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Judges Speak Out About Threat to Constitution · Bloomberg Law

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  Speaker 1: You're listening to Bloomberg Law with June Grosseo from Bloomberg Radio.
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  Speaker 2: Rhetoric against federal judges has reached unprecedented levels, with President
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  Speaker 2: Trump calling judges incompetent, crooked, USA, hating and monsters. US
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  Speaker 2: Attorney General Pam Bondi calling out individual judges who rule
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  Speaker 2: against the administration by name, and the administration filing an
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  Speaker 2: extraordinary lawsuit against all the federal district court judges in
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  Speaker 2: the state of Maryland. Along with the rhetoric, threats against
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  Speaker 2: judges are surging. The US Marshall Service has investigated close
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  Speaker 2: to four hundred threats against federal judges in the first
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  Speaker 2: five months of this year alone. A group of more
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  Speaker 2: than forty retired federal judges appointed by both Republican and
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  Speaker 2: Democratic presidents see this landscape as attempts to intimidate and
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  Speaker 2: pressure judge just sway their opinions and shake the public's
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  Speaker 2: trust in the courts. So on Constitution Day they released
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  Speaker 2: an open letter warning that the Constitution and the judiciary
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  Speaker 2: is under attack. My guests are two of those judges
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  Speaker 2: from the Keep our Republic's Article three coalition. Judge Andre Davis,
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  Speaker 2: formerly of the US Court of Appeals for the Fourth
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  Speaker 2: Circuit and the District of Maryland, and Judge Paul Michelle,
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  Speaker 2: formerly of the US Court of Appeals for the Federal Circuit,
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  Speaker 2: thanks so much for joining me. Judge Davis, I'll start
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  Speaker 2: with a question to you. Tell us why you and
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  Speaker 2: the other retired judges decided to write this letter.
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  Speaker 3: Sitting judges, as you know, are bound by the Coote
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  Speaker 3: of Judicial Ethics, can speak only through their written opinions
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  Speaker 3: and from oral opinions from the bench, and so they
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  Speaker 3: are greatly limited, in fact prohibited really from responding to
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  Speaker 3: some of the more outrageous and extreme attack on the judiciary,
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  Speaker 3: on individual judges. And so what my friend Judge Michelle
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  Speaker 3: and his colleague Bob Sindrich decided was that this election
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  Speaker 3: or community if you will, of retired federal judges, at
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  Speaker 3: this moment in our history, we're seeing the same thing, namely,
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  Speaker 3: an unprecedented and very dangerous attack on the judiciary, on
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  Speaker 3: the third branch of government in the United States, and
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  Speaker 3: putting at risk not just the rule of law and
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  Speaker 3: our democracy as we know it, but the actual lives
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  Speaker 3: of judges and their family members. And so that's what
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  Speaker 3: prompted us to take what I think is an unprecedented
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  Speaker 3: step ourselves by coming together as a group of retired
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  Speaker 3: judges appointed by presidents from both parties to speak with
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  Speaker 3: one voice and call attention to the danger that is
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  Speaker 3: not just implicit but unavoidable in the times of rhetoric
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  Speaker 3: that are being used and the direct attacks on the
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  Speaker 3: judiciary and the rule of law. And so we're speaking
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  Speaker 3: with one voice to one educate the public and to
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  Speaker 3: speak out in support of our colleagues who work day
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  Speaker 3: in and day out to do the people's work in
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  Speaker 3: dispensing justice.
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  Speaker 2: Judge Michelle So. President Trump has verbally attacked judges who
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  Speaker 2: ruled against him. He's call them radical left lunatics, crooked.
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  Speaker 2: The US Attorney General Pam Bondi has called out judges
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  Speaker 2: by name who ruled against Trump's policies, also calling them
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  Speaker 2: similar names. What can you, as retired judges do to
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  Speaker 2: stop this criticism and this attack that's coming from the
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  Speaker 2: top of the executive branch.
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  Speaker 1: Well, my hope is that if the the citizenry can
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  Speaker 1: be better educated about the proper function and duties of judges,
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  Speaker 1: they will see that the threat to judges is really
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  Speaker 1: a threat against their own rights being protected by courts.
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  Speaker 1: Courts have to be independent of political pressures, whether from
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  Speaker 1: the White House or the Justice Department or elsewhere, and
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  Speaker 1: that is what's under attack now. And we think that
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  Speaker 1: we have unusual credibility because we're so nonpartisan, non political,
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  Speaker 1: or you could almost say bipartisan, because we have about
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  Speaker 1: half our judges appointed by Republican administrations and half by
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  Speaker 1: democratic administrations, and we're enormously diverse personally, but as Judge
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  Speaker 1: Davis rightly says, we're completely united and being horrified at
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  Speaker 1: the status quo, feeling like this is a moment of
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  Speaker 1: grave danger for our country, our democracy, and the rule
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  Speaker 1: of law. When write down to it, at the end
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  Speaker 1: of the day, either the written law is going to
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  Speaker 1: control or what the executive wants is going to control.
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  Speaker 1: Is it the rule of law or the rule of
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  Speaker 1: a king. That's what really is at stake here. And
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  Speaker 1: we think that the shrill attacks such as those who
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  Speaker 1: cite and quote can be discouraged by the media and
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  Speaker 1: the citizenry objecting loudly to that kind of language, whether
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  Speaker 1: it's from Congress persons calling for impeachment of a judge
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  Speaker 1: simply for doing his or her job and ruling on
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  Speaker 1: a case or coming from the White House or the
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  Speaker 1: Justice Department, and this is a moment of enormous danger
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  Speaker 1: for our country. One of the problems is the citizens
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  Speaker 1: have been very much misled. Too many of them are
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  Speaker 1: not well versed in understandings of basic constitutional government procedures
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  Speaker 1: and structures in our country. So, for example, the most
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  Speaker 1: important certain things citizens need to realize is the job
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  Speaker 1: of a judge is not to promote the agenda of
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  Speaker 1: any president or any political party or any other political leader.
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  Speaker 1: The job of the judge is strictly to apply the
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  Speaker 1: written law, the precedents, and the statutes to the case
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  Speaker 1: in front of him. And finally, I think the judiciary
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  Speaker 1: is that it's most valuable and most important when it
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  Speaker 1: serves as a check, just as the founder is expected
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  Speaker 1: checks and balances is the phrase we often use. So
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  Speaker 1: that if the executive does something that's unlawful, the judge
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  Speaker 1: puts a hal to it, and the courts say that
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  Speaker 1: can't continue, so they issue injunctions and the executive has
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  Speaker 1: to stop doing the illegal things, and of course they
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  Speaker 1: can continue with all the things that are lawful. So
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  Speaker 1: that's really the bottom line here.
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  Speaker 2: So the administration continually runs to the Supreme Court when
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  Speaker 2: lower courts hand in its agenda, and on more than
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  Speaker 2: a dozen occasions since the new administration came in, the
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  Speaker 2: Supreme Court has lifted an injunction issued by a trial
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  Speaker 2: judge who had said that the administration was at least
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  Speaker 2: probably acting illegally. And sometimes the court offers a few sentences,
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  Speaker 2: sometimes nothing. And I'm wondering if that gives the average
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  Speaker 2: person a distorative view of what the lower courts are
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  Speaker 2: doing in limiting the administration and what the Supreme Court
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  Speaker 2: is doing in allowing the administration to move forward.
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  Speaker 3: Well, you know, you've put your finger on something that's very,
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  Speaker 3: very frankly disheartening about the current legal landscape. The point
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  Speaker 3: is that every federal district judge, without exception, who has
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  Speaker 3: ruled against some policy of this administration, was acting in
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  Speaker 3: absolute good faith in his and her attempt to not
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  Speaker 3: just statutory law, not just constitutional law, but the Supreme
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  Speaker 3: Court's own precedents. That's what the federal district judges around
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  Speaker 3: the country have been doing for the last seven or
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  Speaker 3: eight months. And in those instances, many of them, I
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  Speaker 3: would even say most of those instances where the administration
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  Speaker 3: has appealed those adverse decisions by federal district judges. In
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  Speaker 3: most instances, the federal appellate courts, of which there are thirteen,
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  Speaker 3: the federal appellate courts have largely left in place the
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  Speaker 3: orders of the district judges. So what we see in
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  Speaker 3: the so called shadow docket, I'm sure most of your
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  Speaker 3: listeners are familiar with that term by now, is that
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  Speaker 3: the Supreme Court is reversing the decisions in large part
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  Speaker 3: without explaining how or why those decisions are being reversed.
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  Speaker 3: And so that leaves, you know, in the mind of
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  Speaker 3: many lay people this very distorted vi somehow that the
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  Speaker 3: lower federal courts, the district judges, who hear from the parties,
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  Speaker 3: hear from the lawyers, consider the evidence, make a ruling
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  Speaker 3: which is then left in place by the intermediate appellate court,
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  Speaker 3: and the matter gets up to the Supreme Court, and
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  Speaker 3: the Supreme Court in one or two sentences, as you say,
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  Speaker 3: reverse that decision. Well, a lot of people you know,
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  Speaker 3: on the street, not versed in the law, somehow are
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  Speaker 3: persuaded that the lower court judges are somehow against the administration.
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  Speaker 3: And as Judge Michelle just very poignantly pointed out all
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  Speaker 3: the judges are doing is try their best to apply
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  Speaker 3: the law, and so it this serves justice in all
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  Speaker 3: honesty to leave in the minds of people that somehow
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  Speaker 3: the Supreme Court is protecting this administration from lower court judges,
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  Speaker 3: and that just feeds into this misinformation, this distorted view
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  Speaker 3: that so many in high office continue to create, that
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  Speaker 3: the judiciary is full of lunatics and activists, and nothing
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  Speaker 3: could be further from the truth. So hopefully, in the
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  Speaker 3: fullness of time, hopefully not too far in the future,
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  Speaker 3: this landscape that's been created through the procedural and processes
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  Speaker 3: that have been employed will see the light of day.
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  Speaker 3: And one of the things that the Article three Coalition
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  Speaker 3: is trying so desperately to do to continue to educate
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  Speaker 3: people about the role of judges, the role of the judiciary,
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  Speaker 3: how the judiciary works, the right to an appeal, and
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  Speaker 3: how reason judgment is the coin of the realm when
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  Speaker 3: it comes to j judiciary.
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  Speaker 2: And Judge Michelle Justice Neil Gorsitz recently admonished lower court
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  Speaker 2: judges not to so called defy the Supreme Court, and
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  Speaker 2: Boston Federal Judge Allison Burroughs said that it was unhelpful
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  Speaker 2: and unnecessary to criticize district courts that are working to
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  Speaker 2: make sense of Supreme Court orders that are not models
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  Speaker 2: of clarity and have left many issues unresolved. And another
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  Speaker 2: judge said, I didn't understand that the orders on the
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  Speaker 2: emergency docket were precedent. I mean, what about a Supreme
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  Speaker 2: Court justice calling out district court judges.
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  Speaker 1: Well. One complexity that the public doesn't understand, but it's
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  Speaker 1: rather important, is that nearly all of the injunctions that
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  Speaker 1: have been issued by the district judges around the country,
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  Speaker 1: and these hundreds of suits challenging Trump administration actions, are
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  Speaker 1: very preliminary. They're actually called preliminary injunctions, and that's because
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  Speaker 1: there hasn't yet been a trial, there hasn't yet been
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  Speaker 1: a final resolution of disputed facts. So these are truly
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  Speaker 1: preliminary in the sense that the district judge is making
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  Speaker 1: a prediction, a judgment that likely the challenger will win
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  Speaker 1: over the administration's defense. But it's a speculative judgment. I'm
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  Speaker 1: not defensive of the Supreme Court and the extent to
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  Speaker 1: which they've intervened, but it is important to recognize that
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  Speaker 1: they aren't saying the administration was right and the district
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  Speaker 1: judge was wrong. What they're really saying is, we don't
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  Speaker 1: know for sure yet, so we're going to delay a
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  Speaker 1: remedy until there's been actual fact findings and what lawyers
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  Speaker 1: call a final judgment. But beyond that, it is it's
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  Speaker 1: certainly true that some of these orders have no reasoning
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  Speaker 1: coming down from the Supreme Court. Others are very terse
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  Speaker 1: and sometimes unclear. I don't think it's helpful for Judge
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  Speaker 1: Burrows and the Supreme Court justices to get in a
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  Speaker 1: public shouting match in effect, although they of course he
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  Speaker 1: did it in writing. But she has a point. The
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  Speaker 1: district judges are striving to apply the law faithfully and impartially,
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  Speaker 1: and I think usually they get it right, and particularly
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  Speaker 1: where they're upheld as has been true in a number
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  Speaker 1: of these cases by the Court of Appeals above them,
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  Speaker 1: the Supreme Court ought to be very hesitant to jump
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  Speaker 1: in and overrule both of the so called lower courts,
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  Speaker 1: as the constitution that calls them the inferior courts, which
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  Speaker 1: are very unfortunate phrase because they're not inferior. But in
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  Speaker 1: terms of the admonition from judge courts, I don't know
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  Speaker 1: what he's talking about. I don't see any judge, including
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  Speaker 1: Judge William Young in Boston, has been defiant as refusing
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  Speaker 1: to follow some clear direction from the Supreme Court, So
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  Speaker 1: I'm not quite sure what he's referring to. But it's
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  Speaker 1: not very helpful, and it's a further demoralization of the
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  Speaker 1: district judges, who do ninety percent of the work in
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  Speaker 1: the judicial system, and who should be respected and supported
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  Speaker 1: by the public and by the rest of the judicial
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  Speaker 1: establishment and not pilloried as if they're rebellious children or
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  Speaker 1: something because they're not.
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  Speaker 2: Coming up next. The effect of all those six to
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  Speaker 2: three Supreme Court decisions on the emergency docket you're listening to, Bloomberg,
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  Speaker 2: I've been talking to retired federal judges Andre Davis and
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  Speaker 2: Paul Michelle about an unprecedented bipartisan statement from more than
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  Speaker 2: forty retired federal judges appointed by six different presidents across
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  Speaker 2: both parties, speaking out about how the constitution and the
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  Speaker 2: judiciary is under attack. Judge Davis, I'm wondering about the
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  Speaker 2: effect of so many, perhaps most, of these Supreme Court
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  Speaker 2: emergency decisions coming down six to three down partisan lines,
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  Speaker 2: especially in this environment where judges are more and more
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  Speaker 2: being identified by the party of the president who appointed them,
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  Speaker 2: even at the district court level. So you'll hear well
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  Speaker 2: that judge is a Trump appointee, that judge is a
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  Speaker 2: Biden appointee. It seems like people are talking about a
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  Speaker 2: judge's political affiliations more than ever before.
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  Speaker 3: I think that's a very regrettable development in our legal
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  Speaker 3: ecosystem and in the media. The people apparently want to
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  Speaker 3: know that information, and of course that information is available,
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  Speaker 3: one hopes, and frankly, I believe as a judge appointed
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  Speaker 3: by two Democratic presidents, that is, presidents from the Democratic Party,
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  Speaker 3: one would like to think that no one would ever imagine,
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  Speaker 3: when I was an active judge that I made a
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  Speaker 3: ruling on the basis of the party identification of the
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  Speaker 3: president who appointed me. And frankly, it borders on offensive
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  Speaker 3: to individual judges. I can share a very quick anecdote
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  Speaker 3: when I was on the district court early in my tenure,
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  Speaker 3: after having been appointed by President Clinton to the Federal
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  Speaker 3: District Court in Baltimore, I struck down the city's affirmative
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  Speaker 3: action plan as unconstitutional, and of course, while it was
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  Speaker 3: still much rare, than now. I think the lead in
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  Speaker 3: the newspaper was Clinton appointed judge strikes down an affirmative
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  Speaker 3: action plan, and I think it might have said a
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  Speaker 3: black Clinton appointed judge. Well, I was following the law,
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  Speaker 3: and that's what judges do. No judge calls the president
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  Speaker 3: who appointed him or her to check in on how
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  Speaker 3: the case should come out. It's absurd, it's offensive, but
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  Speaker 3: again you raise a good point. This is the system
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  Speaker 3: we seem to be swimming in these days, and I
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  Speaker 3: hope that one day soon that will fall out of favor.
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  Speaker 2: Judge Michelle, So what can you do as retired judges?
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  Speaker 2: What do you plan to do?
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  Speaker 3: Well?
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  Speaker 1: We can explain so that the public and the media
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  Speaker 1: and community leaders, including the business community and other sectors
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  Speaker 1: of our society, have a better understanding and are in
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  Speaker 1: a position to fairly evaluate whether the complaints being made
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  Speaker 1: by high officials in the White House are accurate or not,
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  Speaker 1: and then to call out bad conduct by people who
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  Speaker 1: are attacking judge just for doing your job. I couldn't
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  Speaker 1: agree more with Judge Davis about how hard every one
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  Speaker 1: of us tries the minute we take the oath to
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  Speaker 1: put behind us our personal opinions, our prior political affiliations,
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  Speaker 1: our party registration, our friendships, everything. Becoming a federal judge,
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  Speaker 1: it's almost a little bit like becoming a minister or
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  Speaker 1: a priest or a rabbi. You're a part of a
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  Speaker 1: discipline based on written text, and you swear allegiance to
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  Speaker 1: that text, and you have to discipline yourself to not
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  Speaker 1: let other considerations enter into your decision making. And my impression,
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  Speaker 1: and I've sat with five different circuit courts, is that
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  Speaker 1: the judges do that very faithfully. I'd say ninety nine
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  Speaker 1: percent of the time or more. The judges I sat
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  Speaker 1: with were not acting at all from a political standpoint,
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  Speaker 1: And I often couldn't even remember which party they were
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  Speaker 1: appointed under because it just didn't show up in anything
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  Speaker 1: that they said or wrote or how they voted. So
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  Speaker 1: we've got a real problem in this country if the
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  Speaker 1: public continues to have the view that Judge Davis is
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  Speaker 1: a Democratic judge and Judge Michelle is a Republican judge,
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  Speaker 1: because it's totally false, where judges of the law, not
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  Speaker 1: of our political background, and people need to understand that.
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  Speaker 1: And really it's the great strength in the system. It
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  Speaker 1: means that every citizen can depend on his or her
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  Speaker 1: rights being defended in court by impartial judges because they
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  Speaker 1: can't be pressured by politicians to rule a certain way.
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  Speaker 1: They're going to rule based on the settled law, the precedents,
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  Speaker 1: as lawyers call them. And that's a great comfort not
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  Speaker 1: only to every citizen in individual rights cases, but also
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  Speaker 1: to every corporation. If the corporations can't depend on judges
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  Speaker 1: to treat them under the law fairly, they're going to
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  Speaker 1: stop taking risks, stop making investments, stop building factories if
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  Speaker 1: they can't count on getting a fair shake from the
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  Speaker 1: federal judges, if IRS comes after them, or the Securities
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  Speaker 1: Exchange Commission or any other arm of the government. They
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  Speaker 1: have to be confident that they're not on an enemy's
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  Speaker 1: list in the White House, that they're going to be
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  Speaker 1: treated like any other company or individual by our judges.
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  Speaker 1: And the judges do a very good job, in my
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  Speaker 1: opinion and from my experience, at being completely impartial, particularly
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  Speaker 1: at every level of the court system, except the Supreme Court,
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  Speaker 1: which does look more political to me than the other
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  Speaker 1: two levels of the court system.
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  Speaker 2: Judge Davis, just as Amy Coney Barrett, recently downplayed President
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  Speaker 2: Trump's criticism of federal judges, saying that US presidents have
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  Speaker 2: a long history of criticizing the judiciary. But we talked
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  Speaker 2: before about how this administration, even when so far to
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  Speaker 2: sue the entire federal bench, all the district court judges
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  Speaker 2: in Maryland, is this administration different in the way it
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  Speaker 2: treats federal judges, and you know, even the way it
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  Speaker 2: appoints federal judges more looking for more ideologues than for
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  Speaker 2: you know, the what used to be considering you know,
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  Speaker 2: the ABA approved judges.
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  Speaker 3: This administration, from top to bottom, absolutely treats the federal
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  Speaker 3: judiciary in ways that, frankfully, no administration before now has.
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  Speaker 1: Ever treated the federal judiciary.
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  Speaker 3: The appaminum attacks, the atuperative rhetoric, the name calling, the
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  Speaker 3: takeover of the Justice Department, which, for primary memorial, one
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  Speaker 3: of the pillars of our constitutional system, even though it's
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  Speaker 3: not written into the constitution. You know, there are a
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  Speaker 3: lot of norms that have come into play over these
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  Speaker 3: two hundred and fifty years that are very important, one
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  Speaker 3: of which is the independence not just of the judiciary,
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  Speaker 3: but the independence of the Department of Justice from the
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  Speaker 3: White House. These are structural strengths in our system and
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  Speaker 3: so yes. The attack by this administration on the judiciary
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  Speaker 3: as a whole, on individual judges, the name calling, the purposeful, wilful,
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  Speaker 3: intentional undermining of the rule of law itself is very dangerous,
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  Speaker 3: inimical to constitutional democracy, and I hope, I hope that
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  Speaker 3: with our voices as the Article three Coalition, with the
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  Speaker 3: voices of so many law firms and law organizations and
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  Speaker 3: other civic minded organizations, I hope this will stop and
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  Speaker 3: will return to a time when each branch of government
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  Speaker 3: showed the respect that was due it from all the others.
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  Speaker 1: To not just have one other thought. The vicious language
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  Speaker 1: that's been used against judges who've ruled in a way
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  Speaker 1: the administration doesn't like has to be understood as to
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  Speaker 1: its impact. It's not a question of the judge's feelings
• 23:19
  Speaker 1: are hurt. We don't care about feelings when we're judges.
• 23:22
  Speaker 1: We're not embarrassed to be criticized. We're criticized all the time.
• 23:26
  Speaker 1: It's part of the job. We know that, we understand that.
• 23:28
  Speaker 1: But the problem now is that when the president or
• 23:31
  Speaker 1: the Attorney General makes these vituperative attacks and social media
• 23:36
  Speaker 1: that thousands of deranged, fanatical, unstable individuals out there in
• 23:42
  Speaker 1: the blogosphere may take it into their mind that they
• 23:46
  Speaker 1: have to save the country by going to get rid
• 23:49
  Speaker 1: of Judge Michelle or Judge Davis because they've ruled in away.
• 23:52
  Speaker 1: The President says, it's terrible. So now the attacks on
• 23:56
  Speaker 1: judges are coming from from strangers. You can't even identify
• 24:01
  Speaker 1: who it might be. In the old days, it was
• 24:03
  Speaker 1: usually a losing litigant who was upset with the judge,
• 24:06
  Speaker 1: So the Martial Service could better protect us because they
• 24:09
  Speaker 1: could see who the source of the threat was coming from.
• 24:12
  Speaker 1: Now they have no way of knowing or predicting. It
• 24:14
  Speaker 1: makes it much harder for the very able Marshal Service
• 24:17
  Speaker 1: to effectively protect judges. So this is a grave threat
• 24:22
  Speaker 1: to the functioning of our democracy because if judges are terrified,
• 24:26
  Speaker 1: no matter how brave they are, there's a danger that
• 24:30
  Speaker 1: subconsciously it could influence their rulings and make them, so
• 24:34
  Speaker 1: to speak, pull punches for fear of being the target
• 24:39
  Speaker 1: of some deranged person who would try to kill them
• 24:42
  Speaker 1: or harass their family or whatever. So it's not a
• 24:47
  Speaker 1: question of hurt feelings from sharp criticism. It's a question
• 24:50
  Speaker 1: of actual incitement to violence.
• 24:53
  Speaker 2: And the Marshal Service is fielding more online threats to
• 24:58
  Speaker 2: judges than ever before. Four. Thank you both so much
• 25:01
  Speaker 2: for joining me today. That's Judge Paul Michelle, formerly of
• 25:05
  Speaker 2: the Federal Circuit Court of Appeals and Judge Andre Davis,
• 25:09
  Speaker 2: formerly of the Fourth Circuit Court of Appeals. They're both
• 25:13
  Speaker 2: part of the Keep Our Republic's Article three coalition.
• 25:17
  Speaker 1: State of Utah versus Tyler James Robinson. Could you state
• 25:21
  Speaker 1: your name?
• 25:23
  Speaker 4: Tyler James Robinson.
• 25:25
  Speaker 2: Twenty two year old Tyler Robinson appeared in court for
• 25:28
  Speaker 2: the first time on Tuesday, facing aggravated murder charges as
• 25:33
  Speaker 2: prosecutors seek the death penalty against him for the fatal
• 25:36
  Speaker 2: shooting of conservative activists Charlie Kirk. Utah County Attorney Jeff
• 25:41
  Speaker 2: Gray explained the aggravating factors in his decision to pursue
• 25:46
  Speaker 2: the death penalty.
• 25:47
  Speaker 4: The state is further alleging aggravating factors on counts one
• 25:52
  Speaker 4: and two because the defendant is believed to have targeted
• 25:56
  Speaker 4: Charlie Kirk based on Charlie Kirk's political expression and did
• 26:02
  Speaker 4: so knowing that children were present and would witness the homicide.
• 26:06
  Speaker 2: Robinson is charged with seven counts in all, joining me
• 26:10
  Speaker 2: is Bloomberg Legal reporter Madlen Mackelberg Madline tell us about
• 26:14
  Speaker 2: this first appearance by Robinson.
• 26:17
  Speaker 1: K Tyler.
• 26:18
  Speaker 5: Robinson came before a judge for the first time this week,
• 26:21
  Speaker 5: and it was a virtual appearance in a courtroom, which
• 26:24
  Speaker 5: is pretty standard apparently for criminal cases in Utah County
• 26:28
  Speaker 5: where he was charged. And he appeared via zoom from
• 26:32
  Speaker 5: the jail and the judge who will be presiding over
• 26:35
  Speaker 5: the criminal case moving forward, read the charges allowed to him,
• 26:40
  Speaker 5: informed him that there was a possible sentence of the
• 26:42
  Speaker 5: death penalty associated with those charges, and he asked him
• 26:46
  Speaker 5: if he had an attorney yet, and he does not
• 26:48
  Speaker 5: have a lawyer for him yet. The judge said, based
• 26:51
  Speaker 5: on his financial status, one will be appointed for him,
• 26:54
  Speaker 5: and that's something that we can expect to happen in
• 26:57
  Speaker 5: the next few weeks here.
• 26:58
  Speaker 2: And from what I understand, it has to be an
• 27:00
  Speaker 2: attorney that's rule a qualified, meaning an attorney who's qualified
• 27:05
  Speaker 2: to deal with capital cases, so that limits the attorneys available.
• 27:10
  Speaker 2: Did Robinson enter.
• 27:11
  Speaker 5: A plea, No, We're not going to see him enter
• 27:13
  Speaker 5: a plea for at least a few weeks, the way
• 27:16
  Speaker 5: that things work in Utah. The next hearing is also
• 27:20
  Speaker 5: going to be virtual, meaning that Robinson will be zooming
• 27:23
  Speaker 5: in from the courthouse and they'll be discussing whether or
• 27:27
  Speaker 5: not he wants to waive his right to a preliminary hearing.
• 27:31
  Speaker 5: This is a hearing where they would talk about whether
• 27:34
  Speaker 5: there's enough validity to the charges to move forward to
• 27:37
  Speaker 5: an arraignment, which would be yet another hearing where he
• 27:41
  Speaker 5: would actually enter a plea to the charges before him.
• 27:44
  Speaker 5: So we along road to go before we get there,
• 27:47
  Speaker 5: and from.
• 27:47
  Speaker 2: What authorities have said, he has not made a confession
• 27:51
  Speaker 2: and he's not talking to investigators.
• 27:55
  Speaker 5: So Utah County Attorney Jeff Gray has been the public
• 27:59
  Speaker 5: faith of the prosecution so far, and he's really declined
• 28:03
  Speaker 5: to weigh in on exactly how much Robinson may or
• 28:07
  Speaker 5: may not be cooperating with investigators. But we heard previously
• 28:11
  Speaker 5: from law enforcement authorities that he has not been cooperative
• 28:14
  Speaker 5: with them. There's no evidence so far that he's given
• 28:17
  Speaker 5: them any kind of confession or admitted to anything. Although
• 28:22
  Speaker 5: I'm sure you saw prosecutors released a ton of evidence
• 28:25
  Speaker 5: that they say they have against him, which include text
• 28:28
  Speaker 5: messages where he's talking about the shooting, but they decline
• 28:32
  Speaker 5: to say whether they can strue those as being a confession,
• 28:34
  Speaker 5: and at this point we have no reason to believe
• 28:36
  Speaker 5: that he's confessed to authorities or that he's even cooperating
• 28:40
  Speaker 5: with them.
• 28:41
  Speaker 2: Well, let's talk a little bit about those text messages
• 28:44
  Speaker 2: to his roommate and why prosecutors are highlighting them.
• 28:50
  Speaker 5: So, while he may not be cooperating with them, it's
• 28:52
  Speaker 5: very clear that his family and people close to him are,
• 28:56
  Speaker 5: or at least have been providing law enforcement with information
• 29:01
  Speaker 5: regarding their communications with him leading up to the shooting
• 29:05
  Speaker 5: and following the shooting. Now, prosecutors say that he was
• 29:09
  Speaker 5: in a romantic relationship with his roommate and that when
• 29:14
  Speaker 5: he was on campus allegedly committing this act, he sent
• 29:19
  Speaker 5: a message to his roommate telling them to look under
• 29:21
  Speaker 5: his keyboard on his computer, and when the roommate checked
• 29:24
  Speaker 5: under the keyboard, there was a note there that said, quote,
• 29:27
  Speaker 5: I had the opportunity to take out Charlie Kirk, and
• 29:30
  Speaker 5: I'm going to take it. And what followed is a
• 29:33
  Speaker 5: series of messages that are allegedly between the roommate and Robinson.
• 29:38
  Speaker 5: You know, the roommate is expressing confusion shock, saying you're
• 29:41
  Speaker 5: joking right, and Robinson apparently said to them, I'm not joking.
• 29:46
  Speaker 5: The roommate says, you weren't the one who did this, right,
• 29:49
  Speaker 5: Robinson says, I am, I'm sorry. They go back and
• 29:52
  Speaker 5: forth in this exchange, and Robinson apparently is talking about
• 29:55
  Speaker 5: how he attempted to hide his rifle, how police arrested
• 29:59
  Speaker 5: somebody at the shooting who was not him. I'm sure
• 30:02
  Speaker 5: you remember those hours afterwards when police kept saying they
• 30:06
  Speaker 5: had someone in custody, but they were not the suspect
• 30:09
  Speaker 5: in this case. So I think the messages are significant
• 30:11
  Speaker 5: because it clearly shows that Robinson was talking about doing
• 30:16
  Speaker 5: this and explaining some of his thought process behind it,
• 30:19
  Speaker 5: which is that he said, quote, I had enough of
• 30:22
  Speaker 5: his hatred talking about Kirk.
• 30:24
  Speaker 2: Prosecutors didn't out and out state a motive, did they.
• 30:28
  Speaker 2: I mean, I know that Gray had said Robinson was
• 30:31
  Speaker 2: becoming more pro gae and trans rights oriented, but did
• 30:37
  Speaker 2: they explicitly say here's the motive.
• 30:40
  Speaker 5: No, So they talked about the political elements of the
• 30:44
  Speaker 5: situation here, but they have said that they're not talking
• 30:47
  Speaker 5: about a motive at this point. They're only talking about
• 30:49
  Speaker 5: the evidence that they have, which seems to include statements
• 30:53
  Speaker 5: from Robinson's mother, who's the one who told investigators that
• 30:56
  Speaker 5: in recent years her son had become more politically engaged
• 31:00
  Speaker 5: with some of these left leaning causes and more pro
• 31:03
  Speaker 5: gae and trans writes focused. That's something that was in
• 31:07
  Speaker 5: the charging documents that came forward, and that seems to
• 31:10
  Speaker 5: be significant because his family said that they identify as
• 31:13
  Speaker 5: being more conservative voters.
• 31:16
  Speaker 2: His parents turned him in, right, So, when.
• 31:19
  Speaker 5: They discovered and identified in the images that law enforcement
• 31:22
  Speaker 5: released that the shooter resembled their son, apparently, they had
• 31:27
  Speaker 5: some phone call conversations with him, had him come back
• 31:30
  Speaker 5: to the house, and they spoke with a family friend
• 31:32
  Speaker 5: who is a retired law enforcement official, and together they
• 31:36
  Speaker 5: encouraged him to turn himself into local authorities where he's from,
• 31:40
  Speaker 5: which is about four hours away from where the university
• 31:43
  Speaker 5: is where Kirk was speaking when he was shot.
• 31:45
  Speaker 2: And prosecutors have some physical evidence DNA evidence.
• 31:50
  Speaker 5: Right, So, prosecutors say that they have DNA from the
• 31:53
  Speaker 5: trigger of the rifle that they believe was used in
• 31:56
  Speaker 5: the shooting and the towel that the rifle was found
• 32:00
  Speaker 5: wrapped in when they recovered it from the scene. They
• 32:03
  Speaker 5: say the DNA they collected their matches Robinson.
• 32:06
  Speaker 2: And what about his conversations on Discord. The FBI director
• 32:11
  Speaker 2: said that they're investigating the people who were involved in
• 32:15
  Speaker 2: those conversations.
• 32:17
  Speaker 5: Apparently Robinson was having conversations on Discord, which is a
• 32:21
  Speaker 5: popular chat application that's used for people who play in
• 32:26
  Speaker 5: stream video games. This is my understanding of it, but
• 32:29
  Speaker 5: apparently he was having a conversation with a group of
• 32:31
  Speaker 5: friends and making jokes about the shooting and connecting himself
• 32:36
  Speaker 5: to it without admitting anything. And those conversations have been
• 32:41
  Speaker 5: discussed by, as you say, the FBI director and some
• 32:44
  Speaker 5: officials publicly, but they're not actually mentioned in the charging
• 32:48
  Speaker 5: documents that we saw filed from prosecutors. So we have
• 32:52
  Speaker 5: to assume that'll be part of the evidence that they
• 32:54
  Speaker 5: present against him at some point, but it hasn't been
• 32:57
  Speaker 5: part of this initial charging.
• 33:00
  Speaker 2: Authorities consider him a sole actor here or are they
• 33:03
  Speaker 2: looking for accomplices.
• 33:06
  Speaker 5: So at this point, prosecutors and law enforcements say that
• 33:09
  Speaker 5: they are continuing investigating, they're leaving no stone unturned, but
• 33:13
  Speaker 5: they've declined to answer questions of whether they believe he
• 33:16
  Speaker 5: acted alone or this was a coordinated attempt. And so
• 33:19
  Speaker 5: at this point nobody else has been named as a suspect,
• 33:23
  Speaker 5: or even as somebody who has contributed to this in
• 33:26
  Speaker 5: a different way, and so the investigation continues. It's possible
• 33:32
  Speaker 5: that we see future charges against another individual, but at
• 33:35
  Speaker 5: this point there's no evidence to suggest that they have
• 33:38
  Speaker 5: somebody else in mind.
• 33:39
  Speaker 2: Before Robinson was even arrested, Utah's governor said they would
• 33:43
  Speaker 2: pursue the death penalty, but what did the prosecutors say?
• 33:47
  Speaker 2: He decided to seek the death penalty.
• 33:51
  Speaker 5: So there's been a lot of talk about this. The
• 33:53
  Speaker 5: Utah governor came out and said that he was planning
• 33:55
  Speaker 5: to pursue it. President Trump has said you need to
• 33:58
  Speaker 5: pursue the death penalty, and when we heard from the
• 34:01
  Speaker 5: county attorney this week, he said he made this decision
• 34:04
  Speaker 5: independent of any outside influence and that while he spoke
• 34:07
  Speaker 5: with both the governor and the president at least representatives
• 34:10
  Speaker 5: for their respective administrations, he said he didn't receive pressure
• 34:14
  Speaker 5: from them to make that decision and they didn't raise
• 34:16
  Speaker 5: it with him. So he's wanting to be clear that
• 34:18
  Speaker 5: this is something he's pursuing based on the evidence that
• 34:21
  Speaker 5: he has, and part of that is this idea that
• 34:25
  Speaker 5: when the shooting occurred, there were children present, and there
• 34:28
  Speaker 5: was also a risk of injury to other people that
• 34:31
  Speaker 5: were there. So it wasn't a straightforward murder situation where
• 34:36
  Speaker 5: it was just between two individuals. He was firing a
• 34:39
  Speaker 5: shot across a crowd of people and there was a
• 34:41
  Speaker 5: risk of injury to others who were there.
• 34:43
  Speaker 2: Did the prosecutors say where the political element of this
• 34:47
  Speaker 2: fits in? Is he considering that this shooting was politically motivated?
• 34:53
  Speaker 5: Prosecutors noted in the charging documents that Robinson intentionally selected
• 34:59
  Speaker 5: Kirk because of his perception regarding Kirk's political expression. So
• 35:04
  Speaker 5: that's the mention that we've seen from prosecutors in the
• 35:07
  Speaker 5: formal court documents that he was motivated by the political expression,
• 35:12
  Speaker 5: but they haven't declared that as the official motive, but
• 35:14
  Speaker 5: they've noted that that was part of why Robinson allegedly
• 35:18
  Speaker 5: decided to shoot Kirk.
• 35:20
  Speaker 2: About half the states have the death penalty on the books.
• 35:24
  Speaker 2: When was the last time Utah used it? So?
• 35:27
  Speaker 5: Utah is one of twenty three states in the US
• 35:30
  Speaker 5: that currently allows for the death penalty to be imposed
• 35:33
  Speaker 5: on an individual. Compared to other states, they have had
• 35:36
  Speaker 5: less executions. Typically, when you're talking about the modern era
• 35:41
  Speaker 5: of the death penalty, we look at executions since nineteen
• 35:45
  Speaker 5: seventy six, which was when the Supreme Court said that
• 35:48
  Speaker 5: it is legal as a form of sentencing, and so
• 35:52
  Speaker 5: since then, Utah has executed eight people.
• 35:55
  Speaker 2: And what's the method of execution in Utah?
• 35:59
  Speaker 5: So, Utah Ya Like most states, every state that allows
• 36:03
  Speaker 5: for the death penalty, their primary means of administering it
• 36:06
  Speaker 5: is through lethal injection. But Utah is unique in that
• 36:10
  Speaker 5: it's one of just five states that allows for a
• 36:14
  Speaker 5: firing squad to be used in execution. But that's only
• 36:17
  Speaker 5: in the situation where the state can't acquire the drugs
• 36:20
  Speaker 5: that are required for lethal injection.
• 36:22
  Speaker 2: The last time the firing squad was used was in
• 36:25
  Speaker 2: twenty ten, not so long ago. Are the Feds also
• 36:28
  Speaker 2: considering bringing charges against Robinson?
• 36:31
  Speaker 5: I think that's certainly a possibility. We've heard people in
• 36:34
  Speaker 5: the Trump administration say that that's something that they're looking at.
• 36:38
  Speaker 5: Prosecutors in Utah County declined to answer questions about that
• 36:41
  Speaker 5: as well. They said that's a decision that's totally up
• 36:44
  Speaker 5: to the federal government. If they have charges that they
• 36:47
  Speaker 5: want to pursue at a federal level. Nothing's been filed yet,
• 36:50
  Speaker 5: but you know that's always possible.
• 36:52
  Speaker 2: And Madeline, you recently went to the campus where the
• 36:56
  Speaker 2: shooting occurred. Tell us what it's like there now.
• 37:00
  Speaker 5: That's right. So campus has been closed since the shooting,
• 37:04
  Speaker 5: but it reopened yesterday. Classes resumed and so there were
• 37:10
  Speaker 5: multiple memorial sites set up at the university and they
• 37:13
  Speaker 5: were encouraging members of the public and students to leave
• 37:17
  Speaker 5: offerings and to have a moment of silence at the
• 37:20
  Speaker 5: site of the shooting if that's something that was meaningful
• 37:22
  Speaker 5: for them. I spent a few hours there in the
• 37:26
  Speaker 5: evening before classes resumed, and then again on Wednesday morning,
• 37:30
  Speaker 5: and the mood was the same both days I was there.
• 37:32
  Speaker 5: It was very somber, very quiet. People were incredibly emotional
• 37:37
  Speaker 5: and they were passing through leaving flowers, reading signs. There
• 37:42
  Speaker 5: was chalk left out and people had scrawled different messages
• 37:45
  Speaker 5: on the sidewalks, on the roadways and even on the
• 37:48
  Speaker 5: side of some buildings, expressing support for Charlie and expressing,
• 37:53
  Speaker 5: you know, mournful feelings but also hopeful feelings for the future,
• 37:57
  Speaker 5: and saying things along the lines of this didn't happen
• 38:01
  Speaker 5: in Vain. Your mission is going to continue. And people
• 38:04
  Speaker 5: who visited the Amphitheater area where Kirk was actually shot.
• 38:08
  Speaker 5: The university had placed these metal barriers preventing people from
• 38:12
  Speaker 5: walking in, but many people came and leaned against the
• 38:16
  Speaker 5: edge of them and just kind of were reflecting silently
• 38:18
  Speaker 5: as they looked on this area. But if you passing through,
• 38:21
  Speaker 5: would stop and turn and look back up towards the
• 38:24
  Speaker 5: building which you can see from there where the suspect
• 38:27
  Speaker 5: allegedly fired from. So there was a lot of interest,
• 38:31
  Speaker 5: but most of it was coming from a place of
• 38:34
  Speaker 5: mourning and wanting to find community and returning to the scene.
• 38:38
  Speaker 2: The next hearing is on September twenty ninth. Will see
• 38:41
  Speaker 2: if we learn more then. Thanks so much, Madeline. That's
• 38:44
  Speaker 2: Bloomberg Legal reporter Madeleine Mecklberg, and that's it for this
• 38:47
  Speaker 2: edition of The Bloomberg Law Show. Remember you can always
• 38:50
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• 38:53
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• 38:56
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• 39:05
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