In This Episode
While the Supreme Court gets all the focus, lower federal courts are just as much in need of reform. Unfortunately, rigging the courts is a game the GOP knows how to play. In this episode, Leah talks with Rakim Brooks of Alliance for Justice, and Brandon Hasbrouck* of Washington & Lee Law School, about how federal judges get picked, how Mitch McConnell has played the long game, and how the Democrats need to move forward in the judicial selection process.
*Brandon also wrote an article called “Movement Judges,” which just came out in the NYU Law Review. Check it out for more on this subject!
Leah Litman: Dearest, gentle listeners, it is the first day of Strict Scrutiny summer school. School is now in session. Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We have a special episode in store for you today that is focused more on the federal courts outside of the Supreme Court and the judicial selection process that goes into picking them. And to help with those very important topics. I am delighted to be joined by two special guests. First up is Rakeem Brooks. Rakeem is the president of Alliance for Justice. He was previously campaign manager for the ACLU Systemic Equality Campaign. He also served as a member of the Biden-Harris transition team, a policy adviser for the Treasury Department during the Obama administration and as a fellow at the progressive think tank Demos. He also clerked on both the U.S. Court of Appeals for the Ninth Circuit and D.C. Circuit. Welcome to the show, Rakeem.
Rakeem Brooks: Thank you so much for having me, Leah.
Leah Litman: Our second guest is Brandon Hasbrouck. Brandon is an assistant professor of law at Washington and Lee Law School, where he has racked up awards for excellence in legal scholarship, faculty fellowships and teaching. Brandon clerked for Judge Sullivan on the District Court for the District of Columbia and Judge Gregory on the U.S. Court of Appeals for the Fourth Circuit. He is also the author of the article Movement Judges, recently published in the NYU Law Review that will help guide our conversation today. Welcome to the show, Brandon.
Brandon Hasbrouck: Thanks so much for inviting me to participate on the most awesome podcast. I’m a huge fan of Strict Scrutiny. If it wasn’t for it being 90 degrees out here in Virginia, I’d be rocking my Ivy centric scrutiny hoodie. Not that the listeners could see.
Leah Litman: Well, we’ll have to find a future location to make that happen. So this is a Supreme Court podcast, but we’re going to focus on the other federal courts, the lower federal courts for today’s episode. So what are the lower federal courts and what do we mean when we’re talking about all the other federal courts besides the Supreme Court?
Rakeem Brooks: So our Constitution only provides for the Supreme Court in Article three. The rest are created by Congress under various judiciary acts. And so the lower federal courts refer to the 13 appellate courts and the 94 district courts. And so just for context for folks, we often focus on the Supreme Court that hears less than a hundred cases a year at the district courts here, over 400,000 combined, and the appellate courts here, around 50,000 combined. And so it’s where most of the action is actually taking place.
Leah Litman: As those numbers kind of underscore. You know, one reason why the lower federal courts are so important as they’re going to be the ones resolving the vast, vast, vast majority of issues that make their way into the federal judicial system. Now, part of this episode is going to be backward looking. Part of it is going to be forward looking. But part of the backward looking piece is asking, you know, how we got the federal courts that we got today. And one place to start, which we’ve kind of alluded to on the podcast, is how former President Donald Trump really impacted the federal courts. So how did former President Trump influence or shape the federal judiciary?
Brandon Hasbrouck: So President Trump filled 30% of active appellate court seats with conservative ideologues. So not just that his judges were overwhelmingly white, 84%. I’m talking raisins in your potato salad. White Trump appointed no black judges to the federal appellate bench. Now, that shift in the circuit court matters. A lot of policy starts there, and it’s far more obvious when a circuit hits the tipping point. But considering how much the trial courts affect people’s lives, the 27% of district court judges who are Trump appointees will have tremendous influence, even more so because appeals of their cases have good odds of meeting with like minded judges.
Rakeem Brooks: Those are all really important points. And I would just emphasize, let’s not just call them Trump judges. They’re also McConnell judges. So in the final two years of President Obama’s administration, he was basically not allowed to put anyone else on the courts. And those seats were held up and held open by Mitch McConnell so that when Donald Trump, not just famously Merrick Garland, but so many other seats. Right. And so when finally President Trump took office and the Federalist Society and Mitch McConnell decided that this was going to be one of their major priorities, he was able to put President Trump in, Mitch McConnell were able to put over 226 federal judges in place, whereas President Obama in all eight years only put 320 judges on the federal court. So it’s just to show you that this was a concerted effort. It was strategic and planned out. And I’m sure Brand is going to talk even more about this. But it happened in concert with outside groups that wanted particular kinds of people to sit on the federal courts.
Leah Litman: It’s so important to underscore, because I think most people are somewhat familiar with Merrick Garland, the fact that Senator McConnell and the Republican Senate blockade is a precedent. Nominee to the United States Supreme Court. But what they might not appreciate is that blockade had actually been happening for a year before anyone really focused on it. With respect to all of the other federal courts, you know, the federal courts that resolve the vast number of cases today. I mean, you think about, for example, Justice Amy Coney Barrett, like there was a open seat on the U.S. Court of Appeals for the Seventh Circuit only because Senator McConnell held open the seat after President Obama named in Armani, who I believe would have been, you know, the first black woman to serve in Indiana on the seventh Circuit to that appellate court. And it’s because, as Rakeem you were saying, Senator McConnell was so aggressive in holding open these vacancies that President Trump was able to transform the judiciary and that he took credit for that in a clip on Fox News. So I was shocked that former President Obama left so many vacancies and didn’t try to fill those positions. I’ll tell you why. I’ll tell you why. I was in charge of the of what we did the last two years of the Obama administration. And I will give you full credit for that. And by the way, take a bow. All right. That was a good life. That’s kind of numbers wise. We’re getting a lot of judges who are appointed by President Trump. But on the qualitative side, the part that’s like harder to measure, you know, what kind of nominee is was President Trump appointing Brandon you mentioned like very white nominee is but what else kind of defined the Trump McConnell nominees?
Brandon Hasbrouck: So my piece that I wrote about, it’s called Movement Judges, and I know part of some of the response to the critique to the piece is, well, aren’t conservative judges from movements? And and I want to real quickly, this thing was grassroots movements, which I’m talking about from top down imitators. The difference between what I’m talking about with solidarity, with liberation is mass movements and judges out of conservative activist groups is a difference between the grass roots and Astroturf. So the NRA says it’s fighting for a constitutional rights, but at its core, it’s an industry group working to maximize profits no matter how much blood they cause. And no matter how often conservative groups put freedom in their names when they’re advocating to keep sections of the population marginalized, they’re not the least bit liberationist. Even when aristocrats successfully recruit foot soldiers for their class warfare campaigns, the organizations and strategies remain distinct from those of liberationist movements. For example, the Federalist Society may claim a large number of members 60,000, according to its website, but it simply is not a grassroots organization. It continues to take corporate funding and was initially financed by the conservative island group. The anti-abortion movement sprang from a top down structure. Paul Weyrich and Jerry Falwell only push its adoption by evangelical churches when they realize the segregation in private schools, while quite motivating to church leaders, would not drive parishioners to the polls. So the power dynamics of antidemocratic pressure campaigns, as well as their anti-democratic aims, necessarily separate conservative activist groups and their judges from the liberation of movements of marginalized and oppressed people that I advocate for in my piece.
Leah Litman: So, I mean, Ricky, when someone asks you like what kinds of judges was Donald Trump avoiding, like what? What do you say branded as?
Rakeem Brooks: Ah, I made the point that they were overwhelmingly white, but they were also remarkably young. And the only piece I would crow with a little bit of brandy is I totally agree. Maybe we should relabel what it means to be part of the movement. But as far as Trump and McConnell were concerned and Leonard Lear were concerned, these were their movement warriors. These were people who had demonstrated their bona fides to the Federalist Society and to the conservative movement more generally. And they were going to be the kinds of people who would usher in the vision of the conservative movement that had started as far back as Ronald Reagan, if not as far back as Louis Powell before he became a justice on the Supreme Court. So just to give some illustrations. Lawrence Van Dike worked for the Alliance Defending Freedom. This is Brandon’s point. They always know freedom in their names, but they filed amicus briefs arguing that college student groups have First Amendment rights to exclude people because of their sexual orientation. They also co-wrote amicus briefs supporting laws prohibiting abortion after 20 weeks and recommended that the state defend a photographer who refused to photograph a lesbian commitment ceremony. Similarly, Judge Now Kyle Duncan argued on behalf of marriage bans represented gestational age gestational parent who refused to give a former same sex spouse visitation rights are represented. Virginia schools that sought to prevent transgender students from. Using bathrooms. And then, of course, most recently now that we have people in place. Catherine Mizell was responsible for striking down the mask mandate. She is a district court judge. Only 33. Younger than I am. I consider myself young in the movement. But she she must really paint her bona fides. I mean, you know, whatever what was required to get her appointed to a federal court, I want to do for the left. But she has struck down a national mask mandate. So the reason now you’re sitting next to somebody on an airplane and they don’t have to wear a mask is because of a Trump McConnell judge appointed at the age of 33.
Leah Litman: And I think it’s important to underscore, you know, as you were saying, these were people who Donald Trump, Leonard Leo, the Federalist Society felt very confident were part of their movement. You know, people who had proved their bona fides to the movement and surprise, surprise, after they are appointed to the federal courts, you know, what kinds of decisions are they reaching? You mentioned rookie Judge Steward Kyle Duncan on the Fifth Circuit, who had done work for arguing on behalf of marriage bans and against LGBTQ equality. Well, he offers an opinion that says courts don’t have to refer to a transgender litigant according to their gender identity, their correct gender. And so the movement was able to identify the people who would reach these decisions and also get them confirmed in highly successful ways. And, you know, that’s just one of what I think is like a particularly pointed example. You know, here you have someone who really made a name for themselves working against LGBT equality. Like, what do they do when they get on the federal courts? Surprised they reach decisions that are antithetical to LGBTQ equality. Carl Supreme is. Now. We’ll take a quick break.
Leah Litman: Now. We’ll go back to the show. There are other examples of this phenomenon that they were, again, hugely successful in doing take any project out of the conservative legal movement. You know, I mentioned LGBTQ equality. Take deregulation. You mentioned the mask mandate. Right. Like not allowing a federal agency to provide for health and safety. Take the movement against abortion. You know, one of the reasons the United States Supreme Court had the Dobbs case, the challenge to Mississippi’s abortion ban is one of the Trump appointed judges. You know, Judge Jim Ho on the Fifth Circuit basically wrote op ed after op ed in the form of an opinion, begging them to overrule Roe and undo, you know, what he viewed as like the immoral apostasy of abortion. They were just extremely successful, again, across the board, basically taking all of the boxes in there. I realize Brandon wants to quibble with the term movement, but like their project, you know, identifying the people who would further those goals. So aside from just these decisions and I say just these decisions that have like hugely momentous consequences on people’s lives, like why else is it important? Like who sits on these other federal courts? Again, aside from like the bottom line conclusion of these decisions that they’re reaching that are going to be so impactful on people’s lives?
Rakeem Brooks: I think what we need to understand is that the judiciary I often try to give people a comparison that they understand. I say it’s kind of like the Catholic Church. Okay. Everybody focuses on the pope. It’s sort of mystic. You don’t quite know what’s going on inside of there. But it is a complex organization where the judges are constantly talking to one another about the shape of American law. They do so in judicial opinions, but that’s not the only place that they do so. They do so in conference. They do so at convenings, right all over the country. This is a professional body that comes together to decide what American law will look like, not just for a year or two, but over the long stretch. And so when somebody like Donald Trump and someone like Mitch McConnell to Brandon’s board are capable of putting 30% of the people who are going to be involved in that conversation on the court, we’re really talking about not just the bottom line, but all of these weird things that nobody knows anything about. You know, for the longest time, we thought starry decisis and precedent were going to be really important to a judicial system. How far we’ve decided, actually, when we don’t need it to be important, it’s no longer relevant in a variety of cases. Oh, we.
Leah Litman: Actually might be unconstitutional, right? Like.
Rakeem Brooks: It’s so weird, right? And so you’re you’re like, oh, there used to be this emergency docket that we had. And it was really solely for things like, you know, prisoner executions, things that have to happen relatively quickly or else someone will die. And suddenly all sorts of major decisions come out of the shadow docket. Right. That is all part of an elaborate process taking place inside of our federal courts with people who are talking to one another and not actually talking to the public. We only get to read their decisions. And I try to emphasize that’s a small part. It’s like mass on Sunday. That’s all you’re getting, right? That’s all the public is getting, but so much more is involved.
Brandon Hasbrouck: One thing that I would add on top of all those excellent points Kim’s making is that the judges that Trump appointed and how essentially it took over the federal district court in appellate courts are significant percentages. Like they decide the most important decisions that impact people’s daily lives. So we’re talking about the disparate level of sentencing, right? Granting or denying qualified immunity, omitting or excluding evidence, determining damages. Those all happen at the lower court levels. And that’s important because depending on what judge you have will depend on the type of outcome. For an example, Judge Emma Sullivan, who you mentioned that I clerked for, there was a case pending before him. This is when Jeff Sessions was the attorney general. And to many people, but two in particular, in this case, they were undocumented persons looking for asylum based on domestic abuse. And Jeff Sessions put them on a plane while the case was pending, where Judge Sullivan literally issued an order and said, turn that plane around, I’m going to hold you in contempt. Those are the judges we need on the bench, judges that understand the day to day consequences of policy and how it impacts in law, how it impacts people in tremendous and extraordinary ways.
Leah Litman: So I just want to unpack some of what both of you are saying as far as like what the lower federal courts are doing. Because I really like the analogy about how they are developing the law outside of opinions and talking to one another because. One of the ways I think about the federal courts is they are idea entrepreneurs. They will come up with a theory and that theory has the veneer of legitimacy and plausibility because it is coming from the federal courts. And all of a sudden that theory becomes part of the realm of possibility, is about what our law means, you know. Brandon, you mentioned the example that like in Judge Sullivan’s case, like one part of what our law is is that the government can’t deport asylum applicants who are victims of domestic violence, like while their cases are pending. But that’s an idea Judge Sullivan spelled out. But like, you know, there are other ideas floating around in the lower federal courts, including that maybe the administrative state can’t exist, maybe against story decisis, the idea that judges must adhere to prior precedent, that that might be unconstitutional. I could go on. But but these ideas are being floated and developed in, you know, what is of the Laboratory for American Law and part of the Laboratory for American Democracy like the lower federal courts. And one other thing that I just can’t help note as well, and I would definitely welcome your reactions and branded. I think this definitely connects to this idea of like judges as part of movements is, you know, you and I were professors. Like one thing we do is we help our students get jobs. And one job that is very attractive to recent law school graduates is a clerkship. You know, I mentioned your the both of your glowing credentials at the beginning and how you both had, like, very fancy clerkships. And that’s part of how we credential the next generation of leaders. That’s part of how we give them the experience and knowledge about how to litigate in the federal courts and the federal courts role in the system. And one of the things that federal judges do is they are picking who those people are. They are bestowing that credential on people. And the reality is, is that a lot of the judges who are nominated by Donald Trump are actively seeking to credential people whose ideology matches theirs. And that is, again, part of how you build. You know, it might be a top down movement, but like a network of people who have the knowledge, had the credentials and have the power to push the law further to accomplish their agenda.
Brandon Hasbrouck: Yeah, I completely agree. It’s a pipeline. You know, they have an extraordinary pipeline with the Federalist Society. And you’re right, professors are involved in that work and getting students certain credentials so that they’ll be considered, as Rakeem said, at 33, to be appointed by, you know, to the federal judiciary. Right. With very little experience other than those clerkships. And to your point about, you know, lower courts being laboratories, you’re absolutely right. And something you and I both write about, which is, you know, is actual innocence. Right. And we know Justice Gorsuch, for an example, he’s thinking about that while he was an appellate judge. We he truly believes that procedurally, actually innocent people that are sitting in prison should not have access to courts. So you’re right, an idea was developed there. It’s been advanced. It continues to be advanced. And now it’s going to be an issue the Supreme Court’s going to address in its next term.
Rakeem Brooks: And I only have one more thing. It’s this. I’ve actually been focused on this inside the alliance. How do we sometimes miss really critical moments when the right seems to be arguing with itself, but it has implications for everything else? And my big moment is the no more suitors. We heard that and we just thought they’re just crazy, right? What do you mean? No more Souter’s. We admired Justice Souter for so many of his decisions, but that was a rallying cry, a militancy placed inside of that movement that didn’t just affect the Supreme Court. It affected every lower court judge. And so when they said no more Souter’s, they meant no more district court Souter’s, they meant no more appellate court Souter’s. And we, as the left didn’t respond to that for the insanity that it was to say, do you mean no more independent thought someone has to be manufactured and do exactly what you expect them to do before they get to the court? And so what we have now is, to Brandon’s point, lower court judges who want to become Supreme Court justices or just want to rise through the ranks, signaling all the way that they are on the right side. Right. So there will never be a moment. I mean, they’re upset with John Roberts like this is Shelby County. John Roberts, do you know what I mean? I mean, one of the most conservative lawyers that we have ever had in the country to sit on the Supreme Court and they’re just like, yeah, I mean, soon is going to be no more. John Roberts.
Leah Litman: You are you. That’s the next rallying cry when that should be the Democratic rallying cry, right? Not a Republican one, and yet some.
Rakeem Brooks: And I just think we have to be attuned to all of these moments that are happening that indicate our kind of recalcitrance about the kind of people that they expect to be on the bench and the kind of things that they will do. Because what you’re describing, Leah, what you’re describing, Brianna, of this idea generation is it is all being tested out at various levels and it slowly starts to percolate up until it becomes the law of the land. And we wonder, how did that happen? Well, it’s because there are no more suitors and soon to be no more John Roberts sitting on the court.
Brandon Hasbrouck: Well, you’re right. You saw that in Justice Jackson’s hearings, too, with Republican senators, like like signaling, hey, if you want to be considered for this position, you better get even tougher on crime. For an example, put those people in prison for forever. You saw that rhetoric being used. You better believe that’s going to have, you know, a downstream consequences for people that are before conservative judges and they’re being sentenced.
Leah Litman: So maybe we can shift gears now to thinking about how Democratic administrations might be able to or have responded. You know, how they take these ideas that might be growing and movements and give them legs in the federal courts. So I guess let’s start a little bit, you know, before the Trump administration, in the Obama administration and ask like, well, what kinds of judges was President Obama nominating to the federal courts?
Rakeem Brooks: I always want to point out that President Obama operated under extreme stress and conditions that all that often limited his ability to do certain kinds of things. So appointing more people of color to the bench, for example, I’m sure would have been a priority. But it’s hard for the first black president to make that a priority in the way that Joe Biden has been able to. But that said, President Obama’s White House largely appointed people who were safe, safe in traditional American political senses. They were prosecutors, they were corporate attorneys. They were people known to the Democratic establishment as supporters in one way or another, often financially. That’s just the way this goes in America. Right. You can blame the Supreme Court for that, too. But so. Right. So they were in so many ways, not the kind of lawyers that Brandon is talking about. And I’m going to let him take it from there.
Brandon Hasbrouck: All right. So I’m a huge fan of President Obama, too, but let me be a little critical. So Obama failed to play the game when it came to restocking the judiciary. Full stop. Right. It’s not just that he lost is that he didn’t act like he even recognized the rules of engagement. His nominations looked like he was expecting the Senate on the 1970s to magically reappear and deliberate in good faith. But Republicans have been treating the courts like the key to gaining and retaining power since Reagan, as Rakeem noted, and the payoffs have been huge for their policies in raw power, like during the last two years. For an example, when Mitch McConnell has, he mentioned, stalled every nomination Obama made. Obama should have, as some argued, invoke the old maxim he remains silent when he has a duty to speak, gives consent. So the Senate had a duty to act on those nominations, whether to give or deny consent for Obama really understood how much of an existential issue the conservatives saw on the federal courts had become, which was a huge assault. He would have pushed the issue, swore in the judges and then dared the Senate to stop him, in my opinion.
Leah Litman: During the Obama administration, the president largely stuck with individuals who had the background that we have come to expect from judges, you know, prosecutors, corporate attorneys. You know, they were also on the slightly older side. You know, the first ten or so court of appeals nominees were over 55 and like median age. So just like no flashpoints, no nothing that, like, remotely pushed the envelope. And things have changed a bit under. Now, President Biden, you know, one of those things is, of course, professional background. There are now many more judges with a background in public defense and indigent defense. The president has also made remarkable strides in demographic diversity, gender diversity, racial diversity. Appointed, you know, the first openly LGBTQ woman to the Court of Appeals Age. You know, the average age is like around 50, I think, for a court of appeals judges. But there are still some differences in the profiles, you know, of who President Biden is nominating to the federal courts relative to his predecessor administration. You know, in the Trump administration, you know, age wise, that were like eight nominees under 30 for President Trump, I think handful of district court nominees in their thirties from President Biden pace wise, after Justice Jackson was confirmed, there were something like 19 current or future vacancies on the federal circuit courts, although they do seem to be moving. Very quickly to try to move those as fast as they can. But one thing that I’ve noticed is and and this is where your wonderful article, you know, comes in so much as they the Biden administration is not nominating people who at least on paper or even at their hearings, like present as what I would call movement, judges like the Trump administration was nominating people who litigated against LGBTQ rights, who litigated against abortion access. They were nominating people who litigated against voting rights. And there isn’t really a response in kind from the Democratic administration. And this is not meant in any way as a slight on the wonderful increase in public defenders who are judges or on other nominees. But it is a notable difference. And I know in your article, Brendan, look, you talk about how someone doesn’t necessarily have to be a movement lawyer or like litigating for a cause in order to be a movement judge. But do you see like a difference in like who these administrations are are nominating? And like, what should we kind of take from that?
Brandon Hasbrouck: Yeah, I do. Right. And so how I described what a movement judges, if you don’t want to read all 60 plus pages of the article, it’s a long one. Is a woman judges a jurors who understands that our Constitution contains the democracy affirming tools we need to dismantle systems of oppression and white supremacy and patriarchy, for example, and to achieve true equality for all people. That’s a movement, judge. Now, is President Biden appointing movement judges for my opinion? Not necessarily. Right. Let’s give credit. Okay. He is appointing people with backgrounds of public defenders, some labor and voting rights, civil rights attorneys, environmental lawyers. Right. But I think this marquee difference between conservative Federalist Society and Democratic appointees is that they own it. They claim essentially what they’re going to do and they don’t care. Stop me. For an example, there’s senators ask nominees. It was brown v board rightly decided they refuse to take a position on that. Think about that for a moment. Refuse. And no one’s like, oh, because they could claim originalism. And everyone’s a yes without anyone saying the problem of originalism. It has a gender, a reason. LGBTQ problem has significant problems in that methodology. But can we have a Thurgood Marshall today, get up there before that Senate? And will he even get out of the Judiciary Committee, Kelly, with his record? Right. Nowadays, we have to ask ourselves, we need a shift in our thinking about our strategies moving forward in appointing people, and not only that, backing them up. We saw in Justice Jackson’s hearing there wasn’t much support, there was not much support from Democrats based on her extraordinary record that, you know, would not have. Essentially, movement in the background is more traditional for a lot of reasons other than the public defender background. And look at that. Where were the defense?
Rakeem Brooks: I’d only add a few more pieces. Let’s just throw out some names for listeners so that they understand exactly what happening right now. So Dale Ho led the Voting Rights Project that the ACLU is a movement lawyer, has been appointed to it or nominated to a district court and is still pending and has been for several months. Nancy Obudu Southern Poverty Law Center 11th Circuit would be the first black woman. They’re still being held up. Right. What we have presently, I just sort of identify those because I want to expand it a little bit, Brandon, beyond what you’ve described. We don’t have a legal movement sufficient to then make sure that our movement lawyers become judges. Whereas if there was an article I wanted to write once that basically was going to show how most of the sitting Supreme Court justices had been in the White House Counsel’s Office or the Office of Legal Counsel previously, and therefore had come up through the ranks of the Justice Department in one way or another before becoming federal judges again to demonstrate their bona fides. Right. So that when the time came, everybody knew. Wink, nod, this is one of ours. And now we’re going to put them on the court. We have nothing comparable to that. The folks who go into our Justice Department are not part of our overall movement because no such thing exists on the left. There are plenty of us, the three of us on this podcast are really interested in what’s going on. My organization has obviously been trying to dedicate some energy. All of our you know, it’s one of our major programs. We’ve got another one. So I’ve always cautious, but we’ve dedicated major energy to trying to help the left understand how to pursue that. And after Merrick Garland, I think we see more energy on the left, but we have to be honest that it’s still not the priority for us, which is why when it comes to judicial nominations, I give Senator Durbin and Senator Schumer all the credit in the world because they move the tremendous number of nominees, as you’ve described. But they we still put them in the position of having to be quiet about Nancy Abudu and Dale Ho, because we as people who are on the left and who want to support the movement, don’t come to their defense as readily to Brandon’s point of really saying, these are our people and come hell or high water, they’ve got to get over the line because it matters in so many other ways that they can look each other in the eye later on as they sit, as I said, on federal courts and either are writing decisions or are in those backrooms, having conversations, trying to figure out where the law needs to go to address all the systemic issues that Brandon brings up in his article.
Leah Litman: That’s such a nice point, because I like it for two reasons. One is it gives us something to do. I think sometimes people listening to this podcast are like, Man, we are fighting. Like, What is there to do? And like one thing that is easily overlooked is call your senators and tell them you care about nominees. Tell them I want you to show up to these hearings. Tell them this nomination like that matters to me, because what the legal right has built is an infrastructure that can help move votes based on judicial nominations. And that’s something that needs to be built from the ground up on the left with the support and guidance of organizations like Alliance for Justice, as you know, Rakeem you’re describing. But we also lack the infrastructure within the legal profession or academy of people coming to nominees defenses and putting there, for lack of a better word, like NEC out there or like their credibility on the line in the same way that like so many on the right have been able to do, like there are so many organizations on the right that range from think tanks to cause organizations that are staffed by people who are constantly engaged in a social media and a public relations campaign, you know, for their nominees. And there isn’t an infrastructure like that on the left that is as well fleshed out. And these are, you know, again, they feel like small things, like why would it matter? But I do think like beginning to register with Democratic politicians that people on the left care about courts and the judges they want are judges who understand the potential for democracy and civil rights and equal justice. Those are things that matter. And you know that that will be a longer term project. But but it is hopefully one, you know, we will be able to achieve.
Rakeem Brooks: Can I just say one hopeful, hopeful to that? I think a way of building that right now in this present moment where it really does feel quite depressing is that we need our people, whoever wants to be a federal judge, there should be a similar test where you’ve got to say Dobbs was wrongly decided and the Constitution does protect a pregnant person’s right to end their pregnancy. So in the 14th Amendment, we don’t care what the Supreme Court says. That is actually what the Constitution upholds. If we can’t have that kind of stridency on our own side. And it’s always about, well, we just want a fair and impartial court. We will never get anywhere in protecting our vision of the Constitution, which is superior to their vision of the Constitution and the accurate version of the Constitution. But we never sort of, Bill, take these moments. We just sort of say, well, the courts decided it. And therefore, starry decisis, we’re good lawyers. We have to apply that. They don’t do that at all. When they fight a decision that they think is wrongly decided, they trumpet that every. Whereas loudly as they can’t. And then when they become federal judges in one way or another, they do everything to crib the interpretation of anything that they disagree with. Right. It suddenly becomes smaller. The right becomes minuscule to the point where you sort of like, is there really a right to counsel? Yeah. Is there a right. A right to confront you? I mean, you just go through all these rights that we thought were firmly established. And you look at them in the Fifth Circuit, in the 11th Circuit, in places where conservatives really have a stronghold and those rights have been strangled, they basically are nonexistent.
Leah Litman: [AD]
Leah Litman: One thing I encourage young lawyers to do is it can seem scary to put yourself out there. And I don’t fault or judge someone who says, like, I really want to get that job and so I’m not going to put myself out there. But then I ask them to think like, look, if every smart person who values things like democracy and civil rights and justice did that, like, would we move the ball at all? Like, that’s like one thing I have committed myself to is like basically always being willing to like be the person who was out there, even though I make myself increasingly seem stranger, less confirmable, like you add it just because, again, I feel like if there aren’t people who are on the left who care about these things, that are willing to put themselves out there and say no, I actually think it is a tragedy that people in Texas have not been able to get abortions since September. Then where will we be like, what can they do? And we say nothing in response. And anyways, I.
Brandon Hasbrouck: Agree and it is turning really quickly. So I agree with Ricky. I dream of a day though in a confirmation hearing when they’re like, What kind of judge will you be? I want the response to be, I’m going to be an abolitionist. I believe in the power of 13, 14th and 15th Amendment. And I want that the way conservatives say I’m an originalist and I want the support necessary by our politicians, by us to say yes, that’s the vision in the Constitution that we see and that would benefit all of us. And another quick point to Rahim’s I still hold fantastic. It’s worth noting about the conservative group spending to essentially tank his candidacy. It’s hundreds of thousands of dollars. Right. So that gets to my point about could have Thurgood Marshall get through our confirmation process these days. Right. Based on the type of money that conservative organizations are spending like that is a scary sight. The good news, I think McCain’s right, is we’re starting to develop some organizations. Right. You see the man justice now countering, throwing more money at saying no deal. It will be fantastic for all these reasons, voting right, so on and so forth. So I think that is important for us to develop kind of the infrastructure necessary to support bold thinking.
Leah Litman: Continuing along a possibly optimistic note, which is odd for this podcast. And we can talk about some of the examples of movement judges, Brandon, that you gave in your article, people who are already on the bench. Again, just to give some people a sense of, you know, the kinds of judges that were kind of referring to in the abstract.
Brandon Hasbrouck: Awesome. So my article calls attention to lower federal courts and state courts. We cannot forget the state courts. They matter just as much and identify the judges that exemplify the qualities of what I say as a movement judge. For example, Justice Anita Earls and a North Carolina Supreme Court. She supported prosecutors addressing race in their arguments when white defendants claim self-defense based on their fear of black people. In a concurrence in a case called State V COPLEY Judge Roger Gregory sits on the United States Court of Appeals for the Fourth Circuit. Full disclosure, I did court for him. He rejected ostensibly colorblind reasoning that would have given police nearly unchecked discretion as to who to search in a case called the United States v Black. And then one of my all time favorite judges who I did not clerked for, Judge Carlton Reeves, other southern district of Mississippi. He eviscerated the doctrine of qualified immunity, even while granting it through a discussion of how please kill innocent black people with impunity in a case called Jamieson v McClendon. Now, I should note that Judge Reeves also wrote the district court opinion in Dobbs, holding Mississippi’s anti-abortion law unequivocally infringes on the 14th Amendment due process rights of woman, but his opinion does more. Any judge reads Raise this question to the state of Mississippi Why are we here? Judge Reeves states, and I’m quoting now The only other explanation in its brief is that the state is making a deliberate effort to overturn Roe, an established constitutional precedent. With the recent changes in the membership of the Supreme Court, it may be that the state believes divine providence covered the capital when it passed this legislation. Time would tell, unquote. He then goes on to say this and this is what I’m talking about movement judges. This is judicial solidarity. Quote, The fact that men, myself included, are determining how women may choose to manage their reproductive health is a sad irony. Not lost on the court. As Sarah. Weddington argued to the nine men in the Supreme Court in 1971 when representing Gene Roe. A pregnancy to a woman is perhaps one of the most determinative aspects of her life as a man who cannot get pregnant or seek abortion. I can only imagine the anxiety and turmoil a woman might experience when she decides whether to terminate her pregnancy through an abortion, unquote. Judicial solidarity. We need more judges like that.
Rakeem Brooks: That’s hard to follow. And so let me just supplement it just a little bit.
Leah Litman: Judge Reeves is very hard.
Rakeem Brooks: Judge Reason.
Leah Litman: Barred, part reenacted by Brandon.
Brandon Hasbrouck: Hazard.
Rakeem Brooks: I say that was so good. I had chills. I was like, This is excellent. But let me add to this, because we’re talking about movement building. The clerks that helped Judge Reeves write that opinion. We need to be looking out for them. They need to be receiving important positions in various places in government, both state and the federal government. Right. That’s how these movements are built. One of the things when I took over as president of the Alliance for Justice that I told my predecessor that we had underplayed is we talked about all the judges we helped to confirm, but we didn’t talk about their law clerk networks. Because to Brandon’s earlier point and to your point, Leo, the reason these jobs are coveted is because they place you among the legal eagles of the profession. You get rare and distinguished positions after you clerk for federal courts. Right. All both of you are law professors. And here I am at 35 running Alliance for Justice. Part of that has to do with these clerkships that we get and how they allegedly distinguished us relative to our peers, whether or not that’s true. What I want to see is not just more movement judges, but there are law clerks being empowered to act in the ways that you’re describing because that helps to deal with some of the problem you were describing, Leah. People can put their sort of they’re not really putting their necks on the line, but I know it feels that way. So I hear you. I’m a little more critical today than you are, maybe because I’ve closed into some of my classmates. So I’m just like, why are you doing this now? Explain it to me again. But but my point is, if we say go clerked for these particular judges in the same way that the right does, and then we move them throughout the system and say, here are various positions. You should hold an o l continuing to advance that exact opinion that shows that qualified immunity should be limited, or that men have no right to really opine on whether or not a pregnant person decides to have an abortion. Those are the kinds of things that build movements. But where we sort of fail is whoever Jeffrey’s clerks are. And I know they wouldn’t take credit for any part of the opinion, but I’m sure they worked hard on it. Right. We sort of let them go off into the world and just sort of do whatever they’re going to do. And I’m sure they’ll follow great paths and I’m sure they’ll become distinguished in their own right. But we’ve got to also network those clerks and help them to understand you have allies in other parts of the federal judiciary who are doing similar kinds of work. That’s what the right has been doing for over 40 years, and now we see the results of it.
Leah Litman: So Brandon, with an eye toward hopefully having some Democratic officials in our listenership, what would you encourage people to do if they want more movement judges like both kind of short term and then also longer term?
Brandon Hasbrouck: Sure, it gets it. Akeem’s comments is third party movement organizations with just armies of fantastic lawyers out there just willing and ready to serve if asked. Right, and if pushed. So like Elba, after an example, he has an extraordinary amount of this brilliant lawyers, you know, Natasha merrill that’s got a Judiciary Committee. She’s going to be bringing not only on voting rights cases, but have these cases in criminal, you know, legal system cases. She’s going to be amazing. And we know several people that are academics too, that do part time. Daniel Herrera, for an example, amazing and young, right? Alexis Hoag Amazing in Young to have all the qualifications and experience. So we need to not only encourage these people, but we also got to create a process that they are being selected. And what I mean by that is this is as much as Biden can be critiqued about the type of judges and give, you know, a lot of credit to some of the judges he’s appointed so far, too, is our senators are also kind of creating some issues that we haven’t discussed. And so senators have this vision of what a judge is that is is absolutely warp older white prosecutors. Right. That is their vision that you have to kind of have a conversation. So full disclosure to the listeners, I was a finalist for the fourth Circuit seat for Judge Keenan, and I was interviewed by Senator McCain and Senator Warren. Great conversation. They asked me these facts. What kind of judge will you be? And I was honest. I would be an abolitionist, a movement judge. Here’s why. Here’s my thinking of the Constitution. And you could tell right away, you know, they wanted a different answer, right? They wanted to answer that. Be receptive to their moderate colleagues, to their conservative colleagues. They didn’t want that thinking. And more importantly, they didn’t want any record of that thinking. And that is. Equally as important. And we, you know, supporters of these movements need to be able to meet that narrative, right. To say, no, no, it’s okay that they advocated these types of causes for racial justice, for an example, and that’s fine. And we’re going to support them in these confirmation hearings.
Leah Litman: I would love to welcome both of you to offer any kind of concluding final thoughts you might have on the lower federal courts, movement lawyering, movement judges, what people who care about the law and the left, you know, should be doing now.
Rakeem Brooks: Really appreciate the opportunity. I think this conversation is exactly the kind of conversation we have to keep having more publicly. I sometimes remind folks that there are three legs to this stool that we call a democracy, right. And we haven’t been focusing on one of them. That’s why the stool is falling down. That’s exactly why the stool falling down. And so we have to make sure that the president and the Senate confirm as many judges as are humanly possible this year. There are over 120 federal vacancies still. So if you believe that all of these causes that you fight for in the legislature and then through executive advocacy or administrative advocacy are important. You have to be focused on the number of judges that the president gets through this year. And hopefully, if Democrats retain the Senate and we’re able to put more judges through, then it has to be one of the primary missions of this administration and of the movement more generally. And mind you, we’re at I hope I hope we are at the bottom. We’re at the bottom. And we could only go up. That’s how what I tell my staff every day to try to give them some hope. We’re at the bottom. We got to keep moving up. But it starts today and it starts with us being really intentional and focused. And everything that Brandon said, as far as I’m concerned, is exactly right. We want networks of lawyers who are committed to progressive values, being nominated to federal courts and finding themselves in various places in the in the administrative architecture, whether it’s the Justice Department or other places in government. One thing I’d know is I also tend to think a lot of our movement lawyers are not found in federal clerkships. They’re found in fellowships. That’s right. And that’s one of the major mistakes that we’re making as a movement right now. And so to all the young lawyers and law clerks and law students who are going into fellowships, just know alliance with Justice has got your back. We’re coming to help.
Brandon Hasbrouck: That’s awesome. That’s tough to follow. And I guess my concluding comment to the listeners and hopefully some words of encouragement and a call to action is judges matter in our current system of congressional inaction, where our votes are suppressed, where women’s rights are under attack, where police continue to kill black and brown people, where the Second Amendment is more important than our children and grandmothers and everyone in between, where violence and crisis and the list goes on. Our focus needs to be on the courts.
Leah Litman: Well, thank you both so much for your time. We really sincerely appreciate it. And we hope to have you back in the future.
Brandon Hasbrouck: Thanks so much, Leah.
Rakeem Brooks: Yeah, thank you both.
Leah Litman: Again, that was Rakeem Brooks of Alliance for Justice and Brandon Hasbrouck from Washington and Lee Law School. We’ll link to their work in the show notes, so be sure to check that out. A couple things before we go. First, we wanted to wish Marc a happy 60th birthday. Thank you for listening to the show and introducing your daughter Sheila to the show as well. Happy birthday to you, Marc. From those of us here at strict scrutiny and from Sheila as well, I also wanted to give you a heads up about an awesome new episode of another cricket show. I’m sure you’ve heard the word metaverse everywhere, but what exactly is it? This week on Offline, John is joined by pioneering theorist and venture capitalist Matthew Ball to discuss his new book, The Metaverse, and how it will Revolutionize Everything. They break down what the metaverse is and how someday it may be the gateway to online experiences and underpin much of our physical world. New episodes of Offline with Jon Favreau drop every Sunday wherever you get your podcasts. Don’t miss this one. Strict Scrutiny is a Crooked Media production. Hosted and executive produced by me Leah Litman, Melissa Murray and Kate Shaw produced and edited by Melody Rowell, Audio Engineering by Kyle Seglin Music by Eddie Cooper Production Support from Michael Martinez, Sandy Girard and Ari Schwartz. Digital support from Amelia Montooth and Summer Internship Support from Anoushka Chander.