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Trump vs Federal Judges, Retaliatory Redistricting & Tattoo Lawsuit · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: The Trump administration has been locked in a showdown with
0:11
Speaker 2: the federal judiciary, as judge after judge has blocked President
0:15
Speaker 2: Trump's agenda, and the country's chief law enforcement officer, Attorney
0:21
Speaker 2: General Pam Bondi, has repeatedly attacked federal judges.
0:25
Speaker 3: They're deranged, is all I can think of. I cannot believe.
0:29
Speaker 3: I think some of these judges think they are beyond
0:31
Speaker 3: and above the law, and they are not. We are
0:35
Speaker 3: in court every day fighting against these activist judges. We're
0:39
Speaker 3: not going to stop. Many of them should be recused
0:42
Speaker 3: from these cases. They will be recused from these cases.
0:44
Speaker 3: We're appealing them. Look at Chuckin. Look at Judge Chuckin
0:47
Speaker 3: with the EPA trying to control our money. Judge Chang
0:51
Speaker 3: trying to control the money of the USA. Judge Reyes,
0:54
Speaker 3: look what she did to Pete Hegseath. These injunctions have
0:58
Speaker 3: a loud District Court judge to be emperors. They vetoed
1:02
Speaker 3: all of President Trump's power, and they cannot do that.
1:07
Speaker 2: The Justice Department went from rhetoric to legal action, filing
1:12
Speaker 2: an unprecedented lawsuit against all fifteen federal district judges in
1:17
Speaker 2: Maryland over an order that grant's a two days stay
1:20
Speaker 2: of deportation to migrants who file habeas corpus petitions. This week,
1:26
Speaker 2: Maryland's federal judges responded by asking a court to dismiss
1:30
Speaker 2: the lawsuit, saying it was an assault on the separation
1:34
Speaker 2: of powers. My guest has retired federal Judge Andre Davis.
1:38
Speaker 2: He set on the US Court of Appeals for the
1:41
Speaker 2: Fourth Circuit, and he's one of more than forty judges
1:44
Speaker 2: working with the nonpartisan group Keep our Republic's Article three coalition.
1:49
Speaker 2: Thanks so much for joining me. Judge Davis, you are
1:52
Speaker 2: once a federal judge in Maryland. What's your reaction to
1:56
Speaker 2: the Trump administration suing the entire federal bench in the state.
2:00
Speaker 4: Well, June, you know, I don't know that the language
2:05
Speaker 4: exists honestly to express my reaction. The words that have
2:10
Speaker 4: been used, of course, unprecedented, extraordinary, which is true. But honestly,
2:17
Speaker 4: I don't have a rhetorical device myself to capture just
2:22
Speaker 4: how extraordinary it is for the executive branch to actually
2:28
Speaker 4: follow a lawsuit, a purported lawsuit against an entire District
2:33
Speaker 4: court bitch naming each of the individual judges in their
2:38
Speaker 4: official capacities over the court's use of a fairly routine
2:45
Speaker 4: administrative order. It's just off the charts extraordinary. That was
2:50
Speaker 4: my initial reaction, and the more I've thought about it
2:53
Speaker 4: over the last two weeks, that reaction has really solidified
2:57
Speaker 4: inside me.
2:58
Speaker 2: This suit is about a standing order by the chief
3:01
Speaker 2: judge that stopped the administration from deporting migrants who filed
3:07
Speaker 2: a habeas petition for two days. The Maryland judges say
3:11
Speaker 2: that these kinds of temporary stays are common and pointed
3:15
Speaker 2: to similar stays in the Fourth Circuit. But the Trump
3:18
Speaker 2: administration says it's extraordinary.
3:21
Speaker 4: What's extraordinary is the administration's decision to challenge the order
3:27
Speaker 4: through the means of a purported lawsuit. The order is
3:32
Speaker 4: absolutely routine, as you just said, the Fourth Circuit, the
3:36
Speaker 4: Ninth Circuit, a number of circuit courts of appeal use
3:41
Speaker 4: these kinds of standing orders to manage their docket to
3:46
Speaker 4: pace the work, as well as a number of district
3:50
Speaker 4: courts around the country. So this is as routine as
3:53
Speaker 4: it gets, honestly, and the idea that somehow this is
3:59
Speaker 4: different because it requires a two business day hiatus to
4:05
Speaker 4: give a judge a full opportunity to consider a request
4:09
Speaker 4: for emergency relief. As I say, the rhetoric to capture
4:14
Speaker 4: the extraordinary nature of this act by the administration honestly
4:18
Speaker 4: just doesn't exist.
4:20
Speaker 2: Do you see this as a ratcheting up of the
4:23
Speaker 2: Trump administration's assault on the judiciary or is it an
4:27
Speaker 2: attempt by Trump to further expand executive powers or both
4:32
Speaker 2: or neither.
4:33
Speaker 4: I'll have to believe that for others to judge. What
4:36
Speaker 4: I can tell you is that one aggressive enforcement of
4:41
Speaker 4: the executive branches priorities. That's a decision for an administration
4:46
Speaker 4: as to how they wish to pursue their priorities. What's
4:50
Speaker 4: not for any administration to do is to call into
4:54
Speaker 4: question the rule of law, the legitimacy of courts, and
4:59
Speaker 4: the separation of powers, which is exactly what this action does.
5:04
Speaker 4: If they want to be aggressive, they can be aggressive,
5:06
Speaker 4: and they are aggressive. But the Court is entitled, and
5:09
Speaker 4: not just entitled, but the court is duty bound to
5:14
Speaker 4: protect its jurisdiction to ensure that it can fairly, really
5:21
Speaker 4: unbiased way decide the disputes that come before the court.
5:26
Speaker 4: And so an administration that sets up a system in
5:30
Speaker 4: which an effort can be made to deprive the court
5:33
Speaker 4: of jurisdiction. If that's what's happening by these rushed removals,
5:39
Speaker 4: then the courts have a duty to make sure that
5:42
Speaker 4: that jurisdiction is protected.
5:44
Speaker 2: I want to go over some of the arguments that
5:46
Speaker 2: judges make in their dismissal motion. As you're referred to.
5:50
Speaker 2: They argue that the lawsuit is a violation of the
5:53
Speaker 2: separation of powers. Quote. A lawsuit captioned Congress versus executive
5:59
Speaker 2: or vice vers would be dismissed in a heartbeat. A
6:03
Speaker 2: suit effectively captioned executive versus judiciary fares no better.
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Speaker 4: Well, first of all, how can the United States sue itself? Right?
6:13
Speaker 4: I mean, it's like this part of the United States
6:16
Speaker 4: suing that part of the United States. It cuts to
6:19
Speaker 4: separation of powers. In this way, the coequal branches of
6:24
Speaker 4: government are co equal. Each has pharmacy in its lane,
6:31
Speaker 4: and the judicial lane is the adjudication of disputes both
6:36
Speaker 4: between the government and non governmental actors as well as
6:40
Speaker 4: between private parties including corporations, nonprofits, and individuals. That's how
6:47
Speaker 4: the system is designed. That's how it has worked for
6:51
Speaker 4: nearly two hundred and fifty years, and now we have
6:55
Speaker 4: this situation where one part of the government claims to
6:59
Speaker 4: be able to coerce another part of the government to
7:03
Speaker 4: do what it wants. Think about it, jes take a
7:06
Speaker 4: step back from it for a moment. Here we have
7:10
Speaker 4: the executive branch asking a single district judge from somewhere
7:16
Speaker 4: in the country to beliefs the administrative practices of another
7:24
Speaker 4: group of federal district judges. I mean, it's enough to
7:27
Speaker 4: give you a headache. That can't possibly that can't possibly
7:32
Speaker 4: be consistent with separation of powers. The executive branch is
7:37
Speaker 4: purporting to capture one part of the judicial branch to
7:43
Speaker 4: use as a pugel against another part of the judicial branch.
7:49
Speaker 4: Thomas Jefferson is turning over a grain.
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Speaker 2: So another argument that the Maryland judges are making is
7:57
Speaker 2: that the court is shielded under sovereign immunity and that
8:01
Speaker 2: the judges and court clerks are protected under judicial immunity.
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Speaker 4: Absolutely bull stop. In my judgment, there's simply no legitimate
8:11
Speaker 4: response to that other than that's correct. It's absolutely correct.
8:17
Speaker 4: There's just no.
8:18
Speaker 2: Answer to it because all the judges in Maryland are
8:22
Speaker 2: being sued here. The Fourth Circuit appointed a judge from
8:25
Speaker 2: outside the circuit to hear the case. So the Circuit
8:30
Speaker 2: appointed Virginia Federal Judge Thomas Cullin, a Trump appointee, to
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Speaker 2: handle the case. He's only been on the bench since
8:38
Speaker 2: twenty twenty, and he hasn't handled any high profile cases.
8:42
Speaker 2: Any idea why he.
8:43
Speaker 4: Was chosen, No, I don't. I can tell you generally
8:48
Speaker 4: what the Fort tries to do when they have to
8:51
Speaker 4: choose judges who are willing to go out of district
8:55
Speaker 4: or out of circuit for a special assignment. They look
8:59
Speaker 4: at I think one, frankly, who's workload at the moment
9:04
Speaker 4: will allow that judge to take on a little bit
9:08
Speaker 4: of extra work. I myself, in fact, on two separate
9:11
Speaker 4: occasions when I was on the Fourth Circuit, I volunteered
9:15
Speaker 4: and was appointed by the Chief Justice to sit as
9:19
Speaker 4: a visiting judge in the Third Circuit in Philadelphia in
9:22
Speaker 4: a couple of cases where the entire bench of the
9:27
Speaker 4: Third Circuit, all seventeen judges for a couple of reasons,
9:31
Speaker 4: were we acused from hearing the case. So the Chief
9:35
Speaker 4: Justice appointed myself and two other visiting judges to go
9:38
Speaker 4: to Philadelphia to hear argument and decide the case. So
9:41
Speaker 4: it does happen from time to time. And as I say,
9:45
Speaker 4: one of the first considerations is who among you can
9:48
Speaker 4: devote additional time to this extra work? And I suspect
9:53
Speaker 4: that that was a principal reason. But you know, any
9:56
Speaker 4: district judge willing to do it and able to do
9:58
Speaker 4: it would have been fine. Short to the fourth sercit.
10:02
Speaker 2: The Maryland judges also say that this wouldn't be the
10:05
Speaker 2: last such lawsuit if it's not quickly rejected. Do you
10:09
Speaker 2: see this as a broader attack by the Trump administration
10:13
Speaker 2: on the federal judiciary as sort of the first step,
10:17
Speaker 2: or is it more isolated targeting the Maryland bench, which
10:21
Speaker 2: is handed down a lot of decisions curbing the Trump
10:24
Speaker 2: administration in high profile cases like that of Kilmar Orbrigo Garcia.
10:30
Speaker 4: I frankly think it's impossible to believe, based on what
10:34
Speaker 4: has occurred up until now, that this was on one
10:38
Speaker 4: off that if this were somehow to succeed, It's hard
10:43
Speaker 4: to imagine that this practice wouldn't see itself duplicated around
10:49
Speaker 4: the country. Why was Maryland chosen in particular here? I
10:54
Speaker 4: don't know. I can't answer that. There have been rulings
10:58
Speaker 4: that the executive brand which has objected to all over
11:02
Speaker 4: the country on a number of issues, including the issue
11:06
Speaker 4: present in this instance of expedit at removal. But I
11:11
Speaker 4: don't see a world in which if this case somehow succeeds,
11:16
Speaker 4: even succeeds at the motion to dismiss stage, which I
11:19
Speaker 4: don't believe it will, It's going to be duplicated around
11:22
Speaker 4: the country if it succeeds here.
11:25
Speaker 2: So you think that the motion to dismiss will be granted?
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Speaker 4: I do believe that. I do believe that.
11:31
Speaker 2: The Trump administration basically appeals every decision that goes against them.
11:36
Speaker 2: Do you think that this case will end up at
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Speaker 2: the Supreme Court.
11:40
Speaker 4: That's a good question if they choose to appeal, just
11:44
Speaker 4: as I believe the case is going to be dismissed
11:47
Speaker 4: at the district court level, I believe that the Fourth
11:50
Speaker 4: Circuit will reject any appeal that's taken, and frankly, I
11:56
Speaker 4: believe that the Supreme Court will reject any appeal that
12:01
Speaker 4: is sought from them. But whether such an appeal or
12:04
Speaker 4: a petition for cert eventually gets filed is entirely up
12:08
Speaker 4: to the Department of Justice and the administration and Judge.
12:13
Speaker 2: Davis, why did you join Keep our Republic's Article three Coalition?
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Speaker 4: Oh, it took me all about a half a second
12:23
Speaker 4: when I learned of the Article three coalition and the
12:27
Speaker 4: extraordinary retired judges who I know, many of them are
12:30
Speaker 4: my friends. I've served with them over many years. The
12:33
Speaker 4: idea that we retired federal judges have a special voice
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Speaker 4: that we can use to educate the public, to speak
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Speaker 4: on behalf of the federal judiciary, which we all love
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Speaker 4: and respect and honor so much. The idea that we
12:53
Speaker 4: can have some space where people can hear us, question us,
13:00
Speaker 4: check our answers against historical sources, and assess our experience
13:06
Speaker 4: to lift the public's understanding of the importance of the
13:10
Speaker 4: rule of law, the separation of powers, the imperative of
13:14
Speaker 4: judicial independence, all of that together, June is what immediately
13:19
Speaker 4: prompted me to say, yes, I want to be a
13:21
Speaker 4: part of this. I want to add my voice to
13:24
Speaker 4: those of other retired judges who will raise the understanding
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Speaker 4: of the public and that's really our audience, the understanding
13:34
Speaker 4: of the public about how courts work, the rule of
13:38
Speaker 4: law and the foundations of our democracy because there's a
13:42
Speaker 4: real need for additional efforts in those regards. We are
13:45
Speaker 4: not the only ones doing this work, and we are
13:48
Speaker 4: not doing all the work that needs to be done
13:50
Speaker 4: in this area. But I think retired federal judges have
13:53
Speaker 4: a legitimacy and aflaim to legitimacy that I think many
13:58
Speaker 4: many members of the public will respect, listen to, and
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Speaker 4: learn from. And so that's why I'm very happy to
14:05
Speaker 4: be a part of this extraordinary coalition.
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Speaker 2: Thanks so much for joining me, Judge Davis. It's great
14:11
Speaker 2: to get a judge's perspective on these issues. That's retired
14:15
Speaker 2: federal Judge Andre Davis. President Donald Trump has been very
14:20
Speaker 2: open about his plans to use redistricting to help Republicans
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Speaker 2: retain control of the House in the twenty twenty six
14:28
Speaker 2: midterm elections. Trump has pushed to get Republican lawmakers in
14:32
Speaker 2: Texas to redraw the state's congressional maps in favor of
14:37
Speaker 2: the GOP, saying it would add as many as five
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Speaker 2: seats for the party five.
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Speaker 5: I think we get five, and there could be some
14:45
Speaker 5: other states we're.
14:46
Speaker 4: Going to get another three or four or five. In addition,
14:49
Speaker 4: Texas would be the biggest one, and that'll be five.
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Speaker 2: And when Governor Greg Abbott announced his agenda for the
14:56
Speaker 2: legislature a special session that started on Monday, redistricting was
15:01
Speaker 2: on the list. That's led prominent Democrats to talk about
15:05
Speaker 2: countering Texas with retaliatory redistricting in blue states. House Minority
15:11
Speaker 2: Leader Hakim Jeffries is reportedly exploring the possibility of redrawing
15:17
Speaker 2: house maps in California, New York, New Jersey, and Minnesota.
15:22
Speaker 2: And California Governor Gavin Newsom has already laid out two
15:27
Speaker 2: options for retaliatory redistricting in that state, saying Democrats have
15:32
Speaker 2: to be aggressive.
15:34
Speaker 4: They're playing by different sever rules.
15:37
Speaker 5: They can't win by the traditional game, so they want
15:40
Speaker 5: to change the game.
15:41
Speaker 4: We can act taller than now.
15:44
Speaker 2: We could sit on the sidelines, talk about the way
15:46
Speaker 2: the world should be.
15:48
Speaker 4: What we can recognize the existential nature.
15:53
Speaker 2: That is this moment joining me is elections law expert
15:57
Speaker 2: Richard Brefald, a professor at Columbia Law School. Rich States
16:01
Speaker 2: are required to draw new congressional maps once a decade
16:05
Speaker 2: after each census. How unusual is it to redraw the
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Speaker 2: maps at this time?
16:11
Speaker 6: This kind of what might be called mid cycle regitioning
16:13
Speaker 6: is very unusual. It's not that it's never happened before.
16:16
Speaker 6: It has sometimes happened. Although it's unusual, it happened sometimes.
16:19
Speaker 6: It happens when a new party takes over state legislature
16:23
Speaker 6: that they hadn't had at the beginning of the decade.
16:25
Speaker 6: Here is actually talking to states where the Republicans were
16:28
Speaker 6: already in charge of doing the districting in twenty twenty
16:31
Speaker 6: one and saying, well, I want you to do it
16:34
Speaker 6: even more so now. And it's very rare that it's
16:37
Speaker 6: being gone so kind of blatantly nakedly partisan purposes. There
16:42
Speaker 6: usually has some justification for it, but this time, I
16:45
Speaker 6: mean it's being announced as purely partisan, purely gerrymandering, rather
16:50
Speaker 6: than any claim that there was kind of a problem
16:52
Speaker 6: of representation with the older districts.
16:54
Speaker 2: And the Supreme Court has said partisan gerrymandering is okay,
17:00
Speaker 2: racial jerry mandering is not.
17:02
Speaker 6: That's correct. I mean, I guess technically what they have
17:04
Speaker 6: said is that partisan jerry mandering is not unconstitutional. They
17:08
Speaker 6: don't endorse it, but they have said that there's nothing
17:11
Speaker 6: the federal courts can do about it. Racial jerry mandering,
17:14
Speaker 6: districting designed to help one race over another. That does
17:18
Speaker 6: raise a constitutional concern, but race and party are often
17:22
Speaker 6: very closely intertwined, and in their most recent cases, the
17:25
Speaker 6: Court has basically said, if the state says it's partisan,
17:28
Speaker 6: because partisan is constitutional, we're going to defer them. We're
17:31
Speaker 6: going to put a very heavy burden of proof on
17:33
Speaker 6: the other side, challenging to show that it's not partisan,
17:36
Speaker 6: it's racial. And here, at least what's going on in Texas,
17:40
Speaker 6: the announcement is so clearly that it's partisan, and it
17:42
Speaker 6: seems to be that. But I think it would be
17:44
Speaker 6: very hard to show that even if there's a racial
17:47
Speaker 6: component to it, it'd be very hard to show that
17:49
Speaker 6: it wasn't primarily partisan.
17:51
Speaker 2: Techas Republican Governor Greg Abbott said his decision to put
17:55
Speaker 2: redistricting on the list for the special session was because
18:00
Speaker 2: of a letter he got from the Justice Department that
18:03
Speaker 2: alleges that four of the current districts were racial gerrymanders
18:07
Speaker 2: that violate the Fourteenth Amendment. I mean, does that letter
18:10
Speaker 2: make any sense legally? Is it pretextual?
18:15
Speaker 6: It sure seems that way. I mean, these districts were
18:17
Speaker 6: adopted two years ago, and they were designed to provide
18:21
Speaker 6: representation for minority groups. I think for African Americans and Latinos.
18:25
Speaker 6: I think they were primarily Latino districts. The Constitution does
18:29
Speaker 6: not forbid that in the Voting Rights Act. Actually, if
18:31
Speaker 6: it doesn't require that, at least it promotes that idea
18:34
Speaker 6: a fair representation for minorities. So no one has ever
18:37
Speaker 6: challenged those districts, and basically the current administration seems to
18:41
Speaker 6: be that anything that even thinks about race is unconstitutional.
18:45
Speaker 6: That's not been the standard until now. The Supreme Court
18:48
Speaker 6: standard is that race can be taken into account in districting,
18:51
Speaker 6: it just can't be the overwhelming factor, the predominant factor.
18:55
Speaker 6: And I think you would have to show that these districts,
18:58
Speaker 6: of course did help minority representation, but you would have
19:02
Speaker 6: to show that that was the overwhelming factor as opposed
19:05
Speaker 6: to other factors, including respect for political subdivision mindes following
19:09
Speaker 6: the course of pre existing districts. It does seem as
19:11
Speaker 6: though this was designed purely to give a justification for
19:15
Speaker 6: a re redistricting without anyone going to court and suing.
19:18
Speaker 6: No one has gone to court to sue to challenge
19:20
Speaker 6: those districts. If anything, there was another lawsuit that was
19:24
Speaker 6: brought from the other perspectives, saying that some other districts
19:27
Speaker 6: in Texas violated the Voting Rights Act in terms of
19:30
Speaker 6: limiting minority representation, and the state had been defending them
19:34
Speaker 6: saying that the state's districting plan was entirely constitutional. So
19:37
Speaker 6: the state has now kind of flipped its position, you know,
19:40
Speaker 6: moving away from its position that everything is fine, and
19:43
Speaker 6: is now considering redoing the.
19:44
Speaker 2: District rich This could also be risky for Republicans, not
19:48
Speaker 2: just legally but at the ballot box. Here's what former
19:51
Speaker 2: Texas Congressman betow O Rourke said.
19:55
Speaker 1: And then it may come back to bite these Republicans
19:57
Speaker 1: because in order to create more districts that they can win,
20:01
Speaker 1: they're going to have to lose some Republican voters in
20:04
Speaker 1: current Republicans strongholds. So there may be an opportunity for Democrats.
20:08
Speaker 2: Do you see a real risk here?
20:10
Speaker 6: It depends on exactly what the Republicans do. But I
20:13
Speaker 6: think if they take some districts where Republicans are strong
20:18
Speaker 6: and move some Republican voters into nearby districts currently held
20:23
Speaker 6: by a Democrat but have been trending Republican, I think
20:26
Speaker 6: what happened is that in the twenty twenty four election,
20:29
Speaker 6: a lot of districts that are held by Democrats voted
20:32
Speaker 6: for Trump, and so I think what they're thinking is
20:35
Speaker 6: that they may be able to move some Republican voters
20:39
Speaker 6: from what are clearly Republican districts into districts which have
20:43
Speaker 6: been Democratic districts but night tip Republican with a few
20:46
Speaker 6: more Republican voters. So that's the idea. In what I've
20:49
Speaker 6: seen numbers, they think they can find as many as
20:51
Speaker 6: five districts that look like that. What Aururke is getting
20:54
Speaker 6: at is they're risking the possibility that not only won't
20:57
Speaker 6: these districts tip, but by moving Republicans out of the
21:01
Speaker 6: other districts, they risk losing those districts. A lot will
21:04
Speaker 6: turn on what the political climate is next fall in
21:08
Speaker 6: twenty twenty six. If it's a democratic year, that is
21:12
Speaker 6: a real risk. If it's not, then the Republican strategy
21:15
Speaker 6: may work. But you know, at some point, there are
21:17
Speaker 6: only so many Republican and Democratic voters in a state,
21:20
Speaker 6: and the idea is to try and arrange them in
21:23
Speaker 6: such a way to maximize your party's vote. But people
21:26
Speaker 6: don't always vote exactly the same each time, and it
21:29
Speaker 6: could be that some voters switched back and the Republicans
21:32
Speaker 6: did very well in what had been Democratic districts last time,
21:36
Speaker 6: will they do as well next time?
21:37
Speaker 2: There's also a risk of retaliation. Minority Leader Hakim Jeffries
21:42
Speaker 2: is reportedly exploring the possibility of redrawing house maps in California,
21:47
Speaker 2: New York, New Jersey, Minnesota, and Washington. And California Governor
21:52
Speaker 2: Gavin Newsom has been pretty blunt about saying, we're going
21:56
Speaker 2: to try to redistrict here in California.
21:58
Speaker 6: I think would be very hard to do this in
22:00
Speaker 6: California because they have a constitutional amendment that governs how
22:04
Speaker 6: redistricting is done. They would basically have to either supersede
22:08
Speaker 6: that amendment with a new amendment that either forever for
22:12
Speaker 6: one time only it would change the districting process. That's
22:15
Speaker 6: really hard. I mean, I think they'd have to get
22:17
Speaker 6: something through the legislature and to the voters, and then
22:20
Speaker 6: the voters would have to approve that, and then they'd
22:23
Speaker 6: have to go and then write a new plan. And
22:25
Speaker 6: you know, that's a big list. And whether or not
22:28
Speaker 6: they could get a constitutional amendment to the voters in
22:30
Speaker 6: time this year and whether the voters would approve it.
22:34
Speaker 6: I mean, it's also pretty blatant, and although California runs Democratic,
22:38
Speaker 6: it's not clear to me that the voters would approve this.
22:41
Speaker 6: I mean the might and then of course they'd have
22:43
Speaker 6: to write a plan in a way that doesn't follow
22:46
Speaker 6: the constitutional pattern they have there. They have to come
22:48
Speaker 6: up with an entirely new system, so I guess they'd
22:50
Speaker 6: have to take it away from the Constitutional Commission and
22:52
Speaker 6: give it to the legislature, either always or this one time.
22:56
Speaker 6: I'm not sure what the proposal is.
22:58
Speaker 2: And what about redistricting in other Democratic controlled states.
23:03
Speaker 6: Well, again, New York also has adopted a new constitutional
23:06
Speaker 6: format redistricting, and that I think currently governs. I don't
23:11
Speaker 6: know about the other states. I think in the other
23:13
Speaker 6: states it may be possible that the legislature would they
23:16
Speaker 6: have a democratic legislature and a democratic governor. You mentioned Minnesota.
23:20
Speaker 6: I think the Minnesota legislature is very closely divided, and
23:24
Speaker 6: I think a key Democrat is just convicted of a
23:26
Speaker 6: crime and they have to resign. On which case, it's
23:28
Speaker 6: not hear the Democrats have the Minnesota legislature. You mentioned
23:31
Speaker 6: Washington state, that might be possible and you're talking about
23:34
Speaker 6: picking up maybe one seat I think on a place
23:36
Speaker 6: like that.
23:37
Speaker 2: The term jerry mandering was coined back in the eighteen hundreds,
23:42
Speaker 2: so it's been around for quite a while, and both
23:45
Speaker 2: parties are guilty of jerry mandering. But has it gotten
23:49
Speaker 2: worse lately?
23:51
Speaker 7: Oh?
23:51
Speaker 6: Absolutely, Basically because the computer power has gotten so much better.
23:55
Speaker 6: It has become much easier for computers to generate multiple
23:59
Speaker 6: maps of thousands of maps that all comply with one person,
24:03
Speaker 6: one vote and use pre existing voting or voter registration
24:07
Speaker 6: data to maximize the number of Republican or Democratic districts.
24:10
Speaker 6: So it's no longer taking out big maps using crayon
24:14
Speaker 6: and drawing on the floor. You can generate almost an
24:17
Speaker 6: infinite number of maps by programming them to respect certain
24:21
Speaker 6: factors and not others, and that makes it incredibly easy.
24:25
Speaker 6: Now the level of you know, hyperpartisanship legislatures as such
24:28
Speaker 6: that they're also willing to do it. There's been something
24:30
Speaker 6: of a pushback, and I mentioned in California and New
24:33
Speaker 6: York have cons social amendments that can try to limitary mandering.
24:37
Speaker 6: A handful of other states there have been limits placed
24:40
Speaker 6: on jerrymandering either by constcial amendment or by state Supreme
24:43
Speaker 6: Court decision. But where the legislatures are not limited, they
24:48
Speaker 6: have kind of infinite capacity to come up with maps
24:52
Speaker 6: that will do as much as possible to maximize the
24:56
Speaker 6: power of the party in power.
24:58
Speaker 2: And it seems like the Democratic states are there ones
25:00
Speaker 2: with those independent commissions, etc. Whereas the Republican states are
25:06
Speaker 2: still mostly relying on their legislatures.
25:09
Speaker 6: You're right, and Arizona, which I guess is a purple state,
25:12
Speaker 6: has a commission. But I think you know, we're talking
25:14
Speaker 6: about California, New York, New Jersey, and then court decisions.
25:19
Speaker 6: I think Pennsylvania maybe now Wisconsin.
25:22
Speaker 2: Well, there's a lot to watch with the maps and
25:25
Speaker 2: possible legal challenges before the midterms. Thanks so much, rich
25:30
Speaker 2: that's Professor Richard Rfault of Columbia Law School. You can't
25:34
Speaker 2: erase a tattoo, but can you erase a jury verdict
25:38
Speaker 2: about a tattoo? That's what photographer Jeffrey Sedlick is asking
25:42
Speaker 2: the Ninth Circuit Court of Appeals to do. The photographer
25:46
Speaker 2: sued celebrity tattoo artist Cat von Dee over a tattoo
25:50
Speaker 2: she inked of legendary jazz musician Miles Davis, based on
25:55
Speaker 2: Sedlick's copyrighted photograph of Davis. The jury took only three
25:59
Speaker 2: hours hours of deliberating before it returned a verdict for
26:03
Speaker 2: cat Vonde, finding that the tattoo wasn't substantially similar to
26:07
Speaker 2: the photo and didn't violate the copyright laws. But on
26:11
Speaker 2: appeal to the Ninth Circuit, the judges seemed to be
26:15
Speaker 2: struggling to understand how the jury could reach that verdict
26:19
Speaker 2: when the tattoo and photo look alike. Here are judges
26:22
Speaker 2: Kim McLane, Ward Law and Anthony D. Johnstone.
26:26
Speaker 7: We look at it, we say this is the same photograph.
26:30
Speaker 7: Yet through all these machinations it ended up being the
26:34
Speaker 7: jury saying, oh, but it's not substantially similar. And I
26:39
Speaker 7: think it kind of defies rationality to suggest that it's
26:46
Speaker 7: not the same photograph. It is the same photograph, it's
26:50
Speaker 7: on a different medium. So how did the jury get
26:52
Speaker 7: where it got?
26:54
Speaker 8: But I think we've also said that just transferring out
26:57
Speaker 8: onto a different medium alone be a difference. Right, We're
27:02
Speaker 8: looking at similarities rather than difference. And so if you
27:04
Speaker 8: have everything else is the same and we're just going
27:06
Speaker 8: to change it from being on photo paper to someone's skin.
27:10
Speaker 8: How's that?
27:10
Speaker 2: But even if the judges thought the jury was wrong,
27:14
Speaker 2: what could they do about it? The Ninth Circuit has
27:16
Speaker 2: never reversed a jury verdict on substantial similarity A subjective
27:21
Speaker 2: test joining me to answer these questions that the judges
27:25
Speaker 2: struggle with is intellectual property litigator Terrence Ross, a partner
27:29
Speaker 2: at catin Utchen Rosenmann, Terry, will you explain the test
27:33
Speaker 2: us here for copyright infringement?
27:35
Speaker 5: So in order to prove up a case of copyright infringement,
27:39
Speaker 5: you have to show ownership of a register copyright and
27:43
Speaker 5: proof of infringement. The test for infringement in the Ninth
27:47
Speaker 5: Circuit where this case takes place is well developed over
27:51
Speaker 5: many years, a little bit complicated, but very well developed,
27:54
Speaker 5: and it's a two part test with respect to substantial similarity.
27:59
Speaker 5: First is what's known as the extrinsic test, which is
28:04
Speaker 5: really an objective test, a fancy word for saying objective tests,
28:08
Speaker 5: and that's undertaken by the court by the judge who
28:13
Speaker 5: determines whether or not there are objective elements that have
28:18
Speaker 5: been copied that constitute the literary works expression. In this case,
28:23
Speaker 5: the photographic works expression, So is there reason to believe
28:28
Speaker 5: that a protected element of the work was copied? Now,
28:31
Speaker 5: this is easier to do, in my opinion, in cases
28:34
Speaker 5: of photographs then in movies, television shows, plays books where
28:39
Speaker 5: small portions are copied and they slightly change the characters
28:43
Speaker 5: or the setting or the plot, and their judges are
28:46
Speaker 5: really presented with a challenging first step in this infringement
28:49
Speaker 5: process that they have to undertake to determine whether or
28:53
Speaker 5: not protected elements of copyright we're infringed, and they get
28:57
Speaker 5: help from experts on that. The second step, assuming that
29:01
Speaker 5: the copyright owner passes the first test, which is sort
29:05
Speaker 5: of a gate keeping function that the judge performs, the
29:07
Speaker 5: judge that allows the infringement charge through the gate so
29:11
Speaker 5: to speak to the jury, and then the jury looks
29:14
Speaker 5: at the two works, engages what's done as an intrinsic test,
29:17
Speaker 5: which is essentially a subjective review. And the expression you
29:20
Speaker 5: often here used in the case law is does the
29:24
Speaker 5: look and feel of the copied work constitute an infringement
29:29
Speaker 5: i e. An improper copying of the original work. So
29:32
Speaker 5: there's this two part test. Part one done by the court,
29:35
Speaker 5: part two done by the jury.
29:37
Speaker 2: So the judge in this case allowed the infringement charged
29:40
Speaker 2: through the gate, and the jury decided on the intrinsic
29:44
Speaker 2: subjective test that the tattoo wasn't substantially similar to the photo.
29:51
Speaker 2: But during the Ninth Circuit arguments, Judge Wardlaw said they
29:55
Speaker 2: were struggling to figure out why the jury didn't find
29:58
Speaker 2: that they were substanti similar. She said, it defied rationality,
30:03
Speaker 2: and it is the same photo, it's just in a
30:06
Speaker 2: different medium. And it seemed like the other judges agreed
30:09
Speaker 2: with her. Can they say the jury was wrong and
30:11
Speaker 2: reverse the verdict.
30:13
Speaker 5: Not really. There are some rare instances where that's happened
30:17
Speaker 5: in copyright cases, but not in the context of substantial similarity.
30:22
Speaker 5: I know of at least two cases out there in
30:23
Speaker 5: the Ninth Circuit that involved the defense of day minimous
30:27
Speaker 5: use where he takes such a small portion of copyright
30:30
Speaker 5: at worked that the law allows you to do it.
30:32
Speaker 5: And I know there have been a couple of cases
30:34
Speaker 5: where the appellate court reversed a jury finding on that.
30:38
Speaker 5: I've never seen it done in the context of substantial
30:41
Speaker 5: similarity case here, and a lot of this battle was
30:45
Speaker 5: lost by the plaintiff when the district court judge, the
30:48
Speaker 5: trial judge ruled that this was not a case of
30:51
Speaker 5: substantial similarity. At summary judgment, the copyright owner the photographer
30:57
Speaker 5: had moved for summary judgment saying, look, this is no
30:59
Speaker 5: different than putting a book on a xerox machine. It's
31:02
Speaker 5: literal copyright infringement and we don't need a trial. And
31:06
Speaker 5: the judge discreet said it was not literal copying and
31:10
Speaker 5: said that they would have to proceed to trial on
31:13
Speaker 5: a theory of substantial similarity, and in many respects that
31:17
Speaker 5: cost them the advantage that they had the copyright owner,
31:20
Speaker 5: because then you're putting it up for grabs with a jury.
31:23
Speaker 5: You just don't know how jury's going to come out,
31:25
Speaker 5: particularly where you have a celebrity defendant here kat Van
31:29
Speaker 5: d who's apparently famous tattoo artists in California, and potentially
31:33
Speaker 5: you know, more interesting trial counts in the courtroom presenting
31:37
Speaker 5: the case, and by all accounts, the defendants trial attorney
31:43
Speaker 5: did a just fabulous job in the courtroom of getting
31:48
Speaker 5: the jury to understand the process that the tattoo artists
31:52
Speaker 5: went through and how that constituted original art in a way.
31:58
Speaker 5: So to a certa think got out lawyer in the courtroom.
32:02
Speaker 2: Some of the judges asked the photographer's lawyer to cite
32:07
Speaker 2: grounds that would allow them to overturn the jury verdict,
32:10
Speaker 2: and Judge Anthony Johnston saying it appeared to be beyond
32:14
Speaker 2: our review. I mean, is there any way if they
32:17
Speaker 2: feel that it's obvious that this is not substantially similar
32:21
Speaker 2: and that the jury maybe was taken by the celebrity factor.
32:26
Speaker 2: I mean, is there any way that they would reverse
32:29
Speaker 2: the jury verdict?
32:30
Speaker 5: Let me start off by saying this. The council for
32:33
Speaker 5: the photographer who argued before the Ninth Circuit is a
32:37
Speaker 5: well known, well respected copyright lawyer by the name of
32:40
Speaker 5: William Patrie. He has written one of the leading treatises
32:44
Speaker 5: on copyright law, was the copyright lawyer for the House
32:48
Speaker 5: of Representatives during several periods of time in which really
32:51
Speaker 5: significant revisions were made for the Copyright Act, and then
32:55
Speaker 5: taught copyright law for a number of years. Very well respected,
32:59
Speaker 5: knows copy right law. As you say, this question was
33:01
Speaker 5: put to him before he had completed his first sentence
33:06
Speaker 5: at oral argument before the Ninth Circuit. Can we do this?
33:10
Speaker 5: Can you cite us to authority that allows us to
33:12
Speaker 5: do this. And the only case is he was able
33:14
Speaker 5: to cite to were not in the context of substantial
33:17
Speaker 5: similarity cases. They were in other contexts. And certainly from
33:22
Speaker 5: listening to the argument on tape, I came away convinced,
33:26
Speaker 5: as apparently you do, that the judges would not have
33:29
Speaker 5: reached the same verdict as the jury. But we're going
33:32
Speaker 5: to respect the jury's verdict and affirm it. And this
33:37
Speaker 5: is the whole problem with losing on the second part
33:42
Speaker 5: of the test, the intrinsic subjective test that depends on
33:47
Speaker 5: the subjective view the jury is to the look and
33:49
Speaker 5: feel of the two works. You cannot substitute as an
33:53
Speaker 5: appellate judge your opinion for that of the juries. And
33:57
Speaker 5: so I don't see any way that this is going
33:59
Speaker 5: to be overturned.
34:01
Speaker 2: I love this line from Photographer's Council. We don't know
34:05
Speaker 2: what the jury did, and we don't know what the
34:07
Speaker 2: mystery of Stonehenge is either, but we do know the
34:10
Speaker 2: jury should never have done this. It must be frustrating
34:14
Speaker 2: to have, you know, judges see that a jury made
34:17
Speaker 2: a mistake and still can't do anything about it.
34:21
Speaker 5: As a baseball guy. The only analogy I can give
34:22
Speaker 5: you is the umpires call balls and strikes at hum plate.
34:26
Speaker 5: I mean, it's absolutely verboten for a manager or player
34:30
Speaker 5: to challenge the calls of balls and strikes in some
34:33
Speaker 5: sort of objective sense, you know, measured by a robot.
34:36
Speaker 5: The ball may have been slightly outside the plate, but
34:38
Speaker 5: that does not make it a ball. The call of
34:42
Speaker 5: the umpire makes it a strike, and for all purposes
34:46
Speaker 5: it is a strike. And to go around saying, oh,
34:48
Speaker 5: got that call wrong, No, there's no appeal from that.
34:51
Speaker 5: And it's the same with a jury verdict for the
34:53
Speaker 5: most part, absent fraud, jury being bribed or something like that,
34:57
Speaker 5: the jury verdict stands up because you're not a ab
35:00
Speaker 5: to replace your view, your personal view as a judge,
35:04
Speaker 5: with that of the twelve men and women of the jury.
35:06
Speaker 5: It simply isn't done in Anglo American law. And that's
35:11
Speaker 5: the problem you here expressed at the oral argument from
35:15
Speaker 5: these judges. They would have decided it differently, but they
35:18
Speaker 5: realized that they're handcuffed.
35:21
Speaker 2: Terry Judge Johnstone seemed to have some broader concerns.
35:26
Speaker 8: I guess my concern is we're kind of washing out
35:29
Speaker 8: the value and the principle of copyright by allowing a
35:34
Speaker 8: jury to reach unreviewable subjective determinations on an intrinsic test.
35:40
Speaker 5: Well, he's complaining about the test that has been established
35:45
Speaker 5: in the Ninth Circuit, and not just in the Ninth Circuit,
35:47
Speaker 5: multiple other circuit courts. You know, the Sixth Circuit where
35:50
Speaker 5: you have Nashville and Detroit, you get a clock copyright cases.
35:53
Speaker 5: Second Circuit where you have New York and get a
35:55
Speaker 5: lot of copyright case. Seventh Circuit cad get a block
35:57
Speaker 5: copyright cases. All these courts have adopted the test, although
36:00
Speaker 5: it was pioneered by the Ninth Circuit, and that was
36:03
Speaker 5: thirty five forty years ago, and it's lasted the test
36:07
Speaker 5: of time. In the majority of cases it works. In
36:11
Speaker 5: this one case, you might be able to argue the
36:14
Speaker 5: jury got it wrong. I actually unlike you. You see
36:17
Speaker 5: some differences in the photograph and the tattoo. Now, whether
36:21
Speaker 5: or not they're enough to have me vote non infringement,
36:25
Speaker 5: I don't know. I haven't thought about it enough. But
36:27
Speaker 5: the complaint that the judge here has is fundamentally a
36:31
Speaker 5: complaint about existing law, and in order to change existing law,
36:36
Speaker 5: somebody is going to have to petition for an on
36:39
Speaker 5: bank review at the Ninth Circuit. So what should happen
36:42
Speaker 5: here is the panel of three judges affirms the jury's verdict,
36:46
Speaker 5: and then the photographer the planetiff files a petition for
36:50
Speaker 5: review on bank, meaning the entire Ninth Circuit. All the
36:53
Speaker 5: active judges of the Ninth Circuit sit and reconsider whether
36:56
Speaker 5: this is the appropriate test, And that perhaps is what
37:00
Speaker 5: is being suggested here, But it is sort of like
37:03
Speaker 5: you know, whistling in the wind. There are always going
37:06
Speaker 5: to be jury verdicts that people think the jury got wrong,
37:11
Speaker 5: and that's for being civil cases, and that's going to
37:12
Speaker 5: be in criminal cases. It's fundamental to our jurisprudence that
37:16
Speaker 5: we accept that margin of error in order to allow
37:20
Speaker 5: the sort of due process we want to have II
37:22
Speaker 5: to have regular citizens decide the cases. And I think
37:27
Speaker 5: it's very misplaced for a pellet judge on a prominent
37:31
Speaker 5: court of appeals like this in effect bad mouth the jury.
37:34
Speaker 2: We've talked about copyright and tattoos before. Does this stand
37:37
Speaker 2: for any broader principle about you know, tattoos of copyrighted works.
37:43
Speaker 5: I don't believe it does. I don't believe it stands
37:46
Speaker 5: for any broad principle and copyright law generally, both attorneys,
37:50
Speaker 5: the attorney for the photographer attorney for the tattoo artist,
37:54
Speaker 5: when asked this question at the Ninth Circuit World Argument,
37:57
Speaker 5: said that they did not believe the decision here impacted
38:00
Speaker 5: more broadly than the dispute between the two parties. And
38:04
Speaker 5: I agree with that this is a relatively run of
38:08
Speaker 5: the mill copyright case. It doesn't set any new copyright law.
38:12
Speaker 5: It doesn't set any new precedent, and that's why I'm
38:15
Speaker 5: not super concerned about the fact that maybe the jury
38:17
Speaker 5: got it wrong. Jury verdicts don't set precedent, and so
38:21
Speaker 5: the law will continue to be the same man the
38:23
Speaker 5: next jury might have a completely different view of a tattoo.
38:27
Speaker 5: But in all cases like this that come back to
38:31
Speaker 5: this fundamental proposition, the courtroom is not a neutral playing ground.
38:38
Speaker 5: It is shaped by the attorneys on either side. And
38:42
Speaker 5: there are attorneys who are really good trial lawyers, who
38:47
Speaker 5: are really good in a courtroom, and who can shape
38:51
Speaker 5: the case and the jury's verdict of the case in
38:54
Speaker 5: a manner that benefits their client. And there are lots
38:58
Speaker 5: and lots of attorneys who don't fit that bill, and
39:02
Speaker 5: that's more often than not the real explanation for why
39:07
Speaker 5: a particular case comes out one way or the other.
39:11
Speaker 5: For people who simply hire lawyers without considering, well, if
39:15
Speaker 5: this case goes to trial, how good is my guy
39:18
Speaker 5: my girl going to be in the courtroom doing mono
39:22
Speaker 5: amano battle And they simply don't consider things like that,
39:26
Speaker 5: And that's a mistake, and you get what you deserve
39:30
Speaker 5: when you make that kind of mistake, and you don't
39:32
Speaker 5: hire a really good trial lawyer. And you know, I
39:36
Speaker 5: wasn't there for the trial, but based on what observers
39:38
Speaker 5: did say and everything I've heard about the case, it
39:41
Speaker 5: seems to me that the combination of a celebrity defendant
39:45
Speaker 5: and the defendant out lawyering the plaintiff may have led
39:49
Speaker 5: to what, at least these judges on the Ninth Circuit
39:53
Speaker 5: felt was a wrong decision by the jury.
39:55
Speaker 2: Thanks so much, Terry for those insights from an experienced
39:58
Speaker 2: trial Lawyerawrence Ross of Captain Mutchen Rosenman. And that's it
40:03
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