People like to talk about Merrick Garland’s stolen seat and Keggy McAssaulterton’s dubious ascent to the Supreme Court, but people are largely sleeping on the lower courts that have been systematically restocked with FedSoc Pizza Managers. Elie, working on a big upcoming piece on this subject in The Nation, shares some of his thoughts on the state of the judicial system.
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Above the Law – Thinking Like a Lawyer
All Those Lower Courts You’ve Been Sleeping On
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 from Above the Law. I have with me, Elie Mystal, also from Above the Law. How are you?
Elie Mystal: I am dumb, turns out.
Joe Patrice: No.
Elie Mystal: I bought a fancy new mic so I could podcast from home and I bought a fancy new mic stand, so I could actually have it on my desk or I could stand up like I’m doing a rock concert, and I forgot to get the interface that hooks the microphone up to my actual computer.
Joe Patrice: Ooh. So you — wait, to stand up, you were considering podcasting standing, that’s taking that whole new standing desk trend to a new level.
Elie Mystal: It gets my baritone more engaged. When I podcast I was going to do it, so I wanted the option of doing it standing, but I did not leave myself the option of doing it on my computer, which — so I’m coming to you via my webcam, which is not great.
Joe Patrice: All right, so that’s why it sounds like you’re in the bottom of a well or something like that?
Elie Mystal: Yes exactly.
Joe Patrice: Okay, well — okay, so nobody alert anyone to go save baby Ellie.
Elie Mystal: I sound like this because I am dumb, this is my punishment.
Joe Patrice: Okay. Well —
Elie Mystal: But that’s not what I’m pissed off about today, Joe.
Joe Patrice: Oh, well — okay. I mean I don’t know, how you could be angry because we’ve just come out of a holiday weekend, I don’t know why you would be angry, but here we go.
Elie Mystal: Well, because coming out of a holiday weekend, one of the things you learn when you have kids is that they want to go outside and play in various water sports during the hot summer days, and that’s fine. We live in the suburbs, we’re fully water sports-capable. We’ve got the sprinklers, we’ve got the slip and slide and we have the kiddie pool. This is the fifth summer that I spent in the suburbs, and it is the fifth time that I have tried to find some implements that would simply heat my kids’ kiddie pool so that the water isn’t freezing when they get into it. I’ve tried Solar Lily Pads, I’ve tried covers, I’ve tried everything that I can think of and still regardless of what I try when I go outside and dip my foot in the kiddie pool, it is freezing hose water.
And my kids are going to do it because they’re kids and whatever, but after like 10 minutes they’re looking like they’re about to die of hypothermia.
Joe Patrice: What color is your hose?
Elie Mystal: Green.
Joe Patrice: Interesting. I will say that there’s some if you were to get like a long black hose and curl it up and leave it in the Sun such that the water is flowing —
Elie Mystal: I know what you are talking about.
Joe Patrice: Yeah, I think that helps.
Elie Mystal: That’s the only thing that’s helped, is I string my green hose like down the length of my driveway, turn it on and then turn it off and the water that is left in the hose sometimes comes out relatively more. That’s it and that’s fine, but like that’s not enough, that’s not enough to actually fill the pool, right? And it just seems to me that we’re living in the 21st Century, there should be some way, some by the way non-carbon footprint leaving way to warm the goddamn pool.
Joe Patrice: Yeah.
Elie Mystal: But there’s not.
Joe Patrice: I mean this — this seems like the real — the real crisis that the combined might of all of us dealing with climate change should focus on is kiddie pool.
Elie Mystal: Jay Inslee needs to get his ass on that.
Joe Patrice: Yeah, well, maybe he will — maybe he will heed that call.
Elie Mystal: Because he ain’t going to be president.
Joe Patrice: Well, no, I was just saying, he could heed that call, but there is also the possibility that he might have missed the call. No, we’re not going here. Which brings us as always to our ad read.
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Elie Mystal: Bow!
Joe Patrice: Yeah, that was seamless there.
So, all right! So, well, one thing we would like to discuss, you are — you have a piece that’s yeah, may not be out quite yet but is about to come out a long piece about the court system in the nation. So I wanted to talk to you about the court system, this time it’s almost as though you’re the guest rather than the host of the show, because you’re the one with the big piece.
But we’ll talk just generally, not necessarily, specifically about your piece but generally about what’s going on.
Elie Mystal: Yeah, so I do have a long-form piece coming out in the nation. Hopefully you can check it out after you listen to this podcast and it’s about Trump’s overall effect on the courts, not the Supreme Court, everybody writes about the Supreme Court, everybody knows Neil Gorsuch or Merrick Garland, everybody knows there’s an alleged attempted rapist on the court that the Republicans are very proud of, everybody is waiting, getting updates from Ruth Bader Ginsburg’s Fitbit, hoping that she defies mortality a little bit longer.
The real effect of Trump Mitch McConnell’s and generally the federal society’s impact through the Trump administration has not just been on Supreme Court, it’s been on all of the lower courts. I’m talking about the circuit courts, I’m talking about district courts, this spring the Trump administration crossed the 100 nominee threshold. They’ve confirmed over a hundred lower court judges to the bench that is a record pace for two years into a presidential administration, of those 100, 38 had been confirmed on the circuit courts which again is a record pace by comparison at the same time Barack Obama had only confirmed 19 judges, and it’s a huge problem that’s going to be with us for the rest of our life.
So slightly Trump is pushing judges forward, they are arch-conservative judges, and God forbid if he gets another term, he is going to be able to completely flip, not just some circuit, I mean, he’s already flipped the Third Circuit, but if he gets a second term he’s most likely going to be able to flip circuits like the Eleventh, the Fourth, potentially the Ninth to say nothing of the fact of the way that he is deepening and more reddening circuits that are already conservatives like the Fifth Circuit or the Tenth Circuit.
Joe Patrice: Well, a question on that. No, I haven’t looked at the numbers but is that — is that actually true, I mean, a lot of why this paste has been so blistering, is that it’s not really reflective of what one can do in two years, it’s what one can do when a backlog of vacancies exist, because there had been a backlog created when a bunch of vacancies under the Obama administration had never been filled.
So, while that’s allowed them to kind of do basically double duty for these first couple of years, if another term were to happen are there that number of people that are poised to leave the bench that would actually allow that or is this at some point here we’re about to hit that drop-off where they are not dealing with vacancies from six years ago anymore and they’re once again back to just the natural order of the Grim Reaper’s reach upon people?
Elie Mystal: Right, and you are right to pointing out that the reason for this pace has been that McConnell held so many seats open during the Obama administration.
Again, everybody remembers Merrick Garland, but Merrick Garland was mainly the capstone, was merely the capstone of a long-term plan that McConnell put in place to thwart Democratic appointees throughout the Obama administration.
Some people remember that we used to have a filibuster not just for Supreme Court nominees but also for District Court nominees, for lower court nominees, and the reason why Harry Reid got rid of the filibuster for a lower court nominees is that even as Minority Leader McConnell was blocking Obama appointments simply because they were Obama appointments, there was no other — there was no deeper reason about their qualification, he was just blocking them because they were Obama appointments and so Reid changed the filibuster but a little bit late in the game, the Democrats weren’t even with the change in the filibuster Democrats didn’t exactly have a hundred people that they were just ready to go out nominate and so that when McConnell took back over the Senate in 2014, he then went back to blocking all of these lower court appointees.
So, Joe, you’re absolutely right that part of the reason for the record pace has been that there are so many positions to fill, and you are right that the pace of nominees should slow down at some point — confirmations should slow down at some point, but we’re just talking about two years, so now with this kind of two-year head start if Trump has six more years to put conservatives on the bench, there are other circuits that he could flip and I think again especially the fourth is looking — could go, right?
That’s the next one we’re worried about. He’s already flipped the third and then there’s the issue with the circuits that are already conservative, making them just more-and-more conservative.
Trust me replacing — and this is really what the piece is about. Replacing a Reagan judge with a Trump judge is like replacing your poodle with a pitbull.
Joe Patrice: Yeah, and that’s why I’m contesting some of the rhetoric of this article and your logic is. I’ve always been queasy about phrases like flipping courts and all, because I think that fits into a kind of cynical and long term destructive view of courts as political creatures as opposed to judicial ones and as much.
In a lot of ways I’m one of those people who believes in the language that John Robert says but not how John Roberts actually acts, that we should have some kind of grounding in the actual law and not be ideology machines but what you hit on and why I don’t necessarily like the flipping language but what I did like is the way in which he phrased it at the end.
There was a day when jurists from different — they are nominated by different parties, didn’t necessarily mean a major ideological shift. There are Reagan judges who were altogether reasonable on all kinds of questions and it wasn’t a game about just finding somebody who said what you like.
Judge Posner is a Reagan judge, was a Reagan judge — that’s a person who was right-of-center but incredibly bound by what reading of precedent and law actually means. By contrast John Bush, for instance, a Sixth Circuit Judge that has been put up in this administration is just a guy who wrote an anti-gay blog, and therefore gets to be a Sixth Circuit Judge.
So I just wanted to be like the whole like flipping language, while not good, I think it is very important to remember that this isn’t normal as far as how previous partisan administrations approached a lot of these jobs.
Elie Mystal: We can talk a lot about Roberts and his judicial philosophy and whether that makes him a Republican judge, a conservative judge or merely a judge. I obviously think that his policies and his jurisprudence show him to be more of a Republican judge than anything else, his rule is basically that Republicans get to win elections. I mean, that’s what he’s trying to accomplish on the Supreme Court.
As you start to look down on through the lower courts, what you find is that the people who make it to the Supreme Court, the John Robertses, the Neil Gorsuches have refined their partisan hackery to such a point where it is elegant, it is defensible almost. I can easily spend the rest of my life arguing against Neil Gorsuch opinions, but it’s hard to argue that he doesn’t have an intellectual core when it comes to his decision-making, that core is rotten, but it’s there, it’s real and you can almost respect him for his intellectual consistency.
The kinds of judges Trump is looking for don’t have that. They don’t have an intellectual core other than Republicans winning and that is most elegantly, I guess if you would, expressed by Brett Kavanaugh whose entire career was based in the partisan hackery game, his entire career was based in partisan Republican politics and now as he’s on the Supreme Court all we have seen from him really Ian Millhiser actually has a really good piece that came out a couple of weeks ago when you’re listening to this, just looking back on Kavanaugh’s first year on the court. All we can expect from Kavanaugh is Republican Party politics put in through the language of law.
Joe Patrice: Yeah, and I think there’s a few things there. Perhaps, let’s dig into that. So, Gorsuch, this term managed to join in some dissents, with some very liberal leaning dissents with I believe he cited with Sotomayor on a case it like a 72 where his position was much more from a libertarian bent but he managed to agree with them. It struck me as though like you said that there’s a philosophy there as opposed to a partisan world.
It’s interesting you suggest that there’s a view towards finding partisan folks. I wonder, do you think it’s — that they are just looking for one type or that they have basically two categories of folks that they are willing to draw from and that while Gorsuch may represent one kind that they like they have another that is — and I think that I would put maybe at John Bush in that category not a libertarian but a true believer in a philosophy that tends to align with them versus the people who just are stone cold. I just vote for what I have on my voter card. Do you think that the federalist society is making those distinctions or happy with both kinds of those judges?
Elie Mystal: I think there is a distinction although I think — look, it’s hard to say because the federal society has stopped inviting me to their meetings, and so we — it’s always hard to know who’s pushing for what, where, why and how. But in broad strokes I think you are right to say that the federal society wants two kinds of judges, one are the people who are hardcore originalists, hardcore textualists, who really as I think you’ve actually said, Joe, that this is the danger of second wave originalism.
Antonin Scalia at least understood that originalism was a means to an end. Neil Gorsuch and those types they actually believed this s*** and they are at some level even more dangerous than the Scalias of the past because they think this is actually a legitimate way to think about the law.
So the federal society is definitely like some of those judges, but they will also support judges who get to the right result, that result being the Republican result by any means necessary. So they will support sure the Neil Gorsuches of the world but they’ll also support people who are straight-up judicial activists like John Willett who wants to go back to a Lochner era approach of aggressively overturning acts of Congress just because he thinks that Congress reached the wrong political result.
So the Federals are willing to play both sides of this, where you really get to see a difference is that Mitch McConnell is kind of only on one side, like anybody that gets the right result is good for McConnell. He doesn’t care if you get to the right result through racism, or bigotry, or homophobia or originalism whatever as long as you get to upholding Mitch McConnell’s agenda but he is a fan of yours.
The other thing that we have to talk about and it’s hard to talk about it because you’ll see why. There is the federal society and then there’s the Uber Catholic wing of the federal society and the Uber Catholics are unified and they end up being the ones who kind of promote and push to me the most radical and partisan of the judges who are willing to impose their own religious faith upon the rest of us. It is not an accident that six of the judges if you count Neil Gorsuch he was raised Catholic, are Catholic, that doesn’t happen by happenstance in a country that’s majority Protestant.
It’s not an accident that Brett Kavanaugh got Kennedy’s job and it’s not an accident that the Conservatives have rallied around the flag of Amy Coney Barrett who is part of a Catholic cult-like organization called People of Promise where they pledged lifelong owe this to Jesus and crap like that.
It’s not an accident that she is the one that the Conservatives want to replace Ruth Bader Ginsburg and finally do the hard work of overturning a woman’s right to choose. So there are of all these kind of reasons why the Federalists and Mitch McConnell end up promoting certain judges and only one reason is the intellectual heft of originalism and textualism if you believe in that.
Joe Patrice: This is the point where we point out that you actually are Catholic so that the very know-nothing party sounding of that was not really reflective.
Elie Mystal: I wasn’t trying to be 1940 anti religious. I am —
Joe Patrice: I know.
Elie Mystal: My christening name is Michael.
Joe Patrice: Yeah, it was not far from the Papists in the New World Order sending black helicopters, but I mean I got where you were trying to go.
Elie Mystal: Don’t Dianne Feinstein I mean.
Joe Patrice: All right, fair enough. So back to all of this, so you’ve got this change, this kind of philosophical change and you did raise a point that you attributed to me which it’s fair because I have said it before that there’s a second wave issue that certain ideologies are ideologies of convenience, they’re written out, they usually end up getting somebody a book deal, and then they move on knowing that it’s a fig leaf and then another generation comes along who really believes it.
And that that new generation is where things get out of control, and I think there is something to be said for that, and it’s where you see both extremes on one side and also the occasional break where you see a Gorsuch flip to the other side because taking the argument to its literal conclusion that may not have been intended by the people who came up with it.
Elie Mystal: Gorsuch is able to get to kind of — Gorsuch is your classic example of a guy, who’s able to get to the right conclusion for the wrong reasons and everybody wants to laud him as some kind of intellectual stalwart who will sacrifice nothing for his judicial philosophy.
And people seem to think that that’s a positive thing about him, when actually it is that intellectual stubbornness that leads him to horrible outcomes, more often than not, even though it sometimes leads him to relatively harmless the sense.
Joe Patrice: So I want to go back to something earlier because it’s been an issue, it’s obviously deeply involved in what you’re writing about and it’s something that I’ve had arguments with you and others before, so I want to kind of unpack it a little bit.
The filibuster which you point out is the instrument that both in its existence and its disappearance are largely responsible for these vacancies being held open and basically turning this two-year stretch into in effect a five-year stretch of nominations.
The filibuster — should we have a filibuster at this point in the Senate? And if not, is there some reform, should it not exist, what’s your take on how this device should function if at all?
Elie Mystal: The filibuster is a thing that is great for democracy if both sides are going to respect it. But once we see that both sides are not going to respect it, then your side respecting it when the other side doesn’t, is just f***ing stupid.
Joe Patrice: Well, I mean, obviously it’s the Democrats who ultimately got rid of it, so they’re the ones who got rid of it first and that’s what opened the door to where we are now. I mean, I’ve always kind of said that the purpose of the filibuster is because it’s an anti-democratic, but it’s anti-democratic to correct the anti-democratic nature of the Senate.
The Senate is a body that would allow theoretically 40% of the voters to have a 51 vote majority and so therefore there is this device that allows the people who are maybe — may represent more voters to slow down the Senate even if they aren’t in charge.
I’ve always felt that the problem was we had a situation where the filibuster had changed from perhaps if you’re old enough Mr. Smith goes to Washington style, somebody has to stand up and grind everything to a halt, and it’s something that in the age of media can be very powerful.
We saw what happened in Texas a few years ago when there was a filibuster over abortion rights that became a huge story and people were able to — voters were able to have a way in of how they felt one way or the other.
We, in the US Senate, had changed that and reformed it such that filibusters didn’t require anyone to give speeches for hours and hours. It just required someone to say I choose to not let that go and that would be enough to kill it. I always was of the opinion that that should have changed and we should have forced people to get up and give their speeches and that would have the functional impact of slowing down its invocation. Instead, we just got rid of it and —
Elie Mystal: I totally agree. I think that but I — because I agree, I go the other way with you, like I totally agree that at the point where the filibuster stopped being a fame that you had to stand up and talk about, that you had to stand up and defend, that you had to stand up and get the rest of your 40 friends to defend with you, that when it ceased becoming a tool of protest and when it became merely a procedural hang-up; to me, that’s when it really should have died, because that makes it as you’re kind of saying, it just makes it now too easy for the minority party in the Senate to stop the entire operation of federal government.
The filibuster was never supposed to be used in that way, it was supposed to be used when the minority in the Senate had a serious objection that they were willing to go to the mattresses to defend, like at that point, we should all take a step back, we should all stop, we should all consider what we’re doing to our country if we have to drag along the minority kicking and screaming, that’s a legitimate time to stop, pause, and think of a way to compromise.
Joe Patrice: I disagree with that at take on it, this is also goes to the alternative is we get rid of it, and now we have what we now have which is a minority of voters reflected by the Senate seats dominating everything. But when you say like that it should be a sign of compromise, I actually don’t necessarily think that’s true.
I thought one of the more powerful things about filibusters is for every Mr. Smith goes to Washington story there’s a Strom Thurmond talking for hours on end about keeping segregation and that was also important because you allow them to make a spectacle of themselves, and that has value too.
Like bad ideas being put in a spotlight has value too, and I thought that in this instance, hearing hours and hours about why Merrick Garland shouldn’t be and I guess that was after the majority but insert some other good judge who was dinged in the past.
Elie Mystal: Goodwin Liu.
Joe Patrice: Yeah, there you go. Hours and hours of why we can’t have this person would produce lots of good footage of, well, but they don’t really have any good arguments, like that’s the sort of thing that can really turn a narrative and make it be, this isn’t about compromise, this is about people just throwing temper tantrums.
And that’s valuable too and that was all stuff that I felt like a speaking filibuster could allow you to have both the pros and the cons — if people are forced to defend these things, it loses some luster and/or if they are really important things that deserve a good case then give them that spotlight to make that case and maybe sway people that way, but —
Elie Mystal: But now that it’s gone, what do you do, Joe? Now, that it’s gone now that we don’t have a speaking filibuster what do you do? Are you — you’re kind of in a binary situation, do you get rid of it or do you think that we still need to have it as a procedural check?
Joe Patrice: No, I am not in a binary situation. I legitimately believe that the next Senate’s rules should not go ahead and have this nuclear option and no filibuster. It should be, well, we’re going to use that power to pass a new rule by 51 votes that the filibuster exists and it must be accompanied by speeches and then you sell it to everybody as this is just the fair way to do it, and move forward like that.
And yes, people will attempt to screw around with it, but I think that’s a better precedent and one that kind of I’ve said an argument that you and I’ve had in the past throughout our writing and so on that I think symbolizes a lot of the issues as far as how we view some similar issues slight from different angles is I’m a big believer in if something’s broken, you don’t say, well now, we’re going the other way on it or we’re going to go further on it like that I always am.
So long as you’re playing the two sides of a coin game, they’ll find a way to win. You have to take it outside of that game, you have to change the rules completely, if they stuff the courts and you say, well, we should stuff the courts more, all you’re doing is setting up them stuffing the courts even more.
But if you then say, well, they stuff the courts’ term limits, or do something like that that just changes the entire battleground, that’s about the only way you can actually get any real change and that’s why I’m like no filibuster or go back to what we had, no, I think we — the new rule is you create a filibuster that is not what we had.
And it’s only through those kind of change the battlefield that you’re ever going to be successful with this particular group of folks, and by that I mostly mean McConnell.
Elie Mystal: I hear what you are saying I’m on Team Burn It Down.
Joe Patrice: Yeah, I mean, I fear like the burning down is just a situation where you spread the gas everywhere and then some election happens and then you hand him a match, like that’s basically how the filibuster thing worked in the first place.
You know what, I didn’t want to get rid of it but I’m going to get rid of it to get a few of these judges in and I think it should have been the first alert to it, was when Harry Reid did that and McConnell’s response was not to go on TV and denounce it but to go, well, okay.
Elie Mystal: No, I think the problem — and then this is a democratic problem. I think the problem is that sometimes we do spread gasoline around but we don’t have the stones to like the f***ing match, and I think that coming out of the Trump era, what I want to see is more match lighting.
The gas has been spread, the other side we know how they’re going to play and it’s time for the Democrats to start fighting this fire with fire. They want to pack the courts. Well, I’ll pack the courts — I’ll pack the courts with ten f***ing people, they want to come over the top and go to 20, when they have the next chance then — when I have the next chance I’ll go to 30 and we’ll keep playing this damn game until the other side agrees that we’re going to follow some rules.
Joe Patrice: Yeah, and that never then happens and it — and more importantly it feeds the kind of narrative that they love to spread, which is a cynicism that they are just what — we are both like each other. They really thrive on the idea that the Democrats aren’t or liberals generally are not an alternative to them, it’s just — well they are just doing the same thing we are, it normalizes what they do, it’s a way in which they can spread kind of a disaffected, which is really they have because of the demographics of the country, they can win on cynicism and people and apathy, people just saying, hey politics, I mean, they are all doing the same thing, they’re all fighting and I had done. Getting those voters out of the system is actually a win for them whereas it’s a general loss for Democrats who need those votes. So, that’s a large part of the worry with that sort of an approach.
Elie Mystal: Okay, we’re going have to agree and disagree.
Joe Patrice: Right, right, right, I mean, I understand like we’ve talked before that we’ve come to an impasse where we know that my position and we know that you’re wrong and we just have moved on from that and we have managed to do the show anyway.
Elie Mystal: Because we’re professionals.
Joe Patrice: Right, I mean, that’s the thing. Speaking of professionals it’s been a couple of weeks now, but how do you like in basketball this season?
Elie Mystal: We’re not going to talk about that.
Joe Patrice: I wanted to bring up something controversial. So, thanks for listening. You should be reading Above the Law, you should be subscribed to the show, you should be given the show reviews, stars and writing things, it helps the algorithm know that you are out there and engaged. If you write just a quick this is fun they have good insights or I love when they fight with each other, whatever it is, that all helps because Apple uses that and other podcasting services use that to increase your position in the world of legal podcasts, so that’s a good place to be.
You should be following us on Twitter. He’s @ElieNYC, I am @JosephPatrice. Be sure to check out this long form piece that we’ve actually been talking about in the nation when it comes out, because that’s where you’ll get the full scoop.
And you should listen to other podcasts, the Legal Talk Network has a whole panoply of shows and we have The Jabot which Kathryn Rubino hosts and with that I think I’ve talked about all the various things we need to pitch, oh, and other than thanks again to Smith.ai for sponsoring, and that’s that.
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