People are appropriately dunking on Neal Katyal’s embarrassing TED talk about how robots helped him achieve the greatest victory in Supreme Court history. I can’t recommend Josh Blackman’s methodical takedown enough.
I want to address his overarching premise of AI preparation. By way of background Katyal trained some robot — apparently named after a giant talking rabbit — on every question asked by justices over the past 25 years and on every jot and tittle written by the justices. Or something like that.
With that information the robot was able to predict their questions (see Blackman on the particulars of this claim). With that superior robot knowledge, Katyal was able to use the human touch to connect it to the justices and, again, win the greatest victory in the history of the Supreme Court. All it took was Neal, Ben (the sports-concentration coach), Liz (the improv coach), Bob (the meditation coach), and Harvey (the robot). He was only missing P. J., Timmy, and Squee.
I’ve never argued at the Supreme Court, and I never will. I’ll be the first to admit that’s not my scene. I have, however, probably prepared more people for Senate hearings than anyone alive. It’s from that perspective that I read this and thought, what a bunch of gobbledygook.
About a year into the last Trump administration, I went over to the DOJ to be the deputy assistant attorney general in charge of nominations at the Office of Legal Policy. When I got there, we had a real problem on our hands: Far and away the most dangerous senator on the Judiciary Committee was the Republican freshman from Louisiana, John Kennedy. He had just methodically taken out one nominee and was landing serious blows on others. From a position of principle, he openly rebuffed all calls from committee leadership and the White House to go easy on his own party’s nominees, and by the time I got there every single nominee had the same question as we started prep: How do I respond to Senator Kennedy?
So that was my task, figuring out how to prepare our nominees to survive Senator Kennedy’s grilling. Recall it was an assembly line — as Sheldon Whitehouse complained at the time — so the plane had to be built as we flew it. My first approach was the Harvey approach: Study what Senator Kennedy had asked in the past and teach them how to answer that. It didn’t work. It turns out that there are few things Senator Kennedy dislikes more than canned answers. “I want to know how you think,” he would intone.
My team and I met and concluded we’d need a better approach. Senator Kennedy says he wants to know how they think, we figured, so why don’t we give him what he wants? It’s not like we had a choice, of course, because the only way to lose a nominee was to lose a Republican vote.
The preparation, therefore, shifted. “Don’t worry about what he asked before,” I’d explain. “He doesn’t care about that. He cares about you. He wants to know you have a brain and that you’ve read a book. He wants to know that you can evaluate problems on the fly. If the question is a hypothetical or about theoretical jurisprudence, I don’t think he cares about what the answer is. He cares that you are capable of thinking through the question.” We then came up with a prep regimen that prepared them to do so by not asking questions that Senator Kennedy had asked previously. We needed to prepare them to think on their feet and shine in a public political forum alien to most lawyers and judges.
I don’t know what Senator Kennedy thinks about the job we did, but I’m obviously partial to my nominees and I think they were able to show him just how capable they were.
Fast forward to the Biden administration. Every hearing Senator Kennedy would go at a nominee like an Aztec priest. The results were humiliating — although rarely humiliating enough for Senate Democrats to risk offending their special-interest patrons by opposing Biden’s manifestly unqualified picks.
For a while Chairman Dick Durbin tried to laugh it off. “Congratulations. You just went through the Kennedy Bar Exam.” We joked that the Kennedy Bar Exam is the only bar exam you don’t have to pass.
Eventually enough was enough. Following one of Senator Kennedy’s public executions, Chairman Durbin apparently snapped at his staff that they better tell the White House nominees that they must read every Kennedy question before their hearing. It was just getting too embarrassing.
As with Harvey, this solved absolutely nothing. Because — as we had learned years before — it wasn’t about regurgitating canned answers to predicted questions. It was about demonstrating an ability to think on your feet as a well-read, accomplished attorney. “Good luck with that,” I thought at the time. The beatings continued, and Democratic morale never improved.
It’s not the Supreme Court, but the same principles apply. The Senate and the courts are fundamentally human institutions. They’re about people and ideas, not algorithmic predictions. Kudos to Katyal, I guess, for having the foresight to use a robot on the front end to translate his likely victory into a TED talk. I bet it’s good client development, but, ironically, it really doesn’t get more human than playing into the fad of the moment.
An addendum: The movie Harvey is fantastic. Jimmy Stewart’s most memorable line is, “My mother used to say to me, she’d say, ‘In this world, Elwood, you must be oh, so smart or oh, so pleasant.’ Well, for years, I was smart. I recommend pleasant.” It came to mind considering the apparent spat between Katyal and the great Michael McConnell.