11-24-25 - 11am - "Judge Brown's Decision Threatened To Plunge Texas Into Confusion"

Episode Transcript

Speaker 1 (00:00):
Put a cow at it.

Speaker 2 (00:04):
I had a a jarring experience Saturday night. So we're
coming back from dinner with friends and we met them
way up north. So I'm trying to take a it's
I'm trying to take you know, where you were a

(00:26):
Mickey steakhouse is up off seventieth metic seventieth and twenty five. Well, anyway,
we had been layed back up in there in a
little dive Mexican place. And I'm coming back to get
onto the interstate and I'm I'm in you know, a
two lane left turn lane. I'm in the right lane
of the two lane left turn lane so that i

(00:47):
can immediately get onto the on ramp for southbound twenty five.
And I'm driving the Beamer and it's dark, so you know,
I've got my lights on.

Speaker 1 (00:59):
Duh, and the Arrow's turn green.

Speaker 2 (01:02):
I accelerate, go into the curve and I'm not even
a third of the way into the turn and just kaboo,
I mean the front right wheel and tire just it
must have been. It felt like it was two feet deep.
Kaboom and tamer. Nice quiet, little you know, assuming spouse

(01:30):
drops a gigantic f bomb in the car like of
course I was already mad, because I was because I
didn't know one whether it was gonna, you know, damage
the alignment or damage the tire or whatever. But it
was horrible. That's not the end of story. Then I'm
trying to get on through the on ramp, and of

(01:53):
course now I'm I'm really looking at the road, and
I am literally just swerving everywhere, trying to avoid not
just the potholes, but you know where they all patch
the asphalt, and so the asphalt will be two or
three inches, you know, there'll be a two or three
inch drop from where they put the.

Speaker 1 (02:07):
New asphalt and the old asphalt.

Speaker 2 (02:11):
And then you finally get on to south Mound twenty five,
and at least in that area from about seventye on
southward through my maybe spear somewhere, at least they've at
least resurfaced it. There was another reminder of just you know,
it's like every morning, as I've always told you, eastbound

(02:32):
four seventy to northbound twenty five, still a piece of crap,
still holes, and I still look see there's anybody to
my left or right. Because if I if I straddle
the line, if I straddle the lanes, I can go
through without being jarred and having to go see qusin
kinetics to get my.

Speaker 1 (02:49):
Neck fixed again.

Speaker 2 (02:50):
Oh guys me crazy breaking news is that the Department
of just or a judge has dismissed the case against
James Coomy not surprised by that.

Speaker 1 (03:01):
It's a technical issue, and that.

Speaker 2 (03:03):
Is whether or not the lawyers that were assigned to
the case were properly appointed to take the case. There's
also a technical issue about whether the indictment was properly
presented to the grand jury or not. My guess is
that both those technicalities well, the case has been dismissed.
They can appeal if they want to, but they should

(03:24):
just get their ducks in a row. Slow down. You
don't have to accomplish everything today. Yes, I don't want
you to just fart around on it, but I don't
want you to do it so quickly that you're cutting corners.
Stop cutting corners, because now I I don't whether take

(03:47):
this bet or not how quickly before James Comy finds
a television camera and proclaims victory.

Speaker 1 (03:55):
Oh.

Speaker 2 (03:57):
Instead of that case, I want to talk about the
Texas redistricting case and not so much about the redistricting
aspect of it, although that's an inherent part of it.
But instead about judges, and in this case, the judge
I'm going to bitch about. Guess what is a Trump appointee.

(04:19):
Judge Jeffrey Brown, no relation is the judge that authored
the majority opinion in that recent high profile federal court
ruling that went against Texas's new twenty twenty five congressional
redistricting map. Judge Brown claims that he found substantial evidence

(04:40):
that Texas had engaged in unconstitutional racial jerrymandering, so he
ordered the state to revert to the congressional map that
was drawn in twenty twenty one to use in the
twenty twenty six midterms. His opinion is if if this
was submitted in a first year civil procedure law school class,

(05:08):
you'd probably get.

Speaker 1 (05:08):
An f.

Speaker 2 (05:10):
Now, his ruling was immediately appealed by the State of Texas.
They argue that the ruling would disrupt the upcoming elections
and that the ruling was not issued in good faith.
Friday night, Supreme Court Justice Samuel Lito granted texas emergency
request for an administrative stay. What that means is that

(05:33):
Justice Alito said no this ruling is unenforceable, and it
will remain unenforceable until we have a chance to decide
whether to take the case and hear the case at
the US Supreme Court. Now, why is that going directly
to the US Supreme Court, Because this is a case
that involves the state of Texas, so those are immediately

(05:55):
appealable to the US Supreme Court. Allegations of misconduct, the
allegation against Judge Brown is really more about disagreement and dissent,
and in particular, the dissent that was written by another

(06:16):
judge kind of spells out how bad this case is.
So I think we need to speak very plainly about
how Judge Brown handled the litigation because it was not
a close case of judicial disagreement. It was I think
an actual breach of duty, a breach of duty so

(06:36):
egregious that it underminds the confidence in the judiciary. It
actually and remember this is a Trump appointee. It ruled
against Texas. It injected raw partisanship into a domain red
districting that the Supreme Court.

Speaker 1 (06:52):
Has said it's beyond judicial reach.

Speaker 2 (06:54):
The Supreme Court, in other redistricting cases, has said this
is a political decision up to the States courts. You
don't have any business in this. His misconduct, which is
both procedural and substantive, is laid bare in the dissent

(07:14):
from another judge, Judge Jerry Smith. This is a document
that reads less like a disagreement among colleagues and actually
sounds like a warning siren aimed at Congress. When a
federal judge misuses the machinery of the courts to advance
personal animus, or bends judicial doctrine to get a predetermined outcome,

(07:39):
or hides the work of his colleagues behind procedural gainmanship,
the constitutional remedy is impeachment. And that is a conclusion
that I come to that is very uncomfortable, yet I
think is unavoidable. Now, before assessing the case for impeachment,
I want you to understand the precise character of what
his misconduct is. Because a preliminary injunction of this magnitude

(08:03):
is an extraordinary form of relief. Courts are reluctant to
deploy it because it can instantly distort the political process.
Yet this judge, Judge Brown, rushed such an injunction into
effect at the moment when Texas was approaching legally immovable
election deadlines, so his action threatened to plunge the state

(08:26):
of taxes into confusion running up to the twenty twenty
six elections. And the other judge's descent is amazing because
it recounts a procedural history that borders on truly being staggering.
I'll explain why.

Speaker 3 (08:48):
Wait for our usual rowe. It's kind of like a
daily vitamin. But hey, make sure that you play a
couple times today, just to kind of get under Michael
Brown's skin.

Speaker 1 (08:59):
A little bit.

Speaker 3 (09:00):
Make sure you play Allen Roach, saying producer Shannon a
couple of times today. Thanks, love it bye.

Speaker 2 (09:07):
It's it's funny that, I mean, Dragon is obviously on
vacation this week, and he and I both work really
really hard to produce a very equality product. Don't spew
out your diet cope and I say that, but we
try to do a quality product. I know, mean of
you might disagree with that, but it's I'm such a

(09:29):
perfectionist that when it doesn't go the way it's supposed
to go, it all warns Zach Becauzac's filling in right now.
I'll warn Zach that I'll get really pissed off. I
will get really pissed off, but then give me about
three minutes and a sip of diet culach and then
we're back to normal. But when you when you work

(09:50):
hard for so long, you there are certain elements that
you just expect to occur, and when they don't occur,
it's like, what the hell's going on? Anyway, back to
this judge, real quickly, just give you a real summation.
So this is about congressional districts and the state repid
state Senate districts in Texas. They redrew their maps. Groups

(10:13):
took it to federal court and a judge. They had
a three panel judge. A judge ruled that was unconstitutional
because he claims it was based on race. The judge
that wrote the majority opinion did a draft. There was

(10:33):
one hundred more than one hundred and sixty pages long,
but then he withheld it and withheld it and withheld
it so that the other judges didn't have a chance
to look at it for a while. He finally then
decided to issue the injunction without waiting for the descent
to be drafted. So the other judge that had the descent,

(10:57):
when he found that out, he had gone to a
funeral and was traveling across Texas. He had to work
overnight to produce a response that the main judge who
was going to issue the injunction tried to hide from
the docket. Now that's not just a harmless irregularity. That's
a sign of a deep pathology, a willingness to sacrifice

(11:21):
the deliberation that judges are supposed to engage in to
force a predetermined outcome. Because if you have a judge
that acts first and then tries to come up with
the reasons, that problem is way beyond etiquette, because due
process requires deliberation among the judges, not some unilateral proclamation

(11:41):
as if you're a king. Judge Smith's thirty seven years
on the bench equip him to identify the difference. And
Judge Smith not the judge that issued the injunction, but
this is the judge that issued the descent calls this
episode the most outrageous judicial conduct he has ever seen.

(12:07):
If you are a member of the judiciary, or you're
a member of the state legislature that has the power
of impeachment, or you're just someone who's interested in the
judiciary and that they be you know, nonpartisan that they be,
you know, act as the canon of judicial ethics requires
him to act. That should give you more than just pause,

(12:30):
because at a minimum, the judge that issued the injunction
denied the other members of his panel the opportunity to
consider away and respond to his arguments before he acted,
So he manipulated the internal process in ways calculated to
insulate his opinion from scrutiny. That's not the conduct of

(12:50):
a neutral adjudicator. It's the conduct to someone who's acting
on an ideological impulse that no longer permits ordinary judicial restraint.

Speaker 1 (13:03):
We have.

Speaker 2 (13:05):
In cutting my Michael Brown minute earlier today, I was
talking about some polling has come out from Magellan Strategies,
and it's about public schools. But that one topic that
one poll about public schools reminded me about the judiciary,
about crime, about taxes, government regulation, censorship. All of the

(13:28):
stuff we have going on in the country right now
seems to be reaching a tipping point. And I think
in not a tipping point in a good way, because
it could go one way or the other. In this
case in Texas, it went the wrong way, and just
as Illito stepped in and said, oh, time out, this
appears so bad that I'm going to enjoin through an

(13:52):
administrative order that this decision not be allowed to take
effect until the court has time to look at the
entire case. I think even more concerning is this judge's
treatment of the standards for preliminary injunctions, Because for decades,

(14:16):
courts of characterized injunctions as.

Speaker 1 (14:18):
Extraordinary and drastic.

Speaker 2 (14:21):
You have to show a substantial likelihood of success on
the merits. Well, this judge ignored those requirements. He cherry
picked the word likelihood, removed the word substantial as the agitive,
and treated the first factor as if it required only
a minimal showing. And then he invoked the doctrine of
a sliding scale in a way that displaced the really

(14:43):
heavy burden normally imposed on claimants trying to get a
mandatory injunction. A mandatory injunction does not preserve the status quo.
It changes the status quo, which means that courts must
apply the most rigorous scrutiny before granting that kind of relief.

Speaker 1 (14:58):
And they simply did not do that.

Speaker 3 (15:04):
And it turns out Nope, the person was just driving
wall in Colorado.

Speaker 1 (15:09):
I bet that.

Speaker 3 (15:10):
Should be a new phrase that we should use Nope.

Speaker 1 (15:13):
I was switching lanes, lockheads of the potholes, driving in Colorado,
not driving.

Speaker 2 (15:17):
Impaired driving, DAP driving avoiding potholes DAP. I gotta take
it for DAP driving. This case is crazy, absolutely crazy.
The findings by the judge said that, Oh, Texas just

(15:42):
used race as a way to jerry mander, when there's
no evidence of that whatsoever. Yeah, impeachment of a judge
requires more than just error. It requires misconduct that strike
at the foundations of judicial policy. Procedural manipulation or partisan

(16:08):
reasoning that is disguised as neutral analysis or disregard for
binding precedent meets that threshold. So when a judge grant
like this judge did, grants a very sweeping injunction that
upends the state's election calendar, and then he brushes aside
the constitutional constraints that exists for the very reason to

(16:29):
prevent judicial partisanship. He then violated the oath to administer
justice impartially. And Congress retains the authority to remove such
a judge, and that authority exists for exactly moments like this.

Speaker 1 (16:45):
The rule of law is not self sustaining.

Speaker 2 (16:47):
It depends on the integrity of those in trusted with
its guardianship, and Judge Brown's conduct shows a degree of
ideological entanglement that's incompatible with that trust. Now, if impeachment
seems severe, you, that's because it is meant to be severe.
But severity becomes a virtue when a judge's actions threatened

(17:09):
the constitutional order, like they have here. The judiciary confunction
only when the members of the judiciary adhere to the
standards of fairness, and those standards of fairness are higher
than those that govern political actors politicians, and then the
moment a judge abandons those standards, the only remedy is

(17:31):
to remove that judge. That's where it happens. The order
claim that the redistricting was unlawfully based on race as
opposed to partisanship, and that's a claim that's at odds
with what we all saw happen in the partisan political
fight that took place within the Texas State Legislature. It

(17:54):
even included a walkout by Democrat legislators.

Speaker 1 (17:56):
That's fine.

Speaker 2 (17:58):
What wasn't attached to the order granting this injunction was
the dissenting opinion by the Fifth Circuit Court of Appeals
Judge Jerry Smith. Now I want you to know about
Judge me. He's a thirty seven year veteran of the
Federal Judiciary and he's greatly respected among his peers for

(18:19):
his legal documen. His descent came out to be more
than one hundred pages. The problem is it came out
a day late. Not a day late because he've missed
a deadline, but because Judge Brown, who wanted to make
sure that nobody was able to overrule him, issued the
injunction without the benefit of reading the dissent. In other words,

(18:42):
there was no deliberation. So the judge being denounced. To
make sure you understand, is this Judge Brown who wrote
the majority decision along with another judge David guatem Guateano
or something, who joined in the opinion. He didn't write
a concurring opinion. He just joined in the opinion. Now

(19:03):
I want to go to the descent for a moment,
because the dissent is absolutely blasting this Judge Brown. In
the dissent, Judge Smith, the good judge, accused Brown and
the other judge. I'm not going to call the other
judge bad because well he did go along with them

(19:25):
with the judge Brown's decision. He accused him of pernicious
judicial misbehavior in deliberately not providing Judge Smith with any
reasonable opportunity to review Brown's opinion and respond before it
was issued. As I said earlier, Judge Smith says that

(19:48):
is quote the most outrageous conduct by a judge that
I have ever encountered in a case in which I
have been involved for thirty seven years. He spent four
pages going through the timing involved and says that quote
any pretense of judicial restraint, good faith, or trust by

(20:11):
these two judges is completely gone. And then Judge Smith
starts off the substance of his descending opinion by acknowledging
an undeniable fact quote the main winners from Judge Brown's
opinion are George Soros and Gavin Newsom. The obvious losers

(20:36):
are the people of Texas and the rule of law.

Speaker 1 (20:41):
Pam Wow.

Speaker 2 (20:44):
The main winners from this judge's opinion are George Soros
and Gavin Newsom, and the losers are the people of
the state of Texas and the rule of law. He
then goes on and he totally dismantles the majority's decision
and it's unsubstantiated.

Speaker 1 (21:00):
Do mean in every sense of the word, an.

Speaker 2 (21:03):
Unsubstantiated claim that it was race and not politics, as
the driving factor in the redistricting decision. I should say
the redistricting map to be precise. Throughout he repeats the
phrase I dissent. I counted more than a dozen times
I dissent, I dissent, I dissent. He then includes two

(21:28):
pages of a quote non existing list of misleading, deceptive,
or false statements. Judge Brown put forward that takes in cahones,
You're accusing a fellow judge of actually putting in his
decision a list of misleading, deceptive, and false statements. Smith

(21:53):
says the list quotes would be considerably longer, but for
the press of time. There's no lack of fodder here,
do you, And remember this is a trumpet point a judge,
the one that's doing all of this lying and conniving
and violating every canon of judicial ethics that I can

(22:13):
possibly imagine. And then the judge that wrote the dissent
that I'm referring to actually apologized because he felt like
his descent was disjointed, but says, refining my descent was
not possible because Judge Brown.

Speaker 1 (22:30):
Have not allowed it, has not allowed it.

Speaker 2 (22:33):
Thus, he says My Descent is far from a literary masterpiece.
But he says, if there were a Nobel Prize for fiction,
Judge Brown's opinion would be.

Speaker 1 (22:43):
A prime candidate.

Speaker 2 (22:49):
We're losing the judiciary, whether it's judges that just let
repeat offenders out. So we had the case in Chicago,
I forget how many rests and convictions that dirt bag had.
We had the illegal alien in North Carolina and Charlotte.
I think that split the Ukrainian woman's throat. We've got

(23:12):
an example in Colorado of the You remember the case
in Boulder where a woman was driving recklessly and she
killed a biker riding along Highway one nineteen. That particular
convicted criminal was sentenced to four years I think in prison,

(23:36):
but she would qualify for parole within I think one year.
So the department, the prison department, whatever it is in
Colorado has decided that, oh, I think we'll just move
her to a halfway house. She recklessly killed a biker.

(23:56):
Now I get really pissed off at bikers because they
think they owned the road. But that doesn't mean that
I'm justified in running one over or being negligent and
killing someone. So she may be out on a four
year sentence, she may be out on parole having served
less than a fourth of that sentence, and maybe in
a house, in a halfway house sometime in the next

(24:17):
couple of weeks. So it's like our whole idea of
justice and our whole idea of judges actually upholding the
rule of law is virtually disappearing. Now, let me just
go back to the Texas case for a moment. According
to Smith, he's the one that wrote a descent Brown's opinion.

(24:40):
That's the one that wrote the opinion that throughout the
redistricting map claiming without any evidence that was based on race.
He says that opinion is so deceptive and so lacking
in fact or law that Brown could have saved himself
and the readers a lot of time and effort by
merely stating the following quote. I just don't like what

(25:03):
the legislature did here. It was unnecessary and it seems
unfair to disadvantage voters. I need I need to step
in to make sure wiser heads prevail over the nakedly
partisan and racially questionable actions of these zealous lawmakers. I'm
using my considerable cloud as a federal district judge to
put a stop to bad policy judgments. After all, I

(25:24):
get paid to do what I think is right. That's
what he actually wrote in his descent. Judge Smith actually
puts that in his descent. They should tell you that
this case is completely off the rails. The judge that
wrote the opinion. His actions are, according to Smith, the

(25:44):
most watant exercise of judicial activism that he has ever
witnessed during his lengthy judicial career.

Speaker 1 (25:51):
Now, according to Smith, again he's the one that wrote
the descent.

Speaker 2 (25:55):
The main question before the three judge panel was quote
whether the Texas legislature did its mid decade congressional redistricting
to gain political advantage or instead because the main goal
of Texas Republican legislators is to slash the voting rights
of persons of color. Now, the descending judge likened the
approach of the lawyers and the witnesses in that case

(26:18):
to the Department of Justice lawyers from the Civil Rights
Division in prior Texas redistricting cases. He wrote, it was
obvious from the start that the Department of Justice attorneys
viewed state officials and the legislative majority and their staffs
as a bunch of backwoods A. C. Bicketts who bemoaned
the abolition of the poll tax and paying for the

(26:39):
days of literacy tests and lynchings, and the Department of
Justice layers save lawyers, saw themselves as an expeditionary landing party,
arriving here just in time to rescue the state of
Texas from oppression. Having known people that work in the
Civil Rights Division, but the Department of Justice, I can
assure you that I think his observation is probably one

(27:02):
hundred percent accurate.

Speaker 1 (27:04):
Now, while acknowledging the acknowledging that the.

Speaker 2 (27:08):
Justice Department was not present in this case, Smith said
that the same attitudes about Texas Republican legislators had been
reflected in the testimony of multiple experts and witnesses presented
by these plaintiffs and occasionally by their talented council, and
the statements of the parties. But the obvious reason, he says,
for the Texas redistricting was partisan gain. The majority, he wrote,

(27:31):
commits grave error in concluding that the Texas legislature is
more bigoted than political. Remember, redistricting is a political action
taken by a state legislature, and the Supreme Court has
ruled for decades that the courts have no role in

(27:52):
it other than just making sure that they follow whatever
the state law is, and that it is indeed inherently
a political process, not a legal or judicial process. And
then the dissenting judge goes on to point out all
of the grave errors that this judge made in evaluating
the evidence in the case over what the legislatures did

(28:13):
and how and why their new districts were drawn the
way that they were actually drawn. I don't have time
to go through all of the errors that the judge
lists in his dissent. Smith says that the evidence, again,
this is the dissenting judge says that the evidence in
the case, as well as outside events like the victory

(28:36):
lap in Houston celebrate by California Governor Gavin Newsom, tell
you all you need to know. This is about partisan politics,
plain and simple, regardless of one's political start or one's
political slant. It's obvious what Texas is trying to do
in twenty twenty five. Obvious to everyone, that is, except

(28:56):
the two judges who join the majority opinion. The Republicans'
national margin in the House of Representatives, they wrote, is
so slim that squeezing out of majority might even depend
day to day on whether some seats are vacant because
of deaths or resignation. The new plan in Texas was

(29:18):
to make more seats winnable for Republicans by moving some
Democrat incumbents from their districts and rendering other districts unwinnable
by Democrats. Now, the descending judge describes that theory, the
one ultimately adopted by Brown, as both perverse and bizarre.

(29:39):
They claimed that if politics was the reason for redistricting,
that the Republicans wouldn't have drawn five new seats, but
instead would have drawn, oh, maybe six, seven or eight
additional seats, and that the reason they did not is
that that real reason for redistricting was racial animus.

Speaker 1 (29:55):
So think about the logic of that.

Speaker 2 (29:57):
Texas drew five new seats, But because they didn't draw six, seven,
eight or nine new seats, this judge concluded, Oh, they
didn't go that far because that might expose how they
were doing it based on race. That absurdity of that
kind of notion speaks for itself. You're impugning racism because

(30:19):
they drew five and didn't draw six, seven, eight, or nine.
That's exactly what the judge that issued the injunction thinks.
I want to make one comment about injunctions. And remember
this is a Trump appointee from Trump one point zero,

(30:39):
so obviously it was a huge mistake. Or maybe he
was a compromise candidate.

Speaker 1 (30:44):
I don't know. I don't care.

Speaker 2 (30:46):
What I do care about this is judges are becoming
such activists that they are now invoking their personal political
opinions into their decisions. And unless until and He'll hold on.
But unless and until the Supreme Court steps in and

(31:06):
basically screams at all of them and says, stop it
or else we're gonna overturn. We're just gonna start overturning
every single decision you do. I mean, start a fight,
start a fight. But if the Supreme Court does that,
I expect you to be ready for the howling that
will come about. All we need to pack the court.

(31:28):
We need to do so. The Supreme Court is out
of control. You know what the Supreme Court's trying to do.
They're trying to make certain that these judges stick to
the law. And this decision alone cries out for impeachment.
This judge, Judge Brown, needs to be removed, and Texas legislators,

(31:50):
Texas Congressman, because it has to start in the House.
You need to start those proceedings immediately, because it's time.
As we've said in other cases with cocuters, with judges
for that matter, with politicians or bureaucrats like doctor Fauci,
somebody's got to be held accountable and less. And until

(32:11):
we start holding people accountable and in this case doing
it through impeachment, this republic will continue to die. This
republic will continue to wither because nobody's being held accountable.
In Texas is the latest and unfortunately the greatest example
of that. Thank goodness, one judge had the cajones to

(32:33):
call a spade a spade when he wrote his dissent,
because otherwise this may have just flown completely under the radar.