Leah, Melissa, and Kate wade through more election fallout, including President-elect Trump’s proposed use of recess appointments to jam his cabinet picks through. Also covered: this week’s SCOTUS arguments, the tryhards auditioning to be Trump Supreme Court nominees, and why everyone should shut up about Justice Sotomayor retiring.

 

TRANSCRIPT

 

Show Intro Mister Chief Justice, may it please the court. It’s an old joke but when an argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

 

Melissa Murray Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it where your hosts. I’m Melissa Murray.

 

Leah Litman I’m Leah Litman.

 

Kate Shaw And I’m Kate Shaw. And just to be clear, we’re all still reeling from the results of the presidential election, and we are somehow still waiting for results in key congressional races. But, we are Supreme Court podcast. The Supreme Court has been at work, which means that we have too. So here’s what we have in store for you on today’s episode.

 

Melissa Murray First up, a few dabs of court culture and breaking news that will include covering the ongoing auditions for the role of America’s next Scotus justice, as well as the firehose of appointments news that we’ve been handed, as well as a few other things. And then we’re going to recap the November sitting. But first, let’s turn to the auditions. Leah.

 

Leah Litman Well, with Trump 2.0 administration on the horizon, the auditions have begun for those ambitious individuals seeking Supreme Court nominations. And specifically within one week of the election, one judge, Jim Ho, decided to just get out there and say, you know what, that whole birthright citizenship thing, it might be wrong.

 

Kate Shaw And since there was no pending case in which he could opine on the topic, he offered these views in an interview with the Volokh Conspiracy, specifically conducted by law professor Josh Black men. And he proclaimed in that interview that maybe just four Fonzie’s as my 12 year old would say, there’s no entitlement to birthright citizenship in case of war, an invasion that is an invading occupying army that gave birth to children. Those children might not have a claim to birthright citizenship.

 

Leah Litman But then he proceeded to apply this rule to quote the children of invading aliens and quote, who he likens to be clear to an invading, occupying army. This claim is upside down. Ridiculous Gross and not remotely serious. It is theater, but this is the kind of law that’s air quotes law that gets you a judicial appointment in the Trump administration, or at least you think would get you a judicial appointment in the Trump administration. At an earlier point in time, Judge Ho had actually defended the Supreme Court’s decision on birthright citizenship. Wong Kim Ark. That was way back in 2011. Obviously that had to change or at least be ridiculously manipulated so as to grease the wheels for the Trump administration to treat the children of unauthorized migrants as non-citizens. But he didn’t stop there. He also found a case in which he could offer up some views. He released an opinion where he wrote separately to decry how, quote, Our culture increasingly accepts, if not celebrates racism against whites and quote, he is working hard for that money.

 

Kate Shaw And that was one quote. But there were a number of similar other instances throughout the opinion.

 

Speaker 2 He’s like Christopher Roofo. It’s all over.

 

Kate Shaw It’s a lot, but we’re not going to objecting to all of it. So shifting from Judge Ho, who got an early start in the competition for America’s next Supreme Court justice, and maybe he does have an early lead, but not everyone.

 

Melissa Murray It’s early days, Kate. Anything could happen.

 

Kate Shaw Anything could happen.

 

Melissa Murray Things are moving very quickly.

 

Kate Shaw We don’t know just how bad it could get, although we’re beginning to get a sense. But specifically on the Supreme Court nominee front. Not everyone is conceding that ho has won the race just yet. So Judge Justin Walker on the D.C. Circuit decided to ask whether the government could say that courts couldn’t reopen final January 6th cases. Let’s play that clip here.

 

Clip I wonder. You know, there’s been and I’m expressing no opinion of whether this is a good thing or bad thing. But there’s been talk in the news that there could be a reconsideration of the January 6th prosecutions if there is a new administration. Let’s imagine that that is the case. Would it be appropriate for the U.S. attorney’s office under orders from the attorney general to file a rule 48, a motion in all closed January 6th cases that are post appeal and tell the district court you have no discretion whether to dismiss these cases.

 

Kate Shaw To be clear, this was not a January 6th case. This was just a case in which someone had to get a word in edgewise about the Sixers and Justin Walker was there to do it.

 

Melissa Murray So those are the stakes of who will be America’s Next Top Supreme Court justice. But we actually have some real justices who are on the bench and folks have some things to say about them. So in the bucket of more of this bullshit, I bring to you this as the Democrats do their election postmortems, some folks are reprising an argument that we heard earlier this year. And that, of course, is the argument for Justice Sonia Sotomayor to resign her seat so that President Biden might replace her with a younger liberal because Republicans always play fair. And RBG and Amy Coney Barrett and obviously. Right, of course, again. Are we really doing this again some more, Apparently. I get the anxiety around all of this. But one, Justice Sotomayor is not the same as Justice Ginsburg. Justice Sotomayor is 70 and is a type one diabetic, which she has been since she was a child. But Justice Ginsburg was an 81 year old three time cancer survivor. Like just not the same and not fair, I think, to treat them the same also. Has anyone looked around at the Senate? In what world do you think that newly independent Joe Manchin and nominally Democrat Christensen will vote for the Chosen as a replacement, even if the Republicans would actually allow that nominee to have a hearing and a floor vote as they prepare for the regime change?

 

Leah Litman Well, and just to pipe in here like this ship has sailed.

 

Kate Shaw Yeah.

 

Leah Litman Right? Like we have less than two months, right? Or about two months before the Trump administration takes over. There are all of the lower court nominees who have already been nominated. They need to be confirmed now. And yes, Democrats control the Senate, but just do that, right? Like if Justice Sotomayor was going to retire, it would have already happened. Maybe it already should have happened. But like, again, that’s over. Focusing on that now is just not productive.

 

Kate Shaw There’s no way she would get through and it would eat up all of the Senate floor time so that none of the lower court judges, which we should say there has been movement this week. They actually have gotten a couple of judges confirmed. But they really do need to stay very, very focused on it to get through the backlog.

 

Melissa Murray So those are very real practical concerns. But since I wasn’t on the podcast last week and couldn’t register my own grievances about the election, I’m going to take this opportunity to go deep. Let me tell you where I am. Yes, I hear all of you people singing this particular chorus, and I recognize that the court being hopelessly imbalanced for the foreseeable future is your Roman Empire. But if that was the case, then why didn’t you really, really do the work of convincing folks to vote on the court and not the price of eggs? And I just want to point out, over 50% of white women voted for Donald Trump. Over 50% of white women literally could not give a fuck about the court when it was go time. And so you’re going to have to miss me with this new logic about how one Latina is going to give up her job to save us all. Because if this was so important, somebody needed to have stepped the fuck up like two weeks ago. And that is where I’m ending this rant. Thank you.

 

Kate Shaw You can continue the rant. We got to rant. Okay, so if you got more work to do, let it out again.

 

Leah Litman Yeah. I feel like we’re going to be working this out for a while.

 

Melissa Murray I left the country last week.

 

Kate Shaw That was a good idea.

 

Leah Litman Yeah. Yeah. It was it?

 

Melissa Murray I like. Yeah, it was just a weekend away. It was preplanned before we knew that the regime change was happening. But I did not enjoy my time abroad because I was just really sad.

 

Leah Litman Sorry.

 

Melissa Murray It’s okay.

 

Leah Litman Even more an addendum to the calls for Justice Sotomayor to retire.

 

Melissa Murray This one’s funny.

 

Leah Litman Even stranger calls for President Biden to nominate. Wait for it Vice President Kamala Harris to Justice Sotomayor seat. I don’t even know where to begin with that. So I’m just going to state it and stipulated as ridiculous.

 

Kate Shaw It’s a weird thing the Democrats do you remember that there’s. Minute when folks were trying to get Obama to put Hillary Clinton on the Supreme Court.

 

Leah Litman Like it’s like, you know what? Here’s a gift, right? A consolation prize for losing a significant election.

 

Kate Shaw Right.

 

Leah Litman You get a lifetime seat on the Supreme Court. What? What?

 

Kate Shaw So, no. Although I have to say, I do find kind of amusing the sort of related suggestion that Biden should resign to give Harris the chance to be the 47th president for a couple of months, purely for the pettiest reason that doing so would force Trumpworld to ditch all of their 47 gear and start afresh with 48 because she would be the 47th president shouldn’t do it for that reason. Not a good idea on the merits, but I do kind of like the pettiness of the suggestion. And since we are in the mode of finding joy where we can, I thought I would share it.

 

Melissa Murray You know what? Joe Biden is a Scorpio and they are a petty, petty people. So like, I think this probably did get us.

 

Leah Litman More evidence of that.

 

Melissa Murray No. He’s a petty person, I think. I am not mad at it either. I think this probably got a good airing was probably like, you know, there were good reasons not to, but I’m pretty sure this got a good airing.

 

Kate Shaw He was much too gracious and insufficiently petty, in my view. When Trump visited the White House for their fireside chat last week.

 

Melissa Murray That’s true. I did want to see a little more petty, but he’s been petty elsewhere. Like. Yes, with the White House press corps. Like he’s pretty petty up here. Do you see a couple of guys?

 

Kate Shaw That’s true.

 

Melissa Murray I appreciate it.

 

Melissa Murray More of that. More of that lame duck energy. Joe Biden.

 

Melissa Murray Leaving aside those halcyon dreams of Kamala Harris, US Supreme Court Justice Sotomayor in retirement. Let’s focus on the Trump nomination. So as we all begin to prepare for Trump, the sequel, Bigger, Better, Better. There has been some trickling information about who is actually going to staff this next administration. And we’ve also learned that President elect Trump has developed a newfound interest in recess appointments. So let’s start there.

 

Leah Litman Should we explain what recess appointments are?

 

Kate Shaw Sure. So a couple of constitutional provisions are relevant here. Article two, Section two provides that the president shall have power to fill up all vacancies that may happen during the recess of the Senate by granting commissions which shall expire at the end of their next session so you can make a recess appointment. And it can be good up to like a little under two years. So there is a possibility that is a thing that has happened. Actually, the Supreme Court until a few years ago, had never weighed in on this sort of obscure provision of the constitution, did hold in a very fractured opinion that the president does have the power to make appointments and that they don’t just have to be in the big recess between congressional sessions, but actually can happen during recesses that arise during a congressional term. But the recesses have to, you know, be not super short. So there’s like a ten days ish kind of limit that set forth, in the Breyer opinion for the courts of the case called Noel Canning. So that’s that’s kind of the background. Presidents can make recess appointments there is that was a very divided opinion by a very different court. And so there are some questions about the current status of that opinion. But for sure, presidents have, under current Supreme Court precedent, some power to make recess appointments. So bypass the Senate and put people in directly for a limited term. Okay. So that’s the reason.

 

Melissa Murray Can they fill their entire cabinet with recess appointments?

 

Leah Litman Well, okay, let’s let’s get to other possible limits on these recess appointments before we go to the nuclear option.

 

Kate Shaw This is another nuclear option, too. So this is a separate provision also in Article two. But this is the next section, Section three, that says the president there’s the part about he gives the Congress information on the State of the Union. He recommends measures for them. And then in language that has not really ever been tested, the Constitution provides, quote, he may and that’s the president on extraordinary occasions convene both houses or either of them. And in case of disagreement between them with respect to the time of adjournment, he may adjourn them to such time as he shall think proper. Okay. So we are hearing and this is actually a thing that Trump floated even during the first Trump administration, that he may make recess appointments of members of his cabinet and that he actually may, if the Senate won’t agree to go into recess, voluntarily seek to use this really never used constitutional power to force an adjournment and then treat that adjournment as a recess during which he can make recess appointments, maybe up to and including his entire cabinet. And we will detail who is in that potential cabinet in a minute. But that is the background and it’s all being floated. And I find it an unbelievably terrifying possibility.

 

Melissa Murray Stares in the Reichstag fire, right?

 

Kate Shaw Well, figure the different ways to undermine the legislative body seems to be a thing that aspiring autocrats.

 

Leah Litman One is by like suspending them entirely. But I guess, like I want to be clear that this would require the consent or assent of the Republican House or Republican Senate, because this never before tested adjournment power only kicks in in case of disagreement between them. So that means one of the two bodies, either the House or the Senate, would have to vote to adjourn in order to allow the president to make these recess appointments or. Right. Both would do it and allow the president to make these recess appointments. But the point is, it would require the Republican majorities and Republican parties agreement in this fascistic scheme.

 

Melissa Murray Seems likely.

 

Leah Litman Yeah. No, he’s obviously asking them to bend the knee and they’ve always done it before. Right. So like it’s very possible they will do so again. And a part of me does think that this request for recess appointments, as well as some of the possible nominations that he’s already floated that we’ll talk about in a bit, They are some weird kind of loyalty test to see how far his party will go. Right. Like what can he get them to agree to? And if he can get them to agree to this, I mean, what on earth are they not going to agree with? And it just seems like this prospect of recess appointments coupled with all of the nominees, is just flooding the zone with shit. It is impossible to digest how insane any one of these things are when all of them are happening at the same time. Like. The day when we first got the trickle of official announcements of nominations, I feel like halfway through I was already feeling exhausted. And it’s just so much. And again, this is how they do it and get away with it is just overwhelming everyone else with all of this B.S..

 

Kate Shaw And the aggressiveness is so striking because these would be hearings that would happen after the new Congress is sworn on January 3rd. So he’s going to be controlling the agenda.

 

Leah Litman He controls the agenda and not even by small margins. Right?

 

Kate Shaw No, he’s going to have a significant Senate majority. And what I don’t know, but I strongly suspect that in at least the modern era, recess appointments used to be something that presidents would use because, you know, back in the early days when transportation took a while and senators were far flung, if you needed to get somebody installed on an expedited basis to do an important job, you could get them in without waiting for the Senate to return and confirm the person. That is the purpose everybody agrees originally. So maybe there were some cross partizan recess appointments back in the day, but in modern days it has really just been used. Maybe if there’s an emergency, but also if there’s, you know, some difficulty getting the party that controls the Senate to confirm your nominee if you’re the president, because it’s not your party. And the idea that he would have this much trouble, that he would anticipate having this much trouble getting confirmation votes on his cabinet from his party in the Senate, just I think both speaks to how deranged these nominations are. But also to Lee, his point that this is just maybe a power play, that this is designed to induce a radical set of concessions in the first It’s not even the first hours we’re in like -11 weeks. Before of of the Trump term and already requiring them to genuflect in this kind of debased way by saying like, we will recess and you can just put all your people in. It seems like a pretty clear evidence that we are in absolute worst case scenario terrain already. Again, -11 weeks in.

 

Melissa Murray Well, it’s kind of like a game of chicken with John Thune specifically. So Thune is going to be the incoming Senate majority leader. And, you know, I think he’s a very conservative guy, but he’s not necessarily a Trump loyalist. And I think this is sort of like, are you going to get in line, friend? And are you going to bring this entire caucus with you? And all of this stuff is crazy. But it’s this is a gauge. How much am I going to be able to get away with?

 

Leah Litman Yeah. And just going back to the Supreme Court’s interpretations of the recess appointment power in the Neil Carney decision that Kate mentioned a little bit ago, it was, as she noted, very divided. And in the Justice Scalia separate writing that was joined by Chief Justice Roberts, Thomas and Alito. They said that the recess appointment power applied only to those vacancies that, quote, happen during the recess, i.e. vacancies that arise during the recess, not vacancies. Right. That existed before or after the recess, which is kind of what appointing your entire cabinet during an entirely orchestrated recess would do. And again, I’m not saying that these justices are going to be consistent, but I do think this is just part of asking all of the Republican Party to get in line and genuflect and bend the knee as they have done to date with Trump.

 

Melissa Murray So it seems the Constitution is actually a suicide pact.

 

Kate Shaw Last week I realize I said definitely said to Leah, I think that we can still fight for the Constitution, which I still think in general terms is right. And I do not want to.

 

Melissa Murray Were you out here being Pollyanna again while I was gone?

 

Kate Shaw I mean. No, I think we were in a dark place. I was not I don’t think being Pollyannish, I just said I was I wasn’t willing to say that I’m.

 

Leah Litman She wasn’t willing to give up.

 

Kate Shaw On the Constitution and at least on sort of its broad principles. And I mean, I will say two things. One, I think it is pretty clear that this, you know, power to adjourn turns on the existence of extraordinary occasions, which I think applies to both convening and adjourning. And so I think that there’s no facial way to suggest that this whatever scheme satisfies those constitutional conditions. And yet I’m not in any way going to predict, even if the court somehow got this case in front of it, that the court would either be consistent in terms of the positions they took and not canning, which we were just talking about, or in this separate question, that they would actually faithfully interpret both the language and the underlying purposes of this provision, which in no universe would were ever designed to allow Trump to do something like this.

 

Leah Litman But let’s go on to the people that he plans to install in this grand scheme.

 

Kate Shaw And then it you know, and then it all starts to become clear because even with this incredibly compliant Senate that he’s about to have, some of these people might be a bridge too far, I think it’s at least possible. All right. So let’s dig through the folks. The names that we have gotten and a couple at the outset that actually wouldn’t require any Senate involvement and so aren’t really involved in the scheme that we were just describing. Trump has announced that he has selected one of his campaign managers, Siouxsie Wiles, to serve as the White House chief of staff. She, if she does take the position, will be the first woman to serve in that role. It has also been reported that Stephen Miller will play a major role in The West Wing. I think he will be the White House deputy chief of staff for operations, which is the position Alyssa Mastromonaco held in the Obama White House, which just makes me so sad that she’s going to share that title if this guy actually does that. Sounds like he’s going to. So, I mean, he is going to be the architect of the savage immigration policy the administration has already suggested it will pursue. I expect it to begin very, very quickly.

 

Leah Litman It’s not just it’s not just Peewee German. Right. Who is going to be facilitating these deportations?

 

Kate Shaw I’ve not heard that.

 

Leah Litman I’ll be here for the rest of the episode.

 

Melissa Murray Wow. I’m so proud of you. That was great.

 

Leah Litman Thank you. Also Donald Trump has indicated he will name Tom Homan as Borders are. Homan is, of course, an author of some pieces of Project 2025 who, when he was asked about deportations during the previous Trump administration, said something to the effect of, quote, You ain’t seen shit yet.

 

Kate Shaw I have to say, there’s a new documentary called Separated Out, which is based on Jacob Soboroff book, and Homan is in it a couple of times, and he is one scary dude. God. So we have that to look forward to.

 

Melissa Murray Yeah. So those are the positions that do not require any kind of advice and consent from the Senate. Now on to the ones that do require the Senate to step up. So former New York congressman and one time New York gubernatorial hopeful Lee Zeldin has been tapped to head the Environmental Protection Agency. Zeldin has been a member of the so-called climate conservatives in the House of Representatives. He also objects to the Paris Accords, and he has vowed to roll back climate protections that were instituted under the Biden administration. On the upside, it does seem likely the result and run EPA will fare better with this Supreme Court.

 

Leah Litman So hashtag winning.

 

Melissa Murray Someone’s winning.

 

Leah Litman Yeah.

 

Melissa Murray Additionally, I’m also from the New York delegation. Congresswoman Elise Stefanik will be nominated ambassador to the United Nations. The position that was formerly held by Nikki Haley in the first Trump administration. And I’m just you know, I know two is not a very large sample size, but it does seem like a good place to put your women is in the United Nations or abroad, Right? Like, who cares if women are dying in parking lots? You can always be U.N. ambassador. And that is progress. Ladies, you’ve come a long way, baby.

 

Kate Shaw You might also be able to head the Department of Homeland Security because we are hearing that South Dakota Governor Kristi Noem is being floated to head that department. Also pretty scary.

 

Melissa Murray Well, it’s just going to the dogs.

 

Leah Litman Right? Exactly. Like scary for the dogs as well as everyone else. Like when.

 

Melissa Murray They’re killing the dogs, they’re killing the cats.

 

Leah Litman Donald Trump was, like literally screaming about people eating the dogs. Right? Who knew he would appoint a puppy killer to his cabinet?

 

Kate Shaw It turns out there is so much projection that the campaign in the last few years in MAGA land has been engaged in. And the cabinet really just makes all of that very clear. Another announced nomination, former Arkansas Governor Mike Huckabee will be the ambassador to Israel.

 

Leah Litman Let the rapture begin. I don’t even know what to say about that.

 

Melissa Murray Florida Senator Marco Rubio, who once rued Trump’s influence on the country and the Republican Party and the United States standing in the world order has recanted all of that and has been tapped for secretary of state. So, yes, you can come back from anything.

 

Leah Litman We’ve also got reports that Donald Trump will nominate Pete Hegseth for the secretary of defense. I don’t want to understate how wild this is by merely describing him as an anti-vax or Fox News host, but that is accurate. He will be leading the most powerful bureaucracy in the American government. He also doesn’t wash his hands after going to the bathroom, or so he once said on Fox.

 

Kate Shaw This is for any time. He doesn’t wash his hands.

 

Leah Litman Pretty pro germ administration as we’ll get to later on. He also was like shilling for ammo last summer, like helping to market it. He has urged here he did urge the president to pardon people who were convicted of war crimes. He has called for a declaration of war against the woke military by which he seems to mean people of color and women in the military. This is in his recently released book. And it’s not just people outside of government who might think he’s a little nutty. He was also ordered to stand down from President Biden’s inauguration because of his extreme views, like he kind of failed a background check. And this is, again, the secretary of defense.

 

Melissa Murray I’m still back on Fox News host. Right. Because our former roadie and MSNBC news host Chris Hayes would have been great as defense secretary in a Harris administration. I just want to put that out there.

 

Kate Shaw The idea that she in, you know, the sort of world to in which she is busily announcing her cabinet appointments that she would be, you know, just surfing the channels to decide whom to nominate to liberal Cabinet positions. Just really I mean, really tells you everything you do know about where we are right now. And it’s not even remotely the most alarming biographical detail that he’s a Fox News host. Not even.

 

Leah Litman No, exactly.

 

Melissa Murray The washing hands was also very disconcerting.

 

Leah Litman It’s pretty scary.

 

Kate Shaw I don’t know. I think that’s pretty innocuous compared to I mean. He pressured.

 

Melissa Murray If only he had been inoculated.

 

Kate Shaw He pressured Trump to literally pardon war criminals.

 

Leah Litman War criminals.

 

Kate Shaw I mean, speaking of anti-vaxxers.

 

Melissa Murray Not even the most prominent anti-vaxxer in the bunch.

 

Kate Shaw Not even close. After we sat down to record. Politico broke the news that Trump evidently plans to name RFK Jr to be the Secretary of Health and Human Services, HHS. And that makes me think, you know, we are just not he we knew he was going to do something the administration like. We knew that. But we thought he surely will just stick him somewhere in a czar position in the White House that is not going to involve any kind of public scrutiny or a real public facing position. And the announcement that he wants to put him in the cabinet, I think only increases the likelihood that he actually is going to pursue this bananas adjournment scheme, because I can’t imagine a Senate confirming RFK jr even that.

 

Melissa Murray Is Roger Severino thinking right now?

 

Leah Litman I mean, he didn’t do pace himself enough in order to get to this post. Are Roger Severino is he was the author of the chapter on HHS in Project 2025. And I think people were thinking maybe he would be nominated as secretary. Now, of course, Donald Trump is going to cycle through all of these people ad nauseum. Right? So he’ll probably get a chance like within one Scaramucci or two, like who knows? Or maybe floating. RFK, Jr is a way of clearing the way for someone like Roger Severino, who maybe has less personal baggage, but their views are also quite extreme. I mean, it would be difficult to top putting an anti-vaxxer in charge of the agency, in charge of developing vaccines. I mean, this will literally, literally kill people. And it’s like, all you woke people care about, you know, kids and getting measles and mumps. And it’s like, what?

 

Melissa Murray This is Elie Mystal’s whole theory behind all of this, like, literally flood the zone with absolute crap, make it as crazy and as extreme as possible. And then when you put in the smart but extreme people, everyone’s like, okay, that’s plausible. He went to Harvard Law School. Yeah.

 

Leah Litman I mean, that that could be. But shall we get to the piece de resistance?

 

Kate Shaw Of the nominees of the nominations, which we have so far held off on, even speaking about.

 

Melissa Murray As someone who was raised in the Sunshine State, I feel like I’m supposed to be proud of this in some way. But um y’all. What kind of world are we living in when literally Florida man can be nominated to be attorney general of these United States like. Yes, that is exactly right. Florida man Matt Gaetz has been nominated to be the attorney general. And I’m just going to say it. It raised some eyebrows.

 

Leah Litman You know, I was talking about this with some students who were expressing, I don’t know, imposter syndrome or nerves about law school. And I tried to put a positive spin on this by saying, look at the comeback story America has right now a guy who was under investigation by DOJ for sex trafficking, or at least a target of an investigation, will now lead the department. Like is this the most progressive administration on offender reentry in history?

 

Melissa Murray Rehabilitation. Second chances. I love it.

 

Leah Litman Quite possibly. I mean, like we are literally making a guy who is like if a frat paddle was made a real boy with Botox injections. The guy is going to lead DOJ. That’s our attorney general. I’ll be here again for the entire episode.

 

Kate Shaw Frat paddle into a real boy.

 

Melissa Murray You’re on fire. Wow. You’re on 12 and I appreciate that because I’m still.

 

Leah Litman Trying to get to 13 it’s my lucky number.

 

Melissa Murray I love it. Wow.

 

Kate Shaw Gaetz, I think, is the most reviled member of a Congress that includes Ted Cruz. I do not just like he is to the House, where Cruz is to the Senate. I think he is hated more by his colleagues even than Cruz is by his colleagues. I think the Senate hates him too.

 

Melissa Murray Isn’t that what Republican Max Miller said? He basically said that on TV.

 

Kate Shaw Well, I think it’s I maybe I’m quoting him. I think I am just channeling what my general understanding is. And I mean, the list of horrifying things about Matt Gaetz is so long and yet there’s no way to tell a frat paddle turned Real Boy. So I won’t try. But I will note that Gaetz, among other things, he has not been a particularly productive legislator, but he did make time to introduce legislation to protect J6ers. So, you know, there go those cases.

 

Leah Litman Literally every one of these appointments feels like the Hunger Games cannon for like a part of the federal government.

 

Kate Shaw Totally

 

Leah Litman Like boom there goes HHS like. Boom DOJ is about to be dead, etc., etc..

 

Melissa Murray Even Susan Collins was a little bit alarmed. So Senator Susan Collins of Maine weighed in on the Gaetz nomination and she had this to say. Quote, I was shocked by the announcement. This shows why the advice and consent process is so important. And I’m sure that there will be a lot of questions raised at his hearing. Obviously, the president has the right to nominate whomever he wishes, but I’m certain that there will be a lot of questions, end quote. Who’s going to tell her?

 

Leah Litman Ask those questions, girl. I’m sure it all turned out great. I mean, like. This is, this is what he was promising, right? Like none of you people should be surprised. This is just ridiculous. And I think the best case scenario we can all hope for is that an attorney general, Matt Gaetz, spends all of his time seeking justice for peanut the squirrel, instead of doing.

 

Melissa Murray Constantly a race. The raccoon, the raccoon was also euthanized. Like justice for the rap star and for.

 

Leah Litman Peanut the Squirrel and Fred the raccoon. Right? Like, if that is how he occupies his time, like maybe we will survive. I also would just like to utter a sentence, if you will. Humor me for a little. You can read into the sentence whatever you will. There is a possibility that one Matt Gaetz is going to have.

 

Melissa Murray Don’t do it. Don’t do it.

 

Leah Litman A recess appointment. It might make him happy. Our sex pest in chief has decided he doesn’t need consent.

 

Melissa Murray You know what? Wow. You’ve really just ruined the playground for everyone.

 

Leah Litman Sorry. Sorry.

 

Melissa Murray All right, maybe this might actually top Matt Gaetz, for AG.

 

Leah Litman It’s hard.

 

Melissa Murray Former Democrat Tulsi Gabbard has been. Has been nominated to be director of national intelligence. So I’m just gonna leave that out there. And in addition to that, we have a new agency. Ish. Department?

 

Kate Shaw No, no, no.

 

Melissa Murray Who is to say?

 

Kate Shaw We are to say, as law professors, there is no agency. But Donald Trump can just make. No. To make a Department of government efficiency. Sorry, I cut you off. What? I said, what is the thing that the Trump is pretending he’s doing? And we’ll get to debunk that.

 

Melissa Murray We’ll get to the real law part of it.

 

Alright.

 

Melissa Murray But for now, a concept of a plan has been made into two real boys.

 

Melissa Murray Because Elon Musk and Vivek Ramaswamy have been tapped to lead the nascent Department of Government Efficiency, which interestingly is not in the government and is not a department and may not have any power, but also might. Unclear.

 

Leah Litman But also its abbreviation is DOGE. Like.

 

Melissa Murray Doge doge.

 

Leah Litman Right, exactly. So I’m sure its mascot is going to be the DOGE 2 like. This is going to be sick. Clutch up ladies like we’ve got a DOGE now.

 

Melissa Murray Kate, do you know what we’re talking about?

 

Kate Shaw I don’t. I don’t I thought DOGE is a kind of crypto I thought. I thought it was about giving free advertising to to Elon’s like crypto one of his crypto projects.

 

Leah Litman Just Google it, just Google it.

 

Kate Shaw But it’s also. I think about promoting Doge, which is actually name a kind of cryptocurrency.

 

Melissa Murray Very good Kate.

 

Kate Shaw What is what is the what is the DOGE?

 

Melissa Murray It could also be that too.

 

Kate Shaw Well, just more like, you know, grift. All I can get in doge is dogecoin and the new fucking department DOGE. Oh. It’s just a shiba inu dog. It’s cute is this, is this the DOGE you guys were talking about?

 

Leah Litman It became kind of like an Elon Musk thing for a certain period of time. I don’t even know how to describe its origin story.

 

Kate Shaw It’s sometimes impossible to wind like, a meme back, so I may have just missed it for. Exactly. Okay. Thanks for trying.

 

Melissa Murray I actually I actually surprised Kate that you had the crypto at the ready. I thought you’re going to say I’m obviously the leader of Venus, the Doge. And I’m glad you were in the century.

 

Kate Shaw Yeah, dogecoin apparently a kind of kind of crypto.

 

Melissa Murray Don’t sleep on Kate Shaw.

 

Kate Shaw Just on meme is usually about me on those. But back to what we were saying at the outset, it’s just I really think it’s important for people covering this to not call it a department, even though Trump is calling it a department. And obviously, you know, he wants us to say doge, but it’ll be a committee, it’s going to make recommendations. It’s going to exist outside of government. Maybe there’ll be some kind of White House entity that the president has the authority to create. But a department is created by statute, by act of Congress. He cannot force a recess and make a department while they are adjourned. That’s not how any of this works. Maybe he will try this gambit to make the appointments, but he is clearly trying to seize all the power. And I really think it’s important that just even rhetorically, we are not all capitulating in that effort. And I actually think in a subtle way, his assertion that he has made a department is part of that project. It’s important to resist it.

 

Melissa Murray It’s basically a faculty committee, and we all know how this works, right? This is that curriculum reform committee.

 

Kate Shaw Yeah, exactly.

 

Leah Litman Basically, Elon Musk and Vivek Ramaswamy are now associate deans.

 

Kate Shaw I do love that for them.

 

Melissa Murray I’m glad we have each other. Okay.

 

Leah Litman Yeah. So maybe in light of this, I think we need to recalibrate our expectations for Supreme Court nominations. Like, I think Judge Ho is really underperforming in the race to be as out there as you need to be for a nomination in the Trump 2.0 administration. I mean, I think Justices Cannon and Kazmierczak are looking way more plausible. You can’t rule out a Justice Josh Black men or maybe Jonathan Mitchell. You know, I think if the Department of Education is allowed to continue to exist, maybe Chris Rufo as Secretary of Education, Bill Ackman, I mean, again, can’t can’t rule these out. I guess like one note about a possibility on the Gaetz nomination in particular, we talked about different theories for why these nominations might be the way they are, but on days in particular, the House Ethics Committee was apparently going to vote on releasing a report described as highly damaging by Jake Sherman at Punchbowl two days after Gaetz was nominated to be attorney general and resigned from Congress such that the committee no longer has jurisdiction over him. You know, and I think it’s a question about was this an excuse to resign? And he might not get confirmed, but clear the way for someone else. I mean, I don’t know. But there’s just a lot going on here.

 

Kate Shaw I hope the clear the way theory is right. I think that anything that keeps Matt Gaetz out of the Department of Justice would be a great development. But I am I think.

 

Leah Litman That that’s I’m not yeah. Again, it might be like hey like this is an added benefit. Let’s shoot for the moon as well.

 

Kate Shaw Why not both.

 

Leah Litman Right.

 

Melissa Murray Can I offer a hot take?

 

Kate Shaw Yes.

 

Leah Litman Yeah.

 

Melissa Murray What if Matt Gaetz is actually the perfect person to be AG just because it would just be very difficult for him to get anything done? Anyone who came after him, who was actually plausible, would probably be smart enough to do some real damage.

 

Kate Shaw I just think he is going to be an absolutely willing and subservient attack dog. I think he will go after critics. I think he.

 

Melissa Murray All of them would, though.

 

Leah Litman I mean, yeah. No, that might be right.

 

Kate Shaw He’s beyond shame and caring. And I think that there are people who are on the list who are who would do evil things, but actually might care somewhat about the views of, you know, the existing folks at DOJ. And I just don’t think Gaetz would give a shit.

 

Melissa Murray Oh God, Kate.

 

Kate Shaw I do.

 

Melissa Murray No Kate.

 

Leah Litman Again, like it might be that in the best case situation, we are hoping for a world where malevolence is tempered by incompetence. To borrow the words of Ben Wittes and Quinta Jurecic of Lawfare. I think that that was some of what they talked about during the Trump 1.0 administration. But again, that is literally scraping the barrel for any.

 

Melissa Murray Bookmark this we might have to come back to maybe Matt Gaetz was a silver lining.

 

Leah Litman Yeah.

 

Kate Shaw We will see.

 

Melissa Murray Anyway, that’s what’s happening in the executive department. The real one so far. Let’s turn to the judiciary and do some court culture. For real? For real? Okay. What’s going on?

 

Kate Shaw Briefly, some news out of Louisiana where a district court judge enjoined a state law that would have required public schools to display the Ten Commandments in classrooms. Louisiana was the first state in nearly 40 years to enact a mandate on religious displays in schools. The law would have taken effect in January of 2025 and was widely and I think correctly viewed as an effort to tee up a challenge to Engle versus Vitale, which is the 1962 Supreme Court decision that prohibited prayer in public schools on the ground, that it violated the separation of church and state, which is a thing that used to exist.

 

Melissa Murray In that decision, Judge John Diego rebels, who is an Obama appointee, wrote that the law was, quote, coercive to students. And for all practical purposes, they cannot opt out of viewing the Ten Commandments when they are displayed in every classroom, every day of the year, every year of their education, end quote. Sounds like a problem for church and state, if that were a thing.

 

Leah Litman Yeah, I mean, the decision was not unexpected given existing precedent, but it does invite a battle over, you know, the future of said precedents, a battle that will surely end at the Supreme Court. The next step for the case is the Fifth Circuit. So what could go wrong now? Time for some recaps.

 

Melissa Murray Sure. Right.

 

Leah Litman Okay.

 

Melissa Murray Time out. Time out. I had such a hard time getting into these cases. Like, I know they matter to lots of people, and. But I mean, like, geez, Louise.

 

Kate Shaw I think the justices kind of did, too.

 

Leah Litman Yeah, I think that, look, the cases are important, but again, when you’re comparing them to having Matt Gaetz running DOJ and Robert F Kennedy Jr running HHS, one thing is going to draw a little bit more attention and concern than the other, and I don’t think that is unreasonable.

 

Melissa Murray So while we were out of the country, someone asked me, What do you think the scariest part of Project 2025 is? And literally the only thing I could think of was that it’s just the first 180 days.

 

Leah Litman Yeah.

 

Melissa Murray Yeah. Like, that’s the scariest part. It’s just literally half a year.

 

Leah Litman Yeah.

 

Melissa Murray There’s more.

 

Leah Litman Okay. So to the cases.

 

Melissa Murray Focus.

 

Leah Litman Yeah. To the cases the court heard last week. One was Velasquez versus Garland. The case arises out of the fact that noncitizens who are present in the United States unlawfully and facing deportation can request what is called voluntary departure instead of a removal order under certain circumstances. If that is granted, an individual who follows the court’s directive will not be subject to the usual repercussions of deportation. Instead, they might potentially be able to return to the United States more quickly with proper sponsorship, but they must leave the country voluntarily within the period directed. And if they do not, they can be subject to steep fines and be barred from returning to the United States for up to ten years.

 

Melissa Murray So what happens when a noncitizens voluntary departure period ends on a weekend or a public holiday? And instead of leaving the country, the non-citizen files a motion to reopen the process on the next business day. Well, the 10th Circuit has held that regardless of what day of the week, a voluntary departure period expires, the law requires a non-citizen moving to reopen or reconsider removal proceedings to file within the calendar day period set in the voluntary departure order.

 

Kate Shaw That holding, however, conflicted with a 2012 ninth Circuit decision holding that when a noncitizens deadline for voluntary departure falls on a weekend or holiday, the non-citizen has until the next business day to file their post decision motion to reopen or to reconsider. And this case, Velasquez versus Garland, gives the court the opportunity to resolve that circuit split. So the petitioner argued that the meaning of the statute has to be consistent with the meaning of other provisions of immigration law and with the practice of immigration authorities, which is that when a deadline falls on a public holiday or weekend, the departure has to happen by the next business day.

 

Melissa Murray Sounds sensible. However, the Biden administration was actually taking a much more hard line approach, and at least a couple of the justices weren’t crazy about some of the choices that the government made at oral argument. So let’s roll a clip.

 

Clip Because Law recognizes that reopening and reconsideration can be subject to review. Just say everything. So, for instance, take an alien who’s a soccer fan and says, I want to move for reconsideration. I want you to include in your opinion, the statement I’m as good of a soccer player as Lionel Messi. I think you should trivialize this. No, this is actually an. And how do either one of those things make sense? This is a man who’s really trying to, like, get the agency to focus on this timeliness determination that has just arisen in his in the denial of its motion to reopen. He did what I would think the agency would want him to do. Well, I will say that where this comes from is the text that is there’s review only of a final order of removal that’s called 52 one A1. It then goes to Nasrallah, which interpreted final order of removal. Now, our argument is that that’s completely nonresponsive to the question that I just asked.

 

Leah Litman I just have to say, Justice Kagan, if you think assistant to the solicitor General Yang is unresponsive, just wait until you hear from Solicitor General Sidney Powell or Elena Farber.

 

Melissa Murray Release the Kraken. It wasn’t just Justice Kagan who appeared frustrated with the federal government. Justice Gorsuch, renowned textualist, also had some words. So let’s roll that.

 

Clip If it’s so obvious, how come you didn’t raise it below that? I can’t speak to. Neither can I.

 

Leah Litman Again, I just have to imagine, like, what the colloquy is and cases are going to look like under a Matt Gaetz Department of Justice.

 

Kate Shaw I just had this thought. I remember when we had Attorney General Holder on the pod, I think. Did we talk about this? There used to be this practice of attorneys general doing like one argument, like, you know, just because it’s this sort of ceremonial thing that’s fun to do. And it hasn’t been. You know, Holder didn’t do it. Lynch didn’t do it. Garland didn’t do it anyway. So.

 

Melissa Murray Well, Holder said he didn’t do it before.

 

Kate Shaw As a protest, right, Like the court?

 

Melissa Murray Shelby County.

 

Kate Shaw Exactly. It was not the kind of institution he wanted to appear before, you know, and have that kind of respectful exchange. And there Rosenstein, I think even though he was the Dag was and then acting was the one person who did in the Trump administration anyway. Can you fucking imagine Matt Gaetz doing a Supreme Court argument? All right.

 

Melissa Murray I honestly would watch that.

 

Kate Shaw I would watch. I mean, and maybe he would do it because he, like Trump, is this kind of seeker of negative attention and would probably do it for that reason, because people would a lot of people would hate watch it and maybe he would enjoy that.

 

Melissa Murray I would actually love to see Elena Kagan.

 

Kate Shaw I would love to see that too.

 

Melissa Murray Body him.

 

Kate Shaw Yes.

 

Leah Litman I’m slightly

 

Kate Shaw That would spark joy.

 

Leah Litman Concerned she would just spontaneously combust instead.

 

Kate Shaw Also possible.

 

Melissa Murray She’s like I cannot compute.

 

Leah Litman Right. Exactly.

 

Kate Shaw All right. Back to Velasquez for just a minute there. You know, on the substance, a lot of the argument was spent when not pummeling the federal government. Discussing whether the court or courts had jurisdiction to hear these cases at all, which hadn’t actually been raised below and was only kind of glancingly raised in the briefing before the court. So there was some talk of maybe sending the case back down, which is becoming something of a theme this term, which honestly, I’m fine with, like do nothing, send it all back. I think that’s probably the best we can hope for from these clowns much of the time.

 

Leah Litman Perfect.

 

Melissa Murray Stasis.

 

Kate Shaw All right. Next case is Delgado versus United States, which involved a mob related murder. But that actually isn’t what the case was about. The question in the case was whether a crime that requires proof of bodily injury or death but can be committed by failing to take action, has as an element the use, attempted use or threaten use of physical force. So put simply, has a defendant used physical force when she hasn’t actually done anything? And as in Velasquez, this was definitely a theme of the week. The government took a pretty hard line approach, arguing that even in circumstances involving inaction, the defendant has used or attempted to use physical force. And this prompted some very interesting hypotheticals from the justices. And here is one exchange between Deputy Solicitor General Eric Fagan and Justice Jackson.

 

Clip Just piggybacking on what Justice Gorsuch is saying, I guess I’m just trying to understand the government’s position on what it means to use physical force against the person of another in an omission case. So let’s let’s take this hypothetical. Say you have a lifeguard and she has a duty of care to rescue children in the pool. A kid who she hates, hates gets into the pool entirely of their own volition. Is it your position that she uses physical force against this kid if she doesn’t jump into the water when she sees him drowning? Yes.

 

Leah Litman So Justice Jackson’s question generated whatever this was. So we’re just going to play that clip here.

 

Clip I mean, I don’t know if she I guess the pool is probably not deep enough for her to get crushed in it. But it’s the gravity is dragging her down in the pool. There’s an internal process going on in her body whereby her life is sucked away from her. I apologize. Not a doctor. I couldn’t quite tell you what happens with asphyxiation, but the body is going to be attacking itself. They’re gasping for air. And I mean, I’ve got.

 

Leah Litman You know, this description was like very relatable for me. This past week, I was like, he’s describing sensations that that, yes.

 

Melissa Murray I felt.

 

Leah Litman Right. I felt.

 

Kate Shaw I just I felt I felt I really felt. I empathize with Fagan during this exchange because he was like trying to figure out how exactly to respond to the question, then realized he actually. How do you explain drowning? Like, I don’t really know. And anyway, he did not do it effectively, although he did speak to something deep in our souls. This right at this moment in time.

 

Leah Litman Exactly.

 

Melissa Murray Thank you for that.

 

Leah Litman Right. You know, as in Villa says, the federal government had a hard time in this argument as well, although their opening statement was quite confident, as you will hear here.

 

Clip Mr. Fagan. Thank you, Mr. Chief Justice, and may it please the Court. It’s hard to believe that we’re actually here debating whether murder is a crime of violence.

 

Leah Litman Bold move cotton.

 

Melissa Murray In the last case the court heard in this sitting was Nvidia Corp versus E. Ohman J:or Fonder AB. And as we discussed in our preview, this case concerns two questions related to the Private Securities Litigation Reform Act or PSLRA. First question is whether plaintiffs seeking to allege scienter, which is fraudulent intent under the PSLRA based on allegations about internal company documents, must plead with particularity the contents of those documents. The second question is whether plaintiffs can plead falsity under the PSLRA by relying on an expert opinion rather than particularized allegations of fact. The case involves Nvidia, which makes computer chips. It is currently the most valuable company in the world. However, its shareholders contend that in 2017 and 2018, the company’s CEO, Jensen Huang, hid the fact that its record revenue growth was being driven by crypto mining rather than by sales for gaming. And the investors say that crypto market volatility made the company’s finances more precarious when the market crashed in 2018.

 

Leah Litman So when it enacted the PSLRA in 1995, Congress gave companies certain protections from lawsuits by shareholders. Specifically, the law requires lawsuits to include key allegations, quote, with particularity and quote, including details to show that company officials knew they were misleading investors. Here, the investors maintain that their complaint met this standard. Here is Dipankar Gupta of Gupta Wessler, who argued on behalf of the investors.

 

Clip And he reviewed sales data every week, every month, and in quarterly meetings that one witness described his proctologist exams because they were so detailed. The nature of his responses, I think, is critical here. He, as I said earlier, when he was asked by analysts about the crypto demand, he didn’t say, you know, we don’t know or I don’t know, he he quantified the statements he was making and he didn’t express uncertainty. He gave very specific figures that, again, contradicted the data.

 

Kate Shaw So Nvidia argues that the lawsuits allegations are not pled with particularity, but rather are based heavily on an analysis by an economic consulting firm. Rather than the factual allegations required under the 1995 statute. Nvidia also says that shareholders don’t have to point to the contents of company documents to bolster claims that Huang’s public statements were inconsistent with internal reports. And here is Nvidia’s lawyer, Neal Katyal.

 

Clip Who Mr. Wang is not running a Ponzi scheme. We’re talking about one of the most respected CEOs of a dramatically important company.

 

Melissa Murray It does seem that Nvidia can count on at least one vote. Let’s roll the tape.

 

Clip What motive could he have for making a statement that is so far off? And that is, if you are correct, if over $1 billion figure is correct, is surely going to be going to come to light with severe consequences. That’s the argument my friends make and I think he could have made along with it.

 

Melissa Murray What exactly is wrong with it? I would like to know to Justice Alito, what exactly. It wasn’t just Justice Alito, though, who seemed sympathetic to Nvidia’s position. The chief justice also noted that when Congress enacted the LRA, it was with the intent to limit frivolous lawsuits by raising the bar for pleadings in shareholder suits. So not clear where this is going, but it does seem it may be a narrower understanding of what it means to plead with particularity. In other court related news, Ted Olson, the former solicitor general, Supreme Court advocate and a prominent member of the Federalist Society, passed away last Wednesday morning. Olson rose to prominence as a lawyer for George W Bush in Bush versus Gore, and he later served as Bush’s solicitor general. Although he was a noted conservative, Olson’s career took some surprising turns. Alongside David Boies, his onetime adversary in Bush v Gore. Olson litigated a challenge to Proposition eight, the 2008 California ballot initiative that withdrew the right to same sex marriage in that state. After victories in the northern district of California and the Ninth Circuit. Olson Boies litigated the challenge all the way to the Supreme Court, which dismissed it on standing grounds. And although they did not succeed in obtaining a victory on the merits, that case is widely credited with paving the way for Obergefell versus Hodges, which was decided two years later. Olson stance on marriage equality was not always well regarded and conservative circles. And as a lifelong Republican, he also provoked conservative ire when he defended Dreamers in the Trump administration’s efforts to rescind DACA a very complicated person in that regard. I will just say that I taught with Ted at a couple of seminars in the Aspen Institute Socrates program, and got to know him pretty well. And I will just say at the outset, I was not expecting to like Ted very much, given how different our politics were. But he was just a really lovely, lovely person, very open minded. We did not always agree on everything and there were certainly moments where I was like, Nope, nope. I definitely don’t agree with that. And I’m sure he said the same, but he was really warm and open minded and open hearted and spoke so lovingly of his family, his wife, Lady Boothe Olson. And at a time when we just seemed like mired in divisions, I kind of miss people like that.

 

Leah Litman I just had one additional thought. Sorry. This is like going to be in a totally different tone and register. Do you think they’re going to be like dead bears around HHS now? Like you’re just going to like walk into HHS?

 

Melissa Murray That’s a really big fucking pivot, Leah.

 

Leah Litman I’m sorry.

 

Kate Shaw Refuse to believe he’s going to be the HHS secretary. I don’t I don’t feel optimistic about anything. And. Gaetz I don’t know the rest of them, I’m sure, are going in. But I just I just feel like there will be some crazy developments that will mean he’s not ever walking in the front door of that building. Perhaps it is wishful thinking. It most likely is, but okay.

 

Leah Litman Well, even if he’s not walking in the front door, he still might leave bear carcasses.

 

Kate Shaw That’s true. The two could both be true.

 

Melissa Murray I mean, whale juice on the fridge. I mean, speaking of beverages, before we go, I just want to shout out Tiffany at the Smith in Lincoln Center, who is not only a faithful, Strict Scrutiny listener, she makes an excellent Martha Rita. I just want to shout you out. Tiffany, thank you so much. You made my Tuesday night and I see you queen. And I appreciate all the salt that you rimmed that glass with because, yes, it was salty, like its namesake. Thank you.

 

Kate Shaw All right. That’s all we’ve got for today. The world keeps spinning and so does the court. And so do we For now.

 

Leah Litman Should say, like, one thing. If you want to hear more from us, I think we’ve kind of shifted social media platforms where we are. I think all three of us are now primarily over at bluer skies on blue sky. So my handle is the same at Blue Sky. I’m just Leah Litman. The podcast is also there. That is just Strict Scrutiny. So you can you can find.

 

Kate Shaw And I’m Kate Shaw. I had to have a number in my Twitter handle. But I’m just Kate Shaw at Blue Sky. What about you? Are you Prof Murray?

 

Melissa Murray I’m ProfMMurray everywhere. Every single place.

 

Leah Litman Love it.

 

Melissa Murray Prof M Murray.

 

Kate Shaw But blue sky the vibes have been good I like I think it is it feels like I mean I’m I’m always a little bit light as a poster. I just dip my toe in occasionally, but I’ve definitely been checking it and it seems really useful.

 

Melissa Murray I’ve been on a social media diet. It’s just been hard. Like Twitter used to give me joy and now it just makes me sad and like I’m trying to get into blue sky. I just I just don’t have the heart for it right now.

 

Kate Shaw Yeah, that’s fair. But I think if you give it a chance, it might give you some joy too.

 

Leah Litman Yeah. Yeah. You should be patient with yourself, like Kate and. I don’t know. I feel like I was emoting really hard last week, and I feel like. I don’t know if this was also true for you, Kate. Like, I got several messages from people.

 

Kate Shaw Like, Are you okay?

 

Leah Litman Are you okay? Right. I hope you’re doing well. And like, I was not really able to do much, if anything, last week. So yeah, just be patient, Melissa. Like we got you. I’m glad you’re back and we’ll get you there.

 

Melissa Murray But what does it say about me that I went away with my husband to celebrate our 20th anniversary and. I was still so sad. And now I’m back with you guys and I feel a lot better.

 

Kate Shaw It’s not I don’t think. I don’t think it’s Josh related. I think its just.

 

Melissa Murray It’s not him. It’s not him.

 

Kate Shaw Time does.

 

Leah Litman It is time.

 

Melissa Murray It’s been a week.

 

Leah Litman It’s really time. And also, like register. You know, I feel like we talked a little bit about this last week, but, you know, this is enough to just to make you crazy and beat you down. And there just have to be different ways of coping with it and pushing back and humor and like mocking these absolute unqualified dipshit fascist clowns. Right. Like, that’s sometimes helpful.

 

Kate Shaw It is. Can be cathartic.

 

Melissa Murray I’ve always found it to be more cathartic than the a pussy hat personally.

 

Leah Litman Yes. Yes.

 

Leah Litman [AD]

 

Melissa Murray All right, Kate. Send us home.

 

Kate Shaw I will. Strict Scrutiny as a Crooked Media production hosted and executive produced by Leah Litman, Melissa Murray and me, Kate Shaw produced and edited by Melody Rowell. Michael Goldsmith is our associate producer. Audio Support from Kyle Seglin and Charlotte Landes. Music by Eddie Cooper. Production Support from Madeline Herringer and Ari Schwartz. Matt DeGroot is our head of production. And thanks to our digital team Phoebe Bradford and Joe Mataskey. Subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at YouTube.com slash Strict Scrutiny podcast. And if you haven’t already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.