← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Don’t Give Up on the Law Just Yet
00:51:58
A new book profiles three heroic judges who might just restore your faith in the courts.
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- [00:02]
Sponsor Announcer
This podcast is brought to you by Progressive Insurance. Do you ever think about switching insurance companies to see if you could save some cash? Progressive makes it easy to see if you could save when you bundle your home and auto policies. Try it@progressive.com Progressive Casualty Insurance Company and affiliates. Potential savings will vary. Not available in all states.
- [00:30]
Reynolds Holding
Put us in a box. Go ahead. That just gives us something to break.
- [00:36]
Mark Joseph Stern
Out of because the next generation 2025.
- [00:40]
Reynolds Holding
GMC terrain elevation is raising the standard of what comes standard. As far as expectations go, why meet.
- [00:49]
Mark Joseph Stern
Them when you can shatter them?
- [00:51]
Reynolds Holding
What we choose to challenge, we challenge completely. We are professional grade. Visit gmcemc.com to learn more.
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Mark Joseph Stern
I'm Mark Joseph Stern, and this is Amicus Slate's podcast about the courts, the law, and the Supreme Court Courts still.
- [01:22]
Reynolds Holding
Have a very important role to play, and we need not to forget that.
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Mark Joseph Stern
A question I've been asking myself a lot these days is whether the law still matters. We live under a president who thinks he's a king and a Supreme Court that often lets him rule like one. It's easy to start wondering why we should care about the law at all when those who swore to uphold it seem more intent on breaking it. A lot of this despair centers on the courts, where law should be the coin of the realm. But raw partisan power has become the true currency. I've spent much of Trump's second term criticizing judicial rulings, and more and more the response is we know the courts are broken. What are we going to do about it? I don't have an answer to that question, or, frankly, to the broader puzzle of how we save the rule of law from one president and six justices who appear dead set on destroying it. But I do know that I'm not the only one asking these questions. I've spoken to multiple judges who've expressed deep sorrow over the state of our democracy today. Even if these judges know the Supreme Court may well smack them down, there is still courage to be found in the judiciary and judges who are determined to hold the line to protect civil rights and equality and other constitutional guarantees that may have fallen out of fashion among too many of their colleagues. I find myself looking to these judges more and more because they don't really have the luxury of giving giving up on the law. They keep fighting anyway, not because they think this system is perfect, but because they know that in spite of everything, it's all that stands between us and the abyss. That's why a new book by Reynolds holding profiling a trio of judges who refuse to back down from that battle felt like such a breath of hope. It's called Better How Three Judges Are Bringing Justice Back to the courts. It's out September 2nd. Unlike a lot of books about the courts today, it actually filled me with optimism that a better judiciary, and by extension, a better country, truly is possible. Reynolds is a journalist, lawyer, and research scholar at Columbia Law School. Reynolds, welcome to Amicus.
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Reynolds Holding
Thanks, Mark. It's a real pleasure to be here.
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Mark Joseph Stern
So I want to dive into some of these extraordinary figures you profile in the book, and I want to start with Judge Carlton Reeves, because in a lot of ways, he seems like the least likely person of these three to become a judge, at least based on the world he was born into. So can you tell us a little bit about his background and how it influenced his winding path to the bench?
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Reynolds Holding
Well, Carlton reeves is about 61 now, and he was born in the 1960s, and he grew up in the 1960s in Yazoo City, Mississippi. He's a black man. He grew up among the black middle class in Yazoo, which is nevertheless a fairly poor town, still is today. He really made the most of his opportunities. He attended the first desegregated class in Mississippi in first grade. He never knew anything other than integrated schools. He was in an atmosphere and an environment that nevertheless was very much discriminatory, very much a racist society. And he soon learned that there were judges, and particularly Supreme Court justices, who were doing real work to lead him to the opportunities that he eventually took great advantage of. He refers to these judges and justices as heroes. And in the south, the people who implemented desegregation in the schools, the people who allowed his mother, who worked for a dollar a day in the Yazoo City Motel, not only to work but to attend the restaurants she wanted to go to him to. To the schools he wanted to go to. And it really steeped him in this idea that judges were heroes and that judges were very much responsible for his life and his opportunities. He went to Jackson State University, a traditionally historically black institution, and he refers to that as the best thing, one of the best things he ever did because he learned to be among his peers, among the people who gave him deep meaning about what it meant to be a black man. He was very valuable. He did very well at school. He went to the University of Virginia Law School. Being from Mississippi, which is a very still in a small community, was pretty well connected politically. When the opportunity came in 2010 for him to be a judge, he was named one and has continued his views of how Judges can really lift people up and do justice. I mean, his favorite saying when he talks to his clerks and he's about to head off to his courtroom is, let's go do justice. He's done it in a number of ways. He was, for example, the trial judge in the case that eventually became the Dobbs decision overturning Roe v. Wade.
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Mark Joseph Stern
You know, I think it's really refreshing to hear about a person who really struggled against the odds to come into a judgeship in comparison with so many of Trump's silver spoon appointees and prep school nominees. And one of the points that you make over and over again in the book that I think is so important is that this background does inform his judging and that it should, and that that is a good thing. You mentioned the abortion example. Another big example is the qualified immunity decision that he wrote, that he wrote sort of as a black man living in America with that experience. Can you, can you talk about that decision and how he was able to make such an impact with it, even though he wound up denying relief to the individual litigants?
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Reynolds Holding
Well, as you know, qualified immunity was established by the US Supreme Court on, I think, 1967, essentially saying, look, if you were able to sue cops, they couldn't do their job. That was the rationale for living in Mississippi. There's a road that goes straight through Mississippi, I90 east, west from Texas to, I think, Georgia. And there are a lot of stops, police stops on that route, because it's considered a drug trafficking route. True or not, there are a lot of cases, particularly of black men, Latino men and women being stopped for little or no reason, just on the off chance that they'll be carrying drugs. Early in his career, when he was a defense lawyer, he had a case where a black man was stopped and really brutally beaten. His head was stomped on. He sued on this man's behalf, lost the civil case, although the cops were eventually convicted, because qualified immunity does not apply to criminal cases. So he had this experience in his past, and he got a case when he was a judge. Clarence Jamison was stopped, just a regular guy, on his way home to South Carolina from a vacation in Arizona, driving along, not speeding, driving an old Mercedes, a black man, a cop sees him go by, stops him, starts giving him a really hard time, says, look, you don't have tags on this car, license plates. And of course he does. They're temporary, but he does. I heard word that this car was carrying cocaine. Do you mind if I search my car? Search the car? Jamison says, sure, Go ahead. The cop spends close to two hours going through the car, finds nothing. It ends up being a totally unmerited stop. Jamison goes home, finally arrives in South Carolina, sues the cop. Reeves gets the case. Reeves reviews the facts. This is the time where Black Lives Matter is just starting, and we're seeing a lot of black men and women being not only beaten and shot. Reeves gets the case. He writes a really extraordinarily compelling opinion, goes through the facts, concludes, you know, how could it possibly be that a black man in this situation could not give permission to have a police officer search his car? And he says, but the law compels me to do what the only thing I can do, and that is to dismiss the case because the police, under the supreme court decision in 1967, have qualified immunity, meaning that unless there is a precedent, a prior case almost exactly involving the same facts, then there is no basis for me to allow this suit to go forward.
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Mark Joseph Stern
So he denied relief. But I remember when this opinion came down, it nonetheless felt like an atomic bomb. I think I wrote about it at the time, and it was so extraordinary because, as you say, this was during the Black Lives Matter protests, right? This was during this sort of reckoning for racial justice. And it was at a time when even some Democratic politicians weren't necessarily courageous enough to say what needed to be said about racism. And here was a judge in a judicial opinion where the law compelled him to deny relief to a black man, nonetheless using his perch to say, this is wrong, the law is wrong, and almost taking his case to the people. That's something that another judge that you profile sometimes does in different ways. And I wanted to turn to her. Martha Vazquez. She also wasn't born into the kind of privilege that so many judges are, especially Republican appointees. Can you talk about her earlier life a little bit?
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Reynolds Holding
Martha Vasquez is a Mexican American. Her father was an undocumented immigrant to the United States. He grew up in a very small town in Mexico called Atatanikio. He would come to the US as an undocumented immigrant. He would be caught by what was then the Immigration Service. They would buy him breakfast and send him back. He would come back to work. It was a much less, let's say, surely, hostile situation. He eventually came to the U.S. married. His wife, had a number of kids. One of them was Martha. Martha literally grew up working with her parents, picking oranges in Southern California, working in the gardens of the wealthy in Santa Barbara. And so she developed a deep appreciation for the opportunities that the US Offered, but also for the work ethic of her fellow immigrants. Documented it or not. And she did very well again in school. She's a very bright woman. She went to Notre Dame. She went to Notre Dame Law School. She became a lawyer. Lawyer. And then tragedy struck is the only way to put it. Her brother, her younger brother, a little mentally challenged, but nevertheless very hardworking, very well behaved member of the community, ran into money problems. A guy he had met at work said, look, I think I can help you out. All we have to do is deal some pot, deal some marijuana. And he's like, no, no, I don't want to do that. Anyway, long story short, he gets set up in a federal drug sting by an informant. An informant persuades him. After many, many tries him and his cohorts to import cocaine from Mexico, he goes before a judge has an otherwise clean record. The judge, under the then federal sentencing guidelines, sentences him to almost 30 years in prison. Ruins his life. Martha witnesses this. Martha tries to get him a better deal. Talks to a DEA agen who says he will support her brother's release. Gets into court, refuses, say he never said that. This really, shall we say, turns Martha off. She said, I learned to never trust cops again. And it really persuaded me to want to become a judge. And eventually that happened. This is in Santa Fe, New Mexico. She was the first Latino federal judge in New Mexico. And her approach is, as she says, never to throw people away like garbage, to give people a chance to learn who the people are before her, to learn their background, to enable them to have opportunities to do better.
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Mark Joseph Stern
You've already gotten to this. But I do want to hear more about how that fascinating and tragic background plays into her work as a judge. And I'd love for you to start with one of my favorite stories in the whole book, which ties to an issue that we've talked a lot about on the show and the need to build a diverse jury that reflects the whole community. This is obviously something that Judge Vasquez is deeply interested in doing. How does she go about doing it? And what is the broader impact on the community that she serves?
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Reynolds Holding
Well, Santa Fe, New Mexico, is in an unusual position. It's very near the Navajo Nation, Navajo land. There are no federal courts on Navajo land. So to come to court, people who live there need to travel hundreds of miles and many hours to get to court. If, for example, they have to perform jury service, there's a problem. Though juries are selected through the voter rolls in New Mexico, very few people in the Navajo Nation or relatively few are registered to vote. She tried over many years to try and expand the voter rolls, to try and expand the jury pool. She tried to get the lists of people with driver's licenses included in the jury pool. She was shut down by her fellow judges. But most of all, she wanted to encourage Navajo people to want to do jury service, to want to know what the court system was all about, to want to know what a trial was about. So she took her court literally to Shiprock, New Mexico, which is in the heart of the Navajo Nation, and did a trial there, which was technically illegal. But who was going to stop her? She was chief judge at the time. She said, well, I'm going to do it because I think it's the right thing to do and I don't see anyone objecting. So she did that. She held a trial in Shiprock, New Mexico. The jury was largely Navajo. Not actually. There were still very few Navajos on the jury because, again, the voter rolls were limited in that way to exclude them. Held a four day trial. The kid, who was a Navajo kid who had fought with a friend of his and knifed him and was charged with a federal crime. Because here's the other thing about it. Federal law largely governs on Indian reservations. This is an artifact of an 1885 treaty. And so it was a federal crime which could have put the guy in jail for something like eight years. He was convicted, but it was decided down to a misdemeanor. She gave him a fairly lenient sentence. And it really was a great event among the Navajo people to bring the court to them, to show what a court was like. Other courts in other states have since copied that model, gone to Native American reservations to hold court and show them how it works.
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Mark Joseph Stern
It feels like such a great illustration of finding some semblance of justice in an unjust system. Right. As you say, Judge Vasquez had to break the law to take her court into Navajo territory. She still wasn't able to build up a jury that had as many Navajo members as she might have liked. But there were members of that community on the jury judging the defendant, who was himself Navajo. And that was a victory in her eyes, even if she had to twist some of the rules to get there. I think that's a good bridge to the final judge you profile, because that feels like maybe a description of his entire career, sometimes coloring outside the lines to achieve broader interests of justice. This is Judge Jed Rakoff, who has the most traditional background for a federal judge of the three you profile he worked as a federal prosecutor and a corporate lawyer doing criminal defense work before he dawned the robes. But as you say, he was always a little bit different. You probably wouldn't expect a corporate criminal defense attorney to become a crusader against Wall street crimes, but that's what happened with Rakoff. And I was wondering, is that a surprise turn or to you, was it more of a natural evolution?
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Reynolds Holding
Well, I really came to this book through Rakoff. I was covering his cases in about 2010, 2011, when he was serving as a federal judge in the Southern District of New York. And he got several cases challenging the banks who in many ways were behind the financial crisis. Bank of America, Citigroup, and the SEC sued these banks, settled with these banks, as the SEC is prone to do on the basis of a no admit nor deny settlement. He was required to approve these settlements because they asked for injunctions which necessitates a judge's approv. He refused to approve these settlements at first because they didn't tell him anything about what the banks had done. He said, well, if you're neither admitting nor denying, then how do I know whether the settlement is in the public interest? I don't. You need to tell me more. And that got me interested in the whole idea of, well, can a judge really do this? How is a judge so adventurous that he can? And it turns out he does this all the time. As you mentioned, he grew up fairly well off in a neighborhood of Philadelphia. He went to Swarthmore College, which was also a very sort of idealistic place to go. And his mother taught him. I mean, I asked him over and over, well, what sort of made you be this way? And he always says, well, you know, as everything. It comes back to my mother. His mother encouraged him to be creative. He took this sort of attitude with him to the bench. Very idealistic, very much wanting to get to the truth, very much wanting to ask why, why is it that this is happening? As a child of the 60s, he often talks about, we were very proud of the fact that there was not a tremendous gap between the wealthy and the ordinary middle class and the lower caste. We were very proud that people were able to afford this. He saw this, of course, as we all did, drastically changed in the early 2000s. There were a lot of scandalous cases. Enron, he had one of those cases. And then, as I say, he had the cases dealing with the banks. And it really. It really disturbed him that the banks were not admitting not only what they did wrong, but what they did.
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Mark Joseph Stern
So it's Interesting. You're using these terms, you know, creative asking why things that we don't normally expect of district court judges, they are at the bottom rung of this system. Right. They're underneath the appeal courts, which are underneath the Supreme Court. There are a lot of district court judges who just try to color within the lines and follow the rules and, and not make potential mess that higher courts are going to clean up. Obviously, Judge Rakoff did not take that approach. I'm curious, was the transition from private practice to service on the court difficult for him? Was this something that he sort of bristled against as he faced these restraints, or did he decide, I'm just going to do this my own way and let the chips fall where they may?
- [21:42]
Reynolds Holding
Well, I don't think he had a difficult time at all. I mean, he always wanted to be a judge. I think he's always had a particular philosophy. Even when he was a prosecutor, he found creative ways, for example, to bring a case in a bribery scheme of a very powerful corporation. United Brand or United Fruit, bribed a official in Guatemala, or perhaps it was El Salvador, now I'm forgetting, found a way to create massage the law so that he could bring a conviction. He was very much as a prosecutor, became very concerned with corporate power. As a defense lawyer, a white collar defense lawyer, he defended white collar criminals. He was one of the very first to have that practice at a large firm in New York. And so getting on the bench and thinking creatively, standing up to corporate power was very much not only in his nature, but in his experience. So he certainly didn't have a tough time doing what he has been doing for decades now.
- [22:46]
Mark Joseph Stern
We'll be right back after a quick message from our sponsors.
- [22:53]
Sponsor Announcer
This episode is brought to you by Americans United for Separation of Church and State. The future of religious freedom is at a crossroads. The same groups behind Project 2025 are working relentlessly to impose a Christian nationalist agenda on the laws and the lives of the American people. The wall between church and state is the last safeguard standing in their way. For over 75 years, Americans United has been a powerful but quiet force fighting to preserve church, state, separation, freedom without favor and equality without favor. Exception for every single American. Americans United stands up for your right to believe and to live as you choose, so long as you don't harm others. You can take action and join Americans United today by donating any dollar amount and your support will be doubled. Join Americans United and help defend the fundamental freedoms that protect us all. Learn more and join the fight at Au.
- [23:59]
Mark Joseph Stern
This podcast is brought to you by Progressive Insurance. Do you ever think about switching insurance companies to see if you could save some cash? Progressive makes it easy. Just drop in some details about yourself and see if you're eligible to save money. When you bundle your home and auto policies, the process only takes minutes and it could mean of hundreds, hundreds more in your pocket. Visit progressive.com after this episode to see if you could save Progressive Casualty Insurance Company and affiliates. Potential savings will vary. Not available in all states. Now more of our interview with Reynolds holding. I want to take a step back. You finished this book before Trump returned to office. And now, half a year into the second Trump administration, it seems more urgent and topless topical than ever. First, I was wondering what inspired you to write it and how did you pick this trio of judges?
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Reynolds Holding
What inspired me to write it was Rakoff. I mean, I was literally, I was an editor at Reuters at the time, and I was sitting in a story meeting and he was coming out with these refusals to approve settlements between the securities and Exchange Commission and the banks. And someone in the room said, wow, somebody should write a book about this guy. He's kind of amazing. And that sort of stuck with me. It's like, that's a good idea. I mean, I don't know if you recall, but people at the time, I think Rolling Stone called him a hero for our times. He was really, at the time, quite an extraordinary. Celebrity is the only word for it. The question occurred to me, can a judge do this? Can a U.S. district Court trial judge take these steps that seem so far beyond the ordinary judge? And I started thinking about the federal courts generally and what had happened to the federal courts. And I discovered that really over the past 70 years, since 1956 or so, in the aftermath of the Brown v. Board of Education decision, there was a backlash. There was something called the Southern Manifesto. Southern senators basically declared war on the judiciary. And over the course of the following decades, the power of federal judges, and more importantly, people's access to court, people's ability to have their cases heard in court was consistently diminished. To Rakoff, this was anathema. To Rakoff, this just wasn't right. And so I determined to write a book about him. Turns out, in the publishing industry. So, yeah, this guy's an interesting guy, but we need a sense of whether this is happening across in a broader way. And I said, sure, makes sense. So I asked around, did research, reported out finding other judges who have resisted this diminishment of the power of the courts and the ability of people to get into court. So eventually, I landed on Judge Reeves, I landed on Judge Vasquez. Three very different people, a diverse group of people, a black man, a Latina woman, and a Jewish white guy from very different backgrounds and geographic locations, but who shared this resistance to restrictions on their parent and, in their view, their ability to do what they believe was right, to do justice.
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Mark Joseph Stern
And yet now, just six months into Trump's second term, we're in a moment where he is stacking the federal judiciary once again with cronies and henchmen. We'll, we'll talk about one of those in a second. And the Supreme Court itself has wielded its power much more frequently in favor of the Trump administration and against democracy and civil liberties than in favor of the people. And I'm curious if your views about the courts have changed at all, either in the time that you were writing this book or in the last six months that we've seen this appeasement approach from the Supreme Court toward the Trump administration and from some lower court judges. Have your views changed, or do you still think that the sort of heroic model of Reeves and Rakoff and Vasquez should prevail?
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Reynolds Holding
Well, I think they have changed, but in a way that might surprise you. I think I believe more in lower court judges than ever before. Certainly. I mean, we've seen these executive orders, and I mean. Well, let me back up a step. I mean, surely we should always be concerned. I mean, when one person has the kind of power to decide alone or on a panel the fate of people, we should always be concerned whether that person is not only doing justice, but following the law. We've seen plenty of examples of Trump appointed judges where pretty clearly politics has overwhelmed the law. I mean, Eileen Cannon down in Florida with respect to the documents taken out of the White House and stash in Mar a Lago, certainly this guy Matthew Kaczmarek in the Northern District of Texas and his rulings against the abortion pill and certainly anti LGBTQ issues. We don't know what he's going to do on the bench, but it doesn't look promising. Emile Beauvais. But I think I'm a lot more optimistic than you may be. I mean, look at the executive orders that Trump has handed down. They've gone to district court judges, and pretty uniformly, I haven't checked the statistics lately, but both Republican and Democratic judges, including judges appointed by Trump, have ruled against, have struck down these executive orders or issued temporary restraining orders or injunctions blocking these executive orders in about the same proportion, last I looked at it, was about 80% of judges on either side have done this. We had Judge Kunauer, Reagan appointee in Seattle, the first judge to issue a tro, and I think an injunction against the executive order doing away with birthright citizenship. And from the bench, he was scathing against the lawyers representing the president, against the lawyers in the Justice Department, saying, it is unbelievable to me that you're coming into my court and making this ridiculous argument in support of an order striking down birthright citizenship. So that's all pretty encouraging. I mean, I think these judges are clearly. And again, I'm talking about district court judges, and to some extent, appeals court judges are standing up. They stood up in the aftermath of January 6, challenging the election. I think in all cases, perhaps with the exception of one, they threw out those cases. They've shown an ability to stand up. And I think judges themselves, I've spoken to a lot of them, say no. They're very encouraged. They're threatened, they feel threatened. They think it's an awful thing that they have to deal with these cases, but they're encouraged by their colleagues, courage.
- [31:08]
Mark Joseph Stern
I think the reason I don't always share your optimism is because as courageous as these judges may be, their decisions then go up to the Supreme Court and are frequently fed through a wood chipper. You know, the Supreme Court has ruled in favor of Trump and reversed district courts in almost every case that Trump's Department of Justice has brought to the court so far. And, of course, the Supreme Court is at the apex of the judiciary, and. And not much that district courts or even appeals courts do matters if the Supreme Court is constantly standing there, ready to reverse them as soon as the Trump administration asks. Pretty please. So I'm just wondering how you sort of square the heroics of the lower courts, which I totally acknowledge and agree with, with the fact that this is a vertical system of power, and at the top of it is a court that seems to want to appease Trump at almost every turn.
- [32:04]
Reynolds Holding
Yeah, and I don't have a good answer for that. I mean, what you say is obviously undeniably true. I mean, as long as it's the. I mean, I guess one slim point of optimism is that, as you know, I mean, these cases are being decided largely, if not exclusively, on the emergency docket. They're not necessarily decisions on the merit. I mean, I think now, of course, they're not explaining. They're not coming out with any kind of an opinion that explains why they're reversing the decision. Of the lower courts, which is itself annoying. And I mean, it's more than annoying. It really violates our understanding about how the court should work. But neverthele they're not necessarily decisions on the merits. I think Alito said, well, the reason we don't want to issue decisions is because when we do that, we only do it after we've considered the case, looked at all sides, gone through briefing, gone through all arguments and we know what we say matters. And we don't want to come out with a decision that has been or a written opinion that has been ill considered because and have it stand or we don't want to do this on the emergency docket and write an opinion that would be interpreted as precedent. Now, whether that's true or a valid argument or not, I don't know. But the best I can come up with, these are not largely decisions on the merits. But my point is, again, it's let's not forget what these judges at the trial level are doing. I mean, look at the statistics. You have have nine Supreme Court justices who hear what, 60 cases a year. You have a couple hundred court of Appeals judges who hear however many cases they hear a year, and you have close to 700, I think it's maybe 677, give or take. U.S. district Court judges, many of whom hear thousands or at least have 1,000 or more cases on their document and very few, relatively few cases on their docket are appealed, go up on appeal, certainly go up to the U.S. supreme Court. So on day to day issues where people's lives are affected, where people want to vindicate their point of view, people want to get their cases heard. They're heard in U.S. district Court and they're decided in U.S. district Court. And most of the time that's the end of it. So I think it's very important that these lower court judges are not only doing their job, but doing it in a way that should inspire people that they're getting justice.
- [34:41]
Mark Joseph Stern
We'll be back after a short break.
- [34:46]
Sponsor Announcer
This episode is brought to you by Americans United for Separation of Church and State. The future of religious freedom is at a crossroads. The same groups behind Project 2025 are working relentlessly to impose a Christian nationalist agenda on the laws and the lives of the American people. The wall between church and state is the last safeguard standing in their way. For over 75 years, Americans United has been a powerful but quiet force fighting to preserve church, state separation, freedom without favor, and equality without exception for every single American. Americans United stands up for your right to believe and to live as you choose, so long as you don't harm others. You can take action and join Americans United today by donating any dollar amount and your support will be doubled. Join Americans United and help defend the fundamental freedoms that protect us all. Learn more and join the fight@au.org.
- [35:51]
Mark Joseph Stern
This episode is brought to you by Lifelock. When you visit the doctor, you probably hand over your insurance, your ID and contact details. It's just one of the many places that has your personal info and if any of them accidentally expose it, you could be at risk for identity theft. Lifelock monitors millions of data points a second. If you become become a victim, they'll fix it, guaranteed or your money back. Save up to 40% your first year@lifelock.com podcast terms apply.
- [36:20]
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- [36:52]
Mark Joseph Stern
Now back to our conversation with Reynolds Holding. Turning back to my more pessimistic note, Emile Beauvais. We're recording this shortly after Senate Republicans confirmed him to a lifetime appointment as a judge on the 3rd U.S. circuit Court of Appeals. Beauvais is one of Trump's most corrupt hatchet men. He masterminded the plan to drop the prosecution of New York City Mayor Eric Adams in exchange for immigration enforcement. He fired dozens of January 6th prosecutors at Trump's behest, according to multiple whistleblowers. He instructed Justice Department lawyers to defy the courts if they attempted to halt deportations done without due process. Then he lied to the Senate about his plans to defy the courts. During his confirmation hearing, more than 900 former Justice Department officials urged the Senate to vote him down, saying his confirmation would be, quote, intolerable to anyone committed to maintaining our ordered system of justice. And yet he has now been confirmed as a judge. So we just finished talking about three judges who are the polar opposite of Beauvais. But now they're serving in the same judiciary with him. So first, what are we supposed to make of the courts as a whole when these two incredibly different kind of judges are serving side by side in the same system?
- [38:18]
Reynolds Holding
What are we to make of it? I mean, obviously we should be Concerned. And obviously, you know, we rely on a president to nominate good people. And surprisingly enough, there was a study very recently by two professors, one from the University of Virginia, the other from NYU Law School, who looked at at Trump judges and came to the conclusion. And I don't remember their exact criteria, but many judges that Trump appointed in the past are very well qualified. Conservative, yes, but honest, effective, well, credentialed. Surprisingly so. I mean, when we pick out a Beauvais or an Eileen Cannon or a Kaczmarek, sure, that's worrisome, and there are undoubtedly others. But I don't think it's to the point where we really have to condemn every judge that Trump has nominated. But, yeah, I mean, we have to depend on the system to come up with good, qualified, honest judges. And clearly there are some that are not. We need a diverse judiciary. I mean, it's full of still, it's full of white men. This is a point Reeves makes over and over again. We need more minorities. We need more people with different perspectives, perspectives like mine, who have a deep appreciation of what people go through. And we need more judges. I mean, these people are overworked. We haven't had a significant expansion of the judiciary in many years. So, yeah, I don't have a good answer for you. I mean, we should surely be concerned that a person. And again, we don't know what he's going to do as a judge. I mean, judges are limited, right? I mean, there are limits on what they can do. They can't make policy and reach out for cases. Cases must be filed, brought to them, must be filed with a court. The law limits them. You know, I mean, there's a lot of room to interpret it. But there is a law. You know, there is law, and there are certain facts. I mean, you have to deal with the facts before you. You have to apply the law before you. If you get it wrong, you have two levels of courts above you who stand to correct you. So it's not like the guy can go crazy. And look, what's the alternative? I mean, many people say, well, judges should have less power. We should leave it to Congress, which is far more democratic. But do we really want to rely on this Congress to be effective in any way? We have, again, a more Democratic president, elected president that's more democratic. Is this president it really what we're talking about? I mean, what does that leave with? I mean, it leaves us with judges who, by and large, I believe, are certainly unsung. And, you know, we should not write them off, because there are some very honorable, effective people out there doing, as they say, doing justice.
- [41:18]
Mark Joseph Stern
So I want to engage with that, because one of your main arguments is that progressives shouldn't abandon the courts as an instrument for improving American society. And that holds true in your view, even if Trump gets to put a bunch of Emil Beauvais types in the judiciary. I think you pretty strongly disagree with the lawyers and academics who think that federal judges should mostly just step out of the way of the democratic process, as you just said. And you make the case that they have this really important role to play in advancing democracy. And you sort of explain how each of them does this indispensable work protecting the rights of the people and sort of reaching out to the nation to address them directly. I'm wondering if we could talk about how their different approaches show a better path forward than just giving up on the judiciary altogether. Because, I'll be honest, this perspective that you sort of address and reject, that court should do less and be less present, I find it really appealing, especially in a moment now when we're seeing hatchet men confirm to lifetime appointments. I find a lot to like in the idea that we should just disempower court courts broadly. But you're using these three judges as an argument against that. So could. Could you sort of walk us through how those different approaches do show the. The better path that you think still exists?
- [42:41]
Reynolds Holding
Yeah. President Roosevelt, FDR had this notion of a democracy of opportunity. Oligarchy and gaps between the rich and poor concentrates power in the rich, and that is bad for democracy. We need a strong middle class. We need people to feel they have a stake in the system. We need people to have the opportunity to live lives of value as Americans according to an American standard of living. We need to include everyone, all Americans in the process. White, black, women, LGBTQ people, you name it. Everyone has to have the opportunity to participate in each one of these judges, I think, advances one of these elements of what's necessary for democracy. Let's take Jed Rakop. Here's a guy who has tremendous credibility as being part of the establishment. I mean, he grew up with great opportunity and advantages. He's good friends with, with corporate titans and bankers and private equity moguls. So he has tremendous credibility when he speaks and stands up to Wall street, to the banks, when he stands up to corporate power, when he says, when he refuses to let powerful corporations off the hook. And this is really. And I see this as an effort to level the playing field for people of all economic classes. I mean, he is very much working through his cases. And I don't think he would put it this way, but to me it's clearly true. He is working against oligarchy. And actually, I take that bet. He has mentioned this to me and he has put it that way. He's very much against an oligarchy. So he's moving towards a democratic principle which people on the left have largely said, well, really only Congress can do this. Really only, only legislation can accomplish this. Really, only higher taxes on the rich can accomplish this. But my argument is, well, no, let's look at Jed Rakoff and see how he's doing it. And then let's look at Carlton Reeves. I mean, here's a guy again, who grew up and understands the circumstances of the black community in Mississippi. And each of his opinions, I mean, not every case, obviously, but so many of his best known opinions. He's made clear. Our obligation is to include everyone in our democracy, include everyone in our society to give them a chance to give everyone a chance to seek justice, to give everyone a chance to exercise their rights with gay people, to have the opportunity to marry. These have all been his cases. So he's really promoting another or the second element of democracy, which is inclusion. He does that every day from the bench. Third Judge Martha Vasquez, giving people second chances, encouraging people to become valued members of society, to not treat them like garbage, as she's so fond of saying. So that's really the third element of promoting democracy. Strengthening the middle class, strengthening the ability of people to have a stake, an economic stake, speak in American society.
- [46:14]
Mark Joseph Stern
So one of the arguments that I think liberal skeptics of the courts often make, and I guess it's an argument I've maybe made today, is that the law is just not a helpful tool for the left. Because no matter how many fabulous judges might be fighting for equality, and you've given us some great examples, conservative judges are always going to contort the law to benefit the rich and powerful. And look, I. I think this is no surprise. This is no secret. I find that pretty persuasive given this Supreme Court's incessant distortions of the law to favor the Republican Party and its donors. But judges don't have the luxury of giving up on the law unless they simply quit. And as we've discussed, the three judges in your book show different ways to keep faith in the law and in fact, try to use it as a tool for good, even when they know the Supreme Court may well shoot them. Down. So I'm wondering, how do you think these judges managed to hold onto that sense of purpose?
- [47:17]
Reynolds Holding
Well, I think one of the ways, as I mentioned, is it's in their nature. It's in their background. They are committed to the idea of lifting people up because they were. At least Judge Reeves and Judge Vasquez were among those people. So they don't lose that drive to do what they think is right. Rakoff is just. I mean, he's a complicated guy, but he, you know, is as committed as anyone to standing up to the oligarchy. How do they keep that point of view? I mean, these people get shot down a lot. I mean, it's real. Quite extraordinary. I mean, Martha Vasquez kept giving fairly low sentences under guideline sentences to people and kept getting reversed by the 10th Circuit to the point where I think a particular case went up three times to the 10th Circuit. And the judges, I mean, they got annoyed, said, look, you're wrong. You gotta give them this sentence. And she insisted on. And lucky for her, there was a sort of parallel case making its way to the Supreme Court. Long story short, the Supreme Court overturned a statute or didn't overturn it, but agreed with her interpretation of the statute. This was the Felons with Firearms statute that had a mandatory sentence for a repeat felon with a firearm. Her interpretation of that statute led her to not apply it. The Supreme Court eventually agreed with her interpretation. So these people win. I mean, she does win. Rakoff wins. There was another case on insider trading where he prevailed because the Supreme Court upheld his argument. I think they feel, look, I may lose, I may be reversed, but every now and then, it. Every now and then, I win. And I think that has to be inspiring for them.
- [49:30]
Mark Joseph Stern
The wins make the whole enterprise worth it.
- [49:34]
Reynolds Holding
Right? And my job is to try and push the law in a direction. I mean, it's not really their job, right? I mean, their job is to follow the law. But they say, well, maybe I can. If I push a little bit, maybe the law will change. And sometimes it works.
- [49:48]
Mark Joseph Stern
What do you think the rest of us can learn from their attitude and their decision to just keep pushing in the face of a lot of setbacks because there might still be a victory or two around the corner.
- [50:01]
Reynolds Holding
What can we learn from these judges? Well, first of all, we need courts, and we should not just sort of disregard the judicial system by concluding that there are judges out there who don't follow the law or follow the law in the wrong direction. So, I mean, again, if we give up on the courts, we're going to take away a real essential element of our ability to be Americans. I mean, let's think about what courts are for. I mean, we go to court to seek redress. When we have an issue, we go to court. Courts often act as whistleblowers, bringing up problems that the legislature needs to address. They often come up with decisions that bring people together by reasoning that the law should be in a certain way. And this also has the effect of encouraging not just legislators, but also people to support that point of view. And courts are the only place where facts, real proven facts come out, are about the only place. This whole task of seeking the truth, having the facts come out, is very important to people's ability to participate in our democracy. So I think the message is don't give up on the courts. And don't forget that even when judges don't do their jobs in a way that you agree with, they're an essential element of our democracy and of seeking justice and of seeking redress. When you have a real wrong that has been done to you, when your civil rights have been violated, even something as simple, you know, when you've been a victim of a crime, courts still have a very important role to play. And we need not to forget that.
- [51:53]
Mark Joseph Stern
Reynolds holding is a journalist, lawyer, and research scholar at Columbia Law School. His book Better judgment, is out September 2nd. Reynolds, thanks so much.
- [52:03]
Reynolds Holding
Thanks so much, Mark. It was a pleasure.
- [52:07]
Mark Joseph Stern
And that's a wrap for this episode of Amicus. Thanks so much for listening, Listening. And thank you so much for your letters and questions. You can keep in touch@amicuslate.com or you can find us@facebook.com Amicus podcast in our special bonus episode, available exclusively to Slate + members. I talk with Leah Littman from strict scrutiny about the Trump administration's bogus bias complaint against a federal judge who's been a thorn in its side. More proof that the Justice Department is lying to the Supreme Court. And the first step of Trump's attack on birthright citizenship finally becoming a reality. To hear that, join Slate Plus. We hope to see you there. Sara Burningham is our senior producer. Our producer is Patrick Fort. Mia Lobel is the executive producer of Slate Podcasts. Hilary Fry is Slate's editor in chief, and Ben Richmond is our senior director of operations. We'll be back with another another episode of Amicus next week. Until then, take good care.
- [53:16]
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- [53:47]
Mark Joseph Stern
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- [54:15]
Reynolds Holding
The great lesson of this for me is that people will come to their own conclusions based on what their prejudices are.
- [54:23]
Mark Joseph Stern
Subscribe to the Queen on Apple Podcasts or wherever you're listening right now.