#012: Phil Weiser - Colorado Attorney General

This transcript was generated by AI.

Phil Weiser [00:00:00]:

The people who disagree with me are the ones I may be able to learn the most from. And so I view that as a special opportunity. I've talked a bit about the relationship between Justice Scalia and Justice Ginsburg. That relationship was grounded in respect, in listening, and an effort to learn and improve what you're doing through that dialogue. And so I view that as a critical part of my job. And what I would hope is that people believe care about them. I care about everybody in Colorado, every county, that I respect them, that I want to learn from them. And then they have to decide if they want to vote for me or not. That's up to them.

Jonah Perlin [00:00:34]:

Welcome to How I Lawyer, a podcast where I talk to attorney from throughout the profession about what they do, why they do it, and how they do it well. I'm your host, Jonah Perlin, a law professor in Washington, DC. How. Let's get started. I'm so excited to welcome today's guest to the How I Lawyer podcast. Colorado Attorney General Phil Weiser. Phil is a graduate of Swarthmore College. Go, Phoenix and NYU Law School. Go, Bobcats. After graduation, Phil clerked for Judge E Bell on the United States Court of Appeals for the 10th Circuit in Colorado and then on the United States Supreme Court for Justices White and Ginsburg. After completing his two clerkships, he worked at the Antitrust division at the Department of justice for two years before returning to Colorado and entering academia at the University of Colorado Law School, where he worked for ten years, teaching and directing the Silicon Flat Iron Center. After that, he returned to DC to work as the Deputy Assistant Attorney General for Antitrust at the Department of justice under President Obama, and then as a senior advisor at the National Economic Council before returning to the University of Colorado, where he taught for ten more years, including five as dean. In May 2017, Phil Weiser ran for Attorney General of the State of Colorado and was elected to that office that he still holds today. In our conversation, we discuss his path from law clerk to government attorney to academic, and then ultimately to state Attorney general and the skills along the way that led him to be successful. At each step, a desire to serve a commitment to empathy, a focus on the task at hand, a deep commitment to listening to those who might not agree with him, and a helpful dose of willingness to take risks and see where Serendipity took him. Here's. Attorney General Weiser I went to law.

Phil Weiser [00:02:16]:

School because of my interest in public service. That's probably the only plan that existed. Or to use a different term that comes out of a book called The Startup of you. I had plans A through Z. I'm not even sure Colorado Attorney General was one of those plans, although I would say when I came out here to clerk, I did think, wow, what a great place to live. Maybe my life could take that turn. And I will say to all the law students listening, please be open to a future path. When I was clerking with Judge Ebel, he went to talk to NYU's Moot court competition. He judged it. Then he talked to all the people at a dinner afterwards, and he said to everyone there, you guys might want to open your minds to a whole series of potential careers that you could have other than working just at large law firms, which a lot of my friends have done, have had great experiences, but there's a lot of options out there. And I took that to heart. So I didn't plan at all. I want to do public service. And I took this path, and it kind of just led one thing to another.

Jonah Perlin [00:03:17]:

And did you ever feel like you had to make career choices based on the fact that someday you might run for office, or did you just go with the flow? And then at the end, that's where the public office part of public service came in.

Phil Weiser [00:03:30]:

When I was dating my wife, I said to her, and this was 2000 ish it was six years after I graduated from law school. I'm really interested in public service. I might conclude someday that I need to run for office myself. I believe this deeply, and I hope all lawyers and law students reflect on this point. We need good people serving in government. We need good people running for office. There's a reason lawyer are so sought after. As leaders, we learn to think. We learn to organize. We learn to lead. And so I was aware of that. I will tell you, I've been appointed to serve, and I've run for office. It's a lot easier to be appointed. So I would encourage people to take those opportunities and not to run for office. Lately, but it had always been a thought that I had had that the time might come when I need to run for office. I did not act in a way that, quote unquote, prepared me to run for office. I'm not even quite sure, now that I've done it, what one would or should do to prepare for running for office. It is unlike anything else I've done. What I did is I lived my life trying to help people, trying to serve, trying to make a difference, be engaged in public issues, public policy. And then after my nominal thought that I would finish up as dean and go join a Hillary Clinton administration went into the trash bin of history. I had to come up with a new plan. And that new plan began taking shape after the 2016 election. Maybe I should run for office now. And my wife actually had a turnabout, was like, Phil, I think you should run for office. And I'd always said to her, an office that I thought would be an extraordinary chance to serve is as Colorado's Attorney General. So I decided 2017 to take the plunge, and here I am.

Jonah Perlin [00:05:11]:

We'll talk a little bit more about the election process and what it's like to be AG, but I want to start at the beginning of your legal career. So you're just out of law school. You finished up your clerkship on the 10th Circuit, you come to Washington to clerk on the United States Supreme Court, and you had the unique experience, or relatively unique experience of serving as a law clerk to Justice White. Who at that point had been on the bench for many, many years, and Justice Ginsburg, who at that point had been on the bench for only a few years, wondering if you could tell us a little bit about that experience working for those Justices, getting those jobs. What was that like?

Phil Weiser [00:05:46]:

Justice White had been retired and hired me as the one clerk he was allowed to hire, and then told me he'd lend me out to an active justice, his replacement, Justice Ruth Bader Ginsburg. The timing worked out well. Justice White got in usually before me. I try to get the office by nine, and he would leave by about two. Ginsburg would rarely arrive before 02:00 and rarely would leave before nine or 10:00 p.m.. So that was a very intense year. The experience between White and Ginsburg was actually a nice compliment. White at that point had accomplished everything, sat with the 8th Circuit one time that year, stayed engaged, and was really interested in visiting. And I had this extraordinary experience for people to know about byron White, he was described by Justice Potter Stewart as Clark Kent and Superman. He graduated first in his class in Yale Law School and led the NFL in rushing at the same time. He was a Rhodes scholar. He was a humble person like you wouldn't believe, and he was Bobby Kennedy's deputy at the Justice Department, all before becoming a Supreme Court justice. In the ripe old age of something like 43 years old, byron White would say that his peak of his career was working for Bobby Kennedy at the Justice Department. That was a formative experience for him. He has deep respect for the Kennedys, for the Justice Department and served a distinguished career on the Supreme Court. I got to know him at the end of that career, and he really treated his clerks as family, one of whom right now is Ron Klane, the chief of staff to President Biden. So I was so blessed to have that relationship. Justice Ginsburg is an extraordinary leader. It's hard to think of her in the past tense. She cared about her clerks as family as well, and her husband Marty, also a blessed memory, took us in and went to my first opera with her. Marty was as legendary cook as people talked about, and her commitment to doing excellent legal work is something that will always stay with me. So I am doubly blessed to have these two relationships. And as you know, Jonah, this law clerk relationship is unlike most things in life. And why I tell people I was told this by a mentor of mine in law school, the best job you can have after you graduate law school is as a law clerk to a judge. And I ended up with three of these relationships. One with Judge Ebal, who continues to be a close friend and mentor, and Justices White and Ginsburg, who are just.

Jonah Perlin [00:08:19]:

Extraordinary leaders working with students now who are thinking about clerking. One of the things I hear all the time know what's it like to write an opinion, what's it like to be in the courtroom. Am I going to get good legal experience, research, writing? And I always tell students, like, pause and recognize that the relationship you build with the judge as a person is by far the most important part of the experience. And so it's so inspiring. I mean, literally, I'm getting tingles hearing about your experience. And then I think back to my experience with the two judges who I clerked for, and again, they taught me how to be a person, how to be a lawyer, how to be a better human. Yeah, I did a lot of legal writing. I mean, you just talked about it, right? You literally burned the candle at both ends. But what you remember is going to that opera. Do you have any specific memories of what that opera was like? I'm curious.

Phil Weiser [00:09:12]:

I'm trying to remember, is it Gilbert and Sullivan? For those who have seen the movies, RBG or on basis of sex, you get a sense of justice. Ginsburg as a person and Marty Ginsburg as a person. And they were very engaging and delightful, as well as a very serious and hardworking.

Jonah Perlin [00:09:29]:

Interestingly enough, my office at Georgetown Law, which of course, I haven't been to in a year, but the place that I'm supposed to go when we're allowed in the building is Marty Ginsburg's old office because he was on the Georgetown Law faculty. And another faculty member gave me a gift of the introduction to his tax law textbook, which is now taped to the back of my door. And it's probably the funniest piece of writing I've ever read. The key point being, I came to Washington because my wife got a better job. So after you finish your Supreme Court clerkship, you decide to go work at DOJ. Can you talk a little bit about the thought process? You're still a pretty new lawyer. You've spent this really hard year working. How do you transition into government service?

Phil Weiser [00:10:10]:

I went to law school, so I want to do public service after my clerkships. That's what I wanted to do back then. The bonuses are not what they are now, but I was committed to turning down whatever private law firms could offer if I get a job in government, and I looked at a number of different options, I would have gone to a number of government agencies. I had actually previously looked at getting into the treasury bar of an honors program, which has a great program, and I connected through a fairly random set of events. I actually met someone interviewing at a law firm, and I was very open. I said, I'm hoping to get a job in government. And then the person said to me, well, you should reach out to Joel Klein, who's at the Antitrust Vision. So I wrote Joel a letter and said, this person tells me I should talk to you. Joel called me up and said, oh, if you're a friend of so and so, you're a friend of mine. And then Joel ended up offering me this job, being counsel to the Assistant Attorney General for the Nhrust division. It was a tremendous experience because Joel was such a special lawyer and mentor, and I just had this blessed experience of, here I had these three different judges, and then I get to work for Joel Klein, and it was opportunistic. I hadn't said I'm going to work for the Nhrust Vision or I'm going to work on technology issues. I was looking for a range of jobs. As far as I was concerned, I could have worked in the Education Department, the Treasury Department, or the Justice Department, just a matter of working, get the best opportunity, and it was at justice with Joel, and it was phenomenal.

Jonah Perlin [00:11:26]:

Yeah, it's interesting how I hear that story a lot when I talk to government lawyers. It's like, just get in the door in government and figure it out once you get there, and it sounds like that was your experience. Was it a big transition going from clerking, where you're dealing with writing opinions and dealing with litigation and traditional legal work, to moving into a more policy centered job?

Phil Weiser [00:11:47]:

Yes, and this is something that lawyers don't think enough about. A lot of lawyer think about the skills that we need as research and writing. The type of work I did at the Spring Crow Law Clerk, what I believe is underestimated are leadership skills, emotional intelligence, working on a team, and that's what I needed to be able to do at my DOJ job. I'd say there are at least three categories of work. One is I did operate a little bit as a law clerk to Joel, so when Joel was working on speeches and he was committed to intellectual leadership, I did some serious research, writing and thinking, and I valued that work. Secondly, I was working on the implementation of the Telecommunications Act of 1996, and that very much was a team effort to think through what, at that point, bell Company entering to long distance would look like. This is, of course, ancient history for everybody, we used to live in a world where the local Bell companies didn't provide long distance, and the 1996 Telecommunications Act changed that. And we at the Justice Department had this role that came out of the at and T consent degree. So I was playing a role, helping to oversee that effort on behalf of Joel. And then third, I actually got involved in some local investigations of cases where, again, I was part of the team working on matters, doing research and writing document review, deposition. So I had a tremendous experience, and it ran the gambit. And it wasn't only the research and writing. There was a lot of work about teamwork, about learning a subject as part of interdisciplinary team, really, because in the areas I worked on, it was law, it was economics, and it was technology.

Jonah Perlin [00:13:18]:

And then you get that opportunity and you shift to academia, and just so happens you get to return to Colorado. How did that all come about?

Phil Weiser [00:13:28]:

Opportunistic. Also, Kurt Bradley was a former clerk for Justice White and Judge E Bell. He's now in the Duke Law faculty. He was in the Colorado law faculty. And he said to me, Phil, we've got this position. It's a position that's in the law school and the telecommunications school will be a joint appointment. You're doing telecommunications in the HR's vision, you should apply. My mentor at NYU Law School, who told me that I need to clerk. It was the best job out there. Chris Ice Gruber was like, Phil, if you get this job, you take it. I only applied to Colorado Law School, unlike most law professors who do the whole they call it the meat market. I only had one job interview to be a law professor was at University of Colorado. I only had one job as a law professor at the University of Colorado. I did visit at a couple other schools, but for me, it was about getting back to Colorado. And the question that I had was less about Colorado, but more about being a law professor, because being a law professor again, was one of those plans from A to Z. I wonder if this will work out. And my hypothesis that I went with was, as a law professor, it could be a platform for public service and that it would be a rewarding way to engage and a rewarding way to make a difference. That was a bet that I made on the back end of the bet, I would say it worked out really well. As a law professor, I was able to do things I hoped I was able to do. And when I went into the bet, I said, well, if it doesn't work out, I'll try something else.

Jonah Perlin [00:14:49]:

Yeah, I think so many of my students, they fear that whatever they pick next has to be the last thing they do. And it sounds like you didn't have that approach, and it allowed you to sort of take a few more risks along the way. Is that accurate?

Phil Weiser [00:15:03]:

100% accurate. I would tell all of your students, and I know this message goes against a lot of people's mindset you've already won. What's your worst case scenario? What's the worst job you could end up with? That's your plan Z. Startup of you again, the book that I mentioned before. All right, you've got your plan Z. You've already won. You're free. Try something. Take a risk. The best moves that people have made. I forgot what. I read an article, talked about someone, but a friend of mine, Stan Dodge, he went to then I think it was called Echoscar. It's now called dish. It's a satellite TV company and said, I'll work for whatever you'll pay me. I want to work here. He became general counsel of that company. He's now general counsel at DraftKings. It started with him taking a risk, asking for what he wanted. Just like I reached out to Joel Klein. I was turning down more money, betting on experience and then the law professor job. I thought, all right, I've got this technology law and this antitrust law in my pocket. I thought before that, I might go work in A-U-S. Attorney's office and build my trial skills. But I was like, I could still do that. People need to, as lawyers, be more open minded, I believe, be more take risks. Contrary to popular belief, there's not only one path.

Jonah Perlin [00:16:18]:

What were some of your favorite parts about being in academia and some of the parts that you found more challenging?

Phil Weiser [00:16:25]:

I love my students from the very beginning. That was a powerful and inspiring element that will continue to be meaningful. The mentor role that I had been on the receiving end in college, in law school, as a law clerk, I was now in a position to help others, and that was by far and away the most meaningful. I was able to marry that with founding a center on law, technology, entrepreneurship. The silicon flatiron center. And the way I married it was the center was built up with student help. And we founded a journal, and we had conferences, and students were integral in all of that. And one of the consequences was we ended up having a lot of color law students go to work on technology policy issues in Washington, DC. And that was deeply meaningful to see many students'careers be facilitated through silicon flat irons. The second I'd say most meaningful is the space and the rigor to think through ideas in a rigorous way, work out legal problems, and then connect that to actual policymaking over the arc of the network neutrality discussions. Silicon flatirons in general, and my scholarship in particular were central to that discourse. And I believe in ideas elevating discourse. I was able to work on spectrum policy as well and have some of those ideas end up getting implemented in the Obama administration, including when I was able to serve. The challenges are getting used to writing in different forms, and I, over my career, have been able to work on them at different times. So you start out as a law student writing a legal brief, and I wrote a couple of articles in law school that helped me get my position at Colorado Law. So I was working on that more sustained writing, and I did some appellate work as a law professor, both consulting, but also on the pro bono side as well. Then you have to also be able to work on short policy memos, policy briefs, op eds, and I do believe law professors who are able to develop the skills across that spectrum are better for it. The in depth rigor of a Larvae article is an important rigor. It is important to be able to say, I've read every single thing on this topic. I've thought about it, I've read the underlying sources in everything I've read, and here's my view and here's how I defend it. That's a luxury to have when you're in government and policymaking, you don't have that luxury. But knowing what that luxury looks like can make you better as a policymaker.

Jonah Perlin [00:19:17]:

What was it like to serve as dean? Was that the closest thing to politics you could find in academia?

Phil Weiser [00:19:23]:

It's more political. Henry Kissinger has this great quote, the politics of academia are so vicious because the stakes are so small. The reality is, I've been basically in this political journey for four years. I announced as a candidate in May of 2017, so we're coming up on four years. The politics that I endured as dean were absolutely more challenging than the politics in the subsequent four years. Wow.

Jonah Perlin [00:19:52]:

Well, you finally had that stable job. I guess you had come off being dean, and maybe you wanted to return to Washington in a different sort of historical scenario, but then you decided to jump into politics. So I know you talked a little bit about the conversation with your wife, but was there any can you just walk me through a little bit? What the thought process of I'm going to stop being behind the scenes and I'm going to sort of become the candidate?

Phil Weiser [00:20:18]:

That was a challenge. Ed Prolmutter, who's a cu law grad, a now good friend congressman, said to me, phil, this is going to be hard for you because you're going to have to talk about yourself as dean. I talked about the law school. I talked about our students. That was easy. Talking about myself, telling my story, that was going to be a challenge. Also, I have to be succinct back to that spectrum. In politics, what you are sharing with people is closer to a Tweet than a larvae article. And so that's a different form that I needed to work on. And then I had to ask myself, could I be true to myself and be my best authentic self and act with integrity and be a viable political candidate. Someone said to me early on who had worked with the Obama administration, phil, I thought you either have to be a wonk or a hack. And I said, well, we'll see. This will be an experiment.

Jonah Perlin [00:21:18]:

And do you feel like your legal skills, whether those were built as a government lawyer, as a law clerk, or as a legal academic, helped at all in this process of the skills that you needed to be a political candidate?

Phil Weiser [00:21:33]:

I've got a few answers. My skills as a professor who cares about students actually probably matter the most when I would go to parts of our state in person. And I look forward to doing more of that as becomes safe to do. So I would take great care and real satisfaction in engaging with people. And people would ask me questions like, what can you do as Attorney General to help address the opioid epidemic? Or how are you going to improve our criminal justice system? Or how are you going to stand up for consumers? And I believe showing up, listening to people, and engaging in respectful dialogue is the essence of what our democracy requires. And being able to do that as a candidate, as an Attorney general, is deeply meaningful. That was more about my background in teaching, I would say, than legal skills, per se. Legal skills matters because I'm in this unique job that's a blend of being a lawyer, public servant, and an elected official. And you have to be able to do both, and you have to straddle the two. My standard refrain is to talk about the rule of law and what it means. And initially, my wife was very skeptical and uncomfortable that I would keep using that phrase. Over the last years, it's been used more, it's been explained more, and I'm committed to the concept, which means we live in a society that's premised on the rule of law. The rules are applied equally and fairly to everybody. If you look at countries around the world where that's not the case, your spectrum license gets snatched because the cousin of the prime minister wants it. That's a violation of the rule of law. You can't just do that. But unfortunately, around the world, there are many countries that don't have the rule of law. And what I would say to people is, it's not impossible that we could lose the rule of law. We could lose this foundation of our democratic republic. And nothing that I do as Attorney General is more important than honoring and supporting the rule of law. And that was a way in which I tried to build off of my legal commitments and make them part of my public persona, if you will.

Jonah Perlin [00:23:40]:

And I think most people know what an Attorney General does at a very high level. Chief law enforcement officer of a state is sometimes how it's described. But can you tell me a little bit more about what it actually looks like to be an Attorney General of the State of Colorado.

Phil Weiser [00:23:56]:

I put this into three separate categories. First is I am the chief law enforcement officer, chief legal policymaker for the state, which means there are a range of decisions that I can oversee that drive our office's priorities. How do we protect consumers? What cases do we choose to bring? How do we put ourselves in the best position to win those cases? How do we defend our democracy? What decisions do we make about cases that, in our case, go from standing up against voter intimidation all the way to a US. Supreme Court case involving faithless lectures? How do we improve our criminal justice system, which includes both our criminal justice prosecution resources? It includes policy issues like how do we address reforming, improving the bail system, including how we engage in our community to improve a reentry system that doesn't work the way it should. So I have to make a series of decisions. I have to prioritize what we're going to do, what we're not going to do, and that's a demanding job. The second demanding job is, as Attorney General, I serve the people of Colorado, so it's not like I can or should make those decisions abstractly. And this is, to me, a very satisfying part of the job. I am representing people, so it's important to me to show up all across our state to understand the people I'm serving, whether it's the opioid epidemic, whether it's protecting consumers, whether it's our criminal justice system, whether it's our democracy. It's not about me. It's about the people of Colorado. And so I take that element of this job very seriously. The third and final part is actually the hardest. I'm the leader of an office of 500 people, which means the culture of the office, how we do our work, that all is on me. Every single workplace has a culture, and the leadership team either is cultivating that culture, for example, a more inclusive environment, or they're not thinking about it, and probably the organization is worse for that.

Jonah Perlin [00:25:56]:

Are there specific things that you have done since you've been the leader of that office to steal the kind of culture that you think is either the most effective or most important?

Phil Weiser [00:26:05]:

There are a few. I mentioned diversity, equity, and inclusion. So we set up a Diversity, Equity, inclusion, and impact team and appointed the first ever Deputy Attorney General for diversity equity inclusion. The problem in our profession on diversity equity inclusion is something that should paint us all, whether it's a lack of lawyers who are people of color, a lack of women in leadership positions, including private sector partners, major firms, we have to be doing better. And as a public law office who represents the people, I feel that commitment even more profoundly. Second, I very much want our office to be one that is. Characterized by people being empowered. And that means we have a system that we've introduced. We call it Gold Star. We give everyone a chance to develop their own goals of how they improve. And the frame is meant to be supervisors helping to empower and support people's growth, as opposed to just having end of year check ins where you get graded. And it's like, Why do you tell me about this in April if you're concerned about it then? And then third, how do we build a culture in a public sector environment that's more innovative, where we're willing to take risks? Kind of like talked about with my career, but just with how we manage our work in ways that is smart and that can lead to better outcomes. Often people will ask, how did we do this before? And that's a traditional risk averse, lawyer way to ask a question. I'd rather we ask the question, what's the best possible way we can do this? And what are tools that we might find a better solution with?

Jonah Perlin [00:27:35]:

One of the questions, which I think goes to your second point that you gave of what you do every day is this idea of how to represent and work for people who didn't vote for you, who maybe have strongly supported the person who you were running against. And also people who are just skeptical that maybe you're just another lawyer who wants to be a politician. How do you think about that, about sort of working with and on behalf of groups that may not be in your natural support wheelhouse?

Phil Weiser [00:28:03]:

I gave a speech to Ricardo Barr at the end of the last year on our website about empathy and how that is my goal for the year, to lead with empathy, not with judgment. In a related piece, Adam Grant in New York Times had a piece about how to talk to others who disagree with you. I relish those conversations, and what I try to lead with is questions. I, for example, went to Fremont County, a conservative part of our state, for a town hall. Not long after, I was pushing an extreme Risk Protection Order law, a red flag law that would remove firearms from people who were significant risk to themselves or to others. And in that forum, someone came to me and said, I'm the chair of the local Republican Party, and we're calling on you to resign. And I said, Well, I was hoping to earn your endorsement, but I'll keep working at it. Maybe next time. And then we had a really respectful dialogue about how they viewed this policy as having consequences that were not what I wanted or intended, which helped me think about how we have to implement this in a way that would avoid those consequences. The people who disagree with me are the ones I may be able to learn the most from, and so I view that as a special opportunity. I've talked a bit about the relationship between Justice Scalia and Justice Ginsburg. That relationship was grounded in respect, in listening, and an effort to learn and improve what you're doing through that dialogue. And so I view that as a critical part of my job. And what I would hope is that people believe I care about them. I care about everybody in Colorado, every county, that I respect them, that I want to learn from them, and then they have to decide if they want to vote for me or not. That's up to them.

Jonah Perlin [00:29:48]:

And I guess relatedly I mean, you assumed office, right, in November 2018. Feels like it's been a lifetime since November 2018. I mean, we've had the COVID pandemic, two impeachments, a long overdue national reckoning with race and civil rights in our country, an election, an insurrection. How do you sort of deal with your day to day job, but also try to make progress in a moment where progress feels really hard?

Phil Weiser [00:30:13]:

I try to play the long game. And so whether it's on issues around our democracy, around racial justice, around how we improve our criminal justice system, I see where we want to try to go and ask how we try to get there. None of these issues I'd add the climate crisis to this as well none of these issues are going to get solved immediately. So it's really about keeping your eyes on the prize, recognizing what sorts of initiatives you want to drive towards to achieve real progress. And I believe that government can and needs to play a role in leading our society in important areas. And so I try to articulate what that vision looks like, see the areas of opportunity, and continue driving them forward.

Jonah Perlin [00:31:02]:

You recently had a Supreme Court argument, which not every Attorney general gets the opportunity to do, and I believe it was your first Supreme Court argument, and it was remote. Can you talk a little bit about the experience of having your first Supreme Court argument, having it in a conference room in Colorado, what that was like and some of the maybe things you liked about it or some surprises?

Phil Weiser [00:31:24]:

It was a mixed blessing. I never envisioned arguing remotely because when I was at the Supreme Court as a law clerk, there was no such thing. And like many law clerks, you think about arguing before your former court, your former judge or justice. I had argued before Judge David E. Bell on the 10th Circuit in an interesting and challenging case, and that worked out the way I had hoped it had. I got the chance to argue for Justice Ginsburg in the last case she ever heard. When I finished my rebuttal, that was the end of the term. And then, as we all know, she did make it to another term. The case is a fascinating issue. Lawrence Lessig, a law professor friend of mine, was on the other side. Larry's argument was that every single elector had a constitutional right to choose who to vote for for President. And an effort by a state, in my case Colorado, to restrict elector discretion to the person who won the popular vote of that state was unconstitutional. That was Larry's argument. My argument was to protect democracy, we need to restrict Electors so that they vote for the will of the people of that state and avoid the threat of corruption or extortion the bad things that could happen if Electors were free agents. We thankfully got this case decided before the presidential election season. This was something that strategically, we tried to work hard so the Court would decide it in the term last year and not in the midst of an election. And given what happened this election season, the fact that we took this case to the Court and we won, it was one less important thing to worry about. I was encouraged by people on my team, by others, to argue this myself. It played to my background. I obviously didn't envision it being during a pandemic. What was good about that was, like you said, I was in a familiar space, almost in the ether, and it did allow a certain calm that might not have been the case if I was arguing before the Justices. The other thing that was different was the format had to change as well. The Justices went one by one. So famously, people talked about justice Clarence Thomas asked a lot of questions that otherwise he hadn't been asking in the different format. In my argument, he asked my opponent a question that was perfectly positioned from my argument. He said, under your theory, could an elector vote for Frodo Baggins for President? And that was a great question, I thought, and a point I actually returned to in my rebuttal. So I enjoyed the experience. It was everything I had hoped it would be. The Justices, as everyone I think who follows this knows, are incredibly well prepared. I did something like nine mood courts to prepare myself. A number of my friends helped me. It was a special experience, even though it was unique during this pandemic.

Jonah Perlin [00:34:11]:

Yeah, I was just going to ask you about your preparation. Can you talk a little bit about what it's like to prep for your first Supreme Court argument and in a format that there aren't a lot of experts on?

Phil Weiser [00:34:22]:

The preparation that I did for the Supreme Court argument is like the preparation I did when I wrote a larvae article. So I mentioned I read every case that we cited and I looked at what cases they cited. I looked at what legal scholarship was out there on this topic, which was not a lot, by the way. This whole idea of faith selectors is a topic that hadn't ever been addressed by the Supreme Court before and made this an interesting case. So you had all these adjacent principles and part of what people may or may not fully appreciate about Supreme Court arguments is the Court is thinking not just about the case before it, but about the subsequent cases. And so I ended up in my most challenging colloquies with Justices Gorsuch and Kagan discussing principles around the Presidential Qualification clause and whether states could and would be found, let's say, in the wrong for adding qualifications to the presidency. The closest to that was a case involving setting of term limits by Arkansas in the 1990s, and that dealt with the Congressional qualifications clause. So that, again, not the issue in front of us, but it was an issue the Court was thinking about and worried about in a subsequent case. So that's a demanding assignment. I was able to make the time to do that all, and it was a special experience.

Jonah Perlin [00:35:42]:

Yeah, when you say that, sort of I think students are so used to hearing cases, sort of moot court type cases where the law is well established and it's a fight over whether the facts apply. And your case is prototypical example of the case, where it's just a fight over what the law is right. Everyone can agree to the facts, the query is purely a legal one. And it sounds like that takes a slightly different preparation model.

Phil Weiser [00:36:05]:

It did, and I will say one of those MOOC courts was the Georgetown famed Moocour. And the members who prepped me lived up to their billing, including being able to be hostile questioners that made the actual questioning I had not as challenging.

Jonah Perlin [00:36:23]:

I know you're a big baseball fan and it's a lot easier to swing with the weighted bat right before you step. Georgetown definitely was there to provide the weighted bat. There's actually been a little disagreement, maybe disagreement is too strong on Twitter recently of discussing what the best kind of Moot Court panel looks like. If you're going to set up a Moot Court panel, what qualities are you looking for?

Phil Weiser [00:36:48]:

Well, what's great is having a range of them. So the Georgetown moot court was the weighted back. That's a good analogy. I did one with friends at Stanford who were the subject matter experts, and that was helpful because they asked me certain types of questions in election law that I wasn't ordinarily as focused on, and it helped generate an answer that I was able to then I think, pretty much use in my actual argument. The question was, what if a legislature decided to take back the picking of electors after the voters had voted? And this, of course, is a topic that people feared this past fall could happen. There was some talk about that and the answer ended up being there's a line of cases that are the right to vote cases, gray versus Sanders is one of them where after people vote on something, you can't then change their ability to vote because you're undermining their franchise. And that was the principle I was able to invoke on that issue, and that came from a subject matter. I think repetition in general is important. So just having smart, engaged people who've done the work matters. Obviously the way to bat Georgetown was viable and the expertise of Stanford is viable, but mostly we're just looking for people who could give me repetitions. And I think it's fair to say I probably got better in each one. The other thing that I did that was very useful to me, a non lawyer who knows you on a personal level, sitting in a moot court can be useful because part of what I think I had done at one point was I was a little less conversational. And this was somebody's worked with me for a long time said, Phil, you didn't come across as yourself as much. You're a little more tightened up. You might think about that, and that was great feedback too.

Jonah Perlin [00:38:29]:

What are some of your goals as long as you can be an elected official and try to make change on the statewide level? What are some of the things that you haven't been able to do yet that are on your wish list?

Phil Weiser [00:38:40]:

Things that are still works in progress. I've mentioned a few of them, but I'll go into a little more depth. The opioid epidemic has devastated parts of our state, communities, lives, families, and we are involved in litigation and settlement discussions with a number of companies who've contributed to this crisis. Getting those funds in an effective way to communities to move the needle on treatment and recovery and education prevention is a top goal of mine that we are now working hard on. Secondly, how do we improve our criminal justice system? Obviously not putting opioid addicts into jail and prison, instead getting the treatment would be an important step. But there are a range of other steps we're working on, including how do we address what's often called the school to prison pipeline, where young people, instead of getting mental health or other support, end up getting shuttled into the criminal justice system. Similarly, on a reentry side, when people leave prison in Colorado, about half of them end up back in prison within three years. I view that as a real failing of public safety. Those are additional crimes that are being committed as well as on a human level for giving people opportunity. There's a number of issues around how we improve our criminal justice system that are on my wish list. Finally, I'm involved in some important consumer protection and antitrust cases, notably against Google and Facebook, involving competition in our technology sector. Those cases are not going to get resolved immediately. These take a while. I really want to see them through. I believe it's important to promote and restore competition in these critical sectors, and.

Jonah Perlin [00:40:07]:

I assume your sort of long background in those areas probably. It certainly doesn't hurt, right?

Phil Weiser [00:40:14]:

It's been interesting some of the areas I've worked on constitutional law, faithless, electors, democracy, antitrust technology. I'm leveraging my background. Other areas the opioid epidemic, protecting Colorado water. I'm learning, and that's one of the great parts of the job, is it's a blend of relying on expertise and skills I've built up as well as learning.

Jonah Perlin [00:40:34]:

I always like to end these by asking if there's one piece of advice you would give to law students or people just entering our profession.

Phil Weiser [00:40:41]:

I'd offer two points. The first one is something I've hit on in this discussion, which is be open, be opportunistic, look for interesting opportunities, and don't cabin yourself into thinking you have to do one specific thing. You never know where these risks are going to take you, so try to open your mind to them. The second point that I learned from Judgy Bell that he told us when we started clerking, is be enthusiastic. Whatever you're doing, be enthusiastic about it. People will pick up on that excitement. It will make you more fun to work with. It'll make you enjoy the work. And if you're doing something and you can't be enthusiastic about it, you're probably doing the wrong thing.

Jonah Perlin [00:41:24]:

Again. That was Colorado Attorney General Phil Weiser. As he explained so eloquently, being a lawyer opens a lot of potential doors, but also requires one to actually walk through them and take risks and try new things in order to find success in the profession. And more than that, Attorney General Weiser's career shows that a commitment to both excellence and empathy along the way are equally important in finding success and making the world a better place. If you enjoyed this interview, please subscribe at howilawyer.com or wherever you get your podcasts. That way, you can be the first to know when new interviews are published. Thanks again to Attorney General Weiser. Thanks for listening, and have a great week.