Strict Scrutiny - Carpool Dad

Episode Date: June 18, 2020

Melissa and Leah are joined by Elie Mystal, justice correspondent for The Nation, to discuss why the Supreme Court doesn't get the media coverage it deserves. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, a podcast so fierce it's fatal. In fact, this is Melissa Murray and I'm joined by Leah Littman. Yes, they let us back together again. It's about to get lit and it's even more lit than usual because not only do you have this unholy duo, me and Leah,

we are joined by one of the biggest badasses in legal media. Leah, do you want to tell them who our special guest today is? I am so excited. I do. It is Ellie Mistal, correspondent at The Nation. I've been trying to get on this show so long, I feel like I'm just like outside, just frosting your windows. Like, hey, I also do law stuff. You didn't have to try.

We would have had you on for long ago. We just didn't we didn't think we were big time enough for you. You guys are absolutely big time enough. So Melissa is very serious. So not only is Ellie the current correspondent at Nation, he's also the former editor of Above the Law. And so he has a really unique position in legal media. And we're super excited to have him on, particularly for the topic that we were hoping to discuss today. So Ellie, why don't we let you lead off and tell us what the topic is? What is the thing that angers you most about the legal

coverage that we see in the media? Yeah. So I guess the thing that angers me the most is that most of the legal coverage is done by people who have no idea what the law is. Just no clue. In legal reporting, we don't we have so many people who kind of don't understand how the law works. Right. It's one thing to not understand that, you know, the intricacies of like, this is a, literally the podcast is called strict scrutiny, right? You don't have to understand the difference between strict scrutiny and intermediate, whatever, and rational. Like, you don't have to understand that, but you have to understand that, you know, there are theories of legal interpretation. There are theories of statutory interpretation. Like, that would actually be helpful. You know, the other thing that I think you have to understand to cover the law, that Brett Kavanaugh was a great carpool dad. I think

that that is the criteria. We're just taking the anger up, you know, orders of magnitude. But it comes out in situations like that, right? It comes out in situations where, you know, one of the things that I saw that really just incensed me was like, I think it was a 538 thing where they were trying to ascertain whether or not justices were particularly liberal, particularly conservative. And they came out with some kind of like chart that showed that, well, Brett Kavanaugh has been way more moderate than one would expect. And it's like, you have no idea what you're talking about. I think you're exactly right. Here's an anecdote from my time as a law student. My second summer of law school, I split my summer and interned at Court TV.

So this is a whole ass TV channel about the law, okay? And my internship job was writing scripts for Nancy Grace. So that is a separate story. Melissa, I thought you were like 25. So like, this is shocking news. I'm so not 25, but in any event. So leaving that aside, but I was just sort of sitting on the sidelines and they would have these reporters who would come in and sort of do these sort of breaking legal news. And, you know, it's the summer. So the court is coming down with all of these opinions and the correspondent, I can't even remember who it was, but it was clear she was not trained as a lawyer. She's reading this news about the court. And she says, and Justice Antonin Scalia

wrote the opinion. And I was like, what? And that's when I was like, you know what? Slide over, girl. I got this. I got you. Let me fly this plate. Where it really comes down is that it completely affects how the public views the courts, right? Like if you, the reporter, do not understand the law and do not understand how it works, then you cannot effectively explain that to a public that is trying to understand what's happening. This is an entire branch of government. And one other thing that I'll point out on this trip, when we look at reporters for other branches of government, right, when we look at people who cover Congress, so often they are former congressional aides, right? When we look at people who cover the

White House, so often they are, if they are, right? When we look at people who cover the White House, so often they are, if they are not personally a former White House aide, they have former White House aides on to explain like what's going on in the situation room, whatever. When they talk about war, they have generals on. When they talk about the third branch of government, they don't have anybody,

they rarely have anybody on that has any active knowledge of like how that branch of government work they rarely have people on that have been inside the room you rarely see a former clerk and if you do it's only a former clerk that's been out long enough to become a respected law professor um and and they don't have people who, you know, they who have, again, an active knowledge of how these cases turn and what kind of influences the justices are looking at. Is part of the problem just the way the media is set up? Because we've talked about this before. The media doesn't really cover the court except in these sort of episodic moments where the court is doing something big. But it's always like 10 minutes of it, 15 minutes of it. Maybe at the end of term, you might get a whole 30 minutes devoted to it.

So, yeah, I think part of the problem is that the court is not really part of the media's diet, at least not in television journalism. I think it's more of the media's diet in print, which is another set of issues altogether about how the court is covered in print journalism. Absolutely. I think there are two issues that are worth thinking about with this, with why they're such a blind spot. One is the, you know, and you get media people who really don't like this, but it's the general fact that when talking about law and when talking about court decisions, even so often, the answer is, I don't know yet. So often, the answer is, we have to wait and see, right? We were at a major network together. And I think someone was asking us about the court. And the person said, and this goes to your point, like,

so what will the jury do? And I'm like, oh, there is no jury. Oh. So I think that's one big reason why the media has this blind spot. But the other reason goes to our, I think, general both-side-isms that kind of permeates throughout media. It's particularly difficult in legal discussions because the law is designed around the concept of both-sideism, right? The law, unlike other branches, unlike kind of straight politics, unlike the weather. I mean, I understand Republicans think that they have their alternative facts and whatever, but like the weather is an objective thing. The law is based on having two sides make their best argument as passionately as possible. And the media has real, again, without the actual legal training, has real difficulty

kind of distinguishing between like a good argument and a bad argument, has real difficulty distinguishing between an important argument and just something that a crazy person is going to say. I one of the examples that I've used in speaking is how the media covered impeachment. Alan Dershowitz is a damn crazy person. He's just he was he's a crazy person making crazy arguments. Right. But because he's like the advocate, he was he was given. He's a crazy person making crazy arguments, right? But because he's like the advocate, he was given – he was treated with a level of like respect and like, well, some people are saying that there is no law. No, it's just like if – it's almost like if you could have made Alan Dershowitz like wear like a hobo suit and like a sandwich board people would have understood how like just out to lunch he was but because he was in a suit

in the well of the senate you couldn't get people to really kind of engage with the level of ridiculousness that he was making that that that's a huge problem when it comes to tv news coverage of the court because then that makes them either think, this is so complicated, who can decide? We'll have to wait for the lawyers to decide. So like, they can't have an opinion, or they have to give equal time to both kind of ridiculous sides. And that coverage, you know, just gets the heart of matters, the truth of matters, just gets overtopped by legalese. So just on your first point about, you know, the media's inability to recognize that these issues kind of last longer than a particular

decision, you know, let's make that concrete by just thinking about what is in the news right now, right? There are currently lots of calls to reform qualified immunity. Qualified immunity is not currently on the Supreme Court's docket. But guess what? There are several petitions for certiorari pending at the court asking the court to overrule or limit qualified immunity. So I think a good coverage of the importance of the courts would note the possibility of getting some of these issues that are very important and are garnering a lot of attention, that those issues could get on the court's docket and that we should pay attention to some of these issues that are very important and are garnering a lot of attention, that those issues could get on the court's docket and that we should pay attention to them when

they are even before a decision comes down. One of the reasons why I cover law, one of the reasons why I wanted this job is because the law is in everything. I believe that you can't fully understand what is happening in your own country if you don't understand the legal underpinnings behind it all. So that's why I am in this profession. But I will say, I will throw some shade at other people, fellow travelers in this profession. Melissa and I love shade.

So let's do it. Warriors, especially ones who talk on TV and in print, we have – what's the nice way of putting it? We have been through a lot of education and we like to show off how educated we are. I think that encourages us to make things a little bit more complicated and a little bit more jargony and a little bit more legal easy than they need to be. I think this is a really hard thing to do, right? And not just because you may have sort of a wider range and you understand the nuance of the issue, but you don't go on MSNBC or CNN or whatever and you're just sort of a commentator. You then like go back to your desk and you're still like a law professor at Michigan or wherever. And so, you know, I think one of the things is that to break it down into a soundbite, you have to kind of demystify it and be a little reductive about it. And then you go back to your office and you get these emails from

other colleagues who are like, well, that wasn't really quite right. And you're like, I was, you know, first of all, you're doing it on the fly. And now that we're in all in quarantine, I'm doing it while my kid is under the table asking for pirate booty. And I'm like, just be quiet while mommy tapes the show. And so you're trying to sort of keep everything, but it all has to be distilled very quickly. You know, it has to be distilled very quickly and it's really hard to capture everything. And you know, then you go back to your desk and you've got your colleagues are like, well, that wasn't really what happens with blah, blah, blah. And my husband always tells me, you have to break it down. So Aunt Johnny Pearl, who is my husband's aunt in Mississippi, will understand it. You know, she hasn't gone to law school, but she cares about this issue.

How do you say it so that she knows what you're talking about in that moment? And like, you're not pitching to a bunch of 2Ls and 3Ls, you're pitching to Aunt Johnny Pearl. Exactly. Melissa, I think you are better at this than anyone, but it gets back to something that Ellie gestured to earlier, which is the need to inform audiences or know about things and balance that against the need to, you know, speak to a broader audience and get people to understand, you know, the stakes of these cases and kind of the underlying mechanics because, and, you know, just to use another example, kind of from current events, you know, we're talking about, well, we want to end qualified immunity. And I look around at the news, and I see these, like, Bureau of Prison employees out there, you know, policing

the streets. And I'm like, well, something else we need to do is codify Bivens, right, and provide a federal statute that allows you to sue federal officers who are engaged in constitutional violations, right? And like, that was my 35 segment right there. It can be so hard to get people to understand like, okay, like, this is the thing I need you to care about, while kind of like explaining like, oh, statutory causes of action, and like all the other details that we all understand, but it can just be hard to balance those things. Well, this is so true with abortion. I mean, like the whole question in abortion, like, are they going to overrule Roe versus Wade? And you're like, no, they're not going to do that. Okay, great. And moving on, we're on to the next segment.

No, no, no, no, no. No. Exactly. And you know, like June Medical, I think, was one of those cases where there was so much layered in there and to sort of explain it to, so people understood what was at stake. Like this standing question in June medical is huge, but nobody wants to talk about it because no one, it's really arcane. It's really procedural and kind of boring and anodyne, but it's a massive question and it will change the landscape of abortion litigation. Everyone would just wants to know, are they overruling Roe?

And you're like, no, they're not. But, and they're like, I don't care about your but. Just try to explain standing to most people, right? Like that, that's your 35 seconds, right? We are not the first people to kind of notice that the medium of television

is, you know, kind of, and I love it, but you know, trash, right? It's trash. It's trash. Except for RuPaul's Drag Race and all of the reality TV that I watch, except for It's trash. It's trash. Except for RuPaul's Drag Race and all of the reality TV that I watch, except for that. Right. It's not the best way to explain things

to the people, right? And so, so much of like good Supreme Court reporting, good court reporting happens in print. You can put in the links, you can take the time, you can, you know, you can niche up your audiences. But that gets to kind of the second criticism. And this is something that we've been talking about for a bit off air. That's where you really get my second problem with the level, with the kind of reporting that we have. It's so white and it's so male. And that just, no pun intended, colors all of the coverage. And that really comes through because then the sense that you get from court reporters when you read about it in your local newspaper or in your national publication is fundamentally a male-centric, white-centric understanding of the issues at play. I actually think there is a strong female presence in the women journalists who are reporting on the court. So, you know, you have Dahlia Lithwick, you have Joan Biskupic, Linda Greenhouse, Jan Greenberg. Kimberly Robinson, Ariane Vogue.

Amy Howe. Big voices in the space. I think really the issue is not necessarily a question of gender representation, but sort of intersectionality and race representation. I can't think of a single person of color who reports on the court. Goes there. Do you? You? I mean, I'm not even a member of the supreme court bar i mean kimberly atkins did it for a while uh yeah jesse holland did it for a

while i mean but i mean you can count them on you know christian ferris goes every now and again you can count them yeah um it's it's a it's a set it's a but regular like the regular players like you know like adam liptack is at The Times, Jess Braven is at The Journal, but I can't think of a person of color who like occupies that kind of, you know, sort of status in the firmament of court reporters. I mean, honestly, Leah can tell you this,

like this is one of the reasons why we started this podcast. Yeah, and it's, you know, something that... Like just to have more representation. Yes, that like we want to improve and do more on. But like, you know, part of me wonders whether that existence slash status quo is related to what Ellie described as kind of like the requirement for how you talk about the law. Right. law as a disagreement between both sides of equally good faith, of equally reasonable positions. And if that is the standard that these media outlets and whatnot are demanding, then, you know, that's not going to be a perspective that, like, I'm not willing to adopt.

And so I think that that can have, might be at least part of what is contributing to these disparities. I think both of your statements are absolutely true. I think, I look at it, I still think that the male patriarchy aspect of it is a big thing, because I think, although I agree with you, obviously, at the national level, there are amazing, strong women voices who occupy, and I think even more than popularity, it's like they occupy respect, right? Like Dahlia is respected at every bit as much as an ad of lip tech is. And so I think that's important for her role

and that's important representation, but it happens at the national level, right? Like you're, as you get further and further away from the national publications, you have, it becomes more and more male and more and more white and more and more male and more and more white. Professor Littman, you were saying how-

You do not have to call me Professor Littman. You don't have to call us Professor. Sometimes our students don't even call us Professor. I just got an email. Dear Melissa. I try to respect. You guys are so important in shaping those young minds. Look, no.

As you guys were saying, I do think that part of this is, part of the whiteness of it is how people are trained to talk about the courts. But that, who is the enforcement mechanism of that? And the enforcement mechanism is legacy media. Look, I've had in my own career some experience here of, you know, trying to convince almost always older white men that my way of reporting on court cases is valid. Screw like whether or not you want to hire – just that the way that i do it is an entirely valid way to parse through masterpiece cake shop right like that and that is hard for editors and publishers and people in legacy media to accept and trying to convince them that thinking that way is not only valid but actually kind of appropriate um is the battle is certainly the battle that I face in my career. trying to report that aspect of it as opposed to the kind of white male normative, this is a battle of forms. Relatedly, so where the court falls in terms of how it's reported,

again, it seems to me at least very episodic that the court comes before the public at large as a big issue. How does it factor into our electoral politics and how should it? As a softball. The biggest failure of the Democratic Party in my lifetime has been its inability to make the Supreme Court important to Democratic voters. The Republican Party has figured this out. And look, I do not think, trust me, I do not think that Republican voters are smarter than liberal voters, are smarter than Democratic voters, are any more informed than them. I do not think that that is the case. What I think is the case is that Republican politicians have done an excellent job of explaining to their voters. So you have Republican voters who don't even understand what it is the court is fighting

about. But they know that if they don't like them two gay people kissing each other, we got to get some judges, right? Like they get that level, right? Whereas- And you said judges, not justices. So it's not just that they get the Supreme Court. They get the lower federal courts. They get that. It's all the way up and down the article three. Right. Again, people who could not pick article three out of a goddamn lineup understand that article three judges are important when they go to vote for their freaking senator, right? Versus Democratic voters simply do not understand that the way to get nice things is by electing Democrats and then promoting liberal judges. So that you literally have right now, today, online, you can go find a progressive Twitter hero who will tell you that maybe it's okay for Democrats to lose because we nominated this weak, centrist Biden hair sniffer. And look, Biden was like my eighth

choice. So I'm no Biden fan. But it was said it might be better for Biden to lose because then the Democratic Party will have this revolution. And in 2024, we can come back stronger. And it's like in 2024, the court's going to be seven to two. What the hell? 2024, we might not have a country in 2024. You don't come back from seven to two, yo. Like I don't like the level, the level of ignorance in the Democratic Party about how important judges are is shocking to me. And I blame leadership.

I do not blame the average voter because, again, I do not think the Republican average voter figured this out on their own. It's Republican politicians. It's the federal society that has made this. It's the NRA that has made this point, has made them understand this. Whereas Democratic leaders, they don't make our people understand how critically important the court is. I was going to go back to the election of 2016, right? So Hillary Clinton picks loose fit khaki model Tim Kaine as her running mate. And I mean, to be clear, I love Tim Kaine.

I think- He seems like a nice man. I love him. No, I mean, to be clear, I love Tim Kaine. I think- He seems like a nice man. I love him. No, I mean, when I was a student in Virginia, he was like sort of climbing the ladder of Virginia politics. He's a really good guy. Probably not the most dynamic addition

to a ticket that was already sort of lacking a little in dynamism. And I said in 2016, if she would just come out and say, I would not appoint Merrick Garland. I would appoint like some other person, some like young, like firebrand to the court. I'm like, that's the infusion of fire that that ticket needs. And she just would not talk about the court at all. And I thought it was really interesting that Donald Trump was like, well, I have this list that

Leonard Leo gave me. I'm good with it. You're good with it. Let's all be good with it. And I thought it was really interesting that Donald Trump was like, well, I have this list that Leonard Leo gave me. I'm good with it. You're good with it. Let's all be good with it. And I'm like, if you had a list like that or even just suggested like, you know, Merrick Garland, it's been great. You're a good placeholder. But I have bigger plans in mind to like really jazz things up. I think people would have been excited by that.

And it would have added a third person to that ticket. How even if I would go so far as even if they had just made it about Merrick Garland, we got through the entire 2016 Democratic National Convention without Merrick Garland's name being mentioned, which I just, in what world is that okay? And you bring up Tim Kaine. Look, I am extreme on this point, but whatever.

I think that one of the reasons the Democrats have failed so completely on the issue of the courts is that Democratic men themselves have been so afraid of the abortion issue. There is a way to vociferously fight for women's rights, for gay rights, for minority rights that you cannot do without embracing a robust version of the Supreme Court. And because Democrats so often, especially Southern male Democrats, don't want to fight for those rights, that backs them off of embracing the most robust view of Article III judges possible. Just to go back to the 2016 election, you know, a little bit more as we have been doing, you know, what Ellie was kind of voicing is, you know, I think what several of us might feel, although I don't want to speak for all of us, you know, Joe Biden, not the first choice,

but we're going to vote for him in part because we understand, you know, the stakes for the court. And that was something a vast majority of Republican voters did in the 2016 election because their political party was much better about messaging about the importance of the courts. And that's something that the Democrats just haven't done. And a part of, you know, I think about this often, and I wonder if it's, you know, because Democrats perceive or maybe Democrats who think about the court, think about the threats to the Democratic agenda from a hostile court. But do we really think about the things that a Democratic court could do, right, to advance Democratic principles and whatnot.

We don't think of the court as a progressive institution. Right, we don't. And, you know, I get that that is historically accurate, right, and describes American history, but does it have to be that way? You know, obviously, I value historical practice, and I think it tells us a lot about how our institutions work and maybe how they will work. But I would hope that we can be a little bit more creative and imaginative or at least try to talk to voters about the importance of courts. I wonder if part of the reason we don't think of the court as a

progressive institution is for the reason that Ellie suggests. I mean, like the one sort of historically, the one really sort of historic and dynamic moment for the court would really be the Warren Court, you know, minority rights, criminal justice, and then parts of the Burger Court in terms of women's rights. And, you know, for I think, many of those Southern politicians, even if they are Democrats, as you're saying, Ellie, like some of those progressive moments are deeply complicated for the people that they're trying to pitch to. And so that's another reason why, you know, framing the court as a progressive institution is a really fraught proposition. And we just can't imagine something else. Maybe this is the moment, though. I mean, we have across the country, these marches against police violence, anti-racist marches. I mean,

is this the moment to sort of imagine something different? Well, I think it's also that courts kind of inherently aren't progressive institutions, right? I mean, the court is fundamentally a conservative institution, right? It's fundamentally an unelected, non-responsive democracy institution that is almost certainly always going to be largely filled by old people. This is not – It doesn't have to be. It doesn't have to be filled by old people. It doesn't have to be, but it probably will for the conceivable future, right?

So we're talking about a body that's kind of job is for the most part kind of thought to be a restraint on popular will and popular democracy i'm not surprised that even progressive politicians you know obama does not think of the court as a progressive institution he didn't i mean i i would like to say that like so to my so to my or tricked him right like so to my or what did not present like Sotomayor when she wanted the job. Right. So can I tell like what I remember watching her hearing and I was looking at her nails and they were this, you know, sort of buffed pink like that I had never seen on her ever in this life. And then I was like, oh, someone broke out the ballet slippers. Okay. Is that what we're doing?

Cool, cool. Somebody wanted the job. And then when she got sworn in and she put her hand on that Bible, she had a red manicure. And red lips. It's on. It's on, y'all. So you're from the block and just like, come at me now. But look, obama did not

view the courts as a change agent right um bernie sanders does not view the courts as a change agent for all of the kind of radical change that he wants to see in the world he does not view the courts as a change agent i think warren probably did actually um but you know she's a law professor so is obama yeah but i don't i don't like to talk about my flare you're like he wasn't tenured it's not shade it's like it's the truth there are lots so i just i just my point is that there are lots of reasons why the democrat party has gotten here, right? This is one of those things where it's not one factor, it's 10. Because, you know, it takes lots of factors to completely get your butt handed to you consistently by the Fed sock.

Like that doesn't happen over a day. That happens over kind of a generation of losing allows you to be in the situation. Are we at a moment now where people are ready to think about the courts as a progressive institution and ready to do the things to the courts that need to be done to make it a progressive institution? I don't know. Even now, you've got a Joe Biden talking about how he doesn't want to pack the court. He doesn't want to, you know, he's he would certainly consider Merrick Garland again. You know, Biden is not putting out his list of people that one might want to see on the Supreme Court.

One of the big problems I think we have, and Melissa, you and I have talked about this before, is that our donor base is not activated over the courts. The Koch brothers understand that, you know, they should just go by the Supreme Court and that gets them their – like they understand the one-to-one connection, right? I don't know what our – our donors like want to go to space or something, you know? Like they don't want to put in the work to rebuy the Supreme Court, right? So our donor base needs to be activated. Like there are lots of ways that the Democratic Party is failing and lots of reasons why we're losing. And my kind of position is just like everybody should just pick one. Like everybody should just – everybody who understands what's going on should just pick one aspect of

this party to scream at until they do better. I think Russ Feingold becoming the new head of ACS, I can only hope that that's a good sign, that that organization is about to get more in the game politically as opposed to simply intellectually. You know, I like Demand Justice. They do, I think they're, you know, we can disagree about how they do it, you know, but I think that they are there and that they are pushing for something is a good thing. I think we need more organizations and more money and more interest and more fire about this issue

in order to change it. Our donor base is literally in another world slash universe slash outer space, right? Not the world in which we inhabit, in which the courts are a thing. Sorry, that just came to mind. But I do think, you know, now provides so many opportunities for Democrats at every level of government to be talking to their constituents about how courts matter.

It's not just qualified immunity, right? And the fact that the court created this doctrine, the fact that the court could end it. It's, right, no-knock warrants, you know, Hudson versus Michigan that allows police to enter places without announcing themselves, right, that often results in deadly violence. And so these are issues, right, that we have mobilized protests and social movements around now. Talk to these social movements about the courts, right?

Like, this just seems like something that should be happening now. And it is a way for Democrats to talk about a judicial agenda and what they can use the courts to affirmatively do rather than what Democrats should be concerned courts might do, right, if we lose in 2020. It's a proactive vision as opposed to merely a defensive one. And Democrats have been in defensive crouch about the court since Rehnquist. And we need to get out of that. But again, you have to look at the leadership. And the leadership right now of the party, it's just not there. Biden is not there on it. Tom Perez is not there on it. Chuck Schumer is not there on it. And so you just like, how do you, I do not know how to get, how to get the political leadership on board

for this, you know, again, to retake an entire branch of government. You would think they would care. Yeah. Chuck Schumer did show some signs of understanding and appreciating what was at stake. Yeah. Do you remember he got chastised by Chief Justice Roberts for basically saying – Just Kavanaugh and Gorsuch should watch out. Justice Gorsuch and – they're going to catch these hands. And he got sternly rebuked for it. Maybe there are some glimmers of hope that they're beginning to get. I mean, I was sort of mildly intrigued to see on Twitter

that when Joe Biden had made some kind of misstep, people were like, I don't care about the misstep. Joe Biden, whoever is the Democratic nominee, is going to pick Ruth Bader Ginsburg's successor, going to pick Stephen Breyer's successor. And I was like, oh, OK, well, that's actually a productive way to think about it if you care about the courts. Yes, I agree. People should definitely think about that. Concur. Right. I don't know that they that they do. I mean, I spend a not insignificant portion of my time on Twitter fighting with people who are just like, Biden and Trump would pick the same kind of justice. No. So this makes me insane. This makes me absolutely insane. Like the sort of, you know, I mean, I actually think this is a good talking point for the court. Like, I mean, whatever you

think about Biden's history, whatever you think about, you know, how similar he is to Trump, which to me is not at all, but they would fundamentally pick different judges. But I think this is where Biden could help himself by having a list. Yes. Like it would be, it would be easier to have those arguments if I could point to Leandra Kruger and be like, look, look, she's what's coming. If you, you know, let me do a side-by-side of Leandra Kruger and Amy Coney Barrett. Right. Bill Pryor, not on Biden's list.

Like that's an argument that I can find. Let me do a side-by-side of Naomi Rao and Pam Carlin. That's an argument that I can, that I can, I can fight and win. And to, and to be fair, Demand Justice was trying to do some of that work. You know, like we can talk. I mean, like I have publicly sort of said that I think some of the criteria that they're using, I think, is unduly restricted. But I think the project is actually a good one. I think the worry is that by identifying these people, you've set them up to be vetted by the opposition in the event that, you know, Biden is successful and wins and is in a position to appoint them. And, you know, suddenly you've

allowed the Republicans like all of this time to just sort of pull up whatever they want. No matter who we name, if we name anybody, what's going to happen in a week is that the Judicial Crisis Network will be up with ads being like, oh, Joe Biden has a secret list. Or if he says who it is, then, oh, Joe Biden wants to, you know, Pam Carlin. They'll find Pam Carlin like in a. Also, like that begs the question, why didn't the Democrats do that when Trump brandished his Leonard Leo list? Why weren't you like talking about like. One might ask. I mean, all of.

Right. Yeah. One might ask. I mean, all of. Right. Yeah. One might ask. Like, you know, for me, look, for me, my fight against Brett Kavanaugh started the day that Brett Kavanaugh was announced. Right. I don't know why it took other people a little bit longer to get there. Right. Like the like the my fight against Neil Gorsuch started the day Trump got elected. I don't know why it took longer for other people to get there.

Like the lack of – and this goes back to where I started, right, where we started. The lack of media understanding about what the courts do, how they operate, the white male, white patriarchy starting point for this conversation. It's all wrong. It's all off. And it changes the Overton window so much towards the conservative side of the argument. You know, one thing, we haven't talked about this, but I'm sure you've had thoughts on this. Like one thing is the Democrats don't have is that we don't have a slogan, right? The Fed Soc has a slogan. It's called originalism. It fits on a damn bumper sticker. What's the Democratic bumper?

I want a more progressive society. Well, I don't even know. I can't even, I do this professionally. And if you put a drink in me, I would struggle to kind of distill what I want from an Article III judge, right? I can do it right now. It's that I want a judge that thinks the 14th Amendment is the real amendment and all the rest of them are suggestions.

That's what I want. But, you know, Democrats... Ellie, Ellie proving how you cannot get on a short list. I was just about to say, Ellie providing the new Overton window for what makes a Democratic nominee confirmable. Important suggestions. But, you know, like, we do have this problem

of being able to distill our hopes and dreams and ideals in a constitutional interpretation doctrine the way that the conservatives have, right? So we have all of these kind of, we have political problems, we have media problems, we have interpretational kind of intellectual problems. We have all of these kind of hurdles, I think is the best way of putting it, towards getting the message out there about why it's so important. And so, Professor Lightman, when you talk about how we have to use this moment, like,

yes, these are the times where we can overcome so many of these hurdles because the facts on the ground make it obvious. And that's the thing that I always kind of fall back on in my kind of constitutional interpretation, the Supreme Court coverage or whatever. There are real lives, real people who are hurt. And so these exactly are the moments where we have to make that connection obvious. If you don't like cops kneeling on people and killing them, then you must support the repealing qualified immunity, that you have to understand that one-to-one connection. And if Democrats can't make that now, can't make that connection now, then they never will.

Can we switch to a slightly different subject? I know we're almost at the end of our time with you. We're at, we have about 10 minutes left. Shifting away from the courts to other existential threats to democracy, I want to ask you about your role in making Kayleigh McEnany happen. Oh, God. This is a cruel gotcha moment, Melissa. We do not invite guests on the show

to do this to them. I was told there'd be no math. I don't know. Okay. Okay. So explain your role in this. Okay. Okay.

Kaylee McEnany used to be a booker on Fox News. She was a booker from the Mike Huckabee Show in the before times when I was a frequent guest on the Mike Huckabee show. Blowing our minds. Whoa. I was, I was a- I mean, that's, okay, talk, say words about that. What was that like?

I was a frequent, you know, his show he would bring on, Mike Huckabee basically had a – it was almost like a Saturday night kind of rompest room show for conservatives, right? And I was like the liberal punching bag, right? And I would go on a show and we would punch and I'm a good puncher. I'm good to punch at. So like I did it. Whatever.

I was young. I was young. Kaylee was a booker on that show. Kaylee is very nice in part. She's a very nice lady. And she was interested in law. Like, a lot of times you go, I mean, you know this. You go on these shows.

Nobody cares. Nobody actually knows what the hell you're talking about when you're the lawyer. Nobody has any idea what you're actually going to say. Kaylee knew what I was going to say. Kaylee was interested in what I was going to say. She ran above the law for God's sakes, right? And so, you know, in the green rooms and whatever, we would talk about law stuff. Life goes on. She, at the time that I met her there, she was a night student at Fordham Law School. She eventually transferred to Harvard Law School. Apparently she got really good grades and whatever, and her father was willing to pay for it, so more power to her.

She got into Harvard Law, good for her. Life goes on. Above the Law is going through changes during this time. If you know the history of Above the Law, it was started by David Latt and then I was the second guy in, you know, but David was getting, David was pulling back a little bit from writing as much as he was and doing more kind of like administrative and business-y type things. And, you know, my voice is strong. It was thought that the site is better. And I think that this is true. The site is better when there is, you know, a conservative kind of counterbalance to my strong voice. And David had been that conservative voice, but he was pulling back. So then it was like, oh, we got to get another, at least like another that columnist role. And they kept kind of washing out.

And so I'm in a meeting. It's a long story, but I'm in a meeting. And my boss, our boss, the CEO of Bottle Law says, we need another conservative columnist. And David goes to another like FedSoc person like, look, you guys are doing this all wrong. I don't think we need another crazy conservative columnist. But if you did, you have to be one. You have to get one who actually likes saying crazy conservative things. All of our people are FedSoc people who want to be law professors.

You got to get somebody who wants to be a media person. And they were like, well, do you have anybody in mind? I was like, no. I mean, Kayleigh's at Harvard. Just totally like tongue in cheek, just like. And everyone, that's a, what is she – she's a Harvard Law student. She writes for the Blaze. I don't know.

Go – and that's how she got – that's how that whole thing started. I didn't have anything to do with editing her because I was like you don't want me – like that's not – so David edited her. But like that's how he brought her in. And then it's from the Above the Law columns that they kind of noticed her at CNN. And so from Above the Law to CNN to on air at CNN to da-da-da-da-da-da-da-da-da-da. That's how I made Kaylee. Well, thank you. Can I just say that I – since you made me talk about this, like, Kaylee is a fundamentally – that's what I'm looking for.

People have argued that she is doing this all for show. That she is kind of cynical and just just it's all about power and upward mobility for her and whatever. And I do not know her well enough. I am not friends with her. We do not hang out and have beers together. I do not know her well enough to know what's truly kind of in her heart and mind. But I feel like I've interacted with her enough that I do think that she believes this crap. Like, I don't think that it's a put on. I think she believes in a theocracy, that we should be living in something closer to theocracy. And this thing that most, this trade that most evangelicals have made, that Trump is okay because even though Trump

is irreligious himself, he brings power. He gives them victory. And victory is the most important, that he is, that Trump is somehow the sword of Jesus. These people who believe that, Kayleigh is one of these people who authentically believes that, right? So when people say that, like, oh, it's all a lie, it's all a game, I think she authentically is a theocrat. So that's actually a defense of her in some ways, but that's what I got. I was about to say, if I'm ever arrested, you're not my lawyer. You're not it. that was quite a story I don't think I was prepared for that I asked the question

I did not know the answer to and now I don't know if I wanted to know the answer I'm not a perfect mistakes have been made I'm not a perfect person as always Ellie it is a pleasure to talk to you. Love reading your stuff in The Nation.

Love seeing you doing battle on Twitter. I wish I could enlist you in my Meghan Markle defense army. You would be a formidable ally on that front. Whenever you want to enlist, let me know. But it's been great having you here talking to us today. And to our listeners, we are so glad that you continue to tune in. These are difficult and uncertain times, and we really appreciate your support. You can rock your strict scrutiny gear by going to our website, www.strictscrutinypodcast.com, and all of the stuff that you need for a strict scrutiny glow up is there. You can also support our glow campaign as well and help us pay Melody, our indefatigable producer, a living

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