March 12, 2025 • 48 mins
Featuring:
Hon. Gregory J. Katsas, U.S. Court of Appeals, District of Columbia Circuit
Hon. Barbara Lagoa, U.S. Court of Appeals, Eleventh Circuit
Hon. Steven J. Menashi, U.S. Court of Appeals, Second Circuit
Hon. Amul R. Thapar, U.S. Court of Appeals, Sixth Circuit
Moderator: Hon. Kathryn Kimball Mizelle, U.S. District Court, Middle District of Florida
Hon. Gregory J. Katsas, U.S. Court of Appeals, District of Columbia Circuit
Hon. Barbara Lagoa, U.S. Court of Appeals, Eleventh Circuit
Hon. Steven J. Menashi, U.S. Court of Appeals, Second Circuit
Hon. Amul R. Thapar, U.S. Court of Appeals, Sixth Circuit
Moderator: Hon. Kathryn Kimball Mizelle, U.S. District Court, Middle District of Florida
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:04):
Before we bring the panel up, I want to recognize
somebody has been very special to the Federalist Society into
the state of Florida. Richard Corkran, who is our past
Speaker of the House. He is a past Commissioner of
Education and now the president of New College. Thank you
for everything you've done. Where is Richard right here? Thank you,
(00:25):
Richard for all you do for our state. I'd like
to ask the panel to go ahead and come up
and take their seats, and I'll introduce our moderator for
this evening, Judge Catherine Kimball Mizell. She is, of course
a judge in the Middle District of Florida. She was
the first and only University of Florida law graduate to
(00:48):
clerk at the United States Supreme Court for Justice Clarence Thomas.
And we thank her for being here and I'll let
her introduce the panel.
Speaker 2 (00:58):
Thank you you seated.
Speaker 3 (01:03):
Well, Thank you Jason.
Speaker 4 (01:04):
It's my privilege, certainly to get to moderate tonight's conversation
with four very esteemed jurists. I had the honor of
getting to introduce Judge Greg Katsis at this very banquet
dinner five years ago when he interviewed Justice Clarence Thomas.
Speaker 2 (01:21):
Everything I said about him then still applies.
Speaker 4 (01:23):
Judge Katsas was really made to be a DC Circuit judge.
His prior senior positions at the Department of Justice and
the White House, as long as as well as his
private practice experience, really equipped him to.
Speaker 3 (01:35):
Hit the ground running seamlessly.
Speaker 4 (01:37):
I know that because I was one of his first
law clerks and I got to witness that firsthand. Judge
Katsis remains a gracious mentor, and I appreciate his role
and we're always very happy to have him here in Florida. Next,
we have Judge Barbara Lagoa or Native Floridian on the panel.
(01:57):
She holds many of the superlatives here. She's the longest
serving judge on our panel tonight, having been originally appointed
by Governor Bush in two thousand and six to the
third DCA. She also was the first Hispanic woman in
the first Cuban American woman to be appointed to the
Florida Supreme Court, and she now serves, at least in
my view, on the most important circuit represented here this evening,
(02:19):
the eleventh. Lastly, she also hired I think some of
the best law clerks. We've shared two, one of whom
is in the audience tonight, and I hope more to come.
Speaker 2 (02:28):
Bran Brantley, Yeah, I know.
Speaker 3 (02:32):
I hired the best law clerks. We have to share
them first.
Speaker 4 (02:36):
So Judge Stephen Manashi serves in the US Court Veels
for the Second Circuit, and I believe this is his
first time in the Florida Bedsaw Conference, so welcome. Before
being appointed to the bench, Judgemnashi also served in the
executive branch, both in the White House and at the
Department of Education, which is where we first got to
(02:58):
meet each other when I was working for Rachel Brand
in the Associate's office. He also taught administrative law and
civil procedure at George Mason Scalia Law School and was
a partner at Kirkland and Ellis in New York. So
welcome to warm and sunny Florida.
Speaker 5 (03:11):
Thank you.
Speaker 3 (03:16):
And finally, we have Judge.
Speaker 4 (03:17):
aMule of the Parr who is returning to our conference
again this year.
Speaker 3 (03:21):
Thank you for coming back.
Speaker 4 (03:23):
Judge the bar holds the title as the very first
Appellate Court nominee by President Trump in twenty seventeen, and
he's also the only jurist here who served as a
district court judge for many years before he was elevated
to the Pellate Court judge.
Speaker 3 (03:37):
The Parr's experience.
Speaker 4 (03:38):
Also includes being the US Attorney for the Eastern District
of Kentucky in AUSA and on a personal note, he
was very gracious to me when I inherited my docket
as a district court judge and helped me figure out
how to get a hold of your inherited docketts. So
we're happy to have everyone here tonight.
Speaker 3 (03:56):
Okay.
Speaker 4 (04:01):
In his first term, President Trump appointed twenty eight percent
of the federal judiciary, including everyone on this stage in
three of the US Supreme Court justices.
Speaker 3 (04:12):
His appointments made it clear of.
Speaker 4 (04:13):
The kind of judicial candidate that he was seeking, someone
who had the courage to interpret the law as written
and not as what one wishes it to be. In short,
he appointed textualists and originalists. And I use those labels
kind of in the broad umbrella senses. I know there's
a lot of variations. So my first question for the
panel tonight is, given that much of the federal judiciary
(04:36):
presumably adheres to some of the same first principles, could
you share how in past cases some of these debates
might have manifested on your court when many are applying
some form of originalism or textualism.
Speaker 5 (04:50):
So I've kind of found that, as somebody who's familiar
with the debates over textualism, I tend to apply or
to read a text less literally than a lot of
my that actually there is a caricature of textualism, that
it is a kind of literalistic reading of a text.
I remember one of the first unbond cases in my court,
(05:12):
the majority cited Smith versus the United States in its opinion,
and you know, to show what the ordinary meaning of
the word use is. And if people don't remember, Smith
versus United States is a case that's kind of made
it familiar, famous by Justice Scalia for being an example
of bad textualism. He calls it a degraded form of
textualism that brings the whole philosophy into disrepute. It's the
(05:34):
case where somebody traded a gun for drugs, and the
court says, oh, he used the gun in the commission
of a drug trafficking crime, and so therefore it gets
the firearms enhancement, and Justice Scalia says, no, when you
use a gun in the commission of a crime is
was to use it for its purpose, which is a
violent purpose. And so our court was considering the question
(05:54):
of what qualified as a use of physical force against
the person of another, and and they cited that case,
and I said, no, I wouldn't agree that that was
the ordinary meaning of the word use for a lot
of the reasons Justice Scalia identifies, which is that you
have to understand words in context and as a phrase,
and don't just pick out dictionary definitions and so on.
(06:15):
And so I think, you know, kind of one of
the debates that I see that comes up a lot
is this question about how to read a text, whether
it's a kind of literalism versus reading a text in
context and especially as part of the context, the kind
of legal background principles that often inform the plain meaning
of the text. And I think that is a difference
between some of the people who are attuned to their
(06:37):
debates in textualism is versus older line judges.
Speaker 6 (06:42):
Yeah, exactly the same thing. In my hard case is
I yield to no one in how strongly I identify
as a textualist and originalist. But I find it, you know,
it's a way of framing issues and thinking about what
I'm doing as a judge. It doesn't decide a lot
(07:04):
of the hard cases, right, And a lot of the
hard cases arise when, as Stevens said, you read a
word or a phrase that is what you're construing, and
it seems to say one thing. Then you read the
rest of the statute, you look at cannons, you look
at history, and things seem to cut in the opposite direction.
(07:29):
So one of my more famous cases is Fisher, which
was up in the Supreme Court last term on using
an obstruction statute against J six protesters.
Speaker 3 (07:44):
And so basically the.
Speaker 6 (07:45):
Statute says covers anyone who I'll simplify a little bit,
but destroys documents or otherwise obstructs an official proceeding. Right,
You just sort of read the words. They didn't destroy documents.
The statute defines official proceeding to cover the certification of
(08:07):
the election results, right, And it was obstructed in the
ordinary sense, it was delayed for several hours and such,
And they didn't destroy documents, so the otherwise obstructed. Right,
The words just map onto what they did, and it's
you know, if you think textualism just reduces to slogans
like any means any or things like that. It's an
(08:28):
easy case the other way, right, But it's actually a
very hard case because when you read the rest of
the statute, you get a lot of clues that point
in the other direction. The destroyed document is shorthand for
a lot of other words in an earlier part of
the statute, which don't do any work. If you just say,
obstructing official proceding means what the dictionary tells you. So
(08:53):
which way do you go on that? That's a hard
to me, that's a very hard question. And then you know,
you look to history. Some of my clerks, you know,
we've been taught to hate the word purpose, that's intentionalism
or whatever. But like thinking through Fisher, it's a response
to the Enron scandal, fixing what was called the Arthur
(09:16):
Anderson loophole. And you go through, you go through all
of that history, and basically what Congress was trying to
do was make sure that people who destroyed documents could
be prosecuted just like people who ordered others to destroy documents.
Speaker 3 (09:32):
That was a weird loophole. That's what they thought they
were fixing.
Speaker 6 (09:36):
You know that. Yeah, it's purpose, but it's also it's
just part of the background against which.
Speaker 3 (09:41):
The statute was enacted.
Speaker 6 (09:43):
And you know, I could have cited legislative history to
prove that people have a hangout about that. So I
cited a Supreme Court opinion citing legislative history.
Speaker 3 (09:53):
But like, that's just part.
Speaker 6 (09:54):
Of the background that it's pretty weasible speaker of English
would have understood. To me, that's good textualism. But it's
hard and you've got to use all the.
Speaker 3 (10:06):
Tools in the toolkit.
Speaker 6 (10:07):
And I can't give you a formula for how to
come out when you know, I sort of think in
terms of percentages, like text cuts sixty forty one way,
but structure cuts seventy thirty the other.
Speaker 3 (10:20):
What do you do? You know, it's more art than science.
Speaker 6 (10:22):
I can't reduce it to a formula, but that's how
I think about it.
Speaker 3 (10:26):
Yeah, I agree with Greg and Steve.
Speaker 7 (10:28):
I talk about it to my clerks all the time
because they get out of law school and they think
there's a formula and there's really not. Instead of saying
I'm a textualist, which I do think of myself, as
I say in chambers were common sense contextualists. And that's
kind of a combination of what the two of them
are saying, is that you don't leave common sense at
the door. And sometimes I look at the Supreme Court
(10:50):
and sometimes some of them get so wedded to the
words they forget about the context, or my colleagues or whoever.
And I often look at people like Justice Alito, who
I think should get more traction in this circle, who
has a common sense element to what he does, and
he looks at the context and he brings a common
(11:11):
sense element to the interpretation, and it's you know, Caleb Nelson's.
Speaker 3 (11:16):
Got this great law review to go back to Fisher.
Speaker 7 (11:18):
And Greg's great opinion there is Caleb talks about legislative
history and John Manning responds to him and says, well,
legislative history didn't go through by cameralism and presentment, so
you shouldn't consider it at all. And Caleb's point is
neither to dictionaries or anything else textualists rely on.
Speaker 3 (11:38):
And so I think it's worth we shouldn't leave every like.
Speaker 7 (11:43):
You shouldn't ignore the history of what the law when
the law was passed, or what it was passed against.
It seems insane for us to turn a blind eye
to that, and yet so often we do, and we
leave like common sense at the door because we want
to be so strict. And I think it's ridiculous to
be a strict textualist in the way that people think
(12:07):
of it and people portray it. You've got to have
common sense and you've got to look at the context.
Speaker 5 (12:15):
So sometimes there's like different purposes that you might consult
legislative history for, like to consult it and to decide
that there's some unenacted purpose that the congressman had in
mind would counteract the statue. But if you sometimes is
a source for understanding the meaning of the words by
a kind of contemporary, well informed observer, like reading the
Federalist papers understand what the Constitution meant at the time.
Speaker 3 (12:38):
I agree.
Speaker 7 (12:38):
Or if you look at like deer back in nineteen
twenty meant any wild beast.
Speaker 3 (12:43):
So if you think about it and look at.
Speaker 7 (12:46):
The way the legislators were using the word to help
you interpret it, it's kind of a form of looking
at the entire what's going on at the time to
understand the law.
Speaker 3 (12:58):
But if you divorce the law law from the time
in which it's passed.
Speaker 7 (13:02):
In my mind, then you're also ignoring bi cameralism impresentment
because you don't understand what Congress and the President were
doing when what they meant by these words.
Speaker 3 (13:13):
Because words change meaning over.
Speaker 4 (13:15):
Time, certainly, And is this what the founders meant when
they talked about like liquidating text.
Speaker 3 (13:26):
Or is it different?
Speaker 6 (13:27):
No?
Speaker 5 (13:27):
I mean I think that the contextual point is that
you have to understand the meaning of the words in context,
and so we're looking at contemporary sources. So like Greg
is talking about the mischief rule, that you can understand
the text in light of the mischief it was aimed
to combat, or Amoles talking about contemporary uses of the
same words. That is, the meaning at the time. Liquidation
would be as if it was kind of understood to
(13:48):
have some ambiguity or some scope for interpretation that was
uncertain at the time of enactivent, but then over a
series of adjudications or applications or interactions applying the law,
it kind of becomes clear, you know, they kind of
settle on a meaning. The liquidation would be sort of
post enactment history post enactment sort.
Speaker 7 (14:09):
Yeah, I think Madison thinks of liquidation when he talks
about it, and there's again some good law reviews about this.
Speaker 3 (14:15):
Caleb Nelson.
Speaker 7 (14:16):
Again I would point to I know a lot of
people talk about will Bodes article, but I like KILEB.
Speaker 3 (14:21):
Nelson's on this. But they're both they're both very well done.
Speaker 7 (14:25):
But the point of liquidation to me seems to be
and I don't know that we should necessarily embrace liquidation
in the way that some of the professors talk about it.
But liquidation is what happened, Like if the text at
the time is unclear, what are what happens over.
Speaker 3 (14:43):
Time to help us.
Speaker 7 (14:44):
It's kind of a way of thinking about things as
it evolves.
Speaker 3 (14:48):
But I'm not.
Speaker 7 (14:49):
Sure that we should necessarily be doing that or necessarily
give credence to that unless we're sure that it really
was ambiguous at the time or people didn't know it
at the time.
Speaker 6 (15:00):
Yeah, I guess I'm going to get myself in trouble here,
but I'm going to jump in and defend liquidation, right.
I mean, you know, we get we get caught up
in these methodological debates.
Speaker 3 (15:15):
The Second Amendment.
Speaker 6 (15:16):
This comes up a lot if you look to seventeen
eighty nine or eighteen sixty eight, and you know, fine,
those are great academic arguments, But I mean, remember Justice
Scaliah's establishment clause opinions. If you're trying to figure out
whether the establishment clause prohibits Thanksgiving, right, it's very compelling
(15:39):
evidence that from the framing to today, like no one
in the universe until Michael Newdow came along thought the
establishment clause prevents anything like that. And like you can
conjure up a case where hypothetical where everyone in the
everyone in the universe thinks over time, like one day
(16:02):
after the Constitution is enacted that something obviously means X,
you know, but the text was perfectly clear it meant
not X.
Speaker 3 (16:09):
But that's not a realistic case in the world.
Speaker 6 (16:13):
So to me, sure pre enactment history is more important
than post enactment history, other things equal, but a long
tradition of post enactment history for me counts for a lot.
Speaker 3 (16:26):
So would you.
Speaker 7 (16:27):
Agree with Justice Scalia McIntyre over Justice Thomas, your old boss.
Speaker 4 (16:32):
I won't.
Speaker 3 (16:33):
I won't get into it.
Speaker 6 (16:35):
I would, I would look, I would look seriously to
longstanding post enactment practice.
Speaker 3 (16:41):
I'll just leave it at that.
Speaker 4 (16:42):
Perhaps, no matters how robust the practices and uniform. So
this is not liquidation, but question for the panel with precedent.
So in many occasions you're not writing in a first instance,
on a blank slate, so you're dealing with some some
sort of president even direct does directly control.
Speaker 3 (17:02):
So what is the role of both horizontal and vertical?
Speaker 4 (17:04):
So imagine some of the circuits have different prior panel
precedent rules. How does that How do you navigate a
precedent that doesn't govern but might suggest how you approach
a case?
Speaker 3 (17:16):
How does that work in your circuits?
Speaker 2 (17:19):
I think for the Eleventh Circuit we I don't know
how the other circuits are, but we have a very
robust case law where we do follow prior panel precedent
very strongly. Obviously, if there's a case that's on points
a horizontal precedent, we're bound by that. But there are
times when there's dicta and.
Speaker 3 (17:40):
What do you do with the dicta?
Speaker 2 (17:42):
You know, there's dicta and then there's dicta. There's it
sounds like a Judge Carnes quote. I think it probably
is in the footnote somewhere.
Speaker 4 (17:55):
You know.
Speaker 2 (17:55):
The issue with dicta is if it's not essential to
the decision, and it's not in any way related to
the issues raised, or the arguments made, or the facts
in order to make that decision. It's really dicta. But
there's dicta that can be persuasive, and it can indicate whether,
(18:17):
for example, Scotus is going a particular way. So it's
vertical President, but it's dicta, but it may be showing
maybe Justice Thomas writing a concurrence suggesting that in the
future this could be an area of the law that
the Court would be inclined to go into. So it
becomes persuasive dicta and maybe I think as a judge
(18:39):
an appellate court, you then need to take that into
a reason consideration as to whether or not it's applicable,
and you want to include it as part of your holding.
Speaker 3 (18:52):
I mean, I wrote a case called right be Spalding.
I don't think dicta, although I.
Speaker 7 (18:55):
Agree with everything Barbara said, because she's not saying it's binding.
Speaker 3 (18:59):
I think holding are narrow.
Speaker 7 (19:00):
Because Article three requires us to resolve cases or controversies,
and that's all we resolve. So the holding and the
necessary reasoning to the holding could be binding, both vertically
and horizontally, but nothing else and everything else is just persuasive.
At best, and you don't know like if I mean,
sometimes I'll I mean, everyone knows this. I'll go off
(19:22):
on tangents in my opinions and just say if this happened,
then this and this, But those aren't briefed, Like, of
course I want my court to treat them as binding,
but it's really be ridiculous for me to think the
court had to treat it as binding. Only the necessary
holding is what's binding. That's all we're doing as Article
three judges, as we're resolving a discrete case or controversy.
Speaker 5 (19:45):
Well yeah, but I mean, we have written opinions, right,
so like there was a time when you didn't really
have written opinions by judges. You just had oral pronouncements
of the judgment and then you kind of had to
figure out what the reasoning was if you do the
facts of the case. But we have a phenomenon textualization
of precedent where we have written opinions for the court,
And it does kind of seem to me that in
(20:06):
that context, the purpose of the dicta holding distinction is
to say, if something really wasn't thought out or considered
by the prior panel or by whatever authority is binding,
then it shouldn't be binding on future panels because it
really wasn't part of what they considered. You know. But
if the court goes on at length on some topic
and really does articulate some considered position, for a leader
(20:31):
panel to come along and say, well, I can draw
a logical flow chart of the argument that shows it
wasn't necessary for you to write that. It's kind of
like a lawyer's trick to sort of evade the prior precedent. Right,
Like I would be offended if a subsequent panel tried
to evade something that I had held in a prior
case like that. So I tend to think of the
(20:52):
anything binding that the prior panel regarded as part of
what it was considering and deciding in that what.
Speaker 6 (20:59):
If you say something is waived the statement of the
rule that resolves the case, right, it's binding.
Speaker 5 (21:06):
But if you if I have, if assequen court has
a theory for why it was too broad a statement
or like it should be, like unless there's some factual
circumstance that would have made a difference under the prior
panel's decision on its own terms, I would regard it
as part of the rule of the prior case.
Speaker 7 (21:22):
You would if a judge went off on a tangenty
So I guess that's a little different.
Speaker 5 (21:25):
So if in fact, what you're saying is it's pretty
clear you're talking about other hypothetical circumstances, you're kind of
speculating about it, like, yeah, that's obviously not.
Speaker 3 (21:34):
Part of versus holdings. What do you think or holding?
Speaker 7 (21:37):
Like, I agree with what Greg just said, it's.
Speaker 5 (21:39):
Go ahead, so uh right, So dicta in principle, it's
the stuff that's not necessary to the decision of the case.
Sometimes there's some disagreement about what's necessary to the holding
of the case. And so what I think, you know,
since we're talking about you know what the function of
this distinction is. It's to not be bound by a
(22:00):
prior panel's unconsidered decision, right if they say something in passing.
So like a famous example of this is drive by
jurisdictional rulings, right, like, sometimes the CORP takes jurisdiction over
some case, but nobody really contested jurisdiction and principle, they
should have sua sponte addressed it themselves, but it was missed,
and so if they didn't say anything about it, it
was kind of unconsidered that you don't regard that as
(22:23):
as a binding precedent. But if it's something that the
prior panel addressed and thought it was part of the
decision of the case or part of the rule, it
seems to me that that becomes binding on a subsequent panel.
Speaker 4 (22:38):
You've all been on the bench now several years, as
your perspective changed on any of these topics, as you've
evolved in your positions.
Speaker 2 (22:48):
On what in precedent or no, just how you approach
your job. I think my view hasn't changed from whether
I was a practitioner to a judge. I think when
I was a practitioner, the first thing I did was
look at if I'm looking at a rule, or if
I'm looking at a statute, or if I'm looking at
a contract, to see what it says. And I still
(23:10):
think as a judge that's actually one of my pet
peeves when I read an opinion and it doesn't tell
me what the statute says for the rule or doesn't
give me what the contract language is, because I think
that's very important. So I think I haven't changed my
view in terms of how I approach cases.
Speaker 6 (23:33):
I've softened little on the question of when when to
join other opinions and when not to.
Speaker 3 (23:43):
I came on right.
Speaker 6 (23:45):
My north star was ww CTD, Right, you know what
would what would Clarence do?
Speaker 3 (23:51):
Kat and I? I had the bracelet? Yeah, and I
know very well.
Speaker 6 (23:55):
And he's famously and and and wonderfully uncompromising, and he
writes separately more than anyone, and he's changed the world
and greatest living American.
Speaker 3 (24:10):
Right, that was my ideal for my job, for what
I do.
Speaker 6 (24:15):
Like, I came in thinking like that, Like, you know,
things should be perfect, and it's really problematic.
Speaker 3 (24:22):
When they're not.
Speaker 6 (24:23):
I strive for perfection. I hope my colleagues opinions are.
It's actually a little messier, Like you know, what do
you do when an opinion is it's a little broader
than I would have done it, but it's not wrong.
It's a little narrower than I would have done it,
but it's not wrong. It rests on ground A I
(24:44):
would have done B, but A is not wrong. It's
a little messier than I would like, but it's not wrong.
Speaker 3 (24:51):
I'm more willing to.
Speaker 6 (24:54):
Compromise in the sense of joining something that I would
not have put out under my name, and I think
that's consistent with I hope that's consistent with WWCTD.
Speaker 5 (25:07):
So the thing that I found most interesting that I
hadn't really thought about a lot before becoming a judge
is the dynamics of group decision making. Right, So like
we have to sit in panels of three, and maybe
this is related to that, right, so you do have
to draw a line as to compromise willing to join
some opinion, because it only becomes an opinion of the
court if two people are willing to join it, and
it's not going to be exactly the way you want
(25:27):
it to be. And there's all sorts of interesting dynamics
with getting to know your colleagues and so on. I
used to hear that you used to hear these stories
about how Justice O'Connor moved to the left, but Justice
Scalia joined the court because she found him abrasive and
kind of off putting. And I always thought, well, that's ridiculous.
Why would you change your views on legal issues because
you're like offended at the style of one of your colleagues.
(25:48):
And now I find it totally plausible' that's how that's
how people behave.
Speaker 3 (25:54):
Right, Like you're gonna name names.
Speaker 5 (25:56):
You see these like interpersonal things, and you kind of
have to get to know your colleague's personalities because there's
some judges where if you write a long memo challenging
you know, their argument, they'll be like, oh, I hadn't
thought about that, and they'd be open to persuasion, and
other ones will dig in their heels because they think
it's a challenge and so on, and so navigating other
personalities is a kind of interesting aspect of the job
(26:18):
and understanding what arguments will appeal to them and which wouldn't.
And it's something I hadn't fully appreciated, but that kind
of side of it is something that really makes a
big difference.
Speaker 2 (26:28):
And I think that one of the interesting things is
when I joined the Third District Court repeal in two
thousand and six, I had an opinion that was sent
to me and I edited it, and that's not necessarily
something that and I edited a lot, and that was like,
(26:49):
I remember, I received a phone call saying, we don't
really do that, And there is something to be said
about that. When you're in a care agial body, it
may not be how you would write an opinion, right,
and you have to be sensitive when you receive an
opinion from a colleague, and sometimes you'll be like, well,
(27:11):
I can join, but I really need you to take
off this sentence for this word or maybe it's a
little too harsh, and I if you could, it'd be great,
and maybe I can concur. But that's a conversation about
being in a collegial body, and it's difficult, and you
have to learn the personalities and who that's going to
work with and who it's not going to work with,
and it's just.
Speaker 5 (27:32):
You know, Yeah, there's a small example of that. There's
a convention on my court that when you get an
opinion from another chambers, you write back and you say, well,
thank you for your excellent and thoughtful opinion. I just
have these twenty five suggestions for how to revise it.
And I tend not to use extraneous adjectives and adverbs
and so on, so I would just send these memos
that says, thank you for your opinion, and here's what
(27:54):
I think. And because everybody sort of expected all of
the superlatives, they thought it was really harsh and like
cold and like corresponding with them, and so I kind
of just now say thank you if you're fine and
well reasoned. You know, I really enjoyed reading it. I
just have these pages that you need to make so Yeah,
(28:17):
so that you know, those kinds of things actually become
important because it just kind of affects how people people react,
and you know you're gonna have to work with these
people for thirty years or whatever, so it makes sense
to understand how to relate.
Speaker 3 (28:30):
Yeah, I find it to be the hardest part of
the job.
Speaker 7 (28:32):
When I was a district I've been coming from the
disrect court, where everything you wrote was your own and
you didn't have to worry about these edits and other things.
Speaker 3 (28:39):
And so I think.
Speaker 7 (28:40):
I've gotten more like Greg only because what he talked about,
only because I want less.
Speaker 3 (28:48):
Fidgeting with what I do.
Speaker 7 (28:49):
And if the judgment lines right at the end of
the day, if I can avoid any catastrophic reasoning and
the answer is right, and the reasoning is not maybe
the best, but it gets that, I'm willing to live
with it because hopefully they want monkey with what I do.
And that's kind of the standard I try to abide by,
Like would I want them doing it to me? I
(29:11):
like Barbara, I have a very particular writing style, and
so when I got to the court, I really wanted
to edit everything, and I got some calls from you know,
friends of mine that said, you probably shouldn't do this,
just think about when they do it to you.
Speaker 3 (29:25):
And I took that to heart, and.
Speaker 7 (29:27):
So now I both will suggest less as long as everything.
I can sign on everything, even if it's not the
best or it's not even great, but at the same time,
I'll turn things down. I feel more comfortable turning things
down because.
Speaker 3 (29:44):
I do that, and so I can avoid too much
monkeying with my opinion.
Speaker 7 (29:49):
The other thing I've learned is, you know, sometimes they'll
make a sentence worse, but they're not impacting anything.
Speaker 3 (29:55):
Sometimes you just got to live with it. And yeah,
that's really tough.
Speaker 7 (30:00):
It's really tough when they do things and make your
writing worse and you're like, oh my gosh, this is
going out under my name.
Speaker 3 (30:06):
But you learn to live with.
Speaker 7 (30:07):
It because at the end of the day, it's judgments,
it's reasoning, it's what.
Speaker 3 (30:11):
Matters, and you've got to put that first.
Speaker 2 (30:14):
I think I think the hardest part is when you
write the opinion and then you have the two panel
other two panel members who also have edits, and then
you try to sort of thread the needle so that
you make everyone happy, and you are, you know, thinking
this opinion is getting my writing is out, is going out.
(30:35):
And it's very different to have to manage a panel
of three and everybody happy, make everybody happy. This is
somewhat offscript. But how do you decide when to publish?
Speaker 4 (30:48):
Is it just the panel decides in each of your
circuits or is there any sort of protocol for.
Speaker 3 (30:54):
The elements circuit.
Speaker 2 (30:55):
Normally, if it's an or argument case, it's published unless
the panel the sides that it's not going to add
to the law, and then we don't decide not to publish.
Speaker 4 (31:04):
But they all have an exceedingly low oral argument comparatively
the second circuit or the DC circuit, So that's normally
when we publish.
Speaker 5 (31:12):
Yeah, we don't do at advanced screening for oral argument
like I think most circuits they screen all the cases
before they schedule argument and decide whether it justifies an argument.
But our rule is if a party wants to argue,
we will give them argument time. I think we give
them less time than most circuits, so you get five
or ten minutes per side, although we will keep you
(31:33):
longer if we have more questions, so it's not really
a fixed amount of time. And so the rule about
publication is that what we call a summary order, which
is an unpublished opinion, it has to be unanimous and
it doesn't have an author it's just written on behalf
of the court. And so if somebody wants to dissent,
(31:53):
then it has to be an opinion or disagrees to
some extent, has to be an opinion. If somebody just
wants an opinion because they think it's justified, in that case,
it has to be an opinion. And that's kind of
the rule that we follow, and that leads to some
kind of awkward dynamics, right, because if you insist on
an opinion, you're imposing more work on your colleagues because
the severy orders are shorter and you know less, you
(32:17):
know revised and so on, and so sometimes maybe you
know there's a disincentive to do more opinions or to
dissent because you're imposing that work. And then there are
these strategic considerations about should you join something to make
it a summary order. So it's technically not precedental, and
the hopes that like leader, there will be a presidential opinion.
I kind of think the unpublished opinions practice is under
(32:38):
a theorized like there are all these issues with the
distinction between published and unpublished opinions that I think are
are problematic. So I try to treat unpublished opinions respectfully
as real opinions. That if we're going to say something
that departs dramatically from something we said in an unpublished opinion,
(32:59):
especially if it would be a different outcome, we should
at least explain it and take account of it, because
those are real decisions that the court has made that
had an impact on the parties. So I've thought somewhat
about the unpublished opinions practice, but ours might be unique.
I think in other circuits, usually unpublished opinions look just
like regular opinions. They have an author, and they might
(33:19):
have a descent.
Speaker 7 (33:19):
And so on.
Speaker 5 (33:20):
They just designated as unpublished.
Speaker 2 (33:22):
We don't allow well, normally, if it's unpublished, it's not
a dissent. If one of the panel members disagrees, then
it's going to go or argument.
Speaker 4 (33:34):
We'll turn into a little bit more of a somber note.
We've certainly seen an uptick in threats towards the judiciary,
both figurative and liberal. We're all aware of the many
such as the one against Justice Kavanaugh, Judge Sallace in
New Jersey, and then Judge Canon, who I think is
here with us this evening. Do you have any thoughts
(33:56):
as to why we're seeing this now in our history?
Speaker 2 (34:04):
I mean, I can't tell you what's driving what's driving it,
But what I can tell you is that I think
that one of the things that the public should consider
is that you know, in our constitutional system, as the
court system, we get a lot of cases that could
be controversial or hot button issues. And I think that
(34:27):
right now there's a tendency to think that when an
outcome happens, instead of I don't begrudge anyone from criticizing
an opinion that I wrote or that I joined, but
I think that there's a way to criticize it, to
say maybe the analysis is flawed, or I don't agree
(34:48):
with what the outcome is and the analysis was just
not how I would have done the analysis. But I
think what happens is.
Speaker 3 (34:56):
That there's this sort of.
Speaker 2 (34:59):
Presumption and that the judges are acting with bad motive
or bad faith as opposed to we're doing our jobs
and reaching the decision that we think is appropriate in
the Constitution. And I think that's where sort of the
the disagreement is, or this public misunderstanding of it's okay
to criticize an opinion, but you shouldn't personalize it to
(35:22):
the jurist or the judges who are in favor of
a particular opinion.
Speaker 6 (35:29):
I mean, this doesn't this affects me, probably least of
all my case. I have ad law cases, and you know,
there's some lawless agencies, but they don't make threats against
the judges and regulated industries and they don't make threats
against the judges, right, But.
Speaker 3 (35:48):
The judges below me on.
Speaker 6 (35:49):
The District Court, who have had all these edgy Trump
adjacent you know, highly politically charged cases.
Speaker 3 (35:58):
Are under threat.
Speaker 6 (35:59):
One of them has security detail twenty four to seven.
And the judges above me, as you know, I mean,
it's outrageous how the Supreme Court justices have to live now.
They can't go out in public, they need security twenty
four to seven. Justice Thomas is lucky his house is
far enough back that the lunatics can't get within shouting distance.
(36:22):
But Justice Barrett is and she's on a cul de
sac Justice Kavanaugh right in the hotbed of.
Speaker 3 (36:29):
Craziness in Chevy Chase.
Speaker 6 (36:32):
It's outrageous. And people, you know, lunatics at their house
they haven't been prosecuted.
Speaker 3 (36:39):
Got a change.
Speaker 5 (36:41):
I had a kind of I had a kind of
thought about the dynamic, which is I wrote a paper
recently about how Congress is legislating less and because the
various incentives wants to do things like oversight more and
make public statements and so on, and so that means
(37:01):
that's kind of the congressional response to judital decision making
is less passing laws that might fix things the way
they want them, and more sort of yelling at judges
or cast a dispersion on court decisions and so on.
And so what it means is actually a lot of
controversial issues get punted to the courts, and then politicians,
instead of you know, addressing the laws, are criticizing the
(37:24):
judges and so on. And that's a kind of unhealthy dynamic.
And so maybe one solution might be of Congress legislated more,
and then the judges would be doing less, would have
to resolve fewer controversial social questions, and the response would
be less criticism and more democratic participation in legislative decision making.
(37:47):
I remember, you know, I sat for one of the
days of the Kavanaugh hearings, you know, the first phase
of the Capital hearings, and every so often somebody from
the in the gallery would get up and say, you know,
if he gets confirmed, you know, my family is going
to die because he's going to declare healthcare on constitutional
or whatever it is. And then the senators would sort
(38:08):
of wait for the security to clear the person out
of the room and so on. But the person in
the gallery was just kind of saying exactly what the
senators were saying from the dais about how people were
going to die because he was going to declare statutes
unconstitutional and so on, and so, you know, a lot
of the rhetoric. You know, maybe it's not meant to
be taken that seriously, but that is kind of the
way politics interacts with the courts in recent years.
Speaker 7 (38:31):
Yeah, I think it's one of the unique things is
you're talking to four people that probably at the appellate
court we have in some sense the least worry about
our security because we're more anonymous. I think district judges
having been a district judge. I had a hit on
me at one point. You know, there are different things
(38:51):
that go on when you're a district judge.
Speaker 3 (38:53):
You've got criminal.
Speaker 7 (38:54):
Defendants in front of You've got crazy litigants. It's ironically
rarely the criminal defendants. It's more often the crazy litigants.
But you have a lot of that, and what's going
on with the Supreme Courts beyond ridiculous, and I think
the bar has to do more, not for us, and
not even for district judges, because the marshals really do
(39:15):
a great job of handling most of that. With district judges,
it's unseen, but I would commend the marshals for everything
they do. But the Supreme Court, it's like Greg said,
it's insane they can't go out, and there's not enough
people speaking up about it.
Speaker 3 (39:30):
In my opinion, there's not enough.
Speaker 7 (39:32):
You talk about judges with courage, we also need lawyers
with courage to stand up in front of the microphone
and say this is insane that Justice Thomas can't go
to a restaurant.
Speaker 3 (39:42):
You know, they shouldn't have to live this way, and so.
Speaker 7 (39:49):
I definitely think that's more necessary, it's more needed the
hits on you know, just as the attacks on Justice.
Speaker 3 (39:57):
Thomas, Justice Alito.
Speaker 7 (39:59):
I mean, it just never st right because no one
stands up and says this is crazy. And I think
more and more people need to do that.
Speaker 4 (40:12):
Well, turning to your experience before you joined the bench,
each of you served in public service, in some of
you multiple ways.
Speaker 3 (40:22):
How did those roles prepare you.
Speaker 2 (40:23):
For your current post? Well, I think that before I
joined the bench, I had a varied and diverse litigation practice.
I practiced a civil law for a long period of time,
(40:44):
and I did a lot of different cases, you know,
complex commercial litigation, securities, arbitrations, construction litigation. But at some
point I decided to go into public service and I
was looking enough to be hired as an assistant United
States Attorney, and there I was fortunate enough to be
(41:05):
able to do a lot of criminal trials and criminal appeals.
And I didn't plan sort of this trajectory. But when
the opportunity rose to there was an opening at the
Third District Court of Appeal and that opportunity arose, I
really was prepared for the kinds of cases that the
(41:26):
court was going to handle. So the trajectory from the
Third District Court appeal to the Florida Supreme Court sort
of prepared me very well for the Eleventh Circuit Court
of Appeals when I joined the eleven Circuit Court of Appeals.
As you know, there's a lot of diversity cases, and
(41:46):
there's a lot of state law cases that come with
diversity cases, and so a lot of insurance cases, and
that's sort of like the bread and butter of the
third District Court of Appeal. So I was very well
prepared for that. I think as a result of my
being a justice on the Florida Supreme Court. One of
the things that I believe very strongly and is that
(42:10):
state supreme courts are the final arbitra of state law.
And so I think that one of the things I
really try to persuade my colleagues to do is to
certify cases to the Supreme Court, so whether it's to
Georgia Supreme Court, the Florida Supreme Court, or the Alabama
Supreme Court, because I really do believe very strongly. Sometimes
I may not agree with the answer that we get back,
(42:34):
but it's state law and they're the final arbiters of
state law. And so that's one of the things that
I think that sort of helped me be able to
be very confident in doing that with certification.
Speaker 6 (42:48):
I'll talk about two government jobs. My first government job
was running civil appel at DOJ, and that was great preparation,
just working on cases, working on cases, working on a
lot of cases in the DC circuit. Not hugely different
being a litigator, being an appellet litigator from being an
(43:09):
appellate judge. Writing briefs is somewhat similar to writing opinions,
and prepping for argument is somewhat similar, depending on what
side of the mic here on. Obviously, in one role
you're an advocate and in one you're a decision maker.
But good advocates have to figure out the weaknesses in
(43:32):
their cases and the answers to the hard questions. So
kind of working through, working through cases like that, that's
that was great preparation. And so was my job at
Jones Day doing you know, getting my brain spashed in
losing angle progeny appeals down here, down here in Florida.
Speaker 3 (43:51):
Things are, Things are better now.
Speaker 6 (43:55):
My last job in government was the worst civil preparation,
which is the White House Council job. You couldnot imagine
a job more different from being a Court of Appeals
judge than being a deputy White House Council in the
Trump administration. Right, we get on the court, the work
(44:18):
comes in, we get the schedule a year ahead, we
get the cases two months ahead. It's a heavy workload,
but it's predictable. I manage my own time, you know,
if I'm not sitting and I have a family commitment,
or I want to structure things a certain way, I
just do. Mean the White House are just crazy. It's
(44:39):
you know, I decide maybe sixty Merits cases a year,
something like that. The White House, you're working on sixty
matters in three days. Everyone needs an answer as of yesterday.
Just chaos and a lot of work at the intersection,
and not just law but law and politics and policy.
(45:02):
And you're just sort of juggling a lot more variables
than we do now.
Speaker 7 (45:09):
So sounds like a district judge.
Speaker 5 (45:13):
So in addition to the White House, I was an
agency General counsel, as you said before, because I was
the active General Council at the Department of Education, and
I always recommend to law students that they should consider
working in the agencies. That's where the government.
Speaker 3 (45:25):
Meets the public.
Speaker 5 (45:26):
And so you have the task of implementing policy on
the ground and making it real, which is its own
kind of unique challenges. But it gives you an appreciation
for how the government works. And especially as someone who
had been an administrative law professor, to then actually engage
in a rulemaking or in adjudication and run the legal
department of an agency was kind of fascinating, and you know,
(45:48):
there's there. At least was when we had more robust
difference doctrines, a kind of type of law of your
article of administrative law professors, which we talk about how
you could manipulate difference doctrines to win cases and so on.
So I tried some of that to see how it
worn't work in the real world, and it didn't always
work because sometimes you need to convince the doj to
make an argument they don't want to make because you
can't you know, write the brief yourself, and other things
(46:10):
like that. So I found it interesting in that way,
and I think in terms of preparation for the job.
I mean, when we have cases that involve the government
or knowledge of how the government works, it seems to me,
you know, on my court, I'm really the only one
who understands the dynamics of agency decision making, how agencies operate.
Maybe it's more common on Greg's court, but on mine
(46:32):
it's less. You know, there's like a small example of this,
as I remember, we had a Foyer case and one
of my colleagues on the bench said to the lawyer
for the government, you know, if you just added one
more person to the two people working in the basement
on Foyer requests, you do this in a much timelier fashion.
And like, I know what it takes to run a
foya operation of a federal agency. And so I said,
(46:55):
you know, do you in fact only have two people
working in the basement on Foyer requests? And the government
lawyers is no, we have a fifteen million dollar contract
with a vendor to process all of these all of
these cases in the agency. Like they don't really have
an appreciation of what it takes to one a government agency.
And I think, I know bring that to some of
the cases that we see in our court.
Speaker 4 (47:16):
Any experience you wish you had had that you didn't,
any experience, any experience you wish you had you had
before you took the bench, Well there you go. Follow
their hats over all the young lawyers out there. Okay, well,
(47:40):
I want to thank all our judges for sharing with
us tonight and being with us this evening.
Speaker 3 (47:46):
I have a toast.
Speaker 4 (47:47):
I know we only have water, so someone sad thing
to toast to. But to close out this evening, I
thought I would honor Chief Judge prior tradition, So I'd
like to propose a toast to the United States Constitution
and to four more years of appointing judges like these
who defend it. M.
Before we bring the panel up, I want to recognize
somebody has been very special to the Federalist Society into
the state of Florida. Richard Corkran, who is our past
Speaker of the House. He is a past Commissioner of
Education and now the president of New College. Thank you
for everything you've done. Where is Richard right here? Thank you,
(00:25):
Richard for all you do for our state. I'd like
to ask the panel to go ahead and come up
and take their seats, and I'll introduce our moderator for
this evening, Judge Catherine Kimball Mizell. She is, of course
a judge in the Middle District of Florida. She was
the first and only University of Florida law graduate to
(00:48):
clerk at the United States Supreme Court for Justice Clarence Thomas.
And we thank her for being here and I'll let
her introduce the panel.
Speaker 2 (00:58):
Thank you you seated.
Speaker 3 (01:03):
Well, Thank you Jason.
Speaker 4 (01:04):
It's my privilege, certainly to get to moderate tonight's conversation
with four very esteemed jurists. I had the honor of
getting to introduce Judge Greg Katsis at this very banquet
dinner five years ago when he interviewed Justice Clarence Thomas.
Speaker 2 (01:21):
Everything I said about him then still applies.
Speaker 4 (01:23):
Judge Katsas was really made to be a DC Circuit judge.
His prior senior positions at the Department of Justice and
the White House, as long as as well as his
private practice experience, really equipped him to.
Speaker 3 (01:35):
Hit the ground running seamlessly.
Speaker 4 (01:37):
I know that because I was one of his first
law clerks and I got to witness that firsthand. Judge
Katsis remains a gracious mentor, and I appreciate his role
and we're always very happy to have him here in Florida. Next,
we have Judge Barbara Lagoa or Native Floridian on the panel.
(01:57):
She holds many of the superlatives here. She's the longest
serving judge on our panel tonight, having been originally appointed
by Governor Bush in two thousand and six to the
third DCA. She also was the first Hispanic woman in
the first Cuban American woman to be appointed to the
Florida Supreme Court, and she now serves, at least in
my view, on the most important circuit represented here this evening,
(02:19):
the eleventh. Lastly, she also hired I think some of
the best law clerks. We've shared two, one of whom
is in the audience tonight, and I hope more to come.
Speaker 2 (02:28):
Bran Brantley, Yeah, I know.
Speaker 3 (02:32):
I hired the best law clerks. We have to share
them first.
Speaker 4 (02:36):
So Judge Stephen Manashi serves in the US Court Veels
for the Second Circuit, and I believe this is his
first time in the Florida Bedsaw Conference, so welcome. Before
being appointed to the bench, Judgemnashi also served in the
executive branch, both in the White House and at the
Department of Education, which is where we first got to
(02:58):
meet each other when I was working for Rachel Brand
in the Associate's office. He also taught administrative law and
civil procedure at George Mason Scalia Law School and was
a partner at Kirkland and Ellis in New York. So
welcome to warm and sunny Florida.
Speaker 5 (03:11):
Thank you.
Speaker 3 (03:16):
And finally, we have Judge.
Speaker 4 (03:17):
aMule of the Parr who is returning to our conference
again this year.
Speaker 3 (03:21):
Thank you for coming back.
Speaker 4 (03:23):
Judge the bar holds the title as the very first
Appellate Court nominee by President Trump in twenty seventeen, and
he's also the only jurist here who served as a
district court judge for many years before he was elevated
to the Pellate Court judge.
Speaker 3 (03:37):
The Parr's experience.
Speaker 4 (03:38):
Also includes being the US Attorney for the Eastern District
of Kentucky in AUSA and on a personal note, he
was very gracious to me when I inherited my docket
as a district court judge and helped me figure out
how to get a hold of your inherited docketts. So
we're happy to have everyone here tonight.
Speaker 3 (03:56):
Okay.
Speaker 4 (04:01):
In his first term, President Trump appointed twenty eight percent
of the federal judiciary, including everyone on this stage in
three of the US Supreme Court justices.
Speaker 3 (04:12):
His appointments made it clear of.
Speaker 4 (04:13):
The kind of judicial candidate that he was seeking, someone
who had the courage to interpret the law as written
and not as what one wishes it to be. In short,
he appointed textualists and originalists. And I use those labels
kind of in the broad umbrella senses. I know there's
a lot of variations. So my first question for the
panel tonight is, given that much of the federal judiciary
(04:36):
presumably adheres to some of the same first principles, could
you share how in past cases some of these debates
might have manifested on your court when many are applying
some form of originalism or textualism.
Speaker 5 (04:50):
So I've kind of found that, as somebody who's familiar
with the debates over textualism, I tend to apply or
to read a text less literally than a lot of
my that actually there is a caricature of textualism, that
it is a kind of literalistic reading of a text.
I remember one of the first unbond cases in my court,
(05:12):
the majority cited Smith versus the United States in its opinion,
and you know, to show what the ordinary meaning of
the word use is. And if people don't remember, Smith
versus United States is a case that's kind of made
it familiar, famous by Justice Scalia for being an example
of bad textualism. He calls it a degraded form of
textualism that brings the whole philosophy into disrepute. It's the
(05:34):
case where somebody traded a gun for drugs, and the
court says, oh, he used the gun in the commission
of a drug trafficking crime, and so therefore it gets
the firearms enhancement, and Justice Scalia says, no, when you
use a gun in the commission of a crime is
was to use it for its purpose, which is a
violent purpose. And so our court was considering the question
(05:54):
of what qualified as a use of physical force against
the person of another, and and they cited that case,
and I said, no, I wouldn't agree that that was
the ordinary meaning of the word use for a lot
of the reasons Justice Scalia identifies, which is that you
have to understand words in context and as a phrase,
and don't just pick out dictionary definitions and so on.
(06:15):
And so I think, you know, kind of one of
the debates that I see that comes up a lot
is this question about how to read a text, whether
it's a kind of literalism versus reading a text in
context and especially as part of the context, the kind
of legal background principles that often inform the plain meaning
of the text. And I think that is a difference
between some of the people who are attuned to their
(06:37):
debates in textualism is versus older line judges.
Speaker 6 (06:42):
Yeah, exactly the same thing. In my hard case is
I yield to no one in how strongly I identify
as a textualist and originalist. But I find it, you know,
it's a way of framing issues and thinking about what
I'm doing as a judge. It doesn't decide a lot
(07:04):
of the hard cases, right, And a lot of the
hard cases arise when, as Stevens said, you read a
word or a phrase that is what you're construing, and
it seems to say one thing. Then you read the
rest of the statute, you look at cannons, you look
at history, and things seem to cut in the opposite direction.
(07:29):
So one of my more famous cases is Fisher, which
was up in the Supreme Court last term on using
an obstruction statute against J six protesters.
Speaker 3 (07:44):
And so basically the.
Speaker 6 (07:45):
Statute says covers anyone who I'll simplify a little bit,
but destroys documents or otherwise obstructs an official proceeding. Right,
You just sort of read the words. They didn't destroy documents.
The statute defines official proceeding to cover the certification of
(08:07):
the election results, right, And it was obstructed in the
ordinary sense, it was delayed for several hours and such,
And they didn't destroy documents, so the otherwise obstructed. Right,
The words just map onto what they did, and it's
you know, if you think textualism just reduces to slogans
like any means any or things like that. It's an
(08:28):
easy case the other way, right, But it's actually a
very hard case because when you read the rest of
the statute, you get a lot of clues that point
in the other direction. The destroyed document is shorthand for
a lot of other words in an earlier part of
the statute, which don't do any work. If you just say,
obstructing official proceding means what the dictionary tells you. So
(08:53):
which way do you go on that? That's a hard
to me, that's a very hard question. And then you know,
you look to history. Some of my clerks, you know,
we've been taught to hate the word purpose, that's intentionalism
or whatever. But like thinking through Fisher, it's a response
to the Enron scandal, fixing what was called the Arthur
(09:16):
Anderson loophole. And you go through, you go through all
of that history, and basically what Congress was trying to
do was make sure that people who destroyed documents could
be prosecuted just like people who ordered others to destroy documents.
Speaker 3 (09:32):
That was a weird loophole. That's what they thought they
were fixing.
Speaker 6 (09:36):
You know that. Yeah, it's purpose, but it's also it's
just part of the background against which.
Speaker 3 (09:41):
The statute was enacted.
Speaker 6 (09:43):
And you know, I could have cited legislative history to
prove that people have a hangout about that. So I
cited a Supreme Court opinion citing legislative history.
Speaker 3 (09:53):
But like, that's just part.
Speaker 6 (09:54):
Of the background that it's pretty weasible speaker of English
would have understood. To me, that's good textualism. But it's
hard and you've got to use all the.
Speaker 3 (10:06):
Tools in the toolkit.
Speaker 6 (10:07):
And I can't give you a formula for how to
come out when you know, I sort of think in
terms of percentages, like text cuts sixty forty one way,
but structure cuts seventy thirty the other.
Speaker 3 (10:20):
What do you do? You know, it's more art than science.
Speaker 6 (10:22):
I can't reduce it to a formula, but that's how
I think about it.
Speaker 3 (10:26):
Yeah, I agree with Greg and Steve.
Speaker 7 (10:28):
I talk about it to my clerks all the time
because they get out of law school and they think
there's a formula and there's really not. Instead of saying
I'm a textualist, which I do think of myself, as
I say in chambers were common sense contextualists. And that's
kind of a combination of what the two of them
are saying, is that you don't leave common sense at
the door. And sometimes I look at the Supreme Court
(10:50):
and sometimes some of them get so wedded to the
words they forget about the context, or my colleagues or whoever.
And I often look at people like Justice Alito, who
I think should get more traction in this circle, who
has a common sense element to what he does, and
he looks at the context and he brings a common
(11:11):
sense element to the interpretation, and it's you know, Caleb Nelson's.
Speaker 3 (11:16):
Got this great law review to go back to Fisher.
Speaker 7 (11:18):
And Greg's great opinion there is Caleb talks about legislative
history and John Manning responds to him and says, well,
legislative history didn't go through by cameralism and presentment, so
you shouldn't consider it at all. And Caleb's point is
neither to dictionaries or anything else textualists rely on.
Speaker 3 (11:38):
And so I think it's worth we shouldn't leave every like.
Speaker 7 (11:43):
You shouldn't ignore the history of what the law when
the law was passed, or what it was passed against.
It seems insane for us to turn a blind eye
to that, and yet so often we do, and we
leave like common sense at the door because we want
to be so strict. And I think it's ridiculous to
be a strict textualist in the way that people think
(12:07):
of it and people portray it. You've got to have
common sense and you've got to look at the context.
Speaker 5 (12:15):
So sometimes there's like different purposes that you might consult
legislative history for, like to consult it and to decide
that there's some unenacted purpose that the congressman had in
mind would counteract the statue. But if you sometimes is
a source for understanding the meaning of the words by
a kind of contemporary, well informed observer, like reading the
Federalist papers understand what the Constitution meant at the time.
Speaker 3 (12:38):
I agree.
Speaker 7 (12:38):
Or if you look at like deer back in nineteen
twenty meant any wild beast.
Speaker 3 (12:43):
So if you think about it and look at.
Speaker 7 (12:46):
The way the legislators were using the word to help
you interpret it, it's kind of a form of looking
at the entire what's going on at the time to
understand the law.
Speaker 3 (12:58):
But if you divorce the law law from the time
in which it's passed.
Speaker 7 (13:02):
In my mind, then you're also ignoring bi cameralism impresentment
because you don't understand what Congress and the President were
doing when what they meant by these words.
Speaker 3 (13:13):
Because words change meaning over.
Speaker 4 (13:15):
Time, certainly, And is this what the founders meant when
they talked about like liquidating text.
Speaker 3 (13:26):
Or is it different?
Speaker 6 (13:27):
No?
Speaker 5 (13:27):
I mean I think that the contextual point is that
you have to understand the meaning of the words in context,
and so we're looking at contemporary sources. So like Greg
is talking about the mischief rule, that you can understand
the text in light of the mischief it was aimed
to combat, or Amoles talking about contemporary uses of the
same words. That is, the meaning at the time. Liquidation
would be as if it was kind of understood to
(13:48):
have some ambiguity or some scope for interpretation that was
uncertain at the time of enactivent, but then over a
series of adjudications or applications or interactions applying the law,
it kind of becomes clear, you know, they kind of
settle on a meaning. The liquidation would be sort of
post enactment history post enactment sort.
Speaker 7 (14:09):
Yeah, I think Madison thinks of liquidation when he talks
about it, and there's again some good law reviews about this.
Speaker 3 (14:15):
Caleb Nelson.
Speaker 7 (14:16):
Again I would point to I know a lot of
people talk about will Bodes article, but I like KILEB.
Speaker 3 (14:21):
Nelson's on this. But they're both they're both very well done.
Speaker 7 (14:25):
But the point of liquidation to me seems to be
and I don't know that we should necessarily embrace liquidation
in the way that some of the professors talk about it.
But liquidation is what happened, Like if the text at
the time is unclear, what are what happens over.
Speaker 3 (14:43):
Time to help us.
Speaker 7 (14:44):
It's kind of a way of thinking about things as
it evolves.
Speaker 3 (14:48):
But I'm not.
Speaker 7 (14:49):
Sure that we should necessarily be doing that or necessarily
give credence to that unless we're sure that it really
was ambiguous at the time or people didn't know it
at the time.
Speaker 6 (15:00):
Yeah, I guess I'm going to get myself in trouble here,
but I'm going to jump in and defend liquidation, right.
I mean, you know, we get we get caught up
in these methodological debates.
Speaker 3 (15:15):
The Second Amendment.
Speaker 6 (15:16):
This comes up a lot if you look to seventeen
eighty nine or eighteen sixty eight, and you know, fine,
those are great academic arguments, But I mean, remember Justice
Scaliah's establishment clause opinions. If you're trying to figure out
whether the establishment clause prohibits Thanksgiving, right, it's very compelling
(15:39):
evidence that from the framing to today, like no one
in the universe until Michael Newdow came along thought the
establishment clause prevents anything like that. And like you can
conjure up a case where hypothetical where everyone in the
everyone in the universe thinks over time, like one day
(16:02):
after the Constitution is enacted that something obviously means X,
you know, but the text was perfectly clear it meant
not X.
Speaker 3 (16:09):
But that's not a realistic case in the world.
Speaker 6 (16:13):
So to me, sure pre enactment history is more important
than post enactment history, other things equal, but a long
tradition of post enactment history for me counts for a lot.
Speaker 3 (16:26):
So would you.
Speaker 7 (16:27):
Agree with Justice Scalia McIntyre over Justice Thomas, your old boss.
Speaker 4 (16:32):
I won't.
Speaker 3 (16:33):
I won't get into it.
Speaker 6 (16:35):
I would, I would look, I would look seriously to
longstanding post enactment practice.
Speaker 3 (16:41):
I'll just leave it at that.
Speaker 4 (16:42):
Perhaps, no matters how robust the practices and uniform. So
this is not liquidation, but question for the panel with precedent.
So in many occasions you're not writing in a first instance,
on a blank slate, so you're dealing with some some
sort of president even direct does directly control.
Speaker 3 (17:02):
So what is the role of both horizontal and vertical?
Speaker 4 (17:04):
So imagine some of the circuits have different prior panel
precedent rules. How does that How do you navigate a
precedent that doesn't govern but might suggest how you approach
a case?
Speaker 3 (17:16):
How does that work in your circuits?
Speaker 2 (17:19):
I think for the Eleventh Circuit we I don't know
how the other circuits are, but we have a very
robust case law where we do follow prior panel precedent
very strongly. Obviously, if there's a case that's on points
a horizontal precedent, we're bound by that. But there are
times when there's dicta and.
Speaker 3 (17:40):
What do you do with the dicta?
Speaker 2 (17:42):
You know, there's dicta and then there's dicta. There's it
sounds like a Judge Carnes quote. I think it probably
is in the footnote somewhere.
Speaker 4 (17:55):
You know.
Speaker 2 (17:55):
The issue with dicta is if it's not essential to
the decision, and it's not in any way related to
the issues raised, or the arguments made, or the facts
in order to make that decision. It's really dicta. But
there's dicta that can be persuasive, and it can indicate whether,
(18:17):
for example, Scotus is going a particular way. So it's
vertical President, but it's dicta, but it may be showing
maybe Justice Thomas writing a concurrence suggesting that in the
future this could be an area of the law that
the Court would be inclined to go into. So it
becomes persuasive dicta and maybe I think as a judge
(18:39):
an appellate court, you then need to take that into
a reason consideration as to whether or not it's applicable,
and you want to include it as part of your holding.
Speaker 3 (18:52):
I mean, I wrote a case called right be Spalding.
I don't think dicta, although I.
Speaker 7 (18:55):
Agree with everything Barbara said, because she's not saying it's binding.
Speaker 3 (18:59):
I think holding are narrow.
Speaker 7 (19:00):
Because Article three requires us to resolve cases or controversies,
and that's all we resolve. So the holding and the
necessary reasoning to the holding could be binding, both vertically
and horizontally, but nothing else and everything else is just persuasive.
At best, and you don't know like if I mean,
sometimes I'll I mean, everyone knows this. I'll go off
(19:22):
on tangents in my opinions and just say if this happened,
then this and this, But those aren't briefed, Like, of
course I want my court to treat them as binding,
but it's really be ridiculous for me to think the
court had to treat it as binding. Only the necessary
holding is what's binding. That's all we're doing as Article
three judges, as we're resolving a discrete case or controversy.
Speaker 5 (19:45):
Well yeah, but I mean, we have written opinions, right,
so like there was a time when you didn't really
have written opinions by judges. You just had oral pronouncements
of the judgment and then you kind of had to
figure out what the reasoning was if you do the
facts of the case. But we have a phenomenon textualization
of precedent where we have written opinions for the court,
And it does kind of seem to me that in
(20:06):
that context, the purpose of the dicta holding distinction is
to say, if something really wasn't thought out or considered
by the prior panel or by whatever authority is binding,
then it shouldn't be binding on future panels because it
really wasn't part of what they considered. You know. But
if the court goes on at length on some topic
and really does articulate some considered position, for a leader
(20:31):
panel to come along and say, well, I can draw
a logical flow chart of the argument that shows it
wasn't necessary for you to write that. It's kind of
like a lawyer's trick to sort of evade the prior precedent. Right,
Like I would be offended if a subsequent panel tried
to evade something that I had held in a prior
case like that. So I tend to think of the
(20:52):
anything binding that the prior panel regarded as part of
what it was considering and deciding in that what.
Speaker 6 (20:59):
If you say something is waived the statement of the
rule that resolves the case, right, it's binding.
Speaker 5 (21:06):
But if you if I have, if assequen court has
a theory for why it was too broad a statement
or like it should be, like unless there's some factual
circumstance that would have made a difference under the prior
panel's decision on its own terms, I would regard it
as part of the rule of the prior case.
Speaker 7 (21:22):
You would if a judge went off on a tangenty
So I guess that's a little different.
Speaker 5 (21:25):
So if in fact, what you're saying is it's pretty
clear you're talking about other hypothetical circumstances, you're kind of
speculating about it, like, yeah, that's obviously not.
Speaker 3 (21:34):
Part of versus holdings. What do you think or holding?
Speaker 7 (21:37):
Like, I agree with what Greg just said, it's.
Speaker 5 (21:39):
Go ahead, so uh right, So dicta in principle, it's
the stuff that's not necessary to the decision of the case.
Sometimes there's some disagreement about what's necessary to the holding
of the case. And so what I think, you know,
since we're talking about you know what the function of
this distinction is. It's to not be bound by a
(22:00):
prior panel's unconsidered decision, right if they say something in passing.
So like a famous example of this is drive by
jurisdictional rulings, right, like, sometimes the CORP takes jurisdiction over
some case, but nobody really contested jurisdiction and principle, they
should have sua sponte addressed it themselves, but it was missed,
and so if they didn't say anything about it, it
was kind of unconsidered that you don't regard that as
(22:23):
as a binding precedent. But if it's something that the
prior panel addressed and thought it was part of the
decision of the case or part of the rule, it
seems to me that that becomes binding on a subsequent panel.
Speaker 4 (22:38):
You've all been on the bench now several years, as
your perspective changed on any of these topics, as you've
evolved in your positions.
Speaker 2 (22:48):
On what in precedent or no, just how you approach
your job. I think my view hasn't changed from whether
I was a practitioner to a judge. I think when
I was a practitioner, the first thing I did was
look at if I'm looking at a rule, or if
I'm looking at a statute, or if I'm looking at
a contract, to see what it says. And I still
(23:10):
think as a judge that's actually one of my pet
peeves when I read an opinion and it doesn't tell
me what the statute says for the rule or doesn't
give me what the contract language is, because I think
that's very important. So I think I haven't changed my
view in terms of how I approach cases.
Speaker 6 (23:33):
I've softened little on the question of when when to
join other opinions and when not to.
Speaker 3 (23:43):
I came on right.
Speaker 6 (23:45):
My north star was ww CTD, Right, you know what
would what would Clarence do?
Speaker 3 (23:51):
Kat and I? I had the bracelet? Yeah, and I
know very well.
Speaker 6 (23:55):
And he's famously and and and wonderfully uncompromising, and he
writes separately more than anyone, and he's changed the world
and greatest living American.
Speaker 3 (24:10):
Right, that was my ideal for my job, for what
I do.
Speaker 6 (24:15):
Like, I came in thinking like that, Like, you know,
things should be perfect, and it's really problematic.
Speaker 3 (24:22):
When they're not.
Speaker 6 (24:23):
I strive for perfection. I hope my colleagues opinions are.
It's actually a little messier, Like you know, what do
you do when an opinion is it's a little broader
than I would have done it, but it's not wrong.
It's a little narrower than I would have done it,
but it's not wrong. It rests on ground A I
(24:44):
would have done B, but A is not wrong. It's
a little messier than I would like, but it's not wrong.
Speaker 3 (24:51):
I'm more willing to.
Speaker 6 (24:54):
Compromise in the sense of joining something that I would
not have put out under my name, and I think
that's consistent with I hope that's consistent with WWCTD.
Speaker 5 (25:07):
So the thing that I found most interesting that I
hadn't really thought about a lot before becoming a judge
is the dynamics of group decision making. Right, So like
we have to sit in panels of three, and maybe
this is related to that, right, so you do have
to draw a line as to compromise willing to join
some opinion, because it only becomes an opinion of the
court if two people are willing to join it, and
it's not going to be exactly the way you want
(25:27):
it to be. And there's all sorts of interesting dynamics
with getting to know your colleagues and so on. I
used to hear that you used to hear these stories
about how Justice O'Connor moved to the left, but Justice
Scalia joined the court because she found him abrasive and
kind of off putting. And I always thought, well, that's ridiculous.
Why would you change your views on legal issues because
you're like offended at the style of one of your colleagues.
(25:48):
And now I find it totally plausible' that's how that's
how people behave.
Speaker 3 (25:54):
Right, Like you're gonna name names.
Speaker 5 (25:56):
You see these like interpersonal things, and you kind of
have to get to know your colleague's personalities because there's
some judges where if you write a long memo challenging
you know, their argument, they'll be like, oh, I hadn't
thought about that, and they'd be open to persuasion, and
other ones will dig in their heels because they think
it's a challenge and so on, and so navigating other
personalities is a kind of interesting aspect of the job
(26:18):
and understanding what arguments will appeal to them and which wouldn't.
And it's something I hadn't fully appreciated, but that kind
of side of it is something that really makes a
big difference.
Speaker 2 (26:28):
And I think that one of the interesting things is
when I joined the Third District Court repeal in two
thousand and six, I had an opinion that was sent
to me and I edited it, and that's not necessarily
something that and I edited a lot, and that was like,
(26:49):
I remember, I received a phone call saying, we don't
really do that, And there is something to be said
about that. When you're in a care agial body, it
may not be how you would write an opinion, right,
and you have to be sensitive when you receive an
opinion from a colleague, and sometimes you'll be like, well,
(27:11):
I can join, but I really need you to take
off this sentence for this word or maybe it's a
little too harsh, and I if you could, it'd be great,
and maybe I can concur. But that's a conversation about
being in a collegial body, and it's difficult, and you
have to learn the personalities and who that's going to
work with and who it's not going to work with,
and it's just.
Speaker 5 (27:32):
You know, Yeah, there's a small example of that. There's
a convention on my court that when you get an
opinion from another chambers, you write back and you say, well,
thank you for your excellent and thoughtful opinion. I just
have these twenty five suggestions for how to revise it.
And I tend not to use extraneous adjectives and adverbs
and so on, so I would just send these memos
that says, thank you for your opinion, and here's what
(27:54):
I think. And because everybody sort of expected all of
the superlatives, they thought it was really harsh and like
cold and like corresponding with them, and so I kind
of just now say thank you if you're fine and
well reasoned. You know, I really enjoyed reading it. I
just have these pages that you need to make so Yeah,
(28:17):
so that you know, those kinds of things actually become
important because it just kind of affects how people people react,
and you know you're gonna have to work with these
people for thirty years or whatever, so it makes sense
to understand how to relate.
Speaker 3 (28:30):
Yeah, I find it to be the hardest part of
the job.
Speaker 7 (28:32):
When I was a district I've been coming from the
disrect court, where everything you wrote was your own and
you didn't have to worry about these edits and other things.
Speaker 3 (28:39):
And so I think.
Speaker 7 (28:40):
I've gotten more like Greg only because what he talked about,
only because I want less.
Speaker 3 (28:48):
Fidgeting with what I do.
Speaker 7 (28:49):
And if the judgment lines right at the end of
the day, if I can avoid any catastrophic reasoning and
the answer is right, and the reasoning is not maybe
the best, but it gets that, I'm willing to live
with it because hopefully they want monkey with what I do.
And that's kind of the standard I try to abide by,
Like would I want them doing it to me? I
(29:11):
like Barbara, I have a very particular writing style, and
so when I got to the court, I really wanted
to edit everything, and I got some calls from you know,
friends of mine that said, you probably shouldn't do this,
just think about when they do it to you.
Speaker 3 (29:25):
And I took that to heart, and.
Speaker 7 (29:27):
So now I both will suggest less as long as everything.
I can sign on everything, even if it's not the
best or it's not even great, but at the same time,
I'll turn things down. I feel more comfortable turning things
down because.
Speaker 3 (29:44):
I do that, and so I can avoid too much
monkeying with my opinion.
Speaker 7 (29:49):
The other thing I've learned is, you know, sometimes they'll
make a sentence worse, but they're not impacting anything.
Speaker 3 (29:55):
Sometimes you just got to live with it. And yeah,
that's really tough.
Speaker 7 (30:00):
It's really tough when they do things and make your
writing worse and you're like, oh my gosh, this is
going out under my name.
Speaker 3 (30:06):
But you learn to live with.
Speaker 7 (30:07):
It because at the end of the day, it's judgments,
it's reasoning, it's what.
Speaker 3 (30:11):
Matters, and you've got to put that first.
Speaker 2 (30:14):
I think I think the hardest part is when you
write the opinion and then you have the two panel
other two panel members who also have edits, and then
you try to sort of thread the needle so that
you make everyone happy, and you are, you know, thinking
this opinion is getting my writing is out, is going out.
(30:35):
And it's very different to have to manage a panel
of three and everybody happy, make everybody happy. This is
somewhat offscript. But how do you decide when to publish?
Speaker 4 (30:48):
Is it just the panel decides in each of your
circuits or is there any sort of protocol for.
Speaker 3 (30:54):
The elements circuit.
Speaker 2 (30:55):
Normally, if it's an or argument case, it's published unless
the panel the sides that it's not going to add
to the law, and then we don't decide not to publish.
Speaker 4 (31:04):
But they all have an exceedingly low oral argument comparatively
the second circuit or the DC circuit, So that's normally
when we publish.
Speaker 5 (31:12):
Yeah, we don't do at advanced screening for oral argument
like I think most circuits they screen all the cases
before they schedule argument and decide whether it justifies an argument.
But our rule is if a party wants to argue,
we will give them argument time. I think we give
them less time than most circuits, so you get five
or ten minutes per side, although we will keep you
(31:33):
longer if we have more questions, so it's not really
a fixed amount of time. And so the rule about
publication is that what we call a summary order, which
is an unpublished opinion, it has to be unanimous and
it doesn't have an author it's just written on behalf
of the court. And so if somebody wants to dissent,
(31:53):
then it has to be an opinion or disagrees to
some extent, has to be an opinion. If somebody just
wants an opinion because they think it's justified, in that case,
it has to be an opinion. And that's kind of
the rule that we follow, and that leads to some
kind of awkward dynamics, right, because if you insist on
an opinion, you're imposing more work on your colleagues because
the severy orders are shorter and you know less, you
(32:17):
know revised and so on, and so sometimes maybe you
know there's a disincentive to do more opinions or to
dissent because you're imposing that work. And then there are
these strategic considerations about should you join something to make
it a summary order. So it's technically not precedental, and
the hopes that like leader, there will be a presidential opinion.
I kind of think the unpublished opinions practice is under
(32:38):
a theorized like there are all these issues with the
distinction between published and unpublished opinions that I think are
are problematic. So I try to treat unpublished opinions respectfully
as real opinions. That if we're going to say something
that departs dramatically from something we said in an unpublished opinion,
(32:59):
especially if it would be a different outcome, we should
at least explain it and take account of it, because
those are real decisions that the court has made that
had an impact on the parties. So I've thought somewhat
about the unpublished opinions practice, but ours might be unique.
I think in other circuits, usually unpublished opinions look just
like regular opinions. They have an author, and they might
(33:19):
have a descent.
Speaker 7 (33:19):
And so on.
Speaker 5 (33:20):
They just designated as unpublished.
Speaker 2 (33:22):
We don't allow well, normally, if it's unpublished, it's not
a dissent. If one of the panel members disagrees, then
it's going to go or argument.
Speaker 4 (33:34):
We'll turn into a little bit more of a somber note.
We've certainly seen an uptick in threats towards the judiciary,
both figurative and liberal. We're all aware of the many
such as the one against Justice Kavanaugh, Judge Sallace in
New Jersey, and then Judge Canon, who I think is
here with us this evening. Do you have any thoughts
(33:56):
as to why we're seeing this now in our history?
Speaker 2 (34:04):
I mean, I can't tell you what's driving what's driving it,
But what I can tell you is that I think
that one of the things that the public should consider
is that you know, in our constitutional system, as the
court system, we get a lot of cases that could
be controversial or hot button issues. And I think that
(34:27):
right now there's a tendency to think that when an
outcome happens, instead of I don't begrudge anyone from criticizing
an opinion that I wrote or that I joined, but
I think that there's a way to criticize it, to
say maybe the analysis is flawed, or I don't agree
(34:48):
with what the outcome is and the analysis was just
not how I would have done the analysis. But I
think what happens is.
Speaker 3 (34:56):
That there's this sort of.
Speaker 2 (34:59):
Presumption and that the judges are acting with bad motive
or bad faith as opposed to we're doing our jobs
and reaching the decision that we think is appropriate in
the Constitution. And I think that's where sort of the
the disagreement is, or this public misunderstanding of it's okay
to criticize an opinion, but you shouldn't personalize it to
(35:22):
the jurist or the judges who are in favor of
a particular opinion.
Speaker 6 (35:29):
I mean, this doesn't this affects me, probably least of
all my case. I have ad law cases, and you know,
there's some lawless agencies, but they don't make threats against
the judges and regulated industries and they don't make threats
against the judges, right, But.
Speaker 3 (35:48):
The judges below me on.
Speaker 6 (35:49):
The District Court, who have had all these edgy Trump
adjacent you know, highly politically charged cases.
Speaker 3 (35:58):
Are under threat.
Speaker 6 (35:59):
One of them has security detail twenty four to seven.
And the judges above me, as you know, I mean,
it's outrageous how the Supreme Court justices have to live now.
They can't go out in public, they need security twenty
four to seven. Justice Thomas is lucky his house is
far enough back that the lunatics can't get within shouting distance.
(36:22):
But Justice Barrett is and she's on a cul de
sac Justice Kavanaugh right in the hotbed of.
Speaker 3 (36:29):
Craziness in Chevy Chase.
Speaker 6 (36:32):
It's outrageous. And people, you know, lunatics at their house
they haven't been prosecuted.
Speaker 3 (36:39):
Got a change.
Speaker 5 (36:41):
I had a kind of I had a kind of
thought about the dynamic, which is I wrote a paper
recently about how Congress is legislating less and because the
various incentives wants to do things like oversight more and
make public statements and so on, and so that means
(37:01):
that's kind of the congressional response to judital decision making
is less passing laws that might fix things the way
they want them, and more sort of yelling at judges
or cast a dispersion on court decisions and so on.
And so what it means is actually a lot of
controversial issues get punted to the courts, and then politicians,
instead of you know, addressing the laws, are criticizing the
(37:24):
judges and so on. And that's a kind of unhealthy dynamic.
And so maybe one solution might be of Congress legislated more,
and then the judges would be doing less, would have
to resolve fewer controversial social questions, and the response would
be less criticism and more democratic participation in legislative decision making.
(37:47):
I remember, you know, I sat for one of the
days of the Kavanaugh hearings, you know, the first phase
of the Capital hearings, and every so often somebody from
the in the gallery would get up and say, you know,
if he gets confirmed, you know, my family is going
to die because he's going to declare healthcare on constitutional
or whatever it is. And then the senators would sort
(38:08):
of wait for the security to clear the person out
of the room and so on. But the person in
the gallery was just kind of saying exactly what the
senators were saying from the dais about how people were
going to die because he was going to declare statutes
unconstitutional and so on, and so, you know, a lot
of the rhetoric. You know, maybe it's not meant to
be taken that seriously, but that is kind of the
way politics interacts with the courts in recent years.
Speaker 7 (38:31):
Yeah, I think it's one of the unique things is
you're talking to four people that probably at the appellate
court we have in some sense the least worry about
our security because we're more anonymous. I think district judges
having been a district judge. I had a hit on
me at one point. You know, there are different things
(38:51):
that go on when you're a district judge.
Speaker 3 (38:53):
You've got criminal.
Speaker 7 (38:54):
Defendants in front of You've got crazy litigants. It's ironically
rarely the criminal defendants. It's more often the crazy litigants.
But you have a lot of that, and what's going
on with the Supreme Courts beyond ridiculous, and I think
the bar has to do more, not for us, and
not even for district judges, because the marshals really do
(39:15):
a great job of handling most of that. With district judges,
it's unseen, but I would commend the marshals for everything
they do. But the Supreme Court, it's like Greg said,
it's insane they can't go out, and there's not enough
people speaking up about it.
Speaker 3 (39:30):
In my opinion, there's not enough.
Speaker 7 (39:32):
You talk about judges with courage, we also need lawyers
with courage to stand up in front of the microphone
and say this is insane that Justice Thomas can't go
to a restaurant.
Speaker 3 (39:42):
You know, they shouldn't have to live this way, and so.
Speaker 7 (39:49):
I definitely think that's more necessary, it's more needed the
hits on you know, just as the attacks on Justice.
Speaker 3 (39:57):
Thomas, Justice Alito.
Speaker 7 (39:59):
I mean, it just never st right because no one
stands up and says this is crazy. And I think
more and more people need to do that.
Speaker 4 (40:12):
Well, turning to your experience before you joined the bench,
each of you served in public service, in some of
you multiple ways.
Speaker 3 (40:22):
How did those roles prepare you.
Speaker 2 (40:23):
For your current post? Well, I think that before I
joined the bench, I had a varied and diverse litigation practice.
I practiced a civil law for a long period of time,
(40:44):
and I did a lot of different cases, you know,
complex commercial litigation, securities, arbitrations, construction litigation. But at some
point I decided to go into public service and I
was looking enough to be hired as an assistant United
States Attorney, and there I was fortunate enough to be
(41:05):
able to do a lot of criminal trials and criminal appeals.
And I didn't plan sort of this trajectory. But when
the opportunity rose to there was an opening at the
Third District Court of Appeal and that opportunity arose, I
really was prepared for the kinds of cases that the
(41:26):
court was going to handle. So the trajectory from the
Third District Court appeal to the Florida Supreme Court sort
of prepared me very well for the Eleventh Circuit Court
of Appeals when I joined the eleven Circuit Court of Appeals.
As you know, there's a lot of diversity cases, and
(41:46):
there's a lot of state law cases that come with
diversity cases, and so a lot of insurance cases, and
that's sort of like the bread and butter of the
third District Court of Appeal. So I was very well
prepared for that. I think as a result of my
being a justice on the Florida Supreme Court. One of
the things that I believe very strongly and is that
(42:10):
state supreme courts are the final arbitra of state law.
And so I think that one of the things I
really try to persuade my colleagues to do is to
certify cases to the Supreme Court, so whether it's to
Georgia Supreme Court, the Florida Supreme Court, or the Alabama
Supreme Court, because I really do believe very strongly. Sometimes
I may not agree with the answer that we get back,
(42:34):
but it's state law and they're the final arbiters of
state law. And so that's one of the things that
I think that sort of helped me be able to
be very confident in doing that with certification.
Speaker 6 (42:48):
I'll talk about two government jobs. My first government job
was running civil appel at DOJ, and that was great preparation,
just working on cases, working on cases, working on a
lot of cases in the DC circuit. Not hugely different
being a litigator, being an appellet litigator from being an
(43:09):
appellate judge. Writing briefs is somewhat similar to writing opinions,
and prepping for argument is somewhat similar, depending on what
side of the mic here on. Obviously, in one role
you're an advocate and in one you're a decision maker.
But good advocates have to figure out the weaknesses in
(43:32):
their cases and the answers to the hard questions. So
kind of working through, working through cases like that, that's
that was great preparation. And so was my job at
Jones Day doing you know, getting my brain spashed in
losing angle progeny appeals down here, down here in Florida.
Speaker 3 (43:51):
Things are, Things are better now.
Speaker 6 (43:55):
My last job in government was the worst civil preparation,
which is the White House Council job. You couldnot imagine
a job more different from being a Court of Appeals
judge than being a deputy White House Council in the
Trump administration. Right, we get on the court, the work
(44:18):
comes in, we get the schedule a year ahead, we
get the cases two months ahead. It's a heavy workload,
but it's predictable. I manage my own time, you know,
if I'm not sitting and I have a family commitment,
or I want to structure things a certain way, I
just do. Mean the White House are just crazy. It's
(44:39):
you know, I decide maybe sixty Merits cases a year,
something like that. The White House, you're working on sixty
matters in three days. Everyone needs an answer as of yesterday.
Just chaos and a lot of work at the intersection,
and not just law but law and politics and policy.
(45:02):
And you're just sort of juggling a lot more variables
than we do now.
Speaker 7 (45:09):
So sounds like a district judge.
Speaker 5 (45:13):
So in addition to the White House, I was an
agency General counsel, as you said before, because I was
the active General Council at the Department of Education, and
I always recommend to law students that they should consider
working in the agencies. That's where the government.
Speaker 3 (45:25):
Meets the public.
Speaker 5 (45:26):
And so you have the task of implementing policy on
the ground and making it real, which is its own
kind of unique challenges. But it gives you an appreciation
for how the government works. And especially as someone who
had been an administrative law professor, to then actually engage
in a rulemaking or in adjudication and run the legal
department of an agency was kind of fascinating, and you know,
(45:48):
there's there. At least was when we had more robust
difference doctrines, a kind of type of law of your
article of administrative law professors, which we talk about how
you could manipulate difference doctrines to win cases and so on.
So I tried some of that to see how it
worn't work in the real world, and it didn't always
work because sometimes you need to convince the doj to
make an argument they don't want to make because you
can't you know, write the brief yourself, and other things
(46:10):
like that. So I found it interesting in that way,
and I think in terms of preparation for the job.
I mean, when we have cases that involve the government
or knowledge of how the government works, it seems to me,
you know, on my court, I'm really the only one
who understands the dynamics of agency decision making, how agencies operate.
Maybe it's more common on Greg's court, but on mine
(46:32):
it's less. You know, there's like a small example of this,
as I remember, we had a Foyer case and one
of my colleagues on the bench said to the lawyer
for the government, you know, if you just added one
more person to the two people working in the basement
on Foyer requests, you do this in a much timelier fashion.
And like, I know what it takes to run a
foya operation of a federal agency. And so I said,
(46:55):
you know, do you in fact only have two people
working in the basement on Foyer requests? And the government
lawyers is no, we have a fifteen million dollar contract
with a vendor to process all of these all of
these cases in the agency. Like they don't really have
an appreciation of what it takes to one a government agency.
And I think, I know bring that to some of
the cases that we see in our court.
Speaker 4 (47:16):
Any experience you wish you had had that you didn't,
any experience, any experience you wish you had you had
before you took the bench, Well there you go. Follow
their hats over all the young lawyers out there. Okay, well,
(47:40):
I want to thank all our judges for sharing with
us tonight and being with us this evening.
Speaker 3 (47:46):
I have a toast.
Speaker 4 (47:47):
I know we only have water, so someone sad thing
to toast to. But to close out this evening, I
thought I would honor Chief Judge prior tradition, So I'd
like to propose a toast to the United States Constitution
and to four more years of appointing judges like these
who defend it. M.
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