhelming odds and very important. But here's what I would say to the young women who are listening to this podcast, I think. Far be it for me to actually give real relationship advice because every situation is different. You're different. We all bring our own baggage to these things. But there is some wisdom that I think I have gained as I get older that I hope the Hunger Games sort of taught some of these women, which is

one, women are the selectors. Take that role seriously. You're not trying to win him. He needs to be trying to win you, whether it's peacocking, whatever version of peacocking it is, is fine. But in the human population and in not all, but most animals, we're the selectors. And you, you know, preen about doing your thing. Bowerbirds are my favorite birds for this reason. I think the male bowerbirds are a delight. If you haven't looked up a video of male bowerbirds and their bowers, please do so. They are the best of us. But what I don't think any of these books speaks to is that when picking a partner, oftentimes we talk about the virtues of that partner. And I think that's important,

obviously. But what I have never seen someone talk about and what has just proven so true for me personally, and I'd be curious what your reaction is, maybe more important than the virtues that your partner brings are the virtues that they bring out in you. We all have different versions of ourselves. I'm different with my college friends than I am with my legal friends, with my DOJ friends than with Scott's friends, etc. And some of the versions of me I like more than others or are more comfortable in than others. They're all me though.

Your partner, the person you're going to spend your life with and go through all of these trials and tribulations with should be the person that brings out the version of you that you like the most, feel most comfortable in, enjoy being the most. And it's almost secondary whether you like all of the parts of them right yeah that's a really interesting point i mean look if you're marrying somebody and going into a relationship with the view that they're almost great almost almost perfect and i can make them perfect that is that is the recipe for a real disaster. Yeah. It's just a nonstop conflict, because guess what?

Nobody's ever going to be perfect. And even if you encountered someone who was super close to perfect, you're not perfect. And so you don't even have the ability always to accurately perceive situations. And you will get less perfect with time, at least if you're anything like me. Whatever perfection I was able to attain in my grooming and appearance and loveliness at 25, when you're married and had a baby a week ago, a lot of the perfect falls away from you. Well, that's the paradox of maturity, I think. The paradox of maturity is that you

actually do mature and grow better as a human being. But part of growing better as a human being is you have greater self-awareness, which continues to reveal flaws that you didn't realize and understood that you have. So maturity is a great blessing and it also can be incredibly uncomfortable. But I think that's very right. And one of the interesting things I think is how do other... One of the warnings of a bad relationship, I think, is when friends say, I don't like who you are around them. I had a really pretty dramatic friend intervention at one point early in life before I met Nancy that was like along the lines of, I don't like what you're becoming with this person. That was, you know, it's kind of like a

scales fall from the eyes moment. And then the last thing is, of course, if your exclusive focus in a relationship is on the other person's virtue and not your own. Another recipe for absolute disaster. And I'm almost hitting year 25 of marriage, Sarah. Yeah. So, you know, maybe you should be writing a book on all of this. But I think there's some combination of, there's something good and wholesome about the doe-eyedness of Twilight. I'm not going to totally poo-poo the idea

of just falling head over heels. Like, that's good. You know, there's moments like that. But there's also the Hunger Games moments of being self-reliant, knowing who you are, and finding a person who fits into that, even though I think Katniss made the wrong decision. Well, we're going to have to have a whole podcast on that.

And the 50 Shades of Grey, whatever you want from masculinity, you are the selector as a woman and take that process seriously. And I will also say, never take dating advice from me because I dated Nancy for six weeks before we got engaged.

And we were engaged for three months. That's way more twilight than Hunger Games, my friend. Oh, yeah. And here we are almost 25 years later. And that's God's providence right there. Because if my kids came to me now and said, oh, I'm getting engaged to somebody I've known for six weeks. And oh, by the way, I was working at a big firm. So I really didn't see a lot of her known for six weeks. And oh, by the way, I was working at a big firm, so I really didn't see a lot of her

during those six weeks. It's a lot like we were spending every waking moment together. So yeah, don't do that. But thank God, it's been a blessing. Three different versions of feminism from late 20-aughts literature. Yes.

All right. Well, this is one heck of a podcast, and we thought we weren't going to have as much to talk about today. But thanks for hanging in with us, and we will be back on Thursday. And is the court going to issue opinions Thursday? Do we know? I believe so.

Okay. So maybe we'll have something other than equitable disgorgement to talk about on Thursday. But isn't that fun to say? It sounds like we're talking about anacondas or something. It does. It does. But thank you for listening.

This has been David French and Sarah Isker in the Advisory Opinions Podcast. And again, please go rate us on Apple Podcasts. Thanks again.