Judging on Empty

Adam White, AEI senior fellow and Jonah’s trusted law-talkin’ guy, makes his long-awaited Remnant return. ...

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Adam White, AEI senior fellow and Jonah’s trusted law-talkin’ guy, makes his long-awaited Remnant return. The pair take a deep dive into the Ketanji Brown Jackson hearings and assess what we can expect from her jurisprudence before turning to the state of legal conservatism. With originalism under attack, will common good constitutionalism soon consume legal academia? Is “insurrection” an appropriate term for January 6? And can Jonah suppress his disdain for Adam’s profession and all it represents?

Show Notes:

– Adam’s page at AEI

– Adam on the Ketanji Brown Jackson hearings

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  1. James Angelichio

    This was excellent. Great guest; great discussion.

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  2. Tom and Robin Moore

    Seriously? That is awesome. We love the thumb area. So much great talent around there. Our Trio often plays Port Austin Farmer's Market every year. We will be there over Fourth of July. Cheers!

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    Bill Dyer (aka Beldar)

    Another great appearance by Mr. White! I've got three things to say to him in response:

    (1) Objection sustained.

    (2) Glad you caught and fixed your error on 28 U.S.C. § 455(a)'s recusal provisions not applying to the SCOTUS. By their terms, they do, as you noted when reading it aloud. Link: https://www.law.cornell.edu/uscode/text/28/455

    You were doubtless thinking of the Code of Conduct for Federal Judges, which codifies the traditional canons of judicial ethics and provides the basis for resolving judicial ethics complaints; by its terms it does not apply to SCOTUS members, because if someone other than the individual Justices themselves were judging a SCOTUS member's ethics, with power to disqualify and sanction them (short of removal from office or diminution of benefits, which Article III forbids these lifetime appointees during good behavior), then we'd have a Super-Supreme Court. Article III is very clear that there shall be one and one only. Nevertheless, the SCOTUS members use the Code of Conduct to guide their ethical considerations; Justice Scalia's recusal in the Newdow Pledge of Allegiance case was revealed, in his opinion cited & quoted below from a later case, to have been entirely predicated on the Code's prohibitions on judges speaking out on pending and impending matters that are or may reasonably be expected to come before them. They're not free of the canons of judicial ethics, they're just free from any higher tribunal policing their compliance therewith.

    (3) This is a big criticism addressed to just one sentence of yours, and perhaps I'm reading more into it than you intended. But you referenced Mrs. Thomas' involvement in events that ultimately led to the Capitol invasion and insurrection (colloquially defined) on January 6th. Whether you meant to or not, you left the impression that even a "butterfly wings" level of involvement on her part might, through some mysterious transitive principle, be enough to make Justice Thomas into someone whose judicial "impartiality might reasonably be questioned." That's far too broad a reading of the statute's admittedly sweeping language.

    Instead, as the caselaw under section 455(a) (mostly from the lower courts) makes clear, and as was recapped by Chief Justice John Roberts in his 2011 Year-End Report on the Federal Judiciary [link: https://www.supremecourt.gov/publicinfo/year-end/2011year-endreport.pdf], this isn't a barstool-top/man-on-the-street standard, nor even an ordinary "reasonable person" standard, but is an objective standard that "focuses the recusal inquiry on the perspective of a reasonable person who is knowledgeable about the legal process and familiar with the relevant facts." That's a reference that certainly includes lawyers like yourself or me, and certainly all the Justices on the SCOTUS — but probably not, frankly, to very intelligent laymen like Mr. Goldberg, who has no training in the legal process, nor experience in applying legal or judicial ethics standards to the facts of specific lawyers, judges, and cases. What it ultimately boils down to is a judicial gloss on the statute that provides for the judging of judges by the standards of other judges, for the most part. Who is surprised by this? Who would want to live in a country where any nutball argument is enough to let litigants disqualify judges for tactical reasons more or less at will?

    The most pertinent example of an exercise of this "knowledge of legal process and facts" is the late Justice Scalia's memorandum opinion denying the Sierra Club's motion demanding his recusal under section 455(a) in the Judicial Watch/Sierra Club/Cheney case, based on Justice Scalia's having accepted a ride with his old friend and former Ford Administration colleague, D̵a̵r̵t̵h̵ ̵V̵a̵d̵e̵r̵ Vice President Dick Cheney, on t̵h̵e̵ ̵D̵e̵a̵t̵h̵ ̵S̵t̵a̵r̵ Air Force 2 to d̵e̵s̵t̵r̵o̵y̵ ̵t̵h̵e̵ ̵p̵l̵a̵n̵e̵t̵ ̵A̵l̵d̵e̵r̵a̵a̵n̵ attend a duck hunt to which they'd both been invited. In it, he covers precedent, history, and facts in a depth and with a seriousness found in NONE of the current discussion about Justice Thomas in the popular press. The two concluding paragraphs are very, very apt:

    ===begin quote===
    There are, I am sure, those who believe that my friendship with persons in the current administration might cause me to favor the Government in cases brought against it. That is not the issue here. Nor is the issue whether personal friendship with the Vice President might cause me to favor the Government in cases in which he is named. None of those suspicions regarding my impartiality (erroneous suspicions, I hasten to protest) bears upon recusal here. The question, simply put, is whether someone who thought I could decide this case impartially despite my friendship with the Vice President would reasonably believe that I cannot decide it impartially because I went hunting with that friend and accepted an invitation to fly there with him on a Government plane. If it is reasonable to think that a Supreme Court Justice can be bought so cheap, the Nation is in deeper trouble than I had imagined.

    As the newspaper editorials appended to the motion make clear, I have received a good deal of embarrassing criticism and adverse publicity in connection with the matters at issue here—even to the point of becoming (as the motion cruelly but accurately states) "fodder for late-night comedians." Motion to Recuse 6. If I could have done so in good conscience, I would have been pleased to demonstrate my integrity, and immediately silence the criticism, by getting off the case. Since I believe there is no basis for recusal, I cannot. The motion is

    Denied.
    ===end quote===
    link: https://scholar.google.com/scholar_case?case=3663421335325675419

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    Jason Gibson

    Did anybody else notice that Adam referred to this as a niche podcast?

    I think he’s a hydra agent sent by Sarah to infiltrate and bring down the remnant

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    BWG

    Love the end-gag change up. More please.

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    JP Ferreira

    Jonah, I don't understand why you keep taking the common good arguments in bad faith. When Adam explained in a more favorable light, you said "Yeah I can get on board with that."

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    Tracie

    "...for the last ten years or fifteen years my sense has been that the libertarians have had the zeitgeist among the younger lawyers…"

    Something I love about listening to this show is hearing how people who work at think tanks use language. It never occurred to me that the zeitgeist is something any faction or school of thought could "have."

    Since he's talking about young law students and undergrads, I guess that's always the goal of true-believing young people: that their point of view *acquires* the zeitgeist and maintains influence.

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  8. Richard Kennedy

    OK, I know some of you have thick arguments pro and con on Common Good and Catholic political hegemony. I saw some befor going to work. But due process and other rights except for bad guys? Sheesh. That’s Marcuse talking’ from the grave! Push-leeze

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      JP Ferreira

      That's a false accusation, Jonah misrepresents the position. The argument in defense of liberalism is often that it is value neutral. A higher more "rational" position. Post-Libs posit, just like Jonah did in the pod, that Liberalism is anything but value neutral and that many of these positions have warped away from the common good in the name of "neutrality."

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      1. Richard Kennedy

        The difference, right off the bat though, would seem to be a particular broad set of values assuming disagreement on what “good” is and/or why v particular and specific and limited “good”. And “common” too. That either would be perfectly executed would be impossible to expect, men and women being the arbiters. What values does Liberalism try to restrict from flourishing? What would Common Good itself allow to flourish that would be ordinarily outside the borders of Common Good? Is this not the crux of the matter? A skepticism of a hardcore Catholicism guiding this which would make Protestants, Jews, Muslims, and nones feel cautious at least? I’m not trying to resurrect old anti-Catholic tropes. However, hard Catholic broadsides against longtime attempts at a sort of universalism in the *secular* realm cause one to wonder.

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          JP Ferreira

          Vermeule's theory has both a normative and descriptive application. Most systems come together to advance the "common good." Few will say, I want to take power to things worse for everyone. There most likely is broad agreement on much of what is "good." The American Founders, for example, included the General Welfare Clause and the Necessary and Proper clause in the Constitution because they understood that one of the purposes of government was to advance the common good. The problem is that the American vision has become obsessed with individual theories severed from any notion of the common good.

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    Ben Connelly

    I’m glad you said that “it would be bad for the constitution and it would be bad for Catholicism.” Too many people are arguing these days that what’s good for the church is power, not antidisestablishmentarianism.

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    Daniel Standage

    Loved the sign off, by the way.

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