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tv   National Judicial College on Verbal Attacks Against Courts and the Media...  CSPAN  December 14, 2018 8:00pm-9:23pm EST

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you feel different here than anywhere else. [captions copyright national cable satellite corp. 2018] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit] announcer 1: our visit to memphis tennessee -- memphis, tennessee was c-span's cities tour. we have traveled to u.s. cities and you can watch more of our visits on up, a conference examining verbal attacks against the media and courts. jamesike pompeo and mattis on meeting with their canadian counterparts. after that, newsmakers with brock long starting at 10 clock p.m. and the communicators with ajit pai. next, part of a conference on verbal attacks on the judiciary and the media. judges outlined their concerns with the president's criticism
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of the judicial ranch and his questioning of their rulings. [applause] >> thank you for that introduction. by settinge to begin the stage for today's discussion. we are here to speak about attacks on judicial independence and what that means for the courts and american democracy. there's going to be a lot to say. many of the judges have personal experiences to draw from on this issue. some of the most high profile attacks have come from the president. remember when donald trump issued the first travel band executive order. lawsuits came quickly and after issued a temporary
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restraining order, the president attacked him and the judiciary, saying the opinion of this so-called judge, which takes law enforcement away from our country, is ridiculous and will be overturned. since then, the president said the courts should be blamed for terrorists attacks. he has said the ninth circuit is biased. he has raised claims of bias on the campaign trail when he judge gonzales was biased because of his mexican heritage. some of his recent comments have drawn a response from chief justice john roberts who responded to some attacks asserting we don't have obama judges or trumped judges. we have judges trying to do their job. these are the most well-known threats to judicial independence we have seen. they are not the only part of
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trend. for his part, donald trump also pardoned sheriff joe arpaio after he was convicted of criminal contempt for violating order.'s court houses have seen a surge in immigration arrests. the judicial nomination process has become politicized. state courts, which get less attention, have seen attacks. in 2018, the brennan center identified 60 bills in 18 legislatures that would have weakened the independence of the state judiciary. in west virginia, the legislature led an effort to impeach the state supreme court. a few years ago, kansas passed a law that threatened to defund the court ruled
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in a particular way in a case. judicial elections have attracted millions of dollars in spending by special interests along with misleading attacks on records. 20 states have one justice on their supreme court that has been involved in a million-dollar election. how new is all of this? what do these trends mean for the judiciary and democracy? we have a set of judges here to discuss these and other questions today for what is going to be a rich and interesting conversation. i could spend the full time have describing their many accomplishments. i'm going to refer you to the program and i'm going to introduce everyone now. have california's chief justice. moreerved as a judge for
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than 20 years and is the second woman to serve as chief justice. next to her we have andre davis. serving on the u.s. court of appeals for 18 years. as the cityd solicitor. hudson, anin associate justice on the supreme court of north carolina. she was elected in 2006 and after ad in 2014 bruising primary challenges we will discuss. her, a senior judge in the u.s. district court for the district of columbia. he served as a district judge since 1987 and chief judge until 2013. he is a former presiding judge on the foreign intelligence court. an associate justice on
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the supreme court of florida. she will be retiring next month. in 2012, she and other justices on her court were also subject to an organized attack when they stood for election in her state. next is judge james robards, a judge for the western district of washington. he served since 2004 and is a said to national attention in 2017 when president trump attacked him for his decision in the travel ban litigation. finally, we have judge shira sheindlin. she served as the did court judge for the southern district of new york. she is currently of counsel at stroock, stroock, & lavan, a mediator and arbitrator, and adjunct professor of law. i'm going to move so we can have a proper conversation.
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i am going to begin by turning to you, judge davis. can you respond to the statements and actions that we have been seeing, particularly from president trump with respect to the judiciary, and how concerned should we be? judge davis: my colleagues voted me to go first because after 30 years on the bench, they enjoyed my celebration of the restoration of my first amendment rights. [applause] alicia: welcome back. judge davis: thank you. your honors, colleagues, in my view -- and i am no alarmist -- the fact is, one cannot overstate the concern that we should all have for what is going on in this country and
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respect to the undermining fx of behaviors by elected and appointed officials aimed at the judiciary. one exhausts one's adjectives to describe the indecency, corrosive effect of democratic values and principles by what we see going on in this country. about 15 years ago, i was fortunate to be the sole american representative of a fact-finding mission that traveled under the sponsorship of the international bar association, to zimbabwe, at a time when many of you will recall, president mugabe unleashed a furious attack against the courts, defying court orders.
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i will tell you that being on the ground in zimbabwe and meeting with the judges, and hearing one supreme court judge say to our delegation, i was solicited by the minister of justice who told me in respect to a certain judgment, the court had issued, the president would not like to see anything bad happen to your family. i have visited frequently with judges from around the world, and i have heard them described to me in my former chambers in baltimore how in certain areas of the world -- many of you know this -- a judge who gets reversed on appeal will sometimes lose his or her position at the trial court level. i share these quick anecdotes just to say that while the united states of america is not zimbabwe, remember zimbabwe was not zimbabwe at the time these events occurred.
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zimbabwe was a shining light of democracy in sub-saharan africa. it was the bread basket of africa. the literacy rate in zimbabwe through the turn-of-the-century far exceeded that of any other country, including south africa, in sub-saharan africa. my point is that corrosive acts taken by high government officials that threaten the rule of law and the judiciary actually work. democracy is not self-sustaining. democracy takes care and feeding in the form of attention to democratic values. and when we stand by and do not raise our voices in response in strong opposition to attacks on the judiciary, we are putting at
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risk our constitutional structure and democratic principles. i do not believe that is an overstatement. let me point out three specific consequences to the attacks that we are experiencing these days. one is, of course, just the taint, the despoiling of our democratic values, the coarsening of civil and civic discourse. it looks ugly and it is ugly. number two, well i have no doubt about the courage of any judge, elected or appointed, and i'm optimistic about the courage and strong spines of the judges we have in this country, the fact of the matter is judges are human beings as well. constant attacks, constant
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attacks at the electoral level, in the state courts, constant belittling of judges at the federal level cannot help but have a wearying effect at best, and much worse consequences for some judges when this goes on responded to. finally, let me go home for a moment. there is that famous dissent by brandeis from olmstead, who talks about the government as lawbreaker and it seems like somewhat of a platitude. coming from baltimore, that is real, that is very real. given all the structural poverty we have in baltimore now, earnest efforts to bring about reform of our institutions including the police department, and given the need to address serious criminality, the fact of
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the matter is there are people, not just in baltimore, but all over this country, who draw their lessons from high-ranking officials. when people observe those who are privileged to serve disobey the law, criticize the courts, diminish the importance of the rule of law, that effect is felt all the way down the socioeconomic ladder. we cannot restore the trust in this country that is so desperately needed in our communities, particularly communities of color, when it comes to the law. when day after day, the members of those communities are seen high-ranking officials, including the president of the united states do what is being done to the rule of law, we all know this presidency is brought to us by barnum & bailey.
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[laughter] the fact of the matter is, the consequences are far more serious than we should allow to go unchecked. thank you for this opportunity. [applause] alicia: thank you. i would like to turn now to judge robart. if you could tell us about your experience being subject to an attack by president trump. i am sure you get criticized all the time but perhaps this was different. maybe you could reflect on the consequences you have seen. judge robart: i have certainly had my share of criticism. i will take you back to late january 2017. the president is sworn in the 20th of january.
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he unveils an executive order -- and i am from seattle and we have a lot of software companies so in my chambers it is referred to as travel 1.0. the state of washington had been seeing this coming, getting ready for a while, and they file that week, following monday, on a complaint on a complete random draw that i will note occurred when i was out of town. [laughter] it was assigned to me. i did what i think any of the judges here would do. i had a conference with the parties. i set a briefing schedule and i said, we will have a temporary restraining order hearing on friday, one week from the issuance.
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the decision was not hard to make on the law because the position taken by the administration was that any action, any action in immigration our national defense is unreviewable by the courts. they were very proud of it. interestingly, the very talented career justice department lawyer they sent to defend the lawsuit, when i read her that statement, looked up with me with a slightly pained look and said, "i have been instructed to say" -- that is the position of the administration.
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i went back to the job i do, deciding jury instructions for a copyright case involving real estate photos. we went off the bench at 5:00. i walked into chambers and there were a number of things that seemed out of order, one of which the phone was not being answered and everyone looked in shell shock. we had telephone calls. we have voicemail. we had email. we had telephone messages left on my home answering machine. within about 40 minutes of the temporary restraining order being posted, a hopeful person through a series of dead-end bots posted my name, address, birth date, our home address, my wife's name, and we started
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getting communications. what i want to stress with you now is what happens in the next 36 hours. go back to that january. president trump has been elected, he has got millions of votes, and made immigration a major issue during the election. that is obviously significant. you can judge because the marshals service keeps track of all of these. they are in existence in a database. the most common theme of them was -- who elected you president? that is criticism of the decision, i can understand that. i think all of us get criticized. the second one was -- how possibly can you defy the president?
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that one starts to be more troublesome to me because it reflects the topic that we mentioned several times, the lack of civics being taught. that is what my job is, making sure the constitution is followed, and if that means telling the president he is wrong, that is what i'm supposed to do. my personal favorite comes out in 12% of every communication we got -- when you run for reelection, i'm not going to vote for you. [laughter] you could not make this stuff up. it is now dark in seattle. we all go to bed. the president sends out his so-called judge message -- the opinion of the so-called judge which essentially takes law enforcement away from our
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country, is ridiculous and will be overturned. he could have said will have to be withdrawn, which is ultimately what happened, that not what he said. disagreement with my rulings, that is a constitutional right. there is no issue with that. i know some people say, you just need to get a thicker skin. this has gone on ever since thomas jefferson disliked john marshall's rulings. it is different when you say "so-called judge" is because the so-called judge is interpreted in the now next generation of communications i get, you are not a judge. you have no authority to do this. you must be stopped. i am not going to suggest that the president had some kind of personal animus against me, but when you call someone a so-called judge, you attack the judiciary.
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he may not even have wanted to convey that message, but that is the message 40 million twitter users took down, you were never authorized to issue this decision. that undermines the integrity and authority of the judiciary. i will speak in my own defense, which periodically when people want to engage on this topic, they will say the president got 38 million votes. how many did you get? my answer is 99. when something concerning the president passes 99-0, we will be equal. [laughter] i do not think that will happen in the near future. the character of the message, and the number of messages spikes at that point. saturday, i have a police car part in front of my house with
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its blue light flashing. your neighbors never quite know what to do. are they arresting you? should we protect you? what they did is brought out coffee and cookies and served it to the officers in the police car. the president did not stop at that point. he sent out another tweet the next night which basically says -- terrorists are flowing into our country and they intend to do you wrong. if something happens, blame it on the judge. he is responsible. it is a great insurance policy. it causes another change in the tone of the communications that come in. and it gets worse. the tone is now, you must be stopped. i have a personal risk in this.
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the president has told me my wife and children are in jeopardy. my safety is hanging in the balance and you are responsible. the unfortunate thing that involves the marshals, we must eliminate people like you to protect us. the president says this is a priority. that is attacking the integrity of the judiciary. terrorists were not flooding into the country. we all know that. secondly, to then say, i've got no responsibility, even if i'm the president, blame it on the judiciary. we don't have that authority and ability. secondly, it suggests we are going to do something that is creating national policy contrary to what should be done.
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i'm about done here. after those, we ended up with any number of death threats. over 100 of them are considered serious enough that the marshals went out and investigated the -- investigated. the marshals idea of a low-profile operation is a black suv, a second black suv, a third black suv. they come in their swat gear. god bless everyone of them because they would have done anything they could to protect me and my family. they're not protecting us from terrorists, from the drug cartels, which most of us think is really the problem. they are protecting us from mentally ill people who are seized on these things. people who are extraordinarily partisan and have been led to
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believe the judiciary is the problem and has to be eliminated. that is my experience. i will say the president has a right to criticize my decision. we are not immune to that. the manner of that criticism when it crosses the line and , becomes a personal attack on the integrity of the judge, i'm from the ninth circuit. i'm the western disctrict of washington. we now have a so-called judge in the southern district of california, a mexican judge, and in the northern district of california, an obama judge. giving people labels like that really undermines what we do. that is my view. [applause] allison: i want to turn to you next. you have been a federal judge
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since the 1980's. do you see what we are seeing now under president trump as something different or as a continuation? justice lamberth: his story is different in kind and it is very unfortunate. i've had every president since i took office in 1987 has criticized something i have done except president trump because i have not had a case yet to its i've had to rule against him. my time will come. i am sure. what he just described is different in kind than the criticism i've had. i will give you an example. when president clinton first came in, i was the first judge to strike down his health care task force.
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he had made hillary clinton head of his health care task force. under the advisory committee act, he had appointed her to head it. the statute said that if she was the head of it, the meetings had to be opened the public. they did not open them to the public. i said they had to make the minutes of the meetings public under the statute. there was a lot dispute about it at the time and a lot of publicity about it at the time because, they were trying to change all the health care laws in the country. the result of all that litigation, by march, when i struck down the whole mechanism the president had set up, the
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health care task force collapsed and had to be disbanded by may. i was at the white house at a reception in may and going through the receiving line, introduced myself to the president and he said, i know very well who you are. i thought that was fairly amusing. hillary actually doesn't speak to me. that was fairly interesting. at the same time, that was all very civil. at the same time i had this case, they had gathered at the white house. the question was whether there was bureaucratic bumbling or something more. they had gathered the raw fbi files of about 75 republican leaders like jim baker and people like that. they had brought them over to the white house, requested by the chief of personnel of security at the white house. the fbi had turned them over and there was a huge lawsuit by all of these republican officials whose raw fbi files they had
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brought over to the white house. i ended up allowing discovery into how this occurred and why it occurred. everything going on about that, i was being pillared and the press everyday. judges can't respond to that kind of criticism. i ended up, the only way judges can respond, is each discovery order, i ended up writing an opinion so that i explained why i was allowing certain depositions and certain discovery to go forward. when it all ended, i ended doing a memorandum granting judgment for the clintons saying it was all just a bumbling bureaucratic snafu that there was no evil intent ever, they were just a bunch of idiots that assembled these things. [laughter] and they didn't even know what was going on, but there had to be. or a to figure out what was going on.
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was, because that i was under such attack, i ended up writing almost 100 discovery opinions, which district judges almost never do read all of the discovery opinions are written by magistrate judges. judges around the country use these discovery opinions for every subject still today. everybody sites alexander versus is the mostuse it famous discovery opinion, even today, but that is how judges ispond one the president criticizing you. you responded writing that way, because the president will take that and use that as a response. you just heard what bob said, the president of the aba, the federal bar, and organized bar, are very good about defending
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the federal judiciary. we canrd what bob said, depend on the organized bar to defend us, and they speak up in our defense and defend our decisions. presidents frequently criticize judges. we understand that. we are appointed for life. here long after ,his next president is gone too so he can say whatever he wants to say. president clinton had plenty to say, president bush had plenty to say about me. they can say whatever they want, and i'm still going to be here because i am here for life. that is an arrogant way to say it, but they can say what they want and i'm going to do what i want. what bothers me more is the idea about,dre was talking about whether there is an effect
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on some of these personal attacks now of disrespect on the judiciary and the judicial function. and that is something different. and that is something that i think, traditionally what bar leadership has done, that the attorney general would have something to say about. unfortunately we have been in a posture the last two years where the attorney general either ,ouldn't or wouldn't or hasn't or had no effect on anything with the president. a new attorney general who has more effect remains to be seen, or whether that would have any actual effect remains to be seen. even whenionally, president obama made his smart remark at the state of the union that the supreme court whistled at, i think the attorney general can have a conversation with the president, that i think occurred after president obama confronted
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the supreme court to their face in an uncomfortable way. and i think that can have an effect when the attorney general does it, more than the president of the aba or something like that. i don't think those kinds of things have happened recently, and i think they should, and i hope the new attorney general may have an impact on those conversations that need to happen. hear from these justices from the state supreme problemsou'll see my and the two judges you heard from our minor in the scheme of things. real problem with independence and the judiciary is where judges have to run for office. i'm alarmed about what can ,appen in the state courts because in the federal courts i'm appointed for life, i'm
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going to outlast all these guys. i have been a judge 31 years, i have seen presidents comment go, and i'm still going to rule on what i think is right. there's a great luxury in life coming to work everyday loving my job, deciding what is right, and i just rule what i think is right. sometimes the court of appeals reverses me. that doesn't mean i was wrong, it just means they get the last word. [laughter] i wanted to pick up on appoint judge lamberth raised about how judges are constrained about how they respond to criticism. i would love to hear your reflections on constraints judges face, and what that means for the rest of us. >> i am the last of the four federal judges to speak and then we will hear from the state judges.
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i will try to not repeat too much of a we already heard, but give my perspective. howperspective is, ?onstrained are we really the code of judicial conduct says a judge cannot comment on a pending matter, but i don't think that means the judge cannot speak out when the question somebody asks them has nothing to do with a pending or impending matter. and when judges do say something on general questions, people learn, it is a way to educate everyone. toe judges should feel free speak on some of the general questions of law, civil and , not that come up
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before them, but before all society. i try very hard to walk that line. the press is always trying to get a comment and you have to say, i can't speak about that case at all. but if you ask me a general question about how it -- how a court operates, a la judges appointed, whatever the issue might be, i will give you a comment. i think it does further education. when you can't comment on your own case, all you can do is speak through your opinions, but sometimes that is not enough. story, i guessk we are all here partly because we have been attacked. i was a judge in new york who handled the big stop-and-frisk case that ended that practice as it was practiced then by the new department,lice which i found was unconstitutional. it was a very, very big case in
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new york. president trump is not the first executive to attack a judge, because when my opinion came out, the mayor said, this city will now blow up, crime will rise and it will be on that judges had -- on that judge's head. he was absolutely wrong. crime stayed low and lower even after stop-and-frisk ended. i went through the same thing you did, the personal home address was out there, the press was in front of the house, which was very disturbing, and the threat that go with so much publicity. back to the current environment, i was one of the early judges by then-candidate drop in the first presidential debate. he was asked about stop-and-frisk, and he said,
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there he bad judge, very bad judge, she hates bullies, -- she hates police, which had nothing to do with the issue. judge look at the facts and decide the case and don't have these biases that are attributed to them. so way back with candidate trump we got the early attacks on judges that have continued. if the the question is, judge can't comment on that matter because it is pending, who should speak out? this is a theme we have had throughout this conference. andin kalb spoke about it, three people who lived through events in their countries spoke about this by saying, can we sit idly by and let these things happen? and the answer is, of course not. there is an obligation on
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everyone, articulately the media, to step up immediately and defend what judges do. we have talked about the politicization of the courts, but it is a distorted view based on the supreme court. alluded to that. the supreme court is seen as super politicized because of the confirmation process, which is so public. and those are only nine justices, but there are 1000 federal judges and thousands of state judges who are not so politicized, by any means. caseswe get all kinds of and we decide them on the facts and the law and frankly, paul frankly,as little -- politics has little or nothing to do with 99% of the cases that come before judges. we are here today to talk about the interaction of the media and
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the courts. the media has not been great in one sense, constantly saying this obama judge or this judge appointed by obama, or this judge appointed by reagan, or this judge appointed by clinton, or a democrat appointed this judge, or a republican, labeling us in this partisan way. about these nine justices, everybody knows, but for the 1000 federal judges, most of them are not thinking about the president to appointed them, not at all, not at all. we have thousands of cases every day and we don't think about the president that appointed us, but the media will immediately label us and put us in a box that affects people's expectations about how that judge will handle an issue. and that expectation is often quite wrong, but it does set it up in people's minds that
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because you were a clinton judge, you will rule in a particular way. and that does denigrate the because over the 27 years i was in the federal most of my colleagues were true to the facts and the padsand these political they may have had, or the thoughts of the president to appointed them, are the furthest things from their mind in deciding a case. i think the media and courts need to discuss the appropriate way to describe what a judge does, which leads to the question of education. how much does the public understand about this? does the public know why we are not speaking out, to circle back to the original question, does isn't she wonder, why explaining why she granted bail to this guy who killed somebody?
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a judge's biggest nightmare, you give bail and somebody then commits a crime. and it is not your fault. you follow the law, you followed criteria for granting bail, but things happen. so the public needs to understand what judges do, and how they do it, and why they do it and why they can't speak out. people often say, why did you give up your life tenure, why did you leave the bench? was to be able to speak and write on these issues in a way i could never do before. of years i have been off the bench, i have tried to write on many issues involving the judiciary, judiciary independence, to speak frequently to lay audiences to educate them as to what judges do. [applause]
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ms. bannon: there is so much to discuss. we are going to shift gears to speak to some of the state court judges we have in the roundtable. set of videos of in someelevision ads state supreme court elections over the past few years. [video presentation] supreme court was have the -- judges on iowa's supreme court are liberal, ignoring our traditional values and legislating from the bench, imposing their values on iowa.
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what will they do to long-established iowa traditions? three of these judges are on the november ballot. but no on retention of supreme court justices. >> we want justice is to protect us. when child molesters sued to stop electronic monitoring, a law that allowed us to track child molesters near schools, supreme court justice robin hudson sided with the predators. hudson cited a child molester's right to privacy. toughe robin hudson, not on child molesters, not fair to victims. >> the most liberal place in tennessee is not a college theus not a big city, it is state supreme court. liberal democrats control lower court and threaten your freedoms. they advanced obamacare in tennessee, but you can fight back.
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vote to replace the tennessee supreme court. find the liberals on your ballot. connie replace judge clark. make your stand. ms. bannon: with that -- [laughter] quite a transition. we have one of the subjects of these very nasty attack ads, justice robin hudson, with us. love for you to tell us a little about this experience of being attacked, and reflect the appropriate and inappropriate ways to talk about judicial issues in the course of justice hudson: i'm still sitting on the supreme court of north carolina. it is our duties to
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speak out and educate the public and encourage respect for those institutions. i am happy tot a, give background about this experience. i was elected to the supreme court of north carolina in 2006. weike these federal judges, have to stand for reelection. i was up for reelection in 2014. inally the biggest challenge a nonpartisan statewide election is to get anybody to pay attention, so that's what i was doing. february is the filing, the filing period, seemingly out of nowhere a third person filed in the race, and when there are more than two people that file it becomes a statewide primary. i learned with nine weeks
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leading to the primary that i had an unexpected, statewide primary. the press starts sniffing around. there was some thinking the third candidate had connections to some think tanks with ties to dark money groups, and they were asking me if there was any possibility of anything going on, and i do nothing of any such thing. we go about ramping up our primary, on the last day before i'm looking at my emailed from one of my campaign people with a link to a video, and it said, have you seen this? it is alwaysd wonderful to see that ad again. [laughter] seemingly out of nowhere on the day early voting started, it ran nonstop in every media outlet around the state and also triggered an immediate response
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and a lot of phone calls and attention by the media, who did a wonderful job of telling the public what was really going on. and it got attention. since it was the first time people heard of a dark money groups spending more than $1 million in a nonpartisan, judicial primary, it got a lot of attention from high-end media , the new york times, washington post, los angeles times, wall street journal, nbc radio as all of the local media all over north carolina, so there was a lot of coverage wish went a lot -- coverage which went along -- went a long way toward educating the public. what we see in these dark money attack ads where they take an actual decision and the terrible photo and distort it to make it look like a witch or
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something, and then distort your decision in order to usually accuse you of somehow siding with criminals. true, andally is not that was not true in people's all right throw it. i came in first in the primary and ultimately won the general election by the widest margin i have ever had, thanks in large part to this very effective response and education effort by the media as well as lawyers in our state. that was heartening to see the , thense of the voters media, the lawyers, and the rest of the public, but we couldn't know that was how it was going to turn out. it was not a pleasant experience even though at the end of the day i was somewhat heartened by how it turned out. but i am still bothered by a lot
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of things about this episode. , thatind of attack attacks a judge for doing their job and writing a decision, and that case it was a dissenting opinion, shows a fundamental about jobtanding as judges. to attack us for doing our job, that is not the way one should approach criticism of our institutions or the rule of law. it is inconsistent with the oath we take as judges to be impartial and follow the law and follow the constitution without regard to public pressure or what is the popular thing to do. it is not our job to do what is popular, is to follow the law. one thing that bothers me a great deal is that this kind of an attack at approach in states, and 38 states at last count had where theof election
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judges do face the voters, it discourages good people from theseg to stand and hold judicial offices in states where they have to face reelection. it happens all over the place, so i think we have a lot of work to do. are spending time working on civics education from kindergarten all the way through retirement, to inform people all around the country of how our andem is supposed to work, the role of the judiciary. that is the backdrop of that episode. [applause] ms. bannon: justice, you were also subject to an orchestrated attack in connection with a pretension election.
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i would love to hear your on that, and what more resources to judges need in the face of these trends? judge: this is a great panel. i have loved listening to you, and seeing such amazing people in this audience. i have been a lawyer and for the 21 of5 years, a judge, those on the state supreme court of florida. and i facing 25 days mandatory retirement. and a florida we achieve constitutional senility at age 70. [laughter] and then i will be free to say , rather than think politically-correct terms.
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the state courts, respectfully, need more support than the federal courts. many is this belief among that state courts get what they ask for because so many state manys have elections, southern states have partisan elections and they are bruising, and they are -- they have gotten worse, not only because of special interests but because of the citizens united decision. a lot of these attacks, we saw iowa, there is out-of-state dark money. supreme court justices, three justices, find jurists --
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, world the fetid in 2010. that was also the rise of the tea party. so what you have had for at least a decade, but maybe farther back, is systematic attacks in state courts. hadlorida we have, and have instant 1970's, we are a merit retention state. it is known as the missouri plan because it was seen as a less political way to ensure quality less political influence on how state court justices or judges were elected. we were very proud of that system. nonpartisanrly judicial nominating commission, and they would presumably send up the most qualified judges or attorneys that applied.
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i had been through three merit and i knowlections, have written that retention has become so political, because you are on the ballot, but it is yes or no, you don't have anyone running against you. thosegone through the of -- through three of those and was up in 2016 with two of my colleagues. you had to be appointed by either a democrat or republican, we had been appointed by the governor,ratic chilels, --ton andrnor lawton chiles, we had all been involved in versus gore, terri schiavo, a lot of whats,
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were seen as controversial cases where we felt we were doing the through either the law, the constitution, the statutes, so that was the absolute motivation behind it. it wasn't on ethics, impartiality, professionalism. we were attacked and we learned from iowa in 2010 so we did organize. we were fortunate to have many but 2016at helped us, was a presidential election year so there was much more attention on not having president obama reelected, that the money was directed elsewhere. now, 2018ccessful but has come and it is six years
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and all three of us are reaching constitutional senility at the same time. during the time we were justices, we were characterized as democratic politicians. and again that is that labeling that so infuriates me. i do think state court judges need a lot of support, not only groups and the i have been a member of the aba bute i was a young lawyer, when it came to what happened in get, in florida we did not the kind of support i thought we should get from the american bar association, maybe for political reasons. i think federal judges also have the ability to look at what is going on and speak in our
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defense. and what all three of us state have beenices involved since 2012 in the informed voter project. you have seen the display out there. it is our answer to what we can do. thes nice to talk about rule of law and the independence of the judiciary, but when they see and add like that, and usually these ads attack a judge for being a criminal, they are not interested in the criminal aspect, they want business interests protected. it is important to inform the public. that brings me to the media.
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how many remaining journalists and press people are in this audience? very few,. kalb, probably the ones that are going to be on the panel. [laughter] this is where we preach to the does because the media take so often the shortcut, which is this use of labels. the label that is most insidious is being an activist judge. it is a label that is used when justice roberts upheld the affordable care act. they were upholding a law of congress. they called that decision upholding the law and activist decision. it is a label used with no meaning underneath it. liberal and conservative have
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been overused. i grew up in the 1950's and 1960's and i thought a liberal was somebody who defended the individual rights enshrined in against thetion possible overreach by the other two branches. , if you are a liberal that is something where you are against the establishment. these labels don't do it. i think we have to stop labeling. we have to increase our outreach at all levels. we in florida have mandatory civics education, as judges and lawyers we have ulcerative programs -- we have all sorts of programs, but how many words are in a tweet? .4 words and you reach millions of saying,and all we are
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if we are on c-span or whatever, it is a drop in the bucket. so we have to bring our collective voices together to make our case with each other s, so that we have a stake in what each other is doing, and to the and alsopeople, understand there are a lot of organizations that have been tooted for decades undermining the state courts and reshaping the state courts and , and that isourts something we are now seeing the ultimate and product, i believe, both at the highest levels of the supreme court and also at the state court level. [applause] ms. bannon: i want to conclude the initial set of questions to
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you with a two part question. most of the discussion has focused on attacks on individual justices or judges. waysou reflect on other the judiciary as an institution can be subject to attack, and what that means for the separation of powers? and i would love to hear your we on this panel, the people watching at home, what we can do to protect our democracy from attacks on the judiciary. thank you very much, allison. i feel privileged to have this river fight conversation. i can't wait until barbara pariente gets her first amendment rights back. [laughter]
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a narrative developed, and what endangers the judiciary is not only a straight on frontal attack on a judge or a decision or a particular judiciary in a as ain state or for me trial prosecutor, i can see an attack coming and respond. and i can enlist others to respond as a surrogate. that what bothers me is that there are so many other ways to minimize and marginalize and start a narrative about the judiciary that begins to undermine it. as judge davis said, zimbabwe wasn't always a. and it starts slowly, absentmindedly, maybe even without willful intent, but it develops as a narrative. a full frontal attack for me was when i started arresting and
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courthouses across the country. asaited to hear a response to why this is wrong. relies one judiciary , andc trust and confidence when a law is passed it is for everyone, not just for citizens, it is for everyone. so arresting and courthouses on so arresting and courthouses on civil war and spy ice to me in danger to the public trust and confidence people have in the judiciary. the public will see that as, go to court, get arrested. solution? do not go to court. in california an increase in failures to report. in californianed i said, if not us, who? shouldn't we be saying something about this. no one is saying anything about this. inorcement of a nice warned
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a courthouse is a policy, it is not a law, it is a policy. letter,d, let's write a so we wrote a letter to attorney general sessions and homeland inurity chief john kelly, strong language, because of these court arrests. judges were afraid to tell me this was happening. i had to read it in the newspaper. so we wrote a strong-worded letter. today, we got the fastest action by federal government everywhere. and about three weeks, a harsh rebuke to my letter, public, nonresponsive, but it pointed out california deserves this because we are a sanctuary state. theoint was to defend judiciary under the separation of powers and what we provide for the people.
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but when i talk about a less frontal attack on the judiciary, i am talking more about situations described here, media i would also say something about the judicial branch budget. legislatures shape your values by giving the judiciary a fund to work with. at the same time the legislature begins to earmark how you can spend that money, begin to tell you what your values are, you can only spend this money on traffic, on computers, a takes away the ability of judges who know the needs of their courts to make consensus decisions. so i found myself as chief going to the legislature saying, we can't have earmarks. we will report how every any is allow the you must
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judiciary to make its own decisions about how money is spent for the rule of law. allow the because legislators have so much on their plate, how can you possibly know? there was a strong effort to take away our freedom as to how judicial money was spent. there were also legislative bills that said, this is going to be the briefing schedule, in statute, under certain areas of law. now i appreciate you are looking for greater efficiency, but it is insidious when it starts to creep up on you in legislation you don't necessarily see as an on the judiciary, when we act on behalf of the committee. instances ofer undermining the judiciary. one of them is intra-judiciary fighting.
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intra-judiciary judge-on-judge attacks. ask, take a branch, do you as a judge think you begun long -- you belong to the legislature, to the executive branch? pick a branch. important as a branch that we are independent from the other two branches of government, so we perform our duty as a check on the other, and when we apply the rule of law we do it independently and we explain ourselves and opinions, so that you are understanding that we tether -- that we are tethered to the law.
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have structured criticism over the opinion analysis, i'm not sure what it does to criticize it. but in terms of solutions, we have started a k-12 civic program. we work with the state superintendent of public schools, the secretary of state, we have integrated civics into the curriculum and it is being tested under the history and science framework. we have made the judiciary a major part of civics education taught and tested in k-12 in california. that took about four years. we have partnered with officers.onal we have reached hundreds of
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thousands of children, but we don't stop there. we have reached out to our federal judiciary brethren, joining our resources and creating things like the civics passport, where we have students visit a federal court, a state court, we stamp their passport, they hear from judges, they hear from lawyers. we have partnered with lawyers. we partner with bar associations. when we have a problem our lawyers go out and spread the word and speak on our behalf. judges have always gone into classrooms and always spoke about what we do and why we but nowhe rule of law, we are getting new judges, justices involved. we are live webcasting all our oral arguments. we live webcast so much rulemaking. we invite the public for public
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comment. i do not believe the attacks are going to stop, the undermining end of marginalizing of the branch will ever stop. to speak up, and we have to defend ourselves and reach out and connect with others and build relationships where we can do that together. the beauty of the civics initiative is that we build relationships, so before they demean you publicly they know you. [laughter] , youf there is a demeaning can call someone who knows them. there would be relationship and communication that has never happened. it requires judges to go out into the community and talk about what we do. in california there are far fewer lawyers and courthouses now than there are self-represented litigants.
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a judge's role has taken a different turn. we provide social justice and transitional housing for people in courts who once they are sentenced, we prop them up so they don't fail. judges today have so much more to do in a community, we can explain what we do, and yet this exists,m of us still but hopefully we inoculate the public before they take damaging action against us. but it is the constant undermining you have to be aware of. to be overly sensitive, but sensitive about lanes, and does this affect our ability to enforce the rule of law? [applause] ms. bannon: we have time for a few questions.
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we will turn to some questions from the audience. >> in hindsight, would you have done anything differently? judge robart: [laughter] but i willis no, echo something to of my colleagues up here said. with the benefit of almost two understand how you could decide this differently because of the pressures that are there. i think a real risk is that you don't create a climate in which you are forced to make that decision. you know you took a oath to support the constitution and you are going to do so. i have a question that follows up on that question, what i might call the intimidation factor.
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one panelist mentioned judges are human. in new york after judge baer suppressed evidence president got upset and said maybe he should resign. after that the judges stopped writing decisions on suppression, they only did it orally when the press wasn't there. i wonder how some judges become they don't, because want to be in this media barrel for weeks and weeks. my other question is for elected judges. what is the effect on you, that you have to raise funds, face the voters? does it affect decision-making theyme colleagues because don't want to make controversial decisions that might impact either their fundraising or reelection?
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>> i believe a lot of these intimidation. that had organized the attacks said, even if we don't we will succeed in fear and intimidation, that if you rule this way, you face the danger of removal. "the new york times" did wonderful editorials on impartial justice at risk, talking about that intimidation factor. but many of the studies have been done, the public does money andhe role of elections lowers public trust .nd confidence
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and there is a wonderful report on how to reform state judicial systems, but that depends on having a state legislature to enact those reforms, or a constitutional change. it isis corrosive, corrosive and the other two but the merit selection part is great, that i support what has been advanced as one term and done, one long-term, 20 years. i know life service is great and i have been on the court 21 years. it is enough. [laughter] >> i'm from texas originally,
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and i was talking to steve smith, a state judge in texas today. my state judge friends in texas are concerned because they know the year in which you run for reelection is key. if you run in a presidential election year, all the democrats get swept out in its it is, like -- swept out if it is, like, i trump year. all the republicans will lose or the democrats will lose. in at is normally presidential election year, the whole ticket will go whichever way the presidential election is going to go. all the republican judges in dallas and houston lost because o'rourke did so well in almost knocking off senator cruz. so 55 district judges in dallas and houston all lost their reelection campaigns and only tomocrats won because be
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did so well and took all those democratic judges into office. it's no way to run a railroad, i think, but i am partial because i didn't have to run. the one great thing i heard today is the great job california is doing about civics. civics is good not only for what we are talking about today, but future jurors. i worry about future jurors and if they know enough about the system to be good jurors. taught in not being schools anymore is a real problem in the future of our country, and what california is doing in civics is important to the future of our country. the best thing we heard here today is, can we spread what she is talking about? the chief justice had great
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comments on what they are doing in california on civics education. justice souter, justice o'connor have been pushing that, and i think that is a key to our future. i want to put in a plug for the national association of women judges informed voter project. aser areas have not made much as project, florida has done good work, but our efforts have been to make available speakers and materials to every staff,ith help from our to put on programs that involve civics education, all the way down to kindergarten and all the way up to retirement date -- retirement age. solid base of
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knowledge of how the judiciary works, and it is an absolutely bedrock fundamental. we do see pressures in the states, both in the lead up to elections where there may be attack ads. there is research that judges are less kind and ruling in criminal cases in the year or so leading to a reelection effort. most of us know there is politics involved in the process . and what comes with the territory is that you have to push that aside and deal with a case on its merits. all of us try as hard as we can to do that. until we have a selection method like the one we have been advocating for, one term and done, we are going to have to deal with it with our own education efforts with the public and ourselves. we in california tried an
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experiment in february. we have taken our civics and reached out to the legislature to hold our first ever legislative judicial summit. we have three panels of judges and legislators who are going to come together to talk to each other about how we work and improve it. door ato every leader's the legislature and asked if i could put their name on the ledges -- name on the invitation to show we were convening it together. we don't know how many people will show up, but with our first effort to bring our branches of government to understand each other in a way we don't try to destroy each other. lawyers play an important role in all of this, they are
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key as intermediaries between judiciary and the public. there are efforts going on around the country by lawyers, but it is also the code of conduct that governs in all 50 states. the preamble says lawyers should further the public's confidence in the rule of law, because they depend on popular participation and support to maintain their authority. that is part of the obligation .f lawyers as well a ms. bannon: join me in thanking this eminent panel. [applause] [captions copyright national cable satellite corp. 2017] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit] on saturday, i discussion about the role of special counsels with ken starr,


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