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Joe Patrice

Joe Patrice is an Editor at Above the Law. For over a decade, he practiced as a litigator at...

Elie Mystal

Elie Mystal is the Managing Editor of Above the Law Redline and the Editor-At-Large of Breaking Media. He’s appeared...

Episode Notes

Joe and Elie review the week that was in the Kavanaugh confirmation fight. Procedural fights! Threatened explusion! Giving false testimony to the Senate! Mysterious Kasowitz connections! After a wild week, will Brett Kavanaugh still have the votes to narrowly get confirmed to the Supreme Court? We’ll just have to wait and find out. But the answer is yes.


Above the Law – Thinking Like a Lawyer

The Kavanaugh Confirmation Hearings



Intro: Welcome to Thinking Like a Lawyer with your hosts, Elie Mystal and Joe Patrice, talking about legal news and pop culture, all while thinking like a lawyer, here on Legal Talk Network.


Joe Patrice: Hello, welcome back to another edition of Thinking Like a Lawyer. I am Joe Patrice. I’m here as always with Elie Mystal, also from Above the Law. How are you?

Elie Mystal: What a goddamn week.

Joe Patrice: It’s been a pretty busy week if you’re a legal person, yeah, which theoretically you are if you’re listening to this or you’ve really found the world’s worst baseball podcast.

Elie Mystal: Yeah I know, it’s been kind of crazy and exciting and as I was just saying, helpfully New York State has decided that this is also the week that school start. So I have had to be to welcome back events for both my three-year-olds, who was starting school for the first time and my soon-to-be six year old, who is starting kindergarten during the confirmation hearings. So that’s been fun.

Joe Patrice: Yeah.

Elie Mystal: He’s not going to remember.

Joe Patrice: Yeah, yeah.

Elie Mystal: Like the kids aren’t going to remember that I was there. It’s the kind of thing and I’ve learned this a lot but parenting is the kind of thing where like your kids are more likely to remember when you weren’t there and beyond the therapists couch in 20 years being like oh daddy, we didn’t go to the right kindergarten, like that could happen.

But the fact that I was just there, doing my fatherly duties of listening to like bad choir singing from six-year-old like that will not make it to his hippocampus. He will forget that I was there by the time I get home tonight.

Joe Patrice: Yeah, somehow you’ve got my head, I think, it was a miss hold Mr. Shoke _______00:01:57 sketch where somebody that there was a — done like an ad for something, person’s like I’m a middle management accountant and my wife also works in this and I grew up with a comfortable life with two professional parents.

And look at where I am, I want more for my kid, so I’ve hired these people to teach me how to neglect and treat them terribly because that’s how greatness is formed. It’s a pretty good one and that’s what I think of when you’re like oh, I’ll just be there and then nothing will matter yeah, that’s it.

Elie Mystal: Yeah exactly.

Joe Patrice: Being a good parent means nothing matters.

Elie Mystal: Yeah.

Joe Patrice: Yeah.

Elie Mystal: In any event, let’s not talk about my kids.

Joe Patrice: So I think we should all talk about the most important legal news of the week.

Elie Mystal: The Penn. _______00:22:41

Joe Patrice: No, which is – which is there’s a tech merger between no – oh you think there’s something else that’s probably more important?

Elie Mystal: I thought that the news that there is apparently everyday silence administrative coup going on in America.

Joe Patrice: Yeah.

Elie Mystal: Was significant.

Joe Patrice: Yeah, Bob Woodward, who I don’t know if you’ve ever heard of him, he used to be a journalist or something, anyway he wrote this fairly important account of what’s going on in the White House and parts of that obviously you’re dealing with bigger issues than is the purview of our humble legal universe.

However, some of it is definitely legal, and we don’t have the whole book yet that comes out next week and we are not on the list of people that Washington Post reporters who are literal legends in the field deem worthy of getting advanced copies. However the bits that have been released do include some insight into how John Dowd, the former Trump lawyer left his employ.

Elie Mystal: Yeah Dowd is the one who said that Trump couldn’t testify or else he would end up in an orange jumpsuit.

Joe Patrice: Yes, Dowd who is a very experienced criminal defense lawyer, apparently according to the book, made representations to both Trump and then ultimately to Mueller that we can’t have him come in because he will perjure himself.

And saying that from the perspective of an advocate for someone, you’re saying the person investigating your client, I’m concerned he’ll perjure himself, that’s not a good look and apparently that happened. Apparently, they ran mock interviews with Trump to show him what an eight hour long deposition would be like and after 20 minutes, he started lying about things he’d already said and it fell apart according to the reporting.

And Dowd just said, I can’t let you do this and that was kind of how he ultimately left that employ, which was I guess not entirely surprising but it is indicative of how he’s burned through these lawyers and is now left with just Rudy and Jay Sekulow.

Elie Mystal: It also I think is indicative of the fact that there are some people that Trump has employed for a period of time that had something close to what I think you and I would call, basic integrity, right, unlike and I’m sure many of you have followed the New York Times Anonymous Op-Ed.


Joe Patrice: Now what are you talking about basic integrity that person’s saving America didn’t you read that?

Elie Mystal: There are people that Trump has employed who are unwilling to sully themselves essentially in the service of Trump. And I think from Woodward’s reporting Dowd gets to be on the side of the ledger of people who at least had some shred of dignity as opposed to a Jay Sekulow or more importantly a Rudy Giuliani.

Joe Patrice: I’m going to go ahead and disagree with that and its basic premise. Dowd left because there was nothing to be done. I mean the words that the Woodward section says is well then I can’t help you Mr. President. Like his concern was never doing the right thing. His concern was, I will lead my client into jail if this path goes and if he’s not willing to listen to that then I can no longer serve as his lawyer.

That’s not a moral claim that’s a professional claim. I can’t work with somebody who’s not going to listen to me. I think that’s all that happened there. I think if Trump was willing to say I’m able to stick to a story, I think he’d still be there.

Elie Mystal: So you think Dowd would have suborned perjury, if Trump could have had the mental steadfastness to actually perjure himself.

Joe Patrice: I don’t necessarily know about suborning perjury because at least the way that this passage reads is that it’s not even lies that Dowd is worried about, its lies completely of Trump’s own creation. There’s an old Norm Macdonald comedy sketch where he talks about in a stand-up that you are to tell one of those lies and you realized immediately afterwards what am I doing –

Like somebody says, do you see that movie with the horse and you go yes, what am I doing here? I had nothing to gain from this lie. I think that’s what Dowd is talking about in this passage. He’s like in 20 minutes of questioning, he starts contradicting himself in saying things for no reason that are clearly a lie based on what he has already said. I think that’s more what Dowd is concerned with.

I mean it’s not like Dowd is a pro bono lawyer for widows and orphans. I mean he’s a criminal defense lawyer. He represents people who commit crimes for a living. He doesn’t care about that aspect. He cares about somebody being able to work with him and develop a good defense and he didn’t think that was happening here.

And as far as the New York Times person, it’s like, oh they have so much integrity because they drew the lines somewhere, that line apparently isn’t putting children in jail indefinitely which we’ve now heard is the new plan or the tax cuts or any of these other things. The line is where they find it to be convenient, which is troubling to me on a lot of levels.

A, it’s a reason I don’t really care about that person’s sudden quasi conscience but it’s also something that where it’s disturbing that there are people who are in control of this government who were not elected in any way, like say what you will about Trump’s way of getting elected at least that happened under the screwy system we have.

We now are at the mercy, if this is to be believed, of a random conglomeration of people no one ever voted for who are pretty sure they got this worked out. That’s terrifying.

Elie Mystal: No, I was not defending anonymous pen. _______00:07:54 I was defending John Dowd as having basic professional ethics. Can we get to –

Joe Patrice: Definitely professional ethics, I’ll agree with that. I just don’t think it goes to him being like morally affronted by things.

Elie Mystal: Can we get to the actual proven perjury that we learned about this week?

Joe Patrice: So yes, so as you’re listening to this, we’ve come to the — we’ve gone through most of for our perspective, the Kavanaugh Hearings, there’s still a little bit more as we’re recording this, so unless something really crazy happens that you won’t — we’ve got a pretty good picture.

Elie Mystal: Always a possibility.

Joe Patrice: Which is always possibility the way things working out. As these hearings went on and we can talk philosophically about why Elie and I disagree about whether or not the hearings were valuable, but I feel like to the extent my stance that you would go through the process of the hearings even if you’re getting screwed and you just kind of loudly use the hearings to show how you’re getting screwed.

I feel like what the Democrats have done with slow-playing and setting up without documents, situations where Kavanaugh makes statements and then they through this process of getting the documents declassified, tag him with them, has proven somewhat effective in this Leahy situation, well Leahy started off by talking about certain instances where Kavanaugh is on emails referring to crimes basically that Kavanaugh in 2006, when he was up to join the DC Circuit claimed he knew nothing about.

We now have emails suggesting he knew all of this stuff and then on top of that, we have not just that but we also have some stuff on William Pryor’s nomination, where he expressly testified under oath in 2006. He had no idea what that was talking about and now we have emails saying that he was involved very deeply in that.

Elie Mystal: I think the Pryor stuff is the biggest thing that we’ve heard from the hearings and I will also say that I think the Pryor stuff is the thing that belatedly I think has major point about the utility of having the hearings in the first place.


Kavanaugh, in 2006, testified in front of Ted Kennedy, who many of you have heard of, that he had no involvement in the confirmation process of William Pryor who is an arch-conservative guy who now sits on the 11th Circuit is always on the Trump short list for Supreme Court vacancies. He’s a hard right conservative. When he was being nominated for the 11th Circuit, Kavanaugh testified in front of Congress, he had no involvement in that hearing. That was a lie. I mean there’s no other way of putting it. That was a complete fabrication by Kavanaugh in Congress in front of Ted Kennedy.

What we have found out through the hearings documents, declassified by Patrick Leahy was that Kavanaugh in fact did know Bill Pryor, in fact did recommend Bill Pryor for the nomination and in fact was in meetings about Bill Pryor’s confirmation process. So his statement to Ted Kennedy is in direct contradiction of documentary evidence that we now have about his involvement in the Pryor hearings. This is textbook perjury one-on-one as the people have been saying on Twitter, this is more than we had him.

Joe Patrice: Yeah, this is a more explicit instance of lying than the Clinton one which is ironic given that Kavanaugh is one of the people who is part of Starr’s team was very much on record that if anybody even approached what Clinton did, it was the worst thing in the world and they should be impeached and thrown into the iron maiden, apparently his views evolved. Yeah, so that happened.

Elie Mystal: So to me – and look, we can talk about ideology. I don’t think anybody listening to this podcast has any illusions about my ideology or yours Joe. We actually, Joe and I fight more about who’s more left than then whose more sense –

Joe Patrice: It’s not really a fight. I am.

Elie Mystal: I clearly am.

Joe Patrice: Yeah, sure you are.

Elie Mystal: So take ideology out of it for a second. Assume, you can assume without questioning that I disagree with Brett Kavanaugh on affirmative action, that I disagree with Brett Kavanaugh on women’s rights and I disagree with Brett Kavanaugh on Second Amendment issues.

Let’s just take that out for a second. I am of the belief and call me naive here, but I am of the belief that there are people on the other side, conservatives that you can find who believe in all the things that Brett Kavanaugh believes and then believe in all the things, disagree with me on all the things that I disagree with Brett Kavanaugh on, who don’t lie in front of Congress.

I do not believe that the Conservative Party has fallen so low that they can’t find one non liar to nominate and support for the Supreme Court.

Joe Patrice: I mean —

Elie Mystal: So how are we just —

Joe Patrice: Yeah, yeah go.

Elie Mystal: So how are we living in a world where the Republican Party with all the controlling need, with the House and the Senate and the presidency, how is it that they literally cannot figure out how to put forward one conservative who doesn’t freaking lie, and how can they not take a stand on lying, on perjury if for no other reason than to save a smidgen of credit that they are more concerned about the integrity of the institutions that they control as opposed to their personal ideology.

Joe Patrice: Okay, there are two things there that I think are pretty simple. One, why do they pick somebody with this kind of troubling background apparently from what we’re noticing, this is why Kavanaugh was not on the original list of approved people for the Supreme Court that the — then the campaign, ultimately the administration had. He was added later than that. This might be a good reason why that was and we hear that McConnell argued vociferously against him because he knew that — theoretically that he knew this was going to become a problem, that doesn’t shock me.

Why would they not try to defend the process whatever, they just held up a Supreme Court seat for a year like they — what in the world makes you think that norms matter to them, and that’s not necessarily a dig on them, it’s almost more of a successfully hacking the system and more power to them.

If they want to operate in a world where institutions don’t matter, authoritarianism does, where just having the most votes or having at least enough votes to stop things all that matters, there’s no reason for them to defend any of these things. They should flout them as much as possible.

Elie Mystal: This goes to one of the points that you’ve been making that I think — I think I do agree with you on, about the fundamental asymmetric nature of the battle between conservatives and liberals, where liberals fundamentally want these institutions to work, and want these institutions to survive, and want these institutions to be respected, these governmental institutions.

And conservatives — I mean if they work, great, but if they burn to the fucking ground, they wouldn’t have a problem with that either.


Joe Patrice: Yeah. I mean —

Elie Mystal: It all helps their goal.

Joe Patrice: I mean to get a little specific into it. I feel as though, if you’re on kind of a liberal progressive agenda, you need government institutions to exist in a check sort of situation because otherwise, take for example, a massive program like a Social Security, right. You pass a social security plan during the depression whatever, you pass this thing in the ebb and flow of elections and whatever. That’s a program that’s not really going to show the true benefits for 20-30 years.

You can’t say in three years, the other side is going to take over and make it all disappear. Like you can’t live in that sort of world if you believe in these sorts of long range progressive policies, which is why those Democrats, progressives sorts people, need government institutions that tend to temper things. Even though, they want to be very revolutionary, they need things to temper so that when the inevitable backlash comes, these programs still have a chance to live and not be smothered by them.

Likewise, the Republicans don’t really care. You can pass a liberal agenda for a couple of years. They’ll get back in power in a few and tear it down, so long as there’s no check on anything. Add in the possibility of a filibuster, which allows them to even as the minority block, large swathes of legislation and they’re golden. They can sit back and like cicadas and only come to power every 10, 12 years and be just fine.

Liberals and progressives don’t have that luxury. And that’s kind of the difference and they have different victory conditions as I’ve been calling it to borrow from the — if you know any hipsters, who play those like board games. I’ve never played any of these.

Elie Mystal: Settlers of Catan.

Joe Patrice: Yeah. I’ve never played these things but I’ve watched them and I thought I have no idea what you people are doing but get out of my house but whatever. I’ve watched these people do this and yeah different players, there’s no like you get to the end of Candy Land, it’s more I know that to win. I got to do this thing but nobody else knows that this is how I win and that’s kind of what goes on here.

The two sides have different victory conditions and that leads to problems because Democrats act like everyone has to respect the process. It’s like well, they don’t.

Elie Mystal: Which brings us to impeachment, right. So if Kavanaugh’s perjury isn’t enough to stop his confirmation, which I believe it should, but I also agree with you Joe that why would I believe the Republicans would gross by now, go unethical, right now.

Joe Patrice: Sure.

Elie Mystal: The next question becomes impeachment because again the man perjured himself in front of Congress in 2006.

Now, impeachment for a federal judge works exactly like impeachment works for you at the United States Senator, which works exactly like impeachment works for the President of United States. Article 2, Section 4 of the Constitution has the impeachment power laid out. It requires a majority vote in the house to bring the impeachment charges, then the trial is held in the Senate, you need a super majority in the senate that’s two-thirds to convict.

In our history, two Presidents, who we all know Bill Clinton and Andrew Johnson have been impeached, one senator has been impeached and 15 federal judges have been impeached. Only the judges have ever actually been convicted, eight of the 15 federal judges were convicted and thrown out of office. The most recent one in –

Joe Patrice: I don’t remember, relatively recently.

Elie Mystal: No the most recent judge.

Joe Patrice: Oh of the Supreme Court or –

Elie Mystal: The most recent judge to be kicked out of office. 1805.

Joe Patrice: No, no, no. Most recent judge to be removed I think that’s – that’s actually not that long ago. I think it was a Fifth Circuit guy. I can’t remember but the last, the last Supreme Court justice to go through this process was Samuel Chase in the 1800s and he — in 1805, and he was acquitted even. He was impeached but like not even enough to remove him.

Elie Mystal: So obviously, this is not a process that is used often or particularly effectively. However, if the Republicans are going to confirm a judge who has perjured himself, one of the things that they will have done is given the Democratic party grounds to call for the impeachment of Kavanaugh literally every single day of the rest of his natural life.

So we could do that or as we pointed out on Above the Law, I guess the last week by the time you were reading this, Kavanaugh is a federal official now. He is a judge on the D.C. Circuit Court of Appeals. He is subject to all of the same impeachment rules as any federal judge would be, while he’s on the D.C. Circuit, I believe that we should start impeachment proceedings against Kavanaugh now to get him kicked off of the D.C. Circuit because of his perjury in front of Congress in 2006.

Joe Patrice: Yes. So the — doing it now obviously the house is controlled by Republicans. So it would not pass now, but yes I think that’s the sort of thing that would as a symbolic move be useful, introduce those articles based on this force that news cycle to discuss this.

Yeah for the record, the last federal judge removed by impeachment was 2010 and I said Fifth Circuit but was a District Judge in the Fifth Circuit, so.


Elie Mystal: Yeah.

Joe Patrice: Yeah G. Thomas Porteous, Jr. was removed for receiving gifts from attorneys.

Elie Mystal: Whoo.

Joe Patrice: Yeah.

Elie Mystal: I should update my post.

Joe Patrice: Yeah. So that — that’s I mean yeah. I think that that would be a useful endeavor to like created from a public relations perspective, but ultimately no, this is not the sort of thing that this particular conglomeration of people are going to remove someone from office over.

Elie Mystal: So fast forward 18 months, assuming no death, who is on the Supreme Court?

Joe Patrice: Probably Brett Kavanaugh with one possible exception, which is the thing I’d like to talk about which is Kamala Harris asked some questions about Marc Kasowitz’s firm which were weird.

So Kamala Harris late at night by D.C.’s time, it was like 9:30 or whatever, approaches Kavanaugh and starts asking if he’s ever talked about the Mueller investigation with the –

Elie Mystal: In the hearing room, not like the —

Joe Patrice: Yeah, yeah, yeah, right, yeah. Ever talked about the Mueller investigation with anyone from Marc Kasowitz’s firm, which you may remember was — he was one of the lawyers who represented Trump early on in the Mueller discussions.

This confused Kavanaugh who said that he didn’t know of that, and there’s a lot of people saying that —

Elie Mystal: Well to be —

Joe Patrice: Yeah.

Elie Mystal: Kavanaugh tried very hard not to answer the question.

Joe Patrice: Yeah, he is like —

Elie Mystal: Well where are you going with that, she was like answer the question.

Joe Patrice: Yeah.

Elie Mystal: He was like, I don’t know who you could be talking about.

Joe Patrice: And she and she was like I think you know and don’t want me to say who we’re talking about. There’s a lot of talk like that’s weird why wouldn’t she have confronted him with this, with specifics. There’s a discussion of Marc Kasowitz has now made a statement saying he’s not talked to anyone in my firm about the Mueller investigation, which is weirdly specific for a denial there.

My initial take which I made within seconds of hearing this exchange, which is a little unorthodox. A lot of other people are going off on what was he talking about the investigation with. My initial take was, I don’t think this was about the investigation, I think this was more to as I put it nice little nomination you got here, shame if something that happened to it.

This was her saying that she knows that he knows — that she knows that Kavanaugh knows somebody at Kasowitz. And the Mueller thing was just kind of like a clever general question to get to the specific point. I think this is about, he talks to somebody at Kasowitz for all manner of potentially bad or tawdry reasons and I don’t know what those are. But they could be anything from you have bad business deals with somebody or you have some history with a paid off some clerk who did something or whatever it is, there’s something that she thinks she has with his relationship with somebody at Marc’s firm.

Elie Mystal: Kamala Harris is a former prosecutor and as most lawyers know, prosecutors do not ask things in open court for no reason.

Joe Patrice: Yeah. She has something.

Elie Mystal: It might not be a great reason, it might not be the seeking of the nomination reason, I don’t know the reason but there’s a reason. She knows something that she is not telling us and I think more importantly, she knows something that she was I think last night or for her first round of questionings trying to trap Kavanaugh into a story on with evidence to be coming later. What that is, I have no idea.

Joe Patrice: Yeah, it certainly introduced an interesting angle to this which is whether or not someone from Kasowitz is going to show up as a surprise witness in a few minutes but —

Elie Mystal: I come back to my thing. Given all the problems Kavanaugh has, I mean Joe, you were exactly right to point out and other people pointed out as well, there’s a reason why Kavanaugh wasn’t on McConnell’s list.

Joe Patrice: Yeah.

Elie Mystal: Mitch McConnell, much as I hate him, and I hate him. I, I hate him, that’s the right word. Much as I hate him, Mitch McConnell is not stupid about this. This is the one thing Mitch McConnell knows how to do. He knows how to pack the court and so when Mitch McConnell is trying to tell these Trumpters and we know that this nomination Kavanaugh was mainly pushed through by Don McGahn.

When he’s trying to who seems to be a bumbling idiot. So when —

Joe Patrice: And he is also leaving, right. That’s another thing. The White House Counsel is being forced out of office in a couple of days and somehow that’s not a story we’re talking a ton about because of everything else that’s happened in law.

Elie Mystal: So if I have to choose between who is better at knowing what kind of Republicans can get confirmed as between Don McGahn and Mitch McConnell, I’m going to be forced to agree with Mitch McConnell every day of the week. And Mitch McConnell did not want Kavanaugh to be the nominee. He foresaw problem. Perhaps these exact problems, perhaps problems that haven’t even come up yet.

Joe Patrice: Yeah.

Elie Mystal: Given that, I don’t understand why the Republicans couldn’t just find somebody else.

Joe Patrice: I mean from —

Elie Mystal: It’s hubris.

Joe Patrice: From all accounts, he was pushing Thapar who would have had almost no paper trail.

Elie Mystal: Yeah.


Joe Patrice: Which would have been kind of the point, but here we are and yeah, it’s going to an interesting few days. We will see where things go obviously the –

Elie Mystal: McConnell is talking about holding a vote as early as October 1, I believe.

Joe Patrice: Yeah. So I mean that gives us some time to let these things kind of mature. We’re very laser focused on these hearings right now, but ultimately, these have to get processed, go through the floor debate and then the full senate. So there’s time for momentum to be created.

Look, there are two ways to look at, from my perspective, to look at a hearing process like this. One is you’re trying to convince somebody of something. In that instance, you’re trying to convince Murkowski and Collins that Kavanaugh is anti pro-choice candidate and will therefore be a problem for them, electorally. That’s one thing you can be doing with this.

Another thing that you can be doing with hearings is generating a record that you can utilize for a bunch of other purposes. You can utilize sound clips of you getting him to admit something about labor rights that you can then go to unions for whatever, there are a bunch of ways in which hearings have value, even if they don’t necessarily torpedo the candidate and I think they’re doing a good job with this.

Elie Mystal: But I — and I think there’s a third way and this kind of gets to the heart of our disagreement earlier this week. The third thing that you can do with these hearings, that you could have done with these hearings was to use them to inspire your base to come out and vote and come out and take the Supreme Court seriously.

One thing that is clear about American politics is that the Republican base votes on the Supreme Court and pretty much as there’s a large part of it that are single issue voters on the Supreme Court and the Democratic base does not answer the bell on these issues. We lost the Kavanaugh confirmation or the Gorsuch confirmation not in 2016, we lost it in 2014 when Democratic voters couldn’t get their butts to the polls during those midterms.

We have to make it obvious to Democratic base voters that the Supreme Court is something worth fighting for and to me, one possible way of doing that would have been to make the hearings look like this is something the Democrats were willing to fight for, this is something the Democrats are willing to go to the mattresses for, this is something the Democrats are willing to go to jail for, and we did not see that during these hearings.

Joe Patrice: I mean no one was going to go to jail, all that would have happened is they would have not shown up and seated the entire media cycle to well, then he’s the next nominee.

Elie Mystal: Or I don’t know over a hundred people, over a hundred people have managed to get thrown out of these hearings.

Joe Patrice: Yes, because the hearings happened. Your stance was to have the Democratic senators just call them off which means you never would have had these people being arrested in the stands, you never would have had people in front of the Capitol talking. There wouldn’t have been an event for those protestors to be at.

If you wanted that protest to happen, you needed the Democrats to stand up there and do their gamely duty to create the situation, to ask the questions that led to people standing up and protesting.

If Republicans, even if they continued with the hearings without Democrats which they probably wouldn’t have even needed to, they would have asked a series of softball questions about whatever and you wouldn’t have had those moments where a question comes about Roe v. Wade and somebody stands up and starts screaming about Roe.

That sort of thing is all set up as part of this process and that’s why, it was ultimately valuable for that. I just don’t see a translation and as to your point about caring about the court, I wrote a piece on this a couple years ago but that’s — that speaks to one of the kind of less big misunderstandings of the right. The right doesn’t aren’t single-issue voters about the court. What the right has done is taken single-issue voters about something else and informed them that the court is have to get –

Elie Mystal: Yes.

Joe Patrice: They are not single issue — they don’t care about the court.

Elie Mystal: Right.

Joe Patrice: They think guns or abortion or whatever is the biggest issue in the universe and they are told and educated constantly that’s why you have to care about this.

Elie Mystal: Right.

Joe Patrice: That is not a thing —

Elie Mystal: And that’s why we don’t go.

Joe Patrice: Right, because that’s just not like with the possible exception of a choice, the connections aren’t made very often. Very rarely does democratic literature make that moment where it’s like do you believe in affirmative action, do you believe in voting rights? Well, those things are here. It’s always a legislative solution is how it’s framed and that’s been the issue.

Elie Mystal: That’s been the weakness.

Joe Patrice: Yeah. I just wanted to quibble with the idea like it’s important to make the Supreme Court Center, yeah.

Elie Mystal: I agree. I agree with the trail of how Republicans have gotten there, I’m just saying the Democrats haven’t, and I think staging some protests might have helped. I think staging some sit-ins might have helped. I think having Dianne Feinstein carried out of the Senate Hall in handcuffs as she screamed about abortion rights might have helped.

Joe Patrice: They wouldn’t have — that’s not how it would have happened, like that’s the thing. They would have either stood up and just left, and then nothing happens or they would have kept interrupting and then the —


Elie Mystal: That’s what they did for the first hour and then stopped.

Joe Patrice: Right, well, and then it would have just ended the other way with okay well, if they’re not going to keep order, the hearings are just off and then that would have been the end. But that’s the thing, there’s no end game to this idea of just leaving that works out well.

And you’re not alone in this, like I know, and then, again, he’s talked about this on her podcast too that there’s this kind of logical leap to if Democrats just didn’t participate in it then that would inspire people. And I’m like, I don’t see why that would — what that would be based upon.

The sort of people who would get inspired by that sort of thing are pretty much already on board. I don’t know who these people are who are the middling folks who care but aren’t sure whether they’re going to come out, who would say, show surrender on this nominee and we are happy.

Elie Mystal: They’re the folks who aren’t listening to this podcast and the folks who aren’t — didn’t watch a minute of the confirmation hearings and wouldn’t watch a minute in the confirmation hearings, unless there was blood on the floor.

Joe Patrice: Right, well as with all of these things and the good ones get this. No one expects people to watch eight hours of confirmation hearings, this is all about create — it’s about building Sports Center, the game is useless, it’s the 30 seconds of highlights it creates. That’s all they’re there for.

Elie Mystal: I think this is a more interesting disagreement earlier this week.

Joe Patrice: Before I was proven right and all these interesting things happen at the hearing.

Elie Mystal: Before Booker and Leahy and Harris put together a pretty good highlight reel.

Joe Patrice: Yeah, I mean, yeah it’s okay you can — you can go ahead and give me the applause that I deserved the other day, that’s fine. All right, cool. We should get back to hearings, it’s a last and completely boring set of witnesses who actually produce anything.

So with that said, thanks for listening. Please be subscribed, give reviews, write reviews, tell people on the street follow — well, read Above the Law, follow @JosephPatrice, follow @ElieNYC on Twitter in both those instances. Listen to the rest of the Legal Talk Network podcasts and yeah, that’s everything we have got.

So until next time, we’ll get back to trying to cover this stuff for you.

Elie Mystal: He is out.

Joe Patrice: Bye.

Outro: If you would like more information about what you heard today, please visit You can also find us at,, iTunes, RSS, Twitter, and Facebook.

The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders, and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.


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Episode Details
Published: September 11, 2018
Podcast: Thinking Like a Lawyer - Above the Law
Category: Legal News
Thinking Like a Lawyer - Above the Law
Thinking Like a Lawyer - Above the Law

Above the Law's Elie Mystal and Joe Patrice examine everyday topics through the prism of a legal framework.

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