Panel: Preserving Judicial Independence in a Time of Political Division

At this Freedom of Thought Project event, panelists will discuss the current political landscape in the U.S. and how rhetoric from political leaders impacts our judiciary, society, and our freedoms.

Featuring:

James Burnham, President, Vallecito Capital
Jay Edelson, Founder & CEO, Edelson PC
Prof. Nicole Stelle Garnett, John P. Murphy Foundation Professor of Law, University of Notre Dame Law School
Moderator: Megan McArdle, Columnist, Washington Post

And later featuring:

T. Elliot Gaiser, Solicitor General, Ohio
Eric Wessan, Solicitor General, Iowa
Moderator: Megan McArdle, Columnist, Washington Post

Episode Transcript

Speaker 1 (00:00):
Atmosphere where the general public is encouraged to assume the
worst about judges, and how should we be responding. There
has been a shift of control in the courts.

Speaker 2 (00:11):
And there has in the past been pushback.

Speaker 1 (00:14):
Against prior shifts and effort to impeach Earl Warren. On
the other hand, it's my sense that even Earl Warren
did not have protesters outside of his house, and that
he and other members of the court were able to
lead a normal life. And so many of us has
been watching this with a sort of disbelief. How did
we get to this place where the discourse has become

(00:35):
so debased and kind of gross, and what can we
do about it? What should any of us be doing
to try to protect public confidence.

Speaker 2 (00:42):
In the rule of law.

Speaker 1 (00:44):
I am really really excited to have Megan mccardal with
us tonight to guide the conversation through the panel and
the fireside chat.

Speaker 2 (00:52):
Megan is a columnist for the Washington Post.

Speaker 1 (00:54):
As you all should know, she previously wrote for The Economist,
The Atlantic, and Newsweek. Her column are themselves a lovely
respite from a hardened team discourse and offer an unexpected
angle that's not easily pigeonholed, So if you are not
reading them, you should. I will turn this over to
Megan to begin the panel conversation.

Speaker 2 (01:16):
Megan, the floor's here, it's thank you.

Speaker 3 (01:18):
I'd like to thank our great panel.

Speaker 4 (01:20):
Hair.

Speaker 3 (01:21):
We have Jay Allison, the Cale Garnett and James Burnham
and we are going to be talking tonight about attacks
on the court, whether we're facing a legitimacy crisis, which
I am not a lawyer, I should say, I think
probably the only person in this room it's not a lawyer.
And so I look at this from the outside and

(01:41):
what I see is a will to undermine the courts
without necessarily thinking through what happens after that. And so
that's the problem we're gonna we're gonna try to get
at and we're going to start just by asking are
we risking our crisis of legitimacy on the courts? And
if so, how.

Speaker 5 (01:59):
Did we get here?

Speaker 6 (02:01):
So yeah, I mean I can go first. So I
think the answer is that it's a totally manufactured crisis
of legitimacy and one that we've never seen something like
this in my lifetime. It's an incredibly well funded, well
planned attack on the Supreme Court as an institution with
all different facets from social media to advertising, to paid
protesters to everything to attack and undermine the justices for

(02:25):
everything they've done and things they haven't done. And I
think it's important to keep in mind that these are
not this is not an institution that is designed to
withstand this sort of sustained political attack. Each justice other
than the Chief Justice, only has three permanent staff and
none of them are communications experts, none of them are
campaign consultants. These are not political people. You know, Justice

(02:46):
Barrett was a law professor. You know Justice Gorsich was
an appellate Court judge. It is not an institution that
was built to be under sustained political attack year after
year to the tunes of tens of millions of dollars.
And so that is something that I find extraordinary and
unbelievably dangerous. And we can talk more about the specifics,
but I don't think people fully have reckoned with how

(03:08):
dangerous what they are doing is. Because as soon as
the Court's ability to enforce the law and to be
respected as the final expositor of the law is gone,
the instability that we're going to have at the federal
level at the state level and even potentially in private
disputes is almost impossible to overstate. And I think that's
very bad and quite dangerous.

Speaker 3 (03:30):
Well, so we're going to talk at more in a
minute about what the consequences are. But I will let
me try to offer the argument from the people I
know who welcome the attacks on the Court and see
them as just And their argument would be, yes, it's true.
Justices didn't use to be political people, but now they are.

(03:50):
This Court is an unprecedented political actor in a way
that was not true in previous years. And we have
and they are undermining themselves. It's not that we're doing
something to them, it is that they have done it.

Speaker 2 (04:05):
So I would say that that's just nonsense. I mean,
I think about the Warren Court, like.

Speaker 4 (04:12):
So, there's a funny story that Eugene Vallach, who many
of us like, had a fake sert Pool petition about
Gideon versus Wainwright, and it was the question about whether
a person had the right to paid counsel as a
criminal defendant, and the CIRT petition, the fake petition Pool

(04:33):
said something like some kind of half baked substance do
process claim splitless meritless fact bound deny if you clerks
are the court, that was funny, but maybe don't.

Speaker 2 (04:45):
But yeah, I thought was funny anyway.

Speaker 4 (04:48):
So the course the court, this court is so much
less political.

Speaker 5 (04:55):
It's not making stuff up.

Speaker 4 (04:57):
It's just applying a formalist person teacher rules that is
resulting in people that don't the results of people don't
like it, And I think that's fine.

Speaker 2 (05:09):
There's a big difference between.

Speaker 4 (05:11):
Deciding that we don't like the outcome of decision X
and saying that court is illegitimate. I literally think this
is like the most seriously.

Speaker 2 (05:26):
Principled court that we've seen in many years.

Speaker 5 (05:28):
This is not a court that's trying to make political decisions.

Speaker 4 (05:30):
It's actually a court that's trying to just apply rules
that come up with outcomes.

Speaker 2 (05:37):
And sometimes the court will the justice will like.

Speaker 5 (05:39):
It, and sometimes they won't.

Speaker 3 (05:40):
Well, let me try to summon my inner court critic
again and ask, Okay, maybe that's true. Maybe they are
just applying rules I think there are. I am not
a lawyer and I am not going to try to
argue with the law professor about whether this is true.
But you know, the court is more ideological than it was, right, I.

Speaker 5 (06:00):
Mean, ideological.

Speaker 2 (06:02):
It was less ideological. They're just applying rules.

Speaker 4 (06:05):
There, Earl Warren was is far more ideological than Amy
Barrett Well.

Speaker 3 (06:12):
I guess I would. I would say this, and again
I'm now summoning my incredibly weak command of famous cases.
But when I look at a case like Row or
like Backy, they are obviously less rule bound, right, They're
they're sort of summoned from the the the inter emotional
state of the judge writing them. I guess it's the
best way to put it, summoned the inter emotional state.

(06:38):
But there that's a little you know, there, there's more
kind of room to try to compromise with how the
public feels and feel out how elites think about this
and come up with a kind of rough compromise that
keeps the peace in a way that when you were
applying a hard rule consistently, you might be more consistent,

(07:00):
but you are also actually less able to keep this
from tripping into political controversies.

Speaker 6 (07:07):
Do you think that's an a description of rovers's way?

Speaker 2 (07:11):
So I just I don't understand.

Speaker 5 (07:13):
I literally, Yeah, So why is it that you know,
I'll go.

Speaker 7 (07:19):
Ahead, I want to bring you in.

Speaker 8 (07:21):
Yeah, So I come at this from please, I don't
want any tomatoes or booze.

Speaker 6 (07:26):
Yeah.

Speaker 7 (07:27):
Uh, center lap position.

Speaker 8 (07:30):
Uh, someone who liked a lot of the kind of
policy judgments, uh that that were underlying some of the older.

Speaker 7 (07:39):
Supreme Court cases.

Speaker 8 (07:41):
I do view there to be kind of a unique crisis.
I don't think that it's it's unprecedented. I think, really
what makes a unique So there's always been a tax
on the court back Thomas Jefferson, Let's impeach this person
warrant right, yeah, uh and yeah, the core packing of FDR.

(08:03):
The I think someone somewhat outlandish attacks during nomination, the
nomination process. I mentioned Thomas, and I think you said
it started with oh, my goodness, work. But in my mind,
you know, that's when I was conscious during Thomas and

(08:23):
and so that's where my history starts.

Speaker 2 (08:26):
That's we're both in college.

Speaker 7 (08:27):
Yes, yes, so I was actually awake at that point.

Speaker 8 (08:32):
And I only learned recently that you can actually read
books and found out find out what happened before.

Speaker 7 (08:37):
So that's been helpful.

Speaker 8 (08:39):
The so, I think, I think partly what's unique is
that we're in a SoundBite era.

Speaker 7 (08:46):
So it's very easy to say this.

Speaker 8 (08:48):
Vice presidential candidate is weird, and then that gets put
on Twitter and TikTok and just repeated, repeated, repeated, And
that's what people hear in terms of when or this
court is more kind of rule bound than the Warrant
Court or other courts. My view is it depends on

(09:09):
who you ask. You know, as someone who is pro choice, Yes.

Speaker 6 (09:14):
Roe v.

Speaker 7 (09:15):
Wade was isin the word.

Speaker 8 (09:17):
You know, you know, I've only gotten part part of
the way through the Constitution. I'm not yet at the
part where they talk about trimesters.

Speaker 7 (09:26):
But no, but I know it's coming and I'm excited
for that.

Speaker 8 (09:31):
The so so I I understand that, and I also
understand people saying, what we've really liked having this right,
and when it's taken away from us, that feels like activism,
and both sides can accuse each other of activism. What what
I agree with with everybody else is there's something different

(09:51):
going on. It's not just the Supreme Court level, but
of kind of these personal attacks shouting down when Judge
hog And speaks at at a law school, whether you
agree with him or not, what an opportunity to listen
to him and speak to him, and you know the extreme,
what I do is kind of the extreme woke left

(10:12):
doesn't believe that anymore. It just let's shout everybody down
and let's put social pressure, and that's what changed, and
that that is not a good thing for our democracy.

Speaker 3 (10:22):
It's interesting that you talk about social media, because I
think that has to be a big part of it,
right is. I remember it? So I was kind of
a lefty in college for a bit, and I used
to go to protests. And because I went to school
in Philadelphia, it's a very it's a large media market
centered on a pretty small city, and so the great
part was you could go to a protest and if
you ban home, you could watch yourself on television.

Speaker 6 (10:44):
Oh and they would.

Speaker 3 (10:45):
I remember going to a pro choice protest where I
think there were like twenty people in the march, but
they had filmed it because it was a slow news day.
They had filmed it so that we looked like there
were hundreds of women converging down town to Philadelphia. And
I think that's part of it, right it is? I
know about all of these controversies. I know about all
of these shouting downs that I would not know about

(11:06):
if it were twenty years ago, I wouldn't know who
judge how was probably I'm you know, I'm sure that
that's bad. Apologies, but I don't normally write about the
law and that the fact that you can go viral
but also get the idea from other people who are
going viral, does that, you know? Would this I take
the point that it goes back to Bork, that this

(11:27):
is that there is a long and incredibly a poisonous
game of tit for tat that has now been going
on for thirty forty years.

Speaker 5 (11:34):
But would it have.

Speaker 3 (11:35):
Been so bad if it weren't for the Internet? Is
this something that has given people tools to undermine the
Court in a way that was not possible.

Speaker 6 (11:43):
So, just to be clear, I don't think there's been
a tit for tat or it's been a lot of tats,
because the people in this room have never tried to
destroy the life of a nominee to the Supreme Court
from the other party. That has never happened. It does
not happen before Kavanaugh, it has not happened after Kavanaugh.
Do I think the Internet facilitates it? Sure? But I

(12:05):
think and actually a much bigger culprit of it is
what people commonly described or call the mainstream media and
the idea that the New York Times or the Washington
Post will take seriously the most ludicrous, unsubstantiated, ridiculous allegations
in the world. And I don't just mean for it.
I mean Julie Sweatnik, the one who said that Brett
Kavanaugh was wearing his Georgetown Prep uniform dumping coeludes into

(12:29):
a punch bowl somewhere in Maryland sometime in the eighties,
which was treated as a serious allegation. Every Democrat on
the Judiciary Committee, including Kamala Harris, signed a letter that
he should withdraw in light of the Sweatnek allegations. That
was treated as a serious story. That is different. I
don't think when CT went, when Justice Thomas went through
his process, it was this bad. It was certainly not

(12:49):
this bad when I was a high school kid. It
is a new thing. It's a big problem, and maybe
that's reinforced by the Internet and sort of the feedback
loop that reporters live in where they sort of read
their followers. I think the total abandonment of journalistic neutrality
at sort of mainstream institutions is a huge, huge culport cirk.

Speaker 2 (13:07):
I think what Justice Thomas went through is and the
nominee was awful.

Speaker 5 (13:11):
So I'm gonna put that out there.

Speaker 6 (13:12):
I agree it was terrible.

Speaker 2 (13:16):
So I think there's a couple of things going on here.

Speaker 4 (13:18):
The first is, you know, the fear of saying maybe
even entering this process. We want people who are really
highly qualified, like some.

Speaker 2 (13:29):
Of the people in this room.

Speaker 4 (13:30):
I'm looking at you, Greg Cassas, to agree to go
through this process, right.

Speaker 6 (13:35):
Greg doesn't even know what a quil it is.

Speaker 4 (13:37):
I'm we really want good people to agree to go
through this process. And the situation in the confirmation is
has is it's a chilling.

Speaker 5 (13:47):
Effect on people deciding to do this.

Speaker 2 (13:50):
It's awful.

Speaker 4 (13:51):
And then the second thing I will say is even
if you're confirmed, it's still awful.

Speaker 2 (13:56):
I mean, people are trying to kill the justices.

Speaker 5 (14:00):
I'm sorry, I mean for you.

Speaker 4 (14:03):
I mean, maybe it's gotten better, but you know, we
have folks, you know, protesting outside of the justices houses
day on day and having to have drive your children.

Speaker 2 (14:17):
To school in armored cars. Is it is just a
terrible situation.

Speaker 4 (14:25):
It's not just the confirmation process, which, as James points out,
is bet but it really has become this actual life
and death situation that I don't think we should dismiss slightly.

Speaker 8 (14:38):
I think the question is, though, what how does the
confirmation process start setting up the later arguments? Because if
you can kill someone's credibility, you make them into some
just lunatic fringe person, then as the time goes by,
it's easier for a lot of people to say, oh,
they're just making political decisions. And I don't want to

(15:02):
say that that's that is a strategy guy by the Democrats,
because what binds the Democratic Party is that we have
no strategy at all. And but but that is that
is I think what what happens where? And James, I
agree with you that that the attacks on conservative nominees

(15:25):
are different than the attacks on liberal or moderate nominees.
It's not something I'd focused on before, and and that's
not a good thing. And your Democrats are going to say,
but how about Merit Garland. You know, I'm just saying there, there, there,
We can go back and forth the whole time. To me,
the only way to solve this is by thinking about

(15:46):
what if the people who don't align with me control
the Supreme Court?

Speaker 7 (15:51):
What do I want the rules to be? Now? The
people who are aligned with.

Speaker 8 (15:54):
Me control the Supreme Court?

Speaker 7 (15:56):
What do I want the rules to be?

Speaker 8 (15:57):
And what everyone ought to in a content to mock
you should agree with this. Look ever since Marbori first Madison,
Supreme Court is is the last uh, the last decider,
And if they're not going to be seen as credible,
then who's going to be the decider?

Speaker 3 (16:15):
So we'll get to consequences later.

Speaker 5 (16:17):
We got an order here.

Speaker 3 (16:20):
You guys are are being too interesting and rushing ahead,
so let me haul back and ask. You know, we've
already talked. We've already heard some right, we've heard the
Thomas case.

Speaker 9 (16:30):
We have.

Speaker 3 (16:31):
Let me name some of the cases that to me
as an outsider, seem like the big cases, and I
want to talk about the relative importance and the relative
effects of those cases. So one is obviously the ethics
investigations that you've seen from Pro PUBLICA. One was the
Kavanaugh hearing, and I was really struck. Even for me,
I was one of two right vaguely right leaning columnists

(16:55):
who was kind of in the middle. I was I
just said, look, it is this is I am. It
is impossible to know whether this happened or not. Right,
All of the details are bad. I completely agree with you,
by the way, that some of that. I was one
of the people who I wrote a column actually criticizing
The New Yorker quite heavily. I thought that the second

(17:16):
accusation was irresponsible. It was very clear from what you
if you know anything about kind of how testimony and
eye witness testimony and memory works, that by the just
from her own account, that by the time she had memories,
there was a good ship. By the time she came forward,
there's a good chance her memories were confabulated. She had

(17:36):
been talking to people about it for months, she had
been she didn't initially know whether it had been him,
and and I think, you know, it's It can be
totally sincere. Confabulation is not of memories, is not something
that people do deliberately to be bad people. It can
be a very sincere thing. I once convinced my sister
as an experiment that that that Mickey Mouse had punched

(17:59):
me at Disney World, and I got her to remember it,
and we never went to Disney World because my parents
don't love me. Now I have never been. I've never
been to Disney World. I've never been touched by manking maths,
and so, you know, I thought that they should not
have printed that, and I thought that the Julie Sweatnik
accusations were obviously ludicrous and should I mean, look, if

(18:20):
you have photographs, fine, but that should not have gone
into a meteor report unless you had better corroboration than
a random person who says that she saw him waiting
in line. But that said right that. What I was
surprised about was how radicalizing that was for so many
people I knew who. That was the moment at which

(18:43):
they started getting angry at me for voting for Kamala Harris,
which I am, please, don't throw tomatoes.

Speaker 5 (18:49):
They good luck with that.

Speaker 3 (18:56):
But but so the you know, I saw people just
lose it in a way that I had not seen
it before. They were so angry about what happened to
Brett Kavanaugh, precisely because it was a character attack. Precisely
because there's no way to refute it. This thing that
happened thirty five years ago, I remember it. You know,
how do I prove that that didn't have that an

(19:18):
unidentified thing at a time when I was sixteen years
old didn't happen? There is no way and it terrified
people that this is the future of the court, and
I think we have it. The good news is we
have not seen that sense. But that to me stands
out us potentially the worst. But there are other candidates.
There's the Tamas hearing, there are the you know, there
is the incredible interest in uh missus Alito's flag choice.

(19:44):
And which of these attacks and there is the violence.
Which of these attacks are the most dangerous in your opinion?
So I'm going to ask each of you to say,
and what are the consequences of that?

Speaker 6 (19:58):
I mean, I it's hard to pick a worst one.
I mean I was there for the Kavanaugh process. I
was back to the White House and worked on the confirmation,
and I think part of why it was so radicalizing is,
I mean, for those who know Justice Kavanaugh, he is
about the most mild mannered, nice, upstanding, least likely guy

(20:19):
to be caught up in a quelude ring of pretty
much anybody I know. And so it really demonstrated that
they can make up anything about anyone and have it
treated as though it is credible, and have people who
are motive engaged in motivated reasoning immediately adopt it and
call you a rapist for the rest of your life
because somebody that you may or may not have ever
met in high school, because by the way, there's not

(20:41):
any evidence that they actually met, there's some evidence that
they were in the same city at the same time.
Probably can come up out of nowhere and make this accusation.
And by the way, when it happened, Ford sent her
letter to Dianne Feinstein, who, to her credit, recognized that
this was not not a legitimate allegations, sat on the letter.
The letter came in over the summer. The bi process

(21:03):
doesn't even go back before age eighteen, because there's long
been a recognition that stuff in high school, absent extraordinary circumstances,
is not relevant to whether you can serve as a
federal judge. And she pocketed it. Now I got around
to other staffers on the committee. I forget which senator staffers.
Other people know has probably been reported, who then put
it out to the press, first through the Intercept and

(21:24):
then through Emma Brown at the Washington Post, and then
you know, everyone else knows. Everyone knows what happened after that.
I think that's unbelievably dangerous because you have now convinced
through basically no evidence half the country that Brett Kavanaugh's
a rapist. That is, there's a direct through line from
that process to a man with a gun coming into
his backyard to try to kill him and maybe his family,

(21:46):
which happened, And you know, but for the grace of God,
that could have been a true national catastrophe and a
personal catastrophe for him. The stuff with justice Alito's wife
is also horrible. This is a private person who was
hanging a flag upside down flag or the flag with
the tree that no one had ever heard of until
it became a January sixth symbol in the New York Times.

Speaker 9 (22:06):
Uh.

Speaker 6 (22:06):
You know, that's really bad stuff because it convinces the
crazy people out there that these are evil people, and
that's the kind of thing that gets people, gets people killed.

Speaker 3 (22:15):
Nicole, you have a lot of thoughts on this, I know,
and I would love to hear them.

Speaker 5 (22:21):
Well, So, I was a I think it was a
see here.

Speaker 10 (22:24):
In college when the Anita Hill thing happened, And I
think I might have been the only person on the
Stanford campus who publicly defended now just as Thomas in
the Stanford newspaper.

Speaker 2 (22:36):
But look, what is more dangerous? I mean, there's so
many levels of danger here.

Speaker 4 (22:42):
I just think we should recognize, I mean, false accusations dangerous,
the just life r like reputation, ruining accusations horrible.

Speaker 5 (22:57):
What does it do to our the judiciary.

Speaker 4 (23:01):
Not just the judiciary, all of the confirmation process if
people are afraid that someone might make stuff up about them,
and I think this stuff is made up.

Speaker 5 (23:12):
But I mean, Megan, you said, what's.

Speaker 2 (23:15):
More dangerous, I mean, more dangerous is what's happening right now,
and not just I do think we.

Speaker 4 (23:21):
Should probably get into the questions about court reform and.

Speaker 2 (23:24):
Whether we should have term limits.

Speaker 4 (23:26):
But these people's lives are being made of living hell,
and they're afraid for their lives.

Speaker 5 (23:30):
They're afraid.

Speaker 4 (23:31):
They can't drive their kids to school without an armed guard.
They can't go to church without an armed guard, without people.

Speaker 2 (23:42):
Packing in the church. And I think that is dangerous.
It's very, very bad.

Speaker 4 (23:48):
And I think what James mentions is the straight line.
Once we just decide it's all nonsense and it's just
all politics, then people have to go to church with
armed guard, and they can't take their kids to school
when they're not in an armored vehicle, and that is
awful for the people that have to do these jobs.

Speaker 5 (24:08):
It's going to deter other people from doing them in
the future.

Speaker 3 (24:11):
And I think, you know, if you also imagine what
would have happened if Kavanaugh had.

Speaker 6 (24:15):
Been killed, Biden would have replaced him as fast as
he possibly could with a liberal nominee, and then more
of them would have gotten killed.

Speaker 3 (24:21):
And then, right, so this is I mean, this is
the other danger. Right, what does this do to the
larger I take the point about the fact who wants
to do this job?

Speaker 5 (24:31):
It's terrible.

Speaker 3 (24:31):
You have to spend your whole life not saying anything
so you can get the job, and then you have
to spend the rest of your life hiding in your
house so that you can keep it.

Speaker 5 (24:40):
Jay, what thoughts do you have?

Speaker 3 (24:42):
You were looking very active over there in a good way.

Speaker 8 (24:49):
That's how I got my in law school looking at
so you know, I see this from kind of the
outside looking at h first, there there are attacks on
judges from both sides. President Trump goes after every single
judge and goes after them personally. And I think it's

(25:12):
totally fair to say, look, their political prosecution is going on.
But that's different from saying you know, I think one
of the first case when it was president was this
judge is Hispanic, so is going to be against me.
That's not a helpful thing. There has been violence against
against the left too, by people, you know, who kind

(25:37):
of get all ginned up by all this. So to me,
and I'm happy to be told them I'm wrong about this.
That the actually the thing that really undermines the credibility
of the courts are the ethics attacks. So saying Kavanaugh
is is a bad person that gets everyone energized and

(26:01):
he shouldn't be on the court, but it doesn't actually
go after his judicial philosophy. It just makes the left
not like him when you say Justice Thomas, when you suggest,
and it's more than a suggestion, that he's being paid
off because he goes on trips with people that attacks
the credibility of the court.

Speaker 7 (26:22):
Where I struggle with.

Speaker 8 (26:23):
That is that people attacking Justice Thomas are you know,
are politicians, especially on the left, who I don't know
if anyone knows about this, but they have a way
of grabbing some money and you know, insider trading and
all this stuff, And to me, it's all just complete nonsense.

Speaker 7 (26:44):
And if someone wanted to.

Speaker 8 (26:46):
Do like real reform throughout all the branches of the government.

Speaker 7 (26:50):
That's fine.

Speaker 8 (26:51):
I actually think with the courts it should not be
the legislative body or the executive branch. I think the
court has to be able to police itself. But there's
a great part of that, which is whatever people think
about a specific court, the justices really do have a
deep interest in maintaining its own credibility. So the idea

(27:15):
that Justice Roberts isn't going to care about ethics issues
at all and Congress needs to come and start doing
things I think is wrong.

Speaker 7 (27:23):
And I think it's it's true on the left too.
If if if the left were.

Speaker 8 (27:27):
Had the majority, I think that they also would take
seriously issues around policing policing themselves.

Speaker 3 (27:36):
So I guess part of the question is with the
level of partisanship.

Speaker 8 (27:40):
Now.

Speaker 3 (27:40):
My understanding is again from the outside, that the leaks
have actually in some way has been the most poisonous
thing that now no one on you know, that there
is more of a you know, no one's no one's
going to the opera together anymore. Now it is they
don't trust their colleagues because someone inside the court is
leaking and they don't necessarily know who, although I believe someone,

(28:03):
I believe they suspect they know who, but they don't know,
and that that makes it harder.

Speaker 5 (28:11):
Right, all of.

Speaker 3 (28:11):
These things that we're talking about with the legitimacity of
the Court, fundamentally they are questions of trust. They are
questions of living in a high trust society with high
trust institutions. And you know, the argument for attacking the
Court in order to reform it is that you know,
we need to point out their flaws and then you
know they'll be fixed, it'll be a better court. But

(28:33):
is there a way in which this actually undermines your
ability to fix the court Because everything is now so
poisonous that even getting that level of trust to come
together and make an ethics code that we're all going
to abide by and we can all agree on, what
do we do about that problem? How do we start
rebuilding both trust in the institution and trust of the institution.

Speaker 6 (28:56):
Yeah? So, I mean, I think a critical step is
going to be having the political branches, particularly the executive branch,
stop pushing on the Court as hard as the current
administration has done. And the most obvious example of this
is the dual indictments in two places of the former
president and current potentially future president and certainly challenger to

(29:19):
the current president. One of the two indictments, the one
in DC, is a very aggressive legal theory, and that
has been pushed hard. It has been pushed fast. The
notion that Jack Smith is independent from the president is
ridiculous to anyone who's worked at the Justice Department and
knows how this works. And the entire time and Jack
Smith has gone up to the court, he's asked the

(29:40):
court to resolve things on a transparently political timetable, and
when the court did so on a very quick timetable
in a way that he didn't like, no less than
the President of the United States went out to condemn
it in front of national television for not letting him
imprison his opponent's That sort of stuff is really really destabilizing.

(30:03):
It has never happened in this country before. It's the
kind of thing that happens in other countries. And I
fear that if the election goes a certain way, it's
just going to get worse. Brian Fallon, who some people
in here have heard of, was one of the founders
of Demand Justice, which was the first dark money group
to start really spending serious money trying to destroy the court.
He's a senior advisor to the Vice president right now,

(30:24):
presumably he'll be in the White House and they're going
to continue. And so I don't know how you're going
to be able to rebuild the institution when you have
serious political actors doing everything they can to destroy it.

Speaker 3 (30:35):
Well, if I can, oh sorry, if I can channel
my inner court critic and Jay for a moment, I mean,
you do have this problem of if Trump is elected,
he absolutely will shamelessly attack judges who defy him.

Speaker 4 (30:51):
Meigan, what he said, I mean, just saying that guy's
a bozo is different, I think actually going.

Speaker 5 (30:59):
After it, but I think he does.

Speaker 3 (31:02):
He argues that they are illegitimately biased against him, that
the court is made and look, I actually I am
a critic of the New York cases. I have been
dragged by every liberal law professor on Twitter now because
I look at the New York cases and I just think, yeah,
this this kind of looks like you're prosecuting your political opponents.
I'm sorry. But the other side of that is that

(31:24):
Trump would say that even if that weren't true, he
says a lot of things.

Speaker 8 (31:28):
Yeah, So I'm first, we all remember that that Trump
was saying locker up, which was the first time I've
seen in kind of political history where presidential candidate was
saying that. And I understand that, you know, he said
a lot of things and he didn't do anything and
all that, but that was not a great moment in
our history that I'm very concerned about the criminal charges

(31:53):
against Trump, especially the state ones, mostly for procedural reasons,
which is that the country is very fractured, and if
we have a system where the different states or district
attorneys can pick a very conservative or very liberal venue
and then say anything about a former president, you can

(32:16):
always say someone I don't know lied about their taxes
or did. These are all successful people who are involved
in so many things, and you know, I think what
we've learned so far about the Trump prosecutions is that
half the country is going to vote to convict or
vote that that he's liable, regardless of the facts, and

(32:39):
half will do the opposite. And that's a that's a
really bad thing to have in this country. So I agree,
I come out at you know, the point of he
did not shoot someone if he shot someone. That's a
different type of thing. A lot of the things that
he's he's a lecture, have done were things that were

(33:01):
in the past, which no one cared about at the
time because he was just a business man. But now
we're going to say he cheated the banks and we're
going to go after them, you know, for that. I
think I think that that is just where we're on
a really bad path. And I don't know, I don't
know what the exit ramp is for this.

Speaker 6 (33:21):
Just briefly, so the locker up thing was definitely the chant.
But then of course, as soon as he won the election,
he said, I'm going to let this go and you know, bygones,
be bygones, We're not going to do anything. And the
reward he got was the ambush that you know, Comy
and others laid for me and other people in the
beginning of the administration. I just think there's a fund
We talk a lot about norms and democracy. I think

(33:41):
there is a fundamental difference between the president the former
maybe future president tweeting about some judge being a bozo,
as Nicole said, and a sustained multi year campaign involving
the president the legislature and millions of dollars in political
attacks to destroy an institution systematically and methodically. That is
a thousand times more dangerous than anything that Trump has

(34:04):
ever done visa visa the court system, and I think
ever ever would do if only because that level of
organization would be quite difficult.

Speaker 7 (34:15):
Cut you off.

Speaker 4 (34:15):
So no, I mean, so I think I do think
to your point about so we should just disentangle critiques
about opinions we don't like from critiques that are really
fundamentally seeking to undermine individual judges, justices, the integrity.

Speaker 9 (34:39):
Of the court.

Speaker 2 (34:41):
So you know, the attacks are just as Thomas having
rich friends.

Speaker 4 (34:45):
I mean, okay, so like there's no you can't have
a quit pro quote if there's no quote, it's just
like this constant attack against things.

Speaker 5 (34:56):
That if you like, you scratch the surface. It's actually
not about the integrity of the court. It's just a
bad look. And so I just think we should think
about that when we're talking about these attacks on the court.

Speaker 4 (35:10):
And it's not I agree about the lawair and it's
really bad, but I do feel like I don't like
arguments about well Briar went on private planes too.

Speaker 2 (35:23):
A lot of private planes.

Speaker 5 (35:26):
How do I get that job?

Speaker 4 (35:29):
I'm academic, so I get a lot of boondoggles myself.
But I just feel like if we're just the constant
personal attacks are really problematic, especially they're unfounded and problematic,
and we need to recognize that.

Speaker 8 (35:48):
When we were first led to believe was that he
wasn't a deep thinker, that he wasn't original. He just
followed Scolia right, This was at the beginning, and then
he started with these descents in concurrences which have now
become the law. And it's I don't agree with a

(36:09):
lot of what he says, but it's hard to say
he's not principled, and it's hard to believe that that
him going on some sort of trip is going to
change what is a very kind of well thought out
and established, you know, judicial view of how to interpret
the constitution of statutes and all of that.

Speaker 7 (36:32):
So that's my take.

Speaker 3 (36:35):
So let me ask the annoying question that every journalist hates,
because you've gotten to the end and you've described this amazing,
You've described the problem really well, and then people are like, okay,
and what do you do? And let me specifically ask
a problem because we're at the federalist society, you know,
in any marriage, and I think of I sat next
to a divorce layer on a plane in fifteen more.

(36:57):
I promise, and he's uh. We got to talking and
he said, America is like my clients who are in
the really bad place where they're just at the point
where they're like, oh, yeah, I will total his Porsche.
It'll cost me two thousand dollars. He'll be even more
unhappy than me. And the problem is that there's no

(37:18):
way for a country to get a divorce. And if
you're in that position, if you're married, you know, you know,
maybe you think your spouse is one hundred percent wrong,
but you're gonna have to fix the problem together. So
how do we think about You know, we can we
can say stop. I agree in many cases, yes, stop
attacking the court, Stop with the personal attacks, Stop trying

(37:40):
to undermine legitimacy. You will miss it when it's gone.
But like, what could we in this room do that
would make this problem better, other than shouting at the
people who are doing it.

Speaker 6 (37:51):
Stop? So I guess I have two thoughts. I mean,
to me, the best reaction to what happened to judge?
Then Judge Kavanaugh was that he became Justice Kavanaugh and
the Republicans picked up seats in the Senate. So you
pull that, you know, you lose ground, and that's good. Now,
obviously they haven't learned their lesson yet and so maybe
there needs to be more of that. The other thing
I think people in this room have an obligation to do,

(38:13):
actually is to actually speak out about this stuff on
as much as possible and do as much as you
can to try to defend the institution because it can't
defend itself. You know, they don't have press secretaries. There's
like a little communications office that reports to the chief.
It is not, believe me, equipped to deal with this
level of personal attack on individual justices. And so it's

(38:33):
our job as practitioners, and not just the people here
to talk to our friends that are nonpartisan, that are liberal,
people like Jay whom you know. Thanks for coming to
do this. It's great to have you here. I mean,
that's awesome to say that this is nuts. I mean,
if you destroy the rule of law, you're not going
to have a country anymore. And things are not going
to work for anybody, including the people who are sponsoring
the attacks. That's my take.

Speaker 2 (38:55):
So I'll just be the egg hid here. As a
person who teaches.

Speaker 5 (38:58):
The law the law, I just try to teach the law.

Speaker 2 (39:03):
I really just try to teach my students that there
are sides.

Speaker 4 (39:06):
You know. One of the most disappointing things that I've
read about law professors saying, oh, I just can't teach
the law anymore, it's not real and feel triggered.

Speaker 2 (39:18):
I just so, I think.

Speaker 7 (39:22):
It's everywhere.

Speaker 2 (39:23):
There's like New.

Speaker 5 (39:24):
York Times articles about.

Speaker 2 (39:25):
How I can't talk about concus the law anymore.

Speaker 5 (39:28):
It just feels triggered.

Speaker 2 (39:29):
I just teach the law. So you say, there.

Speaker 4 (39:32):
Was this rule, there was that rule, and there was
like these this method, there's that method, and what's.

Speaker 5 (39:36):
The best mess method. I think the best thing we
could do.

Speaker 4 (39:39):
As lawyers, and as a law professor in particular, is
try to just be rigorous and how we approach the law,
recognize the diversity of approaches the law, and understand that
the people, the justices who are applying the methodologies that
I like, are doing it with like ethically, rigorously, honestly.

(40:06):
And then if you don't like it, say I would
prefer a different methodology.

Speaker 5 (40:10):
But as a professor, I try to understand.

Speaker 4 (40:13):
My job is to just be a lawyer teaching law,
and I worry that, especially the LEO Academy, that is
just too rare.

Speaker 7 (40:24):
I've heard of.

Speaker 8 (40:25):
The fragility of law students, so that's an entering concept.

Speaker 4 (40:29):
I'm not the fragility of law professors.

Speaker 2 (40:31):
My students are quite not fragile.

Speaker 11 (40:34):
It really.

Speaker 6 (40:37):
Maybe it's so.

Speaker 8 (40:40):
I definitely think that conversations are the only way through.
But I think what's really important is for people who
who disagree with the outcome of a case.

Speaker 7 (40:50):
So I was not pumped about Dobbs. I think it's really.

Speaker 8 (40:54):
Important for those people to speak out in a way
of saying it's not a crazy decision policy wise.

Speaker 7 (41:02):
Didn't like it.

Speaker 8 (41:03):
Happy to talk about reliance in triests in the decision
and why I disagree with that, but to start with
a structure of come on, Rob Wade, was not the
tightest opinion out there, and we can say that without
without the virtual signaling, like I'm sure people is this

(41:23):
being recorded?

Speaker 6 (41:24):
I probably is great.

Speaker 8 (41:26):
So I'll get a lot of a lot of nasty
emails saying like, you know, I'm not I'm not for
let me try it to all those things and it's
missing the point, which is that if you actually do
believe in these issues, you also can believe in the
rule of law, and you can talk about them more intellectually,
and you can actually give up some ground and and

(41:47):
and be.

Speaker 7 (41:48):
Honest about it. I think that's the best way to
do it.

Speaker 8 (41:51):
It's really the losing side who has to be the
one who's making the strongest case for it's still good.
We've got a Supreme Court that is making decisions, is
writing it out in a reasoned way, and then we
can discuss it. But it really is the obligation of
the losing side more than the winning side.

Speaker 3 (42:08):
Afterwards, I really want to ask you how you can
have a longer than nine month reliance? Is interestortion?

Speaker 8 (42:14):
But I was not because people moved to states and
I don't know because dobbs is bad.

Speaker 6 (42:20):
Okay, it's the neutral position, as as Kavanaugh explained.

Speaker 3 (42:26):
So I mean, let me let me ask about that.
Because one thing, and I will say this is for
journalism that I was in an roial meeting right before
the pandemic and I was talking about it. You know
how like young conservative and liberal journalists will drink together
and the actually young liberal journalists in the room looked

(42:47):
at me like I had just suddenly sprouted another head.
They had no idea what I was talking about, and
I had like I had moved to Washington in two
thousand and seven and done this, and there had been
In fact, you know, things got a little testy during Obamacare,
so we had to see weddings so that the liberals
and the conservatives were not next to each other. But
still people were corgial. They went to weddings together. And
it seems like that doesn't happen anymore. And my understanding

(43:10):
is that that also doesn't maybe happen so much now
with lawyers either. Am I right about that? And then
if I am right about that, how do you even
have those conversations.

Speaker 6 (43:23):
I'll go drinking with you anytime you want.

Speaker 7 (43:29):
I don't.

Speaker 6 (43:29):
I mean, Jay, you know, I've only been back in
private practice for a couple of years. When you're in
the government, you tend to hang out with people from
your team, as it were, just because those are who
your friends are. I don't know. I think the private
bar is relatively bipartisan. Still, I think the bigger issue
is that there's a what seems to me a much
greater fear than there was twenty five or thirty years

(43:50):
ago about speaking out on these issues. And so people
at large law firms who you would think of as
sort of deans of the bar are not doing what
they would have done in the eighties and did for
Earl Warren. I haven't checked which to say, this is
not okay and we're not going to destroy this institution
because you're unhappy about a particular outcome. And I do
think that would be important. In addition to going out

(44:11):
and drinking together on a regular.

Speaker 4 (44:12):
Basis, is that connect I mean, I walk through the
Notre Dame at Commons not name.

Speaker 2 (44:18):
Law school students will know this every every day because
it's like a worm cut.

Speaker 5 (44:24):
It gets cold and Notre Dame. You got to walk
through the worm cut.

Speaker 4 (44:28):
And I see lots of law students sitting together having
conversations across ideological divides, and.

Speaker 5 (44:35):
I think that's great.

Speaker 4 (44:36):
So I maybe I live in Disneyland, but I think
that's what we need.

Speaker 8 (44:41):
I like, I personally find it a lot more interesting
to talk to people who experience the world differently than me.
That's why I like speaking at these events. That it's
you know, different language, different viewpoints, But I don't really
agree that.

Speaker 7 (44:58):
That there's a lot of discotch going on.

Speaker 8 (45:00):
So, I mean, I'm a plane Off's attorney, and plane
of attorneys, you know, want to have this pac mentality
and anyone who's not a plane of attorney is bad.
And I basically stopped speaking at at the planes attorney's
conferences because it's just hell, it's just the sorry I'm
allowed to say that.

Speaker 6 (45:20):
Well, we will be blessed later.

Speaker 7 (45:21):
It's okay, it's.

Speaker 8 (45:24):
Not it's not terribly interesting when everyone's just saying the
same exact thing. And when you actually get into a
substant of discussions, you realize that people actually have a
lot more commonality. But your question is how do you
foster those substance of discussions?

Speaker 6 (45:38):
And I don't know you're the I mean, I do
think the Federalist Society historically has been very good at
fostering those discussions like we are right now where we've
got sort of a diversity on the panel of viewpoints
and backgrounds, and that's a critical role for this organization
to continue playing.

Speaker 3 (45:53):
I think would it help if the Court cleaned up
Ethics Act? Would it help if they emulgated are really
tight new code.

Speaker 6 (46:02):
Yeah, I wouldn't just be fodder for the war. So
I just yeah, I mean, I reject the premise that
there's an ethical problem that they need to solve. I
you know, I clerk there. I know some of them
pretty well, and these are about the most cautious and
prudent people you're ever going to encounter in real life.

Speaker 4 (46:17):
Uh.

Speaker 6 (46:17):
And so the idea that they're just like running around
partying all the time on private jets or whatever, you know, all, yeah,
sometimes opinions, you know, I think, like just as Barrett's
like having dinner with Jesse at her house most knights,
But it's just silly. And so no, I mean I think, look,
they've they've got they've now said they're going to abide
by the code that they've issued. I think doing anything

(46:38):
more than that is just going to become gris for
the mill. This idea that they're going to have the
lower courts enforce it is a ridiculous idea. I've written
about that, and it's not It would not work, and
it would up end the judiciary. And so no, I mean,
I don't think they need to go further in the
face of this bully now if Congress wants to pass
an all of government rule that's going to apply to them,
and it's going to apply equally and also perhaps includes

(47:00):
Nancy Pelosi's stock portfolio. I think that's a conversation we
could have.

Speaker 4 (47:09):
Well, I mean, the problem with all of this is
just these gotcha moments, right, I mean it's impossible to
apply evenly. There's always the chance, like maybe just to
spare at eight three shrimp at the tailgate instead of
just eight five shrimp. I mean, like he had like

(47:31):
probably twenty tramp but it was a shrimp boiled tailgate
from New Orleans.

Speaker 2 (47:38):
But I mean, the.

Speaker 4 (47:39):
Problem with all of these codes is about disclosure, and
it's just it's just inviting these gotcha moments, and you know,
it's inviting unfair and unequal like exposures of these things.
And I don't know the answer, Megan, I really don't,
because I don't think that we should. I'm not against ethics,

(48:00):
I just I am against gotcha moment.

Speaker 3 (48:05):
Well, let me suggest a couple of things that could
perhaps fix things break things further. Who knows one is
the obvious?

Speaker 1 (48:14):
Right?

Speaker 3 (48:14):
Doing court reform, setting term limits?

Speaker 9 (48:18):
Why is this a bad idea?

Speaker 5 (48:19):
If it's sort of unconstitutional.

Speaker 3 (48:24):
Assume we do a constitutional amendment, because that will definitely happen.

Speaker 5 (48:28):
Well, then we can have a different conversation.

Speaker 3 (48:30):
Yeah, well, but I mean would it would it be
a good idea if we did a constitutional amendment?

Speaker 6 (48:35):
Well so, I mean it depends on what thing we're
talking about.

Speaker 3 (48:39):
But I mean eighteen year term limits staggered so that
you know, each president.

Speaker 6 (48:43):
Gets to Yeah. So there's like a very fundamental difference
between the perspective eighteen year term thing that that applies
to future justices and the current proposal, which applies to
current justices. So it's really just the Alito Thomas Roberts
Removal Act that we are currently talking about. I think
things like that or court packing, court expanding. I mean,

(49:04):
they're just so goofy that all they're going to do
is destroy the credibility the institution on a prospective basis,
because then the other side is going to come back
and come up with their own thing with the Jackson
Kagan to terminan Act, and it's just going to be
a race to the bottom, and the ultimate consequence is
going to be that the political branches do not listen
to the Court anymore. I mean, I worked in the
executive branch. We have a president right now who very

(49:25):
much wants to do things like give forgive student loan
debt and put his opponent in prison. It is not
hard to imagine a president who tells the court he
does not care about their opinion, which, by the way,
is how it worked in most countries. Now, if that's
the country we want to live in, fine, but I
think the people that are that think that's going to
be okay need to think awfully hard about what a
president DeSantis or someone like that's going to look like.

(49:46):
If we don't have the court there to set the limits.
I might think it's great, but the people who are
pushing the stuff right now I don't think would find
that very enjoyable.

Speaker 8 (49:56):
If the conversation were set up where there were eighteen
year terms or something, you know, maybe, I mean, we
could find a lot of fault of that too, because
then after the eighteen years, the justices are going to
cash in and they're going to take these expensive, you know,
these high paying jobs. And no, yeah, hopefully that would
be great.

Speaker 6 (50:18):
We're doing the Lord's work, God bless you.

Speaker 8 (50:21):
But but yeah, I mean all this stuff about like
you know, let's change all the rules is very shortsighted,
because you know, we've got a democratic president now, and
then we won't and then at some point the Republicans
will have all three prants of the government. And this
is where democrats and I'm speaking as one sometimes struggle
of understanding what the repercussions are going to be.

Speaker 7 (50:43):
But it's a it's a disaster.

Speaker 8 (50:45):
You add a few more justices, and then the Republicans
are going to do something else.

Speaker 3 (50:50):
I look forward to it as an example of exponential growth,
where you know, you just keep doubling the size of
the court every time the presidency turns over, and eventually
it's like everyone in the United States is report.

Speaker 5 (51:02):
It's like the Ninth Circuit.

Speaker 3 (51:06):
So here is the other solution to which I am
somewhat more partial, which is like, are we asking courts
to do too much? Are we asking it to be
a kind of super legislature that tries to resolve every
hard problem? And I think that Roe was an example
of that. Right, this is a hard problem, we'll take

(51:28):
care of that. Now you can't talk about it anymore,
and that it didn't resolve the problem. And I will
say with cases that I was sympathetic to. Like Heller,
I'm very sympathetic. I actually agree with the reading of
the Second Amendment. I also worry that by putting these
problems politically off limits, that with some of the free

(51:49):
speech cases, which again I agree with as an intellectual matter,
but that by putting things like campaign reform campaign finance
reform politically off limits, you're creating a situation where these
sorts of attacks are inevitable because control of the court
matters so much, because the Court keeps telling gets to

(52:10):
tell the side it doesn't agree with, or the side
that you know that it is less sympathetic to. Let
us say, gets to tell them that they can't do
a bunch of stuff and that they're not even allowed
to try to handle it politically.

Speaker 4 (52:25):
You think, Megan, that the problem starts a long time
before Heller.

Speaker 5 (52:29):
I mean, yes, the court absolutely.

Speaker 4 (52:32):
So if you want to be Burkian or whatever like,
you want to say, oh, the Court should just defer
far more to the political democratic process, Okay, but we're
going to have to go back a long way to
the fifties, the sixties. I mean to say, the court
has usurped for itself this power I agree, and it

(52:53):
has made up a lot of stuff. So some of
the stuff just needs to be unmade up and then
go back to democracy.

Speaker 3 (53:02):
So can we like lay out a blueprint, wellbase, and
then we'll be done.

Speaker 6 (53:06):
But like that's why this is also sort of like
Alice in Wonderland. Like, I mean, all Dobbs did was
take the court out of abortion, and so like the
idea that Dobbs was some power grab by the judiciary
is totally crazy. They said, we're not going to be
involved in this. You guys go figure it out. And
what do you know, Many states have much more permissive
abortion laws than they did before Dobbs, and some states

(53:28):
have less. And that's, you know, like how the democratic
process works.

Speaker 3 (53:32):
I should say I favored Dobbs.

Speaker 7 (53:34):
I favored whatever it was.

Speaker 6 (53:35):
Going to be.

Speaker 3 (53:36):
I didn't know the name of it when I was
writing no. For this exact reason. Yeah, because it was
the government taking something out of the It was a
court taking something out of the political process, and instead
of resolving the issue, it had made it completely toxic.
And I actually think what is happening now, with all
of its errors and contentions and everything else, is the

(53:56):
healthy process of communities handling a real.

Speaker 5 (54:00):
Hard problem on their own.

Speaker 3 (54:02):
I don't want to see Congress come in and make
a national abortion law or the courts say that there
you know, there's a for you have a is it
a due process right to.

Speaker 7 (54:10):
Not that I don't want.

Speaker 6 (54:13):
I don't think that's going to happen for a while, right.

Speaker 3 (54:15):
I don't want the courts in it at all, precisely
because I think putting these things off limits ends up
in this place where where the Senate and the Presidency
you're increasingly you're just you're just voting for who's going
to give you the justices you want, and the justices
give you what you want without you having to go
through the democratic process. And it seems very unhealthy to me.
But I'm also not a lawyer, and it's probably.

Speaker 5 (54:35):
Extremely naive leads down with us.

Speaker 1 (54:39):
Well, actually, I just I just wanted to note that
that it is important to have a little bit of
Q and A, so we should abab Oh.

Speaker 3 (54:44):
Yes, I'm sorry, everyone has been too interesting? Can we
can we turn to the and of course I like
to hear myself talks. I'm a journalist. We turn to
the audience and and get some questions I'm.

Speaker 7 (54:55):
Sorry, got a Q and a s.

Speaker 6 (55:00):
Okay.

Speaker 9 (55:01):
So I was a committee council for fourteen.

Speaker 12 (55:04):
Years for Congress, and my view is there's usually a
motive for things, and my sense is that the motive
is very simple.

Speaker 9 (55:14):
There are many many interest groups.

Speaker 12 (55:16):
Across the progressive spectrum who don't like the court, and
the solution is to expand the number of justices and
create a majority.

Speaker 9 (55:24):
The problem is the public doesn't like it.

Speaker 12 (55:26):
So you destroy the reputation of the court and you
set it up so that when you get a majority.

Speaker 9 (55:31):
You can pack the court.

Speaker 12 (55:32):
So, in answer to your question, I want your thoughts
of you said, how do we stop this? And the
answer is we take away the option for politicians to
pack the court. And most people in this room probably
know that there's a constitutional amendment called the Keep nine
Amendment which would say the Supreme Court is nine justices.
Two hundred members of Congress support it. And my question

(55:54):
to each of the panelists is do you think that
it would be a good idea to amend the Constitution
to put into the Constitution that the Supreme Court United
Station shall be composed of nine justices, so they wouldn't
be an incentive.

Speaker 9 (56:06):
To destroy the reputation of the Court to packet.

Speaker 5 (56:09):
Yes, I guess so.

Speaker 7 (56:13):
I mean it's not gonna happen.

Speaker 5 (56:15):
That isn't a magic number, But I guess so. I
mean I've thought that much about it.

Speaker 6 (56:19):
But yeah, I'm just going to go with yes.

Speaker 3 (56:23):
All right, next tist time. We can't see you at
all because these lights.

Speaker 9 (56:26):
Are blinding, Okay. J. P.

Speaker 6 (56:28):
Hogan.

Speaker 13 (56:28):
I've been writing on politics over thirty years. In two
thousand and seven I started writing full time Defeat Hillary.
But anyhow, you're talking about this. One thing you should
bring up is Bill Clinton's post constitution. If you study
what they were meaning by post constitution, they were basically
avoiding our protections from tyranny to make some changes. And
when you start factoring that in a lot of this

(56:49):
against the Court, it's things that the Clintons did that
haven't been checked. And then it really gets complicated because
Muller was that would have been covering up for that
after nine to eleven, And what do you say, sorry,
is there a question here?

Speaker 9 (57:04):
It's the question is.

Speaker 13 (57:08):
Taking apart the Clinton's post constitution if you study it,
and you study it as they were actually trying to
avoid tyranny, our protection tyranny, and what Trump ran into
when he let Hillary go after locker up I have,
you can go to locker up dot biz. I've rap
I was right to rap on the Constitution before Hamilton.
But taking apart the Clintons, You've answered a lot of

(57:29):
your questions.

Speaker 3 (57:30):
YEA, due to my irresponsibility with a Q and A,
we have gone too long.

Speaker 6 (57:35):
So I'm gonna if anyone, does.

Speaker 3 (57:36):
Anyone want to come out of that, and I'm going
to move to.

Speaker 5 (57:38):
The next questionnaire.

Speaker 9 (57:39):
Yeah, high penal.

Speaker 11 (57:41):
I think we've seen with you know, I think it
was mentioned on the panel about these gotcha moments that
politicians are soft and seeking out with his confirmation hearings.
What is the panel's opinion on these confirmation hearings going
behind closed doors and whether that would solve things a
little bit, you know, by taking away the gotcha moments
like asking Justice Jackson what is a woman?

Speaker 9 (58:00):
And things like that.

Speaker 6 (58:01):
Yeah, that's a really good question.

Speaker 8 (58:02):
I don't know why that's a gotcha moment though the
so and I'm glad you asked that question because I
sometimes I'm worried that there's too much of a focus
on the Supreme Court, when you know, district court judges
and the apellate judges have an incredible amount of influence too.
And what we're seeing with the confirmation process is that

(58:25):
it's a lot of kind of subtle virtue of signaling
and not a lot of substance.

Speaker 7 (58:31):
My favorite senator.

Speaker 8 (58:33):
Who I disagree with politically when it comes to confirmation
hearing to Senator Kennedy because he asked trial judges, you know,
questions like do you know what emotion and lemonae is?

Speaker 7 (58:44):
And that matters to me.

Speaker 8 (58:45):
I'm in the front of district judges and what do
I want first? I actually don't care if they're conservative
for liberal. I care that they're efficient, that they're smart,
that they're paying attention to law, and that they're decisive.
I just needed to say that I used your question
as an opportunity to say that. Now I want to
answer it directly. I still think it should be out

(59:06):
in the public.

Speaker 7 (59:08):
I think that's a better way. It's part of democracy.

Speaker 8 (59:10):
I just wish that it shifted into something more substant
of and we've gotten so far away from that.

Speaker 6 (59:17):
For what it's worth, there is a second secret hearing
where they talk about the background investigation that the FBI
does that is supposed to be where they ask you about,
you know whatever, you got arrested when you were twenty one,
or you have a traffic that has historically been where
these sort of very personal issues that bear on your
fitness are ventilated for precisely the reason you suggest, which

(59:39):
is that historically we have not wanted to destroy people's
lives for having the temerity to want to serve their country.
And I think that is a good process, and that
the public hearing should be about judicial philosophy, the role
of the courts, and all of that. Thank you, unless
you're okay.

Speaker 5 (59:56):
Next question.

Speaker 12 (59:58):
Several of you complained about the media printing falsehoods about
the courts and judges. Would a solution be to overrule
New York Times versus Sullivan and hold them to uk out.

Speaker 5 (01:00:10):
No, I have moving on for the next question.

Speaker 4 (01:00:17):
Can I it is very astorical.

Speaker 6 (01:00:21):
It is it is. I agree completely with Nicole about that,
but I'll just say I offer one counterpoint. I tend
to worry that that would have an asymmetric effect on
the few media outlets that are still sympathetic to the
way that we think about the world, like Fox is
headquartered in New York, and so I tend to worry
that we would just end up shooting ourselves in the
head rather than getting Megan's less scrupulous colleagues.

Speaker 3 (01:00:45):
I beg your part, we are a fantastic value, only
fifty dollars a year.

Speaker 1 (01:00:50):
I might not.

Speaker 6 (01:00:52):
I think I'll use my neighbors. Sir. You make me sad?

Speaker 7 (01:00:58):
All right?

Speaker 5 (01:00:58):
Do we have?

Speaker 14 (01:01:01):
This has been a great conversation about the Supreme Court.
I want to ask about district courts and circuit courts
because they have even less of a defense apparatus around them.
You have third party groups fighting to recuse district court
judges on all kinds of things. You have the government
coming in arguing that all these cases actually need to
be decided in DC by the DC Circuit. So the
attacks are not limited to the Supreme Court. And in fact,

(01:01:21):
district courts have even more incentive to just say, fine,
let somebody else deal with this, because they can just
send it to another judge, whereas the Supreme Court.

Speaker 9 (01:01:28):
Actually has to decide the case. What is what can
be done there?

Speaker 14 (01:01:32):
How can we help bulk up the district court judges
and the circuit.

Speaker 9 (01:01:35):
Court judges and.

Speaker 4 (01:01:37):
Particular, I will say the Supreme Court doesn't seem super
much motivated to decide a lot of cases these days.
But I agree with you that there is that the
court attacks go below the.

Speaker 6 (01:01:51):
Supreme Court tyler. For what it's worth, that is a
new thing. I mean, this administration has been much more
willing to attack the district court judges. Ven you accuse
them of four accuse plaintiffs of forum shopping, then certainly
our administration did. And it's some of my former colleagues
that are doing it. And I don't know what that
where that comes from, and if it's just a decision

(01:02:11):
to be more adversarial to a out of control judiciary.
But that's the kind of stuff that I think is
very destabilizing. Like the Justice Department didn't used to do
stuff like that, and it is very much inconsistent with
the norms that historically governed it. So I don't know,
I mean, I you know, I think they need to stop.
One way to get them to stop would be for
some people in this room to take over the.

Speaker 9 (01:02:29):
Justice Department.

Speaker 6 (01:02:32):
Peacefully.

Speaker 8 (01:02:36):
Yeah, I mean, I would suggest that forum shopping is
not a new thing, and it's not not just with
the government. So you know corporations, I know, yay, corporations.

Speaker 9 (01:02:49):
They they know we.

Speaker 6 (01:02:49):
Don't like them anymore, You don't, Yeah, yeah, that's the
next poet.

Speaker 8 (01:02:53):
So yeah, so Facebook, who we all don't like, right, Yeah.

Speaker 7 (01:02:58):
Get Facebook puts.

Speaker 8 (01:03:00):
If you're gonna sue Facebook and in their contract ocasion,
you're gonna do it in the Northern District of California.
Awful decision by them, because Northern District of California hates Facebook,
But that.

Speaker 7 (01:03:11):
Was their decision.

Speaker 8 (01:03:13):
Playing as attorneys try to find the best venue for themselves.
What I've noticed in my practice is district judges, the
good ones especially, and everyone I go in front of
it is one of the good ones. They they're not
really terribly interested in a lot of gamesmanship, and I
don't find that what's point at them is to not

(01:03:35):
do work and send it to a different judge. So
I understand, I understand the thrust of the question. I'm
not seeing that at least in my civil practice in
a way that's terribly concerning to me.

Speaker 3 (01:03:50):
Well, thank you to our amazing panelists.

Speaker 5 (01:03:53):
Thank you so much.