Legal AF by MeidasTouch - Breyer & Beyond: Legacy, process and Biden’s SCOTUS pick

Episode Date: February 3, 2022

LegalAF x MeidasTouch, the top-rated weekend global news podcast covering US law and politics anchored by Ben Meiselas and Michael Popok, has launched a special weekly Wednesday short-form edition providing a piercing but entertaining look at one or two topics ripped from today’s headlines, this one co-anchored by veteran prosecutor, policy analyst and defense counsel, Karen Friedman Agnifilo (“KFA”). On this all “Supreme Court Pick” episode, KFA and Popok look at Breyer’s legacy and shoes to fill as a consensus-builder on the Court, an overview of the confirmation process and next steps, and a look at the top 3 on President Biden’s short list, including Judge J. Michelle Childs backed by both Democratic Senator Jim Clyburn and Republican Senator Lindsey Graham (who is also on the Senate Judiciary Committee). Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the midweek edition of Legal AF with your hosts. I'm Michael Popak. I'm Karen Friedman Agnithalo. Hi Karen how are you? I'm good how are you? I'm doing great. I'm in New York you look like you're in Blurry Town where are you? I'm in New York also but I'm in a different part of New York. All the way in upstate New York, near the Canadian border. There's a lot of proutine and French words everywhere. So it's a very, very high up north. Cool, and thank you for making time for me and our audience to continue what we're doing midweek

with Legal AF. And on this 30 minute episode, we'll focus on Justice Breyer, the confirmation process, and the short list to replace him when he finishes this term. And the affirmative action myth, unfortunately, Karen, that the Republicans have now latched onto to cloud and defame this pick even before it's actually made. Our president, President Biden has decided rightly so that he's going to use this opportunity. It's it's a once or twice in a lifetime opportunity to pick the first black woman in 230 years on

the court and bravo to that. And of course, the Republicans hate that and have attacked the pick even before it's been made as being a product of affirmative action. So let's get down to the things we're going to talk about. Let's start with, I'll kick it off with the legacy of Stephen Breyer, because Karen, I found it interesting in all of the tumult about his stepping down and all their hand ringing about will he or won't he, you know, is it going to be like, unfortunately, like Ruth Bader Ginsburg and she's and it's going to happen so late that the Democrat doesn't get to make the pick. Or is he going to step off what's been lost in that shuffle? Is the legacy of Stephen Breyer and what he accomplished since being on the court

appointed by Clinton in 1994. People just think, well, he's that old guy on the Supreme Court, but frankly, without Stephen Breyer, many of the majority decisions that we hold dear in the last 25 or 30 years would not have been accomplished. At one point, when Kennedy stepped down, there was even talk that it had

become for a moment, the Breyer Court, because he ruled in the majority decision on most of the term for about three terms running after Kennedy stepped down. And so the question that Progressives have, like me, I think like you, is do we just want a liberal to be selected to sit in that chair and we're content with losing six to three on every major decision? Or do we want somebody to fill the shoes of Justice Breyer and build consensus and do it? And he was a technical writer. He was not an eloquent writer.

He's not Kagan's equal, equal, for instance. But he was able to find consensus across the aisle. And to turn what could have been six to three and seven to two decisions against him into five to four or seven to two decisions in favor of his position. And so it's not just about picking somebody. It's picking someone to replace him

that can hold the intellectual heft that has the intellectual heft to help forge consensus. And so we're going to talk about each of the major top five short picks and we'll get your opinion and I'll weigh in as to is this the person to follow in the big shoes of Stephen Breyer or not? But let's talk about his legacy for a moment before we turn the page on his career. He is going to be staying for the entire term, which is a good thing.

I wanna, I'm here to tell people, that's a good thing, not a bad thing. When the abortion decision in Dobbs versus Mississippi is yet to be decided and the opinion yet to be written when affirmative action has now been taken up by the Supreme Court. That's a good thing that Stephen Breyer with his heft with his 30 years of experience with his gravitas is sitting in the chair. They're now going to their second amendment issues have not yet been resolved. The New York case about concealed weapons. So I'm glad the Stephen Breyer is in the chair. And as you'll discuss

in the confirmation section or segment of today's 30 minutes, the fact that he's going to stay till the end of the term does not mean that there's going to be a delay in the confirmation process at all. So nobody has to worry about the hand ringing. He's got to go and, you know, we hurry up. No, let him finish out the term and do the right thing. And we will get an appointment right behind it and we'll take his place when this term ends. The legacy of Stephen Breyer, because people forget this. Every major abortion decision affirming the constitutional right

to an abortion in the last 30 years was authored by Stephen Breyer. We forget that in all of the run-up and all of the Texas SVA issues that if you look at his legacy, one of compromise, one of an alchemist converting opposition into consensus, which is what we need, a person in his two memoirs that he wrote believes in participatory self-government. That the...

Call it what active, active liberty, right? Is that what we call it? Active liberty. That's right. Not activist judges. Active liberty, that the Constitution is a democratic document, and that the role of the judges is to preserve that. And the battle, you know who his battlemate was for 25 years on that court was who, Karen? Skalia.

1000%. So the battle, the existential fight for the soul of the Supreme Court was really a battle between a friendly battle because they were friends and colleagues between Antony and Scalia, who was a textualist, who was an originalist, who believed you just looked into the minds of the founding fathers. And what would they do is the answer to every interpretation or construction of the Supreme Court. And on the other side of the continuum, you have Stephen Breyer, who said, And on the other side of the continuum, you have Stephen Breyer, who said, we have a modern role, the judiciary.

We understand that the country is split, almost 50, 50, on most social, religious issues. But the role of the Supreme Court is to use judicial authority to bridge those gaps and make proper law under the interpretation of the Constitution. So that was a battle that went on forever, Karen, I'm sorry, good. No, no, I just, I think, I think you're 100% right. I think Breyer acknowledged, however, that that way of being a judge also has flaws because he encouraged the active participation of the people in the court in addition to interpreting what the law is and interpreting precedent, but we've seen throughout history that that can also be fraught with peril, right? Like the Dred Scott decision was one, I think that he even he acknowledged that his

active participation, their active liberty by letting people participate in sort of what should happen, what the courts should do, that that can also lead to tricky and negative consequences. What I found really interesting, what I have always found very interesting, is you think of a judge as not being political. You think of it as a lawyer coming up. You want a judge to call it like they see it, you know, call balls and strikes as they say. You don't want them to have an agenda. You don't want them to have some kind of legislating from the bench. You want them to be the grown-up in the room,

to be able to look at the advocates, if you will, who are advocating for one position or another, and interpret the law in a fair way. And so I've always found it surprising that you have such, you have these, the smartest people in the land, you would argue, are the people in the Supreme Court. These are the smartest of the smart, the really, really most one to Harvard or Yale or Stanford. And they're all, they're brainy acts, you know, they're the really smart ones in the room. And you would think that they would all land in the same place if you're just interpreting the law. But people that you could end up on such wildly different sides of an argument. I've always found that really interesting and fascinating because they shouldn't be partisan and they shouldn't be

they shouldn't be legislating from the bench. And one of the things that to get back to your point about what's going to go into this decision, if you pick, let's say Biden said, you know what, this is the moment. This is the moment I'm going to pick the most progressive, the most liberal, and the youngest because I want that person to be on the court for the next 60 years, because, you know, as we all know, they serve until they retire. So that would be Kruger. So exactly. So, let's say that that's what Biden did.

I would argue that that's not the smart move, because then all you're doing is you'll have, it could be the smartest, most qualified person. However, they're just gonna be writing to sense for the entire time that they're a judge or at least until hopefully one day, the balance goes back to be more balanced. But I think the most important thing is somebody who is a consensus, who can bring both intellect

and consensus to the court and reason to the court. I mean, there are some cases that are just bringing some very unreasonable positions and I think bringing some level reasoning to the court, I think is important. And I think many of the judges, surprisingly, even if they are, quote unquote, conservative or quote unquote, liberal, at the end of the day, they are very reasonable and can often come to consensus in certain matters and in certain cases. So I think it's very important here that a lot of people

are saying he's got to pick the most qualified. And when you use the term affirmative action as if that's a dirty word, as if that's a negative, it is very, you're not using it as a positive, right? So, so whatever it is, in addition to being the most qualified, the best, it also, there are other factors that go into, that go into picking a judge. And I think, I think one of them is what you alluded to is this ability to continue the briar legacy and to bring people together and to bring the judges together and really think about both what the real life consequences will be to their actions and try and build a consensus because

the rest of us are the ones who who live with the consequences of what their decisions are. I think, I think, Breyer was on the court long enough where he was able to experience conservative, and I'm going to use that term accurately, conservative restraint, which was exhibited by Chief Justice Renquist, joined by Sandra Day O'Connor, all the way to what we have now, which is conservative activism. There's no other word for it. The very thing that the conservative set attacked the Democrats, the progressives for for years, which was judicial activism, is exactly what they're doing. There's no other explanation for why the court is calling up precedent, There's no other explanation for why the court is calling up precedent,

some of which is only five and ten years old, and re-evaluating it now that they have the numbers. That is not the way the Supreme Court that I studied in law school, you studied in law school, is supposed to work. And if they want to be out of the political fray and they act and they clutch, they fake clutch their pearls every time somebody attacks them for being political. They spent the whole summer, most of them, on the lecture circuit, saying, we're not political, we're above politics. Well, then don't call up precedent like abortion. That's been on the books for 50 years, like second amendment, like affirmative action that's already been decided. You're not supposed to reevaluate every five and ten years supreme court precedent.

The moreays of the country haven't moved that far. Nothing has happened other than you got the numbers and that's not supposed to happen. So look, from a from briar just to remind people and then we're going to move on to, and let you lead on confirmation process. He authored Steinberg versus Carhartt 2000 case involving Nebraska, which upheld the fundamental right to an abortion, June versus Russo, which also was a, struck down a Louisiana law in 2010

that required abortion doctors to have hospital admission rights. He was on the leading edge of religious freedom in a 2005 case called Van Orden versus Perry, which allowed a actual physical embodiment of the 10 commandments to sit in Texas. He wrote the sense that were powerful in death penalty. He basically was one of the justices. Most of them are who believes that at least lethal ejection is cruel and unusual punishment

under the Eighth Amendment. And, you know, there is, there was no, because he's leaving. He's got one last shot with Mississippi versus Dobbs. There is no greater vanguard to the fundamental right to abortion than Breyer. And he's got big shoes to fill, which we will cover in the last segment on the short list.

But let's talk about the confirmation process, Karen, and because there's been a lot of hand-ranging among our followers and listeners about how does this work and what happens and what does the Senate Judiciary Committee do? All right. And what's the timeline for it? Let's let's walk them through it. So as everybody knows, the Constitution of the United States sets out three separate but equal branches of government in articles one, two, and three. And an article three is where they talk about the judicial branch. And that's where the Supreme Court of the United States, the process or the procedure occurs.

And it really involves all three branches. They really seek to involve the executive branch and the legislative branch in order to confirm and pick the judicial branch nominee. And so the way it works is the president usually meets with the various candidates on short list and then they pick somebody for the position. They then present that position to the Senate.

Usually they consult with the Senate before announcing the person, because really they want their individual to be selected. They don't want to put someone on this, not going to be selected. So they try to do a little bit of a vetting ahead of time with the Senate. And then they send it to the Senate Judiciary Committee.

Now, the Senate and the House have committees, all many, many, many committees. And committees have certain members that sit on them and certain committees are more prestigious than others, and you get selected to be on the committee. And people want to be on certain committees and not others, and whoever's in charge of the ranking, I'm sorry, the ruling party is who

chairs the committee and has the majority of members. So the Senate Judiciary Committee is the one that vets the candidate and sort of does the kick the tires. And they look, they read all the opinions and they have an FBI background check and all of that. And who's the chair of the committee? It's, you know, I'm gonna go out and say that we need to retire the name Dick. His name is Dick Durbin.

I think it's time to retire that name. And I'm happy to retire the name Karen too, by the way. So let's go by Richard or something else. But his name is Dick Durbin. He's a Democrat from Illinois. And he's the chair of the Dishoerie Committee. And I think there's 20 or 22 people on members. There's 22 split equally 11, 11 Republican Democrats.

Yeah, I actually read that somewhere, but then when I look at the members, it can't count them. It turns out to be 20. So there's I think 22. I agree with you. And basically, they hold hearing and At the hearing it usually takes on average three days for the hearing Usually this takes place approximately one month after this president Gives the name because they spend a month sort of again preparing and and doing their homework on on the candidate and and preparing and doing their homework on the candidate. And the candidate themselves prepares. There's a lot of preparation that goes in.

I have several friends who have done before the Senate for confirmation to be a judge. And there's a lot of preparation that goes into it. And so there will be preparation on both sides. And also one thing I didn't know until recently that witnesses can also present evidence on behalf of this nomination. And the candidate's question.

I need a hell, I need a hell was a witness. Yeah, exactly, exactly. There you go, that's true. I guess I just never thought of it like that. I never, until I was very young during the Anita Hill process. So it's only thinking about it now that I've been a lawyer for so long that it's just an interesting to think about that that you can have witnesses. And I guess you're right, you know, say, same thing with one of our recent confirmations as well. Anyhow, so the candidates questioned and then they vote.

And there's either a yes, a no, or I take no position that happens. And that's a recommendation to the full Senate. And then it goes to the full Senate and the full Senate debates the nomination. And then they vote. Now it used to be that the Senate was allowed unlimited debate, which is also known as the filibuster, when it came to judicial appointments. And so what would happen is if somebody was being pushed through that somebody that wasn't, that

people didn't like, you would, you would be able to filibuster, and in order to get past a filibuster, you need a three fifths majority or 60 senators, which is also known as a cloture vote. But in April 2017, the Senate by Mitch McConnell changed the role in order to get Gorsuch, Neil Gorsuch pushed through and nominated and lowered the requirement to a simple majority, which would just be 51 for Supreme Court nominations.

And look, at the time, I'm sure, at the time many people were unhappy with the fact that the roles changed, but you gotta be careful what you wish for because now it benefits us, right? Now we're... You live by the the sword you die by the sword. Exactly. And so they have a debate.

Then the Senate votes and a simple majority here would win. And if you don't break, who breaks the tie, right? So, right, the vice president, Kamala Harris, she would be the one to break the tie, which is why because the Senate is 50-50, there's 100 senators and there's 50 Democrats and 50 Republicans, the reason the Democrats hold all the majority positions on the committees is because of the vice presidential tiebreaker. They are considered having a majority, But that's why it's so important that you can't take a single vote for granted. And I know that they're trying to rush through

this process, which normally historically takes about three months, although Amy County Barrett only took one month recently, they're trying to get the barrett treatment here for Biden's candidate because, first of all, the midterm elections are coming up in November, and there's no guarantee that the Democrats will hold onto the number of Senate seats that they have. They could lose, but even more importantly than that, anything could happen. Somebody could be hit by a bus, got for a bit, or somebody could be sick. Let's get to more specifics.

So let me give our followers and listeners who's on this panel and some of their ages and some of their past personal health issues, which are problematic. So on the Democratic side, besides Durban, you have Leahy, who's pushing 90 and is from Vermont and is the majority ranking member. And although he's very good for progressive Democrats, he had a period recently where he took ill. And if you take ill and you're unable to vote, there's one last vote. The other person who's on the panel on the Democratic side is Diane

Feinstein, who's 90. So we have two people on there and I'll just run down the list. So people in the various states that are legal AFRs reside will know how important their senators are. Leahy Feinstein, White House, Klobuchar from Minnesota, and we'll talk about her in the short list issues. Kunz, Delaware, Blumenthal, Connecticut, Hirono, Hirono, Hawaii,

Cory Booker from New Jersey, Padia from California, and Assof, Yes, Assof, who had the runoff election in Georgia. On the other side of the aisle, I won't name everybody, but Cruz is on there, Holly is on there, he of the Jan 6th fame or infamy, Kennedy,

the wrong Kennedy, and Lindsey Graham, which we'll also talk about in the short list because he's got a pivotal role here. If this panel is gonna to vote to recommend, it's going to go through, I think, Graham. And then we'll talk about the short list related to that. So I thought one interesting little bit of factoid that I picked up in our research for today

is that 20% of Supreme Court nominees have been rejected by the Senate historically. And the very first nominee made by George Washington in 1789 was rejected by the Senate. So it happens. It's not going to happen here. I do want to, I want to blow a little sunshine on this podcast because we've got a lot of people that are worried and stressing out about whether we're going to get this pick through in 37 or 40 days. And I'm here to tell everybody we are. We have the votes. They're going to do a process.

It's going to be properly vetted. The Biden staffers are going to work closely with the Durban and the Judiciary Committee staffers. They're going to vet the five or six candidates. They're going to focus on the one that Biden wants. And if a couple drop off because of the vetting, uh-oh, somebody wrote an opinion that doesn't look so great. We're going to lose some votes on this one. They're going to turn to the easier candidate. And that person in the next 40 days or so is going to be confirmed with Kamala Harris voting in

favor of it by this Senate. And then they will be just awaiting their actual swearing in once Briar steps down at the end of this term, that person will slide right in and slide right in probably to the clerks because that person will not have had time to vet fully their own clerks to bring with them those all important Supreme court clerks. They'll probably bring one or two with them from their current. Most of them are judges that are being focused on. They'll bring some of their clerks with them, but I assume they'll pick up briar clerks who had a two-year commitment, and they'll use the briar clerks until the following term when they can pick their own.

This is a very exciting time. Anything else on confirmation we need to cover or should we move on to shortlist? I think we can move on to shortlist, but really quick, I also learned through this process, frankly, you don't have to be a judge to be a Supreme Court justice, you don't even have to be a lawyer, you don't have to be a natural born citizen. So unlike presidential requirements, that you have a lot more ability to pick people, I just found some of those things interesting. I also found it interesting that Supreme Court originally sat in New York when it was first created. And then it moved to Philadelphia and then after a while to where it is now in Washington, DC.

But so getting to the pitch. Well, before you leave, though, to your point, Kagan was not a judge. She was a solicitor. She was aning solicitor general for a period. But, but Kagan was not a judge before she was put on to the, she had her judicial position blocked for a while and never made it to a bench. Her first time being a judge, talk about great, great results. Her first time as a judge is a U is a US Supreme Court justice. Look, I, I, I, you hear a lot of people who talk about this promise that Joe Biden made pick a black woman as an affirmative action pick. But I, but I would, I'd flip that. What, what is the qualifications to be a Supreme Court judge? And what are people looking for?

They say the best person, the most qualified. Okay, but what makes somebody qualified? What makes someone the best person? Some people would say judicial experience. Some people would say, you know, just a, I think it just depends on kind of where you're coming from. And I just want to say that, and I can't believe I'm about to say this, but I think the

person who I would like to quote here is Lindsey Graham, who was talking about Michelle Childs, who is one of the shortlisted people. And the person that I am going to say is probably going to be the nomination. That's the person I'm guessing. And Lindsey Graham says that Michelle Childs, who will get to who she is in a minute and what her qualifications are, but I just want to set the table.

This is a Republican saying, Michelle Childs is qualified by every measure. One of the most decent people I've ever met, I can't think of a better person. Okay, fair-minded, highly gifted, highly qualified, put me in the camp of making sure the court and other institutions look like America. She is not an affirmative action pick if you pick her. So I think, first of all, I think coming from Lindsey Graham, that should show a couple of things.

Number one, here we've got a consensus person. You've got a consensus candidate. You've got someone who's willing to cross the aisle and reach across the aisle and say, this is a great candidate. But what I also thought was interesting is you've got a lot of people, conservative people out there saying,

affirmative action candidate. And I think he put it perfectly, that we should make sure that the court and other institutions look more like America. And I think that does make you that is a qualification. I think there's so many brilliant lawyers out there and brilliant judges. And I mean, just with an encyclopedic knowledge of the history of the law and the law and the ability to analyze and interpret the law but might not have a lot of life experience or might not have great judgment. I mean there are other things that go into what would make you a great judge and you can't possibly say that you as a white man Michael Michael Popock, who walk around the streets every single day

and you interact with people that your life experiences are identical to someone who walks around every day who's a person of color or a woman. I mean, just people will react to you differently. But just the mere fact that Biden's saying, I'm gonna pick a black woman, people say affirmative action. I mean, if you were to say, when Ronald Reagan said I'm going to pick a woman,

did it, was it where people saying anything about that? No, because we live, because we lived in a different political time where nominees, even like Scalia, got confirmed 98 to zero. And we don't, we don't live in those times anymore. But I also think it's an acknowledgement that the minute you say that you talk about a person of color that automatically people don't say, well, okay, for sure, that's going to be the most qualified automatically people say, somehow they are less than. Somehow this is affirmative action.

Somehow you're not going to find the most qualified person and a person of color. And I just find that that kind of... It's a racist dog whistle that they've been blowing for a long, long time. It is, I'll use a Yiddish phrase, it is a shonder, it is a shame, it is a black mark that this is in 2022, that we're even talking about the need

to appoint the first black woman in 230 years. We should be talking at this point about the fifth or sixth, or not even be talking about the fact that a person of color is being appointed or not appointed. I mean, back in the old days, they would talk about, well, third good Marshall was black. We better put another black person in there. It's the black seat. So that's how we got Clarence Thomas, or when Sandra Day of Connor left, and they were replaced. We had Ruth Bader Ginsburg left, the woman's seat. I am so tired of the seats, but if we're going to elevate somebody, and there's

so many qualified people, and so many people to say that we should always pick the best and the brightest. And therefore, the best and the brightest was Brett Kavanaugh. The best and the brightest was Clarence Thomas. The best and the brightest was Amy Coney Barrett. Amy Coney Barrett was one of probably 50 people that were qualified for that job, including many, many people of color and different sexual orientation. So for the Republicans to say, oh, we only stand for judicial competence and it must be an affirmative action pick

that he's picking a woman of color. It's just a dog whistle to their base, which is disgusting, which you and I and others that follow us should be against. Of course, and of course the person should be the best and the brightest and the most qualified. That goes without saying. But there, as you just said, are so many people that are the best and the brightest. There's no one best, there's no sort of Albert Einstein of, you know, of judges to my knowledge, right? There's, it's a lot of different things

and you want different perspectives and different life experiences because so much of what they do is not just legal interpretation, but it's also judgment. And so I think people should consider in the future having an Asian individual, perhaps, also be on the court,

or an LGBTQ person on the court. I think those are factors that should go into consideration when thinking about maybe someone who's not either Jewish or Christian slash Catholic on the court. I mean, I do think it's important that the court be more diverse. And I think, as you pointed out, and as lots of people are saying, and as Lindsey Graham is saying, I do think it's important that the court be more diverse. And I think, as you pointed out, and as lots of people are saying, and as Lindsey Graham is saying,

my new favorite person, at least for right now, for this one moment time, it should look more like America. And I think Biden, it's not about being a campaign promise. It's about recognizing the obvious. And the obvious is that it's absolutely time for a woman of color and go ahead. The balance to Lindsey Graham is because he is Machiavellian in his decision making.

It's not because he just really likes Michelle child. He knows, and this is a credit to the fact that we're in power at the moment. He knows that he's not going to be able to stop the freight train of Biden picking a black woman. That's, he's already Biden has said he's going to do that. But Graham wants to be the kingmaker and decide which black woman, and he knows her, he's met her, they're from South Carolina, he feels comfortable with her. I'm not sure if that's a good or a bad thing. He doesn't know Katenji Jackson. He doesn't know Leonhard Krueger. He doesn't know the rest of the candidates who we're going to talk about before we're done here. But, you know, and so he's jumping on the train before he gets run over by it. But his vote is really important because

he's one of the 22 on the Senate Judiciary Committee. And if he gets on there, and then you have, you know, let's be frank, as we continue to talk about jobs, then I want to move to the other two of the short list. You also have Clyburn. And Biden, it would not be president today. There's no doubt about it. If he had not won South Carolina. And Clyburn was responsible for that. And he delivered. And Clyburn saidburn was responsible for that, he delivered. And Clyburn said, don't praise me, deliver for me. I'm paraphrasing. So, you know, there's a lot of good reasons to pick Michelle child, so hopefully just this child's. But let's turn to

Katenji Jackson and and Leandra Kruger, because those two are also very well qualified and on the short list. You want to start with, uh, Katanji, Jack, uh, Katanji, Brown Jackson. So, so, so judge Katanji, uh, Brown Jackson, she's, uh, I think 50 or 51 years old, um, many legal scholars believe she is the front runner just from qualification. She's currently a judge on the US

Court of Appeals for the DC Circuit, which has long been considered a pipeline for the Supreme Court, and it's the appellate court that fee at the Pellacort level that feeds the Supreme Court, and it's located in DC DC and it's a very important circuit court. So that's one reason. I think people believe she's a front runner. She's also double Harvard, unlike Judge Childs, who we just discussed, who went to state schools. She's not idealique. And to university for her LLM. Smart as well. I'm not saying she's not brilliant, but she's more of a public school person and Judge Jackson comes up sort of more traditional Ivy League the way the other candidates. She's also sort of unusual, has an unusual background for a Supreme Court justice.

She brings professional diversity in addition to diversity by being a black woman, which she was a former public defender. And I do think that perspective, and not just because I come up in the criminal background, criminal justice background, but I do think that's a very important perspective to have. And I think that that's a good,

that'll be really good for the court to have someone with that background. She's also been, she's also used to handling big cases. She was the, she was the judge that handled some of the, the Trump January 6th disclosure cases on appeal. The National Arc case. Yeah, so she, I think she's, I think she's, I would have said she was my top pick until Michelle Childs, when I saw kind of the consensus building that I think she will bring to the table. And so now I'm going with Michelle Childs as my top pick,

but I'd say Judge Katanjee, Brand Jackson is my second or tied to her first. Yeah, before we leave her. So I like her a lot. I like, we on legal AF with Ben, my cellist, we spent a lot of time talking about her decisions on the National Archive case. She's super bright, as you said, DC Circuit,

Court of Appeals is often a feeder program directly into the Supreme Court. She's a Florida person. She went to Miami. She graduated from Palmetto High School, where Jeff Bezos went. And like you said, she brings other aspects of life experience diversity.

That's important. And let's talk about age for a minute. She's the right age for a minute. She's the right age. Supreme Court justices, they like them to be in their 50s, maybe in their late 40s, because, you know, presidents want a legacy and want these people to be on for 20 and 30 years or more.

That's why when you get to about 60, America, Carla was sort of on the far end when he was nominated. Of course, he was, he was was he was blocked by Mitch McConnell, but he was on the far end. Anyway, Ruth Bader Ginsburg was actually on the far end of it as well in that historic pick. But I liked her a lot. And as you said, and I still like her, but I think with Lindsey Lindsey Graham blowing

that dog whistle of to get his people supporting that candidate and giving some cover to some of these nutty Republicans that are claiming it's an affirmative action pick. I agree with you. I think child is probably the path of least resistance to get a nomination passed. Now, let's talk about Leandra Krueger, who is the youngest of the candidates.

She was the youngest California Supreme Court justice at about 37 for 36. And now at 45, she'd be one of the younger of the Supreme Court. You want to talk about Leandra? Yeah, so she was, she went to Yale Law School. She was the editor-in-chief of the Yale Law Review, which is for anyone who didn't go to law school, a law review, the law review for each law school, you have to either grade on or write on to it, which means you have to be really, really smart and really good to be selected and chosen to be on law review

and is considered very prestigious. And then to be the editor-in-chief of the prestigious law review is sort of a huge badge of honor. So she's she's very smart. And the first black woman to ever be the editor-in-chief? Yes, that is true. She's the first blight. So she's really smart. She was a former clerk in the Supreme Court and I I, in fact, wait, before we, I forgot to mention Judge Brown Jackson, Clark for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, for, John Paul Stevens, she's considered more moderate. So she would be sort of a middle of the road pick. She's known to be cautious and deliberate. And in general, I think she's being an excellent pick. I don't think we'd go wrong with all three of these picks. I mean, none of

them are lightning rod, super progressive kind of. I think all three of them could be excellent consensus builders who could I think make a big difference. And they'd be excellent picks and are imminently qualified and excellent. And certainly the best of the best our country has to offer and anyone who would say otherwise for these three picks, I think, I can't imagine that they would say that certainly with what we know now, but that's what the confirmation process is for, right? You never

know what could come up in the confirmation process. Had it not been for just as Thomas' confirmation process, we wouldn't have known about Anita Hill, right? Or, you know, so I mean, it does come up, or you know, so I mean, it does come up, you know, it does come up these dark skeletons in people's past, you know, hopefully they don't have any and sort of kick the tires and I think we'll, all in faring kind of anything crazy that comes up, I think these three are phenomenal picks and we couldn't do wrong with any of them.

But my money, if I was a betting person, goes first to child, seconds to brown Jackson and third to Kruger, as it's just who's gonna, it's who's gonna be the pick. I think you have it exactly right. Well, we've reached the end of another thought provoking and timely midweek edition of Legal AF with Michael Popok and.

KFA. KFA. By the way, on that note, I did not name you KFA. People thought it's insulting, you're calling here KFA. By the way, on that note, I did not name you KFA. People, some people thought it's insulting. You're calling here KFA. That is a nickname you've earned in your life. Yeah. Friends close friends call you that. It was actually, it actually came up professionally. I think mostly because my last name is such a handful and so hard to pronounce and no one really knew how to do it. And I didn't ever call myself KFA until the name Karen became kind of a negative pejorative kind of term. And so now I used to, of course, I mean, it was a term of endearmine and and something

that I I appreciated and I thought it was funny. But now I embrace it because I'm happy to retire the name Karen too. Here are our favorite Karen. So join us every Wednesday when we do a deep dive and analytics about a cutting-edge legal and political issue. And of course, every weekend join my co-anchor Ben, my cellist on Saturday night and Sundays for the regular end of the week roundup of the top dozen or so legal and political news stories. We do it on YouTube and then we launch it on all the pop platforms. So signing off, see everybody this weekend, I'm Michael Popman. this weekend I'm Michael Pope.