'It's A Good Way To Kill The Vibe At Any Party': Lee Asks Trump Judicial Nom About Federalist Papers

Añadido: 2026-05-30

[00:00:01]Mr. Schwartz, let's start with you.

[00:00:03]Tell us a little bit about how you would characterize your judicial philosophy or your interpretive approach to the law.

[00:00:10]So, Senator, when looking at a statute, I would be a textualist. That's my philosophy. And when considering the Constitution, originalism, Senator.

[00:00:19]Basically the same thing. The same principles apply. We're looking for the original public meaning of a statute or a provision of the Constitution.

[00:00:26]Um one of the often underappreciated legal doctrines that is very relevant to any Article 3 judge, particularly in the court of appeals, but also in the district courts, involves Article 3 justiciability.

[00:00:42]Um separate but related freestanding doctrines of standing, ripeness, mootness, and non-justiciable political question.

[00:00:51]These are things that it's a good way to kill the vibe at any party. It's a good way to put people to sleep. So, a lot of people don't find this interesting. And yet it's very important. Tell us a little bit about these doctrines and why they're important, why they matter under the Constitution.

[00:01:09]So, Senator, I think the Federalist Papers described the judiciary as the least dangerous branch. And one of the reasons is that there are the restrictions that you mentioned on justiciability, on standing. And it means that really only cases and controversies can come before the courts and be decided. Other countries have different systems where the courts do not need to have a case in controversy.

[00:01:32]And without commenting on the government structure of other countries, in those countries the courts have much more power than the courts do in the United States. And to keep our system of checks and balances, it's important that each branch, especially the judiciary, stays in its own lane and understands that it's rule that it's that it's supposed to be ruling on the law and using its judgment, um, enforcing its personal will on general topics, not trying to enforce the law as the executive branch should be doing.

[00:02:03]In the case of standing in particular, you've got to establish as as a plaintiff in action in federal court an injury in fact fairly traceable to the conduct of the defendant that's capable of being remedied uh, by a court of competent jurisdiction. These of course are are jurisdictional, um, non-waivable, um, elements that have to be satisfied.

[00:02:25]Um, in particular with standing, um, what what does it matter so much that we have these somewhat rigidly enforced uh, rules? For example, when the case of standing, um, you can't uh, assert an injury that doesn't belong to you. That that is only tangentially uh, related to you. That it that it has an only attenuated um, impact on your life.

[00:02:52]Why does that matter so much?

[00:02:55]Um, I can think of two reasons why it matters, Senator. One is again, we don't want the courts to sort of pontificating on non on on various issues that where there's not actually a dispute and the courts don't actually need to get involved. That's much more for the political branches of our government.

[00:03:13]The second is that you actually want fair representation on both sides of an issue before a court makes a decision.

[00:03:20]And if you have somebody who is bringing a case and they're not really uh, arguing the side that they need to argue, it can lead to bad outcomes from the courts. Uh, you don't have proper briefing, you don't have the incentives of the parties. Those are two reasons that come to the top of my head about why standing is important.

[00:03:38]If you're confirmed to this position on the US Court of Appeals for the Second Circuit, you'll be uh, hearing appeals from uh, from district courts.

[00:03:46]And what one of the many scenarios in which you'll be reviewing appeals will be in the civil context appeals from dispositive motions. Um motions to dismiss or uh motions for summary judgment. In the context of a dispositive motion, do you have any any view over whether which one is worth or worse or whether one is worse than the other?

[00:04:10]Uh in a close case, denying a meritorious uh dispositive motion or granting a non-meritorious dispositive motion, is one worse than the other?

[00:04:24]Um Senator, I've had the privilege of filing uh dispositive motions and opposing them.

[00:04:30]I I think airing on either side is really problematic. In one case, you're getting rid of a valid claim or case. In the other case, you're subjecting the other party to potentially extraordinarily burdensome and uh costly litigation.

[00:04:45]I think in general, given the Federal Rules of Civil Procedure and the standards for uh Rule 12 uh Rule 12 motions and Rule 56 motions, close cases are usually decided against uh granting the dispositive motion under those standards, but I think judges need to be very careful on those issues and not neither one of them is good. Is a related point um that closely relates to that? Um sometimes you'll you'll have judges trying to wrap themselves in the flag uh declining to grant relief, declining to um to act to grant an injunction or something um where it may be warranted.

[00:05:21]Um I guess that the related question is which is worse, judicial activism uh where action is not warranted or judicial passivity uh uh where action is warranted?

[00:05:38]Um Senator, I think they're both problematic. Obviously, judicial passivity um has some attractiveness to it because it defers more to the elected branches of government, but when you engage in judicial passivity, you of course may be denying rights to individuals that they have under the Constitution or under statutes. And so, it's very important for a judge to think about those issues and try to come up with the right decision rather than having a bias towards action or or or passiveness.

[00:06:06]>> Right.

[00:06:07]To quote Rush, if you choose not to decide, you still have made a choice.

[00:06:10]See, my time's expired. Thanks.