Advisory Opinions - Jack Smith Scolds Judge

Episode Date: April 9, 2024

Things get heated in Trump’s classified documents case. In a court filing this week in Donald Trump’s classified documents case, special counsel Jack Smith challenged Judge Aileen Cannon by vowing to appeal any decision that included the Presidential Record Act in jury instructions. David and Sarah discuss Smith's public move and what it means for the case. The Agenda: —Sarah's recaps her defamation law musical experience —Justice Sotomayor's age raises questions about the right time for Justices to retire —Is Trump's defense counsel actually good? —Jack Smith's frustration with Judge Aileen Cannon —Answering questions from high school students —Yes, we're still discussing work-life balance Show Notes: —Presidential Records Act —New York Times Company v. Sullivan Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger with David French, and we will continue some of our listener comments, questions, potpourri from last episode. But I left you on a bit of a cliffhanger for that high school quiz. If the Supreme Court denies a petition for writ of certiorari, it means that... Okay, but we're actually not going to start with that, but we will get to it. First up, David, I just got back from a glorious week in Texas. The blue bonnets were out and so were all of the tickets for the Taylor Swift

Inn of Court show that I went to. Totally sold out. It was incredible. Words won't describe it. So first of all, to all the AO listeners who came out, including an electrical engineer who drove from Austin, a family with a high school student, and her best friend who drove down from the woodlands. the Inn of Court. And special thanks to the president of the National Inn of Court Association, Judge Barbara Lynn, who came down from Dallas and awarded the Walker Inn of Court with event of the year for last year's musical number. But David, this was extraordinary. And for people who are curious what it was like, I guess my expectations were off. You had high expectations, though. You had high expectations, though. You had high expectations. I did.

I guess I just thought it would be like sort of a campy, funny, law, high school musical style. And it had all those aspects, which I love. But actually, I learned stuff. So, for instance, they did what amounts to a, I don't know, 10 minute oral argument from New York Times v. Sullivan. They had nine people playing the nine justices asking their questions to the three different advocates. And I never had gone back and read the full oral argument for New York Times v. Sullivan, for those who are not lawyers listening to this, that's where we got the defamation standards, right? That like, it's not just that

it's false and that it hurt you and your reputation, you have some damage, but that it was knowingly false, maliciously false for a public figure. So the whole thing was explaining New York Times v. Sullivan, all the cases that have come after it and have sort of wheedled it down into its current somewhat confused state and sort of the ghost of Christmas future, if you will, Justice Thomas saying, or we get rid of the whole thing. It's totally a textual with the First Amendment. But it was Taylor Swift. She's suing her exes for defamation. They're suing her for defamation. And there's this great quiz show where they're trying to teach Taylor Swift about defamation. And the answer to every question is, it depends. What's the difference between a public official and a government official? It depends.

What does it mean to be malicious? It depends. And sort of how confused the law has gotten through there. So actually, this was a really good way to learn about defamation law. If you like, can't be high school musicals over the course of an hour performed by law clerks, lawyers, law professors, and a smattering of federal judges in the mix. The lead who played Taylor Swift is a professor at South Texas Law. She was incredible. So for any of the students over at South Texas Law who have Professor Jankowski for torts, congratulations,

you've already won. So David, my point is you really missed out. I know that I did. I know that I did. But I did feel that I got a little bit of a taste of it on the podcast when we actually had the greatest Zoom singing ever done across slight time lag delays over the internet. It was really, so I got a great preview, but I do wish I could have been there.

I've never remotely seen anything like that. All of Taylor Swift's ex-boyfriends were played by current Fifth Circuit law clerks who really took the part seriously. And it was very impressive. The one who played Jake Gyllenhaal in particular, I mean, my hat's off to you. You really embodied Jake Gyllenhaal's, you know, why Taylor wrote the song about him. And he seemed like he would steal a red scarf. So but David, before the show, even there was a live band, an open bar, members of the cast were singing with the live band. I mean, it was a raucous party for total nerds. That sounds fabulous. I'm so glad you got to see it.

All right. Next up, David, there's been a big discussion about whether Justice Sotomayor should retire. And this discussion has mostly been happening on the left, of course. I was just curious if you have thoughts on Supreme Court justices' retirement. I think it's worth pointing out that it literally doesn't matter what anyone thinks. It will not affect Justice Sotomayor's decision one bit. But their argument goes something like this. She's 69 years old. She's had diabetes her whole life. And right now, Democrats control the White House and the Senate. After November, any of that could change. And really after January, for those who would like to be accurate, like me, if they lose the White House, if they lose the Senate. And so they're like, look, now's the time she should retire at the end of this term and, you know, give some time to find a replacement.

Obviously, they're experiencing some PTSD from the Justice Ginsburg failure to retire. She, of course, passed away in September of 2020 and allowing Donald Trump to fast track a replacement through the Senate, Justice Amy Coney Barrett. But, you know, Justice Thomas, Justice Alito, there's there's lots of justices who are older on the court. So what are your thoughts, David? Well, a couple of things. One, I totally get where Democrats are coming from after the Ruth Bader Ginsburg situation. That, you know, if the thinking is,

well, we have the presidency now and we have the Senate now and we have the Senate now, and we absolutely have no idea when we'll have it in the future. I mean, there's just a lot of sort of cold Machiavellian logic to it. But that logic would have applied to Clarence Thomas just a couple of years ago as well. I mean, similar age when Trump's term was winding down. similar age when Trump's term was winding down. And I'm just, A, I think when you're talking to a justice of the Supreme Court who feels fine, who's healthy, and they're 69, and they're totally fine, other than, you know, diabetes that she's managing, I just think it's kind of a waste of time. I mean, this is just a waste of time.

I get where they're coming from. But the problem that we have is, it's so this, this is very reminiscent of the Biden decision to run again, in that you can sit there and you can know that we're on a very bad path when we're saying that people are going to stretch their careers to the absolute, absolute limit. That is a bad path because the vast majority of people, I've never met a human being who was peak performance in the last two to three years of their life. You know, that's not a common thing. So we're asking, people are stretching out their careers to the very, very end. And everyone on the outside, now I don't think this applies to Justice Sotomayor

because she's 69. That is not the age where we've been worried and fretted about. That's not the age that people worried about with Ruth Bader Ginsburg, by the way. She's substantially, she's a distance from that. But of course, if Trump loses, I mean, if Trump wins, and then if a

Republican wins again, I mean, you could be talking sort of indefinitely locked out. But we're in this dysfunctional moment where people are really pushing their careers to the absolute, absolute limit. And it has just not been good for us. It's not good for the country. I don't think it's good for the individuals involved, but I don't think that applies to Justice Sotomayor yet. If this was eight years from now, or even maybe four to six years from now, depending on how her health was, I don't think it applies to her yet,

but we are looking at this same reality. And look, we'll have it, Clarence Thomas is in his 70s. If Biden wins again, he's 75 years old right now. If Biden wins again, then he'll be looking at his 80s. He'll be getting close to his 80s by the time another presidential election happens. And we're right back in that situation. So A, doesn't apply yet to Sonia Sotomayor, but B, justices need to start retiring earlier and politicians need to start retiring earlier, just as a general matter.

All right. So two additional thoughts. One, to throw some ages out there. So Justice Thomas will turn 76 in June. So he, in fact, will turn 80 years old at the end of a second Biden term, if that were to come to pass, Ruth Bader Ginsburg was 87 when she died, which means that her opportunity to retire came well into her 80s, actually. Now, if you want to go back to when Barack Obama had the Senate and everything like that, fine, but she was still in her 80s at that point. So A, what's the limiting principle? Justice Sotomayor is 69. You can get someone younger.

True. You can get someone younger than Elena Kagan, though, also. So should just everyone retire at the end of a president's term so we can put in the 30-year-olds? What about those really precocious high school students who are going to do so well on this quiz that we're going to read?

So A, there's no limiting principle. I think the Ruth Bader Ginsburg conversation was different because she had already battled cancer. She was in her 80s. I think that you can, maybe there's not a bright line, but there are just things that distinguish that compared to Justice Sotomayor. But number two, David, and this one's my really unrealistic one. I do not like justices retiring with political calculation for their replacement. I don't think it's good for the institution. And I get it. Pretty much everyone's been doing it now for decades. Nobody cares what I think. I'm Pollyanna about this. But the idea that Justice Sotomayor, who and again, this is a big assumption, right? She's feeling totally fine. She would otherwise stay. And she looks at the polling

in June and is like, oh, I need to retire to make sure my replacement is appointed by President Biden. I don't love that the same way that, David, I agree with you. I don't love justices staying until they're at death's door, until they're way past any normal retirement age from any other business. If you can't serve on a corporate board, maybe you shouldn't serve on the Supreme Court. And so both can be true to me. I believe that they should retire. I believe those retirements should not be so politically motivated. But obviously, Justices Kennedy and Breyer both retired in the administration of the party that had initially appointed them. And it's not that I think they're bad people or somehow hurt the institution. It's just that on the whole, I don't love it.

Yeah. And, you know, on the age issue, one of the sad things about it is it's very hard to draw a hard and fast line. I have met people in their early 80s who are extremely vigorous, extremely sharp. And then people in the early 80s who are sunsetting and very dramatically and rapidly. There's no proper formula here. But what we have seen is that often everyone else sees it before the relevant person

who has to make the decision sees it. And this is just normal life, Sarah. This is the way this goes in all of our families and everything. I've even talked a bit about giving my kids something like, you know, how the senators have to turn in the blue slips before you can get nominated. My kids have like the, it's time to retire slip that they, if they all give the, if they all turn in dad, it's time to retire slip that I'm, I'm going to step away. And if they turn in the dead, it's time to go to assisted

living slip, then, you know, because it's so hard for the person who is at the center of it, who has all kinds of identity, and pride wrapped in it is surrounded by people who are saying who, who depend on that person for their own access to power, maybe and their own, their own prominence saying, you've still got it in you, you've still got some time left. And in that circumstance, it's just incredibly hard to reach an individual person. And we all know this, which is one reason why mandatory retirement ages, as blunt of an instrument as they can be, are often necessary to sort of just cut off this super individualized decision-making process

that depends on a person waking up to a reality they're often the last person to wake up, the last, waking up to a reality that they're the last person to wake up to. All right, well, some judicial updates. So first of all, we had a ruling from that classified documents case down in Florida from Judge Cannon. She denied a motion by the Trump folks special counsel's team, is saying the Presidential Records Act doesn't apply at all. And so when it comes to those jury instructions, it was sort of a choose your own adventure that she was trying to go with. Jack Smith had turned in his response basically saying no.

So she was like, you give me jury instructions under either of these scenarios. No. you give me jury instructions under either of these scenarios. No. Instead, he said, we'd like you to rule on this immediately because we're going to appeal anything you do which says that the Presidential Records Act is at all relevant. Here are jury instructions, which will ignore the Presidential Records Act entirely.

This was a motion from the Trump team to dismiss it on Presidential Records Act grounds that covered the whole thing. so she denied trump's motion but has still not ruled on jack smith's point uh i don't consider this some huge loss for the trump team there was no world in which the case is going to get dismissed on pra grounds. And I also don't think all is lost for the Smith team at this point. But, you know, they basically said, rule on this so that we can appeal you

and so that we can maybe try to have you removed from the case if you don't rule the way we want. Not giving the judge a whole lot of incentive to rule quickly on that question. Yeah, yeah. You know, that's really interesting because it felt to me like what Jack Smith was doing was essentially saying to the judge in so many words, you're so far out of bounds here. You're so far out of bounds

that I'm just all I care about is the court of appeals and getting you under supervision. And that's an interesting tactical choice, Sarah. It is a very interesting tactical choice. It is not one you normally would make with a U.S. federal district court judge to essentially declare in public, you don't know what you're doing here. You and on the one hand, nine times out of 10, I'd say that's a really bad tactic, because publicly humiliating your judge judges are people they don't love that. And, you know, it's not that necessarily if you take somebody that you think might be biased against you and not terribly competent, and then you just throw that in their face. I'm not sure that's a great tactic. But it's pretty apparent to me, Sarah, what he's trying to do. It seems to me that what he's trying to do is essentially be trying to be the voice of the 11th Circuit for her to say, I'm channeling what they'll do to you if you keep pressing down this

line. But the problem you have is she could just slow walk this stuff. And the 11th Circuit's not going to do one darn thing about it. Because as we've said a million times, the speedy trial aspects exist for the benefit of the defendant. And if the defendant doesn times, the speedy trial aspects exist for the benefit of the defendant. And if the defendant doesn't want the speedy trial, that doesn't mean that the judge has to go with whatever the defendant says. It's just that you have a hard time, as we've talked about at length on the podcast, you have a hard time making a case that the election calendar has to matter in the decision-making process. You and I have gone back and forth on that. And I've said there are unique circumstances here where it should matter. But that's not the norm here.

And so if they want this thing to happen quickly, sort of saying, look here, 11th Circuit is peering over your shoulder and we want to go to it. Heck, she might say, yeah, fine. Okay, everything stayed. Let's do this at the 11th Circuit. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day

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Listeners can save on the perfect gift by visiting auraframes.com to get $30 off plus free shipping on their best-selling frame. That's A-U-R-A-Frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. So Jack Smith's filing raised an interesting problem for Jack Smith's team. You know, we've talked before about how our system is rigged in favor of the criminal defendant in so many different ways and for good reason. But Jack Smith's raising a problem here, which is if she's going to insist that the Presidential Records Act be part of the jury instructions, which they think is legally incorrect, but she doesn't make that

decision until after the jury has been impaneled. Right. Jeopardy attaches, meaning there is no appeal for the government anymore. Now, defendants still have an ability to appeal jury instructions if those are false. You know, you get convicted and you think the jury instructions were legally incorrect. You can appeal that. But remember, once you have an acquittal, once you have a jury impaneled, double jeopardy attaches. So if there's an acquittal, the government doesn't get to appeal that.

We could footnote this with some very extreme exceptions where there was no jeopardy, the jury had been bribed, things like that. But for our purposes, Jack Smith is waving a flag saying, if you don't decide this before the jury is impaneled so that we can appeal it, we will not get to appeal it at all. The jury instructions will be legally wrong and he could get acquitted because of that, to which the sort of more, not conspiracy minded, but if you think that she's putting a thumb on the scale in one direction or another, yeah, that would be kind of a roadmap, right? Like you wait and make some of these decisions after the jury's impaneled. You know, it's the dilemma Jack Smith is in. It's like he's got the reverse dilemma in each of his two cases. In D.C., he's got the judge that he wants,

who's ready, you know, rocket docket, ready to go. Let's try this case. But he has the legal issues that create delay. In Florida, he's got the case that he wants. It's pretty clear. It's not a difficult proof problem. I mean, of course, there are complexities around anytime you're litigating over classified documents, but it's a very straight ahead case by comparison. And you've got exactly the judge you don't want.

Which I said could be very good for Jack Smith in the sense that if he gets a conviction up in D.C., there's going to be so many different ways that Donald Trump can appeal that conviction because the judge has ruled against Donald Trump on every single thing. If he gets a conviction down in Florida, there's going to be very little appellate issues left for Donald Trump, because he's getting almost every motion and every, you know, sort of tie going his way. So, you know, in that sense, if Jack Smith can overcome some of this and still get the conviction, he's in better shape, I think, in Florida than in DC. The problem will be, of course, he doesn't get the conviction.

You know, Sarah, I got a really good question from somebody that I have an answer to, but I'm very curious about your answer. And this is all related because there's been a lot of press around, well, Trump's been poorly served by some of his attorneys and that especially in some of the civil cases, there have been some pretty dramatic errors that made the news. And then there's been a lot of talk that Trump has had trouble maybe finding stable defense counsel, like to find the defense counsel that he wants to ride into legal battle with.

But on the other hand, Sarah, basically if you're gonna map out how have things gone for Donald Trump in court over, in the criminal cases, not the civil, the civil has been another thing, but in the criminal cases, how have things gone for Donald Trump over the last three to four months?

And the answer is actually consistently pretty well. He's had some assists, some very clear assists. Fannie Willis, for example, gave him a major assist with this relationship that she had. Eileen Cannon has given him some assists. But somebody was asking me, is it time to reevaluate the quality of Trump's defense counsel? Because everything seems to be going his way.

And has sort of the Trump trouble in getting attorneys been way overblown? And actually, are they litigating circles around the prosecution? Was the question that was asked to me. And I'm very curious what your answer to that would be. So I think per usual, remember when there was like this thing on the left of Trump is both stupid and an evil genius? Right, yes.

And it was like, no, you just want that to be true and it makes you feel good, but it actually is why you're missing the political appeal, so to speak. And both can't be true in large respects. So when it comes to Trump's defense, I think there's something similar going on. Everyone just assumes that no lawyer worth a damn

would ever work for Donald Trump. And they're just sort of ignore who his legal team is at this point. And his legal team is pretty freaking impressive. So Todd Blanche, former partner at Cadwallader and former AUSA in the Southern District of New York. And this guy knows what he's doing. Sorry. He, by the way, was a Democrat who switched his party registration to Republican and moved his family down to Florida for this case. And he's doing the Manhattan hush money case, the DC election subversion case, and the classified documents case that we're talking about here. Like this is not just a real defense attorney,

like a top tier, number one, go-to white collar defense attorney. So that's number one. And then number two, you know, Jonathan Mitchell, who argued the immunity question. Right. He was the Solicitor General of Texas, a University of Chicago professor. Like, again, you can think Jonathan Mitchell

has some kind of kooky views on some things. Right. This isn't a dumb person at all. This is a brilliant person in terms of IQ and the law. So I think people would be wise to take seriously Trump's team around him and not buy into, I think, what some of the left wing fun time is, which is making fun of like Alina Haba and what a moron she is. You know, would you rather be pretty or smart? Obviously, I'd rather be pretty. Yeah, like that is mockable. But then you're missing the like legal powerhouse team that he actually has. And that's how they're winning some of these.

Well, the way I put it was, look, A, they're a lot better than you think they are. B, they're playing a strong hand well. If you're talking about delaying a case for a few months, their situation right now is step one for them is to think, hey, let's try not to even have these cases at all, which would mean delaying them. If you delay them, there's a chance you don't have those cases at all.

And as we have said from the beginning, complex white collar cases, and these are all complex white collar cases, are just delayed all the time, all the time. It is the path of least resistance to delay these things. And so that's their strong hand. Now, when or if the cases actually get into court, then I think you're gonna really see the test

because in some of those cases, they have a much weaker hand on the merits. They have a very strong hand when it comes to, hey, should we have this case by July of 2024? It's a much tougher case when you're talking about what are the merits, for example, of the documents case. And then it's a tougher case when, although better for the defense than the documents, it's a tougher case on January 6th. So that's going to be a big test. But I will say they have played their quite strong hand well so far. Yeah. And there were also always problems with

these cases. I mean, we've run through the strengths and weaknesses of all four cases at various points. They had real arguments to make. Yeah. So they're making them. And both that allows for delay, but it also means you're going to win some of them. Like they weren't frivolous arguments. Now, it's very interesting that of all of the four cases, it looks like the one that we are pretty sure is going to actually go to trial

is the one that is actually seems to be the weakest. And this is a case that's fascinating to me because on this ground, Sarah, a lot of us, and this is another question that I got recently, a lot of us, if there is a consensus in the legal community, and that is a very hard thing to ever say that there's a consensus in the legal community,

but in this circumstance, I think there's a solid consensus that this is the, quote, weakest of the four cases. But it's also might be going to trial. And I got the question, well, what if he's convicted? Does that change your assessment that it's the weakest of the four cases? And that's a really interesting question.

My position on it being the weakest wasn't necessarily related to whether or not you could get a conviction on this law. Oh, mine wasn't whatsoever. Because remember, the jury only gets to decide questions of fact. Right. The jury instructions will direct them on the law.

The legal infirmities with this case are legal problems. Right. You know, the theory of the crime he's being charged with. The facts aren't really in question very much. There's a few facts that the jury could, I think, find don't meet the standard based on whatever the jury instructions are. But I wouldn't be surprised if there's not actually a whole lot left for the jury to decide. So, yeah, I never thought that the conviction was relevant to the legal problems with the case. Yeah, because if you remember, there was a two-step process to make this a felony instead of a misdemeanor.

What was the bookkeeping error, was the fraud, whatever, committed in conjunction with another violation of the law, another felony or another violation of the law. That has always been the open question with this case. What is that other violation of the law? How are you hooking this in? And then the other thing, which is a legal issue that I think everyone has said, we don't have clarity on that.

And there still is not a lot of clarity on that. So that's the legal issue that has led a lot of people to have some questions. And then the other practical matter is, Sarah, let's say he's convicted. It'd be a first time lowest lot less than the civil judgments that he has been receiving. So that's an all likelihood. Now, the judge may, he may be convicted and the judge may impose some sort of modest jail time on top of that? I don't know. But in most circumstances, when it's a first-time nonviolent felony for which there's sort of an option

between prison time and a monetary fine and you have no previous criminal record, you're often just getting a fine. So from that standpoint, that's again related to, okay, this criminal case against Trump, which what is the just outcome here? Speaking of bad days for Jack Smith and the special counsel's team, there was another hearing that got some news attention. So first of all, the House Judiciary Committee,

which is run by Republicans, sent some subpoenas over to the Department of Justice to talk to two of their attorneys who had been involved in the investigation of Hunter Biden's alleged tax crimes. So the Department of Justice basically ignored them. And Judge Ana Reyes, who's a Biden appointee for the federal district court in Washington, took the better part of an hour just tongue lashing DOJ for the federal district court in Washington took the better part of an hour just tongue-lashing DOJ for the rank hypocrisy of instructing the lawyers not to comply with the House subpoena.

Here's one of the quotes. There's a person in jail right now because you all brought a criminal lawsuit against him because he did not appear for a House subpoena. That's referring to Peter Navarro, the one we talked about in the last episode. And now you guys are flouting those subpoenas and you just don't have to show up. I think it's quite rich. You guys pursue criminal investigations and put people in jail for not showing up,

but then direct current executive branch employees to take the same approach. You all are making a bunch of arguments that you would never accept from any other litigant. And it went on from there. Yeah. And interestingly, she had pretty harsh things to say to the House Judiciary Committee as well. For instance, their stance that line lawyers working at the Department of Justice were not entitled to attorney-client privilege. justice were not entitled to attorney-client privilege. She said she thought it was absurd for them to argue that that privilege was waived because it was obscuring some crime within the executive branch. I don't think you guys are going to win that fight,

the judge told the House lawyer, that she can't imagine ruling for them on that. And so what she did was send both parties back, give them a deadline, and say, work it out, or I will make a decision. And this, by the way, is something that we haven't talked a ton about on this podcast about the accommodation process, and how fights between the executive branch and the legislative branch are resolved over things like the subpoenas or documents. Obviously, I had quite a bit of experience with this during my time in the Department of Justice. But there's no good answer. And there's not even like a five step process or a three factor test.

It's, in fact, just called this accommodation process where the two sides are supposed to like arm wrestle it out for a while. And the judiciary is there is kind of roughing what's fair. But by and large, those two sides are supposed to come to an accommodation about what's going to work and what's going to happen that sort of preserves each branches institutional interests and independence. So I just thought that was a fun little, fun little moment, because we get a lot of comments from the pod that all of these judges just act in sort of their, you know, partisan interest or something. And like, clearly, this is a judge not doing that, and pointing out some real problems with DOJ's conflicting positions in two different cases. And for everyone sort of

making fun of Peter Navarro's case, and him not wanting to go to jail for what he did, like, well, look, here's a Biden appointed judge who seems to think that not that Peter Navarro is innocent or shouldn't be in jail, but the DOJ hands aren't entirely clean on this. Well, you know, this is one of those areas, Sarah, where we've had this process as polarization increases, where we say, OK, well, if you prosecute Trump, then the next Democratic president will be prosecuted by Republicans. Or if you do this, then Democrats will do this or Democrats do this, then Republicans do this. And so you've had a lot of these arguments for these escalating uses of lawfare as sort of an illegitimate exercise of legal power to punish your enemies.

That would be a definition of lawfare. And some of those, a lot of those, a lot of that escalation doesn't quite play out the way people say that it will. But in this area, in this area, we have seen it play out. And it's the same pattern. When you're out of power at the house, you look at these house subpoenas and you say that the subpoena is lawfare. They're just dragging me in front of this house panel. They're trying. This is not a legitimate exercise of congressional authority. They're trying to annoy me. They're trying to vex me. They're trying to harass me. I'm not going to answer this. And then you flip around and you get the investigatory power and all of a sudden,

all of it flips back. It's the other side that was just subpoenaing saying, nope, this is lawfare. I'm not going to comply. We've been through this now with three separate administrations from Obama to Trump to Biden. And this is one of those areas where that predicted escalation of legal battle has actually come to pass. And I feel like that scolding could be, I mean, let me just be wildly, unreasonably optimistic, Sarah. It's just going to take a few, it will take that scolding and a few more to snap people out of this. But we'll see. All right, last thing.

We're in procedural no man's land down in the Fifth Circuit. There was a lawsuit about the credit card late fees and a rule that was going to limit those by the CFPB. There was a lawsuit filed in the Northern District of Texas. This is the one where all of the hand-wringing about forum shopping has been going on. And remember, Texas basically said gnaw-dog to the suggestion from the judicial conference that judges be randomly assigned

from the district and not this specific division that a lawsuit is filed in. So Judge Pittman in the Northern District of Texas gets this case. He makes an initial ruling on one of the motions, and the plaintiffs, the anti-regulatory side of this, appeal that decision to the Fifth Circuit. While that's going on, Judge Pittman transfers the case to D.C., saying, look, this case wasn't properly filed in the Northern District of Texas. Yeah, you found like one party that's up here, but everything about this case belongs in DC. I'm sending it to DC. No more of this forum shopping. I'm taking care of this myself. Well, the plaintiffs appeal that to the Fifth Circuit also saying, first of all, he didn't have the pen on

the case, right? They had appealed that case to the Fifth Circuit. Once they filed that appeal, the case then belonged to the Fifth Circuit. So he couldn't transfer something he didn't have anymore. Second, that sort of forum shopping is not one of the reasons that you can transfer cases. So. Right. In a two to one decision with Judge Willett writing and Judge Oldham agreeing, they said, yeah, Pittman had no ability to transfer this case for those two reasons. But here's where things get weird. So Judge Higginson dissented and he's got this great line at the end that I thought would be fun to explain to everyone.

So David, this is literally the last line of his dissent. Finally, I am confident the district court for the District of Columbia will give the suggestion that it should disregard a case docketed by it, its closest attention. Judge Higginson is a courteous and well-regarded judge. That, as Rafi Milkonian said, Judge Higginson's dissent suggests that maybe that's not a thing. So we've got the pen flying all over the place, right? First of all, the plaintiffs are arguing

that the pen, and when I say the pen, does that make sense to everyone? Like when you're editing a document and it's a group editing exercise, like one person has the pen at a time. This was before the time of Google Docs. So I'm using that. And it's even more important in the era of Google Docs for one person to have the pen. That's right. Okay. So Judge Pittman, the case gets filed in front of him. He has the pen. He makes his decision. They appeal it to the Fifth Circuit. The Fifth Circuit has the pen. That's right. Okay. So Judge Pittman, the case gets filed in front of him. He has the pen. He makes his decision. They appeal it to the Fifth Circuit. The Fifth Circuit has the pen. Then Judge Pittman, without the pen, sends the case to the D.C. court that has docketed the case. So they claim to have the pen. And the Fifth Circuit then says, you don't have the pen.

We have the pen. Judge Pittman, tell them that you accidentally gave them the pen. That was their thing to Judge Pittman. And Judge Higginson is like, yeah, no, they have the pen. And like your suggestion that they give back the pen is just that you can't order them to do that. Because in fact, we didn't have the pen. Judge Pittman always had the pen because that's what district judges do. They always are holding the pen. David, I have no idea who has the pen at this point. I have no idea. Are there two pens? No, this is not Schrodinger's pen of a CFPB case. There are two pens, Sarah. Someone doesn't have the pen at all. And we may not really find out because if the D.C. court simply sends the case back, then the mysterious slash non-existent second pen just disappears, in which case we never decide which pen really existed. But if you're into civil procedure, this is the case for you. Because it's weird.

It's so weird. And it just raises the question, can a pin materialize in the quantum realm? No. No. No, it cannot. But there's like a political valence to this case because it's about the CFPB. And obviously the plaintiffs don't like the CFPB. They don't like these caps on late fees for credit cards.

It's the judicial forum shopping side. This is the Northern District of Texas where the debate rages most fiercely. And you had sort of a judge trying to do some self-help here. So there's a lot of eyes on this. So again, if you're a civil procedure nerd, tune in. We'll let you know who had the pen. No, I found it fascinating.

And do you ever have a situation, Sarah, where you read a sentence and you have to read it about four times to know what it's trying to say? Yes, this case. That sentence. Wait, what was he? And I finally got it. And yeah, it's a crazy case. All right, we're going to do some of our questions

from that high school class. Thank you for sending in these questions. And thank you to Jack for polling your classmates for a high school advisory opinions. And then we'll end with some, I thought, thoughtful comments on our work-life balance pod. Yes. Okay, so first, David, I'm going to read you the question

and the four multiple choice answers, and then I want you to balance pod. Yes. Okay, so first, David, I'm going to read you the question and the four multiple choice answers, and then I want you to pick one. Okay. If the Supreme Court denies a petition for a writ of certiorari, it means that, A, the court considers the decision made by the lower court to be incorrect.

B, the court has chosen to remain silent on any constitutional issues raised by the case. C, the court does not believe that the case raises any constitutional issues. D, the court believes by the case. C, the court does not believe that the case raises any constitutional issues. D, the court believes that the case raises an issue of national importance. B. That is very much the correct answer in real life, but it was not the correct answer on this quiz. Wait a minute. I know. I'm pretty confused. Okay. Jack tells me the correct answer was C, the court does not believe that the case raises any constitutional issues.

But for longtime listeners of Advisory Opinions, you should know that the court denies cert for any number of reasons, including they just don't feel like it. Right. It doesn't mean that it doesn't raise constitutional issues. All sorts of cases. In fact, I wouldn't say the majority of cases with cert petitions pending, but certainly the majority of the cases that we are following, and we don't talk a lot about pending cert petitions because so many get denied over 90%.

So for us to talk about it would kind of waste your time. But the majority of those serious ones that we follow raise constitutional issues, but they've got a procedural problem, or there isn't a a circuit split or it's just not that interesting of a question or they ruled on it recently and they want to let it percolate at the lower courts for a little bit longer. So, B, the court has chosen to remain silent on any constitutional issues raised by the case as long as you read that to mean on any constitutional issues that might have been raised by the case. Right, right. That's the correct answer. Yes.

I do love our student, Jack. The teacher, I guess, explained the angry cheerleader case and asked the students how the precedent set by Tinker might apply to it. She said, how do you think the angry cheerleader case came out? And our little listener, sorry, Jack, I don't mean to be condescending. Our very smart listener said, I think it was 8-1 in favor of the angry cheerleader

with Thomas dissenting. I love our listeners. The teacher was a bit surprised. And she said, did you look that up in sheet? And he was like, no, I listened to this podcast, Advisory Opinions. So you can see why then I asked Jack, Jack, send us all your questions. We are at your disposal for the remainder of this episode. So one, David, here are his questions. How does the supremacy clause in the U.S. Constitution impact the relationship between federal and state courts in interpreting and applying laws.

Did Jack write this or like a third year law student in Fed courts? Are we being trolled by a natural schooler? There's like a semester long class on that, Jack. So Jack, I'll try to give you the super simple version, but it's not going to be totally correct because, yeah, David's right. It's super simple, yeah. totally correct because yeah, David's right. But yes, most of the time, the federal government, because of the supremacy clause, can have sort of the whole lay of the land on an area. But a lot of the time we're arguing about whether they've preempted the entire area of law or just one

section of law. So that's the argument we're having over immigration in that Texas case, for instance. Can Texas do some things as long as it doesn't directly contradict existing federal law? Or has the federal government basically controlled the entire area of immigration so that states can't do anything related to immigration? It's a huge ongoing question and there's no good quick answer. No, no good answer. The good answer, the quickest answer is when you have an actual conflict of laws, when you have the federal government saying yes and the state government saying no. Federal government wins in that circumstance if the yes is constitutional.

In other words, if it's acting in its constitutional authority. But when you're getting to occupying the field analysis, in other words, is the federal government legislated so much on this that there's no room for the state to do anything else, even if it is advancing the federal purpose? That's a sticky, messy area. And they're not in conflict in this case. Right. It's that state has a law. The feds don't have a law contradicting it, but they have so many other laws. Think Federal Drug Administration stuff. That's an area of, you know, where largely they've held that the federal government occupies the entire zone, but not

entirely. Right. Right. And then there's the whole commandeering thing where the federal government can have a policy and it can be a constitutional. In other words, it's a policy they can pursue constitutionally, but they can't go ahead and make the state police do it for them. Yeah, the states can't. The feds can't force the states to enforce federal law, basically. Right, right. But again, there's exceptions to that because what is commandeering versus incentivizing? Right.

Here's some money if you enforce our law. All right. So, Jack, we'll have a law professor shipped out to your house shortly. Number two, what kind of cases does the Supreme Court handle? Well, that kind of gets that question in the quiz because by and large, they can handle any case involving federal law with an issue that's appealable. Now, there's some issues that aren't appealable. And then under the Constitution, right, there's those federal appeals issues. And then there's original jurisdiction where the states sue each other or about ambassadors.

And that's why those original jurisdiction cases tend to be unanimous and kind of fun in a way, short little opinions, because they would normally have been resolved at a lower court, except that the constitution says that the Supreme Court has original jurisdiction. What I think is more important, David,

is what cases the Supreme Court doesn't handle. And that is interpretations of state law by state Supreme Courts that do not raise any federal constitutional issue. The U.S. Supreme Court can't overturn your state Supreme Court just because it's a dumb ruling. Right. Exactly. And which became very relevant in the 2020 election, because the question became when state Supreme Courts had issued decisions regarding state election rules, what about that could be appealed? And the only thing that could really be appealed was to the extent that the state election rule, you argued, violated the federal constitution. But if it didn't violate the federal constitution, that state election rule is

determined by the state Supreme Court. And this is some of the independent legislature doctrine controversy that we talked about at length previously. But yeah, it is often, it's interesting when people realize that the Supreme Court is not actually the court of last resort in all cases. All right. Next up, man, I mean, each of these questions is at least one day of a law school class, if not an entire semester. What qualifies a case to go to the federal courts? See, Jack, you might have thought that was an easy question, but it's not. So obviously, you know, questions arising under the Constitution or under federal law. Yep. Those get to go to federal court. But there's a few other things, including civil actions between citizens of different states. exceeding $75,000. That's called diversity jurisdiction. So basically, the idea is you don't want one state, you know, sort of having a hometown advantage for their boy. Yeah. And so

if you're suing someone in a different state, and it's worth a lot of money, right now, it's $75,000. You can go to federal court, even though it's not a federal question. It's a state question. But you get to go to federal court anyway. Now, this gets really weird if, for instance, there's no clear state Supreme Court interpretation of that state law. That's how you'll end up certifying something to the state court. The federal judge will ask the state what the answer is to the interpretation of that state law question. And yeah, I, David, correct me if you think I'm wrong about this, but the vast majority of federal cases in the country

are diversity jurisdiction cases. More than, well, putting aside the criminal docket, but the, sorry, yeah, the, I forgot about, I was talking civil. Yeah. Yeah. I believe that's right. I mean, when I was a commercial litigator, basically all of my federal cases were diversity cases. Right. When and then when I switched over to doing constitutional litigation, which is federal question jurisdiction, then I kind of lost track of the whole diversity jurisdiction world because I was always raising a federal question. But I, you know, one of the interesting elements of commercial litigation or of civil litigation generally is this dance between the defense who's always trying to get into federal court and the plaintiff that's who's always trying to stay in state court. And the reason, I mean,

always is a strong word, almost always. And the reason is when you are in state court. And the reason, I mean, always is a strong word, almost always. And the reason is when you are in state court, you often have different, you have different rules and you have different standards regarding, you know, some of the different standards is the wrong word, different traditions of jury awards. So when I was practicing, Eastern Kentucky was known, in the Eastern Kentucky state courts were known for very generous damage awards and for rarely granting motions for summary judgment. The state rules of civil procedure had, it was harder to win a summary judgment motion in the state rules of civil procedure

than the federal rules. The federal juries were sort of more stingy. It tended to be more stingy. So you're always having this battle. Do we have to practice this in the state if you're on the defense or can we get into the federal courts? And then it results in some weirdness

because years and years ago, Sarah, there was a great story, I believe it was in the Times, about this pharmacy in one single rural county in Mississippi. It was like the most sued pharmacy in America because that county had juries that loved to give out big dollar awards. And if you wanted to take on big pharma and you didn't want to be in federal court, you needed a local defendant. And there was this one pharmacy in town. And so that pharmacy got sued for dispensing all of the drugs. And you didn't really care about getting any money from the pharmacy. You wanted it from, say, Pfizer. And so you pulled in the pharmacy to try to stay out of federal court. Next up, how are federal judges picked and nominated?

So there's an old saying, Jack, or a joke, I guess. What's the difference between a lawyer and a judge? The judge knows a U.S. senator. Look, that's kind of the simple answer here. Now, there's a whole process on the nomination and confirmation side. But to start at the beginning, basically, you're a lawyer who is well known in his or her area, by which I mean both potentially your area of practice, but also your geographic area.

And you get noticed and people start talking about how you should be a judge. I mean, I know that sounds kind of silly. And yes, you're going to need to know someone in DC, either in the White House Counsel's Office, the Office of Legal Policy, or US Senator, and sometimes rarely a US Congressman could help. Now, this is why you're going to see so many people coming from US Attorney's Offices, federal prosecutors, because that's kind of a way to get on the radar screen. It's why you're going to see people who clerked with someone who was in the Office of Legal Policy at the Department of Justice. Their co-clerks are going to get a leg up because the person who's sort of putting together the shortlist for that judicial vacancy is going to know who you are. It's a little like sort of a Cheney version, right? Dick Cheney put

together the vice presidential list and then he didn't pick himself, but the sort of lore goes that he picked himself. There's something like that when it comes to like people you went to law school with or you clerked with or your, you know, buddy, et cetera. Also, those people are going to ask around. They're going to check out your reputation. They're going to call folks. Now, that's one sort of easy explanation, But it gets a lot harder when, for instance, the president is of a different party than both senators in the state. The senators often, and I can speak for Texas, for instance, have a judicial nominating committee that they sort of farm this out to. And so those people will interview a whole bunch of people that want to be judges.

Maybe it'll be like a dozen prominent lawyers from the state. So they'll interview a bunch of potential judges and they'll make recommendations to the senators who will then make recommendations to the White House. Now, why does the White House care? Because there's this thing called blue slips for the district court judges

where it's courtesy, basically, if a senator does not return the blue slip, and yeah, it's literally a blue piece of paper, then that nomination doesn't move forward. There's been a lot of talk of getting rid of the blue slips. In some cases, they have just ignored the blue slip process. So again, we're getting kind of into the weeds. But that's the big problem is a president and two senators from the state of different parties.

It's a different problem when it's a president and two senators from the same state, because then sometimes they're fighting over which of all of the people they like, they want to get that spot. And you'll have lots of maybe even angrier phone calls between senators and White House counsel lawyers about how like, nope, it's going to be my guy who's going to get this spot, not your guy. This is my state. I'm the senator and I'm going to blow up the president or not do that fundraiser or whatever else. So there's just a lot of politics involved, which is why we get back to the original phrase, you know, saying the difference between a lawyer and a judge is the judge knew the senator. And, you know, I think that's a great explanation. And it's very interesting when you're in a legal community.

You know, it's weird, Sarah, you know, who are you know, who's in the stable of potential judges? Yeah. Now, there might be an extra person in there who gets tapped unexpectedly, but as a general matter in a legal community, there's a profile and nobody ever says, or I've never seen someone say, I want to be a judge. But you know, the people who want to be a judge and they have a particular career profile, often they've clerked either for a Supreme Court justice or for one of the feeder judges. They have, yes, they might be a litigator at a big firm, but they're probably also adjunct teaching at a local very good law school. They're very involved, say, in various bar proceedings and say, if you have end of court or whatever, there's sort of this community and this fellowship of people who are, oh, they're also publishing law review articles.

So you've got this whole sort of array. And they're just kind of, their names are just always in the mix. And you don't remember ever hearing them say, hey, I want to be a judge. But you know, they want to be a judge. And that's the pool is often that's 80 to 90 percent of the pool comes from that group of people. How does the Supreme Court differ from lower federal courts? What makes the Supreme Court justices better, more qualified? Oh, they know more senators. So this changed a lot with the filibuster, right? Pre filibuster, it was each

side thinking of sort of, you know, let's take the Republican side. The saying was, you want to nominate the most conservative person who can get confirmed. So you're looking at those circuit judges, and you're finding the ones who have sort of the most conservative reasoning in their opinions, but not so crazy that they can't get confirmed over the filibuster, which required a supermajority, including votes from the other side. Well, now we've gotten rid of the filibuster, and I think it hasn't yet fully changed that process. But I think we're seeing it and it's going to more and more as it has for the lower courts. But yeah, in fact, there's been this ongoing conversation, David, and maybe we'll take a little cul-de-sac here and come back to the rest of these questions on the next episode.

Who are the short listers for a Trump presidency 2.0? And for some reason, this has been in the air. I've gotten asked this question like a lot this week. I don't know what's going on. So my answer is really different than it's ever been in the past. Because basically, there's the normie shortlist. And I think that Judge Thapar leads the normie shortlist by such a distance that we don't really need to talk about who's number two on the normie shortlist. Like it's only Judge Thapar. Versus, you know, in the past, I would have told you, you know, there's probably like,

yeah, there might be 10 people on the shortlist that they sort of talk about, but there's really three or four that could get that pick. I just think it's one this time around. The problem for Judge Thapar is that's not the only list. There's also this,

we'll call it the MAGA list that isn't the Normies shortlist. And that's really hard to predict. Like, is Jonathan Mitchell, who argued the immunity case, former Texas Solicitor General, maybe he's the top of the MAGA shortlist at this point. He's never been a judge. That would be unusual, but not unheard of

in the history of the United States. Elena Kagan. Right, Elena Kagan had never been one. And in fact, I think you could see a pretty similar path where he would be Solicitor General and then be nominated after that, the exact same path that Elena Kagan had followed. And that doesn't make, I mean,

I was obviously out there saying Elena Kagan was eminently qualified to be a Supreme Court Justice despite not being a circuit judge. I do not think that should be a requirement whatsoever. I think state Supreme Court judges, even trial judges, certainly someone with trial judge experience, now maybe they've ended up on the circuit court, like Judge Jackson, Justice Jackson, excuse me. So that other list has a lot of different people on it. And I am loathe to rank them, basically, because there's so many different names in the mix. And it's really hard to know who's going

to make the decision in a second Trump administration. And that's part of the problem. I basically maybe couldn't have told you the name of the person making the decision and the other Republican administration. But like I knew who the person, the type of person it was going to be and therefore I knew what the normie shortlist was. That's just not true in a second Trump administration until I know who the attorney general is, who the White House counsel is, et cetera, et cetera. I don't know which list we're picking off.

Yeah, I'm so glad you raised that because a lot of people look at Trump 1.0 administration and say, well, the really good aspect of Trump 1.0 was the judges. And I agree with that completely. I would say that was the salient, outstanding aspect of Trump 1.0. But in MAGA world, there is a lot of regret over a lot of the judges. They don't like Barrett, Kavanaugh, Gorsuch nearly as much. They actually reflect to Alito and Thomas to say more what they want going in the future,

not the three justices selected by Trump. This is something that's not just a Trump thing. I mean, DeSantis was making that argument at the same time. And so I think there's a lot of regret, quite frankly, Sarah, over some of the traditional classical liberal FedSoc judges and justices that were nominated, and they want to go a different direction. And that then connects us with some of the earlier discussions we've had about common good constitutionalism, just sort of raw statism, outcome-oriented jurisprudence, et cetera. So we don't really know

what the model is for a Trump 2.0 on judges and justices. And I agree with you completely. I think Thapar is in the position that Amy Coney Barrett was, Judge Thapar is in the same position Amy Coney Barrett was before she was nominated, that she hadn't made the cut in the previous, in the Kavanaugh decision, but she was the clear front runner for another vacancy. I think with the par, he did not, he did not get the nomination. But he's I feel like he's a clear front runner in a normie, you know, in that same as you're saying in that normie lane. And to be clear, when we say normie, And to be clear, when we say normie, we mean that in the best possible sense.

We do not mean that as a negative in any way, shape or form. We're sorry, Judge Thapar, that we've mentioned you on this podcast at all, because now, unfortunately, maybe we've hurt your chances. But we think you're great. Okay, we'll save the rest of Jack's questions, but I'm gonna give you a preview of one of them because there's still some really good ones to come. What do you think are the most important influential Supreme Court cases?

And again, all these questions are coming from a high school class. So thank you to that class. We'll answer more of them next time. David, I wanted to read a few of the comments that we got on the work-life balance thing because we got some really good ones. So first off, from a full-time doctor and mom married to a guy who has a very full-time

job, three kids, two demanding careers, she says, little disagreement from our pod, work-life balance is harmful and over-idealized myth for those in some professions, law, medicine, public service, maybe others I'm not aware of. It's a myth made all the more corrosive by Instagram. I agree with David about finding unity within one's marriage. Believe strongly enough in what you do to be willing to go full speed and for a very long time. Have kids whenever. We had one in our 20s, one in our 30s, and one at 40 for her, 43 for her husband. It's going to be a challenge whenever you get around to it. There is no best time.

Find your partner and decide together what works best for you. She's been in medicine for 15 years, full time, the entire time, 80 hour weeks for years, but took a step back when her husband has taken this latest job that has him out of town a lot. She's been doing 50 to 60 hour weeks for years, but took a step back when her husband has taken this latest job that has him out of town a lot. She's been doing 50 to 60 hour weeks for the last three years and loving it. Pay for all the childcare you need and feel no shame about it. And this includes transportation, pay for household work, keep daily expectations reasonable. Yes, we eat the same simple meals on rotation. Yes, the nanny cooks more often than I do during the week, but it's a blessing to have fresh, healthy, and homemade food daily, and we have that.

Kids need to do their own work. I do not do daily homework. Of course, it's fine to help with homework if kids don't understand it, but it should not be a daily task. Preach it, preach it. Yeah, she acknowledges that this only works for those sort of high-end professionals,

but she says, I assume that's most of the people listening to this podcast. Make time for yourself and your marriage. Get outside for a walk or go to the gym daily. Even if it's only for 20 minutes, it must be seven days a week. This is my thing about like date night is not enough. Prioritize your marriage

because if that foundation is shaky, the rest of the family is not on solid footing. Pedal to the metal is fine for a purpose-driven life and it's good for kids to see that. Don't be afraid of it. Balance is impossible. If you want to do it all, just do it all. And she says, but of course, we don't do it all. I'm not the room nom. I've never been to a PTA meeting, but we have managed to have a great marriage, three kids, and two careers. It's a happy life, even if it's very busy. I wish young people wouldn't be afraid to go for it. Kids are a ton of work and a ton of fun. Same goes for marriage. And same goes for

work. If you want to achieve excellence in your profession. This was another one, David loved the pod segment. One reason I've always let my kids see me prioritize my relationship with my wife over my kids is so that a the kids will recognize early that they are not the center of the universe and B, they will want a spouse who treats them the way my wife and I treat each other so they can repeat this positive cycle. And by the way, that's Tim Garrison. He was a U.S. attorney during the Trump administration in Missouri. He was the deputy general counsel for the Joint Chiefs of Staff, multiple deployments. He's a US Marine. Like this guy knows what he's talking about.

His wife, by the way, also a doctor. Next up, a PhD, so a different type of doctor. I speak particularly as someone who had her kids at 35 and 40 the day before I turned 41. I was 90% of the way through my PhD before I had my first kid. I wanted to add the phrases that were essential to me as a working mom. The tension is the balance. I read this quote somewhere as a postdoc fellow with a

one-year-old and it was life-changing. The balance does not feel peaceful and perfect. There's always a tension. The tension does not mean that you're doing it wrong. It's the way life is. This phrase has given me an anchor when decision, stress, ambition, and life has put hard choices in front of me. And it has served me well from babies through adolescence, 17 year old, and a 23 year old after 24 years of marriage. I love those emails. And one thing I liked about the very first email that you read, in addition to reaffirming the unity of purpose point, which I think I just really want to double down on that because if you don't have that, everything flies apart. Eventually you'll be like in the old sitcoms where you're driving and you're like leaving parts

of the transmission in the road as you go down. If you don't have that unity of purpose, everything flies apart. But the other thing was how she was talking about that as we discussed last week, we're in this weird world where people are both more into their careers and spending more time with their kids, which is totally not intuitive, that you would think that one thing, the thing that absolutely has to give is the relationship with the kids, but they're spending more time at work and more time with kids.

And there's this term that I'm just now learning, optimizer. A person is an optimizer that a lot of individuals are in this mode of optimizing. In other words, I'm going to only have a kid when I can create the optimal situation. And what I liked about that email was, no, no, it's not about when making sure everything is at the optimal moment, just have the kid. And that dovetails very interestingly with that Ezra Klein podcast that we talked about last week, where, again, you're talking about this, the birth dearth, the fewer children, and that it is not actually because we are spending, we're just so focused on career that we have no time left over for kids.

It's maybe more because we're optimizing so much that in our optimizing lifestyle, it's the optimizing with our own kids that means we don't have time for more kids, which is something that was really counterintuitive to me when I learned about it. And I thought that was an interesting aspect. And this is interesting, Sarah, because I feel like what we're saying here is a lot of it is talking about that kind of that purpose driven life where you are excelling and you're placing a priority on doing well at the same time you're placing a placing a priority on raising a good family. I feel like this is not that the conversation is, by and large, is conducted as if those two things are inherently incompatible.

And that if you are even talking about that purpose-driven life with a career, et cetera, you're already displaying a moral defect. And that's, maybe that's something more that I've seen in Christian circles. I don't know, Sarah, but, um, that's that statement that says we're going, that one of the priorities in our family's lives is excelling in our respective careers. Um, it's not, it's not a message that, that message that I've gotten back from that is often that's bad, right? That that's bad. And I feel like we're giving some counterintuitive counsel here. Well, I'll just tell you how our households going. So you know, husband of the pod went to Purdue, right? Yes.

And, you know, Purdue made the final four. I'm, I don't, I blacked out when, yeah, there was a game that occurred against a team. Yeah. And Purdue ended up winning. Yes. Uh-huh. So we were down in Texas for spring break and husband of the pod abandoned his wife and two children at the urging of his wife to fly to Phoenix. And David, I don't know how to describe this.

I got him a gold sequin fleur-de-lis suit jacket to wear to the final four. Gold sequin fleur-de-lis. That's some good spousing right there. I think it's like the best spousing ever. That's some good spousing right there. I think it's like the best spousing ever. That's some incredible spousing. So then, of course, Purdue won their semifinal game and are now heading to the championship against UConn. The jacket will make another appearance.

And in the meantime, I'm holding down the kiddo for it here. And I will tell you, that baby was awake from 2.30 to 4.30. So anyone who says having it all is like easy and fun are people whose children are much older than mine. This is my point. You can't have it all. And this week, what I'm not having is sleep. Yeah. Yeah. I mean, a lot of the research says that of all of the things that gives, that's the thing is sleep. Yeah. And gosh, you have to be so careful about that. I tell my kids sleep is a superpower. I know. Well, and you, David, helped out because we delayed taping this podcast by an hour so that I could take a little nap this morning and be more coherent.

So it takes a village to raise children and be a good wife and have a career. And anyway, I mentioned all that because I think same with career stuff. I like talking about my failures as much as possible, getting fired from my first job out of college, multiple jobs since then, many disappointments along the way, because otherwise it looks like it was all just like, I had one success after another as I climbed the rung of awesomeness. Remember, this is like my second or 27th career, depending on how you look at it. Like this isn't what I had intended to be doing.

And same on the home front. I think I get all these emails that are like, oh, you're thriving. And it's like, oh, some hours more than others, some weeks more than others. Yeah, it was not thriving this morning when I finally got the baby back asleep. And then the cat walked in and meowed so loudly that it woke up the baby. And then the three and a half year old had an accident in bed. And it was just like, I was like near tears. I was like, I don't even know what to do at this point. I am at a loss. No, no, no, there is no, there's no formula. It's never easy. But the one thing that I would say is, I've talked about this before this principle of

escalating parental humility, so that when you're a young parent and you have little babies or toddlers, you have the sense that so much that you can shape the environment around them in such a way that you can really dictate outcomes. And then with every year that passes, that illusion is dispelled more and more, that you have less and less ability

to shape their environment. Sometimes the intentional effort to shape their environment very carefully can actually be backfire by creating too much stifling control, that sort of helicopter parent situation. And then you begin to realize there's no formula. All of your kids are different. And, you know, one of the most reassuring things that I, one of the most reassuring pieces of advice I ever got was when you're looking at three different kids, three different, very different personalities and temperaments and everything. And I was talking to somebody who said, you know what I have noticed? There is one common denominator in a lot of kids who go on to thrive. It's not parental method. It's not this or that.

It's this. It is their parents loved them desperately and tried their best. So when I was pregnant, was I pregnant or was he just born? But whatever, with the brisket, George Stephanopoulos told me that not to worry, it's 90% nature anyway. And he has turned out to be totally wrong. It's like maybe 100% nature. I'm telling you, this kid is so unrelated to me in all the best ways. He's like, really? He's so generous and kind and thoughtful of others.

It's weird. Some kids came over yesterday and he was handing out his toys for them to take home with them because they liked them. And I was like, yes, so we encourage that. But like, I didn't teach that. That is all nature.

So, and it's a deeply comforting thing to realize, right? I feel bad for those parents where the kid is enough like them that they think like, oh, my kid likes reading because I read to them so much. No, no, no, no, no, no. It's all nature.

So when nothing you do matters, again, aside from loving them desperately and you don't want to be sort of on the ends of the bell curve on either side, then it's just not your fault. Great. It doesn't matter if I miss bedtime tomorrow. It's not my fault. He is like, it's just not your fault. Great. It doesn't matter if I miss bedtime tomorrow. It's not my fault.

He is like, it's all nature. So now we're going to get so many emails. Oh, yeah. I sort of do a loving negligence of parenting around here. Loving negligence. I like it. So David, for the next episode, we have the rest of that high school class's questions,

but also, and this is my real cliffhanger for you today. We have an email from a federal judge who disagrees pretty strongly with something we said on the last episode. And I'm going to start with it on the next episode, not tongue in cheek, like actually the real point of disagreement. And we're going to talk about it. And it's about originalism versus the Warren court. Interesting. OK. Oh, I'm excited about this already. Yeah, this is going to be good. about originalism versus the Warren Court. Interesting. Okay. Oh, I'm excited about this already. Yeah, this is going to be good.

And with that, we'll talk to you next time. you