Todd Blanche Disgrace Train Rolls On

0:11Welcome to another edition of Thinking Like a Lawyer.

0:30Small talk. I think that's actually a great transition to small talk. Why are we on these janky sound effects? Because my computer's dead. Oh, that's sad face emoji. Specifically, the mouse and keyboard stopped working on my laptop, which is a known side effect of spills, which I did not have. But I did have my computer in my laptop bag while I walked in the massive rainstorm that happened yesterday. And I didn't walk far, but we— Just enough. We seemed to think that maybe that was just enough to cause a problem. And it has to be reset, which is not a difficult fix as far as I can tell, like from videos I've seen on it.

1:16but you need to unscrew it and Apple makes sure that they have a proprietary screwdriver so no other screwdriver can open it. So I had to order the screwdriver. Well, you know, that is how proprietary technology works. Another thing that you may have considered, perhaps you should just submerge the laptop entirely and then put it in rice. Maybe it just wasn't enough water to break it properly. Yeah. So weird thing. I didn't really realize this. Apparently on those, the keyboard is subservient to the mouse. So the mouse, if it stops, if it needs to be reset, it stops working and then the whole keyboard stops.

2:00That doesn't seem like a great design element. Like I would want them to work independently regardless. Yeah, because it's like a fail safe. If one stops working, you could always use the other one. Yeah. Well, and I can't even get because of where it is. I can't even get in to have it, you know, connect to my external Bluetooth keyboard or anything because I can't even log in because it needs. What if you have you tried to do like like a wired mouse? No, because I don't own one. Because it's not 2004. Is that right? Yeah. Is there even is would it even be a port for a wired mouse nowadays? days yeah they they work in standard usbcs now like everything does connect everything connects that way now yeah but annoying i will say uh what's the name um one door shuts another opens i feel like this is the most you've talked about your personal life in a small talk in a very long time i mean like joe walks yes yes it walks and is subject to the subject to weather doesn't just talk about it.

3:03He has an Apple computer. This is all information we now know. Has an Apple computer and still talking about technology. So that's just Joe. I'm literally talking about the device I use for work. So I'm talking about work. Yeah. No, so we're going to get it. I'm hopefully later today I'll be able to unscrew the Maybe you should play the lottery or something. It seems to me like that was a pretty one in a million shot. Everything's going wrong. Are you Are you having like Alexander and the horrible, terrible, no good day? Yeah. A year. Jesus Christ. Yeah. Well, we'll see. 2026 is not doing it for you?

3:44Not so far, no. Good news. It's already half over, I suppose. We still got another week. We still got another week. By the way, like speaking of the fact that it's the end of June, nothing quite hit. federalism doesn't really hit you in the face until you talk to people who have kids have been out of school for over a month at this point. And you're like, no, no school's still going on this week here. This is the last week of school here, but you know, everything's like a half day and random stuff like that. So, you know, all the, all the schools are still in session. I still have like yellow school buses coming down my block first thing in the morning.

4:23But when you talk to somebody who's been out since before Memorial Day, they're like, why? I feel like I'm ready to go back to school. New York is weirdly goes on way too long. We also don't start until after Labor Day, though. Right. So you get the entirety of July and the entirety of August off, which is, you know, pretty legit. What's the what's the federalism connection? I'm missing that. Like because there's no federal standard. Right. So like Texas does it very differently because, you know, every state and even jurisdiction does it all however they want to. And I guess there's some state.

4:54Well, yeah, all the states have different schedules. Right. Gotcha. Yeah. Well, let's get, let's begin then. So. He's just getting sadder and sadder. Oh God. I'm so sorry. You're, you're fat. That is the saddest fanfare I've ever heard in my life. It's so true. It's like we've unlocked sad Joe Patrice. It's like a collector's edition. You know, if you want to mention AI, just look at the spirits up. I'd understand. And we'll get there. But first, I guess a big thing to talk about. There was, again, a series of DOJ misadventures this week. But, Catherine, you wrote about the New York Times. They did some stuff.

5:37Yeah, the editorial board wrote an editorial as they're wont to do, the headline of which really says it all, which is Todd Blanche is unfit for office. written a lot about Todd Blanche, the former Cadwallader partner, former personal attorney to Donald Trump, question mark past that particular former. But he is currently the acting attorney general after Pam Bondi got the boot and has since been gotten the nod for the permanent role of attorney general. And not everyone is thrilled about that. Certainly, the New York Times editorial board doesn't think he's fit because he has, quote, repeatedly, unquote, broken his vow that he would not lead politically motivated investigations on behalf of the president.

6:25And but it was actually, I think, four reasons that they all kind of they detailed and also do a little bit of the math as to whether or not his nominee. Listen, conventional wisdom is he had to be Senate approved in order to get the deputy job, which he previously held before he held the acting job. So you'd think it wasn't that long ago. He could probably get the same senators to vote for him. What are your thoughts on the New York Times as an assessing body rather than just like a news reporting one? Well, sure. I mean, it's their editorial board, not their sort of their reporters. But, you know, listen, you know, who knows?

7:00Tom Tillis in particular, they single out because he's on the Judiciary Committee and he could potentially prevent the nomination from going to the Senate floor in its entirety. He has specifically said that, you know, he wanted Blanche to say that the perpetrators of January 6th were not right in what they did and whether or not he does that, you know, could potentially hold up his nomination. It wasn't that long ago that he managed to get a Senate confirmed job. That said, a lot of water went under that bridge. since then. One. Two. Normal colored water or? Bright green water. Let's, I'm going to go on a tirade about that in a second, but a lot of water is under that bridge.

7:50There's, and the Senate has changed, even though they're not actually different people. There are now more Republicans who have, who are in entering lame duck sessions because they've lost their primaries and have zero reason. Correct. To do what Trump wants. Yeah. Which I think that is a key factor. Corwin. Corwin. Yeah, exactly. And also there's a bunch of very hotly contested midterm elections that also are impacted here. Susan Collins is getting a ton of blowback for her support of the Trump administration. There's recently an ad that was taken out against her calling out her support of Brett Kavanaugh for Supreme Court.

8:32So she's on all of her recent appearances, she's playing a lot of defense on this Kavanaugh thing, which, you know, Matt Schvansky, who runs Massachusetts, like New England political inside blog that I that we follow, made made the point the other day that the fact that she's talking about this a lot suggests that her internals are showing that this is a real problem for her, which she's never had real problems in Maine before. Yeah, I mean, I have a couple of friends who are Maine natives and parents still live there. And it seems like it's the hatred towards Collins is real. I think these are people who have supported Collins for election upon election and are very much at the end of their rope.

9:16So it'll be really interesting to see how it all plays out. And remember, the Republicans only hold a 53 seat majority. Right. So there's not that many people who have to defect in order to to do this. And obviously, I think Trump pushed this nomination now to get it in before the midterm elections, which, you know, might actually backfire if this is a hot button enough political issue that that people want to say, oh, look, I can stand up to Trump. So the reflecting pool. Let's do it. So look, I'm accurate name, quite frankly, accurate name. So the reflecting pool, so there is a legal conversation to be had here as they've now started arresting and otherwise citing people for touching the water, being near the water, taking pictures of the water, now gathering around the water.

10:06All the sorts of things that I saw one person point out, these are all actions that we used to mock because that was kind of how Soviet bloc countries operated. But what gets me about it is that we've now transitioned to this fanciful idea that the reason it's turned this color is because of vandalism as opposed to the cycle of nature. As somebody who's worked with a pool before, and this is also what I think. I think an underplayed aspect of this is I don't think the Trump administration – they have such a low estimation of their own voters. I think he thinks that his people are too poor to have pools or something like that.

10:49So he doesn't understand. So when he says this, like I'm sure it's vandalism, I think he's banking on the idea that all of his base doesn't understand how pools work when in reality. Or they're rich enough that they have people who take care of them. When in reality they live in Florida, they have pools. I was going to go with Catherine's point. I was going to suggest you're reading it the opposite way. He's actually so detached from well, how from pool maintenance to this. He knows much the same about pools as he does about a gallon of milk. So chances are, chances are one of his aides just said, oh, this is what happened.

11:21Somebody took a box cutter to the pool. He's like, yeah, my name is Trump. I believe this. And then parroted it, not knowing that Florida exists. I mean, he I mean, he he has a pool locker. We know that because that's where he kept boxes and boxes of classified documents. So he understands. But yeah, I mean, he he knows. got to hire people or hire people who then hire people the people but i'd actually i'd actually wager he doesn't understand most of what he interacts with so i don't know how much i would but to close the loop if you have a non-natural pool that does not have you know kind of a natural base where water is naturally filtering out into the ground which is what which was what the the reflecting pool kind of had before they sealed it with polyurethane and painted it but when you don't when you do have a sealed pool like that algae grows yeah especially in a particularly hot summer like we have this year and the thing that people aren't talking about that that my mind thinks of because again i haven't have a i don't have a reflecting pool size pool in my backyard but i have had trash can lids that have rain in them mosquitoes populate yep so i'm just wondering how many people are getting bit by the shit i mean the the algae is clearly the the thing you see, but it is a stagnant pool.

12:36Mosquitoes have to be in there. It's Washington, D.C. It's a swamp anyway. So that part, I think they were already. But yeah, if you create a still water that doesn't filter anywhere, then it will grow algae. And the only way to get around that is either tons of chemicals, which is going to rip up the paint, which we're seeing, or is to have filters, which you could have. But if you have filters, it stops reflecting because then the water's not still so or maybe maybe maybe here's what happened i think trump with all the money he had he contacted a seer because he knew he was going to win and he wanted to get advice for what to do in his campaign and he misunderstood the nostradamus reading of drain the swamp yeah yeah because it's just it's just so it's just so poetic this is you know he had he had years he had years didn't know to drain the swamp, but then he created it.

13:30All right. And let's, you know, this is a good time to take a break and we'll be back in a second.

13:39You like legal podcasts because you're curious and want to be the best attorney you can be. I'm Dave Scriven-Young, host of Litigation Radio, produced by ABA's litigation section with Legal Talk Network. Searching your favorite podcast player for Litigation Radio to join me and my guests as we examine hot topics in litigation and topics that will help you to develop your litigation skills and build your practice. I hope you'll check out Litigation Radio and join the ABA Litigation section for access to all of the resources, relationships, and referrals you need to thrive as a litigator.

14:13All right, we're back. Chris, you have been covering Judge Newman's struggles to, you know, keep her job in the face of opposition from her colleagues. So there are some updates to that. Yeah, keep her job, uphold the Constitution. She's doing a lot with her forced time off. But yeah, so she acts with the Supreme Court, well, her and her legal team acts with the Supreme Court to review the situation she was going through this um ersatz impeachment and the court just decided to sit on their hands and it's uh it's a sad thing for you know people that give a damn about the independence of the federal judiciary because it's the the the lines are muddied as far as what a person can lose their job over it just seemed before this well not not just before this but according to the uh video that the court put out and judges are there for you know their good behavior and she's she's been behaving pretty well what what what you're what you're referencing is the federal circuit itself just put out a video i like to explain to kids how uh how the courts work and they made a point of saying we're here for life and it's like bitches you you kicked one of your judges off you know without any actual process she appears to be very living that's the thing um and it's it's really unfortunate the dc circuit they're they're like look our hands are tied the mcbride decision even if it was wrongly decided it's the precedent we have to follow so like you know they're kind of like throwing their hands up as the hands are tied behind their back sort of thing which is hard to picture but in my mind that makes sense it is difficult to see Like because this isn't a thing that should be happening, it means that there is no real way of dealing with it.

16:06Like you would think that, yes, another circuit should be involved. It should not be the circuit itself that making this decision. It should be some other circuit making the decision if it's for independence and lack of conflict reasons. But the D.C. circuit is right. We can't do that because none of this should be happening. The Supreme Court really was the only one to properly step in and fix it, and they have seemingly declined. So the update to this, of course, is that over on the social medias, Adrian Vermeule made a point about, oh, well, if this is the standard, it seems to me as though next time around what we should get is a bunch of – start having the conservative judges on every panel determine that all the liberals are clearly mentally ill and get them off that way.

16:53Which it was unclear because of who was writing it. It was unclear if he was saying this as a reason why that would be bad or a playbook that he's interested in following. But it is the issue, right? Like if you have no standard, which the standard currently is that they have to be impeached and removed by the Senate, and the idea that your colleagues can just say, oopsies, we disagree. If that's the standard, then there is nothing checking. And the Supreme Court refuses to have any supervision over that. Rebeal's right. There is nothing stopping somebody from taking that action. And the thing that gets me is it's not that Newman didn't go to a doctor.

17:36She went to some of the best doctors. It just wasn't the doctor that the court chose. So they get to pick and choose who is able to determine if you're ill or not. And if they just have the – not to suggest that judges would ever act in a way that's inappropriate, but if they just make the guy say whatever they want, they get to exclude whomever. Or get whoever Trump's doctor is to make a determination, right? Right. You mean the one that has dictated that he has the same body fat content as like DK Metcalf or whatever it was the last time around? Yes. Yes all they got to do is get the judge Get the whatever doctor said Trump is 6 '4", 220 And you know the same complexion As LeBron James they just get That judge to say whatever they want And they can kick off any judge which to me And this is why I really don't Like the way that Newman's Story is being covered by other news Outlets this is not About her age Because this could happen to a judge in their 50s Or 60s sure and again when there are no standards it can be applied to just about anyone oh yeah right right right but all the stories lead with oh because of her age yeah right right 90s it's not like it's not like hey this is a clear due process threat for federal judges it's more like 97 year old woman who's too stubborn to give up her job doesn't follow directions and that's not the story here it's not yeah absolutely there's the the age is a you know it's a red herring yeah to be to do the clue thing it's a red herring uh yeah and what that's that is one of the things that i'm i'm happy with during my tenure here about like how i cover the story compared to how other people have done it poorly i think i think i'm doing a good job of honing in on what the actual you know because i would imagine that lawyers care about issue spotting her age is not the issue people no it is not uh it would be the worrisome issue is that the her colleagues have determined that they can unilaterally remove her and they can do so without considering or even bothering to consider contradictory expert evidence and like look battles of the experts happen but you know they they have just said and it's not even that like their doctor made a conclusion they said you can only get an opinion from our doctor she went out and got opinions from great world-renowned doctors in the field like leaders in the field yeah and like i think i think one of the guys he was like i made this thing like i am the expert and they're like i don't know you didn't go to steven steven's the only one that can evaluate you it's just not how this works uh it is really really problematic and another another thing like the the other media outlets i've seen covering it they just run with the court story they're like oh she was not submitted to any test i'm like that's not true well but that's also that that is part of what's problem the problem with journalism right now, right?

20:36Their newsrooms are overstretched. They repeat press releases far more often than they do real investigative journalism anymore. And that's what happens. And then a narrative gets created. And like, look, I wrote an article this last week about the importance of term limits. I think it is something that would be well within the range of the constitution and something that statutorily we should do to help the judiciary regain some credibility. And under a term limit situation, she would have been phased off of the bench already. But that's a whole different situation. Until we pass that term limit, she stays.

21:16And I will be the first in line to, until we do that, you got no business kicking her off. Right I'm agnostic on term limits I see a rationale for them In the same way that I see a rationale for like Preventing there tend to be age Cut offs for people that can drive But I will say like she is An absolute like a Ideal case for not having term limits Because she's still doing the shit The thing about the term limits too is that it's not age based It's number of years served based right So you serve 18 Under the term limit proposition you would serve 18 years Whether you started those 18 years at 50 or 95.

21:52You'd serve those eight years. Yeah. Cause I I've always said the, the, the purpose of the term limit is not to, there are mandatory retirement ages in some states, like, like New York has. That's a good point. New York just reauthorized their mandatory retirement age. But the term limit thing from my perspective is just about making the judiciary responsive to elections, elections, uh, it kind of a lagging indicator. They're not like immediately responsive, but over the course of 18 years, you know, the, the election matters and just mostly so that we stop getting kind of dead hand appointments for somebody's like, I'm going to make sure there's a 30 year old on the bench so that they'll be there forever, or at least until their colleagues decide they're mentally unfit.

22:31And to Calvin's point, that is a good catch. I did a mental cross up where y 'all said term limit, but I heard age limit. But yeah, because that was one of the things. And that's all again, back to me you know my you know my uh soapbox one of the things that pissed me off was people tried to turn this into the into like a should there be age limits conversation and i'm like that is a distraction that is not what's happening here even if there should be there aren't let's not get so bogged down in hypotheticals that we aren't discussing what's happening like there was one point where i think there was like oral argument and they were like what if a judge gets it was in a coma what can we do then and i'm like that is not pertinent to the matter at hand you know so yeah so well let's let's take there there's even more to even discuss on that front too which but let's for now let's table that uh and we'll take a break and talk a little bit about ai all right so the last thing i wanted to talk about was an ai situation uh we surprise yeah well this was an interesting one the it started not in a legal context a woman on went had a post go viral on social media because she wanted to update her resume.

23:44I think like a lot of people, a lot of people don't like updating resumes. It's an annoying process. I used to work in the Office of Career Services when I was an undergrad as my work-study job. So I did a lot of that for people and it's terrible. Yeah. A lot of people don't like it, but you know what's really good at it? AI. It is the sort of thing that can take, here's what it is. Describe this in a way that like, write all these words that are awkward but have to be in resumes. You know, who describes themselves those ways? But it's the format. So it's really good for it. So again, like a lot of people, I think she turned to AI to update her resume.

24:21And you probably care a lot less about AI hallucinations than a sort of document a lot of people lie on anyway. Yeah, right, right, right. So she did this. But what she then did and where the story became viral is she changed her name to a man's name and asked it to brush up the resume and it brushed it up a lot better. Just lots of work that she was described as assisting on became, took a leadership role in, like all of the - Or collaborated. The extra little bit came out for all of the descriptions when it was a man. She was using Google Gemini and did this. And so I had, I saw this and thought, what would this be like in legal?

25:05She wasn't a lawyer, but lawyers have resumes too. And I thought, let's run this experiment, see what happens. So there was good news and bad news, I think, is the result of the experiment. The good news is that the actual legal work was described pretty accurately between both of them and using the same words largely. Now, I'm speculating, but I think the reason for that is that legal work, and, you know, I mean, AIs are just prediction engines based on context. Legal work tends to be pretty homogenized in how we describe it. Represented X in Y, you know. In deal that was size, size, size. We use the same words over and over again.

25:50So it keeps those descriptions pretty standardized, which was nice. So on that side, it was good. That said, it did a few subtle differences. and not all of them were in the fictional male's favor. There were a couple of places where she got a couple of better details, but overwhelmingly, I would say, to the extent there was any distinction between the two, it cut in the guy's favor. He was described, there were gratuitous descriptions. He was highly motivated with extensive experience. That had nothing to do with any of the individual work cases. It was just something that for the man, they decided the AI threw on as like a preparatory statement.

26:36They didn't bother with that for her. I do wonder too, as you said, you know, AI is a prediction engine and scanning, you know, however millions and millions of resumes of both male names and female, you know, tended to be names. That's how it is, right? That men unilaterally are like, I am highly motivated, whereas maybe other people are less excited to find themselves like that. So let's explore that. I think that's a really interesting take, which is that it's not that the AI is necessarily biased. It is just reflecting or that it's – Well, no, it is biased because it is accurately reflecting the Zadapola was trained on.

27:17Well, okay, correct. How about I try to distinguish this? Not that it is exhibiting a men deserve this and women deserve this as much as it is reflecting that for a variety of other social pressure reasons, men tend to write their stuff that way and women do. That's interesting. The way you just said with me and Catherine said was beautiful, Joe. Well, now a white man has said it. It's right. Now it's real. but but there are those are two very different things though right yeah no i agree and i think i think that's a critical distinction now i my article very much leaned toward the former uh issue that the yeah that embedded within the training data was the idea that men should be getting better stuff as opposed to that's already existent in that i also as as a female who's written a resume or two in my time uh i would be hesitant to describe myself as highly motivated because I think people might see me as a bitch.

28:16Like highly motivated women get perceived as a bitch. Right? I probably wouldn't write that down. Yeah, yeah. Let them discover that for themselves. Yes, after I'm getting my salary. Correct. I will say Catherine is highly motivated. I do not think she's bitchy. I think she likes Taylor Swift a little too much, but she is a very highly motivated worker. One of the errors between the two or discrepancies between the two that I actually thought was the most egregious, even though it may seem the smallest, but I thought was the most egregious. In the fake bio that I created for this experiment, the person had been like in semifinals of national moot court competition, yada, yada.

28:57And on the male resume, that was listed as one of his academic honors. And on her resume, it was listed as she was a member of the moot court. All right, that's bullshit. That one's bullshit. That is just the AI. And it didn't ignore the fact that the semifinal it put like as part of the like member of team semifinalist like put in that. But but yeah, it was relegated to I joined a club as opposed to this thing. Yeah. And that that seemed like a real big deal. Yeah. That I have I have less sort of nuanced gender analysis for. Yeah. Now I'm thinking about my resume. Should I put CDI? What's the name?

29:35CDI after finalist somewhere different on mine or should I list it? I don't know. CETA and yes. Cross-examination debate association, octofinalist. Honestly, my takeaway from this whole process for anybody trying to figure out what the takeaway is, I would run your resume with different names. Yeah, and I think that's probably true for a lot of different things. I would probably make a couple of different versions. Yeah, run it using different names and then have them and then look at them and be – have that moment where like, okay, well, they put this for this person when I was acting like I was a guy.

30:14I'm just going to copy and paste that into my final graph. Yeah, and I mean you didn't do this experiment, but I bet there'd also be differences for different last names that have different nations of origin associated with them. I tried to think through what the situation would be if we had different ethnic, obviously signaling ethnic names. One of the issues when I tried that experiment really briefly that stopped me was, So my fictional candidate had conversational Spanish because they were a corporate lawyer and like Latin American deals are a big deal, yada, yada. But like it foregrounded the – when I had a different name, it foregrounded that.

30:53And I was like, oh. And then I paused. I was like, but you might actually really want to have that in that situation. So that actually isn't necessarily a bad thing if you're trying to work in Latin American deals. So I was like, maybe this is too difficult. I think there's just a lot more variables for that. But my assumption based on everything I know about AI is that there'd also be some racism hidden there, too. Yeah. So definitely be careful. The thing that gets me is the process of selecting whichever outputs is better is complicated by not knowing how the person who reads the resume reads.

31:25So like some person might be like, oh, I chose this one because it's like highly motivated. And then but then you could get that resume in front of somebody who's like, oh, this person is using fluffy language. They're overestimating themselves. That could be a bad indicator or type of person I'm looking to hire. So it's hard to know ultimately, like which which outcomes are actually better. Like it could be the case that like the female resume was understated, but that could get to more jobs. That's true, too. That's why, you know, run all the experiments, take all the data in. I guess the point is to have the information and make the choice.