Trump vs Federal Judges, Retaliatory Redistricting & Tattoo Lawsuit

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1:59And the country's chief law enforcement officer, Attorney General Pam Bondi, has repeatedly attacked federal judges. They're deranged is all I can think of. I cannot believe. I think some of these judges think they are beyond and above the law, and they are not. We are in court every day fighting against these activist judges. We're not going to stop. Many of them should be recused from these cases. They will be recused from these cases. We're appealing them. Look at Chuckin. Look at Judge Chuckin with the EPA trying to control our money. Judge Chang trying to control the money of the U.S. aid.

2:36Judge Reyes, look what she did to Pete Hegseth. These injunctions have allowed district court judges to be emperors. They vetoed all of President Trump's power, and they cannot do that. The Justice Department went from rhetoric to legal action, filing an unprecedented lawsuit against all 15 federal district judges in Maryland over an order that grants a two-day stay of deportation to migrants who file habeas corpus petitions. This week, Maryland's federal judges responded by asking a court to dismiss the lawsuit, saying it was an assault on the separation of powers. My guest is retired federal judge Andre Davis.

3:21He sat on the U.S. Court of Appeals for the Fourth Circuit, and he's one of more than 40 judges working with the nonpartisan group Keep Our Republic's Article III Coalition. Thanks so much for joining me, Judge Davis. You were once a federal judge in Maryland. What's your reaction to the Trump administration suing the entire federal bench in the state? Well, June, you know, I don't know that the language exists, honestly, to express my reaction. The words that have been used, of course, unprecedented, extraordinary, all of which is true. But honestly, I don't have a rhetorical device myself to capture just how extraordinary it is for the executive branch to actually file a lawsuit, a purported lawsuit against an entire district court bench, naming each of the individual judges in their official capacities over the court's use of a fairly routine administrative order.

4:29It's just off the charts extraordinary. That was my initial reaction. And the more I've thought about it over the last two weeks, that reaction has really solidified inside me. This suit is about a standing order by the chief judge that stopped the administration from deporting migrants who filed a habeas petition for two days. The Maryland judges say that these kinds of temporary stays are common and pointed to similar stays in the Fourth Circuit. But the Trump administration says it's extraordinary. What's extraordinary is the administration's decision to challenge the order through the means of a purported lawsuit.

5:12The order is absolutely routine. As you just said, the Fourth Circuit, the Ninth Circuit, a number of circuit courts of appeal use these kinds of standing orders to manage their docket, to pace the work, as well as a number of district courts around the country. So this is as routine as it gets, honestly. And the idea that somehow this is different because it requires a two-business-day hiatus to give a judge a full opportunity to consider a request for emergency relief, as I say, the rhetoric to capture the extraordinary nature of this act by the administration honestly just doesn't exist. Do you see this as a ratcheting up of the Trump administration's assault on the judiciary, or is it an attempt by Trump to further expand executive powers or both or neither?

6:15I'll have to leave that for others to judge. What I can tell you is that, one, aggressive enforcement of the executive branch's priorities, that's a decision for an administration as to how they wish to pursue their priorities. What's not for any administration to do is to call into question the rule of law, the legitimacy of courts, and the separation of powers, which is exactly what this action does. If they want to be aggressive, they can be aggressive, and they are aggressive. But the court is entitled, and not just entitled, but the court is duty-bound to protect its jurisdiction to ensure that it can fairly, deliberately, unbiased way decide the disputes that come before the court.

7:08And so an administration that sets up a system in which an effort can be made to deprive the court of jurisdiction, if that's what's happening, by these rushed removals, then the courts have a duty to make sure that that jurisdiction is protected. I want to go over some of the arguments the judges make in their dismissal motion. As you referred to, they argue that the lawsuit is a violation of the separation of powers. Quote, a lawsuit captioned Congress versus executive or vice versa would be dismissed in a heartbeat. A suit effectively captioned executive versus judiciary fares no better. Well, first of all, how can the United States sue itself, right?

7:55I mean, it's like this part of the United States doing that part of the United States. It cuts to separation of powers in this way. The co-equal branches of government are co-equal. Each has primacy in its lane, and the judicial lane is the adjudication of disputes, both between the government and non-governmental actors, as well as between private parties, including corporations, nonprofits, and individuals. That's how the system is designed. That's how it has worked. for nearly 250 years. And now we have this situation where one part of the government claims to be able to coerce another part of the government to do what it wants.

8:47Think about it, Jim. Just take a step back from it for a moment. Here we have the executive branch asking a single district judge from somewhere in the country to police the administrative practices of another group of federal district judges. I mean, it's enough to give you a headache. That can't possibly be consistent with separation of powers. The executive branch is purporting to capture one part of the judicial branch to use as a puddle against another part of the judicial branch. Thomas Jefferson is turning over his grave. So another argument that the Maryland judges are making is that the court is shielded under sovereign immunity and that the judges and court clerks are protected under judicial immunity.

9:48Absolutely. Full stop. In my judgment, there's simply no legitimate response to that other than that's correct. It's absolutely correct. There's just no answer to it. Because all the judges in Maryland are being sued here, the Fourth Circuit appointed a judge from outside the circuit to hear the case. So the circuit appointed Virginia Federal Judge Thomas Cullen, a Trump appointee, to handle the case. He's only been on the bench since 2020, and he hasn't handled any high-profile cases. Any idea why he was chosen? No, I don't. I can tell you generally what the court tries to do when they have to choose judges who are willing to go out of district or out of circuit for a special assignment.

10:41They look at, I think, number one, frankly, whose workload at the moment will allow that judge to take on a little bit of extra work. I myself, in fact, on two separate occasions, when I was on the Fourth Circuit, I volunteered and was appointed by the Chief Justice to sit as a visiting judge in the Third Circuit in Philadelphia in a couple of cases where the entire bench of the Third Circuit, all 17 judges, for a couple of reasons, were recused from hearing the case. So the chief justice appointed myself and two other visiting judges to go to Philadelphia to hear arguments and decide the case.

11:24So it does happen from time to time. And as I say, one of the first considerations is who among you can devote additional time to this extra work? And I suspect that that was a principal reason. But, you know, any district judge willing to do it and able to do it would have been fine, I'm sure, to the fourth circuit. The Maryland judges also say that this wouldn't be the last such lawsuit if it's not quickly rejected. Do you see this as a broader attack by the Trump administration on the federal judiciary as sort of the first step? Or is it more isolated, targeting the Maryland bench, which has handed down a lot of decisions curbing the Trump administration in high-profile cases like that of Kilmar Abrego-Garcia?

12:11I frankly think it's impossible to believe, based on what has occurred up until now, that this was a one-off. That if this were somehow to succeed, it's hard to imagine that this practice wouldn't see itself duplicated around the country. Why was Maryland chosen in particular here? I don't know. I can't answer that. there have been rulings that the executive branch has objected to all over the country on a number of issues, including the issue present in this instance of expedited removal. But I don't see a world in which if this case somehow succeeds, even succeeds at the motion to dismiss stage, which I don't believe it will, it's going to be duplicated around the country if it succeeds here.

13:07So you think that the motion to dismiss will be granted? I do believe that. I do believe that. The Trump administration basically appeals every decision that goes against them. Do you think that this case will end up at the Supreme Court? That's a good question. If they choose to appeal, just as I believe the case is going to be dismissed at the district court level, I believe that the Fourth Circuit will reject any appeal that's taken. And frankly, I believe that the Supreme Court will reject any appeal that is sought from them. But whether such an appeal or a petition for cert eventually gets filed is entirely up to the Department of Justice and the administration.

13:53And Judge Davis, why did you join Keep Our Republic's Article III coalition?

14:23use to educate the public to speak on behalf of the federal judiciary, which we all love and respect and honor so much. The idea that we can have some space where people can hear us, question us, check out answers against historical sources, and assess our experience to lift the public's understanding of the importance of the rule of law, the separation of powers, the imperative of judicial independence. All of that together, June, is what immediately prompted me to say, yes, I want to be a part of this. I want to add my voice to those of other retired judges who will raise the understanding of the public.

15:13And that's really our audience, the understanding of the public about how courts work, the rule of law, and the foundations of our democracy, because there's a real need for additional efforts in those regards. We are not the only ones doing this work, and we are not doing all the work that needs to be done in this area. But I think retired federal judges have a legitimacy and a claim to legitimacy that I think many, many members of the public will respect, listen to, and learn from. And so that's why I'm very happy to be a part of this extraordinary coalition. Thanks so much for joining me, Judge Davis.

15:53It's great to get a judge's perspective on these issues. That's retired federal judge Andre Davis. This is the Bloomberg Tech Minute brought to you by ChatGPT. Now with ChatGPT Work, I'm Carol Masser. Walmart has become a major player in the burgeoning business of quickly fueling electric vehicles, speeding past Costco as well as more established charging companies. Bloomberg's Kyle Stock writes, as of June, Walmart has opened about 46 high-speed public charging stations with 380 cords. There are now EV chargers at about 326 of its U.S. stores, including adding this year four high-speed charging stations in Bentonville, Arkansas, even though the state has been a laggard in transitioning to electric vehicles.

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19:34Trump has pushed to get Republican lawmakers in Texas to redraw the state's congressional maps in favor of the GOP, saying it would add as many as five seats for the party. Five, I think we'll get five. And there could be some other states. We're going to get another three or four or five in addition. Texas would be the biggest one, and that'll be five. And when Governor Greg Abbott announced his agenda for the legislature's special session that started on Monday, redistricting was on the list. That's led prominent Democrats to talk about countering Texas with retaliatory redistricting in blue states.

20:15House Minority Leader Hakeem Jeffries is reportedly exploring the possibility of redrawing House maps in California, New York, New Jersey and Minnesota. And California Governor Gavin Newsom has already laid out two options for retaliatory redistricting in that state, saying Democrats have to be aggressive. They're playing by a different set of rules. They can't win by the traditional game, so they want to change the game. We can act taller than now. We can sit on the sidelines, talk about the way the world should be. or we can recognize the existential nature that is this moment. Joining me is elections law expert Richard Brafald, a professor at Columbia Law School.

21:05Rich, states are required to draw new congressional maps once a decade after each census. How unusual is it to redraw the maps at this time? This kind of what might be called mid-cycle resisting is very unusual. It's not that it's never happened before. It has sometimes happened, although it's unusual it happens. Sometimes it happens when a new party takes over a state legislature that they hadn't had at the beginning of the decade. Here is actually talking to states where the Republicans were already in charge of doing the districting in 2021 and saying, well, I want you to do it even more so now.

21:39And it's very rare that it's being done so kind of blatantly, nakedly partisan purposes. There usually is some justification for it. But this time, I mean, it's being announced as purely partisan, purely gerrymandering, rather than any claim that there was kind of a problem of representation with the older districts. And the Supreme Court has said partisan gerrymandering is OK. Racial gerrymandering is not. That's correct. I mean, I guess technically what they have said is that partisan gerrymandering is not unconstitutional. They don't endorse it, but they have said that there's nothing the federal courts can do about it.

22:17Racial gerrymandering, districting designed to help one race over another, that does raise a constitutional concern. But race and party are often very closely intertwined. And in their most recent cases, the court has basically said, if the state says it's partisan, because partisan is constitutional, we're going to defer them. We're going to put a very heavy burden of proof on the other side, challenging it to show that it's not partisan, it's racial. And here, at least what's going on in Texas, the announcement is so clearly that it's partisan. And it seems to be that. But I think it would be very hard to show that even if there's a racial component to it, it would be very hard to show that it wasn't primarily partisan.

22:55Texas Republican Governor Greg Abbott said his decision to put redistricting on the list for the special session was because of a letter he got from the Justice Department that alleges that four of the current districts were racial gerrymanders that violate the 14th Amendment. I mean, does that letter make any sense legally? Is it pretextual? It sure seems that way. I mean, these districts were adopted two years ago, and they were designed to provide representation for minority groups, I think, for African-Americans and Latinos. I think they were primarily Latino districts. The Constitution does not forbid that, and the Voting Rights Act, actually, if it doesn't require that, at least it promotes that idea of fair representation for minorities.

23:40So no one has ever challenged those districts. And basically, the current administration seems to view that anything that even thinks about race is unconstitutional. That's not been the standard until now. The Supreme Court standard is that race can be taken into account in districting. It just can't be the overwhelming factor, the predominant factor. And I think you would have to show that these districts, of course, This did help create minority representation, but you would have to show that that was the overwhelming factor as opposed to other factors, including respect for political subdivision lines following the course of pre-existing districts.

24:15It does seem as though this was designed purely to give a justification for a re-redistricting. Without anyone going to court and suing, no one has gone to court to sue to challenge those districts. If anything, there was another lawsuit that was brought from the other perspective saying that some other districts in Texas violated the Voting Rights Act in terms of limiting minority representation. And the state had been defending them, saying that the state's districting plan was entirely constitutional. So the state has now kind of flipped its position, you know, moving away from its position that everything is fine and is now considering redoing the district.

24:49Rich, this could also be risky for Republicans, not just legally, but at the ballot box. Here's what former Texas Congressman Beto O 'Rourke said. And then it may come back to bite these Republicans because in order to create more competitive districts that they can win, they're going to have to lose some Republican voters in current Republican strongholds. So there may be an opportunity for Democrats. Do you see a real risk here? It depends on exactly what the Republicans do. But I think if they take some districts where Republicans are strong and move some Republican voters into nearby districts currently held by a Democrat but have been trending Republican, I think what happened is that in the 2024 election, a lot of districts that are held by Democrats voted for Trump.

25:37And so I think what they're thinking is that they may be able to move some Republican voters from what are clearly Republican districts into districts which have been Democratic districts, but might tip Republican with a few more Republican voters. So that's the idea. Well, I've seen numbers. They think they can find as many as five districts that look like that. What O 'Rourke is getting at is they're risking the possibility that not only won't these districts tip, but by moving Republicans out of the other districts, they risk losing those districts. A lot will turn on what the political climate is next fall in 2026.

26:13If it's a Democratic year, that is a real risk. If it's not, then the Republican strategy may work. But, you know, at some point, there are only so many Republican and Democratic voters in a state. And the idea is to try and arrange them in such a way to maximize your party's vote. But people don't always vote exactly the same each time. And it could be that some voters switch back. And the Republicans did very well in what had been Democratic districts last time. Will they do as well next time? There's also a risk of retaliation. Minority Leader Hakeem Jeffries is reportedly exploring the possibility of redrawing House maps in California, New York, New Jersey, Minnesota, and Washington.

26:55And California Governor Gavin Newsom has been pretty blunt about saying, we're going to try to redistrict here in California. I think it would be very hard to do this in California because they have a constitutional amendment that governs how redistricting is done. They would basically have to either supersede that amendment with a new amendment that either forever or for one time only would change the districting process. That's really hard. I mean, I think they'd have to get something through the legislature and to the voters, and then the voters would have to approve that. And then they'd have to go and then write a new plan.

27:29And, you know, that's a big lift. And whether or not they could get a constitutional amendment to the voters in time this year and whether the voters would approve it. I mean, it's also pretty blatant. And although California runs Democratic, it's not clear to me that the voters would approve this. I mean, they might. And then, of course, they'd have to write a plan in a way that doesn't follow the constitutional pattern they have there. They have to come up with an entirely new system. So I guess they have to take it away from the Constitutional Commission and give it to the legislature, either always or this one time.

28:00I'm not sure what the proposal is. And what about redistricting in other Democratic-controlled states? Well, again, New York also has adopted a new constitutional format for redistricting, and that, I think, currently governs. I don't know about the other states. I think in the other states, it may be possible that the legislature, would they have a Democratic legislature and a Democratic governor? You mentioned Minnesota. I think the Minnesota legislature is very closely divided. And I think a key Democrat was just convicted of a crime and may have to resign, in which case it's not clear the Democrats have the Minnesota legislature.

28:35You mentioned Washington state. That might be possible. And you're talking about picking up maybe one seat, I think, in a place like that. The term gerrymandering was coined back in the 1800s, so it's been around for quite a while, and both parties are guilty of gerrymandering. But has it gotten worse lately? Oh, absolutely. Basically, because the computer power has gotten so much better, it has become much easier for computers to generate multiple maps, hundreds of thousands of maps that all comply with one person, one vote, and use pre-existing voting or voter registration data to maximize the number of Republican or Democratic districts.