Justice Breyer to Retire
S1: This ad free podcast is part of your Slate Plus membership.
S2: Justice Breyer announces his intention to step down from active service after four decades for decades on the federal bench, 28 years on the United States Supreme Court.
S3: I wonder if sometimes if the institution mattered more to him than the outcomes and here were people who were undoing the institution.
S1: Hi and welcome to Amicus, this is Slate’s podcast about the courts and the Supreme Court and the rule of law and the law. I’m Dahlia Lithwick, and I cover those
S2: things for Slate. I mean, eventually I’ll retire. Sure, I will. And it’s hard to know exactly when. And you know, there’s a famous story. I can’t remember who the justices were. You have to look that up. I think it was maybe the Stephen feel. I don’t know if Holmes was sent off to tell him court. Well, maybe it’s time here. It’s on. And then I think Brandeis or somebody went to see Holmes. I don’t have the name quite right. But but you said you remember Mr. Holmes when you were sent off to see Justice Fields, they were great. But it did tell him that maybe the time had come to say yes to Holmes and a dirtier day’s work. I’ve never done.
S1: That was Associate Justice Stephen Breyer talking to me in December of 2020, a little bit over a year later, that eventuality has come to pass. Justice Breyer announced his retirement this week following hot on the heels of the Supreme Court’s decision to hear major affirmative action cases and a week of headlines consumed by which justice was wearing a mask at the Supreme Court and why. Justice Stephen Breyer, a champion of compromise and civility of bipartisanship and mutual respect, seems to have timed his departure from the court in the most political fashion possible. He will be turning the lights out in some sense on a fractured partisan institution. He might no longer recognize at all. So this week’s show we’re asking a former federal judge and leading legal thinker, Judge Nancy Gertner, to walk us through what Breyer’s retirement and the looming nomination wars mean for the Supreme Court. Writ large, writ small. All of it later on in the show, we’re going to talk to Slate’s own Mark Joseph Stern for more about the Breyer news, his legacy, how this is going to play out on the court, how he behaves for the rest of the term and talk a little bit about the frontrunners. That segment is accessible only to Slate Plus members. Thank you. Thank you for being the support we need right now. But first, we turn to somebody to help us think through just a lot of the questions under the Breyer vacancy about justice, about judging the politics of the next nomination and about being a judge in this moment. Judge Nancy Gertner is a former federal judge appointed to the U.S. District Court of Massachusetts by Bill Clinton in 1994. She retired from the bench in 2011 to teach at Harvard Law School. Judge Gertner has written and spoken around the world on civil rights, on gender and on sentencing reform and so many other topics. Her wonderful autobiography, In Defense of Women Memoirs of an Unrepentant Advocate, was published in 2011. She very recently served on President Biden’s Court Reform Commission and her new paper Reimagining Judging, published through the Square One project, tries to rethink sentencing. So welcome Judge Gertner to Amicus. I really want to hear what you have to say about what’s barreling down the pike at us.
S3: Do we have days or just a short time? We need a days.
S1: You can take days. This could take a while, but I want to start with justice Breyer. I noted when I first heard the news that he was stepping down on Wednesday that here is this last judge who just refused to be partisan and he wouldn’t be pushed out by the left because it would politicize the court. And he wouldn’t accede to what the right wing of the court was doing as political. Because right to the end Judge Gertner, he insisted that the court is apolitical, that justices are not junior varsity politicians in Robe, and he lived on this knife edge of always wanting to protect the court as an institution, but also wanting to protect the liberal values that his own legacy of what he had put into place. And he kind of at the very last second, maybe I’m being unfair, but I think this announcement in January, he didn’t wait till the spring to give the Biden administration lots of runway to replace him feels like it’s ultimately a really political act.
S3: I don’t think he had a choice. I don’t think he had a choice. He is all that you described. He is an institution. Journalist. He wanted to believe that the court as an institution, was apolitical. His book last year was timed perfectly so that he could make that point over and over again. But I don’t think he had a choice. I think that the Ginsburg model of someone who was making contributions to the court up until the very end, but who ultimately dies in the Trump administration and winds up being replaced by someone who is her polar opposite. You know, he’s an institutionalist on the one hand, but he was deeply political. On another, he was an aide to Senator Kennedy. The sentencing guidelines, which he crafted really is extraordinary. His input in the sentencing guidelines, his vision was moderation on the one hand. On the other hand, let’s split the difference and let’s have a rational system, which was very political because it was sort of trying to walk a thin line between all of the political fires that were going on. So he’s political in the sense that he understood the stakes here. On the one hand, and he’s an institutionalist on the other, but he had no choice. He had no choice but to retire at this point. You know, he’s 83, had no choice. The only thing I wonder about is whether there was a moment when he saw the new conservative majority grabbing cases intentionally undoing what is it, a 60 year legacy of not radical stuff? I would even not even say liberal stuff, but but certainly liberal ish, you know, decisions of the court, and he saw them sort of not just dealing with this stuff as it arrived. In other words, here’s a case that we have to take because it meets all of the usual standards. They were aggressively reaching out to undo cases from the past 40 years. I wonder what he felt when he saw that happen and whether that was the trigger, but I think it was bound to happen no matter what anybody said. I knew it was going to happen. You knew that it was going to happen. It was only a question of when.
S1: It’s interesting because I’m thinking about some of his questioning, even in the Dobbs argument, the most recent, you know, 15 week Mississippi abortion ban. And some of his questions in that oral argument were about the legitimacy of the court. Right. Like, it’s clear that the thing that was dispiriting to him wasn’t just this one dimensional. The court is drifting ever rightward. It was that between the way the shadow docket is operating, as you say, between the ways in which the court was reaching out to take questions that were not properly before it and then willy nilly saying if precedent may be overrated. The way we were hearing in Dobbs that in a sense, he was fighting this two front war where he really does feel and this I absolutely credit him with. He feels that the nine justices are the sole guardians of the reputation, the integrity, the independence of the court, and that I think almost pained him more than the right word drift that the court was kind of for lack of a better word, kind of crapping all over centuries in his mind, right? He always goes back to the Trail of Tears, and the court didn’t have legitimacy and let Justice Marshall enforce it. I mean, he really, I think, sees this as an existential moment for public regard for the court, and that seems to be breaking his heart more than the end of Roe and the expansion of gun rights.
S3: Well, I think that’s right. One of the things that I struggle with that I’m writing a memoir about judging, which is very difficult, but it was that you temper your politics the minute you walk on the bench. And if you’re an appellate court judge, you have to deal with the other two guys on the panel. This is a court that doesn’t have to deal with anybody. That’s the horrifying point. They don’t have to deal with anyone. They got a clear road to do whatever the hell they want to do with precedent. I think that’s what he saw. They don’t have to struggle with Justices Sotomayor or Kagan and him. They didn’t have to struggle with anyone. They have a clear path and that’s the ultimate legitimacy issue. They can reject precedent. They don’t have to struggle with, you know what the usual standards are for Cert. They don’t have to struggle with anything. And I think he saw that not just in the destroying of a liberal legacy, because although I believe that he has liberal instincts. I wonder if sometimes if the institution mattered more to him than the outcomes and here were people who were undoing the institution, the affirmative action case that they just took there is no reason to take it except to undo affirmative action the law was. Settled it was no division amongst the circuits that only the Supreme Court could resolve, and therefore the only purpose of taking it is to undo decades of settled precedent. Dobbs there was no reason to take that except to undo Roe v. Wade. There are standards for what the Supreme Court may take, and this court is ignoring those standards, and they have four reliable votes to do whatever the hell they want to do, which is not judging in any way, shape or form. So I wonder what it must feel like in those conferences when he sees that it really does not matter what Kagan, Sotomayor and he says to this group at all?
S1: I guess riffing off of that. I’ve been very elegiac about him because I think and look, I’ve been covering the court for 20 years and I remember, you know, when he and Justice Scalia would go round on their like multi-city concert tour and Ray Justice Breyer remember likening them to like Justice Grover and Justice Oscar? You know, and they’d wave their Muppet his hands in the air and justice. You know, Breyer would talk about workability and pragmatism, and Justice Scalia would grouse about Ron Paul home originalism and, you know, strict constructionism. But they really loved each other, and they really started from a premise of deep respect and regard for their mother.
S3: And they had to deal with each other. They felt it. Because of that. There were stakes. They had to account for the other’s view. And these guys don’t.
S1: So what you’re getting to, I think answer is maybe this question that I was going to ask, which is, you know, he had a skill set has, I guess I don’t want to talk about him in that sense, but he has the skill set of working the levers, right. The thing that we associate with maybe Justice Brennan, that he could get O’Connor, that he could get Rehnquist, that he could, you know, I interviewed him just over a year ago, and he was so careful to say credit is a weapon. You don’t want to get credit, you just want to get results. And he learned that I think he would say from Senator Kennedy that even if you hate each other, you find a point of mutual interest and you do the deal.
S2: When you disagree with someone, we talk and talk politely and you go on and eventually and it happens almost always, they’ll say something you agree with. And then you would say or you can say, let’s work with that. And you work with it and not always by any means, but sometimes you make some progress here. And if it’s positive and you get and say, okay, we all can sign on to that. And then in the Senate, you know, you announce this bill or that bill or we got this passed and the press is there. And hey. It’s the other person you push forward that builds confidence and makes agreement easier the next time. If you succeed, there’ll be plenty of credit to go around. And if you don’t, who wants the credit
S1: and so you subordinate your big ego and you get the deal done? And what you’re saying is all of those skills just matter. Not at all. They kind of clatter to the ground now because you can do the deal, you can concede. We’ve seen in the last couple of years he and Justice Kagan make concessions and get nothing in return. And that he had this one superpower, which is deep mutual respect, enduring friendships and relationships. I think he thought right to the end that as long as we’re nice to each other around the lunch table, maybe I can get some outcomes. But it was very clear that stop working for him.
S3: I mean, what is being nice? But but it was also the legitimacy of the court depended on appealing to reasoned decision making. What does that mean? Well, there are specific standards for Cert right? Are there divisions in the country as between courts of appeals? Is it a matter of public importance? There were standards for Cert and once Amy Coney Barrett joined the court, those don’t matter. The driving force is not. Does this meet the standards for a cert? The driving forces? Do we think this was the right decision? So yes, he’s incredibly simple. He really is a warm and wonderful human being. But the institutional issue, the principles that drives the court that all of them are supposed to adhere to really don’t matter with this group. I mean, I thought I was as cynical as the day is long, but even I have been surprised at how easily they have cast off not just the usual precedents, but the notion that they’re going to be on the court for, you know, decades. This conservative majority is really entrenched. They can take their time and take their time and be respectful of the institutional issues, but they’re not taking their time. They are ripping all of these precedents completely asunder. And I think that’s got to have been shocking to him. Before Amy Coney Barrett got on the court, I was tracking all of the decisions that talked about precedent. You must have seen these all these wonderful Kagan dissents, which said, you know, really smashing precedent to smithereens and what will be next. And you thought that it was only about abortion, but it wasn’t only about abortion, it was about everything. And I think that’s got to have been incredibly heart rending to him and really troubling.
S1: Yeah. Again, I’m thinking of the Dobbs oral argument where he came in prepared to defend his opinion and hold women’s health and prepared to defend the reasoning in the Louisiana decision and suddenly finds himself in this maelstrom where Brett Kavanaugh is doing a hamlet about it. Maybe it’s all overrated, you know, maybe we should. And I think it was this meta discussion where it was really clear that there were five justices, maybe six. I don’t know where Justice Chief Justice Roberts comes down on reversing precedent, but when you’re having a meta discussion about the value of precedent in the first instance, you’re not talking about abortion at all.
S3: Right, right. But they had been talking about the value of precedent. You know, long before that, they were talking about the value of precedent in their writings. You know, it’s interesting. I mean, the the the the right talks about the agenda of left wing judges. I think that’s a riot, for one thing. The question of what is a left wing charge is an interesting question. But when I got on the bench, the first thing that I experienced in the first thing I wrote about when I left the bench was that the quote Democratic judges were mostly ducking, but mostly ducking. I mean, in fact, I gave a speech about how the principle pressure I felt was not the political one it was to avoid and evade. Just keep your head down, settle cases, you know, dismiss cases on technical grounds and you’ll be happy. And the right was rending the fabric asunder. They were coming in. And even that’s the case with District Court judges now as well. Trump appointed District Court judges. No, I think I think Justice Breyer had to. I mean, I know what he wanted to believe, but this has got to be heartbreaking, just heartbreaking.
S1: It’s funny because over the last year or so, the more he protested that he was protecting the reputation and the independence of the court and the more the left doubled down, tripled down, quadrupled down to push him out for fear of him making the Justice Ginsburg mistake that you started with. The more I said, This is insane. It’s like sitting on the chest of, you know, the Easter Bunny or Santa Claus and just smacking them saying, Why won’t you just concede there’s no such thing is, I mean, he deeply believe this. I do want to give him credit. It on beyond this romantic notion that he was the guardian of the court’s reputational interests. I do want to give him this and I wonder, Judge, if you agree. He was a bone deep believer in facts and a bone deep believer that government exists to solve problems. I mean, that was right from his dad, who worked for school boards his whole life was enmeshed with, as you said, it was politics, but it was also small politics, right? Citizen activism, educating yourself. Get yourself elected. Be in the discourse. I mean, he really believed the government exists to do things to help people live a better life. And I think in that way, also time just passed him by because he’s now staring down the barrel of, you know, non delegation doctrine and, you know, complete attack on the administrative state, the regulatory state. I mean, we talk about it so much on this show. But he sat there in the Oshae arguments about the vaccine or test mandates, saying, What are you all thinking like? Are you really going to do this in a pandemic like this is what government exists for? And I feel as though that’s another way in which just history passed him by. Linda Greenhouse. I think that he was the right man for the wrong time in her piece, but he really still has this very romantic attachment, both to finding fact and that government can fix things for people. And this court, I think there are four maybe five justices on this court who don’t believe in either of those things.
S3: I think that it’s government fixing things and it’s also the Kennedy legacy. But it also is is a deep believer in courts. He’s a deep, deep believer in courts. You know, it’s it’s funny when the White House commission, there were other judges. I was among the group, you know, who believed that this conservative majority and the ways in which the Republicans are trying to change voting, this conservative majority is now entrenched for decades to come and that that’s a distortion of the Supreme Court in ways that we really have not seen. And there were some other judges and I debated them publicly. You know, it’s almost as if they wanted to say, Don’t say that out loud. Don’t say that out loud. If you say it out loud, it will make it worse. Don’t criticize the court because it’ll make it worse. And I think Breyer was a lot like that, which is you. What you’re describing may well be true, but don’t say it out loud because if you say it out loud, it will make it worse. So he will never say it out loud. But I mean, I do agree with you that it’s both. The court is an institution and government as a force for good and the Oshae case, the notion that this court used that case to stand on their high horse about delegation. You know, there are many over delegation cases. Oh, sure. Is not one of them. I’m looking forward to the Environmental Protection Agency and how that fares. I have a personal interest in the sentencing commission, which I think was in fact over delegation, you know, but that’s a whole other whole other discussion. No, I think it is a question of good government. I think that that he certainly is part of that tradition. But mostly, I just wonder whether his heart is breaking over this court as mine is, as yours is.
S1: Let’s talk for a minute about the politics of this confirmation fight, because it seems to me a couple of things, none of which bode well, I would think. You’ve got a six, three super majority, as you say, probably for 30 years, I mean, it’s hard to imagine absent court repair court reform, I’m sorry and court expansion that this isn’t a supermajority for a very long time, in which case you take the win. I would think you just say, Hey, Biden is going to put someone on the court and they’re going to be smart and qualified. OK, we still have a six to three court. As you said, it doesn’t matter. We don’t even have to negotiate with them because there’s only three of them they’re going to lose. And yet in this short amount of time, since we’ve heard that Breyer is stepping down, we’re already getting, I guess I can just call them full on racist attacks on the not yet named black woman that Biden has pledged to put on the bench. And I’m not going to name the tweeters. I don’t think it’s really worth it. But we’ve got one tweet that comes out that says, you know, this is identity politics. We’re going to get a lesser black woman. We have another tweet that suggests that Catanese Brown Jackson, who’s the frontrunner from the D.C. Circuit, has quote serious quality issues. I don’t understand. I mean, I guess I do understand, but let’s talk about the ways in which this needs to turn into critical race theory. Affirmative action. Black women are inherently not qualified. This is not representative of how tiny the number of black women in the judiciary are. I mean, it feels to me as though, given the choice between going high and saying, of course, all of these women on the shortlist are eminently qualified and re doing this tawdry battle about how they’re just not that smart. They’re just not that impressive. Joe Biden is a chump for making this promise, even though Ronald Reagan made the near identical promise when he nominated Sandra Day O’Connor. Why make the choice to use this to just fuel the fire? And I know this is a long question, but it feels to me as though the inevitable result, if you start by tweeting that they’re not smart, is that you get what you have now directed at Sonia Sotomayor, which is if you start with the predicate that this woman who graduated summa cum laude from Princeton Phi Beta Kappa, one of the smartest by any measure, candidates for the court and 20 years later, they’re still calling her stupid. And she lives with that. Is this just ceding the ground for decades of calling whoever this woman of color is stupid for the rest of her career?
S3: I think that that’s right. I think that that is a drumbeat that we’ve been living with, frankly. I mean, it was women generally, and now it’s women of color. It’s a drumbeat that we have been living with for the longest time. You know, it’s very interesting. When Amy Coney Barrett was appointed, there was not a drumbeat that, you know, you’re looking not just for any qualified women. You were looking for a qualified woman with Federalist Society pedigree. And that was a very narrow group. And no one said in that narrow group are people who really are not qualified. You just had a say the right words and you would be in the box. You know, you had to talk the talk to get in the box. No one was talking about that. The women who have been named and I know Katagiri, you know, are superb, are absolutely superb. And I it’s really late in the day to say that the effort to find a qualified black woman is an effort to find a less qualified judge because the pool is long and deep now, not as wide as white males who look like all the others. But that’s because of who are judges. You know, there’s still a very few number of women judges in general, proportionately and still fewer African-American women. But the pool is deep, and the women who have been named are certainly are certainly qualified. I mean, you know, this is probably will get in trouble for saying this. Clarence Thomas, how qualified was he when he went on the Supreme Court? You know, I mean, this is certainly a pool of qualified women.
S1: Right. And Clarence Thomas was actually on the D.C. circuit for exactly the amount of time that Katanga, Brown Jackson will have been on. And yet he is seen as qualified and she hasn’t got enough chops yet. So I think it is without a doubt a one way ratchet and a thumb on the scale. But I also, you know, I’m really mindful we had Ed W.A.S.P. Legal Defense Fund Sherrilyn Ifill on the show.
S3: Just a few should be on the Supreme Court,
S1: who should be on the Supreme Court and who, you know, for a million reasons isn’t taken seriously, both because she’s ancient, because she’s going to turn 60 this year and because she’s way too late. All because we’re never going to put another Thurgood Marshall on the court, and we can talk about that in a minute, too. But I think that she made this point that really has kind of weighed on my heart for a couple of weeks, which is, you know, we like to say, Oh, Sonia Sotomayor, you know, you go. You had that great dissent. You know, you said that thing about the stench. But she’s alone there. I mean, it is really hard to be Sonia Sotomayor sitting on the court. And, you know, she misspoke at the Oshae arguments. A lot of justices misspoke, but man, the headlines for days were that she’s dumb. It’s really not something that ends once you go through the crucible of confirmation that it really is, as you say, this drumbeat that follows you where you know you’re just isolated and it’s so hard, I think, to think about, you know, whether it’s any of the amazing women who are now being named that even once you get through this hellscape of the scrutiny, that is a double standard and the confirmation, as you noted, Amy Coney Barrett’s confirmation was rife with, quote unquote identity politics. She was a mother. She was an adoptive mother. She was Catholic. All of that is allowed when you’re a white woman and it’s the Federalist Society. But whoever this person is is almost set up in a way to be isolated and minimize the way Sotomayor has been on the bench.
S3: There is a wonderful book about the ways in which women, even women who were proposed for the Supreme Court, have been trivialized in the past, described in terms of what they were wearing in terms of how attractive they were. And even with respect to Sotomayor and Kagan, they were articles about how they were not mothers. And, you know, it’s about time we had a mother on the court. There was not discussion about fathers. They continue to caricature women. I mean, you know, when Amy Coney Barrett was was in her confirmation process, the Democrats steered clear of the identity politics even though they were there. And Linda Greenhouse, in her recent book on the judiciary, said When you put out your Catholicism in articles about being a Catholic judge, then it’s a fair discussion. You’re not talking about private observance. You’ve now put it out there as part of your public facing, you know, part of you. But we didn’t talk about that, but it was talked about with Sotomayor. I mean, I think Sotomayor is alone on the court, although it may be less alone now. I have to admit that I was so troubled and struck by the mass controversy, and this actually harks back to our conversation about Justice Breyer the mass controversy, which of course, was horrifying. Sotomayor is vulnerable. She’s a, you know, diabetes and she’s a juvenile. Gorsuch was not wearing a mask. Justice Sotomayor was required, not required to cheat. It was better for her to then watch the argument from her chambers. And when the press reported that as a rift, you know, between the two of them, they came out and said, no, of course we’re good friends. Of course it’s a rift. It’s a preposterous position that Gorsuch is taking. And so she had. Sotomayor has to feel isolated on numbers of axes, not just, you know, gender and ethnicity, but health. But they were going to come out and say, Here we are. We are one court, even though we know that that’s not true, even though we know that that’s not true.
S1: Yeah, it’s interesting. I always think about, you know, Justice Alito, when he went through his confirmation process, when Clarence Thomas went through his confirmation process, both talked about race. Both talked about, you know, Thomas talked very, very, very movingly about growing up in the Jim Crow South, and Alito talked very, very movingly about his Italian ancestors and the discrimination they faced. But the minute Sotomayor, who gives a speech about the wise Latina judge, puts that into evidence. Then she gets questions about whether she’s racist and whether she’s a bully and whether she’s unbiased. And it really does go to, you know, the set point, which is the only people who can be objective, I guess, are white men. And if you suggest that you have a special solicitude or special experience, if you’re a man, I guess you get to have that. If you’re a woman, you are forever encumbered by it. We’re already seeing that comments made by some of the prospective potential Biden nominees about the need for diversity in the bench are going to be an issue because when women say we need diversity on the bench, it means they hate white men. But this does lead me right back to the Biden Judicial Reform Commission, because it seems that you also just had to be on that knife edge. I mean, you are both a judge who worries deeply about the independence of the judiciary and the esteem of the judiciary. I think you would be the first to say, I don’t want to dismantle the judiciary. I don’t want to harm its independence. We need it. We desperately need it. And I, Sherrilyn made the same point on the show a few weeks ago. And yet, when the judiciary is bringing upon itself public dis approbation and distrust, something needs to be done. And I just wanted to give you a chance to talk a little bit about that knife edge because we started by saying that that’s where Breyer lived in the last few years, but it’s also where you have lived, and I think that you were also very ambivalent. I mean, I know you in Professor Tribe after the commission ended up writing saying, I think the only solution is to expand the court and how painful that was. But can you talk a little bit about what it means when you simultaneously want desperately to protect the legitimacy of the court and you’re being called out when you want to expand it for destroying the legitimacy of the court?
S3: You know, it’s interesting. I think it’s a question of what is fair criticism of a court like any other institution and what is unfair criticism. And that is a knife edge that I have been walking, not just when I was on the bench, but also ever since the presidency of Trump. Right? So what is not a fair criticism? Unfair criticism is judge lit. Whether you are a woman, you must be bad. You are a Trump appointee, you must be bad, you are black, you must be bad, you are Hispanic, you must be bad. That is not a fair criticism. A fair criticism. It seems to me, at least, is you’re not paying attention to precedent. You’re not paying attention to rules. You’re basically not paying attention to the currency of judges. That seems to me to be a fair criticism. And if you don’t say that out loud, then the public will believe things are fair when they’re not. There’s a legitimacy on the other side of not criticizing when courts act flawlessly, and I think it’s important to say that out loud. But that is the that is the knife edge. I have a concern about not all, but some of the judges that Trump has appointed that we’re confirmed are in fact using the same playbook District Court Courts of Appeals, which is to say I don’t care about precedent. I’m going to reach for issues that are not in the case in front of me. I’m going to be implementing an agenda which is, you know, a direct relationship between what I believe and what I’m going to put on paper, not mitigated by any of the rules or norms or socialization of a judge. It’s so ironic that liberal quote liberal judges were seen as having an agenda. You know, there is no question that I had a sense of what was fair. I had been a civil rights lawyer, but whatever I did, I struggled with the law. Here’s where I thought it should be, and here’s what the law seemed to require. Here’s what the Court of Appeals was bound to say. Does that match? Does that make sense? And if I couldn’t do it, I couldn’t do it. There is not the same reticence amongst some of the justices, certainly justices of the Supreme Court and some of the judges said that Trump has appointed. It seems to me it’s a fair criticism to say they’re not behaving like judges. You know, they’re not behaving like like judges at all. That’s a fair question. I don’t think that that undermines the legitimacy of the court. I also think that that’s apparent. And if you don’t name it, that undermines the legitimacy of the court more than anything else. But yeah, we have to walk a fine line between what’s fair criticism and what’s and what’s not. I’m on the American College of I’m a member of the American College of Trial Lawyers, and there’s a judicial independence task force that wanted to intervene whenever Trump or any other politician was caricaturing someone because of their race, ethnicity, etc., like the Mexican judge riff of Of Trump. And I’ve written to them and said, That’s all well and good, but what are the guidelines for entirely fair and appropriate criticism of a court? And what’s fair and appropriate criticism is you just smashed 40 years of precedent to smithereens. Nothing wrong with saying that. That has to be said otherwise. We’re living in a world of shapes and for shadows and not real. We can be real and talk about the court as it is.
S1: Judge, can we Breyer in one other piece of this, which I know you’ve thought about so much, which is the judicial ethics rules, and I’m thinking a little bit about Jane Mayer’s reporting that came out last week about the behavior of Clarence Thomas, his wife Ginni Thomas. And in some sense, none of it is new. We know that she is deeply, deeply involved in lobbying and you know, she’s in the White House. She’s telling people she has access to Tom. I mean, there’s lots of questions that rise. And I guess, look, the feminist in me worries that we don’t want to bench judicial wives. And I’m mindful of, you know, stories about, you know, Justice Brennan’s wife. There was such a sense that if she did or said anything that would undermine him, that she was not allowed to speak. And I suspect that’s been historically the case. And so I want desperately for judicial spouses to have jobs and meaningful jobs. And yet that’s the feminist in me. The judicial ethicist in you is now going to tell me that have a job, you know, do whatever, but that there is a line. And I want to hear you just sort of help me figure out whether Ginni Thomas is on the right or wrong side of that line. But I also want you to help me understand why the judicial ethics rules worry about not impropriety, but the appearance of impropriety. It’s the appearance, and I think it goes to all the stuff you’re saying about, you know, you have to be held to a higher standard. This is about optics, and that’s for a reason. So can you talk through? That was a very this is my tribute to Justice Breyer. It was a three part question with a footnote, but I wonder if you can just help locate the reporting on Ginni Thomas, because I’ve heard an awful lot of people say totally out of bounds to go after a justice’s spouse in their job. Well, you know, I thought a
S3: lot about this because I can’t tell you the numbers of recusal motions that I got as a judge because of what my husband was doing. So this is the reverse. My husband was the legal director of the American Civil Liberties Union, and I would get a motion to recuse me because of positions he was taking in civil rights cases. And I had a standard answer, which is if you think I ever listen to him, you are wrong. So that’s that’s clearly, I mean, the notion that I should be held accountable for what he’s doing. But Jane Mayer’s reporting was suggesting something different. She was suggesting that Ginni Thomas was contributing both intellectually and financially and through the organization. She’s with two amicus briefs that were going to this court. My husband never did that. He would tell people, if you’re getting near Gertner, you can’t have me involved in any way, shape or form. So that is a different issue. It’s not what she’s doing in a pod destined for even even, you know, dealing with issues that are issues that are appearing before the court. What was interesting about what Jane Mayer was saying was she was involved in Amicus briefs that were being submitted to the court. That’s a very different line, and it raises two questions. One question is the Supreme Court has no enforceable code of ethics. We dealt with that on the White House commission. In other words, they may be bound by rules, but there’s no entity that can enforce it because they’re the top of the pile. So who would enforce it over them? And there were recommendations in the report about how you might go about that. So the court is bound by ethics, but there’s no enforceable code of ethics against them except impeachment, which of course, is virtually impossible to do. So that is one issue. And I mean, I think the other issue is what you talked about about the appearance of impropriety. The appearance of impropriety cannot be my spouse’s political activities that have nothing to do with cases before the court. But the appearance of impropriety begins to look different when you’re talking about my spouse’s activities insofar as they relate to what goes on in the court. That’s really a different line, both an appearance issue and I actually think an ethical, an ethical issue. The other issue is also trading on her relationship with Clarence Thomas. You know, there’s a really funny story about literally my first month on the bench. There was a pornography case. There was a guy, there was a seizure of really malicious books at Logan Airport, and the case came to me and my clerk said, We’ll just you’ll just send them back, right? I said, No, I’m going to read it. I want to see if it’s pornography. And she says, You’re going to read it. Nobody reasons I’m going to read it and I read it and I read the statute said, you know, it was pretty explicit about what’s pornography was. And so I said, yes, this has to be seized and sent back. The defendant then contacted my husband, went to the ACLU and says the free speech issue. My husband looked at it and said, OK, you got a choice here. You either have Gertner or you have the ACLU. You cannot have both. And that’s what. And that’s essentially what should be going on here. You either have Ginni Thomas and the money that she can command and the organizations that she’s involved with. Or you have the Supreme Court, you cannot have both. And they’re trying to have both, you know, and that poor set of books was sent back.
S1: You knew it when you saw it. That’s what I like. I want to end a little bit where we started when we both went. Sherrilyn Ifill never going to happen because I think it goes to a really baked in asymmetry judge. And you talked about even that sort of slightly defensive posture you had as a district court judge. You know, where you sort of do as little as you can, you know you want to get it right. You’re not you’re not out over your skis. And I was really struck on Wednesday by hill reporters running to find Mitch McConnell to ask him if he was going to obstruct Biden’s nominee. And let’s be clear, they’ve asked him, What are you going to obstruct Biden’s nominee in 2023? If you get the Senate? Or you could, I mean, they have made it clear. If I don’t know how to make it more manifest that they still think it’s Mitch McConnell’s Senate, even though he doesn’t command the majority, even though there’s no nominee named, there seems to be an invitation that I can’t imagine going the other way that says, help us craft a way that you are going to stymie this thing because it’s still your Senate, even when it’s not. And I feel like this is all the way down. I mean, we’ve talked a little bit about how Justice Breyer. Certainly. I think Justice Kagan is by no means the far left of the legal judicial stratosphere that given the choice to replace justice who was far to the right time and time again, we’ve seen presidents put someone at the center left and say, You know, I don’t want a Pam Karlan on the court, I don’t want a Bryan Stevenson on the court. I don’t want to Sherrilyn Ifill on the court. I want somebody who’s sort of a centrist technocrat who’s not going to rock the boat. And that asymmetry means that in his lifetime, the court completely talked around Stephen Breyer and every justice who is appointed on the left is slightly. To the right of the person they replace, and every justice on the right is with few exceptions. Oh honkin lot to the right of the justice that they hung him. Not being a word any more than cautious is, but let’s just put it out there. And I wonder if this asymmetry that goes all the way down, including the willingness of Josh Holly to go after a quote woke nominee who has not been named by Biden. If that asymmetry that didn’t allow Senate Democrats to go after Amy Coney Barrett for things she had written about the intersection of faith and judging that that asymmetry is why, given the opportunity to put someone who is the equivalent of an Amy Coney Barrett or Clarence Thomas or Sam Alito or a Neil Gorsuch onto the court, the folks on the list that I’m seeing are not not left. Symmetrical equivalent of that, and I wonder, I don’t know, that’s not even a question, it’s an observation, but you can just puncture it at any place, you know?
S3: I completely agree. I mean, the notion that even Breyer Kagan or Sotomayor were liberals, Sotomayor’s record on the Court of Appeals was quite moderate. I sat with her as a district court judge, quite moderate. Breyer was a moderate on the 1st Circuit. Kagan’s writings were technical. I think the best illustration of what you’re saying about the Democrats proposing moderates is Merrick Garland. It’s almost as if you don’t have to go beyond that, Merrick Garland was Obama’s pick for the Supreme Court when he had one. So I think the dynamic that you’re describing is right wing picks from the Republicans moderate Democratic picks who then keep on accommodating to the right wing judges. And so therefore the court moves to the right, and Breyer, whom I adore, is a classic example of that trying to find common ground with for want of a better word. Ideologues means that you move in that direction. And over time, the accommodations in fact move the court to the right. You know, I teach about criminal procedure. And you know, the Warren Court’s innovations with criminal procedure was long ago abandoned by the Supreme Court, which slowly carved out exceptions to Miranda, carved out exceptions to Fourth Amendment suppression in accommodation for the right wing of the court. So I think you’re absolutely right that the Democrats put moderates on the court and the Republicans have been putting more and more ideologues. The other issue is something that came up in the White House commission and that you see in the arguments of the Democrats, the Democrats keep on saying, you know, we are institutionalist. Should we do what they are doing, should we slash and burn the filibuster in the same way that the Republicans had done when they wanted to get candidates through or legislation through? Should we behave as uncivil as they are behaving? I don’t hear that discussion among Republicans. And so the wider dynamics the wider political dynamic begins to look like what I’ve described with the court. The Democrats are accommodating to strong willed, defining a line in the stand right wingers. And therefore, the politics moves to the right. The debate in the White House commission was whether it would set off a flurry of activity, expanding the court until the court was nine hundred people. On the other side of the argument was they don’t care, they’ll do it if they need to. And therefore, this is a fair debate now. But you know, the notion that we’ve been putting liberals on the bench is, let me say, I will make one exception to putting liberals on the bench. Me. I have to confess, right, but I I profoundly felt the institutional pressures when I was on the bench profoundly felt them. And this is apropos of your question also about identity politics. White men were the default when we went to law school. They were the default. They were the reasonable man. They were the default. They continue to be the default in judicial politics. And everyone who doesn’t meet that paradigm, that model is an outlier. Instead of recognizing that the country is men and women, black and white, and the default is diversity. The default is, you know, multiplicity of experiences. I’m also reminded of this really wonderful comment that O’Connor made in Thurgood Marshall died, and she said that his presence in the room changed the discussion. Changed the discussion, and I think that’s what we should talking about, who should change the discussion now, given the complexity of this court and the complexion of this court. You’re not going to change it very much, but I think that that’s a fair goal to change the discussion in the room. So, yeah, no, I think the default should be diversity.
S1: It’s so interesting as you’re talking and I’m thinking, you know, I’m such a fossil again because I really. Have such a deep regard for Justice Breyer’s aspiration about what he wanted, and I’m really aware that it wasn’t just O’Connor who said that about Thurgood Marshall, it was Anthony Kennedy said it about Thurgood Marshall. Justice Scalia said it about Thurgood Marshall. I think Linda Greenhouse construction of that was that they would always concede they didn’t know what they didn’t know until he started to talk in conference. And I’m trying to think of a single time in recent years that I’ve heard somebody say that about being in conference with Justice Sotomayor.
S3: That’s so interesting.
S1: I can’t think of a single time that, you know, it’s one thing for Justice Sotomayor and Gorsuch to come out and say, Oh, we’re friends, you know, I never asked him to mask, which was not the thing that was alleged. But to say we’re friends is really, really fundamentally different from, well, I had no idea what it was like to grow up with diabetes in a single parent home in the Bronx. As a Puerto Rican who spoke English as a second language, I mean, there is a lot to be learned from her life. And you never hear that credited at all. And it’s really, I think, maybe a sad place to end, but a real signal of how far we’ve come even from 20 years ago.
S3: Well, it says something about. But the time Thurgood Marshall made it to the Supreme Court. His observations had become legitimate. In the way that Sonia Sotomayor’s observations have not, and maybe they were at one point, but we’ve moved so far into the politics of white supremacy is all that comes to mind that what she is saying is no longer is not considered legitimate in the same way. So I on that depressing note, in fact, this depressing interview, I’m fairly confident to say, you know, that’s really all very troubling. But you’re right to say, and we have to say over and over again, there is not a finer human being than Stephen Breyer. There’s not a man of more integrity than Stephen Breyer. And you know, although he and I disagreed about some things, his intentions with, you know, his intentions and his goals and his purposes could never be underestimated or denied or caricatured. And I would hate to see the Post Breyer court caricaturing his contribution and carry on allowing this debate to be caricature. So we’ll work against that.
S1: Come for the deep insight, stay for the despair that could be issues no hashtag. And I want to agree. I think when I think about what Justice Breyer, just as an individual has brought to the court, it’s just an immense amount of ego less curiosity. And one of the things I loved about any time I talked to him about anything was, first of all, like I said, not interested in credit, never cared about credit, but really like was curious about, you know, reading Proust in the original French, like just the whole world was fascinating to him. And and I think that will be missed. Judge Nancy Gertner is a former federal judge appointed to the U.S. District Court of Massachusetts by President Clinton in 1994. She retired from the bench in 2011 to teach at Harvard Law School. She’s written and spoken about civil rights, gender sentencing reform, and we will have to have you back, Judge Gertner, to talk about reimagining judging because I think it is cutting edge thinking about how judges do. Sentencing her autobiography In Defense of Women, Memoirs of an Unrepentant Advocate was published in 2011, and it is a must read for folks who are thinking about some of the questions many of the questions that we’ve talked about today. Judge Gertner, it is always a joy to talk to you and really, really, we appreciate this insight, I think, on judging and the courts what we still have and what feels like it’s slipping away. Thank you.
S3: Thank you.
S1: We are arrived at everybody’s favorite moment, which is the behind the scenes gossip part of the show with Mark Joseph Stern, who covers the courts and the law and who probably, I don’t know Mark. Are you wearing your pajama bottoms from three days ago? Because I sure as hell am
S4: I am a gym shorts person. It’s like the one jockey aspect. I think of my personality and I am definitely wearing the same gym shorts that were three days ago.
S1: Yeah, yeah. I mean, it’s it’s there was an MSNBC hit with like fuzzy blue cookie monster socks that even my son was like, This is a bridge too far. The fuzzy because I don’t care if no one can see them. No. Mark. It’s been a week. And the thing to say, it’s been a
S4: wee thing, I just have not it’s been. Yeah, one of the one of those weeks that is really crazy. And you know, I think on some level, it’s what we live for Dahlia. It’s like what we why we get paid the big bucks to do this. One exciting zippy, you know, time crunchy job where it’s like we just go into action mode and it’s like, right, right, right. Talk, talk, talk. There’s some fun in that.
S1: Well, I’m just going to ask you the gossip straight out first, which is we all knew this was coming. Were you surprised that we got it? And toward the end of January, as opposed to April, May, June, which is when historically we get these announcements?
S4: Yeah, I was surprised. I mean, I think you covered this well in your piece like this is a pretty politically savvy move by Breyer to ensure that his successor can be confirmed in the next few months. While Democrats still hold the Senate by a 50 50 vote and can get presumably a reasonably progressive justice to take his seat. I assumed that he would probably wait until at least the spring to announce and then hold on through the summer for as long as it took to get that person on the bench. But he chose this route instead, which suggests to me at a minimum that he is like ready to leave the court. He wasn’t last year, he was still enjoying the job. I think something has subtly shifted and he is like, All right, it’s time for me to go home to Boston after all my years of service and play with my grandkids because I can’t do this anymore.
S1: You know, it’s interesting. Nancy Gertner, Judge Gertner, I’m sorry in the main show, made a point of saying, you know, his his superpower was kind of doing deals like right and wrong to his critics. It was horrifying, you know, to his boosters, it was sort of the last vestige of that thing. He learned at the feet of, you know, Senator Ted Kennedy, which is, you know, you get to yes, no matter what it takes, because that’s what. We do, which is, by the way, an incredibly political framing of what a judge does. But once he’s on a six three court, there’s no one to do deals with. And Judge Gertner made this kind of interesting point about once you take the guy who was always able to pull in O’Connor, always able to pull in Rehnquist, you know, sometimes could just make the rabbit come out of the hat in the most improbable ways, and that what really changed in the past year Mark is when there’s three of you, you’re just fighting over who writes the dissent.
S4: Right, right. And he is the senior most liberal justice, so he gets first dibs on the dissent. That’s how this works. He gets to decide if he’s going to write it, the lead dissent, at least, and if not, he can assign it to Sotomayor, Kagan. And as I wrote in my first pass piece, I don’t think that he serves very effectively in that role as senior, most liberal justice. I just don’t think he is a dissenter at Hearts. I think he pulled a lot of punches. His his rhetorical style does not lend itself to, I think, the kind of very sharp dissents that can make a real splash and can inspire future law students, which is why Scalia and RBG always said they were trying to do right to make to lay down dissents that would one day evolve into the law. Breyer didn’t do that. He didn’t ask super effective questions at oral arguments. I guess he held the three together pretty well, like they were a cohesive bloc. But that’s really easy to do when you’re a trio and you’re so wildly outnumbered. The one thing I will give him some praise for is that when the conservative legal movement over shots in the last year or two, when Republican attorneys general colluded with insane lawyers to bring absolutely depraved and demented lawsuits to the Supreme Court, Breyer was pretty good at diffusing them. And I think the best example of this is the latest Affordable Care Act case, right where Texas, joined by a bunch of red states, tried to blow up the entire ACA because of some ridiculous legal theory. That’s not even worth explaining, and Breyer led a seven two majority in rejecting it on grounds that were simultaneously narrow and emphatic and pretty much impossible for even rogue lower courts to get around for a second bite at the apple. So he still had some of that skill that he used with people like Sandra Day O’Connor to craft compromises. But in almost all of the big cases, there just wasn’t an opportunity to really exercise it and Mark.
S1: I’m loathe to ask this question again because I feel like it is the central question, but I do want to give you a chance to reflect on. And again, we talked to Judge Gertner about this a little bit, but there’s such a disparity between how. Justice Stephen Breyer saw judging and the court and himself on the court and the way the entire rest of the country left and right saw the court and you know, as you noted, there was this paradox of this very political retirement while insisting he was non-partisan. I interviewed him a little over a year ago, and here’s what he had to say to me about how he thinks about the court and the large sweep of history.
S2: The court changes very, very, very slowly over long periods of time. That’s that’s that’s what I think, because it’s the legal view and this sort of jurisprudential view of what’s the country like, what’s this constitution about? What is our what is the court about and what is its proper role? Those questions will never be answered. People will have approaches to that. And some over time, the historians will tell us over 100 years what happened,
S1: and I guess I want to give you a chance to react because, you know, Jeff Shesol has this lovely sentimental piece. I know my piece was also sentimental, just being like, Oh, his ah, it’s he’s he’s the guy who’s going to turn the lights out on this idea, but bless him for having it because the alternative is so awful. But I know you’re much less romantic than me and Breyer and Jeff Shesol.
S4: Well, and even then, though, when I watched his ad libbed speech at the White House, I couldn’t help but feel some of that affection for the guy. I mean, it’s hard not to love him in some ways.
S1: Even even
S3: before you get there, can we just talk about Joe
S1: Biden being like, You should totally come for a sleepover man, like go to the lake and we’ll have a pillow fight you. We’ll jump in the bin.
S4: Dr Joanna Parker will come and chill acts and you can meet the new cat willow. There’s a new cat in the White House. I’m sure Breyer loves cats. He’s so feline himself, you know? And I just I love their bonhomie. Biden and Breyer clearly they like each other. And maybe, you know, Biden played some role in Breyer, making this pretty pragmatic and somewhat political decision. Maybe Breyer thought, I know this guy and I can place my my faith in his hands, which is apparently something that r.b.g didn’t think about Obama. And now we’re all paying the price. So, yes, Breyer, you know, Breyer can be very lovable, but his style of jurisprudence is so incredibly naive today, assuming the best in his colleagues, even as they shred the precedents that he loves the most. And also, just as I noted earlier, ineffectual on a court with a conservative supermajority. He’s not striking very many deals behind the scenes and those deals that he does strike. They probably won’t stand up for that long, with a few exceptions. So he’s served a good role in the days when he and Sandra Day O’Connor ruled the land and they were like, OK, we can uphold this Ten Commandments statue, but not this one. You know, we can allow this affirmative action program, but not this one. We are Solomon. We are splitting these babies. And the court’s approval rating was really high during that period. And I think there was a strong public perception that the court was basically getting it right and we just don’t have any justices. Once Breyer leaves, we won’t have any justices who view judging that way, who view judging as a kind of pragmatic endeavor of working with your colleagues to iron out some compromises and figure out a middle path that that a majority can be happy with, like our judges on the left and right now are very much about formalism, about bright line rules. Even the liberals often turn to originalism, which is something Breyer never really even pretended to believe in. There is a much more kind of rigid approach to the law now that Breyer has rejected his entire career and instead focused on things like how workable jurisprudence can be, you know, how we can reinforce democracy in very abstract terms. That is so different from how Elena Kagan writes and thinks about the law. And I think it’s remarkable that it’s not just the conservatives who reject his style. It’s also a lot of the new liberals in the judiciary who don’t want to adopt this pragmatic approach that hands out wins to both sides because they seem to think that in the end, it almost always leads to liberals getting rolled.
S1: Can I ask a practical question at the risk of sounding like Breyer, which is a lot of folks are trying to understand what happens next? So the White House has said they will announce a nominee by the end of February, which I think gives them a little runway to decide it earlier. And Breyer has said in his letter that he will serve until his replacement is confirmed. What does that look like? As a practical level, we know Breyer will sit till the end of this term. Does the nominee get confirmed and then they just sort of sit in the bullpen waiting to be called to the Big Show?
S4: Basically, yes. So Breyer has said he’ll sit till summer recess, which is in either late June or early July, and then picks out technically the term won’t end until next October. So he is ensuring that by that point, by the formal end of the term, there will be another younger justice sitting in his spots. There are not hard and fast rules about when a successor has to be confirmed, and it is perfectly OK for the president to name and the Senate to confirm Breyer successor. Like right now and have that person just sit in the bullpen waiting. And then once Breyer vacates the seat, there’s like a final move that the president takes to make it formal and then that person becomes a justice. So Breyer has given the White House and the Senate a whole lot of runway here. I don’t think that anyone would want this. This not a nominee to have to sit around for like months and months and months while awaiting that seat. I think that would be a little bit awkward. But it does seem like there’s a good chance that there will be maybe a month or two of a gap between this person winning confirmation in the Senate and then this person actually donning the robe and becoming a justice.
S1: And I guess I just have to ask another question that I’m asked a lot, which makes me laugh a little bit, which is, do you foresee Breyer just taking the next three months to go crazy? And we’re going to see rock and roll Breyer and he’s going to like, you know, start just blaming his colleagues in dissent and acting all crazy. And I know we have a little bit of a template, you know, from the death penalty, a decision this week that what would you give it? What are we going to see from Breyer? Is he going to just right to the bitter end be Breyer?
S4: I think he will continue to be exactly who he is. He will not wild out. Just my guess. It’s not in him. It’s not who he is.
S1: He’s going to grow his hair. Is he going to grow his hair? At least
S4: he does. He have hair to grow. I mean, I guess he could grow a beard and maybe like a villain mustache or a goatee. I don’t think he’s going to do anything substantively different over the next few months. I think he’s just going to continue to be Breyer. You know, we may perceive his writing and his questions in a different light, and we may sort of think that they are harsher or a little more loose and kind of angry. But I would guess that that’s largely because we’re just, you know, viewing them through the lens of his impending retirement. He’s always had a bit of an edge to him. He can be angry when he wants to be. And that will surely come out as he is dissenting from, say, the end of Roe v. Wade. But I think he’s just going to still be the same old Breyer right up until the end.
S1: And I guess we have to talk about to the extent that there’s already been massive pushback. And I want to be clear, it doesn’t seem that it’s in the GOP’s interest to do massive pushback. There’s going to be a historic first African-American woman justice on the court, and it’s not going to change anything. So you could probably just take the win and move on, but apparently. And there is some sense that that. Is this, I guess, but there’s also particularly among some of the folks who are planning to run for president. A willingness already to say that whoever Biden puts up is a woke lefty Marxist who’s going to end America for all time. But the big obvious focus is, you know, race and gender. Again, you and I wrote about it this week, but what do we do with the fact that this feels without having a nominee named Mark like it’s already devolved into quote unquote identity politics and racism and gender wars?
S4: I think it’s absolutely nauseating. I am blown away by the arrogance of the mediocre white men who are dead certain that they won their own success in life without an iota of affirmative action for white dudes that they somehow existed in a pure meritocracy, but that any woman of color is inherently suspect, which is the argument being deployed here, which is the same argument that was deployed with Sotomayor. And I think it’s important to remember that, yes, Biden said he was going to nominate a black woman. Obama never, ever said that he was going to nominate a Latina. He never said, This is the opportunity for us to put the first lady on the Supreme Court. All he said was, I’m going to pick the most qualified person. He picked Sotomayor. And the same people who are screaming about affirmative action now accused Obama of using affirmative action to pick. Sotomayor accused her of being a mediocre pick solely because she was Hispanic with no evidence, none that she was actually selected on the basis of her ethnicity, let alone her gender. And so I think it’s important to recall that there is an inherent racism in this approach to judicial nominations. There is an inherent racism in the insistence that any woman of color nominated to an important position has to have benefited from affirmative action that they are just presumed mediocre until proven otherwise, and it’s impossible to prove otherwise. These folks seem to have no shame. And there is very little we can say, I think, to explain to them why they are racist. And their only real response is to accuse us of racism. And I know that you and I have been flooded with emails and tweets and messages all week saying that we are the real racists. And I just want to say that every person who accuses us of racism, it’s at least as far as I can tell, has been a mediocre white man. There are a few exceptions, but most of them are just, you know, just kind of like boring white dudes who coasted to their positions because other white men looked upon them with favor. And I just want all of them to know that I feed off of their anger, that it makes me stronger and it makes me happier and that my life is objectively improved by their absurd and shameless accusations against me.
S1: Mark stern hulks out Amicus extra. I agree, and I think it is really remarkable when you have one. One side here openly and explicitly referencing like lesser females and
S4: lesser black women.
S1: That’s you know, it’s it’s. And the calling of that out is the act of racism. I guess I want to lash this somewhat to the grant. It seems like 700 years ago, but the court did in fact agree to hear major affirmative action dispute that the court had been kicking around, kicking around, kicking around the courts, going to hear next term, which I think we can agree will spell probably the end of affirmative action as we know it in admissions. And I guess we. Both want you to talk about it, but I think it’s really hard not to have the conversation about that case and where that case is going. Without looking at the fight that is happening again, we have no nominee. But that that is being posited as an affirmative action hire, no matter who, no matter who is picked. It will have been an act of affirmative action. They are unworthy inherently and the ways in which it feels to me as though some of this, you know, the tweets from Nikki Haley and the the sneering and snarling from the conservative legal movement is ceding the ground for that fight to come in the fall.
S4: So Dahlia, I think I agree and I disagree, and I’ll start with my disagreement. I had understood until fairly recently that the conservative legal movement had taken a kind of split view on affirmative action and opposed it as any kind of matter of policy with regard to, say, admissions, especially in higher education, but allowed it when individual decision makers who were not acting as like, you know, government agents made a concerted effort to diversify some kind of professional circle in which they function. The obvious example here is that Brett Kavanaugh said very clearly, I am going out of my way to hire female clerks because there aren’t enough women clerks on the D.C. circuit or on the Supreme Court. And so I’m going to favor women applicants over male applicants to remedy that problem. And no conservative, as far as I could tell, raised any kind of stink about that. None of them said, that’s, you know, affirmative action. You’re degrading men. You’re a diminishing male achievement that was assumed to be totally OK. And that follows in a very long line of presidents selecting justices and judges, in part because they wanted to diversify the judiciary. You know, Ronald Reagan campaigned on nominating a woman to the Supreme Court. There weren’t very many women in the law who are conservatives, so we had to reach down into Arizona’s Intermediate Court of Appeals and pick Sandra Day O’Connor, who by today’s standards, was not qualified. You know, Reagan later nominated Scalia because he wanted someone of quote Italian extraction. Eisenhower picked Brennan because he was Catholic. LBJ picked Thurgood Marshall, in part because he was black. No. One, at least as far as I can tell until very recently suggested that there was anything wrong with that, that there was any problem with a powerful person who is in the position of making these decisions, saying, I want more diversity over these, you know, circles that I control. And yet now we’re being told that there’s no difference between a president saying, I want to pick a black woman for the Supreme Court and a college saying we are going to take race into account to create a more diverse student body. And both of those things are equally pernicious. Another example that obviously comes to mind is that Trump said he wanted a woman for the Supreme Court. He picked Amy Coney Barrett, touted her as a woman because everyone knew that the goal was to have a woman overturn Roe v. Wade because it was bad optics to have all men overturn Roe v. Wade. That was less than two years ago, and no one seemed to raise a stink about it. And yet, here we are today, and everyone on the right is accusing Biden of racism and us too. And again, that’s totally fine because it just, you know, increases my daily levels of joy. I think that there is a fundamental inconsistency and a conflict in the right’s approach to this issue. I think that they want to frame all decisions that even take into account race and sex as fundamentally bigoted and wrong. And yet they cannot deny on some level that there are institutions in our country that have locked out women of color, people of color and women forever that they are unbalanced because of that, that they are dominated by people who don’t look like the country they serve because of that and that maybe someone should do something about that. Like, that’s why one of the reasons why they wanted Amy Coney Barrett because she was a woman, because there weren’t enough women on the Supreme Court. And so I just don’t think you can say there’s a one to one comparison here between them opposing race conscious admissions at USC and Harvard and then opposing Biden, saying he wanted to pick a black woman. I don’t think that if you really dig into their arguments against both of those things that they necessarily can be squared or that their historical approach to this issue is at all consistent with what they’re saying today. It’s just kind of befuddling to me, and I would love if you have any kind of explanation to square the circle, but it seems to me that they’re just sort of making it up as they’re going along and figuring out what lines they can use on Fox News to make it sound like their opponents or their. Real racists.
S1: What you’re saying actually has one other subtle link that I think is worth saying explicitly and you said it when you talked about Barack Obama tapping Sonia Sotomayor, which is it’s not just that affirmative action is a bad thing when liberals do it and a good thing when conservatives do it, you know, see e.g., Ronald Reagan or Brett Kavanaugh’s female clerks, but that when a liberal does it, even if they say this is not in fact, my purpose in picking Sonia Sotomayor, if they have the temerity to pick someone who is a woman, a minority, it will be called affirmative action for all time. Even though that wasn’t the explicit promise, and we talked about this in the show as well, that person will, for the rest of her career, be tarred as an affirmative action pick. Paradoxically, that was always Clarence Thomas objection to affirmative action. Right? But it’s really interesting because you kind of can’t win if you’re a Democrat and you can’t lose if you’re a Republican.
S4: Yes, that’s exactly right. That is the paradigm that the right is attempting to create. And I think when put in stark terms like that, it’s very easy to reject as just fundamentally illogical and inherently partisan.
S1: Do you want to talk for one little minute about our short list, which is this, I think fairly well known of who the possible candidates are? It seems as though I’m not misspeaking when I say that Katanga Brown Jackson is probably the frontrunner only because it’s an easy lift. She’s just been confirmed, with three Republican senators signing off less than a year ago for the D.C. Circuit and very much a protege of Breyer and very much in the mold of Breyer Justice Leon Kruger at the California Supreme Court on the short list. J. Michelle Childs, who’s about to be elevated to the D.C. Circuit and then lots of names that are bandied around that are, I think, are seen as less likely contenders. One question which is why not rush it? Why not just name the person tomorrow and do it in 27 days? L.A. Amy Coney Barrett But is this going to change this list going to change between now and the end of February when we get the formal name?
S4: No, I don’t think so. And I think that everyone understands that Angie Brown Jackson is at the front of the pack at this stage. She is clearly very, very qualified and I think very brilliant. Even though some conservatives may say that they have quality concerns about her, I certainly don’t see that come out in her writing, which is, I think, really strong and not at all partisan and very much what we would want from a great legal thinker. I think that Justice Leandro Krueger is also clearly brilliant. She would not necessarily be my pick, in part because I believe in both demographic and professional diversity, and her resume looks a lot like the resumes of many federal judges today. She was a fancy lawyer who did fancy lawyer things, whereas guitar Angie Brown Jackson was a public defender, and I think that that perspective is crucial for this Supreme Court, where the closest we really get is Sonia Sotomayor, who was a prosecutor but while serving as a prosecutor, learned all of the dirty tricks that prosecutors use and has kind of deployed those against law enforcement and prosecutors in her jurisprudence. So I would put on K B.J. at the front, and then we have Judge Michelle Childs in South Carolina, who’s about to be elevated to the D.C. circuit. As you noted, I think she’s also brilliant. Her opinion striking down South Carolina’s same sex marriage ban was really beautiful and one for the ages. I just don’t see her as necessarily being a true front runner. I see her as a close associate of Jim Clyburn, who is a real powerbroker in the Democratic Party, who insists that she be in the mix very publicly. And I think that’s fine, and I think she has a lot to recommend her, but she doesn’t have quite the same qualifications and credentials as the other two. And again, if we’re looking at professional diversity, I think Jackson is just so obviously the right choice.
S1: Mark Joseph Stern covers all the things all the time, always and forever for us here at Slate and. It’s been a week and it’s going to be a couple of weeks, and then it’s going to be a couple of months and then it’s going to be a couple of years. So I would suggest changing your gym shorts and I’m going to change out of my pajama bottoms, but I’m probably going to keep my fuzzy and blue Cookie Monster socks on until the end of time. Mark thank you for.
S4: Sounds like a great plan.
S1: Thank you as ever. Thank you for your time,
S4: always, and especially this week. A true pleasure, Dahlia.
S1: And that is a wrap for this episode of Amicus. Thank you so much for listening in and thank you for your letters and your questions. You can always keep in touch at Amicus at Slate.com. And you can find us at Facebook.com Slash Amicus podcast. Today’s show was produced by Sara Burningham. Alicia Montgomery is executive producer and June Thomas is senior managing producer of Slate Podcast. And We Will Be Back stepped up and we will be back with another episode of Amicus in two short weeks.
