Transcript of Episode 191
These are unofficial transcripts prepared by volunteers and have not been vetted for accuracy or completeness. All material is copyright © Opening Arguments Media LLC.
Show Intro
FLETCH You guys want to read me my rights.
FIRST DETECTIVE You have the right to remain silent. You have the right to have your face kicked in by me. You have the right to have your balls stomped by him.
FLETCH I waive my rights. (Fletch (1985))THE ATTORNEY They're pretty simple. The forms are all standard boiler plate.
CHARLIE KELLY Well, we're all pretty hungry, we gonna get to our hot plates soon enough. (It's Always Sunny in Philadelphia: "The Gang Exploits the Mortgage Crisis" (2009))TOM INNOCENTI You'd be surprised how many doors a letter from a lawyer can open… or close.
BOB BELCHER It seems like you're talking slower since you started charging by the hour. (Bob's Burgers episode "Sexy Dance Healing": (2016))MENTOK THE MINDTAKER What's the meaning of this. This is my quiet time.
HIRAM MIGHTOR We're going to have to take you into custody.
MENTOK THE MINDTAKER That's outrageous. What am I charged with?
HIRAM MIGHTOR Don't have to tell you anymore. Clearly you haven't been reading your Scalia. (Harvey Birdman: Attorney At Law: "Shazzan" (2006))LYDIA Welcome to Opening Arguments, a podcast that pairs an inquisitive interviewer with a real life lawyer. This podcast is sponsored by the Law Offices of P. Andrew Torrez, LLC for entertainment purposes, is not intended as legal advice and does not form an attorney client relationship.
Don't take legal advice from a podcast.
THOMAS 00:01:17 Hello and welcome to Opening Arguments. It's episode 191. I'm your host Thomas Smith and that over there is your other host Andrew Torrez. How are you doing Andrew?
ANDREW 00:01:25 I am fantastic. Happy that we have a nice palindromic episode again
THOMAS 00:01:36 As usual. Yeah, we celebrate palindromes. So are those just every…? I was trying to figure it out. So that's… every 10 episodes right now. That's good. Um, but yeah,
ANDREW 00:01:42 Look, we need to make opportunities to celebrate things on this show.
THOMAS 00:01:48 All right. Yeah. We're kind of creeping up on new intro quotes. I'm celebrating that as well. That's… that's a thing that happens. So we'll, we'll be getting those submissions soon. We also have another great announcement, which is the opening arguments wiki page!
ANDREW 00:02:01 Oh my gosh, I love this so much. I mean, if this weren't opening arguments, I would be jealous. I think this is the best Wiki I have ever seen as a resource to go alongside a podcast. Both Thomas and I had been playing around with this. It has over a hundred specific episodes where you can click in and it has timestamped the segments, like the amount of work that went into this was just unbelievably amazing. Yeah. So we want to give a special shout out and a thanks to everyone has told us that it's Paul Duggin or Dugan (I'm not sure exactly how to pronounce that, so we'll say both) that he carried the biggest laboring oar. And then alphabetically, the other contributors are Zach Elithia, Eric Brewer, Teresa Gomez, Andrew Hamilton. Nice. Robin Hoffman and Beverly Karpinski Thewness. Thomas, I seriously can't this enough. Thank you so much. This is an unbelievable project. Unbelievable how much work went into it and it's just a fantastic resource. If you listened to the show, you should go check it out. It is at openargswiki.wikidot.com.nd we're going to start linking it in the show notes at the end. So you'll be able to get there just by clicking on the show notes. It's, amazing the answers to everything. And this finally, Thomas, you and I don't have to answer the "what does Yodel mountain mean?" question.
THOMAS 00:03:29 Yeah, yeah. It's a great place for all of those common questions. Um, you know what, let's see. What does armature mean? All that stuff. That's where you're going to want to go. And the cool part is now that it's live, I think even more people are going to help out and share some of the load because yeah, I'm just blown away by the amount of work that was put in by those folks. So thank you guys so much. We, yeah, we can't say it enough. That's just absolutely, you know, just stunned by it. It's so cool. So maybe… I look forward to it also developing further, you know, like there's going to be more, I think more people working on it more, more, more episodes obviously, and maybe it'll just keep growing and growing in terms of the resource that is. Uh, so that's something that's just, again, so cool. Please check it out. And a giant thanks to everybody. You listed. Thanks so much. Absolutely. And then Andrew, uh, you, you're going on something, right? Did you want to mention that?
ANDREW 00:04:32 Yeah, we, we've got a couple of things. So a lot of our listeners already know. I cohosted this Monday's episode of The Skepticrat, which was sort of a wrap up of the Supreme Court's spring term right before the Kavanaugh announcement, so you can check that out. Thomas, you and I are both going on the Change My View podcast. We're going to be recording that over the weekend and we'll have links up when we do that. That is with friend of the show Liz Weeks. I'm really, really looking forward to having that discussion. And finally I'm doing an interview on Monday. It's going to be live-streamed. That's why we're flagging this now. It is Left Right Radio with Chuck Morse and he is very, very conservative. He wants to have me on to talk Kavenaugh. So, uh, you guys will be able to, uh, to listen to me trying to explain why Brett Kavanaugh is a scary choice to a conservative. So, uh, you know, wish me luck on that one.
THOMAS 00:05:31 Yeah, I'm very curious to, to hear how that goes. So that should be fun. All right, well without all those… lots of announcements today, but they're, they're all very good. So with that said, we've got to go to the rest of the show. Here we go.
Andrew Was Wrong
VINNY GAMBINI Miss Vito. Please answer the question. Does the defense's case hold water?
MONA LISA VITO No. Andrew is wrong.
VINNY GAMBINI Are you sure?
MONA LISA VITO I'm positive. (My Cousin Vinny (1992))
THOMAS 00:05:59 Andrew, you were wrong. First off, you're, you're, I mean, you're wrong a lot, but let's see. No, not really. We've got, we've got a couple of things to correct. First off, it's Olathe ("oh-LAY-thuh"), so we finally got the right pronunciation on that. Everybody from, is it Kansas? Everybody in Kansas and surrounding areas have emailed us more than once. Actually I think I, I crunched the numbers and the population is not quite enough to account for the number of emails. So I think they, they, I think they each did a, an additional one, but it's Olathe. So there, there you go. So any, any other corrections?
ANDREW 00:06:38 "Oh-lath"? I am never pronouncing anything again ever. That's just going to be the rule. The entire show was going to be Andrew Gums Vanilla Pudding.
THOMAS 00:06:48 I just think more effort and I don't know, minutes and research has been put into this one town. Then like some of the other topics that you see, like there's… (*laughter*) So I hope, I hope everyone's happy. Anyway. What are the one we got for, for actual Andrew Was Wrong?
ANDREW 00:07:13 No, so an actual Andrew Was Wrong. I want to clarify this, so Spencer wrote in and said "around the 15 minute mark of OA 187 [which was "Lowering the Lukumi Bar"' Andrew made the claim that neither Trump v. Hawaii nor Masterpiece Cake Shops majority opinions, cited the Church of the Lukumi decision [City of Hialeah case]." And then Spencer says, "I was inspired to go out and actually read the masterpiece cake shop majority opinion, and it does in fact site the Church of the Lukumi decision." So, Andrew was wrong. Here's where I went wrong. And, and this is just a, a verbal mistake. So I really appreciate Spencer bringing it to my attention. What I had meant to say was that Hawaii versus Trump. Sorry. What I had meant to say is that Trump v. Hawaii, that the majority in that case cited to *neither* Masterpiece Cake Shop nor Church of the Lukumi.
ANDREW 00:08:05 Right? So in other words, I was making a claim about the Trump v. Hawaii, that's the travel ban majority, not evaluating that case in light of the standards of looking behind the intent of the decision maker, which was just articulated by the court in the masterpiece cake shop decision. So, if I tripped over my own words there, that was what I had meant to say and I greatly appreciate that he brought it to my attention and Spencer is applying to law schools in the fall. So a, so good catch. Glad you're a glad you're ahead of the game. And, and I'm seriously, I mean, the reason I'm reading this: A., I want to correct things and get it right for the record. And B., I love the fact that people listened to the show, listen to what we say and then go out, click on the links and actually read the cases and opinions and materials for themselves, that's what we want you to do. Don't, don't take my word for stuff. So, Spencer, thank you very much.
THOMAS 00:09:01 That's awesome. Yeah, it's, great to have, just the, the amount of feedback and listenership and everything. And now a Wiki. I mean we're just, we're just honestly so lucky and yes, the more that you can say that Andrew was wrong, the happier I am obviously. But no, the more, the more we realized that the Andrews not wrong that much. So, but when he is, we want to make sure we get the correct info out there for sure. But one thing you were absolutely right about is a certain Supreme Court justice that you, apparently Trump had tipped you about. I'm not sure he must have a, you know, it's funny how you somehow learned, you know, who Trump was going to pick ahead of time, but you still haven't gotten them to configure the news around us. So you need to work on that.
ANDREW 00:09:52 Well, it turns out I was in secret negotiations with Anthony Kennedy and that…
THOMAS 00:09:57 Yeah, we've got more to talk about. Are we ready to go onto that?
ANDREW 00:10:01 I think we are. Let's talk about, let's try and bring Kavenaugh to a close here.
THOMAS 00:10:11 Alright, so we're going to talk more Kavenaugh, bring, I like the idea of bringing him to a close in day one of his reign of terror over us. I don't think that's how it'll work, but. Okay. Uh, yeah, there's a lot more to talk about around Kavenaugh, of course. Now you gave us a great breakdown last week of some of his decisions to give us an indication of where he was likely to go with certain things. But since he was actually nominated, again, Andrew's right, everybody. He predicted it. He was so… Andrew was so bold as to name the episode Supreme Court Justice Kavenaugh, and tell you what, it was bold but it paid off. You were right. So I just want to make sure you get plenty of credit. You are two for two in picking Supreme Court justices before they are announced with Trump. So…
ANDREW 00:10:59 Yeah, and I can only prove one for one. So…
THOMAS 00:11:02 Yeah, no, I can get the, we can get the timestamps of when we recorded. I can prove it if we need to in discovery. I can prove it if it goes to discovery.
ANDREW 00:11:11 No, absolutely. You can authenticate that document. Good.
THOMAS 00:11:11 That's absolutely true I totally can.
ANDREW 00:11:17 It's kind of rough to take a victory lap on this one, right? This is…there's not a lot to celebrate.
THOMAS 00:11:23 My favorite thing was So of course, I'm sure everybody did, but. But I texted Andrew right when the announcement came out and was like, "Yep, you were right." And then Andrew said, "Oh, I wish I were wrong." And I was like, "how would that help?" Like there was… there's no one… like you were going to be wrong and, and Trump nominates a Ruth Bader Ginsburg 2.0 or something. There's not going to be…there was no way you were going to be wronghat was anything better than what we got is essentially why I chuckled at that. Like the options were you were right or you were wrong and it's worse probably.
ANDREW 00:11:59 I think that's right. I agree with that. So you know, what I'd like to do in this segment is kind of go back to what we tried to do for Neil Gorsuch. Right? Which is, look, it is… we've talked about the political reality of Trump's Supreme Court appointment. Which is you have to swing two Republican votes and you have to hold onto all three Democrats in deep red states who are up for reelection this year, plus a handful of others in red states. Right? So, you know, Claire McCaskill I think is already probably on the No side even though she's up for reelection in Missouri based on some things that I saw. But, you have Donnelly in Indiana…
THOMAS 00:12:51 Well I don't have my abacus out. How does McCain being out affect it or is it still exactly the same?
ANDREW 00:12:51 So…
THOMAS 00:12:51 Math
ANDREW 00:12:55 It depends on how everyone else lines up. So if McCain can't cast a vote right then, as everything lines up, that would be 50 to 49. So you would need one person ostensibly say Susan Collins to flip, to have it go 49-50 in the other direction. But remember, if anybody else abstains, even; if Heidi Heitkamp in North Dakota decides to abstain and then it becomes 49-49, then all of a sudden you have Mike Pence casting the tie breaking vote. So you know…
THOMAS 00:13:30 Okay. So I'm sorry, this is a stupid basics question because I didn't see… I don't remember the schoolhouse rock song, but like if a 40 senators are caught in a blizzard somewhere, you still need 50 or do you need a majority of whoever's there? It must still be 50, right? Like that would be…
ANDREW 00:13:48 you would need…For the Senate to conduct business, it would have to have a quorum so it would have to have at least 51 senators present.
THOMAS 00:13:48 Gotcha.
ANDREW 00:13:57 And then you need a majority of those present. So…
THOMAS 00:13:59 So when somebody is missing, it's essentially a no vote. It's not like it reduces the, the number that you need at all?
ANDREW 00:14:06 No, I mean not necessarily… like if 10 people were missing then you could have a 45-45 tie broken by Mike Pence. So it would reduce the number…
THOMAS 00:14:06 Oh so you don't need 50 votes
ANDREW 00:14:19 You need to have at least 51 senators total on the floor to meet a quorum. And then you have a majority of those present to pass the…
THOMAS 00:14:29 I just would have thought it wouldn't be set up that way because obviously if you get rid of all the Democrats or something and then, and then you only need half of whatever's left or something. I Dunno. But okay. So you don't need necessarily 50 or 51 votes, you just need a majority of whoever's there.
ANDREW 00:14:47 Right. But again, unless you know 30 separate misfortunes all… (*laughter) The Republicans are going to show up for this vote. So…
THOMAS 00:14:47 Okay
ANDREW 00:14:59 …and who knows where John McCain will be. So there are a bunch of possibilities. There certainly is the possibility that if it looked like it was 49 to 50 the other way that they wheel him onto the Senate. Uh, there is certainly the possibility this is Arizona, that something happens to John McCain. None of us know how ill he is, and then the Republican governor of Arizona would be able to appoint an interim senator who could cast that vote. So again, if you're Chuck Schumer, if you're the Democrats looking to block this, what you need to do to, to guarantee that is lock down every Democrat, which is going to be really, really hard and to make sure, you know, you can't… that something like that doesn't happen. And then convince two Republicans, which presumably would be Collins and Murkowski, to flip. Again, we're gonna talk about that. I don't think there's any way to do that. So what I would like to do is the conversation I tried to have going back to Gorsuch is convincing our Democratic senators to make the smart case against Kavenaugh, to start talking about judicial activism on the right. And not to get caught up in the equivalent of the losing argument that was made against Gorsuch. That is for shorthand, the ice trucker
THOMAS 00:14:59 The truck driver. Yeah.
ANDREW 00:16:31 Right, yeah. And it was, look, that got characterized, and it fits into the parody of the left, right? Of "See, Gorsuch is mean, and he sided against the guy who would have died in his truck and frozen to death. And doesn't that make him a big meanie?"
THOMAS 00:16:47 You're saying this is not a good argument?
ANDREW 00:16:53 Right, yeah. And, well, I think it's not a good argument because
THOMAS 00:16:56 Typical liberals not wanting truck drivers to freeze to death! Ughhh, gosh! That's what gave us Trump!
ANDREW 00:17:02 Yeah, but look, we don't want to be in the position of saying "I don't like this guy because of the outcome that he's reached on certain cases" right?
THOMAS 00:17:02 Yeah
ANDREW 00:17:12 Because the easy retort back to that is, "yeah, look, you've got a conservative president with a conservative Senate. He's nominating or conservative guys going to reach conservative outocomes…"
THOMAS 00:17:20 Yeah. Well I'll tell you this too. Having a lot of conservative family, I know that Republicans have done an incredible job of selling their BS as "the Constitution."
ANDREW 00:17:20 Right.
THOMAS 00:17:33 So anything that Scalia or you know, Gorsuch or any of these nut jobs says in their weird originalist jurisprudence that we've talked about a lot here, that just gets cast as "the Constitution" as though anything different, anything liberals might want at all is not the Constitution, we just want it out of left field. And that's been a very successful, like marketing campaign because I think it's, I think it's easy to say, and it's easy to believe too, if you're on the right, it's really easy to believe that you're on the side of the Constitution and the other side just wants, you know, like nonsense communist stuff.
ANDREW 00:18:09 Yep. And so what I want to do is piggyback on the work that they've done. Look, they've convinced a broad swath of the American electorate that judicial activism is a bad thing. So that's why I always use that rhetoric when I'm talking about Neil Gorsuch, what I'm talking about Samuel Alito, and now when I'm talking about Brett Kavanaugh, because that accurately describes what he is. Somebody who is willing to cast aside precedent because he doesn't like the result that that court achieved. And, if our buddy from the Left Right Radio is listening, this is what I'm going to begin with on Monday is the discussion of the Supreme Court's recent decision in the Janus vs AFSCME case. Because it doesn't get more clear than that. Like this has been the settled law for 40 years, but we have a more more conservative SSupreme Court now, "so why don't we take another whack at it and see if we can't get a different result this time because the Court's further to the right than it was in 1977." And if you are in the middle, if you are somebody who's like, "yeah, I'm a little bit persuaded by the idea that judges shouldn't legislate from the bench… I find it very challenging or at least it begins a discussion to say, "Okay, so you know, if I told you there was a Supreme Court justice that took 40 years of valid precedent, 40 years into which the law was "A" and then just decided one day, now you know it's going to be "not A", is that legislating from the bench?" How would you tell? And at least at least you're talking. So that's what I want to do. So maybe we should talk in the segment about some things that I *don't* want Democrats to do?
THOMAS 00:18:09 Yeah, okay.
ANDREW 00:18:09 Yeah.
THOMAS 00:19:57 Where do you want to start? I mean, first off, well, I did want to say a second ago: it seems so tough as someone who is a liberal and supports Democrats, this idea, that it should… I would think it should be automatic that the, what? Forty-eight-ish Democrats (or there might be some independents in there), but I would think the resistance should be automatic, but it's very much not. And why is that? Just because Democrats in red states think that they need to support this justice, otherwise they won't get voted back in? Is that what we're talking about?
ANDREW 00:20:31 Yeah, I think there are two things there. So number one, there are Democrats in states that Donald Trump won by 20 or 30 percentage points. And so you, you can't just appeal to the resistance if you're Joe Manchin in West Virginia or Heidi Heitkamp in North Dakota. Like those states are deep red states that nevertheless were willing to go out on a limb and elect a democrat. So, you know, you have to portray yourself as reasonable and then you have to have laid the groundwork for a reasonable opposition in order to cast a no vote. So that's kinda what I'm trying to do is, is help give them some cover so that they're not stuck, you know, litigating, an argument that's unlikely to be persuasive in their state and that hopefully they're making an argument that, you know, a West Virginia Republican who's not super sold on Trump could listen to a Joe Manchin say, "yeah, look, like I too am concerned about legislating from the bench, but I'm concerned that what Donald Trump is trying to do is the opposite of what they're always accusing those on the left of trying to do. And I will always oppose anybody who wants to legislate from the bench, be it from the left or from the right." Right? So I'm trying to give him some cover that way.
THOMAS 00:20:31 Okay.
ANDREW 00:21:51 And number two, and I think we can't exclude this possibility. Again, go back to the 0-100 number line. Joe Manchin and Heidi Heitkamp are in the forties, are in the 50. Like they are just not temperamentally that liberal. And so the things that outrage those of us who are further left may not outrage them. So you know that those are the two things that I would consider.
THOMAS 00:22:12 Well, will that frustrating note aside…so yeah, if anyone was like me and was thinking like, "oh, we just need to get two no votes and we're totally fine." Like it doesn't really seem like that's the case necessarily. We're not starting from there. We're kind of, you know, unfortunately, we might be looking at needing to convince a lot of people, not just the two Republicans.
ANDREW 00:22:37 We have a holding action. Oh, that reminds me, a couple of people wrote in with pithier suggestions. So Joe Davies wrote in with "defense sucks, but losing sucks more," which I like.
THOMAS 00:22:37 I like that a lot, actually.
ANDREW 00:22:53 And Jamie Heathen wrote in with "the only thing worse than fighting a holding action is losing a holding action." So I like both of those. So, you know, keep 'em coming. Yeah. There's a, there's a holding action. We got to make sure that we do not lose red state Democrats, and in order to do that, you have to make, in my view, an intellectually convincing case that is more than just "this guy came to bad results." So that's what I'm trying to get out there. That's the drum I'm going to continue to beat all the way through the confirmation hearings. So why don't we take a look at some of the trial balloon arguments that are floating out there. Uh, is there a favorite one that comes to your mind first?
THOMAS 00:23:34 Oh, for me, one of the best things I've heard was just the fact that this guy comes from a crazy right wing Christian groups list and anybody on that list is going to try to bring Christianity as like the law of the land and it's just not something we should support. But I don't know if that's what you had in mind.
ANDREW 00:23:55 Yeah, I haven't seen that percolating up as much. Again, what I would do with respect to that is focused less on his group identification and more on his actual jurisprudence. And we talked about that on Episode 189. We looked at his dissent in an overwhelming case that went the other way in the DC circuit in which he articulated what, in my view, clearly seems to be a willingness to jettison Lemon vs. Kurtzman and to embrace kind of the accommodationist viewpoint of the separation of church and state. That's, how I would, I would tackle that rather than, you know, kind of getting that shirts and skins mentality of, "well, I'm a Christian, so I like…" you know, the fact that, you know what I mean? Again, I don't know that this is the most effective politically. I'm a law geek so I instantly go to the law geekery, but…
THOMAS 00:24:58 It's hard to know. But I, I mean, I do know that abortion rights are a winning issue. If they're framed properly, like, you know, you're going to get a majority of people who don't want Roe overturned. So that could be a place to start.
ANDREW 00:25:13 And look, I think that battle ground will be there. We've talked about Judge Kavanaugh's rather scathing dissent, in the INS detention abortion case. That's gonna come up. But I think kinda the first liberal area that, that I'd really like to tear down a little bit is the notion that Judge Kavanaugh has stated that sitting presidents can't be indicted. So for example, just pulling out one of the rising stars on the left, Alexandria Ocasio-Cortez, tweeted out "the fact that SCOTUS pick Kavanaugh believes that a president cannot be indicted is an automatic disqualification from Supreme Court consideration. Now, obviously she's headed to the House of Representatives, not the Senate. She doesn't get a vote. But to me, this is the ice trucker of the confirmation hearings. I think this is a total red herring, a total loser of an argument. And I think it is so superficially appealing…
THOMAS 00:26:21 This may be surprising to listeners, so you better explain yourself.
ANDREW 00:26:25 It's *really* superficially appealing. So you know, I'm going to link this because when I was looking for examples, right there is, Andy Borowitz is a humor columnist for the New Yorker. And basically his humor columns are kinda like New Yorker cartoons. They make me chuckle a little bit. They're not thigh-slappingly funny, but he wrote a column called "Man wins 'Why trump shouldn't go to prison' essay contest." And it says, you know, the happy Brett Kavanaugh, his essay, which was distributed to the press shortly after was he was announced as the winner said, Donald J. Trump should never go to prison because he's the President of the United States. And the President of United States is a very important person in the country. It would look bad if visitors from foreign countries came to the United States and asked "where is your President?" and we had to say "he is in prison", which in my opinion is another reason Donald J. Trump should not go to prison. For these reasons, if I'm ever in a position to keep Donald J. Trump from going to prison, I will do that. Keep him from going to prison."
THOMAS 00:27:26 So he actually wrote a whole essay. I thought it was just going to be the headline but the essay was actually pretty funny
ANDREW 00:27:31 The essay is pretty good, right? So look this comes from a 2009 law review article that I'm going to link in the show notes. You should read it. It's from a 2008 speech that Brett Kavanaugh gave. So it's very informal for a law review article. It gives you a lot of insight into Kavanaugh and a lot of things that I think are really, really interesting in terms of having a discussion about him. But the position on indicting a sitting president is not one that I find disqualifying. And in fact it is the legal argument… it is the legal position that I hold. We're going to get to that. So, what I have seen out there are sources that are really, really mis-characterizing this speech. And again, we can't do that on the left. Like our noses have to be clean because if we've mischaracterized this, then the focus will be on, "well, you can't trust Democrats. It's all fake news. They are lying about what he said" and it shifts the battle from "is Brett Kavanaugh, temperamentally jurisprudentially qualified to being on the Supreme Court" to "are Democrats lying about Brett Kavanaugh's record," and you know what? You don't want to fight on that territory. So for example, one of the things that's making the rounds, Brett Kavanaugh, Yale Law School Grad, so there is an open letter signed by a whole lot of Yale law school grads saying, we don't think Kavanaugh should be on the Supreme Court and much of it is really, really good. But paragraph six says this about his speech, it says: "Despite working with independent counsel Ken Starr to prosecute Bill Clinton…" That's a mischaracterization. He worked *under* Ken Starr and Starr was his *boss* and Judge Kavanaugh then was a 30 year old lawyer and they did not prosecute Bill Clinton. So bunch of errors in that. "Judge Kavanaugh has since called upon Congress to exempt sitting presidents from civil suits, criminal investigations, and criminal prosecutions." That's mostly true. We're going to talk about that in a second. "He has also noted," the letter continues, a quote, "serious Constitutional question exists regarding whether a president can be criminally indicted and tried while in office" end quote. That is 100 percent true. And again that is a position I hold that I have taken on the show that you cannot remove a president by just… a sitting president with a criminal indictment. You remove a president through impeachment and then try them afterwards and then the letter says, and this is really the, the sticking point, "this reversal does not reflect high minded consideration but rather naked partisanship." And that's not true and it's not fair. This was a 2008 speech that Kevin O'keefe gave. So this was as an immensely popular Democratic president was swept into office replacing George W. Bush. Remember Barack Obama won a landslide in 2008. And so everything that he was describing was in the context of an incoming Democratic president from somebody who had very publicly worked for Ken Starr, and so the speech then articulates a number of different positions. And again, there are things that you might want to take issue with. The first is it articulates at some length, but again, this is well parodied by Borowitz. It's why I read the Borowitz thing. It articulates that the president's job is hard and that, you know, when he worked in the Bush White House, he got a sense of just how hard this job is and you know, and it says, "like many Americans in the 1990s, I believe that a president should be required to shoulder the same obligations we all carry. But in retrospect that seems a mistake. Looking back to the late 1990s, for example, the nation certainly would have been better off if President Clinton could have focused on Osama bin Ladin without being distracted by the Paula Jones sexual harassment case and it's criminal investigation offshoots." So you can, and I do in fact disagree with the characterization here. But there is very much a, you know, "9-11 changed everything" kind of conservative view articulated in this paragraph. A "the president's job is hard, the world is very difficult and complex and we shouldn't be able to have partisan civil lawsuits and partisan fueled criminal investigations, detracting, distracting the president from his duties while in office."
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ANDREW 00:33:33 That in my view is not… Again, it reflects somebody who's a lifelong Republican and who has conservative views, but it's not fair to say he adopted that position to appease Donald Trump or to appease the Republican…
THOMAS 00:33:45 Yeah. Had it been, I guess written in 2001, or something. Or 2017…
ANDREW 00:33:54 Both of those… this criticism would be valid yet like, absolutely. If this guy had worked for Ken Starr and then the moment that a Republican got elected said, well, you know, I've changed my view now, then yeah, then that would be a fair criticism. That's not when he said it. And, you know, an Obama… I mean, it's tough to remember what the political landscape looked like in 2008, but at the time that he was giving this speech, you know, this was pre-Tea Party. It was before the 2010 red wave. Like, it looked like… and you know, again, we've seen Democrats have continued to win the presidential popular vote. You would have to, you would have to assume that Brett Kavanaugh had a very odd, limited use time machine in order to think that this was a partisan speech. I liken it to… we had Seth Barrett Tillman on this show. Seth Barrett Tillman formed his views of the Emoluments Clause in 2005. And then started writing again under Obama in 2009. So it…
THOMAS 00:34:57 Yeah. No, neither of us ever said or thought that Seth Barrett Tillman was forming his opinion as some sort of Trump support.
ANDREW 00:35:05 Yeah, and I think he's an honest intellectual and I think Kavanaugh's position here, I think he is honestly describing his political beliefs and we owe it to him to characterize it that way. So then from that observation, Kavanaugh then says Congress should pass a law immunizing the president from criminal investigation. And what he says is, I don't know, it's an unsettled question. As a matter of constitutional law, he says, quote, "A serious constitutional question exists whether a president can be criminally indicted and tried while in office." Okay, 100% true statement. In fact, a more left leaning statement than I have said on this show. Like to say that there is a question, I think a gives an awful lot of credence to the other side of the view. Like I think, I think there is a question and I think it's likely to come out the other way for the reasons I've previously said on the show. And so he says, so in order to avoid determining that, I think it would be a good thing as a legislative matter, if Congress passed a law immunizing presidents from criminal investigations and civil investigations while they're in office.
THOMAS 00:35:05 He said this in 2008?
ANDREW 00:35:05 He said this in 2008.
THOMAS 00:35:05 Yeah, good luck with that
ANDREW 00:36:22 Right. Now, you know, you might say, "uh, where was the follow-up in 2010," like, he kind of seemed to take his foot off the gas a little bit.
THOMAS 00:36:33 Is there, like an asterisk that's like, okay, but definitely tons and tons of meaningless investigations on the secretary of state are totally fine. It's just the President
ANDREW 00:36:43 Look, so that's the context. And then, he considers two objections. He says there are two potential critiques of this idea that the congress should pass a law. The first is that nobody is above the law. I agree with that, but it is not persuasive. The point is not to put the president above the law or to eliminate checks and balances, but simply to defer litigation and investigations until the President is out of office. And then that dovetails with his answer to the second objection, which is the country needs a check against a law-breaking president and he says, the constitution already provides that check. If the president does something dastardly (love that word) the impeachment process is available. No single prosecutor, judge or jury should be able to accomplish what the constitution assigns to the congress. Moreover, an impeached and removed president is still subject to criminal prosecution afterwards. And, that's what I wanted to get to because a lot on our side are leaving out that sentence. So when Ocasio-Cortez says that Kavanaugh believes that a president cannot be indicted, that's not (and again, you know, it's twitter, and I'm not suggesting there is bad faith that went into that tweet) but it's not an accurate summary of what Kavanaugh said. Kavanaugh said a sitting president cannot be criminally indicted, potentially cannot be criminally indicted, and should not be criminally indicted, as a matter of public policy while in office, and that is a totally defensible view, and he explicitly says…
THOMAS 00:38:13 Well, it's also how you feel, right?
ANDREW 00:38:15 …and that you indict him, you remove a president, via impeachment, and you indict them afterwards and so I think that that's correct. And so that's a lengthy analysis I'm going to skip over. There is troubling stuff.
THOMAS 00:38:30 We've got more points, more bullets to get to…
ANDREW 00:38:33 There is troubling stuff in the rest of the speech. I encourage you to go read it; he has a very expansive view of executive power that dovetails with our discussion in the PHH vs. the Consumer Financial Protection Bureau case. He thinks that executive agencies must be accountable… that the heads of executive agencies must be terminable at will by the president. That you cannot have independent executive agencies, independent branches. That, I think should cause our true libertarian listeners a lot of concern. That is removing a check and a balance and impediment on government power, to concentrate more power in the hands of the executive. So there's some really interesting talking points here, but, I just wanted to clarify exactly what Kavanaugh has said on the status of being a president and being quote "immune from being indicted" and I don't think that's a fair characterization.
THOMAS 00:39:38 Alright, let's get on to the other stuff. Jeez, I wish you'd use your limited use time machine to see how much time you need to talk about all the stuff that you have to do.
ANDREW 00:39:46 I'll do my best. Next terrible, terrible argument and a hundred… I mean literally I believe 100 people or more sent this to me with the "hey, Andrew, is this real?" There's an article in the hill. Normally pretty reliable source by Ken Levy, who's a law professor at LSU. He's @tardigrade 18 on twitter. I've tried to tweet at him. The article says the McConnell rule is law and Democrats (and here I'm quoting exactly from his text in the article), "should immediately file a federal lawsuit against him for violating the rule. If Mitch McConnell brings Brett Kavanaugh to a vote before the midterm elections."
THOMAS 00:39:46 Yeah that sounds like a lot of crap to me.
ANDREW 00:40:30 It is crap on every single level. It's terrible. And people need not to be re-tweeting or thinking that it's a possibility. I invited…Look, it's a piece in The Hill. Not everybody, when there are lawyers, cites cases in writing pieces for public consumption. I invited him to send me any cases that he thinks support his position; so far, the professor has declined to do so, but let me kind of systematically take this apart really, really quickly. So first, what he's calling the McConnell rule is not a Senate rule. I'm going to link the Senate rules in…
THOMAS 00:40:30 Yeah the rule is "McConnell is the worst"
ANDREW 00:41:14 Yeah that's exactly right! In the same way that when McConnell called it the Biden rule, that wasn't a rule either. Like Senate Rules (capital R) are formally adopted by two thirds of the Senate and they are codified and so eliding over the distinction between actual rules and what, in a political statement, a senator calls a rule is something a law professor should know better. So number one, the McConnell rule, not a Rule. So second problem, let's assume that the McConnell rule is a Rule, no court has ever held that a Senate parliamentary rule or the equivalent is a law or is binding precedent. There is… I have searched, there is no decision. I invited Professor Levy to send me one. You cannot sue to enforce a Senate parliamentary rule. Like that's up to the Senate to enforce its own rules. Number three, even if the Senate parliamentary rule was a binding precedent, senate rule five provides that the rules of the Senate shall continue from one Congress to the next congress unless they are changed as provided in these rules. So as a matter of law, there's no reliance interest. Like it's not like a law. You don't have to, when you have a new Congress that comes in, there's nothing that says laws are good, you know, unless the Congress…no! Like laws are laws, rules, the fact that they are presumptively carried over but can be changed indicates that you may not rely on them for purpose of bringing a lawsuit. And, although it requires a two-thirds vote of the Senate to change the rules that requires 67 votes, so we're never going to change the Senate rules again. You can always use the nuclear option that we described in Episode 59 to get 51 votes to declare a portion unconstitutional. That's an un-review-able decision of the chair. We can go back and listen to 59 and figure out the procedure. So in other words, even if the McConnell rule were a binding rule, even if that were considered precedent, even if it could be enforced in the court, then the Republican Congress could just use the nuclear option around it. And they could strike out all of the words of the McConnell rule. Now, let's keep going. Even if you got over those three hurdles, interpretation of a Senate rule is very clearly a non-justiciable political question. That is Episode 159, Luther versus Borden. That's when we talked about the Door Rebellion. And the Supreme Court in 1849 said "Much of the argument on the part of the plaintiff turned upon political rights and political questions upon which this court has been urged to express an opinion. We declined to do." So, there's no way a Supreme Court - any court - is going to opine on what a Senate rule means, that's the definition…
THOMAS 00:44:03 Not only that, I mean, yes all that, but also, I mean, the obvious Republican rebuttal could just be "well we meant before a presidential election, not a midterm election."
ANDREW 00:44:14 Yep. And that's the very last… like even if you got through all of those hurdles, this argument on the merits is not good.
THOMAS 00:44:14 Yeah so this is nonsense.
ANDREW 00:44:24 So there are kind of completely… don't share this article. Don't…
THOMAS 00:44:24 You can't sue for this…this is nonsense, okay.
ANDREW 00:44:31 There is no court case. Okay. Yeah. So now let's get to the issue that's been raised that I think will affect the hearings and is really interesting, although I don't know if ultimately it weighs on Kavanaugh. And that is the evidence from some places (and again, I want to be very, very clear that I can't confirm the reporting on this) but there have been multiple sources, they seem to overlap, you know, on anonymous sources so it's really hard to tell if they are confirming one another or just repeating one another, that have suggested that Anthony Kennedy engaged in lengthy private dialogue with Donald Trump to ensure that Trump would nominate Kavanaugh prior to that….
THOMAS 00:45:23 So I'm glad we're talking about that. I wanted to ask you, let's just assume the absolute worst. Let's just assume Kennedy said, "Hey, I'm not retiring unless you definitely, you know, appoint Kavanaugh." Is that illegal?
ANDREW 00:45:39 So here's what it is, and I want to give credit to my former partner, Norm Eisen, who made this point very, very succinctly. Justice Kennedy would have had an ethical duty to recuse himself from the Trump vs. Hawaii litigation if he was trying to negotiate with Trump, who at the same time was a litigant before the Supreme Court. And he did not do so. And that is (Norm didn't cite this, I'm going to cite it for him) it's rule 3C(1)(d) of the Code of Conduct of United States Judges, which applies to Supreme Court justices. And it says "A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including, but not limited to instances in which: [and then there are two provisions here] sub (a) the judge has a personal bias or prejudice concerning a party…" or sub point (d), more specific, if the judge has "an interest that could be substantially affected by the outcome of the proceeding."
THOMAS 00:46:45 Ah so Justice Kennedy broke a rule and you know what that means guys?! Nothing. Means absolutely nothing, absolutely nothing.
ANDREW 00:46:51 Nothing. Yeah. But look, and so let's be clear on the limits of all of this. So number one, this might not be true. And, and remember I picked Brett Kavanaugh as the guy Trump was most likely to be independent of any lobby. So it… Kavanaugh would have been a very, very likely pick anyway. And so it may not be true, it may not be true to the extent that we have assumed for purposes of the argument here. And then most importantly, Kavanaugh may not have known anything about this. So I think that this is a fruitful area in which Brett Kavanaugh should be questioned, in which this should be a subject of discussion. It's something that I think appeals to a broad cross-section of conservative and moderate Democrats. Of, yeah, look, there is something fishy, but again, you've got to phrase it properly. And again, a credit to Norm Eisen for doing so succinctly, if Kennedy was doing this in secret while considering a request from Donald Trump, which by the way he voted in favor of Donald Trump and was the swing vote in that decision… then, yeah, like that seems more than just a maybe, you know… the bare knuckle… that seems beyond fishy. That seems like something that could potentially slow down or even persuade, you know, moderate Democrats and, you know, maybe a Susan Collins, maybe a Lisa Murkowski. I don't know and I want to be clear on…
THOMAS 00:48:28 But all of that amounts to just trying to slow something down. But what happens if Mcconnell just has the votes? Does anything matter?
ANDREW 00:48:41 No, look, we started off with that. We started off 189 with that. I am beginning with the presumption that McConnell has the votes. I am beginning with the presumption that we are playing a long game. I am not suggesting however, you know… defense sucks but losing sucks worse. Right?
THOMAS 00:48:56 I get it, but I guess my specific question is, I've seen a lot of talk about slowing things down and I just want to know mechanically, does that actually work when people are talking about, oh, request the pages and pages of emails that he had while working with Ken Starr, for example. Like, does that actually slow anything down? How does that work?
ANDREW 00:49:18 So there is… I will link to an article in the Washington Post that that I think is the one that you've read that advocates that strategy. Let me answer that. Yes and no. So, no, it doesn't work in the sense that if at the end of the day the votes are there for Kavanaugh. It will not… you cannot… there is no way on Earth to stall the Kavanaugh hearings into 2019 because Mitch McConnell can always just convene a lame duck session. Even if even if Democrats take back the Senate, which we've talked about, McConnell can convene a session in November. He can convene a lame duck session of the Senate. It's not unprecedented. It wouldn't be, you know, anything that the Democrats could stop and you can't continue, even if you could push it past the summer, there's no way you can push it into 2019 unless what you've done is done a thorough and lengthy hearing on Kavanaugh and at the end of the day, the votes aren't there for Kavanaugh. And then you would have Republicans scrambling in a lame duck session to get the president to nominate someone else and get all the Republican senators. But, and then maybe you could delay. If you, if you have two nominees, you might be able to delay into 2019. These are…I want to make this super clear if I have not done so already, these are less than one percent probable outcomes. These are not likely occurrences. But again, if your goal is to fight with equal furor in an equal way against what Mitch McConnell did in 2016, when Mitch McConnell decided to hold up Merrick Garland, he was looking at it as…
THOMAS 00:51:06 It was low probability, yeah, at the time.
ANDREW 00:51:07 What odds would you have put…Yeah, right. Yup. And it was a low probability move that paid off. So, I think democrats should in fact fight fire with fire. I think they should have full, thorough and complete hearings on Kavanaugh and I think that's a real easy sell to the public. Which is, hey look, we're having a Senate election about this. You want to make the Senate election about this. You're going to go after Heidi Heitkamp in North Dakota about this. So let's have it out. Let's have full and complete hearings and look, we know we can't push Kavanaugh's nomination into 2019 anyway. We're not going to do what you did to us in 2016, even if we thought you deserved it.
THOMAS 00:51:07 Well no if we could, I would do that.
ANDREW 00:51:51 Well no, but I'm saying you say that.
THOMAS 00:51:51 …which is what Mcconnell would do!
ANDREW 00:51:51 I agree.
THOMAS 00:51:51 He *would* say that!
ANDREW 00:52:04 Right, right. So that is, I think, kind of the potential. But again, look, what you have to do is you've got to pick off two Republican votes. And you have to have full and lengthy hearings and those are both super low probability events. The last thing that I want to talk about that I think is… that I want to talk about is you have seen calls on the left for our next president, Elizabeth Warren, to pack the supreme.
THOMAS 00:52:04 Yeah.
ANDREW 00:52:34 Right. And you and I kind of went back and forth on that a little bit, I thought it might be worth taking a minute or two…
THOMAS 00:52:40 I just don't understand how this could be what you'd prefer to impeachment because, court packing, isn't that just an arms race that never ends, like okay then they put a bajillion new justices on and then we put a bajillion, you know, like…?
ANDREW 00:52:58 As I've said, I am uncomfortable with this as an approach and as I looked into the history of what Roosevelt actually did, I grow increasingly uncomfortable.
ANDREW 00:53:08 So I'm back on the fence about what Democrats should do in 2021, with respect to the Supreme Court. So let me tell you what I pulled up on court packing as I had previously explained, Article 3 is silent as to the number of Supreme Court justices, the original Judiciary Act of 1789 specified a six-justice Supreme Court. That was expanded over time in the 1800s, in the 19th century ultimately to 10 justices, kind of weird. And then…
THOMAS 00:53:08 Yeah I feel like that's not optimal, might have some ties…
ANDREW 00:53:47 Then in 1866, there was a really, really interesting question that we got from a listener that I guess we're going to do as a parenthethical here who said maybe having an even number on the Supreme Court wouldn't be such a terrible thing. Because remember that if a court is tied…
THOMAS 00:53:47 Oh then it just gives more power to the lower court?
ANDREW 00:54:05 Yeah, that's exactly right. Then then the lower court decision stands.
THOMAS 00:54:05 Actually doesn't sound that bad when you think about it.
ANDREW 00:54:11 And I thought that was super interesting…yeah. I thought it was a really, really… And so instead of having every time you'd have a 5-4, if you added another justice and it was a 5-5 that meant the lower court opinion would stand, so you'd have less…
THOMAS 00:54:11 My joke was going to be you'd have a 6-4 because trump gets another.
ANDREW 00:54:28 Well, yeah. And I'm going to get to that in a second. But, in 1866, the Chief Justice of the Supreme Court, Samuel Chase, asked Congress to pass an act that would whittle the court back down to six again…(back down to seven actually), that the next three justices who would retire would not be replaced. And that actually happened. So it went from ten to nine in 1866, and then from nine to eight in 1867. And then Congress was like, no, we're going to fix this at nine. And they passed the Judiciary Act of 1869. It's been fixed at nine ever since. So how would you pack the court? What Democrats would have to do is blow up the filibuster, amend the Judiciary Act of 1869 to provide for fifteen judges or whatever. And then nominate those six more judges and use the nuclear option to confirm them all. I want to point out that if that's the position we're taking, Republicans could do that now. I mean that they own the Senate. If it looks like they're going to lose the Senate in November, in October, they could blow up the filibuster, amend the Judiciary Act of 1869, and provide for, you know, instant nomination of six new justices and cram them all through. And you might say to that, well, surely if they did a naked power grab that bad, then then surely Susan Collins would save us, right? And, maybe she would, but this is what I want to say to those of us on the left: if that's our view, then you cannot fault a moderate Republican for looking at Democrats doing the exact same thing in 2021 and saying, well surely Claire McCaskill or Heidi Heitkamp or Doug Jones will save us from this naked Democratic power grab. And, that's why I wanted to, you know, walk us through that side of the argument. Imagine Trump adding six justices right before an election…
THOMAS 00:56:30 So I feel like there should be an Andrew Was Wrong because, I mean, I really was just in disbelief that you would think that's a better solution than just saying, hey, this one justice, or even maybe these two, were obtained through collusion with Russia and a stolen election; we should impeach them and replace them.
ANDREW 00:56:30 I… yeah, we can call it an Andrew Was Wrong. There you go.
THOMAS 00:56:54 Alright guys, I won! I lobbied hard for that one.
ANDREW 00:56:55 I'm not saying I endorse impeachment… I don't know what to do. But I was more blithe than appropriate the first time through. And part of that was when I looked at what Roosevelt actually did. So I kind of, you know, it's been a long time since, US history and what Roosevelt's proposal in 1937 was to appoint one additional justice for each incumbent justice on the Supreme Court over the age of 70 years and six months who refused to retire up until a maximum bench of 15 justices. And that was immediately called out as court packing even though there was, you know, there was an ostensibly neutral justification. It was like, these guys are old, we are *trying* to pass Social Security, but the Supreme Court won't let us, so let's ease the burden on these old guys by getting some young blood on the bench. And that proposal, despite the fact that FDR was elected with the largest Democratic super majority in history, people saw through that they said yeah look, what he's trying to do is pack the court with his justices so that the Supreme Court stops overturning New Deal-era legislation. Now, what actually happened was that immediately after (so Roosevelt announced this in February of 1937) immediately thereafter, a month later, Owen Roberts, who had been a conservative judge, stopped voting with the conservatives and started voting with the court's left wing, and the case of West Coast Hotel versus Parish was actually held up for a month after… the court was scheduled to announce their opinion and then it was held up for a month, and then the opinion came out 5-4 with Roberts going the other way. And that is hailed by law students everywhere as the end of the Lochner Era. And, consistently after that, the Supreme Court has allowed… because in the Lochner Era as we've talked about, but for the benefit of our new listeners, the Lochner Era was the time period in which the US Supreme Court held that pretty much any effort to interfere with the free market economy violated the business right of contract. It is considered the darkest period in our Supreme Court history.
THOMAS 00:56:55 Until now, but yeah go on.
ANDREW 00:59:33 Yeah, until now. It is naked, right wing activism in defiance of the will of the people.
THOMAS 00:59:33 Hmm, imagine that! What a horrible thing.
ANDREW 00:59:46 Yeah. And so West Coast Hotel vs. Parish reversed a prior Lochner case, and upheld minimum wage law. So, previously the Supreme Court said, nope, you cannot pass a minimum wage law. And finally Roberts went along with the court's liberal wing and said okay, minimum wage laws are constitutional. This was before Roosevelt made a single appointment to the Supreme Court.
THOMAS 01:00:04 Yeah and so the threat kind of, people think the threat kind of…
ANDREW 01:00:10 The threat dissipated, a couple months after that another conservative justice retired, for health reasons. Again, ironically retired because of the lack of pension and healthcare. He stated that he might've retired up to five years earlier, had he known that he was not going to die, you know, sick and penniless. An interesting footnote, a lot of jurists have argued that, you know, Robert's didn't switch, you know, for political reasons. Owen Robert himself after he retired, burned all of his judicial papers. So read into that what you will. Roosevelt ultimately was able to appoint one Supreme Court justice in 1937, one in 1938, two in 1939, one in 1940. That's five in one term. So he got what he wanted anyway, ultimately, because Roosevelt served parts of four terms, he got to replace the entire Supreme Court.
THOMAS 01:00:10 Yeah that is one of the perks.
ANDREW 01:01:11 Nine appointments. Well it's one of the perks of being elected four times. So, you know, that's different. That is different than just nakedly saying we don't like the direction the Supreme Court is going. So we're going to add a whole bunch of new liberal justices. And that's coming at a time in which there was a super majority for Roosevelt. And we don't, you know…today we don't have those conditions. Elizabeth Warren is elected in a 42 state landslide with 60 percent of the popular vote, you know, let's talk, but right there we're not there. So that's the status on court packing and…
THOMAS 01:01:53 Yeah I really don't think it's a solution. I'm seeing a lot of people wanting to do it, but I just do not see how you could think… and you said it best when it's like, okay, then the Republicans could do that *now*. They could already do that and they certainly could just turn around and do it even worse when they regained power. So then, then I guess to try to sum this all up, what actually is the way you want to fight Kavanaugh? What is the argument you want to make? Because for me it still would come down to this was a stolen election. He lost the popular vote, the Republicans have got… but I don't know that that will work. But the fact that Democrats have won six out of seven popular votes and now are in the minority in the Supreme Court is just absurd.
ANDREW 01:02:35 Yeah. I think you make that argument in 2021. I don't see how that argument is going to persuade Susan Collins and I can see that argument alienating Heidi Heitkamp. Like you know, she can't go back and tell the state that voted 70 to 30 for Donald Trump that Donald Trump is not a legitimate president. That's a tough argument to make. So, I would make two arguments. The first is I would look into and fully investigate Kennedy's recusal and Kavanaugh's role in connection with the nomination process. And the second is building the landscape around redefining what constitutes judicial activism. And I think you can put this more succinctly. Democrats are talking about "will you overturn Roe?" They are not talking about "will you overturn Obergefell?"
THOMAS 01:03:34 It's weird I I haven't seen that they seem to think it's safe.
ANDREW 01:03:38 Yeah. I don't…and they need to ask specifically, in his acceptance speech, Judge Kavanaugh said, "I will follow history, text, tradition, and precedent." And, you know, and I kind of sarcastically tweeted, you know, "'but not so much of that last one' he did not add." I think, and again, Judge Kavanaugh is super smart and he's going to skate through a lot of these efforts on the Senate judiciary to question him, but I would ask them to articulate what is your philosophy regarding stare decisis? What is your basis for where the court will overturn longstanding precedent? And what guidance can you give us? Ask him where he would have voted on Janus vs. AFSCME. That's not a question that is pending before the court, that's a case that just came out. So, you know, all of these nominees like to dodge, but I think you can focus the inquiry on this is not about preserving Roe in and of itself. This is about preserving the legacy of the Supreme Court as an independent institution that follows precedent up until the point where there is a crisis and we want to know what your view is on whether a case from three years ago is good law. Get the general question and then say, "okay, Obergefell?" and then you know, he's going to say, "well, I'm not gonna comment on it." And then you say, "so to be clear, Judge Kavanaugh, you are declining to say that you would uphold Obergefell as good law under stare decisis?" Get that answer. And then go out and say, "we got a judge who will not promise that a case from three years ago decided this, where the swing vote was his predecessor…" He won't say that that's good law. Again, 1% chance, 0.05% chance, I don't know what it is, but I like fighting on that ground because it's honest. And I think that's the only thing… Susan Collins has got to go back to Maine where, you know, people in Maine are not by and large, you know, anti-LGBTQ compared to, you know, senators from other states that, you know, may have an easier time kind of cultivating the bigot vote back home. You cannot get elected in Maine with the bigot vote. So, in my view, that's where I would focus…and we gotta keep our face clean
THOMAS 01:06:12 Yeah, I really do think it comes down to who your target is. And I do agree that there's arguments that just while I think they are true, what will not work on these…either, you know, some of these red state Democrats or these conservatives who, well, these two Republican senators who might not want Roe to be overturned and that kind of thing. Collins and Murkowski. So yeah. But I also think the bottom line is what you said, this is a 0.000000… chance. And honestly, I'm not incredibly… I'm not any more convinced… I'm cynical about this, but I'm not any more blown away by how you're phrasing the argument than some of these other ones. Like I don't… I mean, I guess you're saying the more intellectually honest one, but for me the intellectually honest one is… and the way that McConnell stole a seat, there's just no way that Republicans, that Trump, should get two appointments. There just isn't. And I know that that won't work on Republican, but maybe that's how we shore up Democrats. I don't know, but either way, I mean the chances are so slim that I don't know… we try what we have to I guess.
ANDREW 01:07:30 (sarcastically?) I can't think of a better way to conclude the segment…
THOMAS 01:07:30 Ehhhhh yeah. Opening Arguments: depressing you since… well, since November 2016 I guess.
ANDREW 01:07:38 I wanted to share good news, so I'm going to do it in 60 seconds as opposed to being able to do a segment here, which we had planned because obviously we're going late. The district court in California vociferous denied, and I'm going to link in the show notes, the administration's efforts to revisit the Flores settlement. We talked about that in episode 184, the Trump administration wanted to reopen as part of the executive order, reopen the Flores settlement to allow for indefinite detention of families at the border in order to quote "keep them together." We told you how the cure was much worse than the disease and the court absolutely slapped down the administration. I'm going to include it. You should read the order, it will restore some segment of your faith in humanity.
THOMAS 01:08:36 Ehhh, sure. I don't know, if you're not as jaded as I am at this point, I guess maybe that could happen. All right, well thanks for all that breakdown, Andrew. I mean that is at a minimum what we can do and also it clarifies some things. I think there's some good bad arguments that you pointed out that I don't think we should be making. So, man, it's an uphill, uphill, uphill battle though. All right. Well, we've got to thank our top patrons, our hall-of-famers because it is one of our co favorite days, Hall of Fame Friday. And Andrew, why don't you start us off by thanking the patrons over a patreon.com/law, who of course enjoy lots of perks, the Law'ed Awful Movies, the Q&A, all the good stuff.
ANDREW 01:09:17 Yeah. And so remember you get to be on this list by pledging $5 or more per episode and by being on that for a month. So if you just signed up with the $5 episode, you will be read on New Patron Tuesday. And these are folks who have been with us for a month or more. These are our hall of famers and that's why they get read out every week. We love all our patrons. We love our hall of Famers, especially here on Friday.
Patron Hall of Fame
1:09:42-1:14:22
THOMAS 01:14:22 Thank you all of you for being hall of famers and giving us lots of fun names to read every week. They're, they're, uh, they keep us, you know, they really are one of the, the, the most cheerful segments of the show. Uh, and it's keeping US keeping our sanity. So thank you so much.
Thomas Takes the bar exam
RANDALL DUNBAR Oh, no associate of this firm has ever failed the bar exam.
MITCH McDEERE No kidding.
THOMAS 01:14:43 And now it is time to see if the improbable streak can continue on TTTBE.
ANDREW 01:14:49 Yeah. The miracle on ice. Here we go. Question number 84 is an evidence question. A defendant has pleaded not guilty to a federal bank robbery charge. The principal issue at trial is the identity of the robber. The prosecutor has called the defendant's wife to testify to the clothing that the defendant war as he left their house on the day that the bank was robbed, expecting her description to match that of eyewitnesses to the robbery. Both the defendant and his wife have objected to her testifying against the defendant. Should the wife be required to testify? A No. Because the defendant has a privilege to present his wife from testifying against him in a criminal case. B no. Because the wife has a privilege not to testify against her husband in a criminal case. C yes. Because the spousal testimonial privilege does not apply in criminal cases. Or D, Yes. Because the wife's viewing of the defendant's clothing was not a confidential communication. So spousal privilege, think back to your evidence class. Thomas. I know this is a spent a while. There you go.
THOMAS 01:16:01 This is really difficult because I, you know, my only knowledge of this is, is probably like everybody's where I just think, uh, yeah, you don't have to testify against your spouse. That's basically all I know, like, probably a lot of people listening. So the question is getting into the detail of that privilege. We apparently have maybe. Does it apply in a criminal case? I feel like it, I feel like it still does because how often it would be weird if the common knowledge that we all have was only applying to like civil matters. That would be weird to me. Um, but maybe, I don't know. And then. Well, I think between the no answers, it's pretty easy. I would hope. Who knows, I mean patriarchy, but I would hope that the privilege is not having to testify against your spouse. Not that the defendant has a privilege that their wife can't testify against them. That would be a weird way of it, but I don't know, it could be phrased that way. Jesus, this is a really difficult one. And then finally with D, there's the end of the other question. It could be, does that privilege only apply to what the wording in D is, which is a confidential communication? Is that how it works? So can they get a spouse to testify to certain things that aren't, you know, maybe confidential, that kind of thing. I just, I don't have this knowledge, so I'm going to have to guess as, as you might expect. All right, I've decided that I'm going to roll the dice here and I'm just going to take the gamble that this is one of those straightforward ones you never know. I mean, it might not be, but it also might be, and I'm going to hope that the very straightforward and basic answer of B, no because the wife has the privilege not to testify against her husband in a criminal case. I'm going to hope that that is what the privilege is. Uh, it's, I mean, it, it's, it seems like it's what it is to me, but I really wouldn't be surprised to learn that there's more detail there. Uh, and as far as the elimination will go, I'm going to hope A is wrong just because I feel like the, the privilege should work the way that it works in B and then I also would say that I would eliminate D, so I'm kinda down to B or C, like it's possible that the testimonial privilege doesn't apply in criminal cases. Possible. Um, but uh, in D, Yes, because the wife's viewing, of the defendant's clothing was not a confidential communication. Oh Man. I don't know about that actually. I don't know. That could be an answer if that's the thing you ever… Whatever I'm going with B, I'm eliminating A and D, this could be where the wheels fall off here, but uh, in my quest to 60 percent, which is already an uphill battle, which is more likely by the way me getting to 60 percent or Kavanaugh not being a…
ANDREW 01:18:46 No, you getting to 60 percent. No question.
THOMAS 01:18:54 Because that's like 1.3%. And Kavanaugh was like .003% roughly. Is that what you… All right, I'm going with B.
ANDREW 01:18:59 All right, and if your wheels have not yet fallen off and you'd like to play along, you know how to do that, just share this episode out on social media. Include the hashtag tttbe, include your answer, your reasons therefore, and we will pick a winner and shower that person with never ending fame and fortune, fame and fortune not guaranteed.
THOMAS 01:19:16 All right, that's it for today's show. Thank you so much for listening. I hope you're as depressed as I am, as normal. As that great comic recently said, the doctor is looking at the patient going, "I found the problem, uh, you seem to be paying attention to what's going on." That's how I feel. So I hope that's how you feel too. That means you're nice and informed along with us. But hopefully, uh, there's some positivity to offset that here and there. So thanks for listening and we'll see you on Tuesday.
ANDREW 01:19:44 Until then,