PROBLEM NOW? THIS IS OUR LIFE NOW.
ANYWAY, LET’S TALK ABOUT
SOMETHING ELSE.
SOMETHING ELSE. LET’S TALK ABOUT THE FEDERAL
COURTS.
COURTS. MOST FEDERAL COURT CASES DON’T
GET TO THE SUPREME COURT, RIGHT?
THE SUPREME COURT GETS ALL THE
ATTENTION BUT THEY DON’T GET
THAT MANY CASES.
EVERY YEAR THE SUPREME COURT
GETS ASKED TO TAKE 5,000 OR
10,000 CASES.
10,000 CASES. THEY ONLY TAKE ABOUT 100 OF
THEM, MAYBE 150 OF THEM IN A
PARTICULARLY BUSY YEAR.
SO IF YOUR CASE IS IN FEDERAL
COURT, ANY KIND OF CASE, THAT
WILL BE BEFORE A FEDERAL
DISTRICT COURT JUDGE.
IF YOU DON’T LIKE THE RULING
THAT DISTRICT COURT JUDGE GIVES
YOU AND YOU WANT TO PEEL THAT
RULING, YOUR APPEAL GETS KICKED
UPSTAIRS TO THE FEDERAL APPEALS
COURT, WHICH IS CALLED THE
CIRCUIT COURT.
CIRCUIT COURT. THERE’S ABOUT A DOZEN CIRCUIT
COURTS AROUND THE COUNTRY.
THEY’RE REGIONAL COURTS.
AND IF THE CIRCUIT COURT DECIDES
THAT THEY’RE GOING TO TAKE UP
YOUR APPEAL IN YOUR FEDERAL
CASE, IT WILL BE CIRCUIT COURT
JUDGES THAT REVIEW YOUR CASE.
FOR THE VAST, VAFLTST, VAST, VAS
VAST MAJORITY OF FEDERAL COURT
CASES, THAT IS AS FAR AS YOU ARE
EVER LIKELY TO GO.
EVEN IF YOU DON’T LIKE THE
CIRCUIT COURT RULING THAT YOU
GET AND IF YOU WANT TO TAKE IT
FURTHER AND APPEAL IT ALL THE
WAY TO THE SUPREME COURT, YOU
ARE STATISTICALLY SPEAKING
REALLY NOT LIKELY TO GET THERE.
FOR FEDERAL CASES, I MEAN IF
YOU’RE GOING TO GET ANYWHERE,
THE CIRCUIT COURT IS ALMOST
ALWAYS THE END OF THE LINE.
THE SUPREME COURT, AGAIN, GETS
ALL THE ATTENTION BUT IT’S THESE
FEDERAL APPEALS COURTS, THESE
CIRCUIT COURTS THAT DO THE VAST
MAJORITY OF THE APPELLATE WORK
IN THE FEDERAL SYSTEM.
SO THESE CIRCUIT COURTS ARE
REALLY POWERFUL.
REALLY POWERFUL. THEY’RE REALLY IMPORTANT.
THEY’RE IMPORTANT FOR INDIVIDUAL
HUMANS, INDIVIDUAL CASES BUT
ALSO BIG POLICY MATTERS THAT END
UP IN THE COURTS FOR ONE REASON
OR ANOTHER.
OR ANOTHER. THE CIRCUIT COURTS ARE THE
HIGHEST THAT THE VAST MAJORITY
OF THOSE CASES WILL EVER GO.
CIRCUIT COURTS ARE ALSO
IMPORTANT BECAUSE OF THE JUDGES
THAT SIT ON THEM.
THE CIRCUIT COURTS ARE THE
LOCATION FROM WHICH PRESIDENTS
OF BOTH PARTIES LIKE TO PLUCK
YOUNG PROMISING APPEALS COURT
JUDGES WHEN THEY’RE LOOKING FOR
A SUPREME COURT NOMINEE.
SO CIRCUIT COURT JUDGES HAVE AN
IMPORTANT JOB.
IMPORTANT JOB. THEY ALSO PARTICULARLY WHEN THEY
ARE YOUNG AND FIRST NOMINATED,
THEY’RE REALLY IMPORTANT
DECISIONS FOR PRESIDENTS BECAUSE
THOSE ARE SEEN AS THE SORT OF
BENCH FROM WHICH SUPREME COURT
NOMINEES ARE CHOSEN.
AND ONE OF THE MOST
CONSEQUENTIAL BUT ALSO MOST
BORING POLITICAL STORIES OF THE
TRUMP ERA, THE TRUMP ERA AND THE
McCONNELL ERA, IS THAT THE TOP
REPUBLICAN IN THE U.S. SENATE,
MITCH McCONNELL, NOT ONLY HELD A
SUPREME COURT SEAT OPEN DURING
THE OBAMA PRESIDENCY, SO
PRESIDENT OBAMA WOULDN’T BE
ALLOWED TO FILL A VACANCY ON THE
SUPREME COURT, MITCH McCONNELL
ALSO HELD OPEN DOZENS AND DOZENS
AND DOZENS OF OTHER SEATS ON
FEDERAL COURTS ACROSS THE
COUNTRY, INCLUDING DOZENS OF
SEATS ON THESE VERY IMPORTANT
CIRCUIT COURTS, THESE APPEALS
COURTS, SO PRESIDENT OBAMA
COULDN’T FILL THOSE SEATS
EITHER.
EITHER. AND MITCH McCONNELL DID THAT
SPECIFICALLY SO THE NEXT
REPUBLICAN PRESIDENT COULD
APPOINT THOSE JUDGES INSTEAD.
AND THAT IS HOW WE GOT TO THE
POINT WHERE TWO SOMETHING YEARS
INTO HIS TIME IN OFFICE,
PRESIDENT TRUMP IS CLOSING IN
ALREADY ON THE TOTAL NUMBER OF
CIRCUIT COURT JUDGES THAT
PRESIDENT OBAMA WAS EVER ABLE TO
APPOINT IN HIS WHOLE EIGHT YEARS
IN THE WHITE HOUSE.
THEY JUST DIDN’T LET OBAMA
APPOINT JUDGES.
APPOINT JUDGES. THEY HELD THOSE SEATS OPEN ON
FEDERAL COURTS, INCLUDING THE
APPEALS COURTS, THESE CIRCUIT
COURTS, AND NOW BECAUSE THEY
HELD THEM OPEN THROUGHOUT
OBAMA’S PRESIDENCY, NOW TRUMP IS
VERY QUICKLY FILLING THEM UP AND
THESE ARE LIFETIME APPOINTMENTS.
AS I SAID, THIS IS A HUGE, SUPER
CONSEQUENTIAL AND OFTEN VERY
BORING STORY OF THE TRUMP AND
MITCH McCONNELL ERA.
EXCEPT FOR THE DAYS WHEN IT IS
NOT BORING.
NOT BORING. PART OF THE WAY THE REPUBLICAN
PARTY BOTH IN THE WHITE HOUSE
AND IN THE SENATE HAS HANDLED
THIS GREAT POWER THAT THEY HAVE
GIVEN THEMSELVES BY MANIPULATING
THE JUDICIARY THIS WAY, PART OF
THE WAY THEY HAVE DEALT WITH
THIS POWER IS THEY HAVE BEEN A
LITTLE PUNCH DRUNK WITH IT.
AND WITH PRETTY GOOD FREQUENCY
THEY HAVE APPOINTED WILDLY
UNQUALIFIED PEOPLE TO TRY TO
BECOME FEDERAL JUDGES, INCLUDING
SOME PEOPLE WHO ARE LITERALLY
EXPLICITLY RATED UNQUALIFIED BY
THE AMERICAN BAR ASSOCIATION.
I MEAN THEY HAVE NOMINATED
PEOPLE WHO HAVE NEVER TRIED A
CASE, PEOPLE WHO HAVE NEVER BEEN
INVOLVED IN ANY WAY IN
LITIGATION, LITERALLY PEOPLE WHO
HAVE NEVER STEPPED FOOT IN A
COURTROOM, THEY HAVE APPOINTED
TO LIFETIME ROLES ON THE FEDERAL
BENCH.
BENCH. AT ONE POINT THEY TRIED TO
NOMINATE A GUY WHO WAS A FAMOUS
GHOST HUNTER.
GHOST HUNTER. SURE, HE WAS MARRIED TO SOMEBODY
WHO WORKED IN THE WHITE HOUSE.
THEY FIGURED THAT WAS GOOD
ENOUGH.
ENOUGH. THEY ALSO GAVE A LIFETIME
APPOINTMENT TO LOUISIANA SENATOR
DAVID VITTER’S WIFE WHO DURING
THE COURSE OF HER NOMINATION
BASICALLY BLEW OFF HER SENATE
QUESTIONNAIRE ABOUT HER
BACKGROUND INEXPERIENCE, WHO
TOTALLY BUNGLED HER CONFIRMATION
HEARING, INCLUDING REFUSING TO
SAY WHETHER SHE THOUGHT BROWN
VERSUS BOARD OF EDUCATION WAS A
GOOD IDEA, WHETHER WE SHOULD GO
BACK TO LEGALLY MANDATED
SEGREGATION.
SEGREGATION. HER NOMINATION AND PARTICULARLY
HER CONFIRMATION HEARING WAS
SUCH AN EMBARRASSING DISASTER,
IT ACTUALLY LOOKED LIKE THEY
WERE GOING PUT HER NOMINATION ON
ICE FOR GOOD.
MITCH McCONNELL ONLY TOOK IT OFF
THE TRASH HEAP AND RUSHED IT
THROUGH IN A HURRY AFTER THE
NOMINEE’S HUSBAND, FORMER
SENATOR DAVID VITTER, LOBBIED
MITCH McCONNELL TO DROP
SANCTIONS ON A RUSSIAN OLIGARCH.
AS SOON AS McCONNELL DID THAT,
VITTER CAME BACK TO McCONNELL’S
OFFICE TO LET HIM KNOW THAT THE
OLIGARCH’S FIRM WAS GOING TO
WRITE A $200 MILLION CHECK TO A
NEW ENTERPRISE IN McCONNELL’S
HOME STATE OF KENTUCKY.
RIGHT AFTER THAT, MITCH
McCONNELL SUDDENLY DISCOVERED,
HEY, DAVID VITTER’S WIFE’S
JUDICIAL NALL NATION HADN’T GONE
THROUGH AFTER ALL AND HE PULLED
IT OUT OF THE CIRCULAR FILE AND
RUSHED IT THROUGH AND NOW WENDY
VITTER IS GOING TO BE ON A
FEDERAL BENCH UNTIL THE END OF
HER WORKING LIFE.
SO I MEAN THAT’S HOW THEY HAVE
USED THIS POWER.
THEY HAVE HAD SOME DOOZIES WITH
GREAT UNFETTERRED POWER COMES
WILD IRRESPONSIBILITY, ALWAYS
AND EVER.
AND EVER. BUT THIS NEXT DOCUMENT I’M ABOUT
TO SHOW YOU, THIS IS
SOMETHING -- I HAVE IT HERE,
DON’T I?
DON’T I? YEAH.
YEAH. THIS DOCUMENT.
THIS DOCUMENT. THIS IS SOMETHING THAT I NEVER
EXPECTED TO HAVE TO READ AS PART
OF MY DAY JOB.
IT IS A LAW REVIEW ARTICLE THAT
IS TITLED ETHNONATIONALISM AND
LIBERAL DEMOCRACY.
LIBERAL DEMOCRACY. ETHNONATIONALISM.
ETHNONATIONALISM. LIKE WE HAVE BEEN TALKING A LOT
IN THIS RECENT WEEKS FOR OBVIOUS
AND TERRIBLE REASONS ABOUT WHITE
NATIONALISM, WHICH IS THE NEW
BRANDING THAT DOMESTIC
TERRORISTS ARE USING IN THIS
COUNTRY FOR WHITE SUPREMACY.
HERE’S THE THESIS STATEMENT OF
THIS ETHNONATIONALISM LAW REVIEW
ARTICLE.
ARTICLE. QUOTE, THIS ARTICLE ARGUES THAT
ETHNONATIONALISM REMAPZ A COMMON
AND ACCEPTED FEATURE OF LIBERAL
DEMOCRACY THAT IS CONSISTENT
WITH CURRENT STATE PRACTICE AND
INTERNATIONAL LAW.
INTERNATIONAL LAW. HMM.
HMM. THIS IS A LONG PIECE, IT’S OVER
60 PAGES.
60 PAGES. IT WAS PUBLISHED IN THE
UNIVERSITY OF PENNSYLVANIA
JOURNAL OF INTERNATIONAL LAW IN
2010.
2010. AND IT TAKES A SORT OF
INTERNATIONAL TOUR OF
ETHNONATIONALISM THROUGH THE
AGES, BUT IT ENDS WITH THIS SORT
OF WAR CRY ABOUT HOW A COUNTRY
CAN’T WORK, HOW DEFINITELY
DEMOCRACY CAN’T WORK UNLESS THE
COUNTRY IS DEFINED BY A UNIFYING
RACE.
RACE. QUOTE, THE IDEA THAT A SOVEREIGN
DEMOCRATIC GOVERNMENT REPRESENTS
A PARTICULAR ETHNONATIONAL
COMMUNITY HAS ITS ROOT IN THE
PRINCIPLE OF SELF-DETERMINATION
OF PEOPLES.
OF PEOPLES. HE QUOTES JON STEWART MILL AND
THE SENTIMENT OF NATIONALITY.
THE AUTHOR SAYS THAT SENTIMENT,
WHICH FACILITATES DEMOCRATIC
GOVERNMENT, RESTS UPON
ETHNOCULTURAL TIES.
ETHNOCULTURAL TIES. ETHNONATIONAL COMMUNITIES,
ETHNONATIONAL COMMUNITIES, ETHNOCULTURAL TIES.
ETHNOCULTURAL TIES. ARE YOU TALKING ABOUT WHAT I
THINK YOU’RE TALKING ABOUT?
OH, YES, YOU ARE.
AT THE ENDING, SELF-GOVERNMENT
REQUIRES A POLITICAL PARTNERSHIP
IN WHICH INDIVIDUALS ARE WILLING
AND ABLE TO REGARD ONE ANOTHER
AS EQUAL MEMBERS OF A POLITICAL
COMMUNITY.
COMMUNITY. DEMOCRATIC SELF-GOVERNMENT
DEMOCRATIC SELF-GOVERNMENT DEPENDS ON NATIONAL
FELLOW-FEELING, THE CAPACITY OF
CITIZENS TO IDENTIFY WITH EACH
OTHER.
OTHER. ETHNIC TIES PROVIDE THE
GROUNDWORK FOR THAT SOCIAL TRUST
AND POLITICAL SOLIDARITY.
OH.
OH. AT THE SAME TIME SOCIAL
SCIENTISTS HAVE FOUND THAT
GREATER ETHNIC HETEROGENEITY IS
ASSOCIATED WITH LOWER SOCIAL
TRUST.
TRUST. THEY EXHIBIT LESS POLITICAL AND
CIVIC ENGAEJMENT, LESS EFFECTIVE
GOVERNMENT AND FEWER PUBLIC
GOODS.
GOODS. THE SOCIOLOGIST ROBERT PUTNAM
HAS CONCLUDED THAT GREATER
ETHNIC DIVERSITY WEAKENS SOCIAL
SOLIDARITY, FOSTERS SOCIAL
ISOLATION AND INHIBITS SOCIAL
CAPITAL.
CAPITAL. THESE FINDINGS CONFIRM THAT THE
SOLIDARITY UNDERLYING DEMOCRAT
POLITICS RESTS IN LARGE PART ON
ETHNIC IDENTIFICATION.
ETHNIC IDENTIFICATION. SURELY IT DOES NOT SERVE THE
CAUSE OF LIBERAL DEMOCRACY TO
IGNORE THIS REALITY.
THE ETHNONATIONALISM OF STATES
IS BECOMING MORE NOT LESS
SIGNIFICANT.
SIGNIFICANT. LIBERAL DEMOCRACY REQUIRES A
NATIONAL COMMUNITY IF IT IS TO
BECOME MORE THAN AN INEFFECTUAL
ABSTRACTION.
ABSTRACTION. AND BY NATIONAL COMMUNITY, YES,
HE’S TALKING ABOUT EVERYBODY
HAVING THE SAME ETHNICITY.
I MEAN THIS IS THE LAW
REVIEW/ACADEMIC WORDY BIRD
ARGUMENT THAT YOU CAN’T REALLY
HAVE A COUNTRY.
AT LEAST YOU CAN’T HAVE A
COUNTRY THAT WORKS IF YOU’VE GOT
ALL SORTS OF DIFFERENT PEOPLE IN
IT.
IT. SURELY IT DOES NOT SERVE THE
CAUSE OF LIBERAL DEMOCRACY TO
IGNORE THIS REALITY.
THAT’S HOW YOU KNOW THIS IS A
HIGH BROW ARGUMENT FOR RACIAL
PURITY IN THE NATION STATE WHEN
THEY SAY THINGS LIKE SURELY
EVERYONE MUST ADMIT THIS.
DON’T YOU JUST FEEL IT IN YOUR
GUT?
GUT? THE AUTHOR OF THIS SLIGHTLY
BLOOD-CURDLING VERY SERIOUS LAW
REVIEW ARTICLE IS NAMED STEVEN
MENASHI.
MENASHI. THE REASON YOU NEED TO KNOW IT
IS BECAUSE DONALD TRUMP JUST
NOMINATED HIM TO BE A FEDERAL
APPEALS COURT JUDGE.
JUST NOMINATED HIM TO SIT ON THE
SECOND CIRCUIT COURT OF APPEALS,
WHICH IS THE FEDERAL APPEALS
COURT THAT COVERS NEW YORK STATE
AND OTHER PARTS OF THE
NORTHEAST.
NORTHEAST. AND YOU MIGHT WONDER HOW THE
TRUMP ADMINISTRATION FINDS THE
ACADEMIC DRUM MAJOR FOR
ETHNONATIONALISM TO BECOME A
FEDERAL APPEALS COURT NOMINEE,
ONE LEVEL BELOW THE U.S. SUPREME
COURT.
COURT. I TEND TO THINK THAT IN ACADEMIA
AND POLITICS, THESE PEOPLE ON
THIS FRINGE OF RACIAL THINKING,
THEY TEND TO FIND EACH OTHER
LIKE MAGNETS AND IRON FILINGS
DO.
DO. DO YOU REMEMBER HOW BACK IN THE
2016 CAMPAIGN TRUMP USED TO TELL
THIS TOTALLY MADE UP STORY ABOUT
THE WAY WE USED TO GET RID OF
TERRORISM IS THAT WE’D DIP THE
BULLETS IN PIG’S BLOOD AND WRAP
UP THE MUSLIM BODIES IN PIG
SKINS AND THAT’S HOW WE GOT RID
OF MUSLIM TERRORISTS IN THE PAST
AND NOW WE’RE TOO WUSSY TO DO
THAT.
THAT. THERE’S A LITTLE CONTROVERSY IN
THE 2016 CAMPAIGN THAT HE JUST
MADE UP THAT STORY.
THIS GUY WHO WAS JUST NOMINATED
TO BE A FEDERAL APPEALS COURT
JUDGE HAS ALSO MADE THAT SAME
ARGUMENT THAT TRUMP MADE ON THE
STUMP IN 2016.
HE HAS TOLD THAT SAME FAKE STORY
IN THE COURSE OF HIS ACADEMIC
CAREER.
CAREER. THIS WAS CRAZY ENOUGH TO HEAR
CANDIDATE TRUMP RUN WITH THIS,
THIS COMPLETELY MADE-UP STORY
DURING THE 2016 CAMPAIGN.
>> THEY TOOK THE 50 TERRORISTS
AND HE TOOK 50 MEN AND HE DIPPED
50 BULLETS IN PIG’S BLOOD.
YOU HEARD THAT, RIGHT?
HE FIT -- HE TOOK 50 BULLETS.
AND HE DIPPED THEM IN PIG’S
BLOOD.
BLOOD. AND HE HAD HIS MAN LOAD HIS
RIFLES AND HE LINED UP THE 50
PEOPLE AND THEY SHOT 49 OF THOSE
PEOPLE AND THE 50th PERSON HE
SAID YOU GO BACK TO YOUR PEOPLE
AND YOU TELL THEM WHAT HAPPENED.
AND FOR 25 YEARS THERE WASN’T A
PROBLEM.
PROBLEM. OKAY?
OKAY? 25 YEARS THERE WASN’T A PROBLEM.
ALL RIGHT?
ALL RIGHT? SO WE BETTER START GETTING
TOUGH.
TOUGH. >> TOTAL BULL PUCKY.
NOT TRUE AT ALL.
THAT STORY WAS NOT TRUE WHEN
THEN CANDIDATE DONALD TRUMP
PULLED IT OUT OF HIS PROVERBIAL
FORTUNE COOKIE AND RILED UP THAT
CROWD IN SOUTH CAROLINA WITH IT
DURING THAT CAMPAIGN.
IT WAS ALSO NOT TRUE WHEN SECOND
CIRCUIT COURT OF APPEALS NOMINEE
STEVEN MENASHI ARGUED IT IN A
PAPER THAT HE PUBLISHED AT
STANFORD UNIVERSITY’S
STANFORD UNIVERSITY’S CONSERVATIVE THINK TANK.
LOOK, SAME THING.
SAME MADE-UP STORY.
HIS FORCES EXECUTED THEM WITH
BULLETS DIPPED IN PIG FAT.
OH, NOT PIG BLOOD.
THE APPROACH IS PROBABLY NO
LONGER IN THE ARMY’S
COUNTERTERRORISM REPERTOIRE BUT
THE RESULT WAS THAT THE
GUERRILLA VIOLENCE ENDED.
THE AMERICAN RESPONSE TO ISLAMIC
EXTREMISM HAS NOT ALWAYS BEEN SO
HARSH OR AS EFFECTIVE.
I MEAN IT IS ONE THING TO HAVE
THIS FANTASY.
THIS FANTASY. LET’S BUY GREENLAND, YOU KNOW,
MADE UP, SELF-SERVING CLAP TRAP
COME OUT OF THE MOUTH OF AN
ANTI-MUSLIM CANDIDATE WHO THEN
BECOMES PRESIDENT OF THE UNITED
STATES.
STATES. IT ACTUALLY FEELS LIKE IT MIGHT
BE WORSE TO HAVE THE EXACT SAME
CLAP TRAP, THAT SAME LET’S BUY
GREENLAND LEVEL OF THINKING COME
FROM SOMEBODY WHO HAS JUST BEEN
NOMINATED FOR A LIFETIME SEAT ON
THE FEDERAL APPEALS COURT ONE
LEVEL BELOW THE UNITED STATES
SUPREME COURT.
SUPREME COURT. BUT HEY, JUST IN CASE YOU
THOUGHT THAT THE PROBLEM IN THIS
COUNTRY WAS THAT WE DIDN’T HAVE
ENOUGH OUT LOUD PROPONENTS OF