Summer of SCOTUS 2: The Myth of Merit, part 2

Aughie and Nia discuss the educational backgrounds of the Justices, as well as their career backgrounds, political affiliations, and administrative experience. There are also several tangents taken.

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Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.

N. Rodgers: Hey, Aughie.

J. Aughenbaugh: Good morning, Nia. How are you?

N. Rodgers: I'm good. How are you?

J. Aughenbaugh: I'm good. Thank you.

N. Rodgers: I am especially good because we are wrapping up this summer of behind the curtain, behind the robe, as opposed to underneath the road, which is creepy. We don't want to know what's underneath the robe. Although I think actually that J. Rob probably wears those Hawaiian trunks like you see the dunes on the beaches. Big tall black socks and sandals, don't you think that's what he's got under his robe is like some surfer do. I want to think that anyway because it makes me happy.

J. Aughenbaugh: Listeners, beyond Nia taking thinking those places mentally.

N. Rodgers: Sorry. I think they're probably wearing jeans and t-shirts and most of the time under there. Then they have the fufu color that makes it look like they're wearing.

J. Aughenbaugh: So listeners, this is our last episode of summer of SCOTUS, where we're going behind the curtain. We're lifting up the veil on some topics related to the court.

N. Rodgers: Right. This directly relates, by the way, what I think they were under their robes.

J. Aughenbaugh: Notwithstanding Nia thinking that supreme Court justices are perhaps wearing less professional clothes than we can imagine. I happen to be of a different perspective. I think that particularly with the justices that we have been nominating and confirming, most of them have been in professional settings so much of their life that they continue to wear professional clothes underneath the robes.

N. Rodgers: See and I think Scalia wore t-shirts that said, I'm with stupid with an arrow pointing to either side of his colleagues. I want to believe that. The reason that I think it plays into our last episode here is we're going to talk about generalized diversity, what we've been talking about all along. We talked about the religious diversity on the court, or in fact a lack thereof for most of the years of the court. We've talked about the lack of gender diversity until Sandra Day broke the glass gavel as it were. I don't know if that's even a proper metaphor, soon as they call it a glass ceiling? No.

J. Aughenbaugh: Well, I don't think the metaphor applies, but ascended the bench. Because those steps, we're not an option for women before Sandra Day O'Connor.

N. Rodgers: Right.

J. Aughenbaugh: Just like they weren't an option for African Americans before Thurgood Marshall.

N. Rodgers: Thank you. We have the Rice Diversity question that is now being answered with a black woman for the first time.

J. Aughenbaugh: Yeah.

N. Rodgers: So all of those diversity issues have been met and wrestled with as people have joined the court. Except for one I think, and that's the one I want to talk to you today. The reason that my t-shirt metaphor plays is because you just talked about the life experience of Supreme Court Justices.

J. Aughenbaugh: Yes.

N. Rodgers: Their work experience and their life experience. Now, we have had several Supreme Court Justices that were not born to money. That's been a historically true thing.

J. Aughenbaugh: Yes, throughout the Court's history, we have had justices who have to use a different metaphor, pulled themselves up by their bootstraps.

N. Rodgers: They have been objectively poor.

J. Aughenbaugh: Yes.

N. Rodgers: Made the court through hard work, they went to right schools, they clerked for the right folks, they held the right jobs.

J. Aughenbaugh: In some of it was, what can happen stance. I mentioned this when I teach judicial politics. You can, in the worst way, want to serve on the United States Supreme Court. But if there aren't any vacancies on the court for the president is of a different ideological or partisan bent than you are, then you're not going to get picked. You're just not going to get picked.

N. Rodgers: Well, and with some windows, we go quite a number of years before there's a vacancy.

J. Aughenbaugh: There was a period on the Rehnquist Court. The Court led by Chief Justice William Rehnquist. Where there was no turnover on the Court's membership for over a decade.

N. Rodgers: You might be primed and ready and unless you're also a murderer, there's no opening, right?

J. Aughenbaugh: Yeah.

N. Rodgers: Or unless you've tried to get the president to pull an FDR thing where I'm just going to put extra seats on the court because I feel like it which also, as we see with President Biden, died out. There was some threat of that.

J. Aughenbaugh: Yeah.

N. Rodgers: Then it's something that regularly people talk about. We should just add seats to the core as if they won't eventually have the same problem.

J. Aughenbaugh: Yeah.

N. Rodgers: Math doesn't change this problem, it just kicks the can down the road.

J. Aughenbaugh: Yeah. Because if one political party goes ahead and add seats to the Supreme Court. Guess what, the other political party is going to do when they get in charge.

N. Rodgers: Or even if they don't. If for some reason the court drops two or three folks in a year for retirement, for passing for whatever, now the president of the opposition party gets to put people in those seats that you thought were safely whatever. Now, you have again the same problem. But what I wanted to get at with this episode is that and we touched on it briefly in last episode which is, they're the route that you take. That's only been in the modern context of the court. That you take the elite under school, the lead school, the clerkships, and then the judging or a big law firm. But back in the day, you had a lot more variety. The court is actually less diverse now.

J. Aughenbaugh: In some ways it is less diverse so on certain measures as we've already discussed.

N. Rodgers: Right. It's more diverse.

J. Aughenbaugh: Right. Probably by the time this podcast episode is released, we will have once again, three women on the court, excuse me, four women. Justices Sotomayor, Kagan, Coney Barrett, and the fourth will be Brown Jackson.

N. Rodgers: Just as side note, I know it's not part of our discussion today, but when do new justices, like do they have to wait for the new term to start?

J. Aughenbaugh: Well, a lot of it depends on when the justice they are replacing decides to retire. Now, Stephen Breyer did something very unusual. He announced months in advance he was going to retire at the end of the current Supreme Court term.

N. Rodgers: Which goes through July?

J. Aughenbaugh: Typically the end of June, so the way he worded it was when the court finishes its business for this term, he's going to retire. Typically, what we've seen over time is that justices will complete a term, then in the summer, they will go ahead and say, I'm retiring or they die, and if they die
unexpectedly, see Scalia, for instance, dying in February, a day or two before Valentine's Day in 2016. That's different. At that point, the new justice takes office, swears the oath once they've been confirmed.

N. Rodgers: If the confirmation hearing doesn't last that long, then that could conceivably be within a month or two.

J. Aughenbaugh: Yeah. On the other hand, as we saw with for instance, the Brett Kavanaugh confirmation process, he was announced in early July by President Trump. But the Supreme Court term actually began before he was confirmed by the Senate. If the confirmation process doesn't go well, you can be cooling your heels, waiting to take your seat. A lot of it depends on variables be on the control of the nominee.

N. Rodgers: Although I have to assume that since we're going to talk about background for just a second, I noticed on your list of things that people had done before they came to the Supreme Court and we're going to talk about that because I find it fascinating. Librarian is not on there, so I apparently need to fix that.

J. Aughenbaugh: Yes, you do.

N. Rodgers: Because librarians have made great Supreme Court justices, I believe. All librarians are brilliant at the law and patients of the law.

J. Aughenbaugh: A lot of the work of the justices is looking up stuff.

N. Rodgers: Is research. That's right.

J. Aughenbaugh: Is research.

N. Rodgers: But I assume that when you are a business person or when you're a lawyer at a big law firm, actually the nominee also needs to give notice. You don't want to quit your job until you have another job. That's the standard of job search for everybody. By the way, listeners, if you have a job, don't quit your job till you get another job. It's just easier.

J. Aughenbaugh: That is a career advice, yes.

N. Rodgers: You had say big law firm X, and you've been put up as a nominee. Clearly you've told your boss because otherwise your boss is going to find out in ways that are not good for your future career. You've told your boss and you've said, I would like to continue working at this firm if I am not confirmed by the Senate, your boss says ''Fine.'' In the time that you're waiting for confirmation, they are moving things off your plate. They're giving your clients to other lawyers in the firm because they can always give them back to you. Or you can generate new clients, but they need to get those people's work done.

J. Aughenbaugh: Correct.

N. Rodgers: You're busy preparing for nomination hearings. But you still need to give notice, just sorry, is another piece of career advice for anybody listening to this who is new to the job market. Not showing up one day for work is a terrible way to quit your job. You should give the person at least two weeks notice. You should say, I found another job, and give your boss a chance to say, can we counteroffer or I wish you well, and I want to wrap up your work. That's the thing you need to wrap up all of your work, everything that you've been doing so that you don't jack the next person who comes in your job. I'm assuming that the nominee has to do that too. If your nomination went through in a day, which at this point in American politics would be nothing shy of a miracle. But if it went through in a day, it's not like you could show up the next day and say, see you, I'm going to go be a Supreme Court, you could, but what a jerk you would be and you'd be burning a lot of bridges in the legal profession or whichever profession.

J. Aughenbaugh: The nomination of Brown Jackson really highlights this pretty nicely. Once President Biden announced that she was his nominee to replace Justice Breyer, the current court that she serves on, the DC Circuit Court of Appeals took her out of rotation were being picked for their three-judge panels.

N. Rodgers: I would assume that if you were any other kind of judge and you had a docket, you would need to get through the docket or hand it off to other people.

J. Aughenbaugh: Again, because the recent slate of nominees to become Supreme Court justices have all been federal court judges, with the exception of Elena Kagan. Elena Kagan was the solicitor general for the Obama administration. But when the Obama administration began to consider her, she actually started removing herself from cases that her office was thinking about appealing to the Supreme Court so that she would not have to recuse herself from those cases if she was picked by the president, confirmed by the Senate. As you point out here, Nia, it's a rather delicate employment situation.

N. Rodgers: That's really smart though to remove yourself from cases that you know you might have to adjudicate in a different position. She's obviously smart because she's a leading Kagan.

J. Aughenbaugh: We can get to that in just a few moments. But let's return to something that you wanted to go ahead and discuss, which is the lack of professional diversity of the modern Supreme Court justice.

N. Rodgers: Yes. Right. Because on your list, sorry listeners, Aughie makes notes for these. If you're not aware Aughie makes notes for our podcast. I know we should probably script them but we're just never going to do that, so that's just how it is. But he makes notes.

J. Aughenbaugh: We figured out early on listeners.

N. Rodgers: That scripted ones aren't going to work.

J. Aughenbaugh: That Nina and I just don't do well with scripts.

N. Rodgers: Yeah.

J. Aughenbaugh: We attempted to go ahead and use scripts earlier on and we found ourselves deviating so much from them.

N. Rodgers: Yeah. It ended up being a waste of time.

J. Aughenbaugh: Yes.

N. Rodgers: It's not what we do here. What we do here are conversations. We follow conversations.

J. Aughenbaugh: If we're actually paying attention to what the other person is saying, we're going to go off on tangents.

N. Rodgers: Guess what? You can't script a tangent.

J. Aughenbaugh: You can't script a tangent.

N. Rodgers: Yeah. It reminds me I heard this story one time about, and I don't know whether listeners will know the film Good Morning Vietnam. But there were several parts in the script where it would say at the top of the page Robin Williams talks and then there'd be a blank piece of paper or two or three blank pieces of paper. Then they would come back with the rest of the script.

J. Aughenbaugh: I've seen interviews with the director of that movie and the director of that movie is Barry Levinson. Barry Levinson said on one hand directing that movie was very difficult because when you're used to dealing with just normal actors they want words on a page of a screenplay. But he said with Robin Williams, we found out early on in the recording that that just didn't work.

N. Rodgers: Right.

J. Aughenbaugh: He said there were some days of filming where-

N. Rodgers: It'd just be hours of him improving.

J. Aughenbaugh: Just riffing.

N. Rodgers: Not to suggest that Aughie and I are anywhere near as talented as Robin Williams.

J. Aughenbaugh: Oh my goodness, no.

N. Rodgers: We both would never even dream of saying we could fit those shoes. Yeah. No.

J. Aughenbaugh: But in my notes. Okay.

N. Rodgers: Yeah. You have a bunch of listed things and most of them makes sense.

J. Aughenbaugh: Yes.

N. Rodgers: Elected officials, diplomats, businessmen, although I'm interested in the businessmen so I want to come back to that, general practice lawyers, state court judges, all of those make sense. But then you have in here professional athlete and I'm like what professional athlete was on the court? I'll tell you where my mind went. My mind went to one of them must have been a tennis player or a golfer. Because the point court justice villain genteel sportswear.

J. Aughenbaugh: Yeah. It's an elite country club.

N. Rodgers: Exactly. I'm thinking of those sports. It's not though, is it?

J. Aughenbaugh: No. In fact, Nia, will opt-in a justice that I did my dissertation about. Justice Byron White was an all-American football player at the University of Colorado. That's actually where he got the nickname that he absolutely despised, Whizzer White. After he graduated from college, he had a Rhodes scholarship to study law over in Great Britain. After he did that when he came back he got drafted by the Pittsburgh Steelers, interestingly enough my favorite football team. At one point he was the highest paid professional football player in the United States but he was forced to choose. Because the next team who had his contract, I believe it was the Detroit Lions went ahead and said that he could not go to law school while also being a professional football player and Byron White gave up his career as a professional football player.

N. Rodgers: I can't imagine that now.

J. Aughenbaugh: Yeah.

N. Rodgers: I can't imagine Tom Brady saying you know what, I'm going to give up these millions and the adulation of my fans and all the perks that come with that.

J. Aughenbaugh: When it does happen, what comes to my mind was a couple of years ago an offensive lineman for the Kansas City Chiefs when they won the Super Bowl. I am blanking on his name but he went ahead and quit football so he could go to med school. There was an offensive lineman for the Baltimore Ravens who just went ahead and quit because he wanted to get his advanced degree in mathematics.

N. Rodgers: We know that movie stars occasionally do that. They quit acting for a period of time to go to, I don't know. I think Jodie Foster went to Yale and other people have gone to various schools. But I would think that that is not a normal and like I said, the sport itself surprised me because when you said White was a football player, I was like wait, what? Because that just doesn't seem like. Good for him and apparently he was a great justice. That's all cool. You have in here soldier.

J. Aughenbaugh: Yeah. There there were two distinct periods where we produced a fair number of Supreme Court justices who had military backgrounds, who actually served active duty post-civil war and post-world War I and II.

N. Rodgers: I've talked about at Arlington how there are soldiers. Okay. After the Civil War makes sense too because everybody was involved.

J. Aughenbaugh: Yeah. I mean, because there was the North and the South.

N. Rodgers: Okay.

J. Aughenbaugh: But I mean, you had soldiers, elected officials.

N. Rodgers: Well, president Taft.

J. Aughenbaugh: Okay. But hold on here. Now, I get to go ahead and quiz you here. Can you name the last Supreme Court justice who had experience as an elected official? Where they ran for office, won an election and served as an elected official?

N. Rodgers: Is there someone after Sandra Day O'Connor or is she the one?

J. Aughenbaugh: She's the last one.

N. Rodgers: Okay. I noticed she was in Arizona as some elected official? I don't remember what.

J. Aughenbaugh: She served in the state senate.

N. Rodgers: Okay.

J. Aughenbaugh: Okay. Elected officials, diplomats slash bureaucrats. John Jay was one of our first chief justices, our the first chief justice.

N. Rodgers: Who also was our secretary of state or something. No. He quit.

J. Aughenbaugh: He quit to go ahead and be governor of New York.

N. Rodgers: That's what it is.

J. Aughenbaugh: But while he was Chief Justice, Washington relied upon him and he actually negotiated the then widely criticized Jay Treaty. It was known for him because he negotiated it. But we've had diplomats. Think about this listeners. Our first prominent Chief Justice was John Marshall. John Marshall's job before he became Chief Justice was Secretary of State. He was Secretary of State.

N. Rodgers: That's what I was thinking.

J. Aughenbaugh: Okay. He was Secretary of State. His successor was Chief Justice Roger Taney served as the secretary of the Treasury for president Andrew Jackson.

N. Rodgers: That was a tough job.

J. Aughenbaugh: Yeah. Particularly with a boss who basically didn't like anybody to tell him what he could do or not do.

N. Rodgers: I was going to say anybody who worked for Andrew Jackson and didn't commit, hara-kiri was a pretty tough customer.

J. Aughenbaugh: We've had business people, we've had state court judges, night school graduates. Chief Justice Warren Burger got his law degree from St. Paul law school which at the time was a night school or in today's probably circumstance it would be an online school.

N. Rodgers: He worked a day job,

J. Aughenbaugh: He worked a day job.

N. Rodgers: Just a regular?

J. Aughenbaugh: Yes.

N. Rodgers: You have on here actuaries?

J. Aughenbaugh: Yes.

N. Rodgers: Like, isn't it the people who decide how much insurance should pay for an eye or a finger or whatever loss of a loved one?

J. Aughenbaugh: Yes.

N. Rodgers: A newspaper man.

J. Aughenbaugh: Yeah. At least two were Supreme Court justices were publishers of newspapers. In one case, it was the family business.

N. Rodgers: Which one is that?

J. Aughenbaugh: I knew you were going to ask.

N. Rodgers: I did that thing.

J. Aughenbaugh: Yeah. You stopped me.

N. Rodgers: I'm sorry. That's okay. But we've had journalists. What we're getting at here listeners is the question of back in the day, you had all these different people with these different experiences on the court together. A night school and I don't know if they were all on the same time, just forgive me here. But a night school graduate and a journalist and a diplomat all on there together are going to bring a diversity of understanding of the American experience in a way that I'm not entirely certain the court has now. I don't know that, as long as there's enough diversity to understand the regular Americans experience at this point.

J. Aughenbaugh: I mean, listeners, Nia and I are not saying that having really smart credential people is always a bad thing. I mean, because again, in the most recent podcast episode is I went ahead and remind the listeners, the two people in this conversation have multiple degrees. I mean, we think that higher education is a good thing.

N. Rodgers: Lots of us have worked in it for all of our adult lives.

J. Aughenbaugh: But when you're talking about applying the law in addressing legal disputes, right now we have a bunch of people who basically look at the law from a very limited set of experience. Nia, you heard me say this off recording. But one of the reasons why I liked Judge Brown Jackson as a potential nominee to the Supreme Court was that in addition to checking most of the boxes of the modern Supreme Court justice, she also had a couple of jobs that are different than most of the colleagues that you will be joining on the court. At one point she was a public defender. The last time we had a justice with any criminal defense experience was Thurgood Marshall.

N. Rodgers: Wow. That's 40 years. It's a bunch of years, sorry I'm not going to try to demean that.

J. Aughenbaugh: He served until the end of the Bush 41, he retired.

N. Rodgers: Oh okay.

J. Aughenbaugh: But he got on the court in the 1960s.

N. Rodgers: That's what I was thinking.

J. Aughenbaugh: When he first got on the court. She also served on the United States Sentencing Commission, at one point, was the vice chair, so she has experience applying or implementing policy, which again, is somewhat different than most of her colleagues. I mean, that's why I thought, in addition to her experience as a federal judge and going to Harvard, blah blah blah, and being a former Supreme Court clerk, what really appealed to me was she was going to bring a different set of experiences. Right?

N. Rodgers: Right.

J. Aughenbaugh: One of the criticisms of the current crop of justices is that they are one type of lawyer; they're one type of Judge. Most of them have not been trial court judges. Most of them have not practiced the law outside of government or the academy. Most law in the United States never goes to court and is hardly ever impacted by law review articles. We're talking about family law practitioners, we're talking about tort attorneys, we're talking about general practice law firms that he handle everything from DUIs and traffic citations.

N. Rodgers: Malpractice.

J. Aughenbaugh: To malpractice, to making wills and handling estates or dealing with disputes with the IRS. They don't care about if there's a doctrinaire change coming from the Supreme Court that is being discussed by a handful of law professors in the United States. Which is not to say that that is unimportant, but a lot of the cases that come to the Supreme Court force the court to go beyond legal theory and actually contemplate how is this going to impact the parties? How's this going to impact the nation?

N. Rodgers: If you don't have a huge amount of experience doing that? The other thing that strikes me about the Supreme Court is if you've been through the system that here, modernly, they have mostly been through then you're also, I think, and this is just my opinion, that your writing and your explanation of the opinion is written in a certain way. It's written for academia, it's written for other judges and your average person has to have somebody like, and you named a bunch the last time we were talking and I'm just going to go with the ones I know, Nina Totenberg, Jeffrey Toobin, and then you, people to say what that means for you as a regular human is blah, blah, blah, blah, blah, blah, blah, and then it gets translated. There's a part of me that's like maybe if people had more raw living experience with explaining concepts like that to non-lawyers or non-law students, the opinions might be written or there might be this is what I really want and J. Rob, if you're listening, which I know you're not, but if you are one good on you with the beach shorts and two, please put in a TLDR that's a simple thing for people who want to basically understand what you're trying to do. I know that that's not how things are written and I tell students all the time, "It's too bad they don't have that on cases, that's what your professor's for, good luck. You can go ask your professor." But a lot of us don't have a professor. A lot of people who are not in academia and so they get these opinions and they don't know what that means for everyday living. You mentioned a case earlier when we were off air and I want to bring it up here because it's a good example of this to me; is the case where they decided that the Boston bomber could get the death penalty?

J. Aughenbaugh: Yes.

N. Rodgers: That has ramifications for every other person on death row or potentially who wasn't on death row but could be moved to death row. There's some real issues there that are.

J. Aughenbaugh: If they don't write clearly enough that it makes it really difficult for those people who are on death row. Yes, many of them are represented by attorneys, but how can they help out with the defense if a reasonable person cannot pick up a Supreme Court opinion and understand what the court is saying. Nia, I'll give you a classic example of the point that you're making.

N. Rodgers: Great.

J. Aughenbaugh: The Supreme Court's decision in Brown versus Board of Education. The majority opinion was written by Chief Justice Earl Warren and constitutional law scholars have criticized the opinion for not being legally rigorous and well-developed in terms of theory. But many practitioners and many common day everyday Americans immediately understood what the court was doing because Earl Warren wrote a very short, and I would argue, easy to understand this is what we are doing and why. It may not have made all that much sense in terms of legal theory and he certainly pulled his punches in regards to acknowledging that the court was basically overturning decades of precedent and why they were doing it, but the bottom line was you could understand that the court was saying desegregation of public schools was unconstitutional. I'm afraid, and others are afraid that because all of these justices, and for that matter, most of their clerks have a similar experience, they're not writing for the public. They're not writing for government officials who may have to implement these rulings.

N. Rodgers: Right. That's hugely important when they decide things about administrative law, when they're talking about the OSHA ruling that you're going to talk about in a couple of three weeks when they wrap up. Sorry listeners, you'll hear it next week because of the way we release these. But we're early in June and they're going to come out and August going to talk about all the 33 cases they're deciding. Good luck with those episodes. One of those is whether OSHA has the right to.

J. Aughenbaugh: Has the authority to go ahead and require businesses that had more than 100 employees could require those employers to implement a COVID-19 vaccination program. The Supreme Court issued a stay so that that regulation never got implemented. But why? What's the meaning or the takeaway for other federal agencies?

N. Rodgers: Exactly.

J. Aughenbaugh: Because other federal agencies look to Supreme Court cases to go ahead and figure out what they can and cannot do.

N. Rodgers: When I'm in charge of the Space Force, I am not a trained lawyer. I need for them to be clearer in telling me what I can and cannot do.

J. Aughenbaugh: There's going to be another case that we'll probably get to. Can somebody bring a lawsuit against the cop who didn't give them the Miranda warning?

N. Rodgers: Good question.

J. Aughenbaugh: This has a huge impact for not only people who might be suspects of committing a crime and are interviewed by the cops. But this has a huge impact on police officers.

N. Rodgers: Right, and policing in general.

J. Aughenbaugh: Because if police officers who may have made an honest mistake and failing to give somebody the Miranda warning, but then can be sued down the road.

N. Rodgers: They're going to Mirandize you for every conversation you ever have with a police officer from then on.

J. Aughenbaugh: Or they may be more leery or less willing to actually go ahead and have conversations with members of the public when they're investigating crimes. Because they're going to be like, well, if I add this conversation, do I have to give them the Miranda warning? If I give them Miranda warning, they're going to shut up, so I'm not going to get any information to help me investigate this crime.

N. Rodgers: Right. It's chilling effect on investigation which we don't want as a society. Because we generally want them to be able to investigate crimes and find out who did it and get to punish that individual or individuals.

J. Aughenbaugh: Here's the third problem with the lack of professional diversity. Again, we touched upon this in a previous podcast episode. You bring together a bunch of high ego, type a over achieving all stars. These are intellectual all starts. Say what you will about Supreme Court justices today. But I will challenge anybody who says, we don't have a bunch of really smart justices.

N. Rodgers: Just because you like someone does not mean they're not intelligent.

J. Aughenbaugh: Or you dislike somebody, doesn't mean that they're not intelligent. You can like somebody, the way you said it was -

N. Rodgers: Oh sorry.

J. Aughenbaugh: Just because you like somebody, I'm like, yeah, I like a lot of people, they're probably not the smartest apple in the barrel, but I still like them.

N. Rodgers: Sorry, what I meant was dislike. Just because you dislike someone because of the ideological or political or past experiences or whatever, doesn't mean that person is not smart. It doesn't mean that person is not a well-educated individual.

J. Aughenbaugh: But you bring all those talents together in a conference room.

N. Rodgers: Which brings that and you get the scorpions. It's my favorite thing that you talked about is you get the scorpions, you get all these prickly people who are going to form alliances and they're going to form clique. It's like high school. They're going to have ins and outs.

J. Aughenbaugh: It is the Supreme Court version of Mean Girls. We saw this and again, the metaphor is scorpions in a bottle was the name of a book written by a Harvard Law professor, Noah Feldman about the justices appointed to the Supreme Court by President Franklin Delano Roosevelt, right?

N. Rodgers: Right.

J. Aughenbaugh: Some of these folks were just superstars.

N. Rodgers: But we throw them in that room together and void and turning a petty 12-year-old.

J. Aughenbaugh: Yes, and again, let's say somebody gets nominated to the court, they're confirmed, and most of their experience has been as a state judge. Let's think judge. Perfectly competent, they have good judicial temperament, but they understand that as a state judge it's a high-volume business.

N. Rodgers: Chap, chap people. Lets keep it moving.

J. Aughenbaugh: You can't spend months trying to find that right sentence for an opinion. No, you cut to the chase. You address the legal question. You write it clearly enough so that the parties in the case and others in similar situations can understand it, and then you move on. You got to move on. You may not even remember some of the decisions you issued as a state court judge.

N. Rodgers: But they'll find them when you go up for a nomination.

J. Aughenbaugh: Of course they will. But personally may not, because it's a high-volume business It's like our experience when we were graduate students and at the end of the semester we had written so many papers. You pull up the paper and you're like, I don't recall writing this.

N. Rodgers: My name is on it and I don't change it. I know I wrote it.

J. Aughenbaugh: But my name's on it. I got a grade. I vaguely remember looking up the books for this, but I think I might have written four papers that week. Right?

N. Rodgers: Right.

J. Aughenbaugh: Or you get somebody who was the head of an agency, and you got to manage 2,000 employees. You don't have time for drama, you don't have time for petty disputes. You know why? Because you got a 2,000 person agency who's getting pressure from Congress, the media, and the president to get something done. You subvert your ego.

N. Rodgers: You get the work done.

J. Aughenbaugh: You get the work done.

N. Rodgers: When I'm in charge of the Space Force that's how it's going to work because there's a huge amount of paperwork that goes along with being secretary of something like that. Before we wrap up this episode, I know that there's a recommendation in your notes that I am not sure where it comes from.

J. Aughenbaugh: The recommendation comes from University of Tennessee law professor Ben Barton, who's written a book called The Credentialed Court. Barton suggests that one of the ways we could possibly address this rather limited professional experience -

N. Rodgers: I loved the suggestion.

J. Aughenbaugh: Of the modern supreme court is to resurrect something that used to be required of all supreme court justices. What practices that knee up?

N. Rodgers: Circuit riding. When they had to go out and adjudicate things out in the big wild world.

J. Aughenbaugh: Yes. For listeners, if you're not familiar with this, when the Supreme Court was first created by the United States Congress with the Judiciary Act of 1789. The Supreme Court had very little business, because the government had just been formed, and most legal disputes were handled at the state level. The United States Congress required each justice to ride circuit, meaning they would have to spend a couple of months out of every year participating in lower federal court cases as one of a number of either trial courts or appeals courts. It actually forced the judges to see the kinds of legal disputes that were out in the rest of the country. They had to work with lower federal court judges, so they would get an appreciation of how the Supreme Court should write an opinion so it could be used in interpreted in a meaningful manner by the lower federal courts. But moreover, they got to interact with lawyers and the public.

N. Rodgers: I was going to say, and defendants and prosecutors and attorneys and regular judges who do this in the regular world, and when you go out to dinner, the waitress and wherever where you are, people say, I know what it's like to live in Seattle because I was there overnight at the airport. No, you don't. You don't know what that's like. You've been to the airport, that's not the same thing. I love this idea, and Justice Thomas is set for this idea because he has an RV, so he could lead the way, he could be the first one. He could lead the way and he could go and sit on appeals courts in a few states. They'd be like dude, is that Justice Thomas. Also, although I'm suggesting Justice Thomas, but any of the others would also be awesome. Maybe you could just have one RV and they all take turns driving and around the country.

J. Aughenbaugh: Just think about the value it would have for the court as an institution if the justices had to go out and circuit ride.

N. Rodgers: Wouldn't people pay a lot more attention to local courts?

J. Aughenbaugh: Pay attention to local courts, but I think it would help of course.

N. Rodgers: Can you imagine not showing up for your court date and one of the judges on your appeals court was, Elena Kagan, what are you thinking? I don't know. You probably get some better attendance, but you would certainly, I think it would open up a lot of interesting.

J. Aughenbaugh: I think the appreciation for the justices would also go up. The legitimacy for the court.

N. Rodgers: Oh my gosh, fan girly. I would fan girl, totally. I would like wait, the Supreme Court justice is here and which, let me knock you down to try to get a seat in that courtroom just to see how they function.

J. Aughenbaugh: Function because I've listened to the oral arguments of the Supreme Court. I've read the transcripts, but I would love to go ahead and see, for instance, Sonia Sotomayor or Sam Alito, given some unprepared attorney the business.

N. Rodgers: Why did you come to court today? But also just this idea of humanizing them in a way that they absolutely are not. I would like to addendum Dr. Barton's suggestion with another suggestion, which is that, I believe that the Chief Justice of the Supreme Court should be be hired separately under separate expectations. That the Senate should be interviewing that person not as an attorney, but as a manager. How are you going to manage the courts? Well, not just the Supreme Court with the expatriates behind you.

J. Aughenbaugh: The federal judiciary.

N. Rodgers: How are you going to manage all that? I think there are two things they could do that would really get at making the court work better in the sense of hiring that person as an administrator first and as an attorney second.

J. Aughenbaugh: To your point, I would actually like to see perhaps maybe a different committee in the Senate interview a nominee to be chief justice.

N. Rodgers: Exactly. One of the ones that does administrative law and understands how.

J. Aughenbaugh: Yeah or the joint committee on government operations.

N. Rodgers: How do you feel about picking lunches for the cafeteria? Stuff like that.

J. Aughenbaugh: What's your experience dealing with complaints made by employees against federal judges?

N. Rodgers: Exactly.

J. Aughenbaugh: What's your experience with it?

N. Rodgers: How much HR knowledge do you have?

J. Aughenbaugh: Do you have?

N. Rodgers: Do you have a certification of some kind?

J. Aughenbaugh: What budget experience do you have?

N. Rodgers: Exactly.

J. Aughenbaugh: Because some of our better chief justices were former governors.

N. Rodgers: There are people who have had to do all that.

J. Aughenbaugh: Earl Warren or Chief Justice Charles Evans Hughes, they're former governors.

N. Rodgers: President Taft, was he chief justice?

J. Aughenbaugh: Yeah. William Howard Taft was first president, hated that job. Loss his re-election, but then gets appointed as chief justice, and by all accounts, ran the court smoothly.

N. Rodgers: See it's a different skill set. I think it's a different skill set than the other judges. There is a part of me that thinks that maybe it's time that the Supreme Court justice isn't a member of the court like that there is a separate office that does that job. We're also a lot bigger than when this started out. Think about when this job was first formed and the chief justice of the Supreme Court was the chief justice, really, how big was the court system at that point?

J. Aughenbaugh: It was not big to your point. As a number of scholars have remarked, including most prominently David O'Brien, the Supreme Court's become more bureaucratic. If the court itself in the federal judiciary in general has become more bureaucratic, it would probably make sense to have at least the head of the federal judiciary possessing some bureaucratic chops and skill, okay?

N. Rodgers: Right.

J. Aughenbaugh: We're talking about thousands of employees. We're talking about a huge budget.

N. Rodgers: Managing all that and still weighing in on court cases. Seems like it's two jobs you're asking a person to do.

J. Aughenbaugh: Yeah, at minimum, the chief justice needs to be that very unusual person who is good at bureaucratic stuff, well, also an expert in the law.

N. Rodgers: Right. Really are we going to find a person with that skill set? Rarely. Rarely are we going to find a person with both of those skill sets that can be brought to bear at the same time.

J. Aughenbaugh: Or picked because of the career path of the modern Supreme Court.

N. Rodgers: That one exactly comes back to our lack of diversity of if you've never run anything.

J. Aughenbaugh: Yes.

N. Rodgers: If you ran a newspaper or if you write or if you ran a successful business, or if you ran a diplomatic core, you have those skills.

J. Aughenbaugh: You have those skills.

N. Rodgers: I'm sorry, if you successfully did those things.

J. Aughenbaugh: Yeah. But when you think about if you were a private practice attorney and you were the managing partner of a law firm of six people. That gives you a particular bureaucratic skill set that I think would be extremely valuable in dealing with eight other justices and there are various clerks and paralegals, etc.

N. Rodgers: Although I'm going to still argue that volume counts here. You're talking about thousands of people involved in this agency. But anyway, basically what we're getting at President Biden, if you're listening, is that we would like to see the court shaken up a little bit in terms of diversity of experience and job experience.

J. Aughenbaugh: Then I will say this Nia as we end this podcast. One of this things that you are seeing with President Biden's nominees for lower federal court positions is he is picking people with more experience as criminal defense attorneys, as civil rights attorneys. He's gone beyond what we have typically seen from the last roughly four or five presidents.

N. Rodgers: He's trying to build in some diversity for future nominee picks. Because that's how this is going to work, they're going to work their way through the system.

J. Aughenbaugh: Yeah, and even if these judges are not picked, district court judges are not picked as the appeals court judges, appeals court judges are not picked as a Supreme Court justices, just the greater if you will prefer professional diversity, I would think would help the courts.

N. Rodgers: Changing the justice system from within.

J. Aughenbaugh: Again, it's been a pretty concentrated effort and those of us who are judicial politics scholars have noted this. Again, he's getting criticism from certain groups, he's not focusing on other diversity measures as much. But you can't please everybody.

N. Rodgers: Right.

J. Aughenbaugh: One last thing about diversity. If nothing else, this episode should remind us that diversity has always been a consideration of presidential nominations for the Supreme Court. It was geographical diversity early on in our country's history, then it was religion, then it was race, then it was gender. Diversity has always been a part of the calculus because these are prominent, high-profile government positions. When you hear people say diversity should not be a consideration, we should only focus on merit. Well, we already talked about merit.

N. Rodgers: There is no question that any of these people lack the absolute qualifications to be on the Court.

J. Aughenbaugh: To your point that you've mentioned in a couple of other podcast episodes, President Biden did not do Judge Brown Jackson any favors by saying that he was going to look for a black woman. Because by pretty much any measure, she was qualified to be a Supreme Court justice.

N. Rodgers: Right. It has allowed the racist neo-Nazis jerks to say, it's about her race, and I'm like but look at her qualification, she's eminently qualified. But of course, that's not what they want to focus on.

J. Aughenbaugh: Yeah, but anytime somebody goes ahead and says to me, diversity should not be a factor, and I hear it from folks on the left and folks on the right. I'm just like, then you're pretty much ignoring the totality of the history of picking Supreme Court justices in this country.

N. Rodgers: I think very few presidents are going to put forward someone that is just wildly unacceptable, and the one time in my modern memory that I can think of it is Bush 43.

J. Aughenbaugh: He picked Harriet Miers.

N. Rodgers: Yes.

J. Aughenbaugh: Okay.

N. Rodgers: I'm not entirely certain was ready to be a Supreme Court justice?

J. Aughenbaugh: No. I think she was a perfectly effective lawyer who I had absolutely no experience being a judge. None whatsoever.

N. Rodgers: But her nomination did not go forward.

J. Aughenbaugh: Yes.

N. Rodgers: She didn't go before the Senate because once she got the pushback.

J. Aughenbaugh: Yeah.

N. Rodgers: They said you know what, never mind.

J. Aughenbaugh: Most of the pushback came from Republican senators who met with her.

N. Rodgers: Oh, I didn't know that.

J. Aughenbaugh: Yeah.

N. Rodgers: But there's the system even though it's excruciating, it does actually help with, we don't really think that you're qualified and there are a couple of people on the Supreme Court right now. I'm not so found of, but I would never say they were not qualified to be on the court. It's just that I don't like them. I don't like their ideological.

J. Aughenbaugh: Yeah. You may not like the jurors.

N. Rodgers: Right?

J. Aughenbaugh: I get asked that I might.

N. Rodgers: But having that diversity is important because if everybody thought like me, they would always be right, but it would not be fair to other people who don't think like me. One of the best things about our discussions is when you make me go oh man. Because you did that to me earlier when you were talking about one of the court cases, a little teaser for you all for next time. One of the court cases that came up that I actually agree with the six.

J. Aughenbaugh: Conservatives.

N. Rodgers: Conservatives, and now I just have to think about my life choices. Actually that's not true because sometimes I'm preserving it and sometimes I'm a regular American. I have well, genuinely speaking mixing it in.

J. Aughenbaugh: It's like the value of this podcast. In my estimation, when you go ahead and ask me a question where I'm just like, I would've never thought that. Right?

N. Rodgers: Right.

J. Aughenbaugh: As somebody who studies this stuff, it's my job to go ahead and consider all the possibilities, right?

N. Rodgers: Exactly. That's what it does to me when you said that I was like, Oh man. It was in fact, we can briefly touch on it. Even though we don't have a whole lot of time, so Coach in Texas, after the game takes a knee for prayer to, I assume, thank God.

J. Aughenbaugh: What we're talking about.

N. Rodgers: Winning or losing or whatever.

J. Aughenbaugh: They're the Bremmer tin case, where an assistant football coach was in the practice of going to the middle of the field in kneeling down in silent prayer. After the team's games he got warmed by the school district. That school prayers were against school policy in more than likely violated Supreme Court president. After he got a warning, he continued with the practice. He got fired and when
he got fired, he went ahead and sued, claiming that it violated his free exercise rights under the First Amendment. The school districts defense was, we can't be having school prayer during the normal school day at graduation or at football games. But his argument was, I'm not as a school official leading prayer. I'm just an individual who is praying after the game.

N. Rodgers: Now before the game where you make everybody be silent listen to prayer, which I would fire somebody for doing that. Because now you're coercing other people to either listen to the prayer.

J. Aughenbaugh: That violates well-established Supreme Court precedent. Right?

N. Rodgers: Right. I'm not doing that.

J. Aughenbaugh: Yeah, the game is over. I'm not forcing anybody to listen to my prayer. I'm not requiring any player or any coach from either our team or the opposing team to join me. I'm just kneeling down as an individual in praying to God and thanking God for this opportunity.

N. Rodgers: For football?

J. Aughenbaugh: Yeah. For these young men to play this game and hopefully nobody got hurt.

N. Rodgers: Right. The Supreme Court found for him.

J. Aughenbaugh: Well, no, we haven't. As we're recording this podcast episode, the court has not announced its decision yet.

N. Rodgers: Oh, I see.

J. Aughenbaugh: Yeah.

N. Rodgers: But I'm like, I side with him and then I feel weird about it. But then I think no, that's diversity. That's the point of this. I am not a person who engages in the public prayer. But I don't feel like it's a violation of my rights in some way that he does that like just do you man, like what?

J. Aughenbaugh: It begs the difficult question. At what point does the government avoiding establishing religion?

N. Rodgers: Step on.

J. Aughenbaugh: Yeah, cross the line and violate the Second Religion Clause, which is the free exercise of one's religious beliefs.

N. Rodgers: Sorry, I thought that had already been decided.

J. Aughenbaugh: No, but again, that's why we have these discussions, right?

N. Rodgers: Right.

J. Aughenbaugh: Because I end up learning about things simply because we have these conversations and I'm not going to have that learning if I just stay in my silo, right?

N. Rodgers: Right.

J. Aughenbaugh: If all I do is read my books. Because, I've been trained to think like a judicial politics scholar. I know the theories, I know the boundaries. But unless I have conversations with folks who are coming to me a lot of these conversations we have, you're coming to this in some ways a blank slate because you're just like, Hey, when I'm president, don't want to do x. At no point in my life have I ever thought when I'm president and I want to do x.

N. Rodgers: Really? You're not power mad. See join me on the dark side.

J. Aughenbaugh: But again, that reflects my background, my education. It's pretty hard to go ahead and think two grandiose when you're taught by nuns.

N. Rodgers: I would argue that it also is. I firmly believe that most of the time I'm right. Except that's not true. I'm generally speaking, open to being wrong and open to new ideas. But I think I come at these questions with a very much every man attitude of, well, if I was in charge, see I also dream of winning lottery and what I would do with the money, so we just probably not something you do either. It's just one of those personality quirks. But this idea of, I'll tell you my first thought was, what harm does it cause others? Because that's why we have laws. We shouldn't have laws in this country to prevent behavior. We should have laws in this country to prevent harm to others. I don't care what you do if it doesn't hurt anybody. If you want to walk around naked in your backyard and it doesn't hurt anybody. Go forth and do your thing, man, it's not up to me. I think we've gotten to this weird placing in law where we want to try to control behavior that isn't causing any harm to anybody else.

J. Aughenbaugh: See, my perspective is slightly different and it probably reflects the fact that I've spent so much time studying the law and studying constitutional law, which is, I keep on going back to one of the primary purposes of law is to establish behavioral norms, so how do you avoid getting into trouble if you don't know what constitutes trouble?

N. Rodgers: I guess I'm arguing that trouble is it's only trouble in reflection of other people. It's not a trouble for yourself. Harm non-do as you will.

J. Aughenbaugh: But the law represents the collective will.

N. Rodgers: Right.

J. Aughenbaugh: We're in the democracy.

N. Rodgers: Yeah, and I'm Blair. We should be under the benign dictatorship. What's the name of your country? The benign dictatorship of Nia. Oh, okay.

J. Aughenbaugh: Give me two critical about the creation of said country. Seen as though I frequently remind my students that in my classes, I'm the benign dictator.

N. Rodgers: Exactly. I'm only talking about doing that on a slightly wider scale.

J. Aughenbaugh: Just slightly.

N. Rodgers: Just slightly. For listeners who are looking for our next couple of episodes, they will be the wrap up of this season and then we'll take a little break and then we'll see you back in the fall, but we will see you here next week for the wrap up of the study's term '21/'22, because there term starts in the fall and goes through the spring.

J. Aughenbaugh: Yeah.

N. Rodgers: Academic school here. Again, reflecting their academic event.

J. Aughenbaugh: So much of my life is basically based on late summer, early fall, to late spring, early summer.

N. Rodgers: Exactly. What do you mean you don't live in the semester world. Other people who don't live in the semester they're like, What are you talking about?

J. Aughenbaugh: Yeah. Right. Exactly.

N. Rodgers: Thanks, Aughie.

J. Aughenbaugh: See you Nia.


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