OA424: No Charges for Breonna's Killer

Transcript

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

0:01:17 Thomas: Hello and welcome to Opening Arguments. This is episode 424. I'm Thomas Smith. That's Andrew Torrez. How you doing, sir?

0:01:26 Andrew: Well, within the parameters of the universe, I'm doing fantastic. Thomas, how are you?

0:01:29 Thomas: Yeah, I was just wondering, like, what's our OA fantastic-at-half-mast, you know, policy, like but you're, you're half-masked fantastic

0:01:36 Andrew: Yeah, right. You go. Don't take that out of context, but yes. How about you, Thomas?

0:01:44 Thomas: Uh, uh, still worried. I'm a little worried, a little, a little stressed about things, just wondering how this is all gonna turn out, but Uh, we're gonna talk about, we have too much, we have to deliver you a nice RBG tribute and we just cannot this week. There, there's too many, many stories we have to talk about and we already used up our bonus episode last week. So we will do that. It, you know, it'll be worth it. We will get to it. Um, we promise, we can't wait. It'll be fun. But, uh, in the meantime, there's too much. We, we've got, we've get the Brianna Taylor news. Uh, we've got the possible ninth, possible next religious fundamentalists to be added to the Supreme Court that we've got to talk about. And Andrew's likely going to go three for three in predicting these. And we've even got anarchist jurisdictions that we might not even have time to get to. And then on Tuesday, everybody, we've Got to Talk about this Atlantic article that was true. Why don't you preview that? Because that was truly disturbing.

0:01:52 Andrew: Yeah.

0:02:44 Andrew: The Atlantic just released an article, it's a Barton Gellman cover story, and if you were a subscriber, you got a note in your inbox that said, hey, um, this is our November cover story. We're releasing it as soon as possible because, quote, "sometimes a story comes along that just can't wait." There is a pervasive and justifiable fear that Donald Trump will, will reject the election results if he loses to Joe Biden. As Gelman documents in his authoritative and chilling story, the situation is far more dire than anyone, Biden included, might imagine, imagine. Gotten, we have gotten, in connection with the show, what if Trump refuses to leave office for, you know, the past three and a half years?

0:03:31 Andrew: And I have dismissed out those questions as not legal questions, right? This article coupled with my research, right, so there are, Gellman is a very scholarly reporter, right? He's won the Pulitzer Prize three times. So, you know, like, yeah, not a lunatic.

0:03:51 Thomas: Wow. That's a few more than us.

0:03:53 Andrew: Yeah, a couple more. We're working on our first one, though, so that's good. And what he writes has to be taken seriously. It is also based on legitimate research from legitimate professors of law, right, that I have read their underlying law review articles. I have red the cases. There is a real argument here. There is also a silver lining, and the silver lining may be the worst case in modern Supreme Court history. So I love this story. I really, really want to talk about it. I think that there's sort of a crucial gap In Atlantic story that is worth emphasizing, that is a point of real optimism. Um, but I, I also think that, uh, as as Neil Buchanan, who's one of the underlying sources, has mentioned, talking about this is part of the solution. So in any event, all of that is to say, we're ready to go. We're recording on that. It's going to be the Tuesday episode. We wanted to bring it to you today, but, uh, you know, we can't, we can't give you three hours of opening arguments on Friday. Like, that's, it's too much arguments. Yeah.

0:04:28 Thomas: Wow, good.

0:04:38 Thomas: Luck. Yeah.

0:05:14 Thomas: That's, uh, that's, oh, I can't wait. In a, I'm glad that you're gonna maybe put a silver lining on it, because that was some, that was a chilling read. I, I, uh, so anyway, that's that's Tuesday, we've got so much to get to today, um, so let's get to it.

0:05:21 Andrew: It it is no Uh,

0:06:10 Thomas: All right. Well, the news was released of the Breonna Taylor of any charges related to that case. Not happy. Andrew, why don't you tell us what happened?

0:06:18 Andrew: Happy, I have secured a copy of the actual indictment, and it, the news stories that you are reading that says, sorry. The news stories that you have read, which say none of the Louisville officers who were investigated in connection with the murder of Breonna Taylor were charged in connection with her murder, those statements are correct. And here's what happened. Here's what the grand jury did hand down. They handed down an indictment of Officer Brett for three counts of wanton endangerment in the first degree.

0:07:04 Andrew: And that is in connection with firing his gun wantonly into the neighboring apartment, right? So nothing. So those charges are, I mean, while they obviously are incident to Breonna Taylor's murder, they are not directly as a result of killing Breonna Tyler. So I'm going to break down what those charges are. I'm gonna tell you what we, what we know and what we don't know. And unfortunately here, what we don'T know is considerable, right. Grand juries are a black box. Their testimony is secret. The presentation before the grand jury is one-sided. It is, it is only by the prosecutor, right?

0:07:51 Andrew: So the defendants are not present, and there is no cross-examination. There is no, uh, there's no involvement by the potential subjects of any sort, and we've talked about this on the show, the the old, yeah, right, yeah,

0:08:03 Thomas: Yeah, we're talking about how you can indict a ham sandwich unless the ham sandwich has a badge. Then there's no possibility of indictment.

0:08:11 Andrew: Um, here's, here's what we can say, right? We cannot say in this individual case that the prosecution took a half-hearted case to the grand jury, right? We cannot say that in this particular case, because we don't, we do not know what was actually brought. What we can do.

0:08:27 Thomas: Are you saying we can't say either way?

0:08:29 Andrew: Yeah, well, we right. We cannot say conclusively we know that the prosecution, you know, half half hearted this. Right. I think we can fairly draw that as an inference. Right? Not not just from your point that you can get a grand jury to indict a ham sandwich. Right, the classic aphorism. Them. Structurally, it is not hard. What the grand jury does is they return an indictment that probable cause exists to issue an arrest warrant for a particular defendant. And since that defendant is not allowed to present evidence on their own behalf, Right, everything that's front of them is a function of how the prosecutor has placed in front of him. So again, I can't prove that. We don't know. We don't have the transcripts. We will never see those transcripts because they are confidential. But we do know that from a statistical standpoint, cops are often undercharged and under prosecuted. So if this is the kind of thing that makes you mad, and it should be, then I think it is perfectly reasonable to be angry about the response here.

And think it is, we do not have to pretend as though, oh, well, you know, this is just what happens sometimes, right? Like the grand juries are, there is considerable scholarly literature, right, that the right to be indicted by a grand jury is one of the few rights that have not been incorporated from the Bill of Rights to the states, right.

0:08:33 Thomas: Right. Yeah. Right.

0:10:08 Andrew: The Supreme Court has repeatedly said that states are free to use other charging emerging mechanisms, right? And the reason for that is there is considerable evidence in the academic literature, in the law review literature that says this is not, the right to be indicted by a grand jury is not a particularly important substantive right, right, that it basically offers almost no protections to you as an individual. And therefore, unlike virtually everything else in the Bill of Rights, you know, I mean, we couldn't imagine a state saying, well, we just don't think the First Amendment applies to us, right?

So we're going to have, you know, an incorporated, you Know, the Mormon church will be the official state church of Utah, which, you Now, would happen if the First Amendment were not incorporated to Utah. If we couldn t imagine saying the First Amendment is not a substantive right protecting, you Know, hypothetical rights of non-Mormons in our hypothetical alternative new First Amendment, Utah. There's good reason to think grand jury indictments are not particularly Important a systematic of rights. A couple of other small points. Number one, lots of people have asked beforehand and have raised the question again. The grand jury's results in determining probable cause were 100 percent not affected, uh, by the City of Louisville's settlement, uh, civil settlement with uh

0:10:46 Thomas: Yeah. Right.

0:11:38 Andrew: Brianna Taylor's Family. I'm, I'm really, I'm glad she received the, 12 you know, her family received the12 million. Dollars Um, that doesn't begin to compensate for systematic racism. Um, but, but folks asked, does this prejudice, and it, and it just, it. It does not Prejudice That, yeah, in any way was not part of the consideration, would not have been part of the evidence brought before the grand jury. Because again, remember, the grand jury is just deciding, do we have enough evidence to charge these individuals, and if so, with what? So, let's talk about what they did actually return. They returned three counts of sorry, of a a violation of Kentucky Statute 508.060, wanton endangerment in the first degree, which makes it a crime to, quote, under circumstances manifesting extreme indifference to the value of human life, he wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person. That is, in Kentucky, a Class D felony.

0:11:39 Thomas: Yeah.

0:11:56 Thomas: Has nothing to do with it, right? Yeah, well,

0:12:46 Andrew: D as in dinosaur. And unlike some other states, following a majority of jurisdictions, but we actually, in connection with Kyle Rittenhouse and Kenosha, we talked about how Wisconsin has like eight different classes of felonies, right? So a Class B felony in Wisconsin is still very, very serious. It gets gets you 25 years in jail. A Class D felony in Kentucky is the least serious felony. It carries no mandatory minimum penalty and a mandatory maximum of one to five years imprisonment. I have spoken to two separate criminal defense attorneys in Kentucky, and they both have advised me that people receive probation for conviction for Class D felonies all the time.

0:13:36 Andrew: Other Class D felonies in Kentucky include selling marijuana near a school, theft of $500 or more, second offense possession of certain drugs, possession of a firearm by a convicted felon, criminal, criminal trespass, shoplifting, and probably the most serious on that list, felony drunk driving. Right. But again, felony doesn't necessarily mean vehicular manslaughter, drunk driving, it just means commission of any felony while over the legal limit. And I think that if you are outraged about the killing of Breonna Taylor, to say that it is on a par with second offense Drug possession or criminal trespass seems wrong and

0:14:28 Thomas: Yeah, there's There's so much, so the thing is, if this third guy hadn't been there, Brianna Taylor still would have been killed, and then there would be no charges. It's like the third The only person charged was a guy who panicked once the shooting started and started shooting in Yeah.

0:14:29 Andrew: Yep.

0:14:43 Andrew: Shooting Randomly Yeah.

0:14:49 Thomas: Basically.

0:14:50 Andrew: So.

0:14:50 Thomas: Randomly, um, me know what you think about this, but, but we briefly talked about this on a Q&A, I believe it was, because I was worried whenever, however many months ago that was, I was afraid that there obviously wouldn't be any charges because I wasn't sure who violated the law. This strikes me as a system problem. And again, that's not an endorsement of the officers. That's saying the law is wrong. But like if they had a warrant, which they did, maybe they shouldn't have or something. Maybe that's where the breakdown is. I don't know, you tell me where you think the breakdown is, or maybe it's multiple places, but let's say these officers have a warrant. They go to execute the warrant, which again, they shouldn't be, because it was, the whole circumstances of the warrant were ridiculous. And that, that's, that's where I think truly a lot of the evil is here, that they were going to do a no knock, you know, midnight, whatever, warrant for something that they didn't need to do that.

0:15:44 Thomas: But the officers have the warrant, they knock. And it turns out, this is one thing that's, that's a little tough on this, there's a lot of misinformation about what happened, but I put that at the hands of the fact that the police didn't even, we didn't know about this for a while, they've tried to like keep a lid on it, um, so it's their fault, by the way, if, if people don't have the facts, or at least partially their fault, but anyway, the boyfriend does admit to having shot first. So if some police officers who have a warrant, who think they're doing the right thing because they have the warrant, enter an apartment and they get shot at, like, I'm not surprised that the law says they were justified to shoot back, and that the only The only violation of the law would have been the guy who just shot randomly, which, by the way, I'm glad he got charged, but it sounds like you're saying that charge wasn't even enough. Yeah.

0:16:26 Andrew: Yeah.

0:16:36 Andrew: So I think that's an excellent summary, and I agree with all, I want to add just a couple of points here that I think underscore your point, that this is a difficult case to reduce to a tweet. Right. And that's Where a lot of the energy obviously is coming in. And again, I understand that. Right, and I certainly don't mean to invalidate that. But it makes it hard to sort of discuss the, to the nuances, which, which include the fact that the police officers secured a no knock warrant, but then did not execute it as a no lock warrant. As you point out, ultimately, at the end of the day, the reason I went through the fact that this is a grand jury indictment is that the defense that the officers would use at trial, if indicted for homicide, right, would be justified use of force, right, would be a self-defense.

0:16:55 Thomas: Right.

0:17:42 Thomas: That's something I was confused about, don't they have to just do that at trial? Like, I listened, so I listened to the, I think the Daily today was on this, and I listened to it and I hear the announcement from the, I don't know, the prosecutor or whatever. And it's like, well, because of the self-defense statute, we can't charge them. And I'm wondering, like, why can't you charge them?

0:18:01 Andrew: Yeah, that's right. So look, all of this kind of falls within the bucket of prosecutorial discretion. You can absolutely bring homicide charges against somebody who acted in self-defence. That is an affirmative defence. The burden falls upon the defendant to establish establish by a preponderance of the evidence, at which point then the burden shifts to the state to disprove self-defense by beyond a reasonable doubt, right? But you can put the state to its burden.

0:18:12 Thomas: Yeah. Okay. So that's how it should have worked. Yeah.

0:18:34 Andrew: That being said, it is also reasonable. It is reasonable for both prosecutors and for grand juries to, when given the totality of the evidenced, to say, oh, let's not indict here. And imagine, classic case, imagine you have a super bad guy, like a drug dealer who has domestic abuse, prior domestic abuse charges, who truly does fire in self-defense against his battered wife. Wife pulls a gun on him one one night and he truly does fire in self-defense right like you you could you could very easily imagine prosecutors deciding to bring that case right and say yeah look like we we get that that there's 100 self-defence here but we want a grand jury to indict and we want a pedigree right a a trial and a regular jury to view the totality of the circumstances circumstances and say, do we think that this self-defense was justified looking at this particular incident?

Or do we think that it's not justified given the totality of the circumstances, right, of the, you know, woman being, you know, battered and abused over a history, you know, a long period of time, and then pulling a gun to try and escape, right? Right. Like so it's my point on all of that is that this is that that this 100 percent goes back to the presentation of the case to the grand jury.

0:20:15 Andrew: Right. A grand jury does not have a Brady obligation to present everything either. Right. They just need to say, is there sufficient evidence that probable cause should exist in order to issue an arrest warrant for the three officers that that were present? Uh, and it, be in, in my view, again, I'm not a prosecutor, I're not a criminal defense attorney. So if you are, feel free to write in and, and, and dispute that is opening is open arguments at gmail.com. In my view, it would not have been difficult to present sufficient facts to a grand jury to return an indictment for some homicide offense for the other two officers. And the fact that they did not is something from which I think you can make a reasonable inference.

0:21:08 Andrew: Now, again, if you want to argue, it's better not to indict than to have a lengthy trial in which a jury says, oh, we're not going to convict on this, that's a fair argument. That's not my argument here. And that is not what happened either. That would at least put the decision on the prosecutor and would subject that person to individualized political discussion over whether that's an appropriate use of prosecutorial discretion. And again, state's attorneys general are elected. Right. And so at that point, we would be able to say, right, either we're persuaded that that state AG Cameron's decision was appropriate or that it wasn't.

0:21:56 Andrew: But at least we'd have a single point. Right. And a single discussion here. Again, like I said, ultimately, you know, we have black box and the the three charges under the existing Kentucky statute like you said, Class D felonies. I will point out in 2016, the Kentucky State Legislature passed a law adding subsection D KRS 431.073, which allows you to petition to expunge any offense that is a Class D felony that doesn't fall under one of certain narrowly enumerated categories that are not present here.

0:22:43 Andrew: To remove it from your record. So let's put all that together. It is entirely possible of all of the officers involved, as you point out, the one least involved in the killing of Breonna Taylor is the only one who faces criminal penalties and he may wind up with probation, which is subsequently expunged from his record. And doing so will restore all of the rights that a felony conviction otherwise deprives you of in the state of Kentucky. That is the right to hold state office, to vote, to own or possess a firearm, to work in a variety of fields that require state, yeah, to become a police officer, yep, and to serve on a grand jury. So, of those. So ultimately, may be no justice to anyone. You have a right to be unhappy about that.

0:23:21 Thomas: To become a police officer right away again. Yeah, I mean, what we really need is reforms, you know, like if, if it is the case that the facts that I understand it, you know, it, it, I don't know the the specifics of how the altercation exactly went down because I don't know that anybody knows that. And by the way, the only reason anything happened was because of sustained pressure from the public and from activists. There was nothing on this, like, literally they just covered it up and and didn't let it get out. And the only reasons we even have the slightest bit of anything, the couple indictments we do, and the settlement and all that, is because people worked really hard to bring, uh, light to this and to to bring attention to it.

Um, but we, I, if I, I had my way, there would be just like a mass firing of everybody involved in the decision process that got us here, you know, and then, like, a reform of what they are trying to do in these policing situations where they're going after some guy who is selling drugs, and, you know, like, it ah, it's such a mess. And I don't know that we're going to get any of that, per se, but that, you know, that would certainly be in

0:23:57 Andrew: I

0:24:42 Thomas: The end, maybe it would help save more lives and stop this from happening again. Yeah.

0:24:48 Andrew: Think I could add more to that. I agree 100 percent. And I would say that one additional piece of good that folks are doing by keeping this in the public eye is making criminal justice reform a top tier issue. Right. It's something that very, very easy to marginalize. And it's very easy too marginalized because the overwhelming majority of federal criminal defendants are Black. And so this just does not fall into a lot of white political circles, even where there is widespread agreement of systemic injustice. And, um, anything that keeps that discussion on the forefront is, uh, I think a good thing.

0:25:42 Thomas: I know we can go on about this forever, but but I, I really, my sense from reading a lot of stuff on on these issues, is that we really, there just needs to be be a massive culture shift in policing, you know, like they go in there like they're Team America and they don't care about, like, the attitude is like, well, there's just going to be some people injured along the way, a collateral damage kind of thing, and they're, like, the mission, of, you know, getting the bad guy, whatever they think they're doing. And really, they, a just world, you know, they would approach these things as though any loss of life is an absolute tragedy. It's like they don't, certain lives don't seem to matter in the process of, you know, getting a criminal off the streets or whatever. It's, like, no, everybody's life matters down to the criminal that you're targeting, by the way.

0:25:44 Andrew: Yep. Yep. Yeah.

0:25:58 Andrew: It Right. Yeah. One of the things that I thought really, uh, know, moved the noodle was when discussions, we could, we could go back and forth on the political efficaciousness of defund the police, right? But one of the things that I think was most useful about that phrasing, right, as it penetrated the public consciousness over the summer, was that it, it prompted a a stereotypically white response, right, of, oh yeah, sure, defunded police, but who are you going to call when someone breaks into your house, right?

Which led to not just, right, I mean, which led to pretty much all of Black America having, having the response that you did, right, which was, you know, even right wealthy suburban upper class Black Americans saying, yeah, we don't, we don't call the play, what are you talking about, right? And and and I've talked about, you know, the the I've talked about, you know, somebody who's a mentor to me, right? Judge Andre Davis on the Fourth Circuit talking about his experience as a sitting federal judge getting pulled over for speeding tickets, you know, once a week. And and to me, that that falls within, you know, in a much greater degree of severity, right.

0:27:05 Thomas: Not

0:27:51 Andrew: It just sort of brought home the if you're black in America, you don't call the cops. And and that's a terrifying.

0:27:56 Thomas: Only, I mean, yes, absolutely yes and, absolutely, yes And. Have you ever had to call the cops for anything? Nothing happens. You don't call the cops when your house is being burgled and they come and like they get the bad guy in the process and they save you. What happens is your house gets robbed and then you call the police, they show up two hours later, they write down a few things and nothing happens. That's by, if we take out a couple of the bazillion dollars that we fund to militarize them and we put that toward like, you know, mental health services, that's what, what you're worried about? Anyway. All right. Sorry.

0:27:58 Andrew: Yeah. Yeah, yeah. Right.

0:28:31 Thomas: We've gone. It's so hard to contain the outrage these days and any moment to moment. But we're gonna move on and talk about the next outrageous thing on today's menu, which is our probable future Supreme Court Justice.

0:28:37 Andrew: Covered it.

0:28:50 Clip: The law breaking down

0:28:56 Andrew: This is a Thomas was right. I said in our emergency. What's next episode after we heard about the unfortunate news regarding Ruth Bader Ginsburg. I pointed out that you had a perfectly safe Leonard Leo approved choice for Supreme Court in Paul Clement. And you said, no, you know, I think Donald Trump is interested in trolling the libs and will put forward the most provocative choice imaginable. And every indication we have since recording that episode a week ago is that you were right and I was wrong and it's going to be Amy Coney Barrett.

0:29:44 Andrew: So I want to talk about how liberals can oppose the Amy Coney Barrett nomination like a smart person, because there is a very easy and well-executed and stupid rhetorical trap that not particularly bright right wingers have set and Sadly, that too many of us have nevertheless walked into. To, um, so first let's talk about Judge Barrett. Uh, let's talk about her qualifications. She was first, she is 48 years old, which is young, very young, young, not Cory young, for the Supreme Court, right? Um, she was number one in her class at Notre Dame Law School and, um, that's impressive for anybody. Uh, she then clerked for the DC Circuit and then Antonin Scalia on the Supreme Court, and again, I didn't apply to be Antonine Scalia's law, law clerk, know, I applied very, very broadly.

0:30:04 Thomas: Hmm.

0:30:51 Andrew: I will not describe all the judges to whom I applied. I wound up clerking for a very, Very conservative judge on the Maryland Supreme Court, as I have pointed out. There were a handful for whom I did not want to clerk. But just clerking For Scalia doesn't make you a Scalia clown. Spoiler, she's a Scalia clone. But But it that's that's her background. She spent three years at a big firm before becoming a professor. She spent a year at GW and then 15 years at Notre Dame, where she was a law professor with distinction. And and even here, I need to point out, unlike Justin Walker, who taught advocacy, right, she taught real substantive legal subjects. She taught evidence. She taught Civ Pro. She thought constitutional law. Right. She was then directly nominated to the Seventh Circuit Court of Appeals. So her lack of legal experience was, ironically, we've talked about this before, less important.

0:31:12 Thomas: Yeah.

0:31:58 Andrew: Right, because appellate courts decide on the law and not on the facts. So as a result, she was rated well qualified by a majority of the American Bar Association. A substantial minority report rated her as qualified, which sounds about right. Right. Like if I were on the ABA, that's I would be between qualified and well qualified. So, but keep in mind, the ABA, for all of the demonization that Donald Trump has done because he has nominated scores of not qualified judges and Justins and Corys, theABA is truly nonpartisan.

0:32:44 Andrew: They do not delve into the substance in terms of the judicial philosophy, beliefs, and application of those beliefs to real world situations. So, as I said with Neil Gorsuch and Brett Kavanaugh, those two gentlemen were academically and intellectually qualified to be on the Supreme Court. Judge Barrett falls on the low end of that, but

0:33:09 Thomas: But she'd be able to tell you what emotion in lemonade is.

0:33:12 Andrew: She taught Civ Pro. Yes, exactly. So first off, academically qualified. Now here's where we start to get to the minefield. End of good news. Yeah. I want to talk about Judge Barrett's religious beliefs. And I want to do that because this is an issue that is being used as a club against Democrats, including by other Democrats. And I think it is critically important to differentiate what we mean when we inquire into someone's religious beliefs. So, first, this is how I would frame this discussion. If you are being attacked by Uncle Franks who say, you know, you're being a bigot. If a judicial candidate belonged to a whites-only country club,

0:33:17 Thomas: Yeah.

0:33:27 Thomas: End

0:34:18 Andrew: 100% of the time, it would be valid to ask that person about their membership in an organization that discriminated on the basis of race. Right. That's not controversial at all. You you you.

0:34:31 Thomas: Yeah, I mean, as of the last 50 or so years, yeah.

0:34:33 Andrew: Right. This happened with Mitt Romney's dad, George Romney, when he ran for the presidency in 1968. Mitt Romney, George Romney devout Mormons, sincere, true believing the Mormon church as an institution did not allow African-Americans to be eligible for the priesthood. That is the confirmation at of of young men at age 13. Right. And it's a core aspect of Mormon belief. And they just blatantly discriminated against black people until 1973. So in 1968, George Romney was a member of a church that said black people can't serve in particular positions where like a black person had like.

0:35:27 Andrew: Less spiritual authority in the Mormon church in 1968 than a white 13-year-old, right? And that's a hundred percent a fair question to ask somebody who wants to be president of the United States. You belong to an organization that says a full-grown black man is less loved, is less less capable of exercising authority than a 13-year-old white boy. And he was, in fact, asked those questions. So the questions as pertain to Judge Barrett with respect to her religion, which we're going to talk about, are, number one, do you have religious beliefs that that prevent you or otherwise interfere with your ability to fairly uphold and defend the Constitution of the United States of America?

0:35:39 Thomas: Yeah.

0:36:24 Thomas: And she'll say no.

0:36:25 Andrew: Right. And two, do you hold religious beliefs that you would apply that would supersede your application of the laws and the Constitution of the United States of America. And do you know who agrees with me that this is a valid question to ask of a judge, right? In other words, not to get into like long questions about doctrine and this and that, but the questions narrowly tailored as I have just asked them, Judge Amy Coney Barrett. It. In 1998, she co-wrote a law review article. She was one year out of law school at the time, so she was clerking, co- Wrote a Law Review article, but has continued to defend everything written in this Law Review Article called Catholic Judges in Capital Cases.

0:37:21 Andrew: And this Law Review Article is about the following. Number one, it's an analysis of the Catholic is teaching on capital punishment. And want to return back to this, particularly if you... So Judge Barrett is a conservative Catholic. We're going to talk about exactly what that means. But if your experience, if you are a non-religious person, it is also a mistake to lump Judge Judge Barrett in with Jerry Falwell, right, with evangelical Christianity. That's not her background. That'S not where she comes from. And you will look like an idiot in a discussion if you make those particular assumptions. Right.

0:38:06 Andrew: So conservative Catholicism. She writes this law review article in which she says it is very, very clear that the Catholic Church's teaching means that if you are a faithful Catholic, you must be opposed to the death penalty. That informs your conscience.

0:38:23 Andrew: So what should, this is Amy Coney Barrett, then Amy Caney, pre-marriage, writing on what should a devout Catholic judge do when they receive a capital case? And here's what she says. I'm to link the Law Review article. This is page 333. Quote, of course, judges often have to set aside their personal convictions in order to do justice, but this is easier in some cases than in others. Then she described, we can set aside convictions if there's some reason to trust another person's judgments more than our own. We can also set aside our legal convictions in deference to a superior authority in the legal system. But the principle at stake in capital sentencing is a moral one, not simply a factual or legal one.

0:39:12 Andrew: And the judge is asked to violate it. There is no way the judge can do his job and obey his conscience in terms of sentencing someone to death. The judge's conscience tells him to impose a life sentence. Federal law directs him to impose death because the judge is unable to give the government the judgment to which it is entitled under the law. Section 455B1 directs him to disqualify himself. And then she adds, quote, this is not a difficult case, end of quote. So in other words, Amy Coney Barrett, right, nineteen ninety eight. It's a law review article that says if you're really a devout Catholic, you have to be anti death penalty.

0:39:59 Andrew: You will have death penalty cases. Your obligation, quote, it seems to us then, like I said, she co-wrote the article with then a sitting law professor. It seems to us then that the proper approach to this kind of case morally and legally is for the observant Catholic judge to recuse himself after trial and before the sentencing hearing. It would probably be appropriate to give parties the notice that he intends to do so if the trial ends in conviction. End of quote.

0:40:27 Thomas: Opening Argument is brought you by better help. Folks, is there something interfering with your happiness or is preventing you from achieving your goals? I just can't even ask that with a straight face. Uh, things are rough lately and it's, there's no sense in hiding the fact that things are ruff and that a lot of people are not doing well. But here's the thing, BetterHelp will assess your needs and match you with your own licensed professional therapist. I cannot recommend this enough. You can start communicating in under 48 hours. Now, this is not a crisis line. It's not self-help. It is professional counseling done securely online. There is a broad range of expertise available, which may not be locally available in many areas. The service is available for clients worldwide.

0:41:12 Thomas: You can log into your account anytime and send a message to your counselor. You'll get timely and thoughtful responses. Plus, you can schedule weekly video or phone sessions so so you won't ever have to sit in an uncomfortable waiting room as with traditional therapy, not to mention, you know, it's COVID. BetterHelp is committed to facilitating great therapeutic matches so they make it easy and free to change counselors if needed. It's more affordable than traditional offline counseling and financial aid is available. Available. BetterHelp wants you to start living a happier life today. Many people love BetterHelp that they have left a tremendous amount of positive reviews and testimonials. I'm going to read you one right now. This review was written about a counselor named Abby. It says, Abby has been amazing, she is always available when I need her, even in my darkest moments, she has helped me overcome come and feel good.

0:42:02 Thomas: I really don't know what I would have done without her. So, visit betterhelp.com slash OA. That's Better H-E-L-P, and join the over 1 million people who have taken charge of their mental health with the help of an experienced professional. In fact, so many people have been using BetterHelp that they are recruiting additional counselors in all 50 states. More time. The special offer for Opening Arguments listeners is to get 10% off your first month at betterhelp.com slash OA.

0:42:37 Andrew: So let's parse that out. Judge Barrett is saying as a matter of personal conviction, you may find that you are unable to execute the law because of your personal moral convictions, and if you do find yourself in that position, that you are obligated as a moral principle and as a legal principle to recuse yourself in those cases. If that is her belief, and by the way, that belief is 100% dead on correct. She could not be more right about that If that is her argument, then it is incumbent upon the Senate Judiciary Committee to ask Judge Barrett what cases will she follow the dictates of her conscience rather than the law.

0:43:35 Andrew: This is not religious bigotry. This is not picking on her for being Catholic. This is, by her standards, applying the notion that if you can't do your job, if you cannot render to the government, again quoting her words, quote, the judgment to which it is entitled under the law, end of quote, then you must recuse yourself. You might gather from the strenuousness with which I have presented this that Judge Barrett has not and her defenders have not followed Amy Coney's advice from 1998.

0:44:22 Andrew: Instead, and by the way, this is what Justin Walker lied about in our debate. Right. And he just brought it up out of whole cloth. He said, well, like, for example, because I challenged him, he said, you know, Christians are under the worst persecution in America today. And I laughed into the beer that I was holding. And I said, um, you want to give an example of that, Justin? And he said, yeah, take the shameful way with which Judge Amy Coney Barrett was treated by Dianne Feinstein and the Democrats on the Senate Judiciary Committee when she was nominated to the Seventh Circuit. She was asked about being Catholic. And that is a slap in the face to John F. Kennedy and a violation.

0:45:10 Thomas: Yeah, these poor Catholics, There are only going to be seven of nine of the justices after she's approved.

0:45:16 Andrew: Well, I want to I want speak to both of those and and a violation of Article six of the Constitution. And I cut him off. And this is the point in which I realized that that he was a dishonest interlocutor. Right. And I said, so let's let's take those in reverse. I said Justin, you are a professor of the law. You know, in a room full of non-lawyers that you are lying about Article 6 of the Constitution, which says that, quote, no religious test shall ever be required as a qualification to any office or public trust under the United States, end of quote. That does not mean that you cannot ask judicial candidates about their religious beliefs. That means you can't pass a law that says Mormons can't be federal judges. And you shouldn't be able to pass that law.

0:46:05 Andrew: But in the context, if you read, I read you and the second half of a sentence. The first half of that sentence says that officers under the Constitution shall be bound by oath or affirmation to support the Constitution. Right. So in context, it is 100 percent clear that the religious test was meant to say, yeah, in order to ask somebody to serve in the government, they have to be willing to say I will faithfully defend and execute the laws of the Constitution of the United States of America. And if they can't say that, they don't get to hold the office. And why might they not say that? Because, this is not stated, some people have religious beliefs that would prevent them from saying that.

0:46:53 Andrew: And so if your religious beliefs prevent you from affirming an oath to the Constitution, you're not qualified. But then the part they added, but of course, we're not saying you can pass a law saying that all members of any particular religious sect and there, you know, who knows what what sex they had in mind. But you can't by law keep them out, but you can require them to honestly take an oath to faithfully defend the Constitution. So 100 percent a lie about Article six. It is also 100 percent a misrepresentation of what happened when the Democrats successfully nominated Catholic John F.

0:47:43 Andrew: Kennedy to become the first Catholic president of the United States. Now, look, there may well have been some anti-Catholic bigotry at the time. Right. I don't mean to suggest that that doesn't exist. By the way, that exists from Protestant Christians. Right. Like atheists to us, like we're like, oh, yeah, we have strong opinions on transubstantiation. No, like it's all crazy to us. Right? Right. Like but but but OK. So the question.

0:48:02 Thomas: Yeah. Not only that, if you want to get into a contest of which religion is more persecuted in America, I mean, it's not going to be Catholicism. And by the way, ifyou look at polling, people trust a pedophile before an atheist somehow in office. Like, it''s not good for atheists.

0:48:27 Andrew: Yep. Yep, that is you are not. That is not an exaggeration. That is real research. And I've mentioned it on the show. The author's name is not coming to me at the time. But but actual academic research that individuals rate atheists below pedophiles. Yes. So that that's not just a that's not a throwaway line that you're saying there. That is that is 100 percent accurate. So but but let's go back to the to the Kennedy question. Right. Because I think it's worth it's worth addressing. Some folks said, oh, yeah, well, Kennedy is a Catholic. So if he's president, he'll take orders from the pope in Rome. Right. And John F. Kennedy, September 12th, 1960, 1960, went at the invitation of certain Protestant pastors and spoke in a Protestant church, and he gave one of the most beautiful and eloquent defenses of the separation of church and state in American history. He said this, because I'm Catholic and no Catholic has ever been elected president, the real issues in this campaign have been obscured, perhaps deliberately in some quarters less responsible than this.

So it is apparently necessary for me to state once again not what kind of church I believe in, for that should be important only to me, but what kind of America I believe it.

I believe an America where the separation of church and state is absolute, where no Catholic prelate would tell the president, should he be Catholic, how to act, and no Protestant minister would tell his parishioners for whom to vote, Where no church or church school is granted any public funds or political preference and where no man, no person,

0:50:15 Andrew: Is denied public office merely because his or her religion differs from the president who might appoint him or her or the people who might elect him or. If Judge Barrett could sign on to that statement, I'd be happy not to ask a single question about her religious beliefs. Judge Barrett, of course, is a member of a political group, right, having twice been a dues-paying member and speaker before the Federalist Society. She, her, her civil political affiliations are exactly to the, I mean, are literally 100% the opposite of, of what President Kennedy said to the American people.

0:51:04 Andrew: Right. She belongs to a group who thinks that schools should receive tax dollars, that Protestant ministers should tell their parishioners for whom to vote. Right. Like it is it is absolutely turned on its head. And, oh, man.

0:51:16 Thomas: I'm just blown away by the actual human words that came out of a president. I can't even, I've just been sitting here in disbelief, those were the days.

0:51:24 Andrew: Yeah. Weren't those weren't those the days? Yeah. So let's go back and match that up. Right. Judge Judge Barrett, this again, this is now page 346 of the Catholic judges law review article. She concludes, our final observation is that many judges, even some who would regard themselves as Orthodox Catholics, when faced with a conflict between moral and legal duties, see themselves as bound to enforce the law. Right. That is that's the John F. Kennedy position that I just articulate. Right. If there's a conflict between your religion and between the law, the law comes first. She then discusses two examples, Mario Cuomo on abortion and Supreme Court Justice William Brennan Brennan generally. Right, then she says, and again, this is word for word.

0:51:25 Thomas: Yeah.

0:52:13 Andrew: These are her words, not mine. Quote, we do not defend this position as the proper response for a Catholic judge to take with respect to abortion or to the death penalty, end of actual quote. So in other words, Judge Barrett has said in writing, my religious views on abortion and the death penalty, and again, look, I'm with her on the death penalty, right? Right. Like so are you. Right. She has said my religious views on these legal issues come first. And that is at minimum, according to Judge Barrett herself, disqualifying. Now, you might ask yourself if in 1998, Judge Barrett wrote that judges on the death penalty should recuse themselves because of Catholic judges who are anti-death penalty should refuse themselves because they cannot fairly evaluate the law.

0:53:10 Andrew: Well, you might say, well, surely then Judge Barrett has recused herself on abortion cases while sitting on the Seventh Circuit.

0:53:18 Thomas: If somebody was born yesterday and they just started listening to our show, yeah, sure, they might ask that question, Andrew, if uh, Brandon Frazier from that movie where he gets stuck, locked in, the Blast From The Past, if he would get came out of the, oh, that too, wow, Brandon Frazier did that a couple times, he got, got locked away for, but anyway, good point on Encino Man, but I feel like that one wouldn't work because it's a caveman, they're not gonna ask about our Supreme Court, but like if Brendan Frazier from Blast From The Past, uh, they, he might ask this question, so what would your answer to him be? Well,

0:53:26 Andrew: Yeah. Judge I was thinking Encino, man. Isn't that a Pauly Shore? Yeah, the Seventh Circuit has taken up two abortion cases during Judge Barrett's term of nearly three years, and Judge Barrett fully participated in the consideration of those cases and issued, signed, did not write, but signed on to dissents in both Planned Parenthood versus Commissioner and Planned Parenthood versus Box. Um, I, I've seen some sources trying to construe her dissent as more than it is because Judge Easterbrook wrote the dissent in Box, and he, uh, I don't want to get, he, he called the statute a eugenic statute, which is, you know, indefensible and stupid and wrong, um, but, you know, Judge Barrett didn't use those words, she signed on to a dissent that used those words, but I think, think it's, I think it misfires to, to, to put those words in her mouth.

Um, but here's what, what is worth pointing out, in Box, this was a dissent from a petition for reconsideration on bonk of a 100 percent settled issue of law, and that issue was, um, Indiana tried to pass a parental consent law for minors seeking to have an abortion. And since Casey, the law has been really super duper clear. If you have an Abortion Parental Consent Law, then what you have to do is that law has to allow for judicial bypass, right?

0:55:31 Andrew: You have to say for children who are minors under, under the statute but are seeking an abortion, uh, particularly in the case of, you know, where they've been raped by their father, for example, right, where, where there's strong reason to believe that parental consent would, um, would adversely impact, uh, that minor, you have to provide an alternative avenue, and the Indiana law didn't have that, it had a semi, it's not worth going into. This is an up or down, black and white, super clear.

If your parental consent law doesn't have judicial bypass, it's not constitutional. And that's what the district court said. And that's the panel on the Seventh Circuit said. Uh, and then the petitioners moved for reconsideration on bonk, and five judges, including Judge Barrett, who by her own rhetoric ought to have recused herself, said, well, we should reconsider this en banc because declaring a statute unconstitutional is a really severe exercise of our judicial power. So the minefield, and I hope I've articulated it well, it is not that Judge Barrett is a Catholic. It's not that she is a conservative Catholic. It is not, and I will not get into it here, that she is a member of a parachurch organization called People of Praise that has less than 2,000 members. And as part of that organization, women can't hold certain leadership positions. Their highest position is referred to, well, they changed it a couple of years ago, but the highest women leaders were referred to

0:57:13 Andrew: As handmaids, um, I guess that was probably before the, uh, the Hulu series, um, but definitely post Margaret Atwood writing the book.

0:57:20 Thomas: The book. Is, yeah. I was gonna say.

0:57:22 Andrew: Yeah, like 1970. Yeah, um, it's like, that, that asking questions about that is 100 valid under the George Romney rule, right, that she's a member of an organization that says women can't teach men and can't hold the highest leadership position because the man is the spiritual head of the household, that is indistinguishable, uh, from saying blacks can't hold the priesthood, right, um, so, yeah, you, you should absolutely ask about that, um, and you

0:57:22 Thomas: So,

0:57:54 Andrew: Should be clear.

0:57:55 Thomas: You mean. Ask about it in the, in the rubber stamp hearing before she just easily gets rubber

0:57:55 Andrew: Correct. Correct. In creating a look, like, not, this is about, it, this is about marshalling, and maybe I should have let off with this.

0:58:00 Thomas: Yeah, okay. Yeah, I mean, like, apologies for the cynicism. I'm so, so sorry to say this, Andrew, but this sounds like an excellent podcast for the year 1997. It sounds like an amazing deep dive on how we should question a potential Supreme Court justice back when that had anything to do with anything. And I apologize for that, but I'm sure a lot of people are feeling that. What does this amount to? I mean, is this just a matter of which words get written in a couple stories of the news of how this was handled right before she's instantly approved on a party-line vote? Is that what we're dealing with?

0:58:08 Andrew: Yeah. No, No, no, Here's No, No, I think I'm really glad we probably should have let off the segment with this, right? Because I think you're feeling that way. Lots of our listeners are feeling thatway. And and let's be clear, there is nothing there. There was nothing a week ago when we recorded our response. And there's less than nothing now that Mitt Romney has said he will vote for whoever the nominee is if she's qualified. And by his standards, she will count as qualified, as we talked about in the first subsegment on this. So there is nothing we can do to keep Judge Barrett off the court. There is everything we can doing to win the battle in public opinion that this is a naked power grab by the Republican Party. And there are a couple of things that help defend that.

0:59:30 Andrew: The first is the general perception among the average person of, hey, wait a minute, I seem to recall Mitch McConnell saying we don't vote to confirm Supreme Court justices in an election year, right? Right. That's true.

0:59:47 Andrew: It's as a legal strategy that bears nothing. And all of us, you know, knew that Mitch McConnell was just saying whatever it took to nakedly steal a Supreme Court seat back in 2016. But but against people, you Know, with response to sort of the average public, what I want to do is I want to build the case that they come to realize the things that we know. Right. Right. Which is the Republicans are a minority party about to lose electoral relevance, trying to cement themselves for decades in an unelected branch with life tenure.

0:59:51 Thomas: Right. Yeah.

1:00:23 Andrew: Because the more people come to realize that.

1:00:25 Thomas: By the way, they already have done that, by the way. This is just further doing that.

1:00:27 Andrew: Yeah, right, right. Yeah. Right. Well, this is cementing that that position.

1:00:31 Thomas: It was already terrible before RBG passed It was already bad.

1:00:32 Andrew: Right? Yes. Yes. And so if the strategy, as we've talked about it in last week's episode, if the strategy is a new judiciary act of 2021, right, doubling the size of the federal judiciary, appointing new U.S. District Court judges, circuit court judges and, yes, Supreme Court justices, building public consensus around that position that is more than just Donald Trump appointed a bunch of dimwits and numbskulls, which is true, know, and Corey's, all of that's true. But winning the narrative of this is a radical transformation of the Supreme Court, it has, I think, real value to that.

And I will point out that, again, in the pre-Trump era, era, the idea was generally that you don't have radical swings on the court, that there's some obligation to try and replace a previous justice with somebody who was similar ideologically. 538 did a graphic illustration of this. And look, I have real problems with how 538 calculates their judicial ideology score, because they do it on a scale of one to nine. So, you know, they have Neil Gorsuch at a seven, right, where, you know, it should be a one to 100, so that you can show the hairline distinctions between Gorsich, Kavanaugh, and Alito, that the the slightly larger distinctions between that group and John Roberts, and then, you know, the enormous gulf between Roberts and someone like, you know, Judge Breyer or Judge Sotomayor.

1:02:22 Andrew: In any event, despite their flawed one to nine scale, what we're going to have is we're replacing Judge Ginsburg, who's a two, with somebody who's an eight or And and in the Supreme Court history, that drastic level of switch has only happened twice and never in the more liberal direction. Right. This will not surprise you. So

1:02:50 Thomas: Well, but I don't even care about that. OK, well, you're talking about I take your argument. I'm glad we have an Andrew out there arguing for norms and what should happen. And I agree. I've listened to a few podcasts about these actual swing voters. I mentioned it on my show. So, you know, the actual voters, not necessarily swing voters, or however you word it, but high, I think they changed it to like high potential vote or high whatever, people who didn't vote, you know, in 2016 and are the most gettable for for Biden in 2020. And the way that they view the world is so alien to people like you or I, and most of probably all the listeners of this show, you

1:02:56 Andrew: Yeah. Yeah that

1:03:32 Thomas: Know, like they did some polling. Maybe this was a Daily episode, I get mixed up these days, but they did some polling of these these voters, you know, and I know it's kind of an insult to call them low information voters, but they kind of are. And I don't, it's not a, I don't blame them for it. Like they have lives to live, unlike us. But you ask them about what's going on in today's news and the way they talk about it, is it's it's hard to even fathom. You know, they're like, well, I think I remember something about McConnell and a justice, you know, I don't, I don't know, you know. And so it might entirely be true that the best thing we can do is to make these kinds of cases, you know, for those voters. And we know it doesn't matter for Republicans, it's not going to change anything.

1:04:17 Thomas: They do. Um, but it, it might actually matter for some of these swing voters, but

1:04:22 Andrew: That that is 100 percent correct. And again, think about, right, Joe Biden will have to make decisions when, hopefully, when he's elected president and assumes the office in January of 2021. And having a position that has, you know, 51 percent support versus one that has 65 percent support makes a material difference in a politician's life, in terms of where he's willing to spend political capital, on what, and for what reason. Again, that that's not a get out of jail free card for failing to do the right thing, right. But but it does suggest that when things return to some semblance of normal, that being able to win the information war, right, to be able to accurately describe, hey, look, this is what happened.

1:05:20 Andrew: And this is why we have to take extreme steps, because if we don't, we will have allowed the other side to cheat and structurally wreck the system. That's a hard argument to make. And so, yeah, I'm in favor of doing everything that sort of paves the landscape. And, yep,

1:05:39 Thomas: I would be careful about this. Well, the only time you've replaced a one justice with somebody on the other side, cause like, I want to pack the court and just do anything we can to totally swing the, we

1:05:48 Andrew: Yep. No, I think that's right. I think the way in which you build that is not by talking about individual cases, but by describing what's going on, right? Right. Which is this is in in defiance of the norms they established four years ago. This is Republicans seizing upon the opportunity to take a liberal Supreme Court justice from the minority and replace it with a very, very conservative activist Supreme Court Justice. So as to further cement their agenda, to to affirmatively strike down any laws that that a Biden administration might pass. And I think that's the perfect kind of say there's so much that I could I could discuss here.

1:06:39 Andrew: Here. I'm going to skip over the clearest illustration of Judge Barrett's judicial philosophy, which is Scalia-style originalism. Like, if you want to ask, is she a Gorsuch textualist? The answer to that is no. She wrote a 2017 law review article called "Countering the Majoritarian Difficulty," which was a book review. And that was written to audition, condition, right, she was under consideration to be appointed to the Seventh Circuit at the time.

So, as we talked about with both Gorsuch and and Cavanaugh, right, this is the kind of thing you write in order to assure the people who are looking at appointing you to the bench that, hey, look, I'm one of you, um, and in that she refers repeatedly, I will link the article in, like, the article on the the show, show notes, uh, I refer you to page 81 to the end of the article in which she takes open pot shots at Justice John Roberts and says that he is not a consistent originalist, that, quote, "the measure of a court is its fidelity to the original public meaning of the Constitution and statute." What is the original public meaning of of a particular statute? That's, you know, whatever Amy Coney Barrett thinks happened in 1791. And I can, I'm going to point you to an actual decision of hers in which it's it becomes just how obvious, how ludicrous that judicial philosophy is.

1:08:18 Andrew: But if you're sitting there thinking like, well, hey, you know, Gorsuch was supposed to be an originalist and he sided with the majority on the Hively versus Ivy Tech, GR and RG, the issues involving Title VII of the Civil Rights Act of 1964. And we described how that was due to, you know, kind of a unique quirk in which he placed the plain meaning of the words over the original meaning of the words. Right. That was textualism over originalism. Judge Barrett has Barlett has very firmly come down on the other side. So she she will not be in the Gorsuch camp on in the the microscopic number of issues that that affects. There's no reason to think to think that. Hasn't authored any opinions on abortion. We've talked about how she's voted in the minority against abortion rights in indefensible ways. On guns, uh, she wrote, uh, the dissent, uh, in a case called Cantor versus Barr, and this is truly critical to to know, um, that case was, uh, the panel was three Republican appointees, Flaum, Ripple, and Amy Coney Barrett, um, you might remember Flaum and Ripple. Yeah.

1:09:35 Thomas: A flam ribble concurrence.

1:09:37 Andrew: Exactly, they're Mine too, um, from the Hively v. Ivy Tech, which was a Seventh Circuit case, right? And they are non-originalist conservatives, right, solid conservative justices. This case was about, Cantor versus Barr, was about the constitutionality of the Wisconsin law that said felons, convicted felons can't possess firearms, right. And the felon in this particular case was convicted of mail fraud. And so the argument was a fairness, a judicially expansive fairness argument that said, well, I mean, I'm a felon, but I'm not one of those dangerous felons. So I should be allowed to own a gun. And Flaum and Ripple writing for the majority said, yeah, look like this is this is a perfectly valid law.

1:09:39 Thomas: One of my favorite concurrences. Duh.

1:10:31 Andrew: Maybe it's not the smartest thing. Right. Like I'm not sure blanket prohibitions on on felony firearm ownership are necessarily smart ideas, but they're plainly constitutional. Right. Amy Barrett says nope. And she goes full on D.C. versus Hell or Kool-Aid. She writes, and I have to read, I know we're going long, but I have to read this paragraph to you. "History is consistent with common sense. It demonstrates that legislatures have the power to prohibit dangerous people from possessing guns, but that power extends only to people who are dangerous. Founding era legislatures did not strip felons of the right to bear arms simply because of their status as felons." I, it, it is nonsense on its face, it, who knows why the legislature did anything in 1791, and if you want to pull out that pin, and who cares, that is not binding on the Constitution.

What, what, what the, what the U.S. Congress did for 13 states in 1791 bears zero on what the Second Amendment prohibits the U.S. government from doing today. It's, it's insane. And if you want to understand how Amy Coney Barrett's unique take on originalism is laughably incoherent, I refer you to pages 41 to 43 of this dissent. Right. Again, I'm going to link the case in the show notes. It's called Cantor versus Barr. This is a discussion on the history of felony disenfranchisement. And it is responding to the argument that the other side had to put into their briefs because they knew this lunatic was on the Seventh Circuit,

1:11:12 Thomas: But by the way, if felons try to vote in Florida, nope. And who cares?

1:12:12 Andrew: Which said, the reason why the United States did not strip felons of the right to own a gun in the 18th goddamn century is because in the eighteenth century, pretty much all felons were just executed anyway. Right. And it's 100 percent true, because they were you were basically executed when you were a convicted felon. We didn't have to say, oh, and and in addition to being dead, Your dead body can't own a gun. Right.

1:12:33 Thomas: Wow. Yeah. Do not give that corpse a gun.

1:12:44 Andrew: It's so insane. And what follows is three pages of a judge trying to wrestle with the appropriate historical interpretation of 19th century textbooks on 18th century behavior about how many felons were executed. And if you read this and go, this does not seem to me to be just calling balls and strikes, you are 100 percent correct. So I could talk, we could go on for hours here about her actual judicial record. But I will rest on Cantor versus Barr and law review article countering the majoritarian difficulty. It is listed in the show notes.

1:13:31 Andrew: I think this is how you present the comprehensive case against Amy Coney Barrett as a Supreme Court nominee. It is somebody who outlined the standards for what someone with her religious beliefs ought to do and then did not do that. And that is not a hard case to take to the American public. Yeah, it's not going to help you in the Senate. But if we win the messaging war, if people generally think like, gosh, we took an icon of the Supreme Court, one of its greatest minds, headlines, uh, yeah, and a strong staunch liberal, and we replace that with a partisan hack who does not abide by her own standards, I think that's a pretty good argument. It's the, it's a case that I would make.

1:14:19 Thomas: All right. Well, uh, enjoy making that case into the hollow void. So let me know how it goes. Well done on the breakdown. It is time, though. We are out of time. There's so much more you had, I know. Sorry about that. So much of your research ends up hitting the cutting room floor. That's But, just how it is.

1:14:38 Andrew: There's, their, there will be more, and, uh, you know, maybe we'll do some more for patrons, maybe we will do some on the main show, but, uh, I got a lot to say on this, Thomas. Thomas.

1:14:48 Clip: And thank you, Let's go!

1:14:49 Andrew: I

1:14:50 Thomas: Now it's time to thank our new patrons over on patreon.com/law. And by the way, if you want Tuesday's episode early, a whole day early, become a patron, uh, because we're going to be talking about that Atlantic story about Trump stealing the election and and all that and setting up a coup. I mean, it's it's grim stuff. So, uh, get access to that early by going on patreon.com/law. And our new patrons are James Pluth, Chelsea Olson, Stuart Teal, The Melon Lord, Maddy Love, Did DeJoy's USPS Really Accidentally FOIA 10,000 Pages? Huh, I don't know about that, did they? Do you know?

1:15:28 Thomas: No, no, okay. Wyatt Bean, Impeach45Again, Keith, Ramona Kramer, Tweaks, and Romaine Paulus. Alright, your turn. Thanks

1:15:27 Andrew: Don't know.

1:15:39 Andrew: And thank you to hashtag I voted from Canada. Well, hopefully legally you voted from China. That's U.S. citizens who happen to be stuck abroad in countries better than us can still vote. Um, newbie UK listener who knows you have to have a funny name, Donna, well congratulations, Matthew Walker, David Lang, Michael, Mike Bianchi, Kate Cox, listening for years, still can't come up with something clever, how do I change my name? Well, yeah, just go into a little, click the gear icon in Patreon, jackass butter, you mf, and Michael Stone.

1:16:17 Thomas: So much new patrons alright

1:16:19 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:16:25 Thomas: And now it's time for T3BE. I'm on a hell of a streak. Three questions in a row. Haven't had to make new music yet. Let's see if I can delay that another week.

1:16:35 Andrew: Yeah. All right. Thomas, a mining company that operated a copper mine in a remote location kept dynamite in a storage facility at the mine. You know, you know where this is going. But I love it when these questions, though, introduce like random facts and then they turn out to be like, you know, what what rule of of exclusion will prevent the testimony?

1:16:46 Thomas: Yeah. I've Anticipated. Right. Yeah. It'll Be a Hearsay. Hearsay. Question, or. Something, yeah.

1:16:58 Andrew: Yeah, right. Yeah, The storage facility was designed and operated in conformity with state-of-the-art safety standards. In the jurisdiction, the storage of dynamite is deemed an abnormally dangerous activity.

1:17:00 Thomas: Okay.

1:17:12 Thomas: Yeah, no.

1:17:13 Andrew: Dynamite that was stored in the mining company's storage facility and that had been manufactured by an explosives manufacturer exploded due to an unknown cause.

1:17:22 Thomas: Way, huh.

1:17:23 Andrew: The explosion injured a state employee who was at the mine performing a safety audit. It. The employee brought an action in strict liability against the mining company. What would be the mining companies best defense? I know a little bit of a curveball there. What's their best defense.

1:17:27 Thomas: Oh. Wow. Oh. Curveball. Okay. Sure, this.

1:17:42 Andrew: A. The mine was in a remote location. B. The mining company did not manufacture the dynamite. C. The state employee assumed the risk of injury inherent in the job. Or D. The storage facility conformed to state-of-the-art safety standards? I love this question.

1:18:02 Thomas: Is. Wow, this seems really difficult. Like, I could, right off the top of my head, all four of those seem good, so I'm just gonna go ahead and and say, streak ending, everybody. I'll look forward to whipping up some new failure music. Okay, critical facts, uh, it is in a remote location, kept dynamite in a storage facility, storage facility was operated, yeah, okay, in the jurisdiction, storage of dynamite is deemed an abnormally dangerous activity. So we're kind of between a rock and a stick of dynamine here, because, because it seems like they're doing everything they can. It's stored in the state of the art, you know, it's remote location, but it also says in the jurisdiction storage of dynamite is deemed abnormal.

1:18:49 Thomas: So like, are they, there's no way to do it? You can't do it. Hmm. So yeah, it was, uh, manufactured by someone else, exploded due to unknown cause, cause. So we don't know. State employee, they throw that curveball in there. So that injures a state employee performing a safety audit. So what's the best defense? I do not know how to answer this question. I really don't now. So like, okay, here we go. A, the mine was in a remote location. Know, I think, okay, so I, that that strikes me as a little, like, like that goes toward the overall, like, did they, you know, the duty of care or whatever, what do they do? And while that makes sense in terms of just general, you know, how much danger was this dynamite to anyone, I don't think in the case of the state employee.

1:19:36 Thomas: Who is like, hey, I was at your mine and the thing blew up, I don't think it matters. So I'm gonna eliminate A, that's hopefully that helps, helps. Let's see, B, the mining company did not manufacture the dynamite, that sounds strong, that's solid right there, god. See the state employee assumed the risk of injury inherent in job, oh, that, I mean, I don't know, maybe, yeah, uh, I, but then okay, so what's the best argument against these things? So for C, I think the argument against that would be, yeah, okay, but I didn't, I'm not a dynamite inspector, like I didn't go there to be blown up, you know, so maybe that's one, but but I could also see some weird circumstances and see what would be the best. D, the storage facility conformed state-of-the-art safety standards.

1:20:24 Thomas: Okay, and the question such as this, it seems incredibly difficult. I'm grasping onto whatever intuitions I can. I think B and D are the strongest. The C, the state employee thing, assuming the risk, maybe, but that could be it. And this is a big risk, but I'm not gonna go there there. Cause I don't think I, I, yeah, I'm just going to go with, I think B or D will be, well, this is so hard. Cause what's the best defense again? What, how do you define the best offense? If C is true, then yeah, sure. That solves the problem. Um, so that under that logic, that's going to be the best events storage facility conformed to state of the art safety standards. Mining company did not manufacture the dynamite, but then again, gosh, this is so hard.

1:21:09 Thomas: I think, I think it's between B and D could be C, but I'm going to go B and D. And, and I, I, think I'm gonna go with, I think I am going to with D because while, while it seems important, obviously that the mining company did not manufacture the dynamite. We also know that in this jurisdiction, the The storage of dynamite is just deemed abnormally dangerous. So like for that reason, I feel like if you're trying to put up a defense, you'd say yes, but we're storing it in the safest possible way that there are, there is. So for that region, I'm going to go with D and I just have zero confidence in this. I don't, I don't know what the hell it's going to be. That's my best guess.

1:21:55 Thomas: It's between B and D, going with D. God knows what the real answer is. Good luck, everybody, buddy, and

1:22:02 Andrew: Well, and with that exhortation, if you'd like to play along, you know how to do that. Just share Share out this episode on social media. Include the hashtag T3BE. Include your guess, your reasons. Therefore, we will pick a winner and shower that person with never ending fame and fortune. Fame and fortune not guaranteed.

1:22:18 Thomas: Thanks for listening. That's our show, and yeah, grim stuff and more grim stuff, but with a possible silver lining, according to Andrew. On next episode, on Tuesday, we'll see you then.

1:22:29 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:23:02 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.