WEBVTT - Partisan Shift in En Banc Appeals Courts Since Trump 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brussel from Bloomberg Radio. 0:00:09.320 --> 0:00:13.240 Chief Justice John Roberts has often talked about the independence 0:00:13.280 --> 0:00:16.680 of the judiciary and how partisanship has no place on 0:00:16.720 --> 0:00:19.439 the bench. The best way to do our job is 0:00:19.480 --> 0:00:23.840 to work together in a collegial way. No, I'm not 0:00:23.920 --> 0:00:29.400 talking about mere civility, although that helps. I am instead 0:00:29.440 --> 0:00:32.879 talking about a shared commitment to a genuine exchange of 0:00:32.960 --> 0:00:37.200 ideas and views through each step of the decision process. 0:00:38.159 --> 0:00:41.159 We need to know at each step that we are 0:00:41.200 --> 0:00:45.080 in this together. But a new study shows that federal 0:00:45.080 --> 0:00:48.360 Appeals Court judges may not feel like they're in it 0:00:48.479 --> 0:00:52.680 together when sitting on Bank. It shows a dramatic spike 0:00:52.720 --> 0:00:56.320 in both partisan splits and partisan reversals when all the 0:00:56.400 --> 0:00:59.920 judges on a circuit here a case together. The study 0:01:00.040 --> 0:01:03.440 by Neil Devons and Alison or Lawson, professors at William 0:01:03.480 --> 0:01:08.720 and Mary Law School, is called weaponizing, and Professor Devon's 0:01:08.800 --> 0:01:12.240 joins me, now you'll explain what a review on Bonk is. 0:01:12.760 --> 0:01:16.920 So on bond is where all the judges who sit 0:01:17.120 --> 0:01:20.039 on a circuit of the Federal Court of Appeals here 0:01:20.080 --> 0:01:25.000 are case together, as opposed to what happens almost always, 0:01:25.120 --> 0:01:28.480 which are three judge panels, and on bond is used 0:01:28.480 --> 0:01:33.039 for two types of situations. One is where there's a 0:01:33.120 --> 0:01:37.360 conflict between panels, so you have two groups or three 0:01:37.560 --> 0:01:40.959 who have different views as to what the legal answer is, 0:01:41.040 --> 0:01:43.720 what right, what the right answers to the question, and 0:01:43.760 --> 0:01:45.760 so you have to resolve the conflict so that the 0:01:45.800 --> 0:01:48.440 circuit has a law of the circuit. And then the 0:01:48.560 --> 0:01:54.160 second way that on bond is used is cases of imports, 0:01:54.400 --> 0:01:58.760 so the most important cases, the circuit gets the most consequential, 0:01:58.760 --> 0:02:02.600 the most controversial cases, and that's what the on bond 0:02:02.640 --> 0:02:06.360 process operates as. And it's also very different from other 0:02:06.760 --> 0:02:11.200 situations where you have a reviewing court being higher in 0:02:11.280 --> 0:02:13.840 the hierarchy of courts. So you have the district Court 0:02:13.919 --> 0:02:16.000 is reviewed by the Court of Appeals, is reviewed by 0:02:16.000 --> 0:02:18.440 the U. S. Supreme Court. Each of the three courts 0:02:18.520 --> 0:02:22.200 is a distinctive court with different personnel. On bond is 0:02:22.240 --> 0:02:26.840 a situation where you have the judges who sit on 0:02:26.880 --> 0:02:30.280 the same court reviewing the work of a panel of 0:02:30.360 --> 0:02:34.520 judges from that court, and you actually nullify the panel 0:02:34.560 --> 0:02:37.440 of judges decision and it is thrown out. It's not 0:02:37.520 --> 0:02:40.400 in the federal report or anymore, and instead you get 0:02:40.440 --> 0:02:43.320 a new decision from the on bond court. So it's 0:02:43.400 --> 0:02:47.160 the only instance where the review of a decision is 0:02:47.240 --> 0:02:50.640 done sort of horizontally by the same level of judges 0:02:50.680 --> 0:02:53.600 as opposed to vertically by a higher court. Is that 0:02:53.840 --> 0:02:58.040 sort of awkward to have them reversing what their fellow 0:02:58.120 --> 0:03:03.080 judges have ruled. Yeah, it is very awkward, and that 0:03:03.520 --> 0:03:06.400 is part of the reason that typically Federal Court of 0:03:06.440 --> 0:03:09.200 Appeals judges do not like to hear cases on bonk 0:03:09.720 --> 0:03:12.800 because you were essentially saying to your colleagues, you know, 0:03:12.840 --> 0:03:17.200 the work you did was not satisfactory to all the 0:03:17.280 --> 0:03:20.400 judges who said on this circuit. So that type of 0:03:20.440 --> 0:03:24.240 review has the risk of creating ill will. And so 0:03:24.520 --> 0:03:29.680 issues of collegiality are particularly relevant and on bond because 0:03:29.760 --> 0:03:32.960 it has a group of judges to emphacisely what you said, 0:03:33.240 --> 0:03:36.280 reviewing the handiwork, not of judges on a different court, 0:03:36.320 --> 0:03:39.400 but judges on their court. So why did you decide 0:03:39.440 --> 0:03:43.640 to do this study? Well, as is well known, over 0:03:43.840 --> 0:03:47.560 the past several decades, the parties have drifted further and 0:03:47.600 --> 0:03:50.960 further part from each other. There's a shopper partisan divide 0:03:51.000 --> 0:03:55.800 between Republicans and Democrats now as compared to earlier times 0:03:55.880 --> 0:04:02.559 when Democrats included conservatives southern Democrats and Republicans included progressive 0:04:02.680 --> 0:04:06.120 Northern Rockefeller Republicans. So now we live in the world 0:04:06.320 --> 0:04:10.160 where the party divide is also in ideological divide, and 0:04:10.640 --> 0:04:14.520 starting in particularly with Ronald Reagan, presidents of paid attention 0:04:14.560 --> 0:04:17.800 to ideology and appointing judges and needless to say, as 0:04:17.839 --> 0:04:20.320 we saw with Merrick Garland and the refusal to hold 0:04:20.320 --> 0:04:23.920 hearings from Eric Garland, the end of the silibuster or 0:04:24.000 --> 0:04:27.479 lower court judges when Obama was president and for Supreme 0:04:27.520 --> 0:04:31.799 Court justices when Trump was president. We've seen this intense 0:04:32.279 --> 0:04:37.000 politicization of the appointment and confirmation process as well. So 0:04:37.279 --> 0:04:39.280 we live in a world today with as much more 0:04:39.279 --> 0:04:41.920 of a team mentality, you know, the Democratic team and 0:04:41.960 --> 0:04:45.480 the Republican team, and that there's loyalty to your team 0:04:45.960 --> 0:04:48.400 you see down the world of politics. We see that 0:04:48.760 --> 0:04:53.719 in this personal lives and social media, and so Ali Larson, 0:04:53.800 --> 0:04:57.080 my co author, and I, so it would be useful 0:04:57.400 --> 0:05:01.360 to see whether that full of station has billed over 0:05:01.720 --> 0:05:04.320 to the federal courts of appeals so that the on 0:05:04.440 --> 0:05:08.880 bond process was one where there were increasing use of 0:05:08.920 --> 0:05:13.400 on Bank to have the majority political party on a 0:05:13.520 --> 0:05:18.600 circuit overturned panel decisions from the minority political party. So 0:05:18.680 --> 0:05:22.800 it was on Bank becoming a partisan political weapon, just 0:05:23.080 --> 0:05:27.880 as partisanship has been growing throughout the nation in all 0:05:27.960 --> 0:05:31.840 sorts of ways. So has on Bank been captured this way? 0:05:31.920 --> 0:05:35.280 Has it been transformed this way? So we just wanted 0:05:35.279 --> 0:05:39.560 to look at that, and it has obvious ramifications, did 0:05:39.600 --> 0:05:42.120 not just the decision making of the Federal Court of Appeals, 0:05:42.120 --> 0:05:47.719 but of sort of larger questions regarding the legiality, judicial independence, 0:05:48.080 --> 0:05:50.560 the commitments to the rule of law, the notion that 0:05:50.720 --> 0:05:54.520 judges are above politics. So for all those reasons, we 0:05:54.600 --> 0:05:56.440 thought it would be useful to take a look at 0:05:56.480 --> 0:05:59.720 how on Bank has changed over the years. So tell 0:05:59.800 --> 0:06:01.640 us at about the results of the study that you 0:06:01.720 --> 0:06:05.720 did with Professor Allison Laarson. So what we found was 0:06:05.839 --> 0:06:09.640 reassuring and troubling at the same time. I'll start with 0:06:09.680 --> 0:06:12.039 the reassuring part of what we found and I'll shift 0:06:12.040 --> 0:06:16.120 to the troubling part if that's okay. So, notwithstanding the 0:06:16.160 --> 0:06:20.159 fact that partisanship and ideology start to play a more 0:06:20.200 --> 0:06:25.520 pronounced role. When Ronald Reagan was president, we didn't see 0:06:25.680 --> 0:06:30.360 that impact on bontasis you're making up until the Trump 0:06:30.360 --> 0:06:35.040 era the last three years. So in other words, partisan splits, 0:06:35.080 --> 0:06:38.560 paris and reversals, the notion of a majority party of 0:06:38.560 --> 0:06:42.560 the circuit overturning the decisions of a minority party. We 0:06:42.640 --> 0:06:45.680 didn't see any impact with respect to the wise and 0:06:45.720 --> 0:06:51.040 polonization and partisanship for Monald Reagan through Donald Trump. So 0:06:51.160 --> 0:06:56.720 it seems that values of collegiality, judicial independence, commitments to 0:06:56.760 --> 0:06:59.960 the rule of law, that these values were very strong 0:07:00.000 --> 0:07:04.480 long and even though the judges themselves were further apart 0:07:04.560 --> 0:07:09.160 ideologically the Democratic and Republican appointees, it wasn't filling over 0:07:09.240 --> 0:07:13.840 to on bond up until two thousand eighteen, essentially. But 0:07:14.040 --> 0:07:17.880 during the Trump era, over the last three years two 0:07:17.880 --> 0:07:21.480 thousand and eighteen, two thousand nine, two thousand twenty, we 0:07:21.560 --> 0:07:26.240 saw a dramatic spike up on essentially doubling the number 0:07:26.240 --> 0:07:30.000 of partisans on bond decisions as compared to earlier eras, 0:07:30.000 --> 0:07:34.640 so statistically significant spike up and that obviously is troubling. 0:07:35.280 --> 0:07:39.760 And then the paper considers whether this is a short 0:07:39.920 --> 0:07:44.840 term phenomenon associated with things specific to Donald Trump. There 0:07:44.880 --> 0:07:48.600 are certain cases, like the monuments clause cases, the immigration 0:07:48.720 --> 0:07:51.640 cases that were tied to things that were unique to 0:07:51.680 --> 0:07:56.080 Donald Trump. Or alternatively, whether this spiked up is just 0:07:56.480 --> 0:07:59.360 that the parts and ship is finding the tactic size 0:07:59.800 --> 0:08:02.280 and we now live in this new world of partisanship, 0:08:02.760 --> 0:08:05.840 and on Bond is reflective of that new world, and 0:08:05.880 --> 0:08:07.920 it just took a while to get there, and we 0:08:07.960 --> 0:08:10.320 don't know. We'll find out over the next few years 0:08:10.320 --> 0:08:12.560 what happens. I want to break it down a little bit. 0:08:12.600 --> 0:08:15.840 First of all, how do you define a partisan split 0:08:16.320 --> 0:08:19.320 on an on bank panel? Is it all the Democratic 0:08:19.320 --> 0:08:22.520 appointed judges on one side and all the Republican appointed 0:08:22.600 --> 0:08:25.720 judges on the other? Essentially, yes, we allow for maybe 0:08:25.720 --> 0:08:30.520 one defector, but essentially you have a split where the 0:08:30.600 --> 0:08:33.080 Republicans are on one side, the Democrats are one side. 0:08:33.120 --> 0:08:36.320 Sometimes it's a perfect split, sometimes it's a near perfect split, 0:08:36.720 --> 0:08:41.080 but it's essentially a Democrat Republican split. Both the Democratic 0:08:41.120 --> 0:08:46.079 appointed judges and the Republican judges engaged in this. Yeah, 0:08:46.320 --> 0:08:48.880 one of the things to study. Fine, and I wouldn't 0:08:48.880 --> 0:08:51.800 necessarily say this is heartening, but to say that it's 0:08:51.840 --> 0:08:56.359 not a question of only Republicans are doing this to democrats? 0:08:56.400 --> 0:09:00.000 Are only democrats are doing this two republicans. There are 0:09:00.280 --> 0:09:05.479 circuits where you have a majority democratic circuit that's policing 0:09:05.640 --> 0:09:10.240 Republican panels. So this occurred on the d C Circuit 0:09:10.360 --> 0:09:15.480 in subpoena cases involving Don McGann and Michael Flynn. Occurred 0:09:16.000 --> 0:09:19.880 on the Fourth Circuits, another democratic majority circuit, in cases 0:09:19.920 --> 0:09:24.840 involving emolumous clause. So there are clear examples of democratic 0:09:24.920 --> 0:09:29.200 dominated circuits policing Republican panels. And then there are examples 0:09:29.200 --> 0:09:34.160 in the other direction of Republican dominated circuits apparently policing 0:09:34.240 --> 0:09:38.800 democratic panels. So in the Sixth Circuits, which has a 0:09:38.840 --> 0:09:42.680 majority judges appointed by Republicans, a three judge panel held 0:09:42.679 --> 0:09:46.760 in the fourtune Amendment protected the fundamental rights of basic 0:09:46.880 --> 0:09:50.880 minimum education and that Detroit schools are violating that right. 0:09:51.360 --> 0:09:54.760 And that was a democratic panel. But the Sixth Circuit, 0:09:55.000 --> 0:09:59.679 a Republican circuit, overturned that democratic panel. And then another 0:10:00.000 --> 0:10:04.640 ample was the Eleventh Circuit ruling on bond that this 0:10:04.760 --> 0:10:09.160 concerned fellows voting in Florida, concluding on bonds that fellas 0:10:09.240 --> 0:10:12.680 could not vote up voting in Florida one felons to vote, 0:10:12.720 --> 0:10:15.680 and that was done on bond by a Republican dominated circuits. 0:10:16.320 --> 0:10:19.679 How much of a difference is there in these partisan 0:10:19.960 --> 0:10:25.240 type rulings from before Trump. We studied over sixt eight 0:10:25.520 --> 0:10:28.040 decade period. So we started by looking at on bond 0:10:28.120 --> 0:10:30.959 in the nineteen sixties and then we brought it all 0:10:30.960 --> 0:10:33.920 the way up through and I'll just give you the 0:10:34.000 --> 0:10:38.800 numbers leading up to Trump. So in the decades before Trump, 0:10:39.559 --> 0:10:43.319 it is twenty five percent in eighty six eight, eight 0:10:45.080 --> 0:10:51.680 ninety six to two thousand six two thousand, eight sixteen 0:10:51.679 --> 0:10:55.280 and a half percent two thousand sixteen two thousand seventeen. 0:10:55.800 --> 0:10:59.920 And then with Trump it's thirty five artists in reversal. 0:11:00.720 --> 0:11:04.439 And that's where there's a majority of one party policing 0:11:05.080 --> 0:11:07.559 the panel, which is a majority of the other party, 0:11:07.800 --> 0:11:11.280 and twenty seven percent of the typus list who has 0:11:11.320 --> 0:11:15.280 divided almost perfectly along party lawrence. So it was going 0:11:15.400 --> 0:11:20.400 down until until Trump. Yes, it was going down until Trump. 0:11:21.040 --> 0:11:24.960 Not profoundly, you know, not necessarily statifically significantly down, but 0:11:25.200 --> 0:11:30.200 going down from Reagan until Trump and then doubling with Trump. 0:11:31.440 --> 0:11:35.520 So is that statistically significant? Oh? Yeah, We we checked 0:11:35.520 --> 0:11:38.520 out the spike up and the spike after, and the 0:11:38.520 --> 0:11:43.719 Trump ever was statistically significant. Is this possibly then a 0:11:43.840 --> 0:11:47.600 blip on the screen, a moment in time. Yeah, So 0:11:48.000 --> 0:11:50.199 this is the question we were talking about just a 0:11:50.280 --> 0:11:53.880 second ago. Where some of these cases, like the subpoena 0:11:54.000 --> 0:11:59.280 cases involving Don Again and Michael Flynn, the emoluments claus 0:11:59.800 --> 0:12:03.920 in aegration, many of the on bond cases over the 0:12:04.000 --> 0:12:07.839 last three years involved, for lack of every way, putting 0:12:07.840 --> 0:12:14.400 into Trump dockets. Okay, trump initiatives, either personal or policy initiatives, 0:12:14.559 --> 0:12:18.800 and those cases with a different president will also disappear. 0:12:19.559 --> 0:12:23.439 Whether there will be a Biden docket that will divide 0:12:23.880 --> 0:12:27.080 the courts on bond is yet to be seen. It 0:12:27.160 --> 0:12:30.040 may not happen, but this may be Trump only it 0:12:30.080 --> 0:12:32.920 maybe a blift. On the other hand, it may be 0:12:33.160 --> 0:12:37.480 that the partisan divide has finally the past. The size 0:12:38.400 --> 0:12:43.600 and the judicial independence, collegiality norms that carried the day 0:12:43.960 --> 0:12:48.480 up until two thousand seventeen have now given way to 0:12:48.720 --> 0:12:52.680 these norms of party identity and charters and decision making. 0:12:53.440 --> 0:12:57.040 And that's something that obviously we don't know for sure 0:12:57.280 --> 0:12:59.520 what's going to happen, and That's what we need to 0:12:59.559 --> 0:13:03.160 see over the next several years as to whether things 0:13:03.400 --> 0:13:07.160 stabilize and return to how they were, or whether essentially 0:13:07.960 --> 0:13:11.080 with Trump, were just in the new world and this 0:13:11.240 --> 0:13:13.599 is a time where the partisan divide is going to 0:13:13.880 --> 0:13:16.920 just still over to more and more things, including online 0:13:16.920 --> 0:13:21.720 decision making. Do you think that this shows that Justice 0:13:21.840 --> 0:13:25.640 Roberts was incorrect when he said there are no Obama judges, 0:13:26.240 --> 0:13:32.079 no Bush judges, no Trump judges. Well, it's yes and 0:13:32.160 --> 0:13:37.040 no answer if whatef Justice Roberts is saying is that 0:13:37.400 --> 0:13:40.040 the judges are committed to the rule of law and 0:13:40.120 --> 0:13:44.280 not to a political party. That seems to have held 0:13:44.360 --> 0:13:48.360 true up until two thousand and eighteen. And then the 0:13:48.480 --> 0:13:54.480 question becomes whether two thousand eight into two thousand twenty 0:13:54.960 --> 0:13:58.280 is a total transformation where we now do have this 0:13:58.440 --> 0:14:01.880 paris and divide, or whether two thousand eighteen to two 0:14:02.120 --> 0:14:05.320 twenty is just related to the Trump docket. So before 0:14:05.640 --> 0:14:10.079 two thousand eighteen, I think you can say that Chief 0:14:10.120 --> 0:14:14.040 Justice Roberts view that the judge is identified with the 0:14:14.120 --> 0:14:18.080 rule of law, norms of judicial independence and pleegiality. I 0:14:18.120 --> 0:14:20.960 think Chief Justice Roberts was right as to whether Chief 0:14:21.000 --> 0:14:25.440 Justice Roberts's right. Post two thousand eighteen, that's a little 0:14:25.920 --> 0:14:28.400 up in the air. It may be that we do 0:14:28.480 --> 0:14:31.600 have Trump and Obama judges, but let's see what happens 0:14:31.680 --> 0:14:36.280 going forward and whether the partisan divide continues or whether 0:14:36.360 --> 0:14:39.240 there's a return to normalcy. So the jury is a 0:14:39.280 --> 0:14:41.680 little bit still out on that question as well, But 0:14:41.800 --> 0:14:44.320 I think he was generally correct up until two thousand 0:14:44.360 --> 0:14:46.840 eighteen at least. Do you think that the appointment of 0:14:46.920 --> 0:14:51.840 more moderate judges by Biden might help deflect this? Well, 0:14:51.880 --> 0:14:55.400 I think what may matter the most is whether the 0:14:55.480 --> 0:14:59.240 judge is appointed by President Biden are committed to collegiality 0:14:59.280 --> 0:15:02.720 and judicial into peasant and whether they try to work 0:15:03.120 --> 0:15:07.640 as part of a circuit which is committed to not 0:15:08.440 --> 0:15:12.200 democratic goals, but committed instead of rule of law goals. 0:15:12.480 --> 0:15:15.240 So a lot of this is depends on the outlook 0:15:15.440 --> 0:15:17.960 of the buyer, and the point sees is their outlooks 0:15:17.960 --> 0:15:23.040 that they're seeking the ideologically counterbalanced Trump appointees, in which Kate, 0:15:23.880 --> 0:15:26.440 you're going to have a partisan divide and this is 0:15:26.480 --> 0:15:32.080 likely to continue, or will they instead say partisanship is 0:15:32.120 --> 0:15:35.520 a problem, I'm committed to law values, I'm going to 0:15:35.600 --> 0:15:39.720 try to mitigate this turns to partisanship, so we need 0:15:39.800 --> 0:15:43.000 to see who president buyer the points and what their 0:15:43.040 --> 0:15:46.200 orientation is. Thanks for being on the Bloomberg Law Show, Neil. 0:15:46.480 --> 0:15:49.360 That's Professor Neil Devans of William and Mary Law School. 0:15:50.400 --> 0:15:52.720 And that's it for this edition of The Bloomberg Law Show. 0:15:53.080 --> 0:15:55.080 Remember you can always at the latest legal news on 0:15:55.080 --> 0:15:58.479 our Bloomberg Law Podcast. You can find them on Apple Podcasts, 0:15:58.520 --> 0:16:02.200 Spotify and at w w W dot Bloomberg dot com, 0:16:02.280 --> 0:16:06.080 slash podcast Slash Law. I'm June gross O. Thanks so 0:16:06.160 --> 0:16:08.720 much for listening, and please tune into The Bloomberg Law 0:16:08.800 --> 0:16:11.600 Show every week night at ten pm Eastern right here 0:16:11.640 --> 0:16:12.680 on Bloomberg Radio.