OA123: Cards Against Humanity (And Thomas), "Magic Words" & so much more!

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:00 Andrew: This episode of Opening Arguments is brought to you by Simple Contacts, which is the easy and convenient way to renew your contacts. You can get $30 off your contact lenses by visiting simplecontacts.com slash opening and enter our promo code opening.

[0:00:19] Is that why you hit your wife? Withdrawn? Is that why you drink and pop pills? Withdrawn? Are you a virgin? Withdrawn!

[0:00:36] It says here you robbed a hospital. Why'd you do that? Yeah, I'm not guilty. That's not what the other lawyer said.

[0:00:47] Actually, I was going to stay in my office tonight and work on my law blog. Of course, the Bob Loblaw Law Blog. Wow, you, sir, are a mouthful.

[0:01:01] the jury is instructed to disregard its own testimony. Your honor, the prosecution rests. Welcome to Opening Arguments, the podcast that pairs an inquisitive interviewer with a real-life lawyer. This podcast is sponsored by the Law Offices of P. Andrew Torrez, LLC. For entertainment purposes, is not intended as legal advice and does not form an attorney-client relationship. Don't take legal advice from a podcast, the cast.

0:01:35 Thomas: Hello and welcome to Opening Arguments. This is episode one, two, three. That's pretty cool. How are you doing, Andrew, over there? Still

[0:01:41] in Hobbiton. I am, but I'm always up for numerological-based celebrations. So episode one, two, three, it's time to celebrate. Yeah, Yeah. A, B, C.

0:01:53 Thomas: It's easy as one, two, three. So let's do it. We've got, of course, we teased last week, we were going to talk about Cards Against Humanity and we are going to talk about not Cards Against Humanity, the game, but what they're doing. Cards Against Humanity Saves America, I think is the name of the initiative there. And then we're going to talk about now, I think it's LawyerDog, but you have typed here Laywardog. So which is it, Andrew? Are we going to talk about Laywardog?

[0:02:19] LawyerDog, LawyerDog. Just so you guys know, Andrew frequently misspells his own profession. That's something he does. I'm just letting you know. That is true. And the reason is, there's no reason. I'm a terrible typist. I was waiting. I was like, what is this going to be? Is there some, no, it's just, that's just Andrew typoing his own profession all the time. So, layward dog.

0:02:45 Thomas: And that's an interesting story. I'm curious to hear your take on that. And then apparently I'm serving on the federal bench, and it's about damn time. I feel like, you know, compared to who is currently being appointed, I think I'm just as qualified, if not more so. We'll find out on the TTBE segment, you know, just how qualified I am, whether it's a D minus or an F plus. Plus But there

[0:03:09] you have it, that's our show for today, so let's get on over to it. What do you think? Yeah, sounds great. He who questions training only trains himself at asking questions.

[0:03:21] What? All right, Andrew, everyone knows my stance on the boring card game for people who want to pretend they're funny when they're not, Cards Against Humanity. However, I really want to hear what they're doing here because I don't necessarily disapprove of everything they do, you know. I'll fair give them their due. What's going on here? They've bought part of the border, right?

0:03:39 Andrew: Um, the website, we'll link this in the show notes, is cardsagainsthumanitysavesamerica.com, all one word, up into the dot com. Um, and uh, the uh, the FAQ on that did, so it's too late to buy in, right? This is a a holiday pre-release kind of Kickstarter, Cards Against Humanity Saves America. You give them 15 bucks and they will, quote, send you six surprises in December. The FAQ is fantastic. It has questions like, what are the six surprises? And then the answer is, the nature of a surprise is that it surprises you when it occurs.

[0:04:14] What are you saving America from? Injustice, lies, racism, the whole enchilada.

0:04:19 Andrew: You said you weren't going to do one of these complicated holiday promotions again, to which the answer is, we're liars, just like the president. And I don't live in the U.S. or Canada. Can I still sign up? No, this is Cards Against Humanity Saves

[0:04:33] America, not Cards Against Humanity Saves the Dumb Country You Live In.

0:04:39 Andrew: So, so what did they do? Uh, they uh, have this holiday themed promotion, which I guess are going to be Cards Against Humanity cards. You give them 15 bucks, they used all of that money, and again, the Kickstarter sold out, I think like in a couple of hours, right? By the time it was sent to me, it was too late to get in because, uh, because unlike you, uh, a, I enjoy Cards Against Humanity because I'm just not that funny, and and

[0:05:04] b, I certainly would have bought the uh, the specialty pack for my sister and brother-in-law who love the game, live next door to me, and but I couldn't, right, because it was all sold out. So what did they do?

0:05:16 Andrew: They took the money and they purchased a plot of vacant land on the border that is in the path of the proposed wall with Mexico, and they then have described the plot as, quote, "So we've purchased a plot of vacant land on the the border and retained a law firm specializing in eminent domain to make it as time-consuming and expensive as possible for

[0:05:40] the wall to get built." So I thought that would be a good segue. We have on the whiteboard, and I think we might actually do this in the next couple of weeks. Things on the whiteboard just get pushed down the whiteboard because horrible things keep happening. But I have wanted to talk about, and I know our listeners have asked us to do an episode that is really a deep dive into eminent domain and into, in particular, the case of Kelo versus City of New London. It's a 2005 Supreme Court decision that I'm going to set up in this segment. But we have that deep dive coming on eminent domain. This is going to be an appetizer. So what is it, right? The end

[0:06:26] of the Fifth Amendment, the Fifth Amendment has a whole bunch of different protections in it, right? Like we've talked about pleading the Fifth, right?

0:06:32 Andrew: That you cannot be compelled to incriminate yourself in a in a criminal proceeding. We have talked about how the Fifth Amendment provides that no person may be deprived of life, liberty, or property without due process of law. But the last clause of the Fifth Amendment also says nor shall private property be taken for public use without just compensation. Yeah, and that is sometimes called the takings clause

[0:06:57] of of the Fifth Amendment, and the the activity that complies that that is legal, that complies with the Fifth Amendment, uh, is called eminent domain. And so it, it, it must meet both of those two criteria, right? In other words, the government, if they're going to seize your property, they must do so for a quote, public use, and when they do that, they must, uh, provide you with, quote, just compensation. So that leads pretty directly to the

[0:07:28] question of what are each of those things, right? So what's a public use? And this is really, we're going to get through the Kelo versus City of New London decision, but let me kind of sketch that in the background. There was a town in Connecticut called New London, Connecticut. And what they did was they, they seized property, they recompensed the owner, then they took that property and they gave it away. They charged the developer, I think a nominal sum, like a dollar, to develop the property as commercial property, with the idea being then the developer was going to build all the stuff on the property, and that was going to increase local tax revenues. And via 5-4 decision, the Supreme Court said that

[0:08:19] met the criteria for public use. It's been, it's one of these things that really unites kind of the the two wings kind of reaching around and

[0:08:31] you know, forming back up into a circle. Yeah, yeah, it's it's exactly a horseshoe theory. It has united the libertarian right who believes that property rights are near absolute and the sort of anti-corporatist left to say this really seems like an overreach.

[0:08:50] Right, like typically when you think of eminent domain, you think of it as, uh, as falling into, uh, two, uh, broadly speaking, two different kinds of categories, right? The first is we've got to build a highway, and the highway plan, that the only place for the highway to go is going to require us to demolish, you know, these dozen houses here, and it's going to increase the

[0:09:15] frontage along these other roads, so we're going to have to take away parts of, uh, parts of property from another, you know, hundred houses that that that are along where the highway is going to go. And you know, look, nobody likes that when that happens, but that is, uh, just sort of a part of modern life.

0:09:34 Andrew: There is urban planning going on. Your property is in the way.

[0:09:40] So we're going to seize that property. Now, sorry if this is a stupid question. Is

0:09:46 Thomas: This only a federal power?

0:09:50 Andrew: So it is principally, that's not a stupid question. It's a great question. It is typically a power exercised at the local level, right? I mean, if you think about, right?

[0:10:02] So So interstate highways were built by the federal government, were built by contractors to the federal government. But for the most part, right, like the Kelo versus City of New London, that was the City of New London that seized the property, right? So this is most felt at the local level. But where does that right come from? Did they just, in state or local law, they're able to do that? It is an aspect of sovereignty.

0:10:26 Andrew: So number one, it is inherent from our British common law ancestral roots. Number two, it is typically found within the general plenary powers granted to the state and then to localities in state constitutions. And so those powers, when they are exercised, must be consistent with the requirement of the Fifth Amendment. And there are states that have passed, a couple that have passed actually in the past 10 years in the wake of the Kelo versus City of New London that have tried to narrow, that have added additional protections, procedural protections to narrow the scope of

[0:11:10] when a locality can seize property. But yeah, so the critical aspect of that decision was you went beyond urban planning. And the other area is when you have property that's been condemned, right? Where the local Local zoning authority has decided that there was no economically, commercially viable use of the property, and they can condemn the property, take it, and then rehabilitate the property for the benefit of the community, right? The two unique features of Kelo versus City of New London is that the property there was perfectly fine, was being used in economically viable ways, but the locality thought that it could be better used by being transferred to a developer. And then the second is obviously that the benefits were 100% tax revenue benefits, Right. Like the government wasn't doing anything with the property. They were just seizing it, giving it to a private entity to develop the property and then going to reap the tax, what they perceive to be the tax revenues. And this look, this is a common theme with localities. Right. Like this is one of the things that multinational, multi-state corporations

[0:12:31] do is get localities into a bidding war with each other. Right. They say, look, we're going to bring in this massive amount of investment, which would be huge for a particular area.

0:12:47 Andrew: But in order to do that, we want these tax breaks. We want these sorts of incentives to come in. And

[0:12:53] it causes kind of both a regulatory and a tax race to the bottom. We talked about how Ken Ham was able to do that in building the Arc Park in a tiny little town in Kentucky. And while that sort of went haywire, the general idea of large multinational corporations being able to use their leverage, because those companies are far wealthier than any locality. And so they're able to use that to induce the localities to sort of engage in this

[0:13:25] race to the bottom. So that is the first part. What counts as a public use? Incredibly broad.

0:13:32 Andrew: The second part is what counts as just compensation, right? And again, we can drill down deeper. Just compensation is fair market value for the property, which is defined in relevant case law as the price that a willing but unpressured buyer would pay a willing but unpressured seller in a voluntary arm's length transaction.

[0:13:56] Okay. Well, I'm curious, what are you, what are we leaving for later? I thought this was an eminent domain teaser. It sounds like a full course. There is, there is so much to get into. The kilo decision is really, really fascinating. So this will be a great kind of, kind of primer to it. But, but there's, there's so much to get into with, with kilo. Trust me on this. But yeah, so, so that's what just compensation means.

0:14:20 Andrew: It means fair market value, which is, you know, know, not a desperate seller, not a desperate buyer, arm's length transaction where both parties know the full extent of the property, and also

[0:14:33] where they know the value of the property for its most profitable use, okay, which is not necessarily the use to which it is currently being put, right? So, yeah, and I actually had a case, like it was one of the very first cases I was ever involved in, involved a

[0:14:52] piece of property that was completely fallow. It was disused farmland, but it was property along, it was farmland in the 1950s. Since then, a triangle of some of the most heavily trafficked roads on the eastern coast grew up around it. So I-270, Rockville Pike, and the

0:15:17 Thomas: Capitol Beltway. So it's not as though the state can kind of rip off the citizen by saying, well, this is just farmland that you can't even grow anything on. I'll give you five bucks for it. It has to be a

[0:15:29] price based on its most profitable use. That's exactly right. And so that in that case, right, the value was affixed at the value that the developers were willing to to pay, which was almost a billion dollars at the time, late 1980s. Now, that turned out, my involvement in that case turned out to be, there was tax fraud where it was not eminent domain. The city of Rockville did

0:15:54 Andrew: Not want to seize the property because they couldn't afford to pay the billion dollars for the property.

[0:15:59] This was, the landowner wanted to, was elderly and wanted the property to pass away to two of his kids, but not a third. And so he entered into this complex tax scheme where he classified the land as farmland, paid $8 in taxes, and then his kids reaped the windfall, and the IRS subsequently discovered the fraud, went back. And with the The combination of the collapse in the real estate market in the late 1980s and the back, the treble damages and back penalties for fraud in the conveyance, the tax bill then exceeded the value of the property. And the property was ultimately seized via eminent domain to pay the tax bill, annexed to the city of Rockville, and then sold off to developers. Utterly unrelated

[0:16:53] to this case. But what it shows is – and this is – I'm going to say something that is going to be unpopular with some of our left – it's going to be popular. Well, I already left everybody by saying

0:17:05 Thomas: Cards Against Humanity isn't funny or fun. So I've already – we don't have any – it's just you and I here. There's no – Yeah.

0:17:11 Andrew: And we have listeners on both ends of the horseshoe. And I'm going to say in general, I am a good corporatist

[0:17:17] Democrat mainstream – like I think that the – so long as the just compensation clause is appropriately applied, I'm fine with government having that – the broad power of eminent domain. So, so there you go, right? In and to, to bring this all back full circle, the way in which Cards Against Humanity has described this is, we purchased a plot of vacant land on the border and retained a law firm specializing in eminent domain. And then, and then here's their, their description to

[0:17:48] make it as time consuming and expensive as possible for the wall to get built. Right. So they know, in other words, Now, let's apply, they own a plot of land on the border. What they've retained the law firm to do is to

[0:18:01] contest every aspect of, you know, is this a public use and do we have fair compensation. Uh, they know, right? Building the wall, I, I want to be clear about this, it's a terrible, stupid

[0:18:13] idea. We have railed against it. Uh, it is very, very clear to me though that that it's within imminent domain power. It's for the, it's public use, right? It is designed. Again, I'm throwing up a little bit of my mouth to say this, but the determination being made by the president and

[0:18:32] presumably coming out of the Congress is that this is for the general welfare and the safety of the American. That's a public use, right? So it will pass that. And then the question is, how do you value it? And so the idea is to tie that up and make it difficult. Uh, but they're not going to be able to hold out and say, nope, not selling. Uh, the

[0:18:58] the government will be, if, if the, you know, border wall bill passes, they will be able to seize the property, they will eventually affix a value, but they're trying to gum up the process as much as possible. Yeah.

[0:19:11] And I, uh, I, I think we, I think we can say we endorse that, and uh, and good luck. Wow. So they'll be able

0:19:17 Thomas: To to gum up the works, but it sounds like you and I know, and they know, that it's not as as though they can stop the wall. It's just to try to cause trouble. Well, I support that.

[0:19:27] All right. All right. Lawyer Dog. This was a somewhat disturbing story. When someone asks for a lawyer dog, what do

[0:19:40] they mean, Andrew? Yeah. So this is the case of Warren Demesme. It could be Demean. If it were an N, I would say that would be Demean. But in any event, he was a suspect in

0:19:54 Andrew: An assault in New Orleans. He was being interrogated by the police.

[0:20:00] It was the second time that he was brought in in connection with these uh crimes, and uh and in the interrogation he first said, you know, denied being a part, and then he, he said the following, okay, and this is the quote from the transcript. This is how I feel. If y'all think I did it, I know I didn't, I know that I didn't do it, so why

[0:20:26] don't you just give me a lawyer dog, because this is not what's up, okay? Um, now it, I would, you know, we were my client, I would, uh, possibly, uh, suggest that maybe he phrased the request a little differently. Seems pretty clear to me, right? Seems pretty clear to you, right? Yeah, right, why don't you just give me a lawyer dog. Um, that doesn't mean that, you know, he wants Air Bud goes to

[0:20:51] law, law school, right? Like, it means there's no rule here that says a dog can't be a lawyer. Yeah, like it says, and you're like, actually, rules of evidence, uh, something that specifically bans lawyer

0:21:03 Thomas: Dogs. No, yeah, no, I, I would think if there were anywhere where there would be a rule that there can't be a dog lawyer, it would be in law, that would be the one. I know it doesn't apply in football, basketball, ultimate frisbee, whatever else Air Bud has done through the years, but in in law school or in or in the legal system, I think they probably would have covered that one. And

0:21:22 Andrew: So an astute uh lawyer listener of the show, uh, Rob Stroatman, wrote in about, uh, about this case, and in general, uh, sort of challenging a position that I have articulated on the show on multiple occasions, which is, you know, one of one of my one of the one of the phrases I think I say almost as as often as elections have consequences is, uh, there, you know, there are no

[0:21:46] magic words in the law. Um, and, and Rob is, uh, 100% correct that, that sometimes there are magic words in the law, right? When I say by and large, the law is not about magic words. I try and, and, and put in the, uh, uh, the qualifier, but,

[0:22:05] uh, because 99 cases out of a hundred is about trying to piece through and figure out what the parties intended, what is the most fair. But one case out of 100 is the lawyer dog case. And this is a

[0:22:24] rule that extends back, right, this is a Louisiana trial court decision. So, you know, that doesn't have a tremendous amount of precedential value. You. But the Supreme Court has been very, very clear. The most recent case is Davis v. U.S., 512 U.S. 452, that

[0:22:45] says if you are in a non-custodial interrogation, just to say you are free to go, in order to end that non-custodial interrogation and invoke your right to an attorney, you must, and the language that the Supreme Court uses is, unambiguously assert your right to an attorney. Otherwise, the cops can continue to keep you there and can use anything you say against you in your trial. And so let's talk about that, right? Well,

0:23:17 Thomas: Hold on. Are they saying he didn't do that? Because even if he was asking for a lawyer dog, I mean, still, he's

[0:23:23] - They are saying that the phrase that I read out, just give me a

0:23:29 Andrew: Lawyer dog because this is not what's up, was not unambiguous under the Supreme Court's rule. So let's look at, so what happened in the Davis case, right? In the Davis case, the suspect said,

[0:23:42] quote, I think I want a lawyer for I say anything else, right? And I'm not just trying to put some accent color on there. The transcript is "for," rather than "before." For. That seems pretty unambiguous to me, but the Supreme Court said that was not a sufficient articulation of your right to an attorney and that the interrogation could continue and that the answers that he gave later could be used against him at trial. There's a case in my state, Maryland, in which the defendant said, "You mind if I not say no more and just talk to an attorney about this?" I guess because of the construction of "you mind."

And again, in that case, the court said that is not an unambiguous assertion of the right to an attorney. And the same general principle applies with with respect to the first part of that, when you think about your Miranda warnings, right? You are advised you have the right to remain silent. You have the right to an attorney. You also have to unambiguously assert your right to remain silent. And the lesson here is that in both of these cases, what you really want to do is use the magic words. You want to use that formulation and say, say, I am asserting my right to remain silent. I demand to see my lawyer. I'm not saying anything else,

0:25:08 Andrew: Period. And that's pretty close to magic words, right? Again, none of this means that

[0:25:16] sovereign citizens aren't crazy. So it's not really the dog part of it, is it? Yeah, it is. It's the dog part because it is- Because I feel like you could unambiguously say, I

0:25:28 Thomas: Am remaining silent, I'm invoking my right to an attorney, and I would like that attorney to be a dog. And it's still, it's not like that, that's still, you're using your rights, right? I mean, what has, what does that mean? Are you

0:25:43 Andrew: Crazy? In that situation, the question would be whether you understand what

[0:25:49] it means to be presented with an attorney, right? Because obviously a dog cannot be a lawyer. But the argument that was made in court was a reasonable officer under the circumstances could have thought that the defendant only, quote, might be invoking his right to counsel. In other words, if there's anything that could cast any kind of ambiguity, the rule at the Supreme Court is, no,

[0:26:21] That's an ambiguity. That's not. So this, it seems just designed to make it so police can try

0:26:28 Thomas: To keep convict. Like, walking the, well, don't, hold on, don't go for your attorney just yet. You know, like, that's exactly what it is. Like, it's just leaving as much room for maybe someone accidentally implicating themselves and

[0:26:40] And in the very brief time after, uh, the Miranda

0:26:46 Andrew: Versus arizona case and in the formative years in the 1960s and early 1970s, kind of establishing the contours of the exclusionary rule, the Supreme Court has almost

[0:27:00] uniformly rolled back virtually all of those protections in favor of law enforcement. And that has been the case with liberal members of the court, With conservative members of the court, there has not in 40 years been a

[0:27:18] movement at the Supreme Court to expand the rights available to criminal defendants. And this is perfectly in line. So again, look, this is a, you know, state trial court lawyer dog, right? Like it, that doesn't have any precedential value, but it is perfectly consistent, although perhaps not as colorful as cases all the way up to the Supreme Court. So the lesson to take away there is, you know, particularly, and look, we haven't talked about the obviously

[0:27:51] racist element of this, right? Like it, particularly if you were not. Well, that's why, well,

0:27:58 Thomas: For a second, I thought you were going to tell me that it was a bit misreported because I, I was thinking you were saying him saying, "Oh, I don't know, it sounds like maybe I want my lawyer dog," and that's what's up. That, like, I, I thought that you're gonna say the, the dog part, but but you're saying the dog part is still part of it, like, it's just any ambiguity at all, because, because I mean, had he said the same, hold on, how'd he said the same thing but dropped the dog, I feel like we'd

[0:28:23] still be doing this. I, I don't, I don't know, I mean, I think they would certainly make the argument. But, but without the dog, it, what you get is, this is how, I, okay, read it back to me, without the dog, this is how. "And I think you're right because of the next clause that hasn't been focused on. This is how I feel."

0:28:41 Andrew: "If y'all think I did it, I know that I didn't do it. So why don't you just give me a"

[0:28:47] "lawyer because this is not what's up." And it would be a harder argument, right? You would still have the ambiguity argument because you'd have the initial phrase of "if y'all think I did it." It's

0:29:00 Thomas: So obvious that he's not talking about a dog. So I don't understand what you're saying to me, like, I get, I get that if there's ambiguity of, like, well, potentially maybe I want to see a lawyer, okay, I get it, but

[0:29:12] like there's no ambiguity there, I don't understand. Again, uh, what, what the court said was, um, uh, and this was a concurrence that was written, uh, by, uh, Justice Christ. So, in, in other words, uh, the, uh, the, the court

0:29:30 Andrew: Uh which again again, confusingly is called the Supreme Court of Louisiana, but it means it's the trial court.

[0:29:38] The court, yeah, go ahead. I got a question. Yeah, sorry. In other times during

0:29:44 Thomas: This interrogation, did he refer to them as dog? Because it seems like that would answer the question pretty obviously. Like, if this wasn't the only time he called the guy dog, you could just be like, you know, let the record show, show that he, he very clearly is called this guy dog and he's not, there's no, there's no ambiguity. And the record doesn't

[0:30:03] reflect that, but here's, so, so the court, okay, just denied the, uh, the application to to suppress the statements, uh, but the judge, uh, wrote a concurrence giving his reasons and

0:30:15 Andrew: Here's what he says, uh, as this court has written, quote, "If a suspect makes a reference to an attorney that is ambiguous or equivocal, in that a reasonable police officer might, in light, light of the circumstances, would have understood only that the suspect" italicized "might be invoking his right to counsel. The cessation of questioning is not required." And then here it is. This is the only sentence. "In my view, the defendant's ambiguous and equivocal reference to a quote, 'lawyer dog,' and quote, does not constitute an invocation of counsel that warrants termination of the interview and does not violate Edwards v. Arizona, 451 U.S. 477."

[0:30:53] That's it. Yeah, it's just, they're just saying lawyer dog is equivocal because maybe he means underdog, right? Like, it's crazy.

0:31:03 Thomas: That's stupid. So he needed to say, "Let the record show that the dog in question is you, sir."

[0:31:10] Yep. And then it wasn't. So it really, I mean, it highlights a couple of things, right? I mean, it certainly highlights the inherent unfairness in the system that somebody

0:31:22 Andrew: Who, who communicates on a day-to-day basis in a manner that is different than the way in which judges talk and lawyers talk, can be treated in a grotesquely unfair way. And it highlights the one case out of a hundred that comes close to being magic words. And so thank you to Rob for bringing that to my attention. I'm going to, I'm going to try and make sure that, that I use

[0:31:47] use disclaimers sometimes, I guess. Yeah, in the future. Sometimes magic words are important, but hopefully most, and look, and it shouldn't be the case, right? So, I, I feel like the point is still there, but but definitely you know, there are, in, in situations where the courts are trying to foreclose, for political reasons, on certain assertions

[0:32:07] of rights, uh, yeah, so there we go, lawyer dog. Well, thanks for covering that. Yeah, and, uh, let's, we should add the lawyer dog to the show, we should, I mean, it's not, it's not like we don't have clips of Lily barking that we could play. Here that's true. Not only that, I feel like a lawyer dog could

0:32:28 Thomas: Be as qualified as some of trump's nominees which will be a good segue

[0:32:34] to our, by the way, is how a professional who does not need Cards Against Humanity handles transitions. So, so, Thomas, you know, I wear contacts, and

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[0:34:09] really cool is if you have an HSA, a health savings account, you can use HSA dollars with Simple Contacts to order your contacts before those dollars expire at the end of the year. That's a problem sometimes. So super cool. It's incredibly convenient, obviously saves you time and money. You don't have to go to the eye doctors to get a separate appointment. You can take the eye test online. I got my contacts through Simple Contacts. They're the same brand contacts that I get from the eye doctors. They were fantastic. So I highly recommend it. That is www.simplecontacts.com slash opening, promo code opening. We really want to thank them for being this week's sponsor. And that's a good deal. $30 off on contact lens renewal. And in particular, if you've got HSA dollars, it's November. You got to use those by the end of the year. This would be a great place to do that if you wear contacts.

0:35:11 Thomas: All right, it is time. Finally, I get to serve on the federal bench. I want to, you know, I want to thank Andrew for all his many lessons that I think it was, well, I think you learned as much from me as I learned from you, but I'll let you say that. You know, I'm glad, but it is time for me to finally accept appointment to the federal bench. I

[0:35:29] think that's right. So I want to talk about two nominees that have been released

0:35:37 Andrew: By the White House, were approved by the Senate Judiciary Committee on an 11 to 9 vote, that is a straight party line vote, and are headed to the Senate where by as much as I can tell, there's certainly no indication that we're going to get three Republican defections on these judges. It is almost always the case that when a judicial

[0:36:02] nominee makes it out of the Judiciary Committee, that then that nominee is approved by the full Senate. That is not to say that we should not continue to be aggressive and pressuring senators, particularly if we have listeners who are in Arizona,

[0:36:22] Alaska, Maine, that potentially have Republican senators who might flip on something like this. Write your senators, write letters, because this can be stopped, but it looks like it's going to happen. So what is this? The first nominee is Brett J. Talley, and he has been approved by the Senate Judiciary Committee to serve on the United States District Court for the Middle District

[0:36:54] of Alabama. Uh, this is uh an Article Three appointment, and, uh, he will serve for life unless impeached. Um, who is Brett J. Tally? He's, he's, he's 36 years old, and I'm gonna start with, so, it, the story has been released that he hasn't tried any cases, that's true, uh, but I think that aspect is a a little bit overblown because there are lots of lawyers and good lawyers who haven't tried cases. I don't think that that makes you per se unqualified. Here's what I think makes

[0:37:32] you per se unqualified.

0:37:35 Andrew: In his Senate Judiciary questionnaire, he was asked by a lawyer attached to the Senate

[0:37:41] Judiciary Committee how many times he had appeared in federal district court, okay, appeared, this was his answer, quote, to my recollection, during my time as Alabama's deputy solicitor general, I participated as part of the legal team in one hearing in

[0:38:00] a federal district court in the middle district of Alabama, end of quote. So close to my- That's exactly right. That is literally as close to Judge Thomas Smith as you can possibly get. That is an answer I would expect from a summer associate at a law firm. I had more experience than this when I was 21 years old and had not graduated from law school and would have been as preposterously unqualified to serve on the judiciary as you could possibly imagine. And I should add, the reason I made the reference to me in law school, Talley is a Harvard Law graduate, right? Like, it's not,

[0:38:44] it isn't that he's an idiot, okay? I don't know. He might be. Right, right, right. But it is. Probably. Uh, but it is that that he is preposterously unqualified. He is a political appointee. He came and and look, like there's nothing wrong with coming out of Harvard Law School, having friends and

[0:39:03] connections in the Alabama, uh, in in the in in in power in Alabama, and getting appointed deputy solicitor general of Alabama, but there is a problem in taking that kid, uh, who has has done nothing in the legal system, and taking that kid with zero legal experience and having him rule on cases.

[0:39:26] There's no way he knows the federal rules of evidence to be able to, in real time, appropriately rule on objections, right? The kind of stuff we make fun of on on lawed awful movies is kind of difficult, right? Like it takes time and experience

[0:39:45] to know like which of the 801D2 hearsay exceptions apply. And so, you know, when you get all of a sudden an objection in the middle of a trial, right? This guy's gonna be like, okay, wait and then you know and and kind of have to cycle through his head to go okay now the hearsay like Like, what is that? That's an out-of-court statement by someone.

0:40:10 Thomas: Whereas experienced lawyers like you and I just know this stuff off the cuff. I

0:40:17 Andrew: Am not kidding, but I think a year, a year and a half on opening arguments makes you more qualified than

[0:40:23] this guy who's been in court as part of a team once, right? Like, it's not that he's been in court, right? When you say as part of a team, you say that because you can't say, I argued this motion. I know. I was an associate applying. When I left Covington and went to Zuckerman, I was circulating my resume as a fifth-year associate. And I couldn't say, I've tried X cases because I hadn't tried any cases at that point. I could say, I was part of a team that tried

[0:40:54] these cases.

0:40:57 Andrew: It's preposterous. So that's point one. Point two, Talley is in the mold of Neil Gorsuch. He is a conservative political activist. And this has been accurately

[0:41:10] reported. He was a blogger and wrote blog posts about Hillary, Rotten Clinton. This is what he wrote about the National Rifle Association. It was a blog post called "A Call to Arms," and he wrote, quote, "the president," referring then to Barack Obama, of course, and his Democratic allies in Congress, are about to launch the greatest attack on our constitutional freedoms in

[0:41:35] our lifetime." Time, interesting prediction, because, you know, Barack Obama passed so many gun control laws, which referred to uh Obama's uh proposed legislation that did not pass on

[0:41:46] uh that would have required additional background checks and uh and and uh limited some uh semi-automatic weapons in light of the uh the new town shootings at Sandy Hook. Tally then wrote, quote, "the object of of that war," meaning the war on our constitutional freedoms, not the war being waged by people with actual guns that they were carrying in schools, "is to make guns illegal in all forms, and the NRA stands for all of us, now and I pray that in the coming battle for our rights they will be

[0:42:19] victorious." It is not. I mean, like, look, I make the joke on this show all the time that, you know, well, you know, there goes my chance of serving on the Supreme Court or in the federal judiciary. And And look, like that's an appropriate joke to make. Right. Like it would it would not be appropriate for me to serve on the Supreme Court at the moment because. Right. I've been nakedly and openly political and and partisan. And I have, you know, ridiculed sitting members of the Supreme. We know that. Right. Right. Yeah. Once

[0:42:50] upon a time that mattered, though. It really is. Right. And the and the I mean, that that sort of transitions into Donald Trump has made the rounds in conservative circuits and on conservative talk TV and radio and said, here's here's a here's a quote from a joint press appearance with with Mitch McConnell. And Trump said, the judge story is an untold story. Nobody wants to talk about it. But when you think of it, Mitch and I were saying that has consequences 40 years out. And depending on the age of the judge, but 40 years out, this

[0:43:28] is a deliberate. I'm sorry. What is he even saying? I don't know. What was he saying? You read that as though that those were words with some. I know he's saying I am deliberately appointing judges in their 30s so that they're on the the federal bench for life, so basically he's giving away the game, like Trump always does. He's

0:43:50 Thomas: Just saying the things that somewhat more shrewd Republicans like McConnell usually leave unsaid. They usually try to just do things and then kind of not talk about it or not mention it. But Trump is like, oh, we're, oh, okay, we're appointing the youngest possible judges to totally fill the federal bench with just like lifetime, lifelong, 40, 50 year. He just says it all the time as though it's directly. It's really funny. He has no ability to keep those things to

[0:44:21] himself. It's funny. And look, this is not, I mean, I think we try pretty hard to to police our side, but also to point out, you know, sort of false equivalence. Right. Like, yes, the political party

0:44:39 Andrew: In power, the president gets to make judicial appointments. This is not an area where both sides are equally guilty. Right. Right. This is the equivalent of what Donald Trump is doing here would have been if Barack Obama,

[0:44:51] upon getting into office, had gone to like the the the gender studies department at Wellesley and said, OK, I'm going to take like, you know,

[0:45:04] the six. Has anyone ever taken a law class? And the only thing that matters is, are you in your 30s and politically liberal? Like that is not the case. So number one, there was a deliberate attempt by both presidents, Bill Clinton and Barack Obama, to appoint qualified individuals to the bench. And number two, Mitch McConnell, in the last two years of the Obama presidency, deliberately deliberately blocked, stalled as many judicial nominees as possible, right? Look, we know what happened with the Supreme Court seat that should have gone to Merrick Garland. But in addition to that, by the time Obama left office, there were more than 100 vacant seats in

[0:45:55] the federal judiciary.

0:45:56 Thomas: But I thought they got, wasn't that part of why they went nuclear on that, the Democrats went nuclear, and that still didn't allow them to to well, I guess, okay, so the Republicans had the numbers to block them

[0:46:09] anyway. I say that that's right, uh, because the Republicans had control of the Senate. I forgot, here are

0:46:15 Andrew: The numbers, and again, so, you know, I've characterized and said that this is uh, this is not uh, bilateral. Here

[0:46:22] are the numbers, uh, in the last two years of Obama's presidency, with the Senate under Republican control, they approved just 22 judges in that two-year span, which is the lowest total in 65 years. When the Democrats took control of the Senate in 2006 for the last two years of George Bush's presidency, uh, the Democratic Senate approved 68 judges, uh, in that time frame, okay, so more than three times as many. And Republicans argued, hey, look, like you're being super

[0:47:00] slow in confirming our judicial appointments. Yeah, the same thing, because of the, so we look at it from the other end. In in Obama's first year in office, from January to November

[0:47:12] of 2009, he made 27 nominations to federal judgeships, including one appointment to the Supreme Court. In that same relevant timeframe, Trump has nominated 59

[0:47:25] people to the federal courts, so twice as many. So there is no way to slice this any other way than to say Republicans have been more partisan, more aggressive, more successful at stalling Democratic presidents from appointing judges to the bench and in appointing partisan Republicans to the federal bench to lifetime appointments.

0:47:53 Andrew: So that's Talley. Flying under the radar a little bit is another judicial appointee, Greg Katsas, K-A-T-S-A-S, who was approved, same party line, 11-9 vote, to the U.S. Court of Appeals for the District District of Columbia Circuit, which is widely considered, we've talked about this before, widely considered a feeder court to the U.S. Supreme Court. It is one of the circuit courts of appeal from which cases are directly appealed to the Supreme Court. And because it sits over the D.C. Circuit, that court has

[0:48:33] an unusually high number of political cases that come before it. And here, the issue is the same political cronyism. Katsas was

[0:48:45] deputy White House counsel, and he was on the team. It sounds like he has some experience. No, yeah, he's qualified, right? The issue is that he has been a part of Trump's legal team up until now. And so he has written memos in connection with the travel ban firing Jim Comey. We don't know the full extent, right? Because the Senate Judiciary Committee

[0:49:10] kind of rubber stamped him through.

0:49:12 Andrew: He's a member of the Federalist Society. He's a former Clarence Thomas law clerk, right? So it isn't that Katzis isn't qualified. It's that the Court of Appeals for the D.C. Circuit is the court that is likely to hear the legal challenges to Donald Trump that are mounting and appointing.

0:49:35 Thomas: That does not seem ethical. Yeah, it doesn't seem ethical.

0:49:39 Andrew: In these kinds of cases, right, like you would hope Talley would recuse himself from any NRA or gun case, right? Do you want to place bets on whether he does?

[0:49:50] You would hope— Sure, as long as I get the— You get the under, right? You would hope that Katzis would recuse himself from any Trump-related case. And again, look, I'd love to be proven wrong about this, right? We have talked about, and I felt pretty proud that when Rod Rosenstein was named deputy attorney general, right

[0:50:15] out of the box, we saw his independence. And I was able to call that because I know Rod personally. And I said, this strikes me as he's the person I would want in that position. And he was the person who authored the memo and appointed Mueller. So that worked out. Is it possible that Katsas has an ethical streak?

[0:50:39] It's possible. Let's keep a look at it. I don't know him. It doesn't look good. It looks pretty bad. And the real harm here is the falling down on the job by the Senate Judiciary Committee. Committee, because again, in years past, the senators serving on the Judiciary Committee took that job seriously and would have asked more questions, would have gotten more information so that we could fully vet this out. One of the things that I often remind people about, we've talked about when President Reagan and nominated

[0:51:20] Robert Bork to the Supreme Court and then ultimately pulled that nomination because his judicial philosophy was outside the mainstream. The Senate Judiciary Committee at that time, the Republicans

[0:51:33] held the Senate. It was a Republican-chaired committee. Those were the days. Yeah, committee. And Republicans voted against, by the time, I should say, the Senate, let me clarify, the Senate flipped in 86, but Republicans on, And so it was Joe Biden who was chairing it by the time that Bork came up. But Republicans on that committee voted against Bork, right? There was not a naked, expressed,

[0:52:00] Hey, let's take 35-year-olds who are really, really strong political supporters and pack the courts for the next 40 years. It really is unprecedented and it really is a situation where you can't say, you know, both said to the victor go the spoils. We both do it like it. No, like Democrats don't do this. And if the Democrats were appointing, right, if, you know, President Elizabeth Warren starts off her first year in office in 2021 and is appointing, you know, grotesquely unqualified liberal ideologues to the court. Uh I

[0:52:37] I will, I will be the first person to call that out, um, and and we'll criticize it here on the show, um, that's not, that's not what Democrats do. It is what Republicans are doing. Yeah, gosh, that is just horrifying. I mean, the consequences are going to be so distant and

0:52:56 Thomas: Pervasive, and I, I just don't know, you know, like how we, it's same with, it's the same with Gorsuch. I mean, it's It's like the Gorsuch, except in a much less visible way that people aren't really talking about, and there's going to be so many consequences down the line. Who knows? It's horrifying. Man, it's almost like elections have consequences.

[0:53:21] Almost. It's kind of like that, isn't it? In the words of the great Andrew Torrez, yeah. All right.

0:53:27 Thomas: Well, does that cover, at least for now, the two horrible examples you wanted to pick? Yeah,

0:53:33 Andrew: Yeah. I could pick more, but I think we can bring that segment to a close. Well, if,

0:53:39 Thomas: I suppose, again, it's all about 2018, right? The only thing we can do about it is if we can, well, no, because this is the Senate, so it would be really hard to flip the Senate. I guess it's possible, right? But short

[0:53:51] of that, I mean, if we don't flip the Senate, there's no way to stop this, right? That's correct. Yeah. And

0:53:58 Andrew: Look, the way to flip the Senate is the Democrats have to win the special election in Alabama and win every close race in 2018 and defend every tough seat, which includes, I think, Heidi Heitkamp in North

[0:54:16] Dakota. The Democrats have some tough seats. It's a tough path. Right. But that's what they've got to do. The Alabama election gives the Democrats a path that does not go through. Previously, the path to Democratic control of the Senate went through either Ted Cruz or Orrin Hatch. And so I've been using that as the benchmark. Throw that in there, right? I don't know how you weighted out Democrats winning in Utah, Texas, or Alabama.

[0:54:50] Those are tough places to win under any circumstance. So that's the path.

0:54:56 Thomas: Well, that's our only chance to mitigate this damage a little bit. So rock the vote, everybody. 2018. All right. Well, it is time for our co-favorite event of the week, and that is thanking our new patrons. And so it's time to thank Tom Dooner, Shifty Bastards, Tim Dreyer, Susie Stevens, David is a Deviant, The How-To Heretic, Mark Kofling, Nuno Lima,

[0:55:21] Amanda Reinecke, Scott No Idea, Yer a Harry, wizard, I actually was going to say it's Yer a Harry, wizard, but I almost started So it's Yer a Harry, wizard, Betty, Jeremy Petzold, Malached, Mike Mantonya, Michele Jacobsen, StormOfLogic, Donald Whisenhunt, Michelle Leifeste, Chad Thornton,

[0:55:47] and Peter Barnes. Yeah. And thank you to Matt, to Philip Oncley, to

0:55:53 Andrew: Pontus of the European Skeptics Podcast, to John Tinmouth, Alex Rubitz,

[0:56:00] Kevin and Benedict, Justin Haines, Erica Schiff, Sean Schlecht, Jim Stryker. Thank you to Nitin, N-I-T-I-N, to Brian Masters, Christine McCann, Daniel Groth, Nick Clem, Arc of Skepticism. The Arc of Skepticism is long, but bends towards justice. Bonnie Lutzel, thanks, nice pledge edit from our buddy Revan. Thank you to Adam Carrigan and Andy Miles. Thank you all so much for supporting. If you would like to support the show, head on over to patreon.com/law.

[0:56:32] You get all kinds of great goodies that we throw at you. And you help make the show possible. So thank you all very much. Absolutely. Thank you guys. Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:56:48 Thomas: And now it is time to find out just how much more qualified I am than whatever judges Trump is appointing. So let's hear it, Andrew. This is a weird one.

[0:56:58] You know, different source, but let's see. Did I handle that change up? I'm excited about this. Different source, this is our, our West Side Story themed question involving Flash, Cruiser, and Glitter. "Little fender bender. Cruiser, Flash get out of their cars."

0:57:17 Andrew: "Flash insults Cruiser's car. Cruiser slaps Flash in the face. Flash punches Cruiser in the nose. Cruiser puts

[0:57:23] Flash into a half Nelson and rams his head into the side of his car. And then Glitter comes by, holds a knife to his throat and, uh, and says, you got to stop it." Um, you eliminated uh, I, I, I really enjoyed this, uh, you went, uh, you went, uh, aggressive and high risk. You eliminated both C and D for Thomas's Second Chance Law Firm,

[0:57:49] saying you think that her answers, that Cruiser is going to successfully sue Flash for assault, uh, so you eliminated C, which was that, well, I'm sorry, unless something, yeah, yeah, right, uh, you eliminated C, which was "Glitter wins because Cruiser started the fight by slapping Flash." Good elimination, right, the fact that Cruiser, uh, was the original aggressor, uh, does not give, give, uh, Glitter the

[0:58:19] right to threaten Cruiser with deadly force, uh, in, even in a, in a situation where there's sort of an escalation. So, uh, the playground rule is, is not correct. And you also eliminated D, which was "Glitter wins because he and Flash are relatives." That's not a, uh, it's not that, that is one of those answers that is, uh, it's wrong, so good elimination, uh, but, uh, but it's not not the situation where it's just a completely ridiculous answer, because it used

[0:58:51] to be that at common law, the doctrine of... Oh, is it like one of those them fighting words laws where it's like if you're related, then. Yeah, yeah. It used to be right, self-defense covered defense of others. But that, but that, others couldn't be a stranger. Right. Right. It was you were entitled to use force to defend yourself or to defend others who were close in a close familial relationship. But the modern rule, and the modern rule has been the case for at least a century, is that is that you can defend an innocent bystander. Right. I, you know, see

[0:59:28] somebody being beaten up on the street. I can run in and say stop and and and inflict violence on that aggressor. Andrew pulls out his knife as he often does.

0:59:43 Andrew: So the relationship is not a salient factor anymore, but it was a salient factor in the 18th century. And so hence that potential answer.

[0:59:55] So you chose. Back when you were in law school. Yeah.

1:00:00 Andrew: I parked my Triceratops on the Harvard Law School campus. So your answer, Thomas, was B, Cruiser wins unless ramming Flash's head into a car is considered a deadly attack. And that is, in fact, the best answer. Under the modern common law rules, a person is entitled to defend another person from attack, quote, "in the same manner and under the same conditions as the person attacked would be entitled to defend himself," end of quote, from the Restatement. So deadly force, which is with a knife, is thus permissible only to ward off an attack which itself threatens life or serious bodily

[1:00:44] harm. So correct analysis of the question, if ramming his head into the car in the half Nelson is considered a deadly attack, then it's legitimate for Glitter to come by and hold a knife to his throat and threaten deadly, deadly force in response. But if they're just fighting, you can't escalate that fight in defense of someone else.

[1:01:06] So congratulations.

[1:01:09] Thank you. Yeah. A bit of a curve ball there, but I figured that was the best answer, but who knows? It could have been A,

1:01:15 Thomas: But I don't know. I liked that B, something about it. I liked that B answer. I thought it made sense. I like that it's, you know, if you, if they can prove that it's a deadly attack, then it makes sense that you could use deadly force to try to

[1:01:27] stop it, so it made sense to me. Great, uh, you, you, you used your issue spotting. We, uh, we

1:01:34 Andrew: Changed up the terms of the of the question uh and uh and you saw through it anyway uh so 30

[1:01:41] of 50, everybody job beating the mini boss level. We didn't even need to use the cheat codes, fantastic. So I'm

1:02:16 Thomas: Okay, let's find out who our lucky winner this week is. Is I hope it's somebody with a a name as good

[1:02:22] as Cutter, Bruiser, Cruiser, I don't know, maybe, maybe, uh, one of, one of the Sharks of the Jets is going to win our unending fame and fortune this week. Who's our lucky winner? Hop in your time machine, uh, I hope it's, you're already in a time machine of sorts, but I hope you can find some New Zealand technology. Hop

[1:02:40] in that time machine and tell us who are winners. Yeah, this is future Andrew with Two Truths and a Lie, TTBE edition. So statement number one, I am

1:02:53 Andrew: Recording this from the san francisco airport because that's how much I love you people uh statement number two

[1:02:59] I narrowly survived a drop bear attack while in Sydney. And statement number three, this week's winner is Stout Skeptic, at S-T-O-U-T-S-K-E-P-T-I-C, at Stout Skeptic on Twitter. Our buddy who tells us Thomas nailed it, it's gotta be B. And if Flash's quote Old American automobile happens to be a Ford Pinto Which instantly explode Upon head pounding, I don't think Glitter will have a hard time proving a deadly attack Great response David Thank you very much Everyone should follow At Stout Skeptic on Twitter You are this week's winner Well Tonya, at least that statement Is definitely not a lie

1:03:45 Thomas: Okay, that's our show for today. Thanks so much, Andrew, again, for taking time out of your New Zealand trip to to record. We should hopefully be back to normal on the next week. Yeah, that'll be our, you'll

[1:03:57] be in some other country. Our post-Thanksgiving episode, so uh, you'll be hanging around eating uh cold turkey cranberry sandwiches, uh, with stuffing. On, at least that's what I'll be eating.

1:04:10 Thomas: You know, I do want to add, I was going to mention this. There are other inferior podcasts that will just not do episodes on times like, you know, Thanksgiving. I don't believe in that at all. I'm glad we're doing episode, because I think that's some of the most time when you need your regular podcast. I hate when I look at my phone, I'm refreshing the podcast app and I'm thinking, you know, this is the day that such and such comes out and then it doesn't come out. It drives me, me nuts. So I'm glad we're doing something. All right, well, we'll see you then. And in the meantime, stop breaking the law.

[1:04:45] This has been Opening Arguments with Andrew and Thomas. If you love the show and want to support future episodes, please visit our Patreon page at patreon.com/law. If you can't support us financially, it'd be a big help if you could leave us a five star review on iTunes, Stitcher, or whatever podcast delivery vehicle you use. And be sure to tell all your friends about us. For questions, suggestions, and complaints, email us at openarguments@gmail.com. The show notes and links are on our website at www.openargs.com. Be sure to like our page on Facebook and follow us on Twitter at OpenArgs. Until

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