Not a MAGA Court

0:00This episode is brought to you by Nordstrom. For 125 years, Nordstrom has been part of your story. The stylist who found the perfect outfit for your big interview. The first pair of walking shoes for your one-year-old. The tomato soup you shared with your sister at the cafe. These are the moments that make Nordstrom. Nordstrom. Bigger a small? We're here for all of it. Celebrating 125 years with new moments still add. Discover it all in NordstromStores and at Nordstrom.com. You ready? I was born ready. Welcome to Advisory Opinions. I'm not Sarah Isker. I'm David French and I am sitting in the host chair once again just for a week. Only a week so you don't have to wait too long for Sarah to come back.

1:03But while I'm in the host chair, I have the best guest host. Once again, coming back for the on-core presentation, CNN's Senior Political Analyst, Ellie Honeig. Now Ellie, fresh off of jury duty, tell us about that. Yeah. Okay, so this is, I loved this experience. So I've picked many juries, right? I was a prosecutor at the Southern District of New York. I was a prosecutor in total, federal and then state 14 years. So I've picked many, many juries. And I've never really been on the other side. I get the notice like everyone else does, but it feels like the last several times every time you call the number the night before and they say we don't need you and you go great. This time they said we need you on Tuesday. Okay. So I go down, this is state level jury service, Middlesex County, New Jersey. I go down to the courthouse in New Brunswick, which I've been in many times because when I was at the AG's office, we supervised all the county prosecutors. And so I, you know, it's my home base. There's 250 people in the full pool.

2:03It's massive. It's packed. And they've obviously got jury trials galore. They're calling up a group of 30. They're calling up a group of 40 and nothing for me. And honestly, at a certain point, I started to feel a little rejected and a little left out. And so we go to the lunch break and the day's dragging and I'm thinking, and so over, they're not going to need me. And at 2.30 p.m. or so, they need another panel. And my name's on the list. So I walk up to the courtroom and it's a criminal case. There's two defendants. And the judge hands us the little, the little questionnaire. And I realize it's a DCJ case, meaning the division of criminal justice, which I used to run for five and a half years in New Jersey. It's sort of the equivalent of, you know, most federal cases are going to be prosecuted by US attorneys in the field. But one out of 40 is going to be by main justice, right? And we were the equivalent of main justice. This happens to be one of those cases. So I'm looking at the witness list and it's 10 or 15 detectives, most of whom I hired.

3:06And then I look over to the table. I actually don't know the prosecutors, but I hired and promoted their bosses. So the judges is calling down the names and he gets to me. And I go up and I say, you're on it, you know, look, I could definitely be fair. And impartial, but you should know I used to run the division. And immediately this, this look of recognition comes over his face. I used to run the division of criminal justice. There are party to this case. I know most of the witnesses on the list. I don't know these prosecutors, but I know their bosses. And the judge goes, oh, yeah, yeah, this won't work. And then he goes, and I like you on TV also. I was like, okay, thank you. It was very nice. So, you know, look, there was no way they were going to see me. Someone was going to strike me between, but I want to say this. I would have absolutely been a fair and equitable juror. And even if in my heart of hearts, I believed the defendants had done it. And they were charged with racketeering and carjacking and drugs and aggravated assault,

4:08not murder, but a lot of other serious crimes. Even if I thought at the end of the evidence, yeah, they did it. Like I kind of know they did it. Obviously they did it. But the prosecution had not carried its burden beyond a reasonable doubt. I would absolutely come back not guilty. And there is a misnomer. I think I said this to several other of my former prosecutor colleagues and they all said the same thing. Like, it's sort of roughly akin to when one of my former colleagues at SDNY would become a federal judge. People will go, oh, awesome. You drew Rich Sullivan who used to be a supervisor of mine. I'd be like, no, that's terrifying because Rich Sullivan is going to be way harder on me and on us than otherwise because he knows what we do. And he holds us to a high burden. So anyway, it was a really good experience that the clerks, the martial, not marshals, the sheriffs, because we were, the clerks, the sheriffs, the judge were all professional. They made it smooth. It was organized. Like, it was a cool experience. It's an important part of civil civic duty. So if you get that notice, do your job show up, be honest and don't try to wrangle your way off of jury, even though I did.

5:09I'm desperate to serve on a jury. I want to serve on a jury so badly. And literally the only time I'm 57 years old as Sarah likes to remind everyone and then exaggerate. But I'm 57 years old. I've received one jury summons in my life that conflicted and I had a great excuse. I was about to be deployed to Iraq. So yeah, so pretty decent. I couldn't come back for that. And so I'm desperate to be on a jury. I would love to be on a jury. I feel like I could be fair. But honestly, Ellie, you're trying a case. Do you put me on a jury knowing all that I know about you? Yeah. Well, yes, if my case is good, OK? If my, I mean, definitionally, the case should be good if you've brought it as a prosecutor. But yeah, I would want you as a juror, David. And I would not hesitate to tell you no if the answer was no. But I think you have the ability to sort of put aside a motionality and to judge based in a sort of clinical way on the evidence. And by the way, your excuse of I'm about to be deployed to Iraq is definitely like upper

6:111% of excuse tears. But let me just tell you, picking juries in Manhattan. So you would get people who go, I'm an oncologist at Sloan Kettering and I have patients and we would go, get out. You're excuse. And we don't people say, I'm a K through six special needs teacher. I might go, go, go. But you would also have this special breed of finance, bro, who would come in and go, well, your honor. I'm with, I'm not going to say, I'm with Deutsche Bank. And we have a huge deal closer. And the judge, so obviously I'll be making my way out now. And the judge would always go sit down like judges had no, no, no tolerance for that. So going to Iraq, you know, you're good. Well, I know we've got lots to get to, but my one man, Hat and Jerry selection story involves, we were in my very first federal case ever, I was ever a part of and I was a very small cog in the machine. I mean, you know how it is with the big firms versus big firms. And I was a first year associate in that case, as a long time advisor opinions, listeners, no, I argued my first ever motion in federal court and fund in front of district judge

7:15Sonia Sotomayor. So I could say I have argued in front of Justice Sotomayor, but she also, we had that very, that's so funny. You raise it. We had that very same incident arise. We had, we were swearing in a jury or we were picking a jury before a civil trial that ultimately settled. And there was a finance bro type guy before we knew they were called finance bros. And she was not having it. But we could talk about this for a while. We got a lot of stuff. So we're here's our order of operation. We're going to talk Supreme Court first. We're going to talk about very briefly this six, three ruling that just came out, which is really not to even call it a ruling is a bit much. But what you're going to talk about a decision on third country removals very briefly, we're going to talk about Ellie, your piece in New York magazine about the Supreme Court as we're approaching the midterms. And I want to really spend a minute on this because the question of the Supreme Court and the election challenges is probably the number one question I get anywhere in the

8:18country when I go speak or talk or anything like that. Then we are after our discussion of true crime. We're going to dive in and talk about this terrible situation in Cornell. And we're not going to adjudicate it. We're going to talk about how to approach it, how to think about it, like do some level setting. And then we're going to end with a little draft, a little draft, Star Wars, original trilogy. In other words, episodes four, five and six. If you could pick the very Supreme Court justices from the cast, who would they be and why? I'm very much looking forward to that. Hi everyone, this is Zach Shemtob, the executive editor of ScotisBlog. ScotisBlog is hosting its first ever live AMA on Monday, October 5th, the first day of the new term at 730 Eastern time with Sarah, Amy Howe and myself. We'll be taking your questions about the court and what we're likely to see this upcoming

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11:21Try gusto today at gusto dot com slash advisory and get three months free when you run your first payroll. That's three months of free payroll at gusto dot com slash advisory one more time gusto dot com slash advisory. This episode is brought to you by Nordstrom for 125 years. Nordstrom has been part of your story. The stylist who found the perfect outfit for your big interview. The first pair of walking shoes for your one year old. The tomato soup you shared with your sister at the cafe. These are the moments that make Nordstrom. Nordstrom. Bigger a small. We're here for all of it. Celebrating 125 years with new moments still add. Discover it all in Nordstrom stores and at Nordstrom dot com. All right. Well, let's start. Just very quickly on this because there's not a lot to say but I do have a kind of a specific question for you. So there has been a challenge by immigrants to right now to the Trump administration's

12:21practice of deporting people to countries that are not identified in their removal orders. This is a procedure known as third country removals. Can the Trump administration take an immigrant and remove them to a country that will accept them that is not their home country and some of these countries are pretty rough. They're pretty rough. And so lower courts had enjoined it. The Supreme Order is going to allow and have unsigned order is going to allow to these Trump administration to continue these third country removals until there's a hearing on the merits. So I'll just I'm going to read for this. This is very short. The application for stay presented to Justice Jackson and by her referred to the court as granted. The February 25th, 2026 order and judgment of the US District Court of Massachusetts. It's our state. The application is also treated as a petition for a rid of Sir Shriari and the petition is granted. So that's really the key thing here. This is sort this is a cert grant. Now here's where it gets interesting.

13:23The parties are directed to brief and argue the following questions. One, whether the district court had jurisdiction over the respondents claims. Two, whether the district court had authority to enter a class wide declaratory relief, which is going to be one of these follow on to the nationwide injunction. And to cases, class wide relief, whether the district court had authority to enter class right declaratory relief and APA, bake it. Whether it's a government's guidance on third country removals is unlawful. And number four, and this Ellie is so interesting to me. Number four, such other questions that the government determines are appropriate for the proper disposition of this case. What does that mean exactly? What's going on there? I have no idea. I mean, I would ask, I would ask you. I noticed the same thing. Like, how often is it that in the question presented, there's a ABC and also anything else that might occur? I felt the whole purpose of question presented was to narrow the question. Like I've never seen a miscellaneous question presented.

14:24The other thing that I think is interesting there is, I think it was the second one you said, you know, about the appropriateness of class wide declaratory relief because this follows on really like, you know, it was the first birth rights. It was not the substantive birthright citizenship. But when the Supreme Court basically said, we're not going to do these nationwide injunctions anymore. And since then, I have sensed in some of the opinions, concurrences and dissents from the conservative justices a little bit of frustration, I think, that this is not really being followed. The district court judges are just end running this and they're too readily granting the thing that we said they should almost never grant. There was a recent opinion. It was within last month or so, one of the big ones, maybe having to do with the election. I think it may have had to do with the Trump's mail and ballot, EO, and there was some frustration voiced by the conservatives of like, you're kind of ignoring the thing we said you shouldn't be doing. I remember very vividly talking about the nationwide injunction case and Sarah and I,

15:26but both kind of gave it a bit of a shrug, to be honest, because we could immediately see all the work around. You've had work around through the administrative procedures act. You have work around through class wide relief grant, you know, sort of class certification and class wide relief. So as one of those things where it wasn't a, I felt like the Supreme Court did not issue a barrier to nationwide relief. It issued a speed bump to nationwide relief when the reality may be that the Supreme Court actually intended to create more of a barrier than they did. And so I was very, just like you, I was very interested on the emphasis on class wide relief there that that phrase class wide relief. And my view on the whole nationwide injunctions by district courts is I absolutely understand why they're bad. I don't like them, but I also don't have a great solution. You know, and I think the Supreme Court sort of came out in the same way. Yeah. No, I agree with you. It's, I never liked the nationwide injunctions going all the way back to when they first

16:29started to get a little bit more popular and say the Obama era and then they just kept ramping up and ramping up on a bipartisan basis. You know, it just depended on where were you filing for it, Northern District to California, you know, one of the districts of Texas didn't love it. But I also knew that you could slam that door shut and there were multiple other inviting doors to walk in for nationwide kinds of relief. And we're going to have to settle this. This is one of those things where how easy or hard should it because, you know, I have some tangential relationship with class with with class actions back in the day. I used to work for some energy companies and they were out of Kentucky that were subject class action litigation involving involved things radon, radon related to oil drilling. And so an oil extraction. So I have some familiar with class relief and this kind of litigation and often it takes a long, long, long time to get the class certified to get the thing off the ground.

17:30But what we're seeing out there is sort of immediate class certification, immediate class wide relief. And that that feel that feels like where you've got the Supreme Court, maybe raising some side eye. Yeah. I think they, I think they may be regretting leaving that avenue open. But I mean, what are you going to do? You can't say there's no more such thing as class action. I mean, that they serve an important function. And I think the bottom line takeaway from this case is it looks quite clearly like the Supreme Court is going to go the administration's way on this is going to allow the third country removals as evidenced by both the blocking of the district court and the granting of the sir and the recent history. Just in the last couple months, the Supreme Court has delivered sort of a string of wins for the Trump administration on temporary protected status. And on the asylum policy of blocking people, you know, one step in front of the border. So this this court, and we'll talk in a bit about whether this court just does everything Trump wants. I don't think they do. But I'm a great, they give him very much close to all of what he wants. All right. Well, this is a good opportunity to take a break.

18:32Let's take a quick break and we'll come back and we'll talk about the question that I think you and I may get almost more than any other when we're out and about and around the country. So Ellie, when I'm out and about around the country and I'm talking, I get a lot of questions about a lot of topics, especially advisory opinions, listeners, they'll come and they'll want to talk more about birthright citizenship. They'll want to talk more about gosh, Trump immunity case. I probably get of any single case, I get more questions about Trump immunity because I'm kind of known as a defender of the court. And that's one case that I've strongly disagreed with. But above everything, over everything is the following question. How say for the midterms and can we rely on the Supreme Court to protect the midterms? It's a two part question. I get it all the time. Obviously you get it too because you've got a great piece in New York magazine about this very question.

19:33So let's talk about it. Let's talk about your piece. If I'm walking up to you after speech and I asked those two questions, how secure the midterms, Ellie, and how much can we count on the Supreme Court take away? I do get that question quite a bit in variations of that as well. How safe are the midterms? I think there's real reason for concern. I mean, we've seen there's a cottage industry now in these articles and they're good. They're interesting about how is Trump going to try to steal the 26 midterms? And if you had to put me on a scale of concern, one to 10, I'd be a seven. I mean, I think it's quite, first of all, I think it's a virtual certainty. Democrats take the house. I think it's close to 50, 50 now. They take the Senate too. And is Trump going to just accept it? No. When is he ever, I say in the article, my New York magazine piece, this guy has claimed fraud in elections. He is lost 2020 and one. He still claims it was fraud in 2016. He should have won by more. He has claimed elections in, claimed fraud in general elections and primaries, primaries

20:33of his own party when he lost the Iowa caucus in 16 to 10 crews. He claimed that was fraud and crews should be investigated. He claims fraud in democratic primaries when Abdul Al-Sayed won in Michigan a couple weeks ago. Trump said that was fraud. So the guy has never and will never accept an outcome that he doesn't like. I'm not sure. It's a harder mechanism to steal a midterm because there's going to be dozens and dozens of alike. And over turn, however big the margin is, I mean, it's the closer the margin, the easier it's going to be. It's not going to be easy. But the bigger the margin, the harder it's going to be. Let me put it that way. So if the Democrats win the House by 30 seats, I don't know what he's going to do. If it's God help us though, if it's a two or three seat margin. And so I have little to no faith that Trump will accept an adverse outcome. I have very high belief that he will try to upset it through fraudulent or improper means. Will the Supreme Court save the day?

21:34Now, of course, your listeners know the Supreme Court does not police. They don't swoop in and say, we don't like this. They can only be in a reactive posture. But if Trump tries to steal parts of the midterms, it certainly will end up in court and very likely will end up making its way up to the Supreme Court in an emergency posture. And I know the easy answer, the popular answer, according to the poll numbers, is no, they're going to let him do it whatever he wants. They're always going to back him when push comes the shoved six three court, that kind of thing. I argue in the piece, if you look at the court, especially over the last two terms, let's say 24 and 25 October terms, that really doesn't hold. The reality is if you take a look at all their decisions, he's had some big wins and he's had some big losses. And I would even argue the losses outstrip the wins. I saw the thing the other day with John Stuart, who I love and admire where he was criticizing the court and he goes, oh, I know you're going to say, oh, buddy, you struck down tariffs. You know, we did it in that voice. It's like, yeah, John, you can do it in that goofy voice, but it's not just tariffs.

22:37There's, there's to me a longer list of cases, big cases, Trump has lost than one. Birthright tariffs, national guard, nifiprist don't mail in ballots, post voting, counting of mail in ballots is executive or, I mean, it goes on and on. There's big ones. He's one immunity being number one, you know, slaughter whatever. Okay, it's a minimum a mixed bag. Okay, and if you think you're entitled to win all of them on either side, I don't know what world you're living in. Okay, that's number one. Now let's narrow the aperture to election related cases. Trump has a very bad record. He has lost. I mean, okay, he won Louisiana versus Kale. That wasn't exactly him, but Republicans and conservatives won Louisiana versus Kale, which basically said, the Supreme Court said, you can't rely on race at all to try to harm or help minorities, whatever you just can't consider race when drawing new gerry mandor lines, big win on that side. And then there was the thing the other day, the decision the other day that was really misreported where it was like Supreme Court allows voter purge database.

23:41This is a database that has been used for 20 years where state and local and federal officials can run a person through the database to see if there are citizens or not. The Trump administration said we want to increase the inputs into that database to include Social Security information and you're not allowed to use that database for systematic purges within 90 days of an election anyway. So very, very minor win there for the administration. On the other hand, think of all the huge election losses Trump has had. He wanted to strike down state laws that allowed where states have decided we're going to count mail and ballots that are postmarked by election day, but arrived whatever number of days it varies by state after Supreme Court said, no, those state laws are fine. They're allowed states run their election. The Supreme Court very importantly, a few weeks ago struck down Trump's wild executive order, which would have had DHS in the postal service, essentially dictating who can get bad. That would have been chaos if they let that one go. They have been the court has been very consistent that they are hands off when it comes to

24:43jury mandering, whether it's pro-Republican, jury mandering in Texas, pro-democratic, jury mandering in California, the Missouri case you and I talked about three times. The court said, no, it's up to Missouri. If they want to go with the more favorable maps at Democrats or Republicans, that's up to them. And most importantly, let's not forget the final word, the final nail in the coffin of Trump's effort to steal the 2020 election came from the Supreme Court. They rejected the Texas V, Pennsylvania case. So I think if push comes to shove and Trump tries to steal the election and he does it through illegal means which he will, I do not think the Supreme Court is going to facilitate that. I think it's much more likely the Supreme Court is a guardrail against that. What I found so helpful about the piece is you did something that I think is absolutely necessary whenever you're writing for an audience that you know is Supreme Court skeptical. And that is you just brought all of the receipts of all of the ways in which the court is ruled against him. And look, I follow this as closely as anybody.

25:44I mean, I follow this very closely. And you, your list was so comprehensive. I was like, oh yeah, for some reason that case had left my mind, right? You know, because there's a long, a long list of cases. And I think that the analysis that Sarah and I have made for years is still very sound. And that is this. How do you harmonize, say for example, the Calais voting rights decision and the, and the mail-in ballots decision, for example, and you know, the mail-in ballots executive order. Well, I think there's an easy way to harmonize these things. The current Supreme Court is a pre-Trump conservative court. And so if you bring in pre-Trump conservative arguments, you tend to do well. You tend to do well. It is not a MAGA court. So if you come in with legal theories that have sort of been developed in the MAGA legal universe, they tend to flounder. They tend to falter. Not always, not always. I mean, we could talk about immunity.

26:46But even that had some pre-Trump and post-Trump overlap to it. But the more exotic MAGA legal theories, especially around elections, which are sort of post-talk generated to try to flip outcomes rather than a really fully thought through set of legal doctrines, they've just flam- they have failed. But Ellie, here's the area where I'm most concerned. And I really would love to get your thoughts on this. Because I think you're very correct that if this is a big, clear result, and by big and clear, I don't necessarily mean huge landslide. I just mean enough clarity nationally that you don't have two to three people coming in or four to five people coming in with one to two percent margins, which is, that's our nightmare scenario, right? But if you have it where it's broad enough, it's clear enough, and then, and then, I don't think we're going to have a problem. However, here's my argument for the flashpoint.

27:48There is eligibility who actually sits in the house, for example. It is not decided by the court. It's decided by the house. It's decided by the house. The question then becomes, if the house engages in shenanigans, whether it's through the clerk or a majority of the outgoing house, what guardrails could potentially exist? Yeah, it's a great question. I mean, I guess, I guess there's a threshold question that you raised that I hadn't thought about. Like, could that, let's say the clerk, that's how they put in Alina Habba, they name her the house clerk, and she says, I refuse to seat this new democratic majority. I find there was fraud and therefore I'm not swearing them in. And then that case would certainly result in litigation. Would there be standing in just disability and, you know, could you overcome political question and all that and get the courts to take it? I would guess that if you could get over those jurisdictional hurdles, the Supreme Court

28:50would say this can't stand. This is not the way, but I think there's an interesting threshold issue there that could be a complexifier. Yeah, that's my nightmare scenario. My nightmare scenario has nothing to do with whether or not I can trust the court. I think I can trust the court. My nightmare scenario is something along the lines of what was attempted on January 6th. I'm not talking about the riot. I'm here talking about the legal maneuvering, the Mike Pins part, which was to try to create an essence, a non-justiciable political question that is resolved by the chambers, by the House and the Senate, where the Supreme Court cannot intervene or interfere or historically has chosen not to intervene or interfere. And that's my scenario that if there's anything that keeps me up at night, that's the scenario for me. I do think ultimately if the Supreme Court is able to rule on any of these, they're not going to tolerate this type of BS. And I also think that if they tried that type of a coup, the Alina Haba is Clark-Cou.

29:52I don't know. I've been wrong when I've said this before. This is why I'm a legal guy, not a political guy. But I feel like that would not be ex. I feel like even the Republicans, even the right would turn on Trump, would not allow that. I think that's too far. But I don't know. I mean, not enough people turn on them in 2020. So yeah. Yeah. And by the way, just one quick, I think it's a really interesting way to think about the court as a pre-Trump conservative court. If you look at Trump's three nominees, right, Gorsuch Kavanaugh and Barrett, they could have been nominated by Richard Nixon or George H. W. Bush or Reagan or George W. Right. Those are the type of people and resumes that would have been nominated to the court pre-Trump. Now if Trump gets another or another two, if Thomas or Alito, or whoever, if there's a vacancy by whatever means, I would guess he's not going to go back to that establishment conservative type. I think he's going to go way more extreme. Whether he gets it through is a separate question. But what do you think? Do you think he would go back to that sort of DC circuit, credentialed conservative or

30:55do you think he would go for, again, I'll just pick on Alina Hava here? Yeah. So it all depends on if he has a Senate. I think if he has a Senate, and he would go for, and the thing is, if he keeps the Senate, the just the political dynamics with all these headwins, if he keeps the Senate in this election cycle, he's going to feel empowered and emboldened. He absolutely will because right now a lot of the smart money is saying the Senate is slipping away. But if he, and so keeping the Senate weirdly enough would be considered overperforming right now. Even though this is not necessarily the Democrats best map, that would be considered overperforming. I think he'd feel emboldened. I think Republicans in the Senate would feel that they're still just under Trump's thumb. And he could nominate whoever he wanted to, and he's going to get that 50 plus one with the JD Vance breaking the tie. If he loses the Senate, the smart thing for him to do would be, and there's a vacancy that comes unexpectedly, the shrewd thing for him to do, would be to nominate maybe one

31:57of the most well-respected conservative jurists in all of America, and then use the inevitable unwillingness of the Democrats to hold a vote as a political club to beat them with. And so I think it's kind of a binary choice. I don't think he goes full Emil Bove or Alina Haba if he loses the Senate, because that's just super easy for Democratic senators to go. It's a layup for them. You know, if he nominates one of the leading lights of the conservative, you know, lead will movement, maybe even somebody who's demonstrated independence from Trump and the circuit court level. And still, I think Democrats either way, if the Democrats, here's the question for you, Kelly, if the Democrats win the Senate, how many judicial nominations are approved at all, at all? Does this just keep escalating? Okay. I'm going to take your question for me and remind you of a time when I asked that of someone who's actually relevant to that decision at the SCOTUS blog some in a couple of weeks ago,

33:01I asked Senator Dick Durbin, I moderated this panel with Senator Durbin and Representative Darrell Issa, one Democrat, one Republican. And I asked Senator Durbin, essentially, if your party wins the Senate, as I know, you hope, and Trump nominates a qualified conservative, if there were to be a Supreme Court vacancy, would you give that person an upper down vote or would you do a McConnell, basically, right? And, you know, that was the, and Durbin's answer is, you know, it's a, it's a politician knee. It's a little hegey, but he was kind of like, yeah, we'd give it, you know, the vibe was we might give the person an upper down vote, but it will probably be down. Like, they're going to get revenge for Merritt Garland. I don't think, if I think if the Democrats win, I'm reading into what Durbin said, you can find the clip it's out there, we can put it out. There is power within the control of the Senate, particularly in a majority situation, that you cannot deny, that's part of it. If you're asking whether I think there should be a vote, yes, I do.

34:01At some point, I think there will be a vote on any judicial nomination. But I think if you read into Durbin and if you, if you talk to other Democratic lawmakers, they will do a McConnell for as long as two years if they have to. They just feel so burned over the Merritt Garland incident. And how can the Democrats face their voters and their base if they confirm as the majority, even if three of them join over with 48 Republicans, they'll never be able to look there, other than John Federman. They'll never be able to look their constituents in the face again. I mean, the Democratic base would spontaneously combust. I mean, I can't even imagine, I can't even imagine. Okay, I want to leave enough time to talk about this awful situation at Cornell. And the reason I want to talk about it is really twofold. One, it's just a perfect follow on to what I think is, you know, we talked about true crime last podcast.

35:02And that's not just a LARC. That's not just a pop culture LARC to just divert into talking about podcasts and TV shows and all of that. This is stuff as we talked about, you know, from your experience, LA, that this really does impact the real world, the true crime phenomenon impacts the real world. And as if we needed more example of that, we just had this blockbuster horrific to read lawsuit filed over an alleged gang rape. And I just want to go ahead and say right now, I know there are people who listen to this podcast with their kids in the car. This might be a really good time to just not keep going. And we're not going to be lurid, but just in talking about this, it's middle school and younger, maybe not. So, okay, so she basically alleges there's a blockbuster lawsuit filed. And I'll set the stage, Ellie, and what I really want to do is sort of how do we guide our listeners and navigating this situation?

36:05All right, so here's the basic setup. A lawsuit is filed. The complaint hits the internet and it is horrific. It is horrific. And basically it says in a young girl Cornell student, she has had multiple drinks, goes to a frapp party. At the frapp party, she sees a guy sort of starts dancing with the guy. She's invited to a sexual encounter, shall we say, that then grows from a duo to a threesome. And she keeps during this process drinking more and eventually starts snorting ketamine, where she becomes very, very, very high in drunk. What then follows is heavily, heavily disputed. Now, in the lawsuit, essentially what she says is after this sort of initial journey into the back, everything that sort of flows from that gets non-consensual fast. And there's even a very awful screenshot of a Snapchat conversation within the fraternity,

37:11where essentially somebody just says, hey, I'm not going to use the exact language, but free access to this woman at this particular spot. Just dreadful stuff. And over the course of the night, as the lawsuit alleges, multiple men, up to seven, raped her when she was not capable of giving consent. So this hits the internet like an atom bomb. And one of the things that then emerges is that the district attorney had already taken a look at this case some time ago. And it's chosen at least at that point not to charge the case. And so very quickly, the district attorney, who's under an enormous amount of pressure, starts to release parts of the witness statement that she gave. And it turns out that there seems to have been some conflicts between the initial witness statement and the lawsuit. And the initial witness statement indicates there was some enthusiastic consent about the initial threesome that there were some,

38:14there was potentially consent at other stages of the night. And then also, it also indicates that the consent stopped at some point that the consent stopped. But the witness statement initially and the lawsuit following on are not an exact alignment. But the Tompkins County district attorney, that's where you have the, that's where Cornell is, is reopening the investigation. So we've got a lot of people running to conflate two things at once. One is, well, we've got, of course, the people who are adjudicating it in public. Like they're, they're deciding who's guilty and innocent based on what they see on social media. We also have a lot of people conflating immorality and legality. Is the way that the boys behaved the way you would, was that wrong? Yes, was it illegal? Gets more complicated. And so, and this is all happening against the backdrop of a number of campus incidents where a lot of the initial story and the initial outrage sort of fell apart under greater scrutiny, like Duke LaCrosse, UVA fraternity case that many, there are other examples.

39:28And so this is just coming right on the heels of our discussion, Ellie. And so break, break down for us how you're approaching this. It's a great example of the good and the bad of what we, what we've called sort of true crime media coverage. On the one hand, I have very serious criticisms of the DA of the way he handled the case then and now and had this gotten no attention had Jane Doe filed her lawsuit and just didn't make it into the media. I promise you the DA would be doing nothing right now. You'll go case over storm clouds over who cares? But because this hit so hard now he is furiously backtracking and the end result is this case will be reopened and it wouldn't shock me. If they are resulting charges, I think that's. That's on the one hand on the other hand, if you look at the response on the internet in the social media world, it is just everything Sarah was talking about it is just force of emotion overcoming.

40:33That's a nuances and the law and anyone who wants to say there could be legal complications here, which there are. And if you hate that you hate New York law, but New York law is New York law. And I'm not so clear which way it comes down, but there are plenty of people on air who on air, not so much on air, but on the internet who don't want to hear it and just say this is so horrible. All rape as they should all be locked up for the next 40 years. But let me give you sort of the DA's position. Now the incident happened on October 19th, 2024 about three weeks later in early November, Jane Doe goes to the Cornell Police Department gives a statement. The DA has now released part of that statement. It's a six page single space statement based on what the what Jane Doe said to the police. They then typed it up. She then reviewed it and annotated it by hand and clearly read it carefully because she made apparently 20 or so notes to it.

41:33And the DA has now released some not all but some of that initial statement. And if you look at it, you have to overlay that on New York law. And even if her later statement is different, which it is the later the complaint is quite different from the original statement and that happens. And I'm not judging which one's true or false. Nobody really knows except for a very few people. But let me tell you what New York state law says about sexual assault and lack of consent. So what consent can be the following one, forcible compulsion by the actor physical force physically restraining someone that that's nobody's alleging that though Jane Doe's not alleging that here. Two and three are sort of related mental incapacitation of the victim and physical helplessness of the victim now. Wrinkle number one mental incapacitation of the victim does not include under New York law drinking something voluntarily yourself taking drugs yourself if you're drug that's different. But if you yourself get completely drunk or higher, whatever, that doesn't count. And there's been plenty of criticism over the year of New York law for that.

42:38There's been plenty of movements in New York to change that law. Plenty of states have different laws that say even voluntary self intoxication that can negate consent, but that's not the law of New York physical helplessness of the victim basically means outright passed out. And again, these are not things that Jane Doe alleges in her original statement. The fourth one is if the victim clearly expresses that she does not consent says no. Now that to me is where there may be some play because the Victor are in. If you want to read the whole thing, you can find it. It's, as you said, David, it's graphic and horrific and all this. There are a few points where she says no to that and then continues with this. And I don't know that consent can be parsed so thinly, right? There's an argument that once you said no a couple times to some things. That's no, that's I don't consent, right? So my crit, let me now get to my criticisms. So my criticisms of the online universe are the typical ones that Sarah raised that people are letting emotion sort of, and look, it is emotional.

43:42You're entitled to go have whatever emotional reaction you want, but it should not translate into therefore this is absolutely a crime under New York law. You have to take a careful look at New York law. Okay. My criticism of the DR, he clearly blew this case off. He got the statement from the Cornell police and was like, eh, doesn't match case over could have done so much more could have interviewed the boys back then the males didn't do that. Obviously he's not going to be able to do that now. Didn't get forensics or a medical report run on Jane Dow it would have been three weeks later because she took her three weeks out probably wouldn't have amounted too much didn't ask for a receiver review contemporaneous text communications. What did she say to her friends the next day? What were her conversations? Didn't do any of that stuff didn't go, you know, take a look at the room in the fraternity run a search warrant, whatever you may have doesn't look for internal surveillance from the fraternity. Now some of that may be attempted, but some of that's going to be too late now, including you're not going to be able to interview the males now you're not going to be able to do forensics now. And the other thing I want to criticize the DA for is his position now is I'm going to just punt this to the grand jury. That's BS that is grand juries are not there to be your heat shield.

44:52If you think you have a chargeable case, you present it to the grand jury. If you don't you don't just throw it into their court and say well it's on them whatever they may choose to do that is it that is a cop out passing of the book by the DA. So the day they're obviously needs to be and will be much further investigation here, but understand legally under New York law. It's going to be a difficult climb and again, also keep in mind that burn the proof beyond a reasonable doubt and the existence of the first statement is going to be a problem no matter what said later because that's going to be a credibility question for the key primary and maybe only relevant witness. So it's horrific, but let's take it down a notch before we assess whether there's a chargeable provable crime of rape here. Well, I'm very glad you brought up the standard in New York regarding intoxication because there is you know, so funny. I mean, there's this commonality with the Lindsey Clancy case where there was a quirk of Massachusetts law where you had to prove as an essence as we talked about it once the defensive insanity is raised you have to prove.

46:03You have to prove sanity by beyond a reasonable doubt that is not every state not by any means here it strikes a lot of people in different states and also just sort of as a common sense matter. Wait, what if I voluntarily get really, really, really drunk, then that doesn't count, but if I'm drugged that does count. That is something that is a quirk of the law, as you said, people have been critiquing it for a while have tried to change it. But that looms very large in this case and I don't want to do the thing where we kind of twist and turn through the available evidence that we have now that that strikes me as not productive. I guess the main takeaways I would say is try as best as you can to separate your moral judgment here of what happened from the legal judgment of what happened separate those things out and then realize that the legality of what happened is often governed by some pretty quirky state specific kind of rules that can often sort of remove the case from what you might think of as like a

47:17the common sense way I would adjudicate this or the common sense approach to this. And I think the inability to remove yourself from that is often part of the cause of a lot of confusion and disillusionment with individual case outcomes when you know I would say you New York really does need to think hard about this intoxication standard likes that what on earth what on earth is sort of when I look at that standard. But it is the law right now and it is going to loom very very large in this case I'm actually shocked New York hasn't changed their law I mean you think of all states that would update their laws New York I mean it's a you know it's it's it's actually New York has passed several laws that are to the advantage of people who've been sexually abused or assaulted over the years but not this one. Well let's go from something incredibly grim to something a little bit more fun this David this is what would be known in the in the TV world as a tone shift so I'll take you behind the scenes a little bit so sometimes you know on set your something spontaneously funny happens are you doing a sports section or whatever.

48:22And then but the producer knows that the next segment is something very serious and so a good producer will say into the anchors earpiece tone shift tone shift because they don't want you. You know, hamming it up and and cackling up and then you have to go and now to the tsunami that claim 4,000 lives and whatever you know. So so tone shift approaching here so tone shift everybody after the break is going to be very dramatic because we're going from one of the grimest possible conversations to something a lot more fun and lighthearted so prepare for the star wars draft of scotus. This episode is brought to you by Nordstrom for 125 years Nordstrom has been part of your story the stylist who found the perfect out for your big interview the first pair of walking shoes for your one year old the tomato soup you shared with your sister at the cafe these are the moments that make Nordstrom Nordstrom bigger small we're here for all of it celebrating 125 years with new moments still add discover it all in Nordstrom stores and at Nordstrom.

49:29All right, welcome back everybody. So here are the rules as I understand them Ellie you tell me if I'm mistaking the rules essentially we're having a draft we're going to have three draft picks a piece for who do you think would be an outstanding Supreme Court justice in the original star wars cast and why and I thought this is really fun. And it's not going to be obvious I mean there might be a couple of obvious ones but it's not going to be super obvious because to say the least our words is not a legal drama. So we do not have examples we do not have examples of either rebel or imperial jurists to draw from so let's let me just go ahead and start with you and I've got I've got two I've got three I think you're going to take one of them but I'm not going to take one of them. But I've got three and I don't think you're going to take two of them but anyway let me just start with you so first of all the impetus for this David is the way that Sarah unacceptably degraded you over a very salient star wars comparison you made at the summit and on the episode and she started on which one is which what are they call and she was dismissive of you and so rather than shame you I'm here to encourage your star wars super fandom.

50:50Which I share but really I'm a I may you know that I know they're not technical that star wars and pyres are expected to turn the jet I would happen when I was you know perfect age born in 1975 it defined my entire childhood until I was 12 years old or whatever and literally on that but but I love those three movies and so you have to be in those three I also have three that I'm going to nominate and one that I think maybe you're going I have one no vote but I'm going to do the three. Okay, my first nominee is I think probably my most obvious one princess laya and let me make the case for princess laya. Okay, she's smart. She's gutsy. She cannot be bought or intimidated right I mean the scenes were Darth Vader's interrogating her and she's like piss off. She let a successful revolution I mean I think she's entitled to some spoils of that she should maybe even be the while she's a princess already she watched her entire home planet blown up essentially for sport by the death star so I think she has some sense of loss and empathy I will say you might criticize her she's been criticized for her under reaction to that.

51:59She she wanted to be like if you were put on some other planet and watch them blow up earth and you were like hey that was mean also this is important she has some force the force right she has a little bit of it but not too much and so I like somebody who has some instincts but isn't going to just totally rely on the gut no offense to the force I will say there could be a little bit of a speed bump at her confirmation because she did kiss her brother. But she didn't know they didn't know they didn't know at that time Luke Skywalker her brother that's very good that's very good so I knew you're probably going to go with the big characters so I thought who can I go with it like a true star wars a fishionado would say he knows ball like he knows he knows. So my number one pick mon mothma if you watched and or you know who mon mothma is she's one of the principal characters and and or she's in the part of the imperial senate she gives perhaps when I mean watch just Google mon mothma speech imperial senate now you're thinking but David I told you original trilogy well she's in the original trilogy she's in return of the Jedi she makes a very brief appearance as one of the head leaders of the Republic.

53:16I mean leaders of the rebellion who later becomes sort of a leader of the Republic that succeeds the Empire and so she's there she's very brief but she's a principal character in and or so see how I shoehorned that in well so this is this is despite the weird name this is a human character right a human character she's a human character I know she is she's the one who says many people died for this information yeah right right she is a stateswoman she is the brilliant political thinker she is at the step with imperial and in the law of the old Republic she is one of the more impressive figures just as far as like in charisma and and so so this is somebody I feel like that's easily of the whole cast of the of the trilogy to me she is the number one draft pick even though her total screen time in the trilogy might be 45 seconds but hey that's what I you know the rules were the rules were they had to be in the original no you've abided by the rules she is she is constitutionally eligible and similar to I mean I feel like she in Princess Leia would form a block I mean right there they're ideologically aligned and similar demeanors so yeah yeah and my my

54:33boss is a little more a little older little more experienced and distinguished but yeah absolutely we've got a block right there okay my second nominee to that point we need ideological diversity on this panel it can't all be good guys okay now hear me out hear me out I I nominate to the Supreme Court job of the hunt okay now okay first of all job of the hot is an independent job of the hot is not good guy or bad guy job of the hot is a pragmatist he's transactional he's not interested in grand theories one way or the other if it works for him it works for him also I want to make this point job of the hot is not vulnerable to the Jedi mind trick so if you have solicitor general Yoda solicitor general Luke Skywalker and he tries the Jedi mind trick it's not going to work on job of the hot that is a virtue also two other things that I like about job of the hot one he'd have that salacious crumb the

55:38little monkey thing which would be awesome you'd have to get a little robe for salacious crumb and number two at oral argument if an advocate was making a boring or terrible argument what would happen boom trap door you're down there rank or monster now that might be cruel but I would watch and you would watch I mean that is a form of sanctions you know I mean you know rule eleven violation you get the trap door I don't I don't see any unfairness there Ellie I mean we know the rules and if you violate the rules I mean you know I mean come on so so my second pick my second pick admiral act bar the fish headed guy whose famous line and turn the Jedi is it's a trap yes now why would I choose admiral act bar so if you know your star wars law you know that admiral act bar is you know part of the mon calimari race he's a brilliant commander he has an analytical mind he's somebody who is

56:42adept in a crisis and so this is the person you want receiving your emergency emergency petition at one in the morning right this is the person who can see around the corners who has moral courage and physical courage so this is the person that's getting that one a and petition is able to evaluate it quickly immediately and make the right answer so admiral act bar that's a great pick I actually asked my son and he he suggested admiral act bar and I really like that one I think that I was torn between him and Princess like so awesome pick love that okay my my third nominee is also I I think unimpeachable and that is R2D2 he is look who could possibly vote no on R2D2 he's a war hero he was wounded in combat right he gets blasted in the back of the the ship that blows up the desert he is a master of intel and counter espionage he carries the original message from Princess Leia that saved the entire cause the entire rebellion he is a key part of two of the most important missions ever blowing up both death

57:49stars he is practical he is smart he sees through pretext or subterfuge and he can understand and translate any language and in the star wars supreme court you're going to have all sorts of wack languages being argued and you need someone who can translate and bridge that gap so R2D2 is going to get confirmed what however many people are in the star wars at 10,000 to zero and he's unimpeachable and there's no argument against R2D2 also his robe would be kind of all I don't know how a robe would fit on him because his body is this like it would be hard to get a robe to stay on him you would need like a last there would be some sort of a decent I think Velcro Velcro around the barrel body yeah I think that's the way I'd have to go so mine is probably not confirmable but I'm going to reach for it anyway less than job of the I don't know I mean your your point about like force like immunity to the force is a very important one I mean imagine you have a Jedi advocate who comes up and is like you know this is not the summary judgment you're looking for you know and so the this mine is

58:56Lando Calvassia oh boy his most famous move was selling out his best friends but okay but here was my thinking if there's anybody you would want arguing for you at the supreme court smooth kind of a chameleon kind of very smooth very eloquent like this is a guy who is can can turn on a dime I've always had this thought what if we had one of our best supreme court advocates on the court like what if you pluck somebody who was just a you know a cannon chain McGahn a Lisa blad or whatever and you put them on the court what would that be like so that's Lando Calvassia like it's it's like Lisa blad on the court you know the person who can represent many different sides see all of the different sides extremely persuasive charismatic would be a machine and conference after the you know after oral argument I don't know I don't know if if that person if cam chamaghan or Elizabeth Praelogar had sold their best friends to their likely deaths then yes exactly right that's the

59:59wrinkle in the confirmation problem I'm just so so I mean you have somebody who just executes people who are upset him right so I mean is it okay and and look I know can and Lisa and all of those guys they would never sell out their best friends I'm just saying the tool set the skill set not not the moral framework the tool set that that's what I'm going for here okay so and controversial I was prepared to rebut you on Yoda because Yoda is the obvious right but let me let me make the case against Yoda okay he believes just entirely too much in the force almost to the exclusion of all else and you just can't have that you have to have somebody who yes take your force take your ideology take your your gut your vibes fine but it can't be like I don't care about the facts it's just for second of all his syntax would be impenetrable and unbearable he'd be like wrong is a pellet because a pellet is wrong and you'd be like what the hell are you talking about third of all

1:00:59we've we're gonna have a life tenure problem with Yoda because he dies and then it comes back and it's like does he get to stays kind of a ghost is he done is he on is he off so that's my no on Yoda so my no on Yoda is due to cheating so my no on Yoda is I cannot I cannot see Yoda or Obi-Wan in the same light after watching the prequel trilogy where they are handed hand side by side with the future Darth Vader the whole time and then Darth Vader is turned and one blinding moment by Palpatine I'm like you're just too gullible guys you're too gullible you're just gonna see the good and everybody you're not gonna be cynical or skeptical enough you were taken in so yeah we look at them as heroes in episodes four five and six but they're cleaning up the mess they made they made this mess and so yeah I'm just I'm out on them I'm out on that poor Yoda I would you

1:02:01know I think Yoda would be the first name to pop in everyone's mind but so let's envision art we have six justices on record imagine you're standing in the well of the Supreme Court and they say oh yeah oh yeah and out comes justice is Leia Mothma whatever that lady's name is hot job of the Calrissian justice D2 and justice at bar they'll be amazing this was either the greatest or worst segment ever done on this podcast depending on where you are in Star Wars yeah it just like in Bostock case how the oral advocates were aiming their argument at justice corsets you you could you know they were aiming it I'm aiming my argument at Lando I'm I think he would I think he would always be the swing vote he would he would always be the swing vote and the most eloquent member of the court so he's he's my key he's my swing justice I'm just not gonna let my son clerk for job of the hot you know that that's that's where I draw line all right I would say in the history of tone shifts that's a hard tone shift oh gosh well thank you so much for sitting in this

1:03:06has been a real treat I know the audience has really enjoyed it and I've really appreciated it and and never fear guys the true the once in future host the true host is returning again next week and sadly sadly we'll say goodbye to Ellie for the time being but you are now officially not just a friend of the pod but a BFOP best friend of the pod so we appreciate you so much thank you what a thrill what a it's been a blast anytime not that I want you or Sarah to ever be to be you know just what it's to be ill or anything but if you are or out of the country you know where I'm at I'm happy to come in and be the the the boy Sarah or the other David French I love it love it thank you Ellie thank you listeners and we'll be back next week that's it for us today if you like what we're doing here there are a few easy ways to support us you can rate review and subscribe to the show on your podcast player of choice to help new listeners find us and we hope you'll

1:04:09consider becoming a member of the dispatch unlocking access to bonus podcast episodes and all of our exclusive newsletters and articles you can sign up at the dispatch dot com slash join and if you use promo code a you'll get one month free and help me win the ongoing deeply scientific internal debate over which dispatch podcast is the true flagship and if ads aren't your thing you can upgrade to a premium membership at the dispatch dot com slash premium that'll get you an ad free feed and early access to all episodes to gift memberships to give away access to exclusive town halls with our founders and to place in our hearts forever as always if you've got questions comments concerns or corrections you can email us at advisory opinions at the dispatch dot com we read everything even the ones that say David's right that's gonna do it for our show today thanks so much for tuning in we'll see you next time