Judges Speak Out About Threat to Constitution

0:00The thing about AI for business, it may not automatically fit the way your business works. At IBM, we've seen this firsthand, but by embedding AI across HR, IT and procurement processes, we've reduced costs by millions, slash repetitive tasks and freed thousands of hours for strategic work. Now we're helping companies get smarter by putting AI where it actually pays off, deep in the work that moves the business. Let's create smarter business. IBM. When you're running a business, the best days are the ones where priorities stay on track. For midsize and large companies, that isn't always easy. Risk can touch multiple parts of an organization at the same time, often in ways that aren't immediately obvious.

0:44It might involve property, liability, or cyber. It could stem from regulatory requirements or challenges tied to a specific industry or the scale of an operation. At that level, managing risk becomes an ongoing discipline, not a one-time decision. At The Hartford, the focus is on helping businesses manage risk before it turns into something more disruptive. That means working with companies to identify where they're exposed, decide what matters most, and put practical standards in place so risk is managed as part of day-to-day operations. And when losses do happen, The Hartford can pair that risk control work with insurance coverage grounded in underwriting, risk engineering, and claims experience developed over time.

1:24Learn more at the Hartford.com slash risk mitigation. Wise is the smart way to manage the currencies you need around the globe. When you send money abroad using your bank, you could get hit with hidden fees and exchange rate markups. There's a better way. Try Wise. Wise uses the exchange rate you'd usually find on Google with no unwelcome surprises. Plus, most transfers happen in under 20 seconds, which means your money arrives in less time than you've been listening to me. It's simple and free to sign up when you download the wise app be smart get wise t's and c's apply

2:00you're listening to bloomberg law with june grosso from bloomberg radio rhetoric against federal judges has reached unprecedented levels with president trump calling judges incompetent crooked usa hating and monsters u.s attorney general pam bondy calling out individual judges who rule against the administration by name and the administration filing an extraordinary lawsuit against all the federal district court judges in the state of Maryland. Along with the rhetoric, threats against judges are surging. The U.S. Marshals Service has investigated close to 400 threats against federal judges in the first five months of this year alone.

2:46A group of more than 40 retired federal judges appointed by both Republican and Democratic presidents see this landscape as attempts to intimidate and pressure judges, sway their opinions, and shake the public's trust in the courts. So on Constitution Day, they released an open letter warning that the Constitution and the judiciary is under attack. My guests are two of those judges from the Keep Our Republic's Article III Coalition. Judge Andre Davis, formerly of the U.S. Court of Appeals for the Fourth Circuit and the District of Maryland, and Judge Paul Michel, formerly of the U.S. Court of Appeals for the Federal Circuit.

3:29Thanks so much for joining me. Judge Davis, I'll start with a question to you. Tell us why you and the other retired judges decided to write this letter. Sitting judges, as you know, are bound by the Code of Judicial Ethics, can speak only through their written opinions and from oral opinions from the bench. And so they are greatly limited, in fact, prohibited, really, from responding to some of the more outrageous and extreme attacks on the judiciary and on individual judges. And so what my friend Judge Michel and his colleague Bob Sindrich decided was that this collection or community, if you will, of retired federal judges at this moment in our history were seeing the same thing, namely an unprecedented and very dangerous attack on the judiciary, on the third branch of government in the United States, and putting at risk not just the rule of law and our democracy as we know it, but the actual lives of judges and their family members.

4:40And so that's what prompted us to take what I think is an unprecedented step ourselves by coming together as a group of retired judges appointed by presidents from both parties to speak with one voice and call attention to the danger that is not just implicit but unavoidable in the kinds of rhetoric that are being used and the direct attacks on the judiciary and the rule of law. And so we're speaking with one voice to, one, educate the public and to speak out in support of our colleagues who work day in and day out to do the people's work in dispensing justice. Judge Michelle, so President Trump has verbally attacked judges who ruled against him.

5:33He's called them radical left lunatics, crooked. The U.S. Attorney General Pam Bondi has called out judges by name who ruled against Trump's policies, also calling them similar names. What can you as retired judges do to stop this criticism and this attack that's coming from, you know, the top of the executive branch? Well, my hope is that if the citizenry can be better educated about the proper function and duties of judges, they will see that the threat to judges is really a threat against their own rights being protected by courts. Courts have to be independent of political pressures, whether from the White House or the Justice Department or elsewhere.

6:20And that is what's under attack now. And we think that we have unusual credibility because we're so nonpartisan, nonpolitical, or you could almost say bipartisan, because we have about half our judges appointed by Republican administrations and half by Democrat administrations. and we're enormously diverse personally. But as Judge Davis rightly says, we're completely united in being horrified at the status quo, feeling like this is a moment of grave danger for our country, our democracy, and the rule of law. When you come right down to it, at the end of the day, either the written law is going to control or what the executive wants is going to control.

7:06Is it the rule of law or the rule of a king? That's what really is at stake here. And we think that the shrill attacks such as those you cite in quote can be discouraged by the media and the citizenry objecting loudly to that kind of language, whether it's from congresspersons calling for impeachment of a judge simply for doing his or her job and ruling on a case or coming from the white people. House or the Justice Department. And this is a moment of enormous danger for our country. One of the problems is the citizens have been very much misled. Too many of them are not well versed in understandings of basic constitutional government procedures and structures in our country.

7:56So, for example, the most important thing citizens need to realize is the job of a judge is not to promote the agenda of any president or any political party or any other political leader. The job of the judge is strictly to apply the written law, the precedents and the statutes to the case in front of him. And finally, I think the judiciary is at its most valuable and most important when it serves as a check, just as the founders expected. Checks and balances is the phrase we often use, so that if the executive does something that's unlawful, the judge puts a halt to it, and the courts say that can't continue.

8:39So they issue injunctions, and the executive has to stop doing the illegal things, and of course they can continue with all the things that are lawful. So that's really the bottom line here. So the administration continually runs to the Supreme Court when lower courts hem in its agenda. And on more than a dozen occasions since the new administration came in, the Supreme Court has lifted an injunction issued by a trial judge who had said that the administration was at least probably acting illegally. And sometimes the court offers a few sentences, sometimes nothing. And I'm wondering if that gives the average person a distorted view of what the lower courts are doing in limiting the administration and what the Supreme Court is doing in allowing the administration to move forward?

9:32Well, you know, you've put your finger on something that's very, very frankly disheartening about the current legal landscape. The point is that every federal district judge, without exception, who has ruled against some policy of this administration, was acting in absolute good faith in his and her attempt to interpret not just statutory law, not just constitutional law, but the Supreme Court's own precedence. That's what the federal district judges around the country have been doing for the last seven or eight months. And in those instances, many of them, I would even say most of those instances, where the administration has appealed those adverse decisions by federal district judges, in most instances, the federal appellate courts, of which there are 13, the federal appellate courts have largely left in place the orders of the district judges.

10:46So what we see in the so-called shadow docket, I'm sure most of your listeners are familiar with that term by now, is that the Supreme Court is reversing the decisions in large part without without explaining how or why those decisions are being reversed. And so that leaves, you know, in the mind of many lay people, this very distorted view somehow that the lower federal courts, the district judges who hear from the parties, hear from the lawyers, consider the evidence, make a ruling, which is then left in place by the intermediate appellate court, and the matter gets up to the Supreme Court. And the Supreme Court, in one or two sentences, as you say, reversed that decision.

11:40Well, a lot of people, you know, on the street, not versed in the law, somehow are persuaded that the lower court judges are somehow against the administration. And as Judge Michelle just very poignantly pointed out, all the judges are doing is trying their best to apply the law. And so it deserves justice, in all honesty, to leave in the minds of people that somehow the Supreme Court is protecting this administration from lower court judges. And that just feeds into this misinformation, this distorted view that so many in high office continue to create, that the judiciary is full of lunatics and activists and nothing could be further from the truth.

12:36So hopefully in the fullness of time, hopefully not too far in the future, This landscape that's been created through the procedural and processes that have been employed will see the light of day. And one of the things that the Article III coalition is trying so desperately to do, to continue to educate people about the role of judges, the role of the judiciary, how the judiciary works, the right to an appeal, and how reasoned judgment is the coin of the realm when it comes to judiciary. And Judge Michelle, Justice Neil Gorsuch recently admonished lower court judges not to so-called defy the Supreme Court.

13:21And Boston Federal Judge Allison Burroughs said that it was unhelpful and unnecessary to criticize district courts that are working to make sense of Supreme Court orders that are not models of clarity and have left many issues unresolved. And another judge said, I didn't understand that the orders on the emergency docket were precedent. I mean, what about a Supreme Court justice calling out district court judges? Well, one complexity that the public doesn't understand, but it's rather important, is that nearly all of the injunctions that have been issued by the district judges around the country in these hundreds of suits challenging Trump administration actions are very preliminary.

14:05They're actually called preliminary injunctions. And that's because there hasn't yet been a trial. There hasn't yet been a final resolution of disputed facts. So these are truly preliminary in the sense that the district judge is making a prediction, a judgment, that likely the challenger will win over the administration's defense. But it's a speculative judgment. I'm not defensive of the Supreme Court and the extent to which they've intervened. But it is important to recognize that they aren't saying the administration was right and the district judge was wrong. What they're really saying is we don't know for sure yet, so we're going to delay a remedy until there's been actual fact findings and what lawyers call a final judgment.

14:56But beyond that, it is certainly true that some of these orders have no reasoning coming down from the Supreme Court. Others are very terse and sometimes unclear. I don't think it's helpful for Judge Burroughs and the Supreme Court justices to get in a public shouting match, in effect, although, of course, they did it in writing. But she has a point. The district judges are striving to apply the law faithfully and impartially. And I think usually they get it right, and particularly where they're upheld, as has been true in a number of these cases by the Court of Appeals above them, the Supreme Court ought to be very hesitant to jump in and overrule both of the so-called lower courts, as the Constitution calls them, the inferior courts, which is a very unfortunate phrase because they're not inferior.

15:48But in terms of the admonition from Judge Gorsuch, I don't know what he's talking about. I don't see any judge, including Judge William Young in Boston, as being defiant, as refusing to follow some clear direction from the Supreme Court. So I'm not quite sure what he's referring to, but it's not very helpful. And it's a further demoralization of the district judges who do 90 % of the work in the judicial system and who should be respected and supported by the public and by the rest of the judicial establishment and not pilloried as if they're rebellious children or something because they're not.

16:28Coming up next, the effect of all those six to three Supreme Court decisions on the emergency docket. You're listening to Bloomberg. Support for the show comes from Public.com. If you're actively involved in your portfolio, you probably catch yourself repeating the same actions. Buying the dip, manually sweeping idle cash, putting on a hedge. On Public, you can now create AI agents that handle all these tasks on your behalf. Just describe what you want to do in plain English. like if the VIX hits 25, buy a put option on the S &P 500. Or if my cash balance goes above$20 ,000, move the excess into my direct index.

17:05You approve of the workflow and your agent handles the rest. Monitoring the market, watching for your conditions and executing your strategies exactly as defined. An investing platform driven by your intent, not just your clicks. You can also get full read and write access to your account via the public API. Go to public.com slash market and fund your account in five minutes or less. That's public.com slash market. Paid for by Public Investing. Brokered services by Open to the Public Investing, Inc., member FINRA and SIPC. Advisory services by Public Advisors, LLC, SEC Registered Advisor. Complete disclosures available at public.com slash disclosures.

17:46Ask yourself, what are your best people spending their time on right now? Expense reports, receipt chasing, month-end close that takes weeks. You become what you spend on, and that's not what you're building toward. Brex is the intelligent finance platform that eliminates that work before it starts. AI agents that handle the manual stuff automatically, so your team can spend their time on what actually compounds. It's time to get Brex AF. Learn more at brex.com slash AF. A burst pipe. A dead water heater. The AC calling it quits. Who do you call? HomeServe is an easy way to handle unexpected home repairs.

18:26With plans covering stuff, basic homeowner's insurance usually won't. Instead of scrambling for a contractor, you make one call to get the repair process started. Join the millions of customers who trust HomeServe right now. Go to homeserve.com slash podcast for 50 % less your first year. That's homeserve.com slash podcast. Savings compared to renewal price void in Florida. I've been talking to retired federal judges Andre Davis and Paul Michel about an unprecedented bipartisan statement from more than 40 retired federal judges appointed by six different presidents across both parties speaking out about how the Constitution and the judiciary is under attack.

19:07And Judge Davis, I'm wondering about the effect of so many, perhaps most of these Supreme Court emergency decisions coming down six to three, down partisan lines, especially in this environment where judges are more and more being identified by the party of the president who appointed them, even at the district court level. So you'll hear, well, that judge is a Trump appointee. That judge is a Biden appointee. It seems like people are talking about a judge's political affiliations more than ever before. I think that's a very regrettable development in our legal ecosystem and in the media. The people apparently want to know that information.

19:59And of course, that information is available. One hopes, and frankly, I believe, as a judge appointed by two Democratic presidents, that is presidents from the Democratic Party, one would like to think that no one would ever imagine when I was an active judge that I made a ruling on the basis of the party identification of the president who appointed me. and frankly it borders on offensive to individual judges. I can share a very quick anecdote. When I was on the district court early in my tenure after having been appointed by President Clinton to the federal district court in Baltimore, I struck down the city's affirmative action plan as unconstitutional.

20:54And of course, while it was still much rarer than now, I think the lead in the newspaper was Clinton appointed judge strikes down an affirmative action plan. And I think it might have said a black Clinton appointed judge. Well, I was following the law. And that's what judges do. No judge calls the president who appointed him or her to check in on how the case should come out. It's absurd. It's offensive. But again, you raise a good point. This is the system we seem to be swimming in these days. And I hope that one day soon that will fall out of favor. Judge Michel, so what can you do as retired judges?

21:40What do you plan to do? Well, we can explain so that the public and the media and community leaders, including the business community and other sectors of our society have a better understanding and are in a position to fairly evaluate whether the complaints being made by high officials in the White House are accurate or not, and then to call out bad conduct by people who are attacking judges for doing their job. I couldn't agree more with Judge Davis about how hard every one of us tries, the minute we take the oath, to put behind us our personal opinions, our prior political affiliations, our party registration, our friendships, everything.

22:27Becoming a federal judge, it's almost a little bit like becoming a minister or a priest or a rabbi. You're a part of a discipline based on written text, and you swear allegiance to that text. And you have to discipline yourself to not let other considerations enter into your decision making. And my impression, and I've sat with five different circuit courts, is that the judges do that very faithfully. I'd say 99 % of the time or more, the judges I sat with were not acting at all from a political standpoint. And I often couldn't even remember which party they were appointed under because it just didn't show up in anything that they said or wrote or how they voted.

23:15So we've got a real problem in this country if the public continues to have the view that Judge Davis is a Democratic judge and Judge Michelle is a Republican judge because it's totally false. We're judges of the law, not of our political background. And people need to understand that. And really, it's the great strength in the system. It means that every citizen can depend on his or her rights being defended in court by impartial judges because they can't be pressured by politicians to rule a certain way. They're going to rule based on the settled law, the precedents, as lawyers call them. And that's a great comfort not only to every citizen in individual rights cases, but also to every corporation.

24:04If the corporations can't depend on judges to treat them under the law fairly, they're going to stop taking risks, stop making investments, stop building factories. If they can't count on getting a fair shake from the federal judges if IRS comes after them or the Securities Exchange Commission or any other arm of the government, they have to be confident that they're not on an enemy's list in the White House, that they're going to be treated like any other company or individual by our judges. And the judges do a very good job, in my opinion, and from my experience, at being completely impartial, particularly at every level of the court system, except the Supreme Court, which does look more political to me than the other two levels of the court system.

24:51Judge Davis, Justice Amy Coney Barrett recently downplayed President Trump's criticism of federal judges, saying that U.S. presidents have a long history of criticizing the judiciary. But we talked before about how this administration even went so far as to sue the entire federal bench, all the district court judges in Maryland. Is this administration different in the way it treats federal judges and, you know, even the way it appoints federal judges, looking for more ideologues than for, you know, what used to be considered, you know, the ABA-approved judges? This administration from top to bottom absolutely treats the federal judiciary in ways that, frankly, no administration before now has ever treated the federal judiciary.

25:42The ad hominem attacks, the bituperative rhetoric, the name-calling, the takeover of the Justice Department, which for time immemorial, one of the pillars of our constitutional system, even though it's not written into the Constitution, there are a lot of norms that have come into play over these 250 years that are very important. One of which is the independence, not just of the judiciary, but the independence of the Department of Justice from the White House. These are structural strengths in our system. And so, yes, the attack by this administration on the judiciary as a whole, on individual judges, the name calling, the purposeful, willful, intentional undermining of the rule of law itself is very dangerous and nimble to constitutional democracy.

26:45And I hope that with our voices as the Article III Coalition, with the voices of so many law firms and law organizations and other civic-minded organizations, I hope this will stop and will return to a time when each branch of government showed the respect that was due it from all the others. To not just have one other thought, the vicious language that's been used against judges who've ruled in a way the administration doesn't like has to be understood as to its impact. It's not a question of the judges' feelings are hurt. We don't care about feelings when we're judges. We're not embarrassed to be criticized.

27:33We're criticized all the time. It's part of the job. We know that. We understand that. But the problem now is that when the president or the attorney General makes these vituperative attacks on social media, that thousands of deranged, fanatical, unstable individuals out there in the blogosphere may take it into their mind that they have to save the country by going to get rid of Judge Michelle or Judge Davis because they've ruled in a way the president says is terrible. So now the attacks on judges are coming from strangers. you can't even identify who it might be. In the old days, it was usually a losing litigant who was upset with the judge.

28:15So the Marshal Service could better protect us because they could see who the source of the threat was coming from. Now they have no way of knowing or predicting. It makes it much harder for the very able Marshal Service to effectively protect judges. So this is a grave threat to the functioning of our democracy because if judges are terrified, no matter how brave they are, there's a danger that subconsciously it could influence their rulings and make them, so to speak, pull punches for fear of being the target of some deranged person who would try to kill them or harass their family or whatever.

28:54So it's not a question of hurt feelings from sharp criticism. It's a question of actual incitement to violence. And the Marshal Service is fielding more online threats to judges than ever before. Thank you both so much for joining me today. That's Judge Paul Michel, formerly of the Federal Circuit Court of Appeals, and Judge Andre Davis, formerly of the Fourth Circuit Court of Appeals. They're both part of the Keep Our Republic's Article III Coalition. State of Utah versus Tyler James Robinson. Could you state your name? Tyler James Robinson. 22-year-old Tyler Robinson appeared in court for the first time on Tuesday, facing aggravated murder charges as prosecutors seek the death penalty against him for the fatal shooting of conservative activist Charlie Kirk.

29:48Utah County Attorney Jeff Gray explained the aggravating factors in his decision to pursue the death penalty. The state is further alleging aggravating factors on counts one and two because the defendant is believed to have targeted Charlie Kirk based on Charlie Kirk's political expression and did so knowing that children were present and would witness the homicide. Robinson is charged with seven counts in all. Joining me is Bloomberg legal reporter Madeline Meckleburg. Madeline, tell us about this first appearance by Robinson. So Tyler Robinson came before a judge for the first time this week, and it was a virtual appearance in a courtroom, which is pretty standard, apparently, for criminal cases in Utah County where he was charged.

30:38And he appeared via Zoom from the jail, and the judge who will be presiding over the criminal case moving forward read the charges allowed to him, informed him that there was a possible sentence of the death penalty associated with those charges. and he asked him if he had an attorney yet and he does not have a lawyer for him yet. The judge said based on his financial status, one will be appointed for him and that's something that we can expect to happen in the next few weeks here. And from what I understand, it has to be an attorney that's rule A qualified, meaning an attorney who's qualified to deal with capital cases.

31:15So that limits the attorneys available. Did Robinson enter a plea? No, we're not going to see him enter a plea for at least a few weeks. The way that things work in Utah, the next hearing is also going to be virtual, meaning that Robinson will be zooming in from the courthouse. And they'll be discussing whether or not he wants to waive his right to a preliminary hearing. This is a hearing where they would talk about whether there's enough validity to the charges to move forward to an arraignment, which would be yet another hearing where he would actually enter a plea to the charges before him.