10-10-25 *INTERVIEW* Former DC Circuit Judge David Tatel on the independence of the judiciary

Episode Transcript

Speaker 1 (00:00):
Good morning, Happy Friday. I'm Ross. You're listening to KOWA.
Thank you so much for being here.

Speaker 2 (00:05):
I have the distinct privilege of welcoming to the show
for the first time. Judge David Tateell and Judge Tytell
was formerly on the US Court of Appeals for the
DC Circuit, a court that is not officially but I
think of as the second most important court in the

(00:27):
United States of America after the Supreme Court, because they
get so many cases in that particular court that deal
with the proper constitutional functions of the federal government.

Speaker 1 (00:37):
He's also a member of the.

Speaker 2 (00:41):
Article three Coalition for Keep Our Republic and is going
to be one of three federal judges participating in what
promises to be a fantastic event next Tuesday evening at
the University of Denver. And I'll give you more details
on the event in a bit. But with that much
too long introduction, Judge Ttel, welcome to KAWA and thank

(01:02):
you for making time for us.

Speaker 3 (01:05):
Nice to be here this morning, Ross. And it's spruanced
taale if that's.

Speaker 2 (01:08):
Okay, I'm very sorry, Tail, I'm sorry about that. So
I have so many things I want to ask you about.
There are obviously a lot of things going on, you know,
in government in our judicial system right now that are
raising a lot of interesting questions, and I'll probably you know,
go through them in no particular order with you, but
maybe I would just like to start with the highest

(01:30):
level thing, and that is the topic of your event,
judicial judicial independence. What's on your mind at the macro
level that has you concerned.

Speaker 3 (01:46):
So there's two levels of concern ross. First of all,
the Article three Coalition is a coalition of about fifty
retires federal judges like myself, pretty evenly divided between judges
who are appointed by Republican presidents and judges who are

(02:09):
appointed by Democratic presidents. And this diverse group of judges
is deeply concerned at one level about the threats to
judges and judges safety that we've seen in the past
eight months coming from the highest levels of government, from

(02:32):
the President, from the Attorney General, from members of cabinet,
from senators, and from thousands of people around the country
who are calling judges chambers and threatening them, sending them
threatening letters. This is a dangerous time, uh, and we're
all deeply concerned about that and its impact on the.

Speaker 4 (02:57):
On the judicial system. You are are.

Speaker 3 (03:01):
One of the great ideas the frames of our Constitution
had was the best protection against authoritarian power is to
split power among more than one person. So that's why
we have three branches of government. We have a legislative,
an executive, and a judicial branch of government, and they

(03:23):
all have to agree with each other in one form
or another to act. And without an independent judiciary, the
independent judiciary can't perform its function. And these threats, these
constant threats are are are could could undermine the independence
of the judiciary. Now it's not doing that at this point.

(03:46):
The federal judges around the country who are receiving these
threats are not being intimidated. I know many of them,
and I can assure you ross they are not being
intimidated by any of us.

Speaker 4 (03:58):
But it's frightening to them.

Speaker 2 (03:59):
And they're families, I can imagine on a personal level.
I mean, and we all know the story of the
guy who went to try to kill Justice Kavanaugh and
then ended up turning himself in and just got sentenced
the other day.

Speaker 1 (04:11):
And there was now this next thing.

Speaker 2 (04:14):
We don't know if it was actually intentional, but there
was a house of a judge in what South Carolina
maybe recently that just burned down again. We don't know
that that was intentional, but we have we have a
president of the United States who attacked judges all the
time when they make a ruling that he doesn't like.
But we have also seen the same from the left
with Chuck Schumer attacking the Supreme Court when they make

(04:36):
a ruling that he doesn't like or the left doesn't like.
So how much of the blame for the threats and
the risk to an independent judiciary that you perceive and
that I perceive with you? How much of that do
you ascribe to other politicians? Well? Two pot I shouldn't
say other because you're not a politician.

Speaker 3 (04:57):
Hi, that's for sure. Here's one more example. Ross this
morning's paper. I just read reports one of the district
judges in Chicago ordered issued an order against the president
on the deployment of the militia in Chicago.

Speaker 4 (05:13):
She says her chambers have been flooded.

Speaker 3 (05:17):
With vicious threats on the phone, email and everything. Now,
you know that judge isn't going to be intimidated either, But.

Speaker 4 (05:28):
That sort of stuff has to stop.

Speaker 3 (05:29):
So which side of kind of Look, what Schumer did
was inappropriate, shouldn't have done it, and so I recall
he apologized for it. And over our history, threats to
judiciary haven't come from just one side or the other.
I acknowledge that they're inappropriate from any side. And but
for the since January twentieth, the threats have come all

(05:51):
from one side. They've come from from the President and
his cabinet and the people around.

Speaker 4 (05:59):
Him, and have come from his supporters.

Speaker 3 (06:03):
So the answering your question is these days are all
coming from one source.

Speaker 2 (06:10):
We're talking with Judge David Tatle, formerly of the US
Court of Appeals for the DC Circuit and a member
of Keep Our Republic's Article three coalition.

Speaker 1 (06:20):
So let me ask you a bigger picture question.

Speaker 2 (06:25):
Now, it seems to me that over the years, and
accelerating under Trump, but not only under Trump, there has
been this trend of presidents of the United States accumulating power,
going back at least to Obama, but maybe to FDR
or right presidents accumulating power in the executive that probably

(06:48):
the Framers would have thought belonged in the legislature, and
many members of the legislature seeming to be okay with it.

Speaker 1 (06:56):
I think a lot of these folks.

Speaker 2 (06:58):
Liked being invited to all the best cocktail parties, and
if they can hand over to the president some of
what might cause them a headache in an electoral primary
or an election, they're happy.

Speaker 1 (07:08):
To do it.

Speaker 2 (07:09):
So I find that Congress does not guard its prerogatives
nearly to the degree that it should, and it seems
to me that that ends up causing the judiciary to
have to jump in more than you might.

Speaker 1 (07:22):
Otherwise have to or want to.

Speaker 2 (07:25):
So obviously, I'm not a lawyer and I'm not an expert,
but I would like to know what you think of
that theory, and if you think it's right, you know
what should we do.

Speaker 3 (07:33):
Now. There's a lot of questions embedded in that question,
but I totally agree Ross was your last point about Congress.
Congress has become it's worse than dysfunctional. It's as if
we don't have a Congress right now. Congress is one

(07:55):
of the three independent branches of government. It's supposed to
check the abuses of the others, and Congress has failed
completely in that part of its responsibility. And as a
result of that, you know, much more pressure is put
on the course and the Supreme Court but also at
this time in our history, we have a court. Now,

(08:17):
let me just say something about this. Yes, I'm here
as a member of the Article three coalition, and because
we're more from different parties and judges with many different views,
there are many aspects of this we don't necessarily agree on.
And my answer here is going to be David Tatle
speaking for himself, not for my colleagues.

Speaker 4 (08:41):
But we have a.

Speaker 3 (08:41):
Time right now in our history where the Supreme Court
is itself failing to check the abuses of the president
and in fact is enabling those abuses. Now over history,
You're right, there have been many times when presidents have
tried to exceed their constitutional powers over our history. You
mentioned the New Deal. Well, during the beginning of the

(09:04):
New Deal, the Supreme Court blocked President Roosevelt's efforts. During
the Nixon administration, there was there was tremendous abuse of
presidential power, but there the courts checked him. I mean,
just compare this Supreme Court's decision regarding presidential immunity to

(09:26):
you know who, to the United States versus Nixon, the
Nixon Tapes case, where the Supreme Court unanimously composed not
just of democratic and Republican appointees, but of several justices
appointed by president ruled against.

Speaker 4 (09:41):
President Nixon and told him to turn over the tapes.

Speaker 3 (09:44):
So the difference between now and the other times in
history when we've had threats of president presidential abuse of power.

Speaker 4 (09:52):
Is that they were checked. They were checked by by
the by the courts.

Speaker 3 (09:59):
As in both the Nixon and Roosevelt, and by both
branches of government. During Nixon it wasn't just the court,
but remember the Congress passed articles of impeachment. So this
is the first time that I know of, it's truly
in my lifetime ross where the checks and balances are
sailing from both the congressional and.

Speaker 4 (10:21):
The judicial branch of government. I've never seen that happen before.

Speaker 2 (10:24):
So as I watched some of the things going on
in the US right now and some cases going to
federal district courts, the lowest level of federal courts, and
separate from what I might think of any given policy,
I'm probably one of the few people who's fairly ambivalent
about Donald Trump, in the sense that I love some
of what he does, and I hate some of what

(10:45):
he does, and I try to think clearly about all
of it. I see cases go to these district courts,
and the district courts put a you know, make a
ruling that. Again, I'm not a lawyer, but I read
a lot of constitutional law, and I pay very close
attention to this stuff.

Speaker 1 (11:01):
Right and good for you?

Speaker 4 (11:03):
Yes's good for you.

Speaker 2 (11:04):
And I see rulings from district courts that strike me
as plainly wrong that then end up being struck down
pretty quickly by the the appellate courts, even before it
gets to the Supreme Court.

Speaker 1 (11:15):
And I think it causes a lot.

Speaker 2 (11:16):
Of folks to look at some of these judges as
being sort of activist, anti Trump judges, And I wonder
what your thoughts are on that. I get the sense
that you're not a big Trump fan, but I wonder
what your thoughts are on these Why so many district
court judges seem to be making rulings that get overturned
not by the Supreme Court maybe eventually by them, but

(11:39):
by the next level of appellate court above them.

Speaker 3 (11:45):
I'm gonna answer your question, but I want to make
clear to you Ross that my views about all of
this today are not influenced by my political views about
the President of the United States. What I care about
as a US citizen and as a retired judge, is
the rule of law. Yes, that's what I care about,
and I care about preserving our constitutional system, And regardless

(12:08):
of one's political views, I think everybody agrees now that
we are facing a serious constitutional crisis, and that as
a non political observation, and I suspect and I know
there are judges across the political spectrum who agree with
me on that now. Answering your specific question, look, district

(12:28):
judges around the country are being flooded with cases. There
are hundreds of them all around the country, and district
judges are doing their very best.

Speaker 4 (12:42):
To process these cases.

Speaker 3 (12:43):
Correctly, to try to understand what the law is and
to apply it to the facts. Now, have some of
these decisions been wrong, Yes, there's no doubt about that.
I think some of these cases that have filed have
been filed prematurely. I think some of the cases that
are filed against the administration are marriorless, and some of

(13:05):
them have produced decisions that are wrong and have been reversed.
That's exactly the way the legal system works. But there
are far more district court decisions that are correct that.

Speaker 4 (13:17):
Are being reversed.

Speaker 3 (13:18):
By the appeals courts and the Supreme courts, that it
is not a balanced situation.

Speaker 2 (13:25):
You know, that's a very interesting position to take in
the sense that in the sense that we tend to
think of the Supreme Court as the final answer. And
I think you and I will both say the Supreme
Court has been wrong many times over its history. You know,
you go back at least as far as dred Scott,

(13:47):
and the Supreme Court has been wrong plenty of times.
But I do find it, how do I want to
put this, If a district court is overturned by an
appellate court that is then up there, and the appellate
court is over turn is upheld by the Supreme Court,
I find it a little bit difficult to argue that

(14:10):
the district court was right and two courts above them
were both were both wrong.

Speaker 1 (14:14):
It seems like it could be true, but you would.

Speaker 2 (14:17):
Think the benefit of doubt probably needs to go with
the two higher courts that agreed with each other.

Speaker 1 (14:22):
What do you say to that.

Speaker 3 (14:23):
I actually don't agree with that at all. You just
you can't tell unless you look at the cases. There
are situations where you know a district court's decision is
reversed by an appellate court and then the Supreme Court.
The district court may well have been read correct about that.
They're just the opposite situations. You have to look at

(14:43):
each decision ross to know. But let me tell you
something that's happening in the past six months that hasn't
happened before, which deeply concerns me.

Speaker 4 (14:52):
And that is.

Speaker 3 (14:55):
Quite a few of the Supreme Court's decisions in the
past four or five months reversing lower federal courts in
decisions involving President the Trump administration either firing government employees
or terminating funding or deporting people. And these cases are

(15:19):
decided by district courts, affirmed by courts of appeals, and
reversed by the Supreme Court without an opinion.

Speaker 1 (15:26):
Yeah, I don't like that either.

Speaker 4 (15:28):
Look, the only.

Speaker 3 (15:29):
Thing, there's many things that distinguish judges from legislators. One
of them is that judges have to explain themselves. Judges
are elected, federal judges are appointed for life.

Speaker 4 (15:42):
We don't have to run for office.

Speaker 3 (15:44):
A senator or a congressman can vote yeah or nay,
and if we don't like it, we can vote against them.
Judges can't do that. Judges have to explain their decisions.
The public has to believe that judicial decisions are legitimate
the acts of judging and not simply the result.

Speaker 4 (16:03):
Of judges policy preferences.

Speaker 3 (16:05):
And we won't know that unless the judge explains him
or herself. I agree we have too Yeah, we have
too many Supreme Court opinions with no analysis. And to
make matters worse, these decisions that have no opinions are
almost all six to three with the Republican appointees and

(16:25):
the majority that they're Democrats in Zerkas. So you could
forgive the public loss for thinking that the Supreme Court
has become And I'm not saying you could forgive the
public for thinking that the Supreme Court looks like a
political body.

Speaker 2 (16:40):
Right, maybe, yes, you could forgive the public for thinking that. Yeah,
I don't think that myself. I think that what we
have as a Supreme Court that has a very different
conception of the limitations of executive power.

Speaker 1 (16:57):
Than previous than previous Supreme courts had.

Speaker 2 (17:00):
Which will cause people to feel the way that you described.
But I think it's just an absolutely fascinating conversation.

Speaker 3 (17:07):
But don't you think don't you think ross as a
citizen you would be. I actually agree with what you
just said about your instinct about the court. It does
have a different view about presidential power than I do,
for sure, But don't you think both you and I
would be much better off if the Court explained these decisions.

Speaker 2 (17:26):
Yeah, one hundred percent. And I actually think the Court
would like to explain. I think part of what's going
on is that you've got this massive crush of cases
in this rushed shadow docket that don't get processed in
what in Congress you might call regular order. And I
think that's a problem for absolutely everybody, everybody.

Speaker 3 (17:46):
Of course, the Court doesn't have to take all these cases.
I mean, it could just affirm, right, it doesn't have
to take all these cases. And I've heard some of
the justices say, well, you know, we need to be careful.
It's complicated. We need to take the time to write
opinions and we just don't have that time right now. Well,
they're judges, and number one, they have to explain themselves.

(18:08):
And number two, the dissenters don't seem to have trouble
writing descents. They can get twenty thirty page descents written
in this short of time.

Speaker 4 (18:18):
The Court.

Speaker 3 (18:18):
I think the Court has an obligation to explain itself.

Speaker 1 (18:21):
I couldn't agree with you more.

Speaker 2 (18:22):
And I think as I said, I think the whole
country would be well served by it. And I am
somebody who fears. Yeah, fears is probably right. An accumulation
of power in the executive. I realize we have three
co equal branches of government, but in my mind Article
one is about the legislature for a reason, and if

(18:45):
I'm going to have a little extra accumulation of power,
I'd rather have it there than in the presidency.

Speaker 3 (18:50):
Judge Dwach, I agree with that. I agree with that
the framers thought it was. It was the people's department.
Article one is the people's branch.

Speaker 1 (18:58):
Yeah, absolutely, That's.

Speaker 3 (19:00):
Where the power is it. That's where the power to
declare war is. That's where the power to spend money is. Right,
that's where it's supposed to be in a democracy.

Speaker 2 (19:10):
Judge David Tatle and two other senior recently retired or
not so recently, with one of them federal Federal judges
can be participating in an amazing event next Tuesday at
the University of Denver. It's five point thirty pm to
six forty five pm at the Rickittson Law Building, and
this is a public forum on judicial independence and checks

(19:34):
and balances.

Speaker 1 (19:35):
All the information is easily found.

Speaker 2 (19:37):
On my website at Rosscominsky dot com, probably easier than
going to look it up any other way I would
be I'm going to be out of state, Judge Tatle,
or I would be there to listen in person. But
I'm very grateful for your time and for your many
years of service on the DC circuit.

Speaker 3 (19:55):
Well, thanks, Ross, I've enjoyed this, and I hope your
listeners will come Tuesday night.

Speaker 4 (19:59):
I think it'll be really interesting and informative.

Speaker 2 (20:01):
I do too. Thank you so much, Judge Tatle. I
appreciate your time. All right, folks, if you go to
Roskimisky dot com, you can get more information on the
event next Tuesday evening evening.

Speaker 1 (20:10):
I do understand lots.

Speaker 2 (20:12):
Of listeners kind of picked up some kind of let's
call it liberal bias there from that judge, and I
pick it up too, But it doesn't It doesn't mean
he's wrong. It might mean he's a little bit more
sensitive to certain things than you and I might be.
But these are really important, serious issues for our country.