400th Episode Spectacular

Episode Notes

Transcript

Joe Patrice:

Welcome to the 400th episode of Thinking Like A Lawyer. Woo-hoo.

Kathryn Rubino:

Come on. Sound effects boy. Yeah, that was very loud.

Joe Patrice:

Yeah, well, I mean they fixed that in Post.

Kathryn Rubino:

Okay.

Joe Patrice:

We’re the sort of podcast that has post we’re that kind of fancy fancy and that’s why we’ve been around for 10 years,

Kathryn Rubino:

400 episodes. Yeah.

Joe Patrice:

So yes, this is the 400th episode of Thinking Like Lawyer and I’m joined as usual by, I’m Joe Patrice I should say, and I’m joined by Kathryn Rubino and Chris Williams as I usually am. But we also have a special guest because original co-host of this program, Elie Mystal with us.

Elie Mystal:

Hey,

Joe Patrice:

So we’ve got everybody who

Elie Mystal:

We’re all going to die.

Joe Patrice:

We have everybody who’s hosted this show all in one place throughout who’s ever hosted it in its entire run there. There

Kathryn Rubino:

There you go. That’s fun.

Joe Patrice:

Right? Okay, so how

Elie Mystal:

Are you guys?

Kathryn Rubino:

We’re here

Chris Williams:

Doing good. I for one, I’m happy with the takeover by the South African. I’m fully investing all $37 of my net worth into Bitcoin and as soon as it hits $60, I’m turning Republican. There you go.

Elie Mystal:

Chris, I hate to inform you of this, but you happen to be black. My experience with white South Africans is that even when we have 60 bucks, they don’t like us no much.

Chris Williams:

Well, no, don’t you understand? Bitcoin is a democratizing force that’ll get rid of all this black stuff. I’m fully fledged fan of delusion now because all this pragmatic thinking about Praxis and what to do hasn’t worked, but delusion is king.

Joe Patrice:

So we’ll put ethnicity on the blockchain and solve everything. So we are here. We should probably begin with some grinding of the gears

Kathryn Rubino:

To bring at Old Talk.

Joe Patrice:

Yeah, we’ve been doing small talk here, but we didn’t have Elie.

Kathryn Rubino:

He is the original gear grinder.

Joe Patrice:

Yep.

Elie Mystal:

Well actually it’s funny guys, because before I do have something to grind on, but before,

Kathryn Rubino:

No kidding.

Elie Mystal:

Before the 400th episode of this show Above the Law Still going strong, which you love to see it, and I was really, before we did this, I was kind of reflecting on just the journey that we’ve had as journalists covering the legal profession. I started Above the Law right before, literally a month before Lehman Brothers collapsed, thus ushering in the Great Recession. And you kind of think about the economic forces that are usually at play in our industry that we talk about so much and how that’s a constant drumbeat to what we do and the journalism that you guys are still doing. And then we kind of transition into Trump era one where lawyers go to frontline resistance fighters where you become the, for whatever elite educational opportunities you’ve had, you become a person in the trenches trying to maintain and uphold the rule of law during the first Trump presidency. And as we circle all the way back around to Trump too, where lawyers are once again forced into the primary resistance positions and he’s just firing everybody. I mean there’s DOJ honors program gone. The idea that you can be a lawyer for the government and still do good work for this government now has completely flown the coop and we’re about to get back into a recession and

Kathryn Rubino:

If We’re lucky, It’s just A recession,

Elie Mystal:

Either a recession or truly a global meltdown depression kind of thing because of all of the ridiculous policies and the racism and sexism and stupidity that Trump brings to the table, he’s starting a trade war for absolutely no fucking reason.

Kathryn Rubino:

Fun.

Chris Williams:

You see, my problem is I feel like you’re blaming Trump when you really should be blaming DEI. I’m not exactly what Obama has to do with this, but I’m sure he has a very cool tan suited hand involved in it.

Elie Mystal:

Well, I got something on Obama later that I’ll bring up, but I just wanted to remind listeners that lawyers have been in this position before and been forced to come through it, but now we are really, look, we are potentially standing on the cusp of another great economic meltdown that will ravage the legal industry because we’ve started a stupid trade war with Canada and Mexico for absolutely no reason. But to get to Chris’s point, which actually links up with what I wanted to grind about. So the big thing that I’ve been doing guys, is where are we in this cycle, right? Because history tells us that when white people get that blood lust, get that fever to crack black skulls and reassert their white male dominance upon society, that cycle goes for 50 to a hundred years historically speaking. When white people get the fever, it takes them a while to get the antidote right. Wait, this is a legitimate question. We spent time and time throughout history, not just in this country but all over the world, but the question then becomes where are we in that 50 to a hundred year cycle? If you start with 1980 and Ronald Reagan,

If you say that’s the start of the cycle, that is the point where the rejection of the multiethnic, multiracial plurality really starts and takes hold and that everything we’ve seen since 1980 is part of the cycle. The more evil white people doing, the more evil things, the neoliberal good white people also fucking up in there Clinton esque. And if you think about it that way, we’re almost halfway through probably we need to be near the end of this. If you started in 1980,

Chris Williams:

I feel like that’s so optimistic. I would start it because as far as the period, I think that what we’re experiencing is the period after reconstruction come back. So that’s what’s happening and to place that you need to have specifically a big black moment of success. I Think the place to point it is after the Obama administration, which means that we are much earlier than Reagan.

Elie Mystal:

That is exactly where I was going, Chris, I start the cycle

Chris Williams:

And I was like, is this A rhetorical question?

Elie Mystal:

I thought it was obvious. I start the cycle in 2008, I start the cycle with the election of Barack Obama. Very much liked the election of Hiram Rebels, the first black senator after the Civil War, and it was not so the thing that broke the white brain wasn’t seeing black people free. It was seeing black people in power and it was the reaction to black people in power. It’s the reaction to the first crop of black senators and black congressmen that quickly ended reconstruction and instituted Jim Crow. And so I think if you start the cycle in 2008, if you understand what the Trump version of white people felt having to listen to and hail to the chief that is a black man, I think what we’re seeing now is the somewhat inevitable white reaction to that and the cycle. And we’re only 20 years in

Chris Williams:

Quick pushback to the distinction between the issues. Not white seeing white folks, seeing black people free, but black people in power. First thing I think of is the Haitian revolution. If you think about black folks in power or black folks being free, and I think that they’re functionally and it’s always seen as a threat. So around that, and here’s the thinking around that, around that time when you have these ideals of the French Revolution like freedom, liberty, what have you, the Haitian Revolution is that par excellence, but it was not recognized as that. It was seen as a black uprising, not a major movement in liberty and freedom. So whenever there is power or black freedom, it is seen as an uprising. It’s not seen with enough nuance to be like, oh, this is just power or this is just freedom happening. It’s always processed as a result, as a rebellion.

Elie Mystal:

I know, I see what you’re saying and I don’t disagree, but I guess from a Thinking Like A Lawyer perspective,

White people do not lose their shit when you change the law to allow for equality, that’s actually not what ticks them off. You can have the Civil Rights Act, you can have laws that promote racial and social justice without pissing them off. What pisses them off is when black people take advantage of those laws to put themselves in power, then all of a sudden all the laws that black people use to get to be in power, all of those have to be taken away once power is actually there. So I always come back to 2013 Shelby County Beholder. This is the case that this was the white response to Barack Obama. He gets elected in 2008. White folks are like, oh, well fluke anything can happen on any given Sunday and the Great Recession. There were lots of ways to explain away Obama’s victory in 2008 when he repeats the feat in 2012 against the most richest whitest man available Mitt Romney when he repeats the trick in 2012. Now we’ve got a problem and the first white response to Barack Obama’s reelection is Shelby County versus Holder destroying the Voting Rights Act, which was the thing that was giving black people the kind of electoral power to elect a black president.

Joe Patrice:

Well, the argument there I think is also that the framing of the Obama election sets that up. The whole argument that Robert says is apparently racism’s over so black guy got elected apparently racism’s over. So the way in which everybody hailed kind of a post-racial society became the pitard that got hoisted.

Elie Mystal:

So I do make that distinction in terms of black folks being free legally speaking versus black folks having power legally speaking as a thing that does trip a wire. And we started off joking about the white South African that’s actually in charge of our government, but there’s a white South African actually in charge of our government and Trump is surrounded by white South Africans who made their money on apartheid. It’s not just Musk, it’s Peter die, it’s David Sachs’ fundraiser. He’s surrounded by these people who cannot go home again. They can’t go back to where they’re from. They can’t go back to their country because the black folks there was like, you need to get your ass gone. And so they’ve come here and they’re trying to recreate their childhood, their childhood utopia here in America. Well, we do have Wendy’s

Joe Patrice:

With the show half over. We can now turn to the agenda, which Hi Kathryn, so big law, what’s up? What up with big law?

Elie Mystal:

Can we talk about return to the office?

Joe Patrice:

Yeah, so I think kind of way we were thinking we don’t really have this show if you’re listening, we don’t really have a grand agenda, but we have a few things. What’s going on with law firms right now is and how this plays into Elie’s setting of the stage. So we had a great recession at the beginning of his time at Above the Law where bunches of people get laid off. Now we have a more precarious situation. Folks aren’t necessarily getting laid off, but we have a push and pull among the firms about who gets to stay home and who gets to be in the office, how much they need to be in the office. We just had a firm go back to five days in the office. Most firms don’t seem to be ready to pull that trigger yet.

Kathryn Rubino:

Well, before we kind of delve into this, Elie, I have a question for you. If you only had to be in the office three days a week when you were a big law attorney, how much longer would you have lasted in big law?

Elie Mystal:

On me personally,

That would’ve bought me two weeks probably. I was, as you guys well know, we were friends in those days. I was already doing my own little work from home kind of situation. I was in big law. I would find any excuse when I was working to not come into the office. As you guys know, I’ve sent emails, you’ve seen these emails that I’ve sent to the partners that I was working with. Hey, I’m going to work from home today because it’s cold. It do be cold trying to get down to the office in sub 25 degree weather, and this is like 2004. This is when it was

Kathryn Rubino:

Very much not flying,

Elie Mystal:

When it was not okay to do that. So no, it wouldn’t have bought me a lot of time. But let’s also remember, I am not the exemplary big law associate. The thing that working from home I think gives associates that is so terrible when you take it away is the ability to somewhat control their own schedule.

Because one of the worst things about big law, one of the worst things about being a junior in big law is your complete inability to have any say over your own schedule, over your own work time. It’s not the hours. If you tell me that I have to work for 12 or 14 hours, I can work for 12 or 14 hours, that’s not the problem. The problem is if I have to work for the or 14 hours, you say I have to work. When you say I have to work knowing that for a lot of that time I’m just going to be sitting there waiting for you to give me the work that I’m supposed to do. So now it’s a 16 hour day instead of a 12 hour day because for four of those hours I to wait around on your dumb ass. That’s the thing that mentally breaks people. It’s not the raw hours, it’s not the age of the car, it’s the mileage on it. It’s the way it’s being driven that breaks people and working from home gives people the opportunity because as you guys know, if you’re in some of these cases, if you’re on some of these tasks, you might have half an hour where nothing’s happening. You might have 45 minutes between assign the hurry

Joe Patrice:

the hurry Up and wait. Principle is so much a big law.

Kathryn Rubino:

I remember when I was in my first big law job and associate a couple of years older than me, told me she would never get into the office before 10:00 AM because they can always make you stay later. They can’t force you to the office earlier.

Elie Mystal:

That was percent Kathryn, the same thing I did. I would get into the office as late as possible because exactly like you say, you can’t control when I get in. Well, once I’m here, you’ve got me forever.

Kathryn Rubino:

I mean, I literally had a blanket and pillow under my desk at my first big law job.

Elie Mystal:

Oh yeah. If you think about the concept of the old school concept going all the way back to 2002 when people had an hour, they would run off and go to the gym. That was a big thing just to not only for your own health, but just to reclaim some of your time. But remember, this is how blackberries, I’m showing my age, but you have to remember what Blackberries did to people because back in the eighties you could be like, all right, there’s a lull. I’m hitting the gym or I’m going to the Harvard Club or I’m going to whatever it is I do to mentally protect myself. But what the introduction of the Blackberry, you couldn’t do that anymore because they were always on. They could always find you. There was never any downtime. Right?

Kathryn Rubino:

The counter there though, is that, would you have left? I probably wouldn’t have left if I was like, oh, I could get this draft turned around in a half hour or two hours, I don’t know. But because I had the sort of security blanket of a Blackberry, I could say, okay, well if they need me, I mean, I can remember being in a cab, going to a lunch with a friend and having the cab turn around because I got a Blackberry. I didn’t think the draft was going to be so that early and I’d just be like, oh, well, and canceling with my friend and turning around and going back and I never would’ve made the appointment. I never would’ve gone to the lunch if there was a risk that it would’ve been in a half hour.

Elie Mystal:

Understood. But remember the Blackberry, what it fundamentally is doing is invading your personal space. The point of going to the gym is not that you want to go to the gym. The point of going to the gym is that you want to turn off the office for an hour, you want to have some personal time for an hour, and the Blackberry takes that away. Well now fast forward working from home because it already, because it’s already all around you, right? Because there is no getting away because they’ve already invaded every bit of your personal space. Now, when you’re working from home, that invasion, that’s already happened. So it’s not like you’re losing anything with the invasion. What you’re doing is gaining the ability to shut off your screens or turn away from your screens on your own time deal with your, you also have to remember the other thing I wanted to bring up with this is again, going back to a 1980s, 1990s version of lawyering, when you were an associate, even a relatively junior one you had, it was this old school concept. Concept, I believe the Latin word was office.

You had your own office with this really important invention called a door and you could close the door to your office and keep motherfuckers out so you could work or perhaps pay some bills or perhaps talk to your doctor about your irritable bowel system issue, which you don’t really want to talk about. But hey, this is business hours. You got to remember, all these firms took the offices away. People are now either in cubes or sharing offices or they’re in a much more public place while they’re working, which means the ability to get any kind of personal time to handle any kind of personal business that can only be handled during business hours. Like talking to a doctor, like talking to a teacher at a parent teacher conference, dealing with any of the myriad of personal things that people have to deal with over the course of a day. You can’t do that in a shared space nearly as easily as you could back in the eighties when you had your own office.

Chris Williams:

If anybody would like to follow this up, read the Order of things by Michel Wco because at some point we shifted from Thinking Like A Lawyer to thinking like a historian of systems of thought. You could find similar paragraphs on how baby bottle nipples changed the process of being an at-home mother.

Joe Patrice:

This is the genealogy of the legal practice,

Chris Williams:

The genealogy of big law.

Joe Patrice:

But it’s certainly not every firm that’s done that. But a lot of them did. And a lot of them, this is why I have problems with the return to work concept, is firms that were smart and took those offices away as part of it was part of a transaction, they were kind of saying, we’re going to remove all of these offices because we don’t expect you to be here every day and you’ll get this office on the day that you are here, but then somebody else gets it when you aren’t. And that saves money. I don’t understand why that’s not viewed from the client’s perspective as a plus.

Kathryn Rubino:

Most of ’em had 20 year leases that they’re still in the middle of, right?

Joe Patrice:

I mean that is the big issue

Elie Mystal:

To me. So much return to work is being driven by real estate and people wanting to make good on their, especially in a place like Manhattan where the rent is already too damn high, dare I say Obvious Plug. But the other thing that’s happening, I mean you got to remember, my wife works for a bank and all the banks have gone five days. You can’t get an in-house job now that has flex work policies. And so if you think about in-house jobs as one of the escape valves for big law, we know that one of the things that pressures big law into certain employment practices is what they’re doing at corporations, at banks, because that’s where people can leave, can’t if all the firms are going to do the same thing, but if a bank is doing something significantly different, then that becomes a very good escape route for you. So in this issue, all of the banks and the firms, they’ve all gone back for the most part to five days in office a week, which then just opens the aperture for big law to get back to five days a week if they want to because people have nowhere else to go. And so it becomes just like all you can possibly do is have new talent from law school campuses, from OCI, from Supreme Court clerks who proactively choose what firms still have flex policies as opposed to hardcore five days a week. And that’s where the battle is now, because the corporate people who used to be providing a little bit of elbow room, they’ve all gone back to five days

Joe Patrice:

A week. Well, I’ll add that the banks are a large part of this. Early on in the work from home world, there was a bank who made a big, we’re going to demand that all of our outside counsel be back in the office. And it was pretty clear that it was because they were over leveraged in commercial real estate because the banks have financial interests in having people lease a bunch of stuff. And that makes more. Alright, well we’ve, we’ve got a couple more topics. So let’s take a quick break and come back and shift our gears that we grinded and we are back. Let’s transition to law school. Now,

Kathryn Rubino:

A lot has happened in the law school space over the last 10 or so years, but I think one of the big architecture of issues has been the way we rank and talk about law schools. Law schools are an incredibly competitive, very elitist kind of institution. And in the last few years, the big law schools have all kind of noted out of rankings.

Joe Patrice:

Well, that was the big issue. So Yale stops reporting their stuff to US News and gets a bunch of other law schools to go along with them. The reasoning is poor. The reasoning was to suggest that they argued that giving their financial information over to the ranking services was deterring was bad for reaching out and having equality in law school. Because if we talked about debt and we had to be measured by the amount of debt we leave our students in, well that just privileges law schools to cater to rich people, which is somewhat ridiculous because law schools cater to rich people by default. And reporting on debt is not about when they were reporting on debt, they didn’t seem to care all that much. So I don’t know what this was other than they wanted to hide how much they overcharge people and leave them in dire financial straits. But it has wrecked some havoc on the ranking systems, which from an outside kind of bomb thrower perspective has been amazing. We now have Yale looking at not being the top law school potentially we have

Kathryn Rubino:

Big changes in the T 14. Do you remember when

Joe Patrice:

Pure chaos?

Kathryn Rubino:

Yeah, there was one tiny change and everything was thrown into chaos for months, weeks, years. And now it’s like, well, do we even care what the T 14 is?

Joe Patrice:

Yeah. When a different school got tied at 14, we had an absolute existential crisis at Above the Law. Now Columbia’s 10 or something like that. It just pure chaos

Chris Williams:

Now that YU might be in the top 14 running. That’s true. I think that whatever’s happening is great and me to have more of it. Also, St. Louis wonderful barbecue. That’s the only other thing I can say good about it.

Elie Mystal:

I don’t perceive that the law school ranking community and the elitist community that I have so long proudly been a part of has fully metastasized SFFA, the end of a affirmative action and what that means, how that defines or redefines what elite education even looks like. If you go back to 400 episodes ago and you brought me a 22-year-old law student, black law student, and 400 episodes ago, they come on our show and they’re like, Hey Elie and Joe, I got into Harvard and Howard, where should I go? I would’ve grabbed that young brother and been like, you get your ass to Harvard Post-haste my friend. There’s no competition here. Don’t care. You want to be down with the cause that’s all great. You go to Harvard and then you can come back and be down with whatever cause you want to because Harvard is going to put you in the position to do that. Today, that same brother comes to me with the same question. I don’t know what I said. Now I don’t know that I say, but I’m saying I literally do not know what I say. And in terms of intellectual space and distance, that is probably the longest drive that I’ve had to go on in this business, that understanding that in a post SFFA environment in a post DEI or whatever they’re calling it today, environment in the environment where Negroes are not welcome, I do not know that I tell a young black person to go to a place where you’re not welcome

To go to a place where you are thought of as less than to go to a place that is right now more concerned about keeping the federal dollars flowing from shadow President Elon Musk. They are about providing a fair and good and diverse educational environment. So if you tell me that you could go to Howard or Harvard, I don’t know what I tell you, it is shocking to me to form those sentences in my head, much less speak them aloud.

Kathryn Rubino:

And this all kind of coincides with the meteoric rise in the rankings of AST law, right? The only kind of diversity that seems to count anymore is conservative diversity. And all of a sudden you have what by four generations was nothing more than a mediocre commuter school law school all of a sudden hitting the outside of elitism. And it’s only going to get worse as people from that school get selected for elite clerkships by people that have been put in power by Donald Trump.

Elie Mystal:

We are not long in our lifetimes. If republicans continue to maintain control, we will see a Supreme Court justice who went to as law then got a clerkship with Brett Kavanaugh because she was pretty then went to Jones Day and is now on the Supreme Court. And from a kind of elitist perspective, people are going to be like, what? From 20 years ago? That’s not the resume of a future Supreme Court justice. That’s the resume of a really good litigator at Gibson Dunn of counsel at Gibson Dunn. Right? So the change the conservatives have been able to bring about simply by bitching. I mean that’s the other thing. It’s not like they’ve invested in scholarship. It’s not like they’ve invested in the usual things that one invests in to become elite. They’ve just bitched their way to the top. It’s quite something. But again, from the perspective of a young African American, from the perspective of a young woman, from the perspective of a first generation immigrant, where do you go if you want to learn with the best and not be poisoned by the worst? I don’t know what the right answer is anymore, but it sure as hell ain’t looking like Harvard no more. It sure as hell ain’t looking like Columbia no more. And so how do people again fully internalize that information? I think is yet to be seen

Chris Williams:

Quick pushback on the SFFA point, which I think you’re right. The example you gave of a woman being on the Supreme Court hot attenuated out. And this is part of the thing where you still have to think through the thing. The goal isn’t for women to be in law school. The goal is for them to be pregnant in the house. So I don’t really think that would be what would happen. It’s going to be some dude who can hold his liquor that gets up being the Supreme Court justice. And that’s part of the fallout with DEI. It’s coded as black people, but it’s really white women, veterans, what have you. So all of these once assumed straight path to success need to be questioned.

Elie Mystal:

Let’s not forget though that Republicans are happy to practice DEI when it benefits them. Right? Let’s not forget that Sandra Day O’Connor was on the Supreme Court specifically because Reagan said he would appoint a woman. Let’s not forget that Amy Coney Barrett is on the court specifically because Trump said that he was going to appoint a woman to overturn Roe v. Wade. They love DEI and we’re going to see this when Thomas retires. Well,

Joe Patrice:

That’s what I was going to interrupt and say. It is the beginning of Black History month and Donald Trump has sent out his release celebrating it, and it mentions powerful black figures like Clarence Thomas as the reason for it. They’re big fans of black folks being on the Supreme Court. Would they help them?

Elie Mystal:

I keep arguing, Joe, that they need to open because Clarence Thomas as a historical figure in the black community is interesting to me. They need to open a special wing in the African-American History Museum in dc, call the sometimes it be your own people wing because we need a place to remember the Clarence Thomas’s of our world. He deserves

Chris Williams:

To be. And the Obamas. And the Obamas. It still blows my mind that he’s not being talked about as a war president. I heard Cornell West say that a decade ago, and it’s been in my mind ever since, just because he wore fancy suits.

Joe Patrice:

The Harlan Crow wing of the museum will be constructed soon.

Kathryn Rubino:

This may be a good time to take a quick break before we talk about the court.

Joe Patrice:

Yeah, that’s a perfect segue. So we had a quick talk about Clarence Thomas. So let’s segue into the courts. Obviously something that we’ve talked a lot about, something that’s become much more critical over the last few years. When we started this show basically 10 years ago, we were entering a world of the court where things weren’t great, but it was also kind of a death of a thousand cuts was a phrase a lot of us used about how the court operated. And now I think a lot of us use, and I believe this was coined by Leah Lipman, the YOLO court. We now live in a world where the court doesn’t care about trying to engage in a thousand cuts. Even Alito, who is knighted, doesn’t need to use his sword like that anymore.

Kathryn Rubino:

There’s a couple of things to unpack it in. You’re saying the first, which I would be remiss in not saying, is he’s a knight and no one seems to care.

Joe Patrice:

I mean, Clarence Thomas is getting tons of money from the aforementioned Harlan Crow and others, and no one cares. More people care,

Kathryn Rubino:

Though no one cares enough to do anything about Clarence Thomas. But people have been talking about it. But I think we are the last people still talking about Sir Samuel,

Chris Williams:

Mr. Sir Samuel, it has a ring to it can’t lie. If you’re going to get an unconstitutional title, get one that slaps. You did a great job there.

Elie Mystal:

So this goes to my existential crisis.

Chris Williams:

Which one?

Elie Mystal:

This particular conversation. Because what I have become over these last 400 episodes, again, if you roll the tape back to 10 years ago and where I am at Above the Law then versus where I am now, the thing that I have been able to do in my career is to be one of those people who highlights how important the Supreme Court is and how it’s actually the nine rulers that are really controlling our lives that a lot of this political back and forth, the congressional back and forth, that doesn’t matter because the Supreme Court has a veto power on everything Congress does and everything the president does. Although with this president, we’ll see if they can enforce that veto. We don’t know, but

Chris Williams:

Or if they’d want to.

Elie Mystal:

And when I say existential crisis, the thing that has been really hitting me since the election is that it doesn’t matter. People don’t care. And it goes to Kathryn’s point about alitos knighthood. You can scream about this, you can talk about this. You can lay it all out for people. You can bring the horse directly to the river of water and they won’t drink. They won’t care. They just don’t. I can’t. And when I say people to be clear, I mean the fucking Democrats, the Republicans care a great deal. That’s why they spend so much time and effort and money shaping, molding, buying the Supreme Court. The Republicans very well understand how important the literal third branch of government is in this country. But I cannot get a critical mass of Democrats to give a shit consistently. One of the things that, so I’ve been working on this piece that’s kind come out in the nation in a couple of weeks just about Trump’s likely replacements for Alito because we all think that Alito is going to retire because he hates Washington DC and he’s a Republican and this helps publican.

Kathryn Rubino:

He wants to move to LBI and just fly all the flags he can.

Elie Mystal:

Exactly. We don’t think Clarence Thomas will retire willingly. We know that he wants to break William Douglas’s record for longest serving justice that puts him in 2028 to break that record. So we think that he’s going to try to hang on at least until 2028, and then the Republicans will try to furiously push him out before the election. We’ll see about Clarence. But so I’ve been writing about the potential replacements for these guys, and I get to the Eileen Cannon section and I just have to remind people that Eileen Cannon was confirmed in the Lane duck after Trump had lost the election 56 to 21, which means that not only did she get democratic votes to confirm her in the lame duck after Trump already lost, most of the Democrats didn’t even fucking show up to oppose I can.

Joe Patrice:

In fairness. In fairness, it wasn’t clear. As opposed to some nominees where there’s a track record and there’s a paper trail of what they think. Eileen Canon showed up as, I’ve been a line prosecutor for a while. There really wasn’t a ton to suggest that it was going to be this crazy,

Elie Mystal:

Which is why, which is why the point is why are you voting for any of them? They’re all bad. Because if you cannot see an Eileen Cannon coming, and to be clear, I did not see Eileen Cannon coming. Nobody saw Eileen Cannon coming. But if somebody that you can’t see coming could end up like her, why do you vote for any of them? I go now to the current cabinet confirmation process. Why are the Democrats voting for any of them? Any of them? Sure, you want to make a big deal because one of them happens to be a fucking drunk and the other one happens to be a fucking reality TV star. And so we’re going to make a big, and I get that, but why are you voting for any of them? Tell Me what Pam Bondi has that makes her acceptable as an attorney General to anybody.

Joe Patrice:

It’s not a dog.

Elie Mystal:

I cannot understand. I said on TV this weekend, I don’t understand why Democrats are in Congress. Is it for the parking? And you understand that you have no power. The American people did not give the Democratics power. I’m not one of these, do something Democrats because I understand the limits of what congressional power is, but stand for something. And so with the courts, to me, if I talked about in the last segment I talked about the intellectual distance that I’ve talked in terms of Harvard versus Howard on this issue, the distance I’ve covered is you can measure it in millimeters because I feel like for 10 years I’ve been ramming my head into the same brick wall that is the Democratic Party and they don’t get it. They just refuse to get it. See now

Joe Patrice:

There he’s using that wokeness of the metric system. You mean sixteenths of an inch, my friend.

Kathryn Rubino:

But I also that there’s a moment where the conservative legal movement has outthought the progressive legal movement because there was a moment where it was almost so obvious that the Supreme Court mattered and it was important and people were starting to motivate around it. And that was Dobbs and it was explicit. It was a scorched earth, alito written, awful, just document. And people did start motivating for a minute. But then we kind of followed that up with Looper Bright, and I think, well, I’m not sure I think this, but there’s certainly an argument that exists that that will be worse for the country than even Dobbs because we no longer have a functional administrative state, which means we potentially don’t have access to all sorts of medicines, abortion pills, cancer pills, just wide variety of things. But that’s the sort of thing that I think is potentially more dangerous. But no one goes out and votes because of Luper Bright. And I think that has devastated the momentum that was building under Dobbs.

Joe Patrice:

One thing, and I said this a long time ago, was there’s a severe branding issue on the other side. Originalism is dumb and a lie. They just make it up as they go along. But you know what sounds really good, originalism, it’s a catchy name. It has some colloquial sense to try and do what the original people say. Original.

Kathryn Rubino:

I get what original means.

Joe Patrice:

Yeah, exactly. There’s no corollary.

Kathryn Rubino:

Like Living Constitutionalist sounds dumb.

Joe Patrice:

Yeah, that was the last time anybody tried to have a name for it and it was dumb. They need to have some sort of a name. I don’t know what it is. I always kind of thought Reconstructionist or something like that or something like that makes some sense. And you can kind of play the, well, the 14th Amendment changed everything. The constitution’s really about what we all thought, whatever it is. But you’ve got to have some kind of branding and

Chris Williams:

They just don’t. I suggest, fuck it as an interpretive doctrine, I think as a hermeneutic tool, fuck, it would help us get out of a lot of the stuff that we’re dealing with.

Joe Patrice:

I guess we had Breyer would say pragmatism, but even that wasn’t really the

Kathryn Rubino:

Part of the problem is too, there’s a lot of intellectual debate between, well, is pragmatism better than living cons? And whereas Republicans sort of just got behind

Elie Mystal:

It,

Kathryn Rubino:

They all mean something slightly different when they say originalist. But does it matter? It still falls under the same heading.

Elie Mystal:

Every time I learn more about how the Democratic party operates, I become more hopeless.

Chris Williams:

We take that

Elie Mystal:

Hopelessness. The closer you get to it, the more you’re just like, oh my God, we are nowhere. Yes, there’s messaging, yes, there’s strategy, but there’s also just focus. And the Democrats refuse to focus on this in the way that Republicans have since Bork, the way that Republicans have for a generation. We don’t. Maybe it’s changing now because Trump is so insane. He won’t focus on maybe will Trump will usher in a new ignorance on the Republican party where they don’t care about the courts as much as they used to level the playing field that way because we’re not catching up to where McConnell lives. Even McConnell, even though he blew screens half the time, is still more adept at this issue than most of the Democratic Party

Joe Patrice:

Or Thune is the case. May be now. Well, okay, So As

Elie Mystal:

So As I said to start, we’re all going to die.

Kathryn Rubino:

See you in 400 more episodes.

Chris Williams:

Take that hopelessness. Buy Bitcoin, become Republican. See,

Joe Patrice:

Now you needed to buy Bitcoin right around episode one of the show, if not earlier. Now I’m not

Elie Mystal:

Sure the United episode one on the show, you be doing very well.

Joe Patrice:

So, alright, thanks everybody for listening.

Elie Mystal:

Where are we all? Wait, wait. Lemme get out of here on this if we have to flee. Where are you guys going?

Chris Williams:

I’m not telling you. Broadcasted, are you in public? What are you? Yes. FBI agent I’m going to, no,

Kathryn Rubino:

I’ll say that. Canada’s proposed refugee rules look very promising, don’t they? And they look very, very promising. Especially with someone who potentially has a very public record of being critical of these institutions as do several European nations digital nomad rules.

Chris Williams:

You know what? God bless you. You know where I’m going. I’m going to China. The stuff there looks great, affordable, and I’m learning some words I can curse in Mandarin. So you’ll see me there.

Joe Patrice:

So thanks everybody for listening. Not just to this episode, but to all of them in this little weird journey that we’ve had since Elliot and I just sat down with a microphone in 2015. You should subscribe to the show so you get new episodes when they come out. You should write reviews, you should do all that sort of thing. You should check out the Jabot Kathryn’s other show. I’m guest on Legal Tech Week Journalist Roundtable. You should be reading Above the Law to read all those stories, so on and so forth. Social media. Well first before I say that, so Elie’s got a book coming out here and do you want to talk about the book?

Elie Mystal:

No, I Literally forgot to promote my book and I was like, we should probably do that.

Joe Patrice:

I had it written down. I keep some degree of order.

Kathryn Rubino:

Oh, are you being professional?

Joe Patrice:

I have some degree of professional order here

Kathryn Rubino:

That is different than 2015.

Chris Williams:

Even if you didn’t write it down, I’m sure he would’ve retorted.

Joe Patrice:

So Elie, obviously he also has the previous book that you should check out, but he’s got a new book coming. Give us a quick plug.

Elie Mystal:

Yeah, so it’s March 25th. It’s called Bad Law 10 Popular Laws Ruining America. I go through a bunch of laws that, not the knucklehead stuff I’m not concerned about in New Jersey. It’s still technically illegal to frown at a police officer, which is true, but I’m not writing a whole book about that. It’s about laws that were passed generally with bipartisan support generally to the thunderous applause of most people, like the Armed Career Criminals Act or the Protect Lawful Commerce and Arms Act laws like that. The Airline Deregulation Act laws that were popular at the time that they were passed and have completely fucked us and could be fixed by just repealing them. I don’t deal with laws that need to be performed or tweaked or whatever. Just laws that could just be whited out of the federal record today and then things would be better tomorrow. So that’s the book.

Joe Patrice:

All right. And you should follow people on social media@abovelaw.com on Blue Sky. I’m Joe Patrice Kathryn’s, Kathryn one. Chris is writes for rent. Elie is Elie N-Y-C. And I think we have some degree of Twitter presence still, but barely. And with all of that said, thanks everybody, and we’ll talk to you later. Peace. Peace. Peace.

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