OA555: Dems Must Gerrymander to Level the Playing Field - A Look at Redistricting for 2022

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 555. Hope you had a great Christmas if you, if indeed you celebrate, or if not then you know, you hopefully you had a nice little break or a day off maybe or something. How's it going, Andrew?

0:01:29 Andrew: It's going great. How's it going with you?

0:01:31 Thomas: Did you get the Transformers toy you wanted? Did did you?

0:01:35 Andrew: I'm going to go out on a limb and say yes, but, you know,

0:01:37 Thomas: All right. We all had a great Christmas and a Merry Christmas and all that, and we're probably, you full of too much eggnog and so forth. Let's get to today's show. We're going to talk about gerrymandering and redistricting, which I'm sure is just going to be great news and better news and great news, I imagine.

0:01:45 Andrew: Eggnog.

0:01:55 Andrew: It usually is when we're talking about, you you know, how, how Congress is apportioned.

0:02:03 Clip: The law breaking down

0:02:10 Thomas: All You know, I wanted to mention this as we go into it. I listened to a podcast on Maryland's redistricting and I was disappointed that it seems as though they're not going for 100%. You know, there's a lot of big debate within the Democratic Party is whether to go full 9-0, you gerrymander for Democrats or 8-1. And it was interesting because there is the debate between, I think this is probably something we're going to talk about today, between, do we go as far as we can to try to give Democrats every advantage where we can because Republicans have broken the system. And it's the only thing we can do to, you know, it's a zero sum game. If they have broken the system in one state and we are, you know, principled and say, no, no, we can't be the best.

0:02:56 Thomas: Yeah, cool. That's great. And then we lose and then we don't get to do anything anymore. I'm firmly on the side. And I think I convinced you of this over the years of the show, or at least you changed your mind that Democrats ought to gerrymander as much as physically possible now because there is just no reward. War, there's no upside to following rules that one side is not going to follow. All it does is mean you lose and then things get worse because you lost. But you get to hold yourself to some higher principles that don't matter. Maybe, by the way, if we gerrymander as hard or harder than they do, then maybe the Supreme Court will finally take it seriously as an issue if Republicans start to lose. But I was disappointed to learn that Maryland isn't. They're going 8-1, which is It's still good. But, you know, we may need that one seat. What if that if we end up losing by one, we can blame Maryland.

0:03:43 Thomas: But what? We've got news on the New York and California front. And what do you think about that? What are your thoughts on Maryland?

0:03:49 Andrew: Well, that is an outstanding introduction because it is precisely the issue that I wanted to cover in, you know our, our lead off and main segment. Um, I will say parenthetically that the race in Maryland one, uh, that is the Eastern Shore, uh traditionally, uh very conservative Republican, Republican district and that is currently occupied by Andy Harris. The Democratic challenger there, it is a really interesting race, right? Is Heather Miser, somebody that I know fairly well, very progressive LGBTQ woman.

0:04:15 Thomas: Hmm. Get her on the show, maybe.

0:04:24 Andrew: Yeah, I will reach out, has, has, you know, been running the traditional kind of grassroots campaign. Now, I would say, think if I get the chance to ask her, she you would probably deny that she was hoping that, the state would gerrymander this to be a more favorable district. You have to hope that,

0:04:43 Thomas: Want to note I've said eight one. I meant seven one. It's eight total districts, not nine. Sorry about that. Delete that email you were writing. I just messed up a number.

0:04:53 Andrew: It's my state I should have known right off the top of my head, so you know, so

0:04:56 Thomas: You can still write an email to Andrew if you want to and be mad at him, but not me. That was a typo. Sorry. Meant 7-1, I not 8-1.

0:05:04 Andrew: Noted. So we will discuss Maryland, and uh, if it comes down to one vote in Maryland, then today's show will be instructive. So let's first talk about California. California, like a number of Democratic states, is subject to the kind of unilateral disarmament that you have successfully convinced me of, right? So former Governor Arnold, Arnold Schwarzenegger, has been outspoken and a public advocate for ending the process of political gerrymandering. And I want to say, if every state did what California does, this would be fine.

0:05:32 Thomas: Yeah.

0:05:42 Thomas: Be great.

0:05:43 Andrew: We'd have nothing to worry about. It would be fantastic, right? So here's what happened. In 2008, there was a ballot initiative, don't know, right, how grassroots it was, but, you No, let's say a grassroots ballot initiative that passed, that created California Code Section 8521, which is the Citizens Redistricting Commission. Commission. Again, something Schwarzenegger championed. How that works. And I just want you to show, like, the lengths to which, you California has gone to kind of create as nonpartisan as possible. So the commission has 14 members, five Democrats, five Republicans, and four belonging to neither party. A panel of state auditors selects the pool of nominees from which the commissioners are appointed. That pool has 20 Democrats, 20 Republicans,and 20 belonging to either party.

0:06:32 Andrew: The majority and minority leaders of both chambers of the California state legislature may each remove two members from each of the aforementioned groups. So you get some peremptory challenges there, right? The first eight commission members are selected at random from the remaining nominees. These first eight comprise three Democrats, three Republicans, two independents. Then the first eight Commissioners get together and appoint the remaining six, which must include two Democrats, two Republicans, and two belonging to neither party. Followed all that? In addition to creating that 14-member panel, commissioners must meet the following requirements in order to serve. They must have voted in at least two of the last three statewide elections. That seems like probably good criterion.

0:07:19 Thomas: Interesting.

0:07:19 Andrew: They cannot have switched party party affiliation for at least five years, right? So yeah, you can't game the system. Yeah. Neither commissioners nor immediate family may have been, within 10 years of appointment, a candidate for federal or state office, a member of a party central committee, an officer, employee, or paid consultant to a federal or stake candidate or party, a registered lobbyist, paid legislative staff or a donor of more than $2,000 to an elected candidate. So really is sort of trying to winnow out anybody who is a political insider in that sense. I mean, obviously, I don't think you wind up on the California Redistricting Committee if you don't care about elections, but a pretty hefty restriction. And then four, they cannot be staff consultants or contractors for a state or or federal government while serving as commissioners, and that also applies to their family.

0:07:25 Thomas: Okay. No shenanigans. Yeah, oh,

0:08:13 Andrew: So you get these 14 members together, and it is very interesting to me the deliberate choices to have an even number. To approve the plan, 8-6 is not good enough. Nine of the commission's 14 members must vote for it. That must be at least three Democrats, at least three Republicans and three belonging to neither party.

0:08:33 Thomas: Wait, what? Really?

0:08:34 Andrew: Yeah, it's got to be at least three, three, and three. Yeah.

0:08:34 Thomas: It's not just nine. It has to be, like, subdivided that way. Wow,

0:08:41 Andrew: Maps may be overturned by public referendum, at which point the California Supreme Court must appoint a new group to draw a new map. If all of that wasn't enough in terms of how the committee gets appointed, they right, also work within constraints, And right? Those constraints are that, as established by the California Constitution, that the districts be contiguous, that, quote, to the extent possible, districts must preserve the geographic integrity of cities, counties, neighborhoods, and communities of interest. Uh, they must encourage compactness and, um, state Senate and assembly districts should be nested within each other where possible. Right. All of that is meant to kind of pick at the, uh.

0:09:27 Andrew: Typical definition of, gerrymandering. Of And of course, uh... Subject to section, Two of the Voting Rights Act, right, and making sure that you protect majority minority districts, making sure that the maps are not intended to or have the effect of discriminating against any minority group. So I'm going to link in the show notes. It's a site called Dave's Redistricting. I like Dave, and he has this really fantastic interactive map of the latest map that was recommended by the commission, you can see kind of right away what non-gerrymandered map looks like, Right? And interestingly enough, I've kind of wanted to make this point, which is that the fact that something is stretched out does not inherently apparently make it gerrymandered.

0:10:07 Thomas: Right, yeah.

0:10:19 Andrew: Right, like, yeah, when you go 150 miles down a highway that no one lives on it to bring in an unrelated community to drowned out the, you know, African-American and Latino voters in a district by including, you know, rural, yeah, right, like that, that, and that shows up on your map, but there are a couple of districts, most of these are very, very compact, um, there are, are a couple that you can see how they, though they're sort of long and thin, how you have to balance all of these different criteria. And there are two more that have little tendrils in them.

0:10:52 Thomas: Right. I'm I sure if the way people worked was that we all lived exactly the same distance from each other in a perfectly distributed thing, you could make some nice geometric thing that looked brilliant, but that's not how people or geography works.

0:11:05 Andrew: That is true. But by and large, all of these past, you know, I'd say, oh, I would say, you 35 plus of these pass the like, straight face, I kind of wish districts were just a checkerboard, right? And then, you know weighted obviously by by population. So what does this mean, as a practical matter for Democrats?

0:11:15 Thomas: Oh, I I can answer that. It means we're giving Republicans a massive advantage in the state that they wouldn't have if we didn't go out of our way to make fair districts.

0:11:33 Andrew: Is. And and let's explain how big an advantage we are giving up. Remember, we're in California and New York because both lost a seat in the 2020 apportionment. So California drops from 53 to 52 congressional districts. New York drops from 27 to 26. So the current breakdown in California of those 53 seats is 44 safe or leaning Democratic districts, two toss-up districts that are competitive, and seven, and that is defined as less than five points, right? And seven safe or leaning Republican seats, right.

So when Democrats win those two competitive seats, which they did in 2016 and 2018, then that becomes 48 to 7 or plus 41. If you wanted to gerrymander the hell out of California, it would be trivially easy to make it 50 to 2 or 51 to 1. So in other words, right, that 46 to 7, that plus 39 could very easily be a plus 50. That is is 11 seats, a swing of 11 seats that Democrats are leaving on the table. The net effect of this redistricting is probably, again, you know, there's a lot of guesswork going on, probably going to be neutral to a negative shift of one. When I look look at the district, I now see 42 safe Democratic seats, seven safe Republican seats, and three competitive seats. And I'm going to describe those three competitive seats in a second. So essentially what that means is you lose two safe Democratic sheets. One goes away because of the apportionment, and one

0:11:43 Thomas: Oh yeah. Yeah. Mm-hmm. Yeah. Yeah. Mm-hmm. Oh.

0:13:31 Andrew: Becomes a more competitive district. We even know which one that is. That is Katie Porter's district, a former district, the 40th. She's now moving, right, and will run in a new district that is bluer and that includes her hometown. I kind of wish, I said I was going to describe those three competitive districts, so will. I kind of wish she would stay in the 40s because that's an R plus four.

0:13:38 Thomas: Yeah, yeah.

0:13:54 Thomas: And she could win that.

0:13:54 Andrew: Yeah, and I would think that she could win that. And I don't know who's going to be the candidate in the fortieth. Mike Levin, Democrat, in the 49th, his district drops down to a D plus two, which becomes a truly toss up district. And then the open seat in the 45th is going to be a D Plus five. So, you know, you're sort of shading that way. Could the Democrats pick up at least two? Should they? They should pick up at least two. They could probably win all three of those seats. If they distribution of 44 to 9 to a future distribution of 45 to 7, which is, yeah, that would be good. But that means winning three competitive races in the

0:13:54 Thomas: Yeah.

0:14:08 Thomas: Toss up that would be good in a year that

0:14:43 Andrew: Middle of – that doesn't Look like it's going to be good for Democrats. And this map is very likely to approved. Proved. Um, I, don't see uh it generating any kind of outrage that would lead to, you know, there may be an effort uh by Republicans to, you know, to come out and try and overturn it. But but actually, like, of the things that, you know, Schwarzenegger in sort of a throwback to another time is that, like, if you're looking at it and you're rolling the dice, like, you you may do worse with a

0:14:43 Thomas: Is not favorable at all to Democrats Yeah.

0:15:15 Thomas: Yeah.

0:15:15 Andrew: Commission appointed by the Supreme Court. So, You know, be careful what you wish for. This seems to be pretty reflective of what California really looks like. It is distressing to me. I wanted to walk through it because it does not solve a larger problem, right. Biggest problem with gerrymandering right now is that Republicans have packed in a three to five percent advantage for them in winning the House based on their representation, their actual representation among the popular vote. So fixing that is the most important thing. Secondarily, like, I would kind of like us to to move towards a system in which, instead of looking at California with 52 congressional races and going, "Well, three might be interesting," every election cycle, right?

0:15:18 Thomas: Mmh.

0:15:41 Thomas: Mmh.

0:16:03 Andrew: Like, a sort of democratic, small d democratic, like, shouldn't we strive for a system in which every district is competitive every year? This just sort of goes to show you that if you have that as an additional background consideration, kind of how hard it is to balance all of the other needs.

0:16:22 Thomas: Well. I don't think that's possible, but yeah, I, mean

0:16:25 Andrew: That's right. And look, this map will make, right, of the safe seats, it will make the safe seat safer, yeah.

0:16:33 Thomas: It is an interesting question, just philosophically. You have something like a state that is 50-50, then it might make sense to be like, "Well, then every district should be 50-50." Yeah, sure, that that would be fair. On the other hand, let's say you have a state that's 60-40. If you made every district 60-40, then they're all safe for one side, even though there's 40% or even 55-45. So it isn't a straightforward, obvious, no-brainer question. I think it really depends. You could imagine a goal in which it's like, well, every district should be roughly the same proportion that the entire state is. But then that might also be incredibly unfair to the... And obviously, I'm talking in a world of where we're actually trying to be fair, not in a world where we're trying to fight against the Republicans who have broken the system.

0:17:22 Thomas: So I think it is interesting I guess because it's fascinating to see what that panel does actually agree on, what they do actually, what is actually able to get three votes from Democrats, Republicans, and independents on that panel. And it's not something thing that it all reflects the state. Cause I'll tell you the state in terms of voters is not the proportion that is 44. What did you say? 44 to nine or whatever. Yeah.

0:17:44 Andrew: Yeah.

0:17:45 Thomas: That's not the proportion of Republicans in California. It's way higher than that, but you that's, that's because you have to make those values questions of should every district be, you the ratio that the whole state is or not. And I think the answer is no.

0:17:57 Andrew: Yeah, I think that's right. And I would point out, right, in the, this is part of what I said is, you know, the Voting Rights Act also serves as a constraint on this because in a 60-40 state like, let's say, Alabama, part of the voting rights act was meant to do is to say, yeah, we don't want black votes diluted throughout the entirety of white Alabama. Like, you know, imagine a pizza pie, right? You know, sort of everything, every district becomes a slice and the center, you know, the core of, and I believe that Alabama is like 30 to 35% African American, right, like, you can very easily dilute those in a sea of white voters. And so the idea is you you do preserve geographic integrity, which helps when you you have communities that that are contiguous. And Right. It preserves the ability of minorities to organize and have a vote and have a voice. So, yeah, it it's a tough one. You look at it and go, if Democrats are 40 percent of Alabama, shouldn't they get 40 percent of their congressional seats?

0:18:19 Thomas: Hmm. Yeah, right. Um. Right. Yeah.

0:19:02 Thomas: No.

0:19:02 Andrew: And Republicans could come back and be like, right, but we'd like we'd like 40 percent of California's congressional seats. Until you get a uniform, and this is part of what new Voting Rights Act that Joe Manchin is a co-sponsor of is

0:19:03 Thomas: Right. Oh. Great. Can't wait for that to Pass. Whoa.

0:19:16 Andrew: Meant to do. If you have a uniform rule, then you those issues in a vacuum without putting your thumb on the scale and saying, how does this help? How does this hurt? But you can't do that right now. And I think, transitions pretty nicely over to what's going on in New York, So in New York, Democrats have a veto-proof supermajority in the state legislature, which is, you know, the way it should be. New York is a very, very liberal state. And in 2012, the state legislator approved a constitutional amendment that established new redistricting procedures beginning in 2020. Right. Under that constitutional amendment, two successive legislatures must approve an amendment in order to qualify it for approval by a popular vote. And so this was then approved in 2012 and 2013, became law in 2014, set to effect, take effect in 2020.

0:20:12 Andrew: And here's what you care about, Here you have a redistricting commission. The commission comprises the following members. Two appointed by the temporary president of the New York State Senate, who will be a Democrat. Two pointed by the speaker of the new York state assembly, their state house of representatives, also a Democrat to by the minority leader of the state Senate to by by the minority leader of the state assembly. And then the eight commissioners, four, four get together and appoint two more commissioners. Who must be independents, they can't be, the language in the constitution is, cannot have Been enrolled in the top two major political parties in the state. So it sounds like we're going exactly the same path, maybe not quite as rigorous as California But as always, the proof is in the details.

0:21:03 Andrew: In California, the commission's maps are presumptively valid and can only be overturned by a vote of the electorate, which then throws it to the state Supreme Court to appoint a new commission and draw new maps. In New York, the maps are subject to approval by the state legislature, which I already described as overwhelmingly democratic. And so maps, and they have not been formalized by the New York commission, right, those 10 folks that I talked It doesn't really matter because as far as I can tell from everything I've read, the current breakdown in New York is 18 to 9. That is 17 safe Democratic seats, three competitive seats, two of which were won by Republicans, seven safe Republican seats.

0:21:55 Andrew: It would be, again, trivially easy to gerrymander New York 23 to 3, and there are proposals to do that. And that, I think the legislature is going to look at the map that is recommended to it by the state redistricting commission, which, you going follow the California pattern, right? Kind of, maybe go 19 to 7? And I think they're going to be like, yeah, we're going to decline to do that in favor of a map that is much more favorable. That could be an 11 vote swing in Congress. And the justification is going to take a look at what happened And what we think is going to happen in Georgia, what happened in South Carolina, what happened in Pennsylvania, what happened in Wisconsin, I suspect that they will take the Thomas Smith. If the Supreme Court says, to the victors go the spoils, partisan gerrymandering is A-OK, there are only a couple of places Democrats can do it.

0:22:51 Thomas: Yeah. The court supreme declares gunfight, so why Would we keep bringing a knife to it, you know? It's like, if we want, let's, I would love the Supreme Court to declare knife fight. Or, by the way, if you would like a voting rights bill, which we would love, that would be great too. If something is going to protect, but we can't, I still see people who take this high-minded approach that we have to be the change we want to see in the world on this. And it's just the opposite of true. Like, it doesn't work. It does not work to play by rules that the other side doesn't play by. It just doesn't work. Because if you, let's say we want to get a voting rights bill passed, that would be great, but we can't do it because we didn't fight back with gerrymandering. So, you know, do you think Republicans are going to do that if they take control of the House? You think there's any chance that any voting rights law will be be passed by a Republican House? There's no way.

0:23:01 Andrew: Yep.

0:23:47 Thomas: So if you're, even if it's not like a hypocrisy thing, you now, I just want to arm people, I think if, if they're worried about those, those arguments, or they they're worried about that, this is like some hypocritical thing. It's not, if your overall value is I want voting to be fair. I want, I want districting to be fare for everybody in order to get there. We need to gerrymander now. Like, unfortunately that is the, the way of the world now.

0:24:13 Andrew: No, and I'm glad you phrased it that way. And it's why I wanted to cover it and sort of give an update on this show, both from a legal and philosophical, but also from a pragmatic standpoint. Arguments will be coming, And right? It is not, you know, if I were having dinner with Arnold Schwarzenegger, which I would love, Arnie, yeah, if you're listening, call me. If I were having dinner with Governor Schwarzenegger, my response would be what we said at the beginning of the California segment, which is, if you could get Wisconsin and Georgia and Alabama and North Carolina and states in which Republicans have engineered disproportionate super majorities of the state legislature to go along with this, I'm 100% on board. I absolutely think you've developed a great system.

0:24:32 Thomas: Hmm. Yeah. That'd be interesting.

0:25:02 Thomas: Yeah.

0:25:02 Andrew: And, you know, we can continue to tweak with the kind of issues that I've mentioned, right, like number of competitive districts. You don't bring a knife to a gunfight is, I think, right response? Which is, oh yeah, okay, you tell me in a state that is literally 50-50 how many Democratic seats are there in North Carolina. In a statethat is 50 to 48 Democrat, how many democratic seats are there in Wisconsin, then come right? Back. And if somebody says like, well, I thought your principles were important, be like, yeah, My principles are important, except when the other side is engineering an all-out assault on democracy, uh, at every level

0:25:28 Thomas: Yeah. Yeah. Yeah. Well, and they are, again, order to get to a national standard, we have to do this now. It's that my principles are important. I want to do, I am acting in it, like if I were in charge, by the way, and not that I am, but like, if I weren't in charge of this decision, I would advocate gerrymandering as much as possible now, because that is the, literally the best way at this point in time in this country under our crap system, that is, best thing. To get to fairness is the gerrymander right now

0:25:42 Andrew: Yeah, yep, it And the response of, "Look, you can put Democrats in power and they will voluntarily give up their power," is illustrated by the difference between Republican states and Democratic states. Right. Democratic states overwhelmingly favor evenly distributed, or roughly Evenly distributed power and independent redistricting commissions, some of them with approval by the state Supreme Court, others with approval with sort of truly independent commissions like in California. So that's a pretty persuasive argument that says we stand a better chance of actually getting to that long-term goal if you tolerate some short-term knife fighting. I don't like it. You persuaded me on this. I mean, I came on 2016, 2017. I think I was pretty anti-gerrymandering as a principal. But then the Supreme Court declares it funsies a free-for-all on the basis of no law. I wouldn't unilaterally disarm.

0:26:20 Thomas: Mm-hmm yeah yeah uh But overall, Andrew, what do you think is the main takeaway for what we're seeing from New York and California, redistricting-wise?

0:27:19 Andrew: So here's the main takeaway, right? California's map is unlikely to change the composition of the House in any material way. It probably makes safe Democratic seats a bit safer and safe Republican seats a little safer. Remember that when you're using like the red map software, typically the sweet spot is like nine points, right? Like nine points is what – what that does is not only insulates you in all but like disaster wave elections, but right, it also insulates you from – it deters good organized challengers from getting involved in the first place, Because rising stars in the party are like looking around going like, well, I could get my you know, I can get my butt kicked in a district that is, you know where I'm going to run a great race and lose by 10 points. Or I could maybe get involved in like X, Y or Z race over here. Right. And

0:27:43 Thomas: Mm-hmm. Right. Mm-hm. Yeah. And it's that sweet spot of allowing you to spread the opposition the most thin. You know, like, because you obviously can't do every district 90 to 10, like you don't have the people for that. It's it's that sweet spot of

0:28:24 Andrew: So it. Yeah. Right. Then then the numbers don't work. Yeah, exactly. Um, so California, is is unlikely to change. Um, New York, uh, again, we can probably move from a plus nine Democratic advantage, 18 to 9, to 23 to 3. That's a plus 9 to a plus 20, which is an 11 vote swing, which again, you know, uh, yeah, so when you're thinking about counteracting what's going on in Georgia and Wisconsin and around the country, um, Democratic states are bigger, so yep

0:28:30 Thomas: Yeah exactly yeah yeah well, but again, as we've talked about, like, our biggest, literally our biggest state is is stuck, can't can't do this, but New York, uh, that goes a long way, I guess, to make up for the rest of the right-wing gerrymandering.

0:29:06 Andrew: I I but again, notice, I could draw a California map right now that that would be uh 50 to 2 that would would be a yeah but we

0:29:17 Thomas: Oh yeah, I could get you a tow. With 50 Democratic, I'd get you tonight. Yeah, no, totally. It's just, Schwarzenegger's but too good a guy, you know?

0:29:26 Andrew: Are, yep yep, and point on gerrymandering is always the both sides do it, which is true, right. And at great length, I have said this is a thing that both parties have done. My home state of Maryland, we've talked about it. But, when we truly have a situation where Democrats get in power, more often than not, they tend to turn these things over to bipartisan commissions, right?

0:29:56 Thomas: Guess my question then is this seems like relatively good news. And my impression from just absorbing the media ecosystem was that Democrats could likely lose the house just on the basis of gerrymandering alone. So was that wrong? Is this, did something change?

0:30:13 Andrew: Math that changes on what the New York State Assembly comes up with. So there will be tremendous amounts of pressure. All of the Uncle Franks of the world will be coming out to point out how ridiculous the New York state legislature map is. And you've just got to suck it up. You've just gotta be like, yep, agree I it's bad, but bringing a knife to the gunfight. You want bilateral And, disarmament, then, call up your Republican senators and start telling them to sign on board with the Democratic Voting Rights Plan, right? Like S-2377 provides that all states, will apportion their congressional elections by a neutral commission. So you want to end gerrymandering? Democrats have. Joe Manchin is a co-sponsor, right? We got a plan for that. Let's not pretend that retaliation in New York other than what it is, which is doing our best to hold on to what Republicans have done in North Carolina, Wisconsin, Georgia, and all the other seats we talk about.

0:30:45 Thomas: Yeah, there you go. And

0:31:16 Clip: What I hear when I'm being yelled at is people caring loudly at me.

0:31:21 Thomas: Now we've got a mailbag. I love it. Holiday mailbag of rights and wrongs, grievance, this is the airing of grievances. I got a lot of problems with you people.

0:31:27 Andrew: The airing of grievances. Yes. Oh.

0:31:33 Thomas: Oh, classic. Oh.

0:31:35 Andrew: George's dad is just, he's such a good character.

0:31:36 Thomas: So good so Jerry, Stiller, right? Ben Stiller's dad. Yeah, fantastic. Everything, everything he did in that show is funny to me. Like, just the tone of his voice is always just yelling a little little bit in a way that... Anyway, let's air our grievances or whatever.

0:31:38 Andrew: Yeah. Yes, Jerry Stiller.

0:31:50 Andrew: Why did you treat Buter? Anyway, baseball all right. This is a big one, and I really, really want to unpack it. Historian and Croatian Petra Paczek wrote in regarding an offhanded comment I said about Yugoslavia. I made one unambiguous error that needs to be corrected, and the rest of what I said deserves not to be summarized in a single dependent clause. And so I really, really appreciate the nuance and the depth here. So in episode 539, after discussing the Dan Tanas versus Dan Tana's case, Petra says, Andrew opined that Yugoslavia should never have existed and that post-World War II, everyone was like, stick all the Southern slobs in one country and call it Yugoslavia. However, it's not quite how it happened. First, unambiguous error. I did say World War II. This was off the cuff, not in the notes. If you go back and look at the show notes, I meant to say World War I. So yeah, that's just a factual wrong.

Continue Since the beginning of the 19th century, there were serious ideas about cultural and possibly political unification of various Slavs. Those ideas originated among the Southern Slav themselves, Serbs, Croats, Slovenes, et cetera, meaning, of course, the wealthy and educated elites. They were not imposed from the outside by the European powers of that time.

0:32:27 Thomas: Absolutely.

0:33:14 Andrew: On the contrary, the idea of Slavic unification was seen in opposition to imperial powers of that area, Austria-Hungary, Russia, the Ottoman Empire, and Italy. And my note here would be okay. But I think that that needs to be seen in light of post, the pre-World War I politics at that time, in which smaller national populations were sort of allocated around the map in order to preserve, right, the dominant theory was the balance of power theory, right? This was a post-Bismarckian world in which, you know, the idea was, you know, rather like today's FTC, right? Like, well, you're not going to stop huge companies from acquiring other huge companies. So let's make sure that medium-sized companies acquire other medium-size companies so that they stand as some kind of bulwark.

0:34:02 Andrew: And so I don't disagree with that comment that you can find those ideas of Slavic unification in late 19th century, early 20th century writings. But I think that that's sort of in light of balance of power realism. Continuing, Petra says, after World War I, the leading Slavic politicians were mostly in favor of creating Yugoslavia. Again, in opposition to other countries seeking to take over their territory. On their own, they would have been easy to pick off. I agree with that 100%. That was the point I was just making. Yugoslavia was created by those Slavic politicians in 1918. It was renamed Yugoslavia in 1929. It had the blessing of the world political leaders at that time, since Serbia was on the winning side, the Entente, and the Serbian government was in favor of creating Yugoslavia.

0:34:49 Andrew: Also, it was seen as giving the peoples the right of self-determination, as advocated by Woodrow Wilson. After World War II, the southern Slavs again decided to stay politically united, following their joint struggles against fascists of various kinds in World War II and their joint commitment to socialism and non-nationalism. After the fall of the Berlin Wall and the Soviet Union, various critiques of Yugoslavia prevailed, as well as rising nationalism among the peoples of Yugoslavia. They decided to separate, in some cases followed by war. Think you might put an asterisk on that, but okay. Some people today would characterize Yugoslavia as a country that never should have existed or that it was stifling the independent developments of its peoples. However, that is a fringe view, mostly associated with extreme nationalistic ideas. Historians agree that Yugoslavia was an indigenous Slavic idea, that it was probably in their best interest despite all the problems that it had.

0:35:40 Andrew: By the way, Yugo in Yugoslavian is the anglicized version of the Slavic word Zhugo, which means south, therefore Yugoslavia, meaning the land of southern Slavs. Linguists usually divide Slavic peoples into Eastern, Russians, et cetera, Western, Czechs, etetera, and Southern, Serbs, ettera. Interestingly, while they're Southern Slavs, Bulgarians at the time did not have substantial political ties with other Southern Slaves, so they weren't a part of Yugoslavia. And I would point out that Yugoslavia, the most prominent leader associated with leader of Yugoslavia from 1946 to 1980 was Tito, who was Croatian, who remains revered throughout of the area. And so this incredible rich history there. And I would say I certainly appreciated Petra's comments and the opportunity to correct the unambiguous error and also, you know, provide significantly more context. So thank you so much for writing it.

0:36:38 Thomas: Love those emails.

0:36:39 Andrew: Thomas, I got a Thomas was right for you. You, this, I have to tell you, and this person did not write back to let me know if I could use their name on the air. I received, I don't know, probably a dozen folks wrote in just to speak with warm affection about how you covered the Hillsborough tragedy. I got this email, which I thought was just fantastic. It says, it was really interesting to hear your brief references to the Hillsborough disaster in your recent episode. I really hope that you can find a couple of minutes to pay tribute to the efforts of the Hillsboro community since the tragedy, their reaction to the tragedy and what they have achieved is remarkable. Number one, community spirit. The Liverpool team, whose fans were killed, attended as many funerals as possible. The manager, Kenny Dalglish, managed to attend four in one day, which is remarkable support.

0:36:42 Thomas: Oh, yeah.

0:37:29 Andrew: Number two, they fought back against media lies about the fans. Four days after the tragedy, the Sun newspaper, that's a tabloid, ran a front page story falsely claiming that the fans had caused the tragedy and hindered the emergency response. The whole city, both Liverpool and their sporting rivals, Everton, immediately boycotted the paper. The boycott continues to this day, 32 years later, despite numerous mea culpa from the sun, now known locally as the scum. This boycott is so successful and widespread that it has affected the overall political views of the city. It is less Euroskeptic than comparable cities. Number three, change in stadia design. Hillsborough caused a review of stadium design in the UK and led to all major stadia having their standing terracing removed in favor of all Cedar Stadia. That's a permanent legacy. Number four, the community has fought and won legal reviews overturning erroneous early verdicts. The community had to fight against a legal system that was, and I suspect remains, massively inadequate in dealing with such occurrences where the authorities have caused deaths via their gross incompetence.

They've had to overcome the legal systems favorable to authority that was inbuilt, what I as a layman perceive as a lack of legislative provisions for such events, active smears against the victims, officials changing statements to suit themselves, et cetera, et cetera. After 27 years, the community managed to overturn previous verdicts to get a ruling of unlawful death for the now 97 victims. Belated criminal charges were filed against the officials, but those trials collapsed or ended in acquittal.

0:37:42 Thomas: Wow. Wow, yeah, wow.

0:39:03 Andrew: That's not a surprise. Inspired a local legend, the youngest victim, John Paul Gillooly, 10, had an eight-year-old cousin called Stephen Gerrard. He referenced the tragedy as motivation in becoming a footballer and is now a legend on Merseyside after 17 years with Liverpool and 114 caps for England. I have no idea.

0:39:18 Thomas: That's so cool. Don't know what

0:39:25 Andrew: Do you know what a cap is in football, in soccer?

0:39:25 Thomas: That means. Caps.

0:39:27 Andrew: No. Wow.

0:39:28 Thomas: No, No, I don't.

0:39:29 Andrew: No. No, I couldn't.

0:39:30 Thomas: Is that another word for goal?

0:39:32 Andrew: I wouldn't think so, but right.

0:39:32 Thomas: Seems like a lot. Caps.

0:39:36 Andrew: Everything else that seems like not enough, but so there's a little bit more here, but hope you have time to pay tribute to the activism of the remarkable group of survivors and victims' families. I think they won't get the justice they deserve, but what they have achieved is remarkable and inspirational. 97 direct deaths, 750 plus casualties, and other deaths by suicide from, for example, PTSD for the events of April 15th, 1989. So yeah, I thought it was a nice to expand on what you said.

0:39:39 Thomas: Yeah, I can't think of what it would be. I Yeah. I it's Just such a tragedy. Tragedy is the word for it. I mean, there's so much. I read that email. It's awesome to learn more about that. And I encourage people to watch the documentary, the 30 for 30 on it, but it's really grim. It's really depressing. Just seeing these people be lied about for years and years and I know that different people made efforts to fight against that. But from my understanding, the wider narrative was largely controlled by the police and by the media who did that reporting that you mentioned where they're blaming the victims and all that. That. And it's, it's really grim stuff, but you know, I'm glad also, it seems like there's lot of inspiration that was found within that as well, that the, uh, the writer references. So, what, what an email, another good, that two for two here with really interesting, educational, good emails.

0:40:05 Andrew: Yeah.

0:40:52 Andrew: And we're about to go three for three. This is James Rappaport. This is a follow-up on our discussion on abolishing peremptory challenges. Challenges and he notes that the Arizona State Supreme Court recently approved a rule petition that continues to draw the skepticism of our trial bar. As of the new year, attorneys in state court in Arizona will no longer be able to strike jurors by peremptory challenge. They may only strike jurors for cause and then only at the discretion of the trial judge. And so he wrote, he sent us a copy of an article that he wrote for his state bar magazine said, having chosen juries in both civil and criminal cases, I won't understate what an enormous change this is, particularly criminal cases where unanimous verdicts are required.

0:41:41 Andrew: Even in civil cases, a single juror can change the course of deliberations and the outcome, indeed, of an entire case. Given these stakes and the fact that fierce client advocacy is the lodestar in our adversarial system, convincing trial lawyers to give up their peremptory challenges is a tough sell. Their resistance is understandable, but all the same, I want to challenge all of us to consider the problems presented by peremptory strikes in the aggregate and beyond the confines of any one single case. I'm going to skip over a little bit of the article because all of it is really well done. But in particular, the history in which James notes, 1900 to 1930, essentially no Black jurors sat on Southern juries. To be sure, the litany of Jim Crow's abuses, poll taxes, literacy tests, property requirements, etc., likely played an enormous role in whitewashing American juries post-Reconstruction, but so too did peremptory challenges.

0:42:34 Andrew: One need only peruse contemporaneous practice guides for lawyers to see how racial and other prejudices contorted our jury system. As American attorney Francis Wellman advised criminal defense lawyers in 1910, quote, "If he's defending in a criminal case, he needs all kinds of men on his jury, old and young, rich and poor, intelligent and stupid, a German, an Irishman, a Jew, a southerner, and a Yankee.

He should mix them up all he can and let it fight, and let them fight it out amongst themselves and agree if there can, and agree if they can." As with the style at the time, Wellman made no secret of his racial prejudices, commenting on a recent murder trial, like in 1910, that the prosecuting attorney erred in allowing a quote, yeah, I don't know that I'm going to read the racial slur, allowing but an interracial person to remain on the jury. And again, this is in a trial handbook, right? Like how to pick your juries. That was open and notorious. And then despite the United United States Supreme Court decision in Batson v. Kentucky, which said that it was a violation of the Constitution to select a jury so as to exclude members of minority groups. That was 1986. remains the reality that peremptory challenges are used to around the Batson requirement all the time. Oh, no, I'm not striking. It just

0:43:26 Thomas: Yeah. God. Yeah,

0:44:01 Andrew: So happens that four of my five pereptery challenges were used on black people. So notes, we would be wise to remember Justice Scalia's words when confronting these fig leaves. What kind of fig leaves? We can't put the letter B next to the black jurors we strike, but we can strike them because of their long curly hair. We likely can't use pink highlighter for the gay jurors, but perhaps we can succeed in striking them because they watch RuPaul's Drag Race. And then the Scalia quote, a tax on wearing yarmulkes is a tax on Jews. Some will argue that without peremptory challenges, biased or otherwise unsuitable jurors might be seated simply by uttering the talismanic words we've all heard in jury selection. Yes, I can set aside my beliefs and be fair and impartial.

0:44:03 Thomas: Wow.

0:44:49 Andrew: It should be incumbent on judges is to conduct more searching voir dire and be more vigilant in screening jurors. This includes being willing to strike jurors for cause and taking counsel's concerns seriously. This duty properly rests with our trial judges, who are carefully vetted and selected for their independence and impartiality, and who are charged with ensuring that justice meted out in their courts reflect the total wisdom of our society. Counsel, on the other hand, a role to play that is biased, that is deliberately partial. They represent their clients. And so as a result, peremptory strikes, this is his conclusion, operate as a vestigial organ of Jim Crow long in need of excision. Their practice that operates systematically to screen minority jurors, particularly people of color. As for the argument that peremptory strikes are needed to balance juries, it should be obvious that a majority view cannot be wiped away by a limited number of challenges, and that a minority view likely can.

0:45:47 Thomas: That's interesting. I'm just trying to figure out if that was Scalia referencing RuPaul's drag race. That was, that's all I'm trying to to figure out.

0:45:52 Andrew: I like to think that Scalia was a, uh, a secret watcher, uh, of, of uh, of RuPaul's Drag Race. That would, no,

0:45:58 Thomas: No, I'm going to stop you right there. No, he wasn't.

0:46:02 Andrew: I anyway, thank you very much on that

0:46:06 Thomas: So yeah, Arizona then, they've abolished them. Wow, I wonder how many more.

0:46:09 Andrew: That they starting in 2022, so within a couple days of the show, um, we will have, uh, right, the states are laboratories of democracy. We will get to see how Arizona functions without peremptory challenges for its state criminal trials. And I suspect trial lawyers will manage to do just fine. I really have, I think, come around entirely to James's view on this point. And I think that it is just, you know, sort of lawyers trying to protect their privilege and it's pretty obvious that, you know. When you have a limited number. You can use that disproportionately to silence minority voices so I'm persuaded and, uh, and I'm glad that we're going to have like a scientific experiment that we can observe and, and see what happens in Arizona.

0:46:13 Thomas: All right. All Right, finally, Morgan was right.

0:46:56 Andrew: We got a couple of Morgans were right, or was, was right multiple times. As, um, predicted, a $750 million lawsuit has been filed against, uh, Travis Scott, uh, in connection with Astroworld and on the grounds that you and Morgan discussed on the show, right, which was that he is the organizer of the festival and was in charge of the security, vetting the personnel, uh, the layout, all of that, not on the basis of, you the sort of comments from the stage and the like. So that was filed. And, of course, Britney has been freed. Morgan told us that was going to happen and walked us through all the reasons why that was a great idea. So, bunch of pats on the back and hearty thumbs up

0:47:15 Thomas: Yeah.

0:47:43 Thomas: Yeah, we're going to have to, next time Morgan's on, we have to celebrate Brittany being freed a little, little more, you know, we haven't had her on since and that was you good news, you know, it's like we all kind of needed that in 2021, it was like, ah, yeah, good for Britney, you know, good for Brittany, she, uh, deserved to be freed from that, and she was, and, uh, thanks Morgan for the excellent coverage of all that.

0:47:48 Andrew: I agree. Agree yeah absolutely absolutely

0:48:03 Clip: And thank you, Let's go!

0:48:05 Thomas: And now it's time to think our Hall of Famers, our all-time greats, uh. Once a month for each person here on the Hall of Famous All-Time Greats. We're in our fourth quintile and, uh, Andrew, why don't you start us off?

0:48:16 Andrew: Right, thank you to stop calling him Uncle Frank, Nate Drex has to call him dad. Andrew the Lawyer was a jolly, happy soul, with a comedian on his side and a hole in his wall and his eyes set on his goal.

Well, I am getting that hole repaired, I will show you, not an MSNBC spy, wink wink, my fully stocked basement bar is your fully stock basement bar, for a Philly live show, platinum event, you pick what's on tap, Minneapolitan waiting for our live show in Minneapolis, civilpoliticsradio.com, Fridays at 7 p.m. Eastern on Valley Free Radio, Jeff Gelback, Betacon 7, John Bilderback, Jennifer Kratch, I just found out I've been the fourth quintile but the third quartile, I, I love, you know, once you guys have figured out which, uh, quartiles and quintiles you're in, I think you're gonna get back to some great, uh, engagement yep, my stepdaughter is a, a fabulous lesbian, and all I got was this Patreon name, well, you also got the shout out, Chris Waltrip, my friend's cousin mixed Coke with Cop Rocks and he died, Steven Balticate Sandoval, I wonder which quintile Mark Meadows is in, someone should text him to find out, Philip Kizer, and Andrea the Arbitrary and Capricious and

0:49:04 Thomas: We're gonna scramble it yeah, oh,

0:49:41 Andrew: Thank you all so much. Thomas, take it away.

0:49:43 Thomas: Thank you to Pain Strumpet Guy or Surgith, I've been drinking brake fluid, and I'm not, but I'm not addicted, I can stop whenever I want.

0:49:53 Thomas: Oh, that's fantastically dumb, I love it, give to modestneeds.org, then visit deepfakestop.com be afraid trump lost by the slimmest margin not not 7.5 million votes. Stupid system. Yep. Absion. Jonathan. No, your honor. I'm not a cat, nor am I a potted plant, but I am a karaoke legend, if that helps. Lord Kimbote. Milo Meadsong wishes all Stephen Breyers a happy retire now. No kidding. Get on that, please, Breyer. Not that, Chris Wallace. Join your labor union. Together we bargain, alone we beg. Thought of a clever name in the car last night. Now I've forgotten it. One of the first things Santa's helpers learned in school was the alphabet. Alfred Wallace, justice for Sergeant Javier Escueda, indicted for felonies in retaliation for whistleblowing police misconduct. Origins.

0:49:58 Andrew: Well,

0:50:46 Thomas: My witty names aren't original and my original names aren't witty. Thank you, the fourth quintile, best quintile we always say, I think. And we'll We'll be on that last quintile next episode. Thanks, everybody.

0:50:59 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

0:51:05 Thomas: Now it's time for t3be answer time oh my gosh Let's see how this went.

0:51:12 Andrew: So, Thomas, this question said a defendant is prosecuted for battery after being involved in a fight for a sporting event, the defendant claims that the victim started the fight and that the defendant was acting in self-defense, at trial the defendant called a witness that testified that the, the victim had a reputation for being belligerent and occasionally violent. The prosecution wishes to respond by calling its own witness that would testify that the defendant is known for his own hot temper and is feared in the community for getting violent over the smallest things. Is the prosecution's action proper? So Thomas, you did the thing I love, which was you eliminated both of the yes answers, A, yes, because when a victim's character is attacked, the prosecution can rebut with evidence of the defendant's same character trait

0:51:58 Thomas: I That is my favorite answer ever. Is that as silly as I perceive it to be?

0:52:02 Andrew: If we will get there B yes because when a defendant claims self-defense, he automatically places his or her character for violence and issue, uh, it's a good elimination on B, at least that's nonsense. And the automatically is, I think, the reason you pass that up, always a good sign. C, no, because the defendant never opened the door by placing his character for violence in issue. Or your answer, D, no because the prosecutor is limited to introducing evidence regarding the victim's character that contradicts the defendant's evidence. And I will tell you, that is absolutely absolutely the most sensible, well-thought-out application of the law to figuring out how this should be resolved. But unfortunately, it is in fact your view of the dumbest possible answer, A, that is the correct

0:52:04 Thomas: Oh, okay. I guess not. Oh, geez. Yeah. Okay.

0:52:54 Andrew: Answer. And this is, I will

0:52:55 Thomas: Well, this is just me quitting. All right. I've had a good run, everybody. Everybody, it's

0:53:00 Andrew: Tell you, I've talked about how there are a handful of things. The rule against perpetuities, in particular, the evidentiary rules on hearsay, in which would-be lawyers will read through and create flow charts and mnemonics and just try and remember all of the exceptions of how to work through. One of those incredibly notorious subjects is the introduction of character evidence. It is governed by Rule 404 of the Federal Rules of Evidence. And in particular, this is A2B2, and it says character evidence, so in general, prohibited uses. Versus evidence of a person's character, character trait is not admissible to prove that on a particular occasion, the person acted in accordance with that character trait, right? That's the carjacker willy, right, like, if you're accused of carjacking, I cannot introduce that you have a propensity for carjasking as proof that you likely engaged in carjaking in this particular instance, right. Right. So the general rule is you don't get to use character to prove somebody committed the specific offense.

0:53:23 Thomas: Me ripping up my law school, uh, degree, right? Now, quitting the bar I'm done. Prove

0:54:19 Andrew: And the reason for that, again, I like to view this as a subset of the of the, you know, kind of general probative versus prejudicial. The right, carjacker Willie, is sort of a fun example. But but think about, without this rule, you would be saying this is the kind of guy who beats people up. So, you know, he probably beat this guy up, right? And the law doesn't want you to be able as a prosecutor to go into court and say, I'm going to prove to you that this is the kind of person who beats people up and wants you to go to court and say, OK, but prove that he beat this person up.

0:54:51 Thomas: Prove what happened that yeah, okay yeah, it makes sense, it's a fairness thing, okay.

0:54:52 Andrew: Yeah. Yeah, So exceptions for a defendant or victim in a criminal case, the following exceptions apply in a a criminal case. So A1 was prohibited uses. A2 are the exceptions to those prohibited uses, A2A, a defendant may offer evidence of the defendant's pertinent trait. And if the evidence is admitted, the prosecutor may offer guidance to rebut it.

0:55:20 Andrew: B, subject to the limitations of 412, a defendant might offer evidence evidence of an alleged victim's pertinence trait. And if the evidence is admitted, the prosecutor may, one, offer evidence to rebut it, and two, offer evidence of the defendant's same trait. So it's just written into the federal rules of evidence that if the prosecution decides to introduce character evidence regarding the victim, uh, that the defense may come back with a, well, yeah, you too.

0:55:20 Thomas: That sounds, sounds like D? Yeah, oh my God, this this is a prank? What, what's the date? Is it, is it April first? What, what is this, Andrew? This is how do you make any sense of any of this? Is this just a 13th century two quoque whatever rule?

0:56:05 Andrew: This is, this is a, um, how do I make sense? Um, of, of this particular exception?

0:56:19 Thomas: Yeah, because it only makes sense within like specifically this crime. There's not a lot else that it makes sense with, right? I mean, if you're the victim of, you know, bank fraud, it's weird that you would ever be like, well, I can prove that the defendant is also a bank fraud person. You know, it doesn't really make sense. Like, when is this going to apply, except specifically, I guess, in this case where it's two people who got into a fight and so you're trying to prove, like, who's the more fighty of the two?

0:56:51 Andrew: I, a great question. So the, the advisory notes, right. Give us a little bit of hint here, but, uh but they're not super helpful. Here's, here's what the commentary on this rule says. In most jurisdictions today, the circumstantial use of character is rejected, but with important exceptions. One, an accused may introduce pertinent evidence of good character, character, often misleadingly described as putting his character in issue, in which the prosecution may rebut with evidence of bad character, right?

0:57:07 Thomas: Hmm. Okay.

0:57:21 Andrew: And that is the kind of thing we see all the time in, you know, when we're watching lawed-awful movies, right, and it is, you're on or the defendant wouldn't hurt a fly, oh really, right and then the prosecution comes back and, yeah,

0:57:24 Thomas: Yeah. Yeah.

0:57:35 Thomas: So and that and you're saying that just so I know this for next time, although I'm quitting the law, so I don't know what that means, but that you can't the prosecution can't proactively do that unless, you know, Rambo strikes first blood like somebody, you know, the defense does it first and says, we have a really good person here. They can be like, do we, though? And then but without that first thing.

0:57:40 Andrew: Yeah, right.

0:57:52 Andrew: That's right, that's right. Are you sure of that, do you? That's exactly right.

0:57:59 Thomas: So that I mean, that again, it kind of seems like D. but there's also this weird carve-out for when the victim's character is... I don't know. This is so weird.

0:58:07 Andrew: Well, and that is, So that was one, right? Which again, like I said, I agree, leads you to D. Two, an accused may introduce pertinent evidence of the character of the victim as in support of a claim for self-defense to a charge of homicide. An accused may introduce pertinent evidence of character of victim in support of a claim of self-defense. And the prosecution may introduce similar evidence in rebuttal of the characteristic evidence, or in a homicide case, to rebut a claim that the deceased was the first aggressor, however proved. And three, the character witness may be gone into who was bearing on his credibility. And this is a citation to McCormick on evidence, who's one of the longstanding treatise writers. This pattern is incorporated into the rule while its basis lies more in history and experience than in logic.

0:58:09 Thomas: Uh-huh. Wow. Yeah.

0:58:57 Andrew: An underlying justification can fairly be found in terms of the relative presence and absence of prejudice in the various situations. In any event, the the criminal rule is so deeply embedded in our jurisprudence as to assume almost constitutional proportion and to override doubts of the basic relevancy of the evidence. So there you go. We've been doing this for a long time, so what are you complaining about?

0:59:23 Thomas: So what? I don'T even understand that. What? Who's been doing what a long time?

0:59:27 Andrew: Oh, this rule has been in effect for a very, very long time. So what are you complaining about?

0:59:27 Thomas: Huh? Ah. But was that referring to this specific weirdo carve-outs or just the whole thing?

0:59:36 Andrew: Yep. Yep. This specific weirdo carve out and and in general, the balance you

0:59:38 Thomas: Oh. So this Is a screw-ball question, right? Cause this is, I mean, what, what do I, do I get any, uh, lawyer, lawyer? Andrew, do you have any sympathy here? What is this? Is this real?

0:59:51 Andrew: You get 100 percent sympathy here. This is just meant to test and to reward law nerds like me who, you know, 20 X years ago. Well, no, I would tell you absolutely, reading this question cold, I would have picked D as well, right?

1:00:00 Thomas: Yeah. Someone really memorized.

1:00:10 Thomas: Oh, okay. Well, you know what? That's, uh. The highest compliment you can give me. I appreciate it. I'll take it. So, and if this were Andrew scoring the bar exam, I would have scored this as a win. Uh, because, uh yeah, if you were just grading me, like without an answer key, I'm saying, you know, I would have gotten, would have got in the wind here. This is quite silly.

1:00:12 Andrew: It, yeah, I it's very, very silly, but it is kind of delightful that we're going to, you know, end out the year on a highly technical question that is very silly.

1:00:30 Thomas: Yeah. On a prank. Yeah. You, you pranked me. Congratulations. I do think we have one more on the year, but that's okay. We'll still, I guess that means you might, you have to prank me again on, on this coming episode. Well, who somehow got this right in some weird way? I'm, I'm baffled. I'm just dumbstruck. I don't even know. Who got it right?

1:00:55 Andrew: And This week's winner is Billy on Twitter, uh, at Billy OMVA, who writes, "T3 be seems like a Federal Rules of Evidence 404 A2B2, and if I'm wrong, blame Mitch Zamoff at Minnesota Law, who may be a law professor or a mentor or the like." So a highly, highly technical question gets a a highly technical answer, along with a disclaimer. I will tell you a lot of folks, uh, were with you on this one, right? Chose D, um,

1:01:19 Thomas: Yeah. I think it's telling that the one right answer you could find had nothing to do with any logic of the thing, or any explanation. It's just like, uh, found a weird rule or I know a weird role because of my law professor. It's a, so, okay.

1:01:31 Andrew: Yeah, No, It's just here's what the rule is. Yep. Yep. That's exactly right, so congratulations, Billy, on being this week's winner, and everyone, let's give them that. Is at Billy on the, b-i-l-l y-o-n-t-h-e on Twitter.

1:01:40 Thomas: Wow.

1:01:49 Thomas: And that's our show. Listening. Thanks Hope you had a great holiday weekend and on to the happy new year weekend. But we'll still be coming at you with new shows. So don't worry. No best ofs, no repeats. We'll see you for Rapid Response Friday.

1:02:04 Andrew: Can't wait.

1:02:05 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.

1:02:38 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com slash groups slash 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.