Published May 7th, 2021

Elie Honig:

From CAFE and the Vox Media Podcast Network, this is Third Degree, I’m Elie Honig. Well, welcome back everybody, it’s another Friday episode. Everyone knows it’s my favorite episodes because I have company and I love having someone else to kick things around with. Today we welcome back Young Eli, Eli Nachmany, Eli great to see you again.

Eli Nachmany:

Hey, great to be here, Elie. Thanks so much for having me on as always.

Elie Honig:

You have just finished finals, law school finals, correct?

Eli Nachmany:

That’s correct. Glad to be done. It was mostly administrative law and public law classes this semester which had a fun feel to it but really learned a lot.

Elie Honig:

Well only you, I think, would describe administrative law as “fun” and that’s why we love you here on the podcast, your enthusiasm for all things legal. How do you feel? I remember this real sense of just deep relief when finals were over.

Eli Nachmany:

I think it’s a combination both of relief and also, “Okay so what now?” So I don’t start my summer job for another couple of weeks and there’s this immense downtime. So, obviously we’re remote, we’re home. So I was walking around the house yesterday and just thinking, well, I’ve got nowhere to be for a minute or two. So you just walk around, get something to eat or something.

Elie Honig:

Yeah, hop on a podcast now and then. I got to ask you because I have very visceral memories of this. I assume now your grades just pop up on some sort of webpage or something, you hit refresh or something, right?

Eli Nachmany:

And that’s exactly right, and funny you mentioned it because I watched The Paper Chase again, time on my hands now. I watched The Paper Chase with my mom and they sent the grades in the mail at the end which is just such a different experience I couldn’t even conceive of it.

Elie Honig:

Well, I’m about to validate myself as “Old Elie” as the producers on this show like to call me and I deserve it, because I was the paper era as well, and I very clearly remember they would put our grades on like a serrated form, stick it in our mailbox which was in the commons where the cafeteria was and you would go heart-pounding to your mailbox and pull out this form then you have to struggle to rip it off, rip off the serrated thing without ripping your grades, and then you would just open it up and they’d be right there in dot matrix ink. Gosh, do I remember doing that? That’s nerve-wracking stuff. Well, listen, we know you’re going to ace your finals, you’re going to be fine, and you’re moving into the professional world this summer.

Eli Nachmany:

That’s right, and so this will be my last episode. It’s been the most wonderful experience being with you this semester. This has a Steve Goes to College on Blue’s Clues feel to it. But I’m just so grateful for having had the opportunity to be on, this has really been fantastic.

Elie Honig:

It’s been great. We have a lot still to talk with you about. I wanted to start today, I know that you in particular are a connoisseur, so to speak, of the federal courts, you know a lot about the federal courts. And so we’ve been talking on this podcast earlier in the week about the idea of a judicial commission. And first of all, the main headline issue is the possibility of Supreme Court expansion. I want to get your quick take on this, how likely, forget about whether it’s a good idea or bad idea, just how likely, zero to a hundred, do you think it is that we will have more than nine justices on the Supreme Court at any point in the next four years?

Eli Nachmany:

If I could put it at a number less than zero, I would, but I would put it at least or most zero. I think it’s a great fundraising tool, but also any serious person in Washington probably realizes where this goes. Chicago Law Professor Adam Chilton and a few others recently published a piece called The Endgame of Court-Packing, and they did a simulation where they found the median results of repeated parts in court-packing is you could get up to like 23 justices within 50 years or 39 justices within a hundred years. I don’t think anybody really wants to see that.

Elie Honig:

Yeah, I share your skepticism. I think the chances are 0.5 maybe out of a hundred or something as they talked about on my last Third Degree episode. It’s interesting too when you think about the numbers, how many, let’s say that Democrats, certain Democrats, certainly not all, but the Democrats who want this got this. You would have to ask them how many justices do you want? And I think the honest answer given that it’s a 6-3 conservative majority right now would be four, right? Because that would make it then 7-6, and you’d have 13 and it would go back and forth.

Elie Honig:

Look, again, I don’t want to get too deeply into the desirability of it, but I think practically, it’s sort of a dead letter. However, we do have this commission with 36 members, brilliant people on this commission from conservatives and liberals alike, Republicans, Democrats, it’s really a remarkable group. And I’m wondering what your views are on, are there more feasible, more achievable types of judicial reforms that we could get out of this?

Eli Nachmany:

I think there might be. What president Biden did is he brought together a bunch of law professors. And so they’re going to think different technical procedural type stuff. I’ll give two possibilities. One might be this thing called jurisdiction stripping, which is essentially Congress passes a law and says, no federal court can hear a case as to the constitutionality of this law. If this was passed during Obamacare, you might not have had court cases on Obamacare if there’s a fear that the court might strike it down.

Eli Nachmany:

There’s another one that’s called the shadow docket. And there was actually a house hearing on this recently, the term was coined in 2015 by professor Will Baude at Chicago. This is the set of opinions this issued by the court without any oral argument or standard process. Usually these are unsigned orders. There’s a few things you could do here. You could make the justices disclose their votes. You could establish a separate procedure for certain types of cases. Usually death penalty cases are on the shadow docket, or you can address their nationwide injunctions in lower courts, which usually lead to cases or orders in the shadow docket.

Elie Honig:

Let’s take those one at a time. Jurisdiction stripping. Let me give you my sort of, if I was back in law school, my response to that, and I guess it hasn’t evolved much. I’ll give you my response now. Congress will pass a law saying, okay, courts, including the Supreme Court, you all cannot take and rule on a certain type of cases. Why would that not be immediately challenged in the courts? And why would the courts not immediately say that’s unconstitutional Congress, separation of powers, balance of powers, checks and balances. You, Congress, can’t tell us the courts to keep our darn mitts off of some kind of case. In other words, wouldn’t any effort by Congress to say courts, you can’t decide certain cases, immediately be struck down by the courts.

Eli Nachmany:

This feels like a question on a federal court’s final exam. But the answer is simply is that in article three of the constitution, the constitution gives Congress the power to set what the jurisdiction of the Supreme Court or what the federal courts generally is in the first place subject to, there’s one thing called original jurisdiction, which is a whole separate issue. But basically Congress can tell the federal courts what they can and can’t hear. It has to do this by law. What you can do by law, you can also do in the other way. And if you say in certain instances, you can’t hear X, Y, Z case. Subject, maybe it’s some other constitutional restraints like due process. The consensus is they probably can do that to some extent.

Elie Honig:

Huh, but they can’t. I mean, look, if you take it to the extreme and Congress just decided we want more power. Congress, couldn’t just pass a law saying, hey, carts, you’re out of business. Your jurisdiction is now zero. There’s obviously got to be some sort of limit on that.

Eli Nachmany:

Well, I guess it depends on what the composition of the court is, right? If you just look at what the constitution says, outside of the original jurisdiction, I think it’s an open question. But really article three gives Congress the power to set what the jurisdiction is of the federal courts.

Elie Honig:

Okay. Now let’s talk about this shadow docket. And this is something I think that people don’t understand exactly what it is. Like you said, Eli, it’s these cases which get decided by the Supreme Court, in what we call orders. There are sometimes one line, there’s sometimes one paragraph. We saw a couple pretty high profile examples of this. If people remember when Donald Trump and his supporters were challenging the election results, in certain cases, the big decisions that came down from the Supreme Court rejecting those were part of this shadow docket. They were one paragraph orders. They were partially signed or unsigned. A couple of dissenters said who they were. There’s no typical process and fanfare. You don’t have your full sets of briefs and your oral arguments with the quilt pens and all of that, or nowadays on Zoom. But what puts a case on the shadow docket as opposed to the main docket? How does that work?

Eli Nachmany:

Yeah. Usually this is an emergency appeal. Often the party that will get, I don’t know if you’d call it deference, but the court will be most likely to take a look is if the federal government through what’s called the Office of the Solicitor General is looking for emergency relief on some issue. As you mentioned, right, you had the election law cases. A lot of the COVID restriction cases came through on the shadow docket, but historically this has been usually death penalty or other kinds of criminal procedure cases, and sometimes sort of called nationwide injunctions by district courts where one judge in say Texas or Hawaii or somewhere says, I am issuing this order and it applies to the whole country. We saw this on a lot of president Trump’s executive orders.

Elie Honig:

And so do you think there’s a reasonable chance this commission comes back and says we should limit that shadow docket?

Eli Nachmany:

I think it might. There was a recent panel of the house that they did an event talking about this. And there seems to be bipartisan interest in a variety of different reforms. But this is one that crosses party lines. And I think particularly during the Trump administration, the idea of the nationwide injunctions, not the actual shadow docket, but what leads to the shadow docket was seen by a lot of conservatives as problematic. And so maybe there’s a slight opening to the door. Maybe there’s some deal to be struck on the shadow docket, but we’ll see what the law professors come up with and we’ll see what Congress does with it.

Elie Honig:

Yeah. And I want to throw one more at you, because this is on the commission’s plate as well. Life tenure, the constitution now … Look, you’d have to amend the constitution I believe because the constitution says that all federal judges serve during good behavior, meaning basically unless, and until they’re impeached or retire or die. As I’ve noted before, when the constitution was drafted, if life tenure was much, much shorter, probably about half of what it is today. People have argued that it wasn’t intended to be this way, that people weren’t intended to spend five decades, potentially.

Elie Honig:

We’re seeing federal judicial nominees now in their 30s, this is in front of the commission. I put this in the category also of not going to happen, because it essentially requires a constitutional amendment. There are some work arounds, but to be real about it, it would need a constitutional amendment where you need two thirds of the house, two thirds of the Senate, three quarters of the states. I mean, this ain’t getting that. But let me make you now sort of Omni powerful Eli, and you don’t have to amend the constitution. It’s up to you. You get to press one of two buttons, right? We’re restarting our country right now, life tenure for federal judges or something less than life tenure, some defined period of terms. Which do you think is the better policy?

Eli Nachmany:

No, I believe in life tenure for federal judges. I think an independent judiciary is important. And moreover, look, this is a problem I think that we’re addressing on the backend, but I think you’d want to look more at the front end of folks who are say in their 40s or 50s, getting on the Supreme court are only getting there because the Senate is confirming there. I think the best remedy for this is not so much the legal or constitutional, but it’s the political remedy. If folks have a problem with people confirming justices or federal appeals court judges who are younger, you should tell your Senator about it. And so there’s a question of, we don’t want people who are confirmed at a younger age because I think it’s bad generally. Or I don’t want people who are confirmed at a younger age of justices who are appointed by presidents of the opposing party. But if it’s a general principle, tell your Senator, hey, we need more experienced people on the federal courts.

Elie Honig:

Yeah. It’s interesting. It’s always one of those moments where you feel your age. For me, I get this sometimes when I see a baseball player, Fernando Tatis and I’ll go Fernando Tatis. I remember his dad being a rookie. Now he’s a superstar, his son. And in fact, by the way, for baseball fans out there, I had the ultimate moment of that when I saw Mike Yastrzemski, who’s a star player on the San Francisco Giants and I thought, oh wow, Carl Yastrzemski son. Cool. And then I was like, wait a second. It’s his grandson. So I felt super old and I feel the same way when I see 38 year olds and 42 year olds being nominated to the federal bench. But look, this has become the strategy now. And we’re seeing it on the federal level. We’re seeing it on the state level, in New Jersey where I live. The last two nominees to the New Jersey State Supreme Court out of seven have been people who are 40 or under, they have to do seven years and then they get life tenure.

Elie Honig:

But the idea is we’re going to control these seats until 2055 until 2060, but this has become part of the political battle now. We were discussing before an really interesting question that you raised that I want to kick around. Will we ever again see a US Supreme Court nominee put up by a president of one party and confirmed by a Senate controlled by the other party? I think everyone would say, I hope the answer is yes. But given how things have gone recently, going back to the Merrick Garland nomination, it’s starting to look a little doubtful that we will ever get back to that. What do you think of that, Eli? Is there hope that we will have, let’s say the Republicans take the Senate in 2022, does Joe Biden, have any chance of getting anyone through between that and 2024?

Eli Nachmany:

I think there are multiple reforms you can do with the Senate confirmation process. Just as a general matter whether it’s judges or executive branch officials, professor Anne Joseph O’Connell at Stanford has written about some problems with confirmation. But I think Elie, the answer here is probably that you may have to re conceive of who can get confirmed when you have a Senate controlled by another party. There was a minute, and I think this was maybe a day or two when president Obama was considering who to nominate for the seat that was vacated when Justice Scalia passed. And there was a thought that he might actually nominate Brian Sandoval, who was the Republican governor of Nevada, more of a moderate type. And Mitch McConnell says, eventually Merrick Garland is nominated. He says, “I will not confirm Merrick Garland.”

Eli Nachmany:

You wonder if there might have been an opening if Sandoval was the nominee. And so we have to recall what Senator McConnell did with Merrick Garland was actually extraordinarily risky. You could have gotten, let’s say Hillary had won the election and the Senate went to the Democrats. You could have gotten a much younger, much more liberal justice. And so you can wait and hope for the best, but some senators and the current president might come together and say, we’re both not so sure of what our prospects are in the coming election. Yeah, we’ll both compromise. We’ll take somebody more middle of the road. Now middle of the road might mean something different for different people. But Brian Sandoval, would’ve been probably more to the right than Merrick Garland may have been confirmed in a Republican Senate.

Elie Honig:

Right. That’s interesting to think all these counterfactuals. What if, and then Garland, he’d never would have become a J or maybe he would have if he didn’t get through. I mean, there’s so many scenarios here. One thing that I will say, and I think it’s important that people understand this, that does make it maybe more possible or probable than people may think that we will see a cross party nomination and confirmation is the filibuster. Everyone’s paying a lot of attention to the filibuster nowadays, which essentially says you need 60 votes to get anything through the Senate. That does not apply to federal judicial nominees. They “Nuked” the filibuster for judicial nominees. For some reason that expression nuked always has to apply to getting rid of the filibuster. But they nuked the filibuster at first, as it relates to the lower courts, meaning federal district court, trial court judges and to the federal courts of appeals.

Elie Honig:

And then it was nuked with respect to the Supreme Court when it came to Donald Trump’s nomination of Neil Gorsuch. And in fact, all three of Donald Trump’s nominees got through with less than 60 votes could have been filibustered under the old set of rules, but got in with somewhere between 50 and 60 votes each. I suppose that increases the chance that we have a cross party confirmation and nomination. What do you think of that? Was it the right idea to get rid of the filibuster when it comes to federal court nominees?

Eli Nachmany:

Well, I think this was a decision that Harry Reid made in the mid 2010s when president Obama wanted to get a number of judicial nominees through and the Republicans in the Senate were holding it up. Then there was the question, do you get rid of it for the Supreme Court? And I think for the Republicans, they took the position that President Trump had nominated at that time, judge Neil Gorsuch and given his impeccable credentials and qualifications. If you’re not going to confirm Neil Gorsuch with more than 60 votes, you’ve probably not going to confirm anyone.

Eli Nachmany:

You have to remember that Neil Gorsuch was actually not the most, I guess prototypically conservative judge that president Trump could have picked. There were some chats that you might see Bill Pryor from the 11th circuit. And he was not picked. It’s a political calculation and they wanted to get Justice Gorsuch confirmed and they did. Looking back, I don’t think too many regrets, but we’ll see what the next 20, 25 years look like. And maybe the answer to that question for someone like Senator McConnell is different. I don’t know the answer.

Elie Honig:

And Gorsuch has surprised in some cases, he has been conservative as expected, but he has joined with the liberal and at times other justices on the LGBTQ equal rights, Civil Rights Act Case, on the Trump Taxes Case. There are consequences to this. The last thing I want to discuss when it comes to the court is Justice Breyer who interestingly went on record at Harvard Law School. I don’t know if you went or if this was a Zoom thing a month ago, where he came out fairly clearly against the idea of court expansion, but of course, all eyes are now on him. He is the oldest member of the Supreme Court right now. I think he’s 82 years old. And so there is pressure being put on him. I don’t know what’s being said to him directly, but certainly in the media to retire, because if you think about it, the window for Joe Biden to nominate and get somebody through the US Senate is as, well in one sense, it’s as thin as the 2022 midterms, when the Senate could well flip over to Republicans, but it’s even narrower than that.

Elie Honig:

It’s a Senator leaving or passing away and being replaced away from his window closing. There is some pressure on Breyer to step down. And I think what we’re starting to see more of is what I’ll call the brokered retirement or the negotiated retirement. Anthony Kennedy, he agreed to step down and there’s been some reporting on what went into that. And that opened up this space for Justice Kavanaugh. This seems to becoming more and more the norm, of course, obviously people will pass away and that can’t be controlled, but it seems that now there’s sort of this lining up. And what bothers me about that is it comes with a premise or an underlying assumption of certain judges are on certain political teams.

Elie Honig:

And there seems to be this appeal to Justice Breyer. And I think to a lesser extent, there was an appeal, public appeal to Justice Kennedy. And at times, even at the end of Trump’s term, people were putting this out there again. I don’t know what was being said directly, but Thomas might think about stepping down because he’s, I think the oldest of the conservatives, and that’ll give Trump a fresh, younger nominee, but what bothers me is this underlying assumption that that justice is on this team. That justice is on that team. What do you make of that, Eli?

Eli Nachmany:

Yeah. Justice Breyer was very explicit, I think during the speech that you talked about at Harvard, about, we now talk about justices as oh, so-and-so was appointed by a Republican, so-and-so is appointed by a Democrat. I think there are different things that go into why justices retire and what their level of comfort is. I think the factor that may be weighing the most in favor of Justice Breyer retiring. Now, whether it’s this term or next term, you don’t have any chance of Senate flip, at least the election before the end of 2022. The big question is who’s going to be my replacement.

Eli Nachmany:

Justice Kennedy was replaced by Justice Kavanaugh, who was one of his former clerks. And actually the pick before that Justice Gorsuch was also a former Kennedy clerk. It’s looking now like there’s something of an emerging consensus or a developing consensus that Justice Breyer’s replacement might be Judge Ketanji Brown Jackson. I think she’s on the district of DC now. She’s been nominated to the DC Circuit. She’s a former Justice Breyer clerk. If she’s the replacement, and not that, that would be the dispositive factor or that might sway him all, but that might be a factor, at least in how the justice thinks about it, of what my legacy is going to be. Oh, well, it might be nice if one of my clerks takes over.

Elie Honig:

It’s almost like they have these family trees that step into these seats. It’s interesting you mentioned Ketanji Brown Jackson because I saw her in action. I actually was in the DC Courthouse. I was covering a hearing that she presided over with one of these congressional subpoena battles relating to the Mueller investigation and the impeachment. They had me cover this for CNN and I was in her courtroom. And I got to tell you, she was enormously impressive. I’ve seen very few judges ever, and I’ve been in front of dozens and dozens, maybe a hundred. I don’t know, federal judges who came this prepared. She knew the briefs as well or better than the lawyers. She was very much in control of her courtroom and there was media there and there were big ego attorneys there. She held this hearing together beautifully. She was kind, she created a nice courtroom atmosphere.

Elie Honig:

She wasn’t barking at people or talking down to people. And just the sharpness of the question, she asked. The intellectual sharpness of the questions that she asked went right to the heart of the matter. I came out of there, enormously impressed with her, and I think she’d be a really interesting selection. Of course, Joe Biden explicitly promised when he was on the campaign trail, that he would nominate the first black woman to the Supreme Court. Perhaps Judge Brown Jackson will become Justice Brown Jackson in the near future. Eli, I know you prepared one final question for me before we send you off into the real world.

Eli Nachmany:

Yes I did. Elie, following up on the conversation about court reform, there’s been a lot of discussion of judicial ideology and undoubtedly, this is true in the criminal context. When you were a prosecutor, did you ever feel like there were judges before whom you had to present a case totally differently than the median and federal judge?

Elie Honig:

Oh, I love this question. I’m going to answer this. Yes to, did you ever feel like you had to present things differently to different judges. But no, based on politics. And I don’t want to come off sounding like Pollyanna, SDNY guy, nothing’s political, everything’s justice, and truth, and facts, and law, and politics never come into play. But I mean this. First of all, when it came to a jury, I tried to present the same way, because juries are juries. Judges had different rules and different things they might like or not like, but I’m talking about more of a legal argument that you’d be presenting to a judge. Absolutely. We knew the book on every judge. This judge will read every single page and footnote of your brief, or this judge will not even look at your briefing papers.

Elie Honig:

There were a few like that. We actually had, actually, I can say this at the SDNY, there was a judges guide. It was an internal document. And it would say things as big as this judge always messes up this one hearsay rule to. This judge won’t let you leave the podium, or this judge will let you leave the podium, but not touch the jury box. We had the ultimate insider’s guide to every judge and you were supposed to add to it, like if a judge showed that she liked her briefs at a certain font, you would note that. Or if a judge said that you never have to ask for permission to approach the bench, we would note that. Yeah, all of those things we would know, and study, and get, and consider, and take into effect. But was it ever political?

Elie Honig:

I mean, honestly, I think if you took the list of the 50 or 60 or 70 different federal judges that I may have appeared in front of, in the SDNY and just read down into me and said, was this person appointed by a Democratic or Republican president? I think I would do not much better than a coin flip. I mean, there’s a handful I know for sure, because they are my personal friends or whatever. But I’m just thinking about some of the judges, judge Barbara Jones, Kimble Wood, Alvin Hellerstein, Judge Daniels. I have no idea, sitting here right now. Do we think about it politically? Not at all. Were there certain judges known to be more pro prosecution or tougher sentences, more pro defense? Absolutely. But did we ever tie that to a D or an R? No, not whatsoever.

Elie Honig:

And I do think that the criminal realm is somewhat removed from these political cases. We have this unfortunate thing that happens now, and I do it and we have to do it in media where, when a judge makes a politically loaded or politically impactful decision, you always say nominated by so-and-so. And it shouldn’t matter, but it does. But it really, I think is a step or two removed when it comes to the criminal context. I think it’s a lot harder to say this judge allowed in this piece of evidence and he’s a Bush nominee or this Judge gave that sentence, but she’s a Clinton nominee. Again, it’s reality. It’s the real world. Judges are human beings and you have to account for that. But one of the blessing things about being a DOJ prosecutor is politics do not come into play on that count.

Elie Honig:

So Eli, I will bid you adieu, young Eli, as you now enter the real world. I really look forward to seeing what you do. You’re going to end up on the bench. I’m going to go on record right now in may of 2021 and say, you’re going to end up on the federal bench. Some president, probably a Republican is going to nominate you. Maybe 10, 15 years from now. And you’ll be on the bench for the next 45 years after that. And I look forward to attending your swearing in. So Eli, thanks for being with us for these last several months. It’s been wonderful to have you.

Eli Nachmany:

Well, Elie, you’ve been so kind and a lot of work, but between now and wherever my career goes. Just wanted to thank you and your staff really for the opportunity. And I think dialogue is so important. It’s been so wonderful to have the opportunity to chat with you every few weeks. And I’ve so enjoyed talking with you and talking to your audience and I’m wishing you all the best right back at ya.

Elie Honig:

Thanks Eli, best of luck in the future. And thanks everyone for listening to another of Third Degree. As always send us your thought, questions, comments, to lettersatcafe.com. Third Degree is presented by CAFE Studios. Your host is Elie Honig. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore. The audio and music producer is Nat Wiener. And the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Jake Kaplan, Noa Azulai, Chris Boylan, and Sean Walsh.