Advisory Opinions - The Costa Method

Episode Date: May 10, 2021

Today, our hosts are thrilled to be joined by Federal Court of Appeals Judge Gregg Costa of the 5th Circuit. In today’s extra-nerdy pod, our esteemed guest gives Sarah and David his expert take on serial clerkships, amicus briefs, nationwide injunctions, and more. Plus, he offers up an inside scoop on how he approaches his judicial philosophy, what he thinks is the proper role for legal advocates in the courtroom, and why “the hardest job [he] ever had was before law school teaching fourth grade.” Show Notes: -Judge Costa’s case against second, third, and fourth clerkships -Sarah’s Politico piece on serial clerkships -Judge Costa’s piece on nationwide injunctions -The Legal Analyst: A Toolkit for Thinking about the Law by Ward Farnsworth Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to a very special edition of the Advisory Opinions Podcast. I'm David French with Sarah Isker, and we have a courageous first today. This is a momentous moment. We have a federal court of appeals judge who is our guest at the Advisory Opinions Podcast. This is outstanding. I'm going to let Sarah introduce him. But Sarah, before you introduce our judge, I just want this to be known. What is known in the parlance is a precedent. This is a precedent-setting event because we know you're

out there, some of you other judges who have corresponded with us. And we would love to let this not be the first. And we're going to show you why, because it's going to be a fantastic podcast. This is going to be some outstanding content. So Sarah, why don't you introduce our courageous first federal court of appeals judge? I am so excited because Judge Costa, excited because Judge Costa, on top of being just, you know, I mean, he's Article III, right? Like that already puts him in a world apart, if you will. But he might be, I mean, if not the most popular Article III judge in the country, I mean, almost certainly on the Fifth Circuit. You can't meet anyone who doesn't just gush when they hear that you're talking to Judge Costa. Incredibly popular with his clerks, incredibly popular with his fellow judges.

And I think y'all are going to see why. Let me just run through some bio details, of course. So I grew up in Richardson, Texas, which is awesome, and then went to Dartmouth. So I have questions about your transition, like I did, into a really cold place. It didn't go well for me. Went to the University of Texas Law School, after which he clerked for Judge Ray Randolph on the D.C. Circuit. And then for Chief Justice William Rehnquist, he went to private law practice for a little while and then was an assistant U.S. attorney. Went to private law practice for a little while and then was an assistant U.S. attorney. Most people say that's the best job. We're going to get to talk to an actual Article 3 judge over which one's better, AUSA or Article 3 lifetime tenure. In 2011, he was nominated to the Southern District of Texas District Court, confirmed in 2012,

by a vote of 97 to 2, I will note. And then he became a Fifth Circuit judge in 2014. And that was 97 to 0, another thing we need to talk about. So we have lots to cover today, but the reason that Judge Costa and I decided that it was really important to talk about this now was that he, I actually stole his idea for my clerkship piece that I wrote in political about serial clerks. His piece was in a Duke publication titled Clerkingking to Excess, The Case Against Second, Parentheses, and Third, and Fourth Clerkships. And it was based on this Oren Kerr tweet

that I think we both loved, where Professor Oren Kerr tweeted, by OT 2038, a typical SCOTUS clerk will have clerked for a magistrate judge, a bankruptcy judge, a district judge, and six different circuit judges before doing a Bristow and then finally clerking. They will then accept a firm clerkship bonus, work two years, and retire. As the judge wrote, if the trend line continue, that may not be much of an exaggeration. So judge, I just want to start with that conversation.

You wrote that in 2018 and the data has actually gotten much worse since then. 2018 was in some ways the beginning of the trend that everyone was seeing, but it has skyrocketed since then at the court where you have now more double clerkships since 2016, so five years, than the previous 20 years combined. Why did you write your piece in 2018? What were you seeing? And why are you pretty side-eye about the serial clerkship model? Sure. Well, first, thanks for having me. I'm looking forward to it. It'll be fun. And David was euphemistic in saying I'm courageous. There might be other words for it, but it'll be fun to talk to you both. And this is an issue I'm really troubled by. Sarah is obviously much more persuasive and compelling in terms of her writing ability than

I am because I wrote it in some publication and it got a few mentions. But in the last week, Sarah wrote this and it's really blown up. And I think that's good. And Sarah also had a fresh take on it that I didn't recognize that I think is worth everyone's attention. So why did I write this a few years ago? You know, I clerked now, I guess 20 years ago, I clerked for, I'll always call him the chief, Chief Justice Rehnquist. And it just, everyone, you clerked once. And then if you were fortunate enough, you clerked at the Supreme Court. I think my year of the 34 of us who clerked, I think three had also clerked on the district court. So, you know, 10, a little less than 10%. It just wasn't something that was done. So now 20 years later,

it's really become the norm. And I think it's troubling for a few reasons. One, I think it, from the clerk's perspective, I think it's troubling for what it says about the legal profession, that people aren't excited to go out and actually be lawyers. But the main reason I wrote the piece is what it means for the profession. I think, you know, a lot of people, when I wrote it said, oh, you don't think clerkships are that valuable. And I said, no, it's because I think clerkships are so valuable that I'm troubled by this trend, because for everyone who does two or three, that's someone else who isn't clerking at all. And I think clerkships are a wonderful experience. They certainly were for me. And I think they're really more important than ever because young lawyers aren't getting the

mentoring they used to at law firms. So I just think we need to give these opportunities to as many folks as possible. At the time you wrote this, you noted that you had had four clerks in your tenure that had had double clerkships. So it's been three years. Are you practicing what you preach, Judge? I'm still a hypocrite. Although I'll say, for the most part, I like hiring people right out of law school. What they do after, I can't be responsible for.

There's a colleague of mine on my court who is much more of a purist on this issue than I am. He will only hire people right out of law school. And I do do that for the most part, but I would say in the last four years, a majority of my clerks have then gone on to clerk again for a district court in most cases, sometimes another appellate court. But what I do, I try not to hire people who've already clerked and then coming to me for the second time. For other reasons too, you know, some people say, oh, it's great. That way they're experienced. They know what they're

doing. But the other problem is that way they have other people's habits. When they come to you from someone else, and it's not that my habits are better than others, it's just that they're different. And so you sort of have to get them accustomed to the way you do things. So let me play devil's advocate just a little bit. So let's suppose you've got cases of all kinds coming before you, everything from, say, antitrust to pro se prisoner petitions, just a wide variety of cases with different kinds of procedural issues, different kinds of substantive issues. Why shouldn't there be sort of a more professional class of clerks who sort of, although they won't have your experience, share your experience in sort of the way, you know,

senators have policy directors, for example, and they have a sort of a professional staff because they can't be expected to know everything about everything, but you're expected to know everything about everything, but you're expected to know everything about everything. And so why wouldn't a more professional class of clerk kind of just make the job easier in a way? Well, it might make it easier, but I don't think it, you know, I'm concerned. I think you're right. It's sort of we're seeing the rise, almost the professionalization of clerks. We're seeing that also with more and more career clerks.

And I have the view, you know, for better or worse, maybe a lot of people would say worse sometimes with me. But for better or worse, I'm the one the president confirmed or nominated in the Senate approved. And so I actually think the more you have clerks who have experience, the more there's a tendency to really let them be almost like adjunct judges. I think we're almost going to the third stage of what the clerk role is. If you go back historically, I think the first clerk was the late 1800s at the Supreme Court. I mean, really through, I'd say the mid part of the 20th century, clerks were what the name denotes, almost administrative type jobs. I mentioned in my article, you know, Justice Holmes' clerks balanced his checkbooks. And then you moved into what I would call the second phase, which was a clerk as an integral part of the chamber staff, key trusted advisors,

young lawyers who help with the writing, with the editing, with the research, but who still ultimately are there as aides to the judge, most importantly, to tell the judge when they think the judge has it wrong and to just debate these cases. But now I think we're moving to a third phase, which is clerks can almost become adjunct judges. And Chief Justice Roberts noted this, not in terms of the double and triple clerkships we're focused on, but a lot of district courts now especially want people who've been at law firms for two or three years. And Chief Justice Roberts said, you know, I get the reason people are doing that. But the problem is when you get people who have this experience, it's almost, you know, really, you know, how much is the judge going to have a role really in writing the opinions and things like that?

So one thing I would note, I mean, we have demanding caseloads on the federal courts, but think about what we have. We have four clerks on the Court of Appeals. Say 50 years ago, they had two clerks. They didn't have Westlaw. They didn't have word processing. I mean, think about it. They were writing these out on legal pads and those folks were able to do the job. So the idea that now we need, you know, clerks who've worked for four or five years or permanent clerks, I just don't think, you know, in many ways our job, while it's still demanding in many ways, is easier given technology. And I just can't imagine, you know, writing opinions on longhand and the edits that had to go on back then. So I got asked a lot why I thought this was happening, that it had picked up so quickly. And I put a couple of theories in my piece, you know, the fall of the hiring,

the initial hiring plan that was put in place. But I have this pushback that I've gotten that, A, it's coming from the clerks themselves. And when I've talked to some clerks, their argument is, or, you know, sort of late law students, future clerks, current clerks, their argument is, I wouldn't get noticed. I didn't go to Harvard, Yale, or Stanford. And the way that I get noticed is by racking up these resume points, like little Pac-Man, you know, gobbles. And number two, though, absolutely, it's coming from the judges. Like, there's no question that some judges are like,

oh, it'd be great if you clerked at the district court. No pressure, you don't have to. So I'm wondering from your perspective as the judge, if you have theories, is it the hiring plan? Is it the law firm clerkship bonus that's actually making up for more of the salary discrepancy than it used to? Or is it driven by the clerks who either don't want to go to law practice or think they need this? Well, I think that is the real mystery. It's easy to note that this is the trend. And then I have my views about it not being a good trend. I mean, what you just noted is the hardest part. What is the reason? And there's a lot of theories out there. I certainly don't think it's coming from Supreme

Court justices. There is that perception, oh, I need to do this now to get to the Supreme Court in terms of a clerkship. I don't get the sense that it's coming there. There are some district court and court of appeals judges who, for the reasons David mentioned, want someone who's already clerked for a judge. I do know a number of judges who only will hire people who've clerked before. And so then maybe, you know, if you're a student who wants to get with that judge, you've got to get the other clerkship first. And it's also, look, the person's vetted that way. They're with a judge, maybe the second judge trust. I've also heard what you mentioned, which is, well, students from, quote, non-elite law schools are feeling a special need to do this. And I think that's true only

because it's now become the norm. In other words, I don't think that explains why it's become that way. So right now, maybe a judge says, well, I really like to hire from these fancy law schools that David and Sarah went to, not the place Judge Costa went to, a state school, God forbid. But I'm going to take a flyer on this person from a state law school, but I want to first get him vetted by another judge. I think that's happening only because we're in this world where two clerkships is not that unusual. But I know back 20 years ago, back to my experience, there were plenty of people from non-elite law schools, not enough because many judges do just hire from the fancy schools.

But I don't think the numbers were less than of people from state law schools getting hired. One of my co-clerks with Chief Justice Rehnquist went to the University of Missouri. She clerked on the Eighth Circuit and then the chief hired her. And, you know, I went to the University of Texas and clerked once and then the chief hired me.

So I mean, I think it's a general problem that clerkships are concentrated in the elite schools, but I don't think that's a reason we should have multiple clerkships. In fact, I think this trend is hurting people from the non-elite law schools for a few reasons, one of which is that I think a lot of the students who want to do two, three clerkships are ones who maybe if they don't even want to be a professor, but they're a little more what I would call academically minded. And I know, for example, at my alma mater, the University of Texas, it's far less common for students to do multiple clerkships than it is at, say, Harvard or Yale. And part of that is,

I think the students at Texas, they might want to clerk, but they're of a more practical bent. I mean, they still, you know, they want to get to the law firm and be practicing lawyers. So and then if you only want to do it once, you're excluded now from a number of judges. So I think it's actually hurt the people at less elite schools. All right. So we've talked a lot. We've talked about clerkship, which is something we have an awful lot of lawyer listeners, a ton of lawyer listeners. We also have a lot more who are non-lawyer listeners who are very law curious and very legal process curious. as the judiciary has become more important, as Congress has done less substantive legislating, and a lot of our public disputes get thrown into the courts far more frequently than perhaps in years past, it's interesting. What's common knowledge to lawyers about the process is often

completely opaque to everybody else. So I was wanting to ask you some questions that are the kinds of questions you get, like if you show up and you have one of these lawyer-judge CLEs, and you have one of those things where the lawyers get to lob questions at the judges. And here's one that is a common question that if you're a litigating attorney, you've heard judges answer it many times in your career, and mostly in the same way, but somewhat in different ways. But I'm going to ask you this, and that is, you come in, someone's litigating in front of your court, they have filed voluminous briefs, sometimes there's amicus briefs, and then there's an oral argument of X number of minutes. For you as the judge, when you were walking into the courtroom and you're going through your decision-making process,

both in your district court phase of your career and your appellate court phase of your career, how much did the oral arguments really matter? I think it matters a good bit. matter? I think it matters a good bit. First, I do think there is value in a full airing of the case, procedural fairness, if you will. So I think, especially in certain types of cases where the stakes are high, oral argument serves that purpose. But your question is actually, does it impact the result? And there, I think the common answer you'll hear judges say is maybe not that often the result, but the reasoning that the court then uses in its opinion, which I think is fair. I mean, maybe the best way for me to explain this, when I go to New Orleans, I have 20 cases usually. And we hear about one third of our cases get oral arguments.

So these are already the toughest one third of the cases. And of those 20 cases, I'd say there's three buckets. After I've read all the briefs, the case law study, discussed them with my clerks in depth. After doing all that work, maybe five or six of them, even though they were set for oral argument, I do think, I mean, the case law is clear, the statute's clear. I just cannot see changing my mind going into that oral argument. But then the biggest bucket, maybe a dozen of those 20 cases, I definitely have a lean, but I'm not 100% of that view. And the oral argument can obviously impact those cases. And then there's maybe two, three, four

cases where I just think it's truly a toss-up. I mean, there's really case law that supports both sides. And in those, the argument's going to be hugely influential. The other thing I would say that I think maybe lawyers and others don't understand sometimes is that I haven't, except in very rare cases, I have not discussed the case with my colleagues before oral argument. to New Orleans, we have the oral argument. Immediately after that, we go into conference and discuss and vote on the cases. So it's also, it's a little hard for me to disentangle how much does the oral argument influence it or the discussion with my colleagues, because it's all happening at the same time. And obviously the discussion with my colleagues is going to be, you know, have a great deal of weight in how I see the case. What style of oral advocacy do you think is most effective or is it totally case dependent? Sarah, that was going to be my next question.

I never think oral argument is a misnomer. It should really be a discussion. The best arguments are like a law school class where the you know, it's the judges and the lawyers are having this back and forth and trying to figure out a problem together. I used to be a school teacher before going to law school, so I often say the best lawyers educate. They don't really argue, they're educating. You know, sometimes a jury in the trial court and in our case at the appellate court, they should be educating us on the law, on their case. And really, I think the best oral advocates are putting themselves in the judge's shoes and not so much, you know, just advocating 100% for their side, but giving a preview of how the opinion

should be written, how the case should come out from the judge's perspective. That's going to be, that's going to be, you know, the judges are going to be amenable to it because it that's going to be, that's going to be, you know, the judges are going to be amenable to it because it's not going to be, you know, a transformative decision. It's going to be a narrow decision that can, that can draw some lines in this area. So there's a, so, you know, when you're, when you're in the court of appeals, I think it's a misnomer to say that always the Supreme court precedent is going to be clear in, in your, your cases. It's not always going to be clear in your cases. It's not always going to be clear, but sometimes it's pretty clear.

And sometimes it's pretty clear, and the judge may not like it that much. And I'm thinking about Judge Willett and qualified immunity. He's written some pretty interesting, not dissents, but maybe perhaps I say a concurrence that says oh by the way this is something and gorse just now justice gorsuch had had written some rather interesting sort of asides about for example administrative law before he landed on the court is this something that um in your mind that you that uh that you see as common with court of appeals judges or is that outside the norm? What's your approach when you see something and you think, aha, I've got the precedent, but hmm, I think there's some, it's ripe for rethinking or ripe for revisiting.

Have you ever reached a point in your career where you say, I think I need to pull a willet here? Well, Don's tough to imitate. Don's, he's a wonderful and talented colleague. But I think all judges, lower court judges, and even Supreme Court judges, you know, they're often unhappy. I mean, read a Justice Thomas opinion, unhappy with the court's own precedent. So in our situation, one, it might be you think you don't agree with the way the Supreme Court precedent has evolved. And I think that's what you're talking about with the qualified immunity situation and Judge Willett. But there's often times when we think our precedent has evolved in an incorrect way, and maybe it's out of step with the other circuits.

And there, obviously, we're bound to follow our precedent, just like we're bound to follow Supreme Court precedent. But there is a role through the en banc process, which is the full court review of a case, which can overturn circuit precedent. there is a role to maybe write separately, or even if you don't write separately, then after the opinion issues to call for a poll among your colleagues to take the case en banc and get that circuit precedent overturned. But I think, I mean, it's actually, it's pretty common for a judge to have to apply precedent that in the first instance, they wouldn't agree with. I want to ask about what all goes into one's judicial philosophy. And maybe you can talk to us a little bit about your own judicial philosophy and how you approach cases. But Federalist 78, sort of one that every law student has to know, this is Hamilton.

He's talking about the judiciary being the least dangerous branch. And he's saying, look, they don't have the power of the purse. They don't have the power of the sword. It may truly be said to have neither force nor will, but merely judgment. But the sentence continues. That's the part that the law students all memorize. The judiciary may be said to have neither force nor will, but merely judgment and must ultimately depend upon the aid of the executive arm, even for the efficacy of its judgments. So as you talk to us about your judicial philosophy and how you approach any given case, I'm curious how much the credibility of the court can or should be part of one's judicial philosophy. The idea that the courts have built on decades and centuries of building that credibility with the public,

whether it's the credibility to be non-political or the credibility that they are supporting the rule of law. And so if the outcome of a decision is going to undermine that credibility, even if it's the quote unquote right decision by the text or whatever your otherwise judicial philosophy is, if it's going to undermine the view of the court in the public's eye and that ultimately the court depends on the executive, which is a political branch, how does that factor in? So, I mean, it really is a remarkable thing, if you think about it, that in our country now built up over a couple hundred years plus, there is widespread acceptance of court decisions. That certainly doesn't exist in many other parts of the world. In terms of how that should, you know, maintaining that public legitimacy

should factor in, I mean, I think, you know, maintaining that public legitimacy should factor in. I mean, I think, you know, the obvious answer is, well, look, the whole idea behind the independent judiciary is we shouldn't be concerned about the popularity of our decisions, right? So, a classic example, a murder conviction, everyone knows the person's guilty, a terrible crime. But, you know, if there was a confrontation clause violation, we're duty-bound to recognize that error, and maybe that's going to require a new trial. That's not going to be popular. People are going to be upset. But you certainly shouldn't let that public opposition interfere with your ability or your obligation to faithfully apply the Constitution.

So, I mean, that's the easy answer, right? And it's the true answer, which is that we're obligated to enforce the law, not worry about what's popular. I think the other side of that, though, is it's a good thing to worry about, in generally speaking, the legitimacy of the courts, if it's a check on the courts doing things that aren't in faithful compliance with the law. And if the courts are getting too powerful or taking too great a role beyond what the law requires in society, I do think some wariness on the part of judges, modesty, if you want to call it that, is a good thing because, you know, power is hard to sometimes show restraint with. And so I think to the extent the courts are thinking, well, you know,

is this really supportable? If we're going to make this decision, is this something that the law really does support? I think that's something we do need to be thinking about. I mean, in terms of philosophy, judicial philosophy, it's, you know, Judge Harvey Wilkinson on the Fourth Circuit has a book where he's sort of decrying the idea that everyone needs some grand philosophy. And I think, you know, I don't view myself as a particularly ideological person about most things in life. Maybe baseball.

I'm definitely a purist, no designated hitter, no artificial turf when it comes to baseball. But outside of baseball, I'm not a very strongly ideological person. And I think I'd take the cases as they come to you, especially as a lower court judge. I mean, I think I've had one constitutional case where there wasn't really Supreme Court precedent on the general point. I mean, I've had very I think I've had one constitutional case where there wasn't really Supreme Court precedent on the on the general point. I mean, obviously, there's often not a Supreme Court case right on point, but at least there's, you know, First Amendment. There's all these principles that the Supreme Court's announced. I think there's only one case I've had where the Supreme Court just had not said anything about this clause of the Constitution.

So it's you know, we really are in the business of applying precedent to new situations. And that's not easy and it's difficult, but there's usually at least some background principles we have. Do you remember which clause that was, or was that too long ago? No, it was the origination clause that tax revenue bills must originate in the House. And then the question, it also involved the question of, but if something originates in the Senate, can it then be amended? It would involve one of the challenges

to the Affordable Care Act. Ah, interesting, interesting. All right, well, so here's another sort of how we make decisions kind of question. And then we've got like lots of other fun stuff to move on to that we've talked about. So we've talked about in this podcast, we've talked about oral arguments. We talked about style of oral argument. Another thing we've talked about is amicus briefs. How much do judges read and absorb and consider amicus briefs? And how much are they

sort of, this is what activist organizations or interested organizations do to sort of stick their hand up in the air and say, Hey, we're weighing in, we're weighing in. But, um, I have seen amicus briefs cited in opinions, not that frequently. How much, uh, how much are amicus briefs sort of part of the equation as well? I think it's like a lot of things. It's probably like the parties briefs.

Some of them are helpful. Some of them aren't. They certainly proliferate. I mean, they might rival the multiple clerkship trend in what's, you know, the last decade or so. Amicus briefs are just voluminous in high profile cases. I think the most helpful ones don't regurgitate what the lawyers have said. But, for example, maybe a case involving industry to get you get a brief from the worker side and a brief from the industry side that are giving you more context about how this might impact the industry or the workforce.

But no, they can certainly be helpful. But you also do take them with an understanding that these are groups for the most, usually, that have an agenda. The other thing that's interesting, there's really been a rise of law professors filing amicus briefs. And again, you understand they have their perspective, too, but it can, in some cases, they're helpful. In some cases, they're not. In some cases, they're not. So not only are you the first Article 3 to join this podcast, which we are so thrilled about, but you actually do speak out quite a bit as an Article 3 judge compared to your brethren, I think. So I mentioned that Duke post about the serial clerkships. You also have this blog post in the Harvard Law Review that made huge waves at the time.

Also 2018, by the way, like maybe the Fifth Circuit caseload just wasn't very big in 2018 because those were two incredible pieces that were really important. But this one on nationwide injunctions, it got, it made a huge splash at the time, but I want to make it splash again. Like let's get some ripples going on this thing because it was so smart and it was so quick. Like some of the best ideas, you didn't need to write a full law review article about this. This is just a few paragraphs that everyone can go read and you leave it going. Yeah. Why isn't this the plan? So, uh, I'm just going to set it up using your own words. The increasing number of nationwide injunctions that were happening, that have been happening through the Obama years, escalated even more during the Trump years. I am certain they will

escalate more during the Biden years. You file suit in a division with judges, or best of all, a single judge, expected to be favorable to the challenger's claim. Make sure that district judge is located in a circuit also predisposed to your legal position. Then ask for a nationwide abjunction. Obtain that relief in the plaintiff's chosen forum and, save for the possibility of Supreme Court review, something we know isn't going to happen very often, the issue has been settled once and for all. So truly out of these hundreds of judges across the country, all but one can disagree with your position. But if you can get your case in front of that one, you've just made law for the land. And it's incredibly frustrating

to, well, I think everyone on both sides at this point. But if one side plays the game, the other side plays the game. You came up with a brilliant solution. Please explain. Right. I don't have a solution. I do think it would be a better procedure for if we're going to have these nationwide injunctions, how to deal with them. I'll start. One thing you noted that amused me, I think my piece was maybe seven or eight paragraphs. And I said what I wanted to say. So someone afterwards said, hey, I really like this. Do you want to work with me on putting this into a full-length law review article? And I said, well, why? I've said what I've said. He said, well, we can turn each paragraph into five to 10 pages. And he's right. I mean, each paragraph you can blow up into more background and more citations. But I think

that gives you a sense of law review. Why does it need to be 30 pages if it can be seven paragraphs? But there's a big controversy about nationwide injunctions. I don't want to take a side on that, on whether they're good or bad. My point was that if we are going to have them, and we certainly have recently seen a lot of them, I think there's a better way, which is a return to the past, really, in having three-judge panels at the very initial level, at the trial court level. And it's a largely forgotten procedure. But for most of the 20th century, if you filed a lawsuit seeking to declare a state or federal law unconstitutional,

that did not go to one district court judge. It went to a state or federal law unconstitutional, that did not go to one district court judge. It went to a three-judge panel. Basically, you'd get assigned, like any case, one judge would be assigned when it's filed randomly. And then another district judge would be appointed to that panel and a court of appeals judge. So it would be a three-judge panel. So back, this ended in the mid-70s, but say in 1965, if you challenged a state law, you were assigned a three-judge panel. And the ruling of that three-judge panel was then directly and appealable to the Supreme Court, and they had mandatory jurisdiction. The Supreme Court had to hear it. So my proposal was to return to this type of system for a case in which a party seeks a nationwide injunction.

type of system for a case in which a party seeks a nationwide injunction. You know, there's been a lot of, there's a lot of debate also about how much there's a historical precedent for these nationwide injunctions. But I think everyone has to agree, they really became prevalent in the second term of the Obama administration and then continuing in the Trump administration. And it does lead to, I mean, I don't blame the lawyers. Any lawyer is going to look for the favorable forum. But it really can lead to this notion that one district judge, I was one, I love being a district judge. It's not a knock on them, but that one district judge, I think there's about 700 and something active district judges. If you throw in the senior judges, there's probably a thousand or so, that one judge can, for the entire nation, strike down a law as unconstitutional. When 50 other district judges may have rejected the same challenge, that one judge, by issuing

the nationwide injunction, essentially trumps those other 50 decisions. I just don't think anyone can think that's procedurally a great system. And so this would mean when they pass the three judge statutes for any lawsuit challenging the constitutionality of a law, they said, I think one of the Senate sponsors said, well, the people will rest easier if more than one judge reached this decision. And so my proposal would be to have that for nationwide injunctions, which I mean, there you're not just asking to declare the law unconstitutionally, you're asking to enjoin it throughout the nation. So it's a much more far-reaching case than the ones that used to require three judges.

And then if, I would say, if the injunction issued, there would be this immediate appeal to the Supreme Court. A big part of why the three-judge statute went away was it was a real burden on the Supreme Court caseload. The Supreme Court had heard a lot more cases back in the 70s when this law was jettisoned. And now they don't hear nearly as many cases. So I don't think there's that problem with the court's jurisdiction. And it still exists for redistricting, which is interesting because you point out that you have two different problems going on with nationwide injunctions.

We've talked about the first one, this idea that a single judge, you know, the forum shopping. But the second one is that you do want speed. You know, as we saw in the Trump administration, if you're a one-term president, some of your orders can be enjoined for the entirety of your first term before they actually get a hearing all the way up. DACA comes to mind, for instance. By the time it went to the Supreme Court and they were like, oh, you didn't dot your eyes and cross your T's, you can try again, they were out of time. And so with redistricting, for instance, it's the same concern that you need to go quickly because these elections are every two years. So you have the three judge panel and then it goes straight to the Supreme Court, which takes care of some of the time issues. So I also thought that was very clever. You solve both problems with with the Costa method, as we'll call it.

Although I think it's been it's in terms of changing you know maybe i changed a few minds but in changing the actual practice it's been about as successful as my my um diatribe against multiple clerkships which is not not at all successful so sarah brought up a word speed that is interesting to me as a former litigator because um going all the way back when i first started practicing i can't remember which lawyer I worked with who said, the great thing about America is that everybody gets their decade in court. And I was curious going back because you have the trial court experience and you have the appellate court experience. How much are judges aware that justice delayed, for example, and I'll give you an example of one case

that I had. I had a case where there were two summary judgment motions filed. Summary judgment, we lost at the trial court, went up one at the Fourth Circuit, went back, another summary judgment motion was filed in light of the Fourth Circuit's opinion, not one of them was, of the summary judgment motions was resolved in less than 18 months. That's a long time. How much are judges aware of, you know, you can't just turn things around immediately, especially in complex cases, but clocks are ticking here. Justice is at stake. And how much of this is also a function of our courts overworked? Do there need to be more of you guys to kind of deal with these kinds of issues?

I think it's a huge problem. I was thinking about it recently because the biggest case I had as a lawyer was the prosecution of the Alan Stanford Ponzi scheme. I was on the criminal side, but the civil side is still going on. I'll read, and I'm recused from all these cases at the appellate level, but I'll just read an article that, oh, they recovered this much more money. Some of these victims have been waiting a dozen years, and it's a massive case. I'm not criticizing anyone. It's just the scope of it means it's been pending for 12 years. And you think of one of those victims, you know, a decade plus onward from that, it's really something I think that needs to be changed. And look, if I had good ideas for doing so, I'd write an article that would probably be a lot more than seven paragraphs like the other one. But it is a serious problem.

I think judges are aware of it, but it's, you know, I don't know if it's so much. I mean, part of it is there are some judges in particular have huge caseloads on the district court. When I was on the district court, you go to this baby judges school. And I remember one of the judges who came in said, the district court's job is to decide. The court of appeals job is to get it right. And his point was, of course, we all have the compulsion to get it right, right? But his point was, especially the district court, you just need to decide. Parties are waiting. They don't know if the case is going to trial or what's going to happen. And sometimes parties would even almost rather lose and just know where they stand than

have this be sitting there for 18 months. The uncertainty is really a problem. So I do think it's something judges are aware of. And look, I mean, my colleagues are incredibly hardworking. That's one thing that I was amazed at when I got on the court was just how hard so many judges work. But it's, I mean, I think it's a bigger problem. The law as a whole is just too complicated. I mean, you know, you get these summary judgment motions that are, you know, have hundreds, sometimes thousands of pages attached to them.

I do think the law has just in many areas become too complex. I think it's also become too motion driven. I would get these motions for summary judgment. I would think, you know what, we could try the case in less than a week. It probably took you two or three weeks to put this motion together. And I get it, there's the uncertainty of trial and all that. But I just think, you know, a lot of things could be done in a lot simpler ways. And so I think it's, you know, the court, something the courts need to deal with. But I think also the bar is, you know, often largely driven by the incentive to bill is the more motions, the more discovery it makes lawyers better off.

I had a case once in Kentucky state court, and it was one of these disputes between coal companies that was pretty significant amount of money involved in the tens of millions of dollars. And I'll never forget, I'm getting ready to draft the motion for summary judgment. And the senior partner comes in and he says, this state court judge, he has a quirk. Well, what is it? He doesn't read anything longer than three pages. Wait, three pages? So I have to get this, what, $25 million case into three? That's your job. That's your job. So you can go too far the other way to expedite decision making. I'm sorry, I interrupted you, Sarah. Judge, you've clerked at the circuit court, clerked at the Supreme Court, four or five years in private practice, AUSA, federal prosecutor, putting bad guys away all day, district judge, circuit judge. You've had every

job that a law student can dream of having. Which one was the best? Pretty easy answers you alluded to at the beginning, being a federal prosecutor. And I went to law school. I met my wife like three months before I started law school. She was just finishing law school. She always said she would have never dated me if we were there together because I was such a nerd in law school. I met my wife like three months before I started law school. She was just finishing law school. She always said she would have never dated me if we were there together because I was such a nerd in law school. But I remember when we met, she said, oh, what are you going to law school to do? And I said, well, I really want to prosecute white collar crime. I'd read this book called Den of Thieves about the 1980s insider trading prosecutions on Wall Street led by some guy who's still in the news a bit today. And I read that book and I just said, it was in college, I said, that's what I want to do.

You know, these complicated cases, you're getting in court, you're trying to outsmart people who themselves think, you know, fraudsters think they can outsmart people. And I was fortunate enough to be able to do that. I had a professor in law school. He went on to become the president of the University of Texas, Bill Powers. And I remember he said, he said, too many students forget why they went to law school in the first place. You know, they get caught up and, oh, you know, this is the firm to go to. And, you know, maybe this is the clerkship to get. law school in the first place. And I had a little bit of that experience and, you know, I had some other wonderful experiences, but I ended up being one of the fortunate few who was able to do the thing that drove me to law school in the first place. And I loved every minute of it. I guess I was in AUSA for seven years. I think I tried about 18 cases in federal court. And it was, I had wonderful colleagues and wonderful friends in the defense bar. I mean, that's one thing. The criminal bar is a lot more civil than the civil bar. And which there's a lot of,

I think there's some reasons for that. But it was, yeah, it was a great time. I'm intrigued that you said that. I mean, I'm very intrigued that you said that because I've been telling people ever since I've entered this world of journalism that the world of litigation is far more civil than the world of journalism. I mean, as far as peer to peer, you can fight each other for years on the same case intensely. I mean, where you're emotionally involved in the case.

I mean, where you're emotionally involved in. It's not like they're just sort of clinicians and they just look at it in a clinical way. They get into these cases. And yet at the end of the day, by and large, not always, there's a degree of collegiality. Why is it that it seems it's interesting to me that you say that about the criminal bar, because the stakes are higher. I mean, people's liberty and lives are at stake and often in the aftermath of dreadful, dreadful crimes. Why do you think that is, that there's a difference between those two bars? Yeah, a few reasons I'll mention. One, you're right, it seems counterintuitive because the stakes, people's liberty is on the line in criminal cases. I actually think there's some,

because the stakes are so high, people don't focus on the petty squabbles. You know, it's sort of like they say about faculty politics. They're so heated because the stakes are so low. And so it's the opposite. In criminal cases, the stakes are so high that you don't fight these little battles over this one little document that someone, you know, turned over a week late. I think the biggest reason that the criminal bar is more collegial is that, so when I was in the, I was in Houston being an AUSA, you know, there were maybe 50 AUSAs in the federal court here in Houston. There was maybe a dozen federal public defenders, and then really only maybe 30 federal, maybe 30 federal defense lawyers who frequently practiced in criminal court.

So there was a and I was practicing before the same judges all the time. Right. So there was accountability. If word got out that, you know, among the judges or among the defense lawyers that you couldn't trust me, it was going to do me because I was going to see those same lawyers and those same judges. Civil litigation, especially the commercial litigation, it's become a national practice. You know, you're litigating all over the country. So there's really no accountability because a lawyer can be as big a jerk as she wants or he wants and is not going to be in front of that judge again. They're not going to be in front of those lawyers on the other side again in all likelihood. So I think it's accountability that you have in these smaller groups. It's not just the criminal bar. For example, when I was

in Galveston on the district court, the admiralty bar, we had a lot of admiralty cases. And that's a smaller specialized bar. And those folks got along really well. Because again, they had to be accountable. I think my dad would tell you that's true in the bankruptcy bar as well. They all know each other. Right. For better or worse. Sarah's father is a good friend of mine. We've worked together in the Houston Urban Debate League, and he is one of the true menches in the federal judiciary. I think he would say the same about you. But I should know, you asked me what my favorite job was. And I said, being in AUSA, by far the hardest job I ever had was before law

school teaching fourth grade in Mississippi. I would say my easiest day as a teacher was probably still harder than my hardest day as a lawyer. Wow. So what part of Mississippi? I was in the Mississippi Delta, Sunflower County, a town of 751 people. Oh, wow. Well, my family, my dad's family is from Mississippi as well. Not the Delta, but a little town called Bahia, which would look up at that town of 751 as a megalopolis.

But not anymore. It's too close to Memphis. You know, everything grows and changes. So we have a running debate on this podcast. Should you go to law school? David in the affirmative, Sarah in the only if you actually want to be a practicing lawyer, you must get asked this pretty frequently. Where do you fall? I think I fall where you do, Sarah, although you two are both great examples of what you can do. You can do amazing things with a law degree outside of the law. Look, I was just telling my clerks the other day, I said, you know, what's in law school the best time of your life? I mean, I love law school. And I think maybe you love it more in retrospect because you realize it's the

last time you have all that freedom and you're sitting around just with your friends. And I was in Austin sitting outside drinking beers. It was wonderful. But I do think it's a big sacrifice in terms of time. It's a huge sacrifice in terms of money. So I do think, while I'm a huge proponent of being a lawyer and of law school, I do think the old, oh, you know, I just graduated college. I don't know. I don't have really anything else to do. I don't really want to work for a living. I'll go to law school. I don't think those people often get as much out of it as, you know, as it's worth the sacrifice they're making. So, so I do think you sort of have to have a, some strong reason to be a lawyer. Um, my biggest advice to people

thinking of law school though, is to work beforehand. Um, I think I've seen now that I think 70% of the recent Harvard law school class has worked beforehand. Um, and you know, the two years I spent teaching just really opened my, I mean, in terms of the discipline it instilled in me and, you know, I wouldn't have had the success I had in law school without that experience. And it also, I mean, I look for that in hiring clerks. I've hired a number who have taught like I did. I've hired two who served in the military. I've hired someone in the Peace Corps, someone who was an FBI counterintelligence analyst, people in the business world. And I think it just gives you a different perspective. And I don't know of anyone now, I've been out of law school for about 22 years. I don't

know any of my friends who say, oh, you know what? I wish I'd got into the law firm earlier. You know, I wish I'd done this earlier. And, you know, they're still looking at doing it for another 20 years. But I have a number who say, you know, I really wish I had worked beforehand or I wish I'd clerked. You know, I went right to the firm. And so I do think working beforehand just gives you another perspective and then makes you maybe that time will make you realize whether law school really is the right thing for you. I think we can. I don't know about you, Sarah, but I went straight through and I wish I had spent some time. I really do. It was, I would say about, it felt like about half my class

had spent some time. And the one thing that I noticed about them is they seem to be more well adjusted in handling law school stress. I thought this was like the most stressful thing I'd ever done in my entire life. And a lot of them just treated it, this isn't my job. Nine to five, I come in, I go to class, I hang out at the library until I go home. And that's that. And after I started working for a living, I realized, oh yeah, law school was nothing compared to this. I did take time off. So I thought it was important. And in fact, it's why I went to law school.

I got fired from my first job out of college and thought, huh, well, that didn't work out. I got fired six weeks after I started. Not an auspicious start to one's career. All right. I will give one more law school advice, which I really think among schools in the same general range, students really should be going to the one that's least expensive. I would not have had the career I've had being able to spend most of my time in public service had I not gone to the University of Texas, where I was able to get a full scholarship.

Back then, it cost $5,000 a year, if people can imagine that tuition. But now I'm not saying, you know, if you get into Harvard and go to 170th ranked school instead, because it's cheaper, I'm not saying that. But if you're within the same general range of law schools, having less debt coming out will really give you the freedom to pursue a career based on what you want to do, not what you have to do. Interesting, but let's press that a little, like how close do the schools need to be? I had someone, for instance, deciding between UVA and UT the other day. You don't need to get into that comparison exactly. But my husband went to the University of Texas, as you know, and he applied to transfer, got into Harvard. He stayed at UT

for different reasons than the money, which was the competitive advantage. He already knew he was at that point number one in his class. He slips a spot. He graduates number two. But to graduate in the top four, let's say, at the University of Texas is fundamentally different than graduating in the muddy middle, especially now that there aren't grades at even a top school. How do you factor money and competitive advantage? And are we talking the difference between the number six school and the number 10 school? Break it out more. Yeah, boy boy i'm a little true i thought scott was such a loyal longhorn i'm very troubled to hear your thoughts of going up to cambridge it's really changed my image of him well he might have met his future wife if he had just gone or maybe it's like my wife my wife said good thing we weren't in law school together um but um i well first of all on transfers let me just a little aside i get a lot of clerk applicants who

harvard must take a lot of transfers because someone did phenomenal at a place like ut or some state school or and then they transfer to harvard and i think those people have a real tough time in the clerkship world because they sort of have no school pushing for them, right? The school they left isn't going to help them out. And Harvard, the professors don't really know them that well because they weren't there as 1Ls. So I find that those people have a real tough time with clerkships. But speaking more generally, I do not, like 7 versus 10, no, I would go where there's a big money difference. I mean, to me, that is a, I mean, first of all, the rank seven and 10, I mean, that's, I don't even agree

that school seven is better than 10, right? I mean, that's just, those rankings have a quite arbitrary element to them. So I would say, you know, what do they call it? The top 14 or the top 15. I would even say, you know, I'd go to, there are a few except, I mean, there's, now if you want to teach, right, going to Yale, I mean, it's ridiculous, but so many of the professors do come out of Yale and a few other select schools.

But if you want to be a practicing lawyer, I think if there's a significant money advantage, I would go anywhere in the top 20 over some higher ranked school in the top 20. Now, once you get outside of that, I think it's, you know, that's a different story. I mean, the thing is, at a place like Texas, you have to do, you know, at Harvard, everyone's going to get a job. They might not get the elite clerkship or the most elite law firm, but they're going to get a job. I think the further you go down, the more pressure there is to actually do well in law school. But the reality is, if you're someone who got into Harvard and Stanford, but then decided to go to UT, very likely you're going to do very well at UT, you know, barring something strange happening. Okay. Book recommendations. This is another question we get from a whole lot of listeners.

I have found this a hard question because there are, I think because of the pressures we talked about earlier to write law review articles about every thought that pops into your head, there aren't many books that aren't law review articles that are actually about the law. There's the Brian Gardner and Scalia books, which are fabulous if you want to learn to be an advocate, whether in law or not actually, books, which are fabulous if you want to learn to be an advocate, whether in law or not, actually, or a good writer in law or not. There's books about the court, The Nine, The Brethren, whatever. But what are the books you recommend that are actually sort of law-ish? So one thing I'd recommend to lawyers and law students is try to read as much as you can that's not the law.

First of all, I think there's better writing often outside the law. I mean, one of the people I am most influenced by in terms of my writing is a sports writer. And I think, you know, certainly magazine articles, you know, maybe things in the dispatch are written so well that I think it's a lot of lawyerly writing is jargony, technical, and I think that's a problem. So I try to tell people, you know, the best way to improve your writing is to read good writing, and often that's outside the law. In terms of law books, I mean, there's a number of interesting books on the Constitution. I think a lot of what Akhil Amar does. Michael Klarman at Harvard has some amazing legal history books on the civil rights. One's called From Jim Crow to Civil Rights. He has a recent one on the founding of the Constitution.

I like, you know, in terms of books about what it's like to practice law, I mean, I already mentioned one that influenced my career, Dent of Thieves for criminal law. For civil law and like just the way massive civil litigation is today, a great book is A Civil Action, which became a bad movie with John Travolta. But the book is really good. And I think especially for young, maybe law students, you think, oh, it's what I see on TV. And you go to court all the time and you're in trial. No, The Civil Action really shows you what a slog most big-time civil litigation is with the focus on discovery and motion practice. So those are a few.

See, this is my problem, David. I read The Pelican Brief, and that gave me a real skewed perspective on what I'd be doing. A lot of meetings in garages in D.C. No, it hasn't been nearly as interesting as that. That is a good movie, though, unlike a civil action. It's a great movie, too. And it's based in New Orleans,

so it's a great city. You know, it's funny. My civil procedure teacher, and I can't for the life of me remember the name of the book, before we cracked open the textbook, we had to read a book about a class action lawsuit

filed after a horrific flood in the Appalachians caused by the failure of a coal mining, a dam erected by a coal mining company that released wastewater just through it. It was a horrible story, just horrible. And that was our very first assignment. And the very first assignment was designed exactly judge to dispel our illusions that the law was going to be anything but a slog. And it was a fascinating read.

Um, and then the rest of the course was a slog. So it just, it just, it was, it was truth in advertising. No question. Yeah.

I love civil procedure. That's what I used to teach as an adjunct federal court. So I love the procedural stuff. There's all, there's a book more for law students than lawyers. Actually, the Dean of the University of Texas Law School wrote it called The Legal Analyst. And it's really modeled after there's a course at the University of Chicago. You know, the first year, of course, you got torts, property, they're all subject matter, contracts, subject matter focused. This is more a book, and I think the course it was modeled after. It's different types of arguments, right? Like slippery slopes, economic arguments. So it goes through all the different arguments across all the different areas of the law that lawyers and judges make. So I think it's an interesting book. It's different than the way most law is

taught. Well, speaking of books and law in pop culture, there was a 325-page opinion coming out of the Fifth Circuit on Bonk. You wrote your own separate opinion in that. I was going to ask you whether you had actually read all 325 pages, but we know the answer to that. We know you have. It is longer than many books. But here's my question. Who's going to play you in the movie? Yeah, a movie about an en banc court opinion. I will say one thing. When our court sits en banc, this is an interesting fact. We are the largest gathering of federal judges you can get in the country because the only circuit bigger than ours is the Ninth Circuit, which has a lot more judges than we do. But they hear en banc cases by a subset of the court of 11. en banc cases by a subset of the court of 11. So our court has 17 active judges. And when we sit en banc, that is the largest collection you can have in the federal system. I think the Ninth Circuit technically can have a full en banc. They haven't done so in, I think, decades. But I think the answer is, unless he's preoccupied as the governor of Texas,

is if you're in the Fifth Circuit, it's got to be Matthew McConaughey, right? Yeah, definitely. I mean, that's the, yeah, you just have to go ahead and call dibs on that scintillating movie about an en banc opinion, which I cannot wait to watch. All right, last question for real. How many robes does an Article III judge own?

Because, you know, you could run the risk of spilling something on a robe, so it can't just be one. I only do have one, and so I have to send it back and forth from New Orleans, and my judicial assistant's always upset that mine is so dirty, so I'm probably not the best person to ask that. A single robe. Wow.

I feel like that's the kind of gossip that underneath their robes back in the day would have really, really been keen on. Judge, thank you so much for joining us. This has been such a treat. We can't thank you enough for taking the time out of your very busy schedule to do this and to thank your clerks who are no doubt furiously editing things under a deadline. I'm sure you told them you'd be free in an hour and you expect all sorts of paperwork now stat and if you could judge if you could please tell your colleagues that this is a great way to spend about an hour and preferably someone who's going to come down in the adjudication differently in the battle between me and sarah over law school differently in the battle between me and Sarah over law school. Because right now,

we only have one Article III opinion in the battle between us on law school, and I'm on the losing end. David, I don't know if you were on our email chain, but one of the judges' clerks this year actually got the highest score on the Texas bar exam, which tells you everything you need to know about his hiring practices. He's doing something wrong. I mean, that's someone who overstudied for the bar, happens to be a clerk I know. He actually had to give a speech. It was recorded, but this morning for the state swearing-in ceremony. But I would say, and I say this when I swear people into the bar, and it goes back to your law school question. In law school, I do think you have to have a desire really to be a lawyer to go to law school. But I think so many lawyers I know say, oh, I wouldn't have my kids go to law school or I'd recommend against it. And if lawyers are good at one thing, it's whining and complaining about how many hours they work, about opposing counsel, about their own colleagues, about even judges, believe it or not.

And I think we forget that it really is a wonderful profession we're a part of. And so many people out there are just going to work, you know, doing rote tasks to provide for their family, which is a heroic thing. You know, that's what my dad did. But to be able to do work that's intellectually challenging and you're helping people and you can make a good living doing it, it's really a special and rare thing. And I think we should be grateful for being members of this profession. And we often are so caught up in the daily frustrations, which there are, that we forget to be thankful for being members of the bar. I'm just going to take that as a on upon a motion for reconsideration a ruling in my favor that's just that's how i'm interpreting that that's

so thank you judge thank you judge very much this has been a real treat thank you both And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day.

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.