Civility vs. Collegiality | Interview: Judges Tom Griffith and David Tatel

I'm Sarah Isger, that's David French. We will talk about bar fare. We will talk about administrative stays and interim dockets all the way down, but then we will have an amazing conversation with former DC Circuit judges Tom Griffith and David Tadal. Now, by way of some background, Tom Griffith served on the DC Circuit for 15 years from 2005 to 2020, he was a George W. Bush appointee, Judge Tadal was on the DC Circuit for 30 years, appointed by Bill Clinton and retiring just a couple years ago. They've been doing a bit of a road show on judicial independence and judicial collegiality. I thought, well, that sounds very a-o. But also, I suffered at Wiley Rine where Judge Griffith had been a partner and that summer I got to use his standing desk and it was amazing, David. He has incredible taste in wood furniture, so I mean- Is that what converted you to standing desks? It actually is. That was my first standing desk, Judge Griffiths. Well, he just had gotten confirmed, so I was supposed to overlap with him that summer, but he left for the DC Circuit, so I didn't actually get to work with him that summer. Maybe I would have been a real lawyer if Judge Griffith had been partner Griffiths that year. Who knows? All right, David, about further ado, let's do this. All right, David, on another fun episode of Advisory Opinions, I thought we would start with this bar fare, kerfuffle. So, we've talked about law fare on the podcast, this idea of using criminal or civil laws to get at your political enemies. Well, new term bar fare, and this is the idea of using bar complaints against lawyers for your perceived political enemies. I want to ask a question of what is bar fare, is this a thing we should be concerned about? And I want to start with this issue of James Percival, aka Jimmy Percival, the General Council at DHS. So, on July 23rd, he got on Twitter and had a thread. Here's how it starts. Every day, the brave men and women of ICE risk their lives to remove the worst of the worst from our country. Today, in honor of the DHS worst of the worst series, I am starting a new series, worst of the worst district judge edition. He then criticized for sitting judges. Judge Matthew Conelli for quote, entering in order to stain the termination of TPS for Burma, even though these decisions are not subject to judicial review. Judge Alison Burrows, for quote, denying our request to go forward with termination of Somali DPS, notwithstanding our Supreme Court wins. Judge Polizinis for entering in order, preventing the removal of Kilmar, Ubrego Garcia. And Judge Hernan Vera for quote, entering in order, micromanaging DHS's use of force policy with respect to violent ICE agitators in Los Angeles. OK, so then last week, David, 128 retired judges filed an ethics complaint against Percival with the Florida bar. They argued that Percival's worst of the worst thread had, quote, the effect of impugning the integrity of the four sitting judges, mischaracterized important elements of the cases, increase the unfounded perception that the judiciary is biased and its results unfair, and raised the risk of threats of violence against judges. So David, let's start with you. Is this good or bad, like are they right or wrong? And separately, maybe, is this bar fair? This can be a not-meritorious bar complaint, but still not be inappropriate, or it could be a not-meritorious bar complaint, and be inappropriate, and we can call it bar fair whenever other term you like. Yeah, so let's give a little bit of background here because some people might be thinking, wait, you could file a bar complaint against somebody for criticizing a judge. Are you serious? Isn't this like core First Amendment protected activity? And the answer is, it's more ambiguous than you might think, because there are ethics rules regarding the extent to which that you can criticize a judge, to the extent that you can impugn the integrity of a judge. And so when I was practicing, and I practiced, I was litigating for 21 years before I became a journalist. I wouldn't dream of saying any given district judge is the worst of the worst, or part of the worst of the worst. My assumption would be, if I did that, that the judge, to the extent that I was potentially operating in their court, or practicing in their court, the judge would respond. In other words, my attack on a judge would be the business of the judge that I attacked, going to a bar complaint, sort of going above and around, or not above, but around the judge to the State Bar Association, that was something that never really crossed my mind as a possibility. And this is something that I think that the use of a bar complaint to try to punish or chill someone for engaging in conduct that even if you in good faith believe it, my transgress is a big step. I would say your first recourse, the first recourse, the first person who has the opportunity to step in at this point is the judge himself or herself. Now that gets a little bit complicated if you're not actually practicing in their court. If you are not even barred in their court, for example, if I am barred to say in Tennessee or Kentucky, and I get admitted pro-hogged VJ to another district, then I'm squarely in their jurisdiction. It gets complicated. But the bottom line, Sarah, is I generally believe in this circumstance that it is primarily the responsibility of the judge if the judge feels that this action transgressed ethical boundaries for the judge to take action. And that was always who in my mind what I was thinking about. If I was, you know, I would be questioned by the media all the time about a court ruling and say a court ruling that I didn't like at all. And there is a reason why lawyers almost always say we disagree with the judge. We respectfully disagree with the judge, and that's about it. They don't lay into the judge. Not just because they're going to continue to practice in front of them, but also because this is not something that you are supposed to do. Anything that impunes the integrity of the court, in the absence really of like real evidence that would cast the integrity of the court into question. And by the way, an opinion you don't like is not evidence, right? And so this is where I am. If this is for the judge to respond. And also I am worried about bar fare. I am worried about coalitions of people filing bar complaints, especially when those coalitions of people haven't actually been injured by the conduct in question. Normally a bar complaint comes from say somebody who I, my attorney misappropriated my funds. I file a bar complaint. You know, an attorney tried to sleep with me, a file, a file a bar complaint. Not a realistic possibility, but I'm trying to, I use money and sex as the, those are the classic ways that people lose their license like that is those are the classic ways. And so my general feeling is I do wonder if a judge doesn't take action in when the conduct is directed to a judge said someone go around that judge to the bar. I have qualms, you know, I see the, I see the pitfalls here. I don't have qualms. I am bordering on outraged. So you're right, though, David, let me read you what the Florida bar prohibits making false public statements or statements made with reckless disregard for their truth regarding the qualifications or integrity of judicial or legal officers. That is different than you can't criticize judges, by the way. Right. Very different. These need to be basically factual statements that go to the integrity of the judge. So like, you know, falsely saying that a judge is right handed instead of left handed is factually false, but doesn't impure their integrity saying they got that opinion wrong because they hold stock in a company that they do not hold stock in. would both be false and impugning their integrity. They got this opinion wrong and I think it's the worst opinion of the decade is not a factual statement even though it may impune their integrity. I would argue that all of Percival's tweet was either factually true and impugned their integrity. You know, yeah, maybe he didn't provide all the context. Like if you provided more context, you would have had a different light. That is not actionable under Florida Barrels and I'm no expert on Florida Barrels. But like my point is number one, yes, you might give up some First Amendment protections, but not that much joining the Florida bar and you are welcome to criticize judges and judicial opinions factually and with opinion. You can have all the opinions you want and you can say those opinions. Now, you're right, David, that the judge can hold you in contempt. They can sanction you all sorts of things. But as far as the bar is concerned, you did not give up but a tiny sliver, basically defamatory and only a certain type of defamation, defamation that goes to the integrity of the judge or a legal officer of the court. So that's number one. Number two, if we're applying this rule, this goes to the bar fair point. I know some podcasters who have bar licenses who would be very open to bar complaints if that's our new rule. Heck, David. I know who you're thinking about. I don't, I think you and I could be very open to bar complaints if that's the rule. I'm still licensed. I think you are too. Oh, yeah. Yeah. So I remember the Supreme Court bar and it was so funny. The first time interview Justice Gorsuch, he goes, well, how's this going to go? So, you know, we were kind of joking beforehand. I was like, well, I remember the Supreme Court bar, Justice Gorsuch, well, I'm constrained. No. It was a joke. That's if you are barred, you do think about this. Yeah. So like someone could file a bar complaint against each of us because we have no doubt criticized judges and judicial opinions. And then my number three problem with this, David, former judges using their titles to file bar complaints because they don't like what someone said. Nope. I think that is a really inappropriate use of being a former judge. You are welcome as a former judge to sign anything you want as far as I'm concerned. You can go protest from sunrise to sunset. But you can't use the title, former judge because the only reason you're using that title is to add the prestige that you had while holding that title. I have complained about this before, David, with these amicus briefs, same exact problem. But I think this is more pernicious, the idea of state bars receiving complaints from former judges for criticizing current judges along very partisan lines. It's not going to end. I assure you that the second there is a new administration and maybe not even conservatives are going to start filing bar complaints against the liberal judicial commentators who have access to bar licenses, especially in conservative jurisdictions. Yeah. Why is this helpful to the rule of law? You know, what we really need to do is understand that dumb or malicious is not the same thing as unethical or unlawful. So one of the reasons why you don't hear lawyers engaging in worst of the worst style language or about judges is because it's dumb. There's no upside really in reality to that. And theory, a judge should be able to put aside any personal insult at all and just rule completely on the law and the facts. But if you don't have in your mind that a judge is a human being just like me and that one of my jobs as an effective advocate is to make it easy for them to rule for me. You want no speed bumps, you want no barriers, you want to create the smoothest possible path to rule for you as a reason why smart lawyers don't do this. And that's a reason why it feels boom, like very jarring when you see actual practicing lawyers who practice in federal court use that kind of rhetoric. Doesn't mean it's unethical or illegal and there is a big difference in those concepts. And so that's why in these kinds of circumstances, I would never dream of filing a bar complaint because I'm going to defer to the judge who's court this is in. How are they interpreting this? How are they responding to this? This is, and if the judge is making no effort at all to implement sanctions in their courtroom, which judges absolutely can do, now you can appeal and you can make your arguments against the judge's action. To me, when you're talking about an attack on a judge, the judge is the first responder period. Well, with that, please don't file bar complaints against Will Bowden Dan Epps, even though I said all that stuff about them, I'm just kidding. Will Bowden, that's exactly who you were thinking. I know it. I can't believe you said it out loud, Sarah, why you put a target on their back? All right, David. To the next bit of news, the injunction against Donald Trump's administration continuing construction on the ballroom was set to take effect. The administration had filed an emergency application at the Supreme Court on the interim docket, and Chief Justice Roberts acting on his own issued an administrative stay. So all that means is we keep the status quo in place that a junction doesn't go into effect until basically the full court can have thoughts and feelings about this. This is exactly the administrative stay we saw when Justice Alito entered an administrative stay on the Texas abortion restrictions going into effect. The full court after that did, in fact, vote to not allow those abortion restrictions to go into effect, even though that was a one-judge administrative stay that you're not supposed to read anything into. So David, I present that to you by way of saying this is what I was talking about with interim dockets all the way down that like if you want the court to always have to write something and explain itself, you're going to have to then have an interim decision before the interim decision. David, what say you? You know, I was the least surprised person in the history of the world when this order came down, and one of the reasons why I was least surprised is because of our conversation that we'd had just days before, how timely is this podcast Sarah? I feel like our listeners got a real sense of why construction may go forward even if the statutes at issue seem to be pretty clear that at best they're going to authorize a kitchen remodel, not a wing demolition, right? But when we're walking through standing, I don't know, I mean, I felt like both of us found the standing analysis pretty unconvincing that there was, there were a lot of standing problems there. You know, anytime you're basing, you're standing on, I like the way this looks. And now I don't like the way this looks. That's not your greatest argument, I've got to say. It's not the best husband of the pod. You have no standing to complain in how I'm decorating the house just because you don't like the way it looks. Now, I mean, obviously, I'm I'm exaggerating for effect, but that was a lot of the standing. I mean, go through the go through it. Look at it. Oh, no, it's actually, I don't think you're exaggerating. She was like, I walk through this park a lot, and I like the architectural style that they used. And now I don't. That is an injury. It's not an injury, guys, I mean, now that's let you, there are environmental cases. For example, that's less of an injury than I fish in this river. And now I can't fish in this river. That's a I study this dragonfly and it's about to go extinct. Right. That's a different thing. This is that's building is ugly now. I mean, I, wow, I only like pretty buildings too much gold leaf. I'm kidding as Sue, you know, as I said, I think the EOB, the building next to the White House, used to be called the OEOB, the old executive office building now. It's called the Eisenhower executive office building. I think it looks like MC Escher had a stroke. I would like it torn down. I hate it, but nobody's giving me standing. Yeah. Let's file Sarah. Oh, well, I mean, we haven't done not until you've tried to get standing. So yeah, I, and I'm very happy to have, and we keep not doing this. And one day we should do this is to have expert standing person on this podcast to sort through, when do my hurt eyes qualify for standing, when do they not, et cetera, I'll get all of it out there, really dive into it. But as I was reading, I just had this feeling like I don't, I can't count to five on this standing analysis. It's really hard for me. This is only administrative stay. It says nothing about the underlying merits of the case, and it's only been issued by one justice of the court. We know nothing except in our era of interim docket decisions where you have to have a decision before the interim docket decision. So, take that for what it's worth. We'll see, maybe David and I are way off. David, we get back from this break. We are welcoming two former judges from the DC Circuit. We will talk about, I don't know, relationships, what it means to have judicial independence and judicial collegiality at the same time. And we're gonna ask though about this former judge thing. So, stay tuned. Managing people comes with a lot more than simply building a good team. There's payroll, tax filing, onboarding, benefits, and plenty of other details that have to stay organized behind the scenes. For a small business, managing all of that across different systems can get complicated quickly. Gusto brings those responsibilities together and helps make them easier to handle. It gives small business owners a more straightforward way to stay organized while keeping the focus on their people and the business itself. Gusto is online payroll and benefits software built for small businesses. It's all in one remote friendly and incredibly easy to use. So you can pay higher onboard and support your team from anywhere. 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And I guess I think our listeners will take for granted the importance of judicial independence. But I don't wanna take for granted whether civility is necessary for that or just a nice thing to have. - Hey, so can I take issue with one point that you made that we have very different judicial philosophies? I think we may have different political philosophies, but I think our judicial philosophies pretty similar. And that is that the role of a judge is to apply the law to figure out what value the American people have chosen and put into law. And the judge is to apply that. So maybe we can core all over what you mean by judicial philosophy, but I embarrassed Judge Tadal. This is a joke. I embarrassed Judge Tadal at his portrait ceremony. He was kind enough to invite me to speak. And in front of all his family and lifetime friends, I announced that he was a judicial conservative. And he is by my definition of judicial conservative. Somebody who's not making decisions to favor your own policy outcomes, but to make decisions that are required by the law regardless of whether you favor the policy outcome. So in that sense, I think we're very similar. - Sarah was a hot bench for you already. You barely got through the opening. - I know, so I like that story a lot that Tom tells 'cause he keeps telling it over and over again. It's great. - And coming as a shock to call Judge Tadal a judicial conservative, but this idea of civility, okay? On the one hand, I get why it's nice at a workplace for everyone to be civil to each other. It's more pleasant to go to work with people who you enjoy being around. But that's different that being necessary to judicial independence, to good judicial outcomes. And I think that some people could argue pretty persuasively that sometimes civility can get in the way of the right outcomes, especially for judicial independence. If you're trying so hard to stay friendly with someone, maybe you're not gonna write a dissent that is as vociferous as it should be. And you guys have talked about not writing that many dissents during your time on the DC circuit. So is civility a value in and of itself or is it a value that actually feeds judicial independence? - Well, let me try to introduce this way. First of all, this relationship that Judge Griffith and I are talking about was not just the two of us. During those decades, there were other of our colleagues who approached the job the same way. It was an unusually collegial court and composed of judges with very different political perspectives. But when it came to judging, we were all basically following the same rules. But Sarah, I think you've made a good distinction here between civility and judicial collegial. Civility is important. If you're with people all your lives, you wanna be civil and pleasant. But that isn't what I view judicial collegiality as judicial collegiality is a phrase that I use for judges who are listening to each other, respecting each other, responding on the merits and sometimes even changing their minds in view of what their colleagues say. And that collegiality is, I think, critical to the appellate judicial process because it's through those respectful discussions that three judges can find ways to reach agreement on important issues. And Tom and I can both give you many examples of those. I talk about several of them in my book and I've talked about some in our speeches together, but judicial collegiality, the kind that I'm talking about, is I said critical to the judicial process, not just because it's a way of reaching consensus, but the Chief Justice has said, if it's not necessary to decide something that's necessary not to decide it, it's the conferences among the judges where that happens. It's when you return from oral argument and you sit down with two of your colleagues and you start discussing a case and you may realize that you disagree on some big issues, but you can find a narrower way to decide the case and you can produce a unanimous opinion that way. And that does not happen without the kind of judicial collegiality that Judge Griffith and I were happy to practice and that we did with our other colleagues, people like Judge Centel and Judge Silberman and Judge Williams and Judge Garland. It was an unusual group of people approaching their judging responsibility that way. And you can see it in the results of the court. What you see in the results is large numbers, many unanimous opinions on issues you would not expect unanimity, that's the result of that collegial and fewer dissents. And you can see that in the record of the DC Circuit during those years. - The worst civility is perhaps vague and ambiguous and misused in many ways. When I think of civility, I'm not thinking of pulling punches on things that you think are important. It's the way you do that. And that you don't call in the question the good faith of someone with whom you disagreeing. They just see things differently than you do. They're not a bad person. They're not a corrupt judge. They're not rogue or anything like that. You just see things differently. And so I think that's an important qualification. I'm not talking about not disagreeing. We're talking about that you disagree in a way that the respects the person with whom you disagree. - So I was, I asked a couple of years ago, I asked Justice Gorsuch about this very issue about civility on the Supreme Court. And he gave a really interesting answer. And I'll give you sort of the paraphrase of it, which was essentially let's talk about what we're, what we're really talking about when we talk about civility. Are we talking about going to the movies together? Are we talking about being able to do the job? And he was saying that the court has all of the civility that it needs to do its job well, that they interact with each other. They produce a lot of unanimous opinions. They work together. as a court. And I was reflecting on that answer and I thought, huh, that's interesting. And although I would love to get a, like, be on the fly on the wall, if like, Justice Gorsuch and Justice Sotomayor ever went to, like, Spider-Man together, that would be an interesting story. But I was, the more I thought about, the more I got skeptical about that sort of bifurcation, like, a, I don't think people necessarily work in such a way that they're completely civil and collegial sort of at the job, but there isn't really, that there are two sharply distinct spheres between sort of friendship and professional civility and courtesy, et cetera. I think they bleed into each other a bit because everyone I've ever known who's talked a lot about civility across differences, like, y'all, you know, Robbie George and Cornell West do a kind of road show on colleges that's very effective because people realize that Robbie George and Cornell West are very different politically, but they also seem to genuinely like each other. And I've, I've never seen, like, a sort of civility road show where the folks don't also seem to generally genuinely like each other. So how sharp are those distinctions? Because it feels to me that workplace collegiality almost invariably bleeds into friendship and friendship bleeds into workplace collegiality. This is where Judge Tadal says he effing hates Judge Griffith. I know. I'm waiting, this is what I've been setting up the whole time. Yes. Yes. Look, I think having a good relationship with your colleagues and as you said, David, truly liking them helps produce judicial collegiality, but it isn't absolutely necessary. And I'm not going to go into personalities here, but on my court, there were a couple of judges who I deeply liked and enjoyed and there were others who I didn't, but then, but we all worked well together because we respected each other's views and we were engaged in the same undertaking. And, you know, I can point to point many examples of situations where, you know, because I respected my colleagues, they would convince me of something at oral argument that I looked at a case a different way after what I heard from them and vice versa. Happens all the time, but it happened because we all respected the rules under which we were operating. That is, you know, we were bound by precedent. We respected the language of the constitution and the statutes. I'll tell you an interesting quick, just a side story. So judge Centell and I, judge Centell was appointed by Reagan, I by Clinton. You couldn't find two people with two different policy views about most of the world, but yet as judges, you know, we produced many unanimous opinions and situations where you wouldn't expect it to. Well, one day at lunch, we were talking about a grand jury issue. I can't even remember what it was. And, and one of us said, you know, let's write an op ed piece about that. So we, we decided to do it. And I'd write a draft and sent it to him and he sent it back and you know what? We quit. We couldn't do it because we weren't operating, you know, under the rules of judicial restraint. There weren't any guidelines under which we were operating. We were just disagreeing as a matter of policy and we couldn't produce an op ed piece under those circumstances. And that's always illustrated to me how important these principles of judicial restraint are to producing judicial collegiality and operating within that system. Does that make sense? Absolutely. Yeah, yeah, but David, I think, I think you're onto something, David French. I think it has a lot to do with small group dynamics. For example, David Taylor just mentioned having lunch together with, with Judge Centell. One of the advantages of the DC circuit is we're all in the same building. And, and what that means is we, we would have lunch together regularly. We had a regularly scheduled lunch every month where we'd have a guest speaker come in and, and, and listen to them. But there's lots of, lots of other interaction. Judges routinely have lunches in each other's chambers with their clerks. And so I, I think that, I think the, the, the nice guy friendship part has a lot to do with it. I, I think it is true, it's not necessary that you'd be a friend with someone to be simple with them. But I think it helps. I think it helps. And I think the more there is a small group dynamics, getting to know each other, getting to know their family and their background and interest, I think, I think it helps in that regard. Okay. Judge Griffith, we have listeners to this podcast who are passionate conservatives, passionate liberals. And I think they are listening to this. Let's just take our, our typical conservative, passionate conservative. And they're saying, okay, that's great that you guys had happy fun time, braiding each other's hair and painting each other's toenails at the DC Circuit slumber party. But the times you're referring to and the cases, for instance, that y'all raise in some of these examples, Shelby County, for instance, that is a very liberal time for the DC Circuit. And when the rule of law is at stake, your job as a judge is not to be there to make friends. Your job is to fight for the Constitution, even if that means alienating all of your colleagues. You are to speak truth to the time and posterity, right? Your job is to be John Marshall Harlan is the sole dissenter. And so saying that dissence can undermine collegiality on bonk votes, can undermine collegiality, that's not, you know, that's not the proper role of a judge. And by the way, same with our passionate liberals who I think would say judge title, if it means burning the house down to say what truth and justice is by God. That's what you were supposed to be doing. And how do you respond to people who say that these times call for different measures? Yeah. What I say is you can stick to your conviction about what the law applies without being a jerk about it. No, I mean that. What if I can't? Well, then you shouldn't be a judge. That's what a judicial temperament is about. And it comes from humility. There needs to be a judge needs to be humble. Look, I think I'm getting it. I think I'm getting it right. I think I've thought carefully about the case. I think I've studied the law carefully. But you know what I might not be. I might not be. And the person who sees things differently than I do, they actually might be, they might be right. And so you approach you with a certain sense of humility that I think this is the right answer. I think this is the right way to go. And you know, you know, you don't, you don't pull punches. If it is the constitutions involved, and you're applying the law, now you're applying the law. You're not there to make nice, but it's the way you go about doing it that makes all the difference in the world. And so, I mean, I saw many times where an opinion would be circulated. And the the the chief judge in various chief judges would ask one of my colleagues or ask me to change the wording because that's just a little snarky. Can't you make the point without without the snark? And the and the judge would comply with that. And so no, no, you stick to your convictions. You apply the law. And you're going to dissent sometimes. You're going to disagree sometimes. But it's all the way you go about it. And it and I believe you approach it with a fair degree of humility that you think you're right, but you may not be. You know, that was the famous quote that Justice Scalia loved from from learned hand, you know, the the spirit of liberty, the spirit of liberty is the spirit that's not too sure that it's right. So there's a humility point here. Yeah, let me add two thoughts to that Sarah about your question. First of all, I think there's a big difference in terms of judging between being on a court of appeals and the Supreme Court. The fact is that at the circuit court level, there are answers to most of the cases we have. People can work together and produce an answer. We're much more bound by by our own precedent and by Supreme Court precedent. So that's that's number one. Number two, you know, I've written my share of passion at the sense when I thought I needed to. And you know, you mentioned, I don't know what you meant by Shelby County was at a time when we had a liberal DC circuit. Is that what you said? Yeah, that's what I said. You want to say what you mean about that? I mean, I'm trying my best to, you know, steel man, the other side here, conservatives had long seen the DC circuit as a the most important circuit that was liberal. And this is what causes the judicial confirmation wars, the blocking of Miguel Estrada. They blow up the filibuster over the three seats on the DC circuit all over, maintaining liberal control over the circuit. That's how the argument goes. Well, all I can tell you is that I think that the experience that the three of us, Judge Williams, Judge Griffith, and I had in Shelby County, is just a classic example of how good judging should work. Well, you tell everyone that just basics of this. By the way, I do think it's a really good story. And I want you to tell it. Okay, I'd be happy to tell it. I'll tell the first part of that. Judge Griffith could tell the second part of it. So, you know, Shelby County was before the DC circuit. The question was the constitutionality of the preclaire provisions of the voting rights act. We had had the case five years earlier in Northwest Austin and as you remember and I was on that also and we found it, we found it constitutional, went to the Supreme Court and the Supreme Court ducked the constitutional issue, warned the Congress that there's serious constitutional issues here. Congress being Congress didn't respond. It came back in Shelby County and the Supreme Court evaluated the provision five to four. On the DC Circuit, there were three of us, two Republican appointees, Judge Williams, Judge Griffiths and me. And this was, I'd say this was maybe the most important case the DC Circuit had that year in terms of the voting rights act is, I think most people agree, the most important effect of civil rights voting law ever passed. It was a big deal case. And we approached it. It was really interesting the way the three of us approached it. There was quite a bit of discussion ahead of time. I mean, Judge Williams, who was appointed by Reagan, wrote me a note and said, I know where this, I know where I think, I think I know where the Supreme Court's going on this one. He was citing Northwest Austin. But he said, I'm, I'm, I'm open minded about it. I want to talk about it. And we tried several ways to avoid the constitutional question. We, we thought maybe there would be a standing issue. And we tried that. But we eventually concluded that the Maris were no choice, we had no choice about it. And I'd say after oral argument, we must have exchanged, you know, half a dozen or dozen Nemo's had more conversations. And it, and what happened was in the end was Judge Williams and I just viewed the record differently. And Judge Griffith can tell his story. But, you know, as I saw him struggling with it, what, what brought him around to my side was the understanding that under section two of the 15th Amendment, you know, coast calls go to Congress. And in fact, he wrote that sentence in a memo to me. And that's the last sentence of the opinion. I used it in my opinion. And when you look at the two opinions now, the majority opinion that I wrote in the Williams descent, you will see a very respectful disagreement over pretty much the record. So that was just a good example of where three judges set aside their very different views about how they would have acted on this, how they would have handled voting rights act if they had been senators and really focused on legal, now we didn't agree in the end, but it was a principle disagreement. You know, one thing that it seems like both of you agree on and tell me if you think I'm wrong in this assessment, you know, sort of based on our conversation and reading your work, that all other things being equal, narrow plus unanimous seems to be better than broad plus divided as far as. Okay, make that case because that is not necessarily intuitive to a lot of people that if broad is the right answer, they would say broad plus divided should be the answer, narrow plus unanimous seems to be a concession to maybe to office politics more so to the cause of justice. But you would make the argument that the cause of justice is better served by narrow plus unanimous than maybe broad versus divided. And tell me if I'm you know, tell me if I'm putting words in your mouth. No, I don't think you are at all. I think that's exactly right. I think I think it has to do with how the public perceives the work of the court and when the public sees the court working as a court, that's better for democracy. It's better for the courts. I also think this comes back to the judicial humility point. When you go through the confirmation process, you're constantly asked about judicial temperament. What does that mean? Judicial temperament. And I think this is what it means. I think it means that there's a certain humility that you think you're right, but you're going to listen to others who might have a different perspective that will persuade you that maybe you're not exactly right. But the larger point, I think, is how does the public perceive the role of the court? And if you have a court, if you have courts that are dividing along, would appear to be partisan lines all the time, that's not good. That undermines trust and confidence in the judiciary. All right. Well, we get back more from Judge's title in Griffith and don't miss out because we've got some breaking news happening in Justice Tadal's own home. All right. I want to move on to some more current events if we can. Let's start with the US Supreme Court judge Tadal in this road show that y'all were on for a bit. You left open. This was a year ago now. What grade you might give the Supreme Court? We didn't y'all didn't talk about grades, but you were sort of like, yeah, we'll see how it's going. I don't know. So here we are in the year our Lord 2026 with another term behind us. You care a lot about judicial collegiality, civility, and judicial independence. How's the Supreme Court doing? Well, in my book, in the two chapters on the administrative agencies and the and the Voting Rights Act, I gave the court a pretty low grade because I felt the court was not a following basic principles of judicial restraint. I thought it wasn't being sufficiently respectful to its own precedent to the language of the Constitution and to statutes. And I haven't changed my view about that. So here's here's an area where we disagree. So good, good. I give the court high marks and I refer you to a book that I think really makes the argument better than I can. It's this fabulous book called Last Branch Standing, which I think and I'm serious. I think it's a wonderful contribution to Tadalic understanding what's going on with the court. So no, I'm much more sympathetic to the work of the Roberts Court. I'm very high on the Roberts Court. We have eight who were appeals court judges before and I know some criticize that as being narrow. I think that's a benefit. I think to have someone who's had judicial experience, who's had to deal with the collegiality that Judge Shadal was talking about. I think that's a good thing. I think you get people who think like judges, who think that the purpose here is to find out what the law is and to apply without fear of favor. And I think they've done that. Not perfect. I have my quibbles here and there, but generally speaking, I think I give the Roberts Court high marks in a very difficult and polarized time. I want to poke Judge Tadal a little bit, though, because I think what he said could have a lot of different causes, factors, right? There's I disagree with this outcome. If I had been on the panel, so to speak, I would have voted differently. That's different than like I think they're not doing their job correctly. And that's different than sort of a rule of law judicial independence is being undermined. So Judge Tadal, I'm going to push you. What's the problem? Or give you just two examples. One is Louisiana against Calais, the section two case. The Supreme Court said in Calais that Congress's power under section two, the 15th Amendment is eliminated. That's not true. The framers of the 15th Amendment intended to give Congress all the power it needed to read the country of racial discrimination and voting. And that's what the Supreme Court said in South Carolina V. Constantine. Very clearly, the last thing you can say about Congress's power under the 15th, under section two, the 15th Amendment is that it's limited. And that declaration, to me, revealed the fundamental flaw at the heart of both Shelby County and Calais. What you have is a Supreme Court on an ideological vote. Six to three in Calais, five to four in the exercising powers that the framers of the 15th Amendment had intended to give the Congress, but would have been taken over by the court. And the court used them to invalidate the most important civil rights law ever passed. So, that's just give you one more. It takes slaughter of the independent agency case. You know, I, look, I think that's an interesting question. The hard question in slaughter is not what you think about independent agencies, whether the court should have overruled Hopper's executor, a case that had been around for 75 years and over which are on the basis of which our entire government has been structured. And we know from the court's precedence about story to sciences is that one of the most important issues the court is to consider is a reliance interest. And, you know, here we have a situation where, you know, our government has essentially relied on Humphrey's executor for most of its modern existence. And I saw really nothing in that opinion that persuaded me, even if you thought Humphrey's executor was wrong, that the court should overrule it. Just I was completely unpersuaded. So, so let me weigh in. I will agree with part and disagree with part. I agree with Judge Tadal. I don't think this court has has applied the 15th amendment as it should be applied. And again, I think Kalei is a piece with Shelby County in my view and I disagree with that. I think they just undervalue what happened in the reconstruction amendments and what power was given to Congress. So with that, when I'm in full accord with Judge Taylor. I don't, I'm not worried about overruling how free-sixty I could. There was a heavy reliance interest, but I just think it was wrong. It was wrongly deciding the first instance and this is part of one of the reasons I'm a fan of the Robert's Court is I think the issue that they care about most deeply seems to be the separation of powers and that's an issue. I think that's correct. They have that sort of concern. I think in too many instances we've allowed tinkering with the constitutional structure to run amok in pursuit of very good goals, but there are lanes that are created by the Constitution and I'm more comfortable with each of the branches staying in their own lanes and I see that as really the great project of the Robert's Court is to define those lanes and to make certain the various powers act within those lanes. Now there's a lot more work to do after slaughter because of the reliance interest that Judge Taylor's talked about Congress for years has thought they were creating a certain type of agency and it turns out that's not the agencies that we have now and to me that'll be an interesting, that'll be the interesting next set of battles is what what happens to those agencies now that they have so much power given to the president and but the answer again from this great book I read recently, the answer is Congress do your job and and I think that's part of this when I can't speak for anyone of the Robert's Court but I think that's part of the motivation of the court doing what they do what they're doing is they see that Congress is not doing its job and sending the signal time to do your job right statutes that are clearer be careful about delegated authority get back in your lane but but swim while you're in lane swim do some work though I think we would not be in this pickle if we had a function in Congress you know historically there have been many times when Congress has stepped up exercise its constitutional role and checked both the Supreme Court and the president and we don't have that Congress now that I completely agree with you about that this four-person panel has unanimously ruled that Congress must do its job yeah but but that this it leads into a natural kind of next question which is what is the role of a retired article three judge in the public square so you know I think there are some things like that which you which you all are doing which is sort of in many ways lifting the veil on what it is like to be a circuit judge how the process works how you reach your decisions I think that's easy that's a layup I think article three judges retired article three judges should be out there more lifting that veil because we have you know there really is a lot of public ignorance about how this whole system works it's the most mysterious branch of government to most people it's the most opaque to most people but that's on one spectrum and then you know as you're talking about your agreements disagreements with the current Supreme Court that's moving into a little bit more sort of publicly for lack of our term aggressive posture what where do we go on that spectrum because we've also seen retired judges filing for example amicus briefs or trying to intervene in cases that's it seems it strikes me that this is somewhat similar to the discussion that may be retired or you know older presidents have you know when do I say I it's a really hard job I'm going to let the person in the oval office handle it without my the peanut gallery or when do you say this is wrong as a former president with all the constituency that I have this is wrong well I think that's a really good question you've asked and that's one that I've struggled with myself since I left the DC circuit a little over two years ago the one thing I've been very comfortable with is speaking about the importance of judicial independence and protecting judges from attacks and both Tom and I are part of this article three coalition and it's judges of part of that have been speaking about that around the country to community groups high schools I think that's a very valuable role for us it's one of the reasons why I volunteered two days a week here in rapianic high school to talk to 12 graders about the Constitution I think that's useful I'm much more cautious about what we can do beyond that I don't think our active colleagues need to be lectured by a bunch of retired judges of us at home they can do that now there may be issues that are so it goes so to the heart of the judges role that we might want to speak out I haven't seen that yet but I I do think that whatever we do retired judges have to have to speak rarely and careful about it in pending cases judge Griffith will you weigh in on this and also add in this idea of bar fair that they've dubbed it you know filing bar complaints against lawyers for criticizing judges what what's in bounds what's out of bounds what's the role of former judges in policing that so I'm actually not familiar with the bar fair phenomenon but so I'll be careful about coming to that but I agree with everything judge Tadal said in the first moment and I'll add one practical point I'm pretty certain that it really ticks off the justices to get an amicus brief from former judges I mean I haven't discussed that with any I haven't discussed that with any of them but I don't think they're impressed by that but I don't know but I don't know about the bar fair phenomenon that you're talking about so well we saw a bar complaint filed last week by 128 former judges that included a mostly state but I do believe a few former federal judges signed in a bar complaint against the Department of Homeland Security General Counsel for criticizing sitting judges you know there's the very specifics of this example David and I you know we'll talk about that on the pod when you guys aren't on but there's also the more general idea as a former judge you're signing something as a former judge what else is the purpose of saying you're a former judge other than to sort of lend that prestige or whatever to what you're signing and you're doing it to say that a lawyer criticizing a sitting judge should be disciplined by their state bar for criticizing a judge you know are some criticisms outside the bounds of what a bar attorney should be able to do right we give up some of our rights to become attorneys no doubt but lots of people are criticizing judges and are we just going to sort of have this turtles all the way down problem of you know everyone now just filing bar complaints against each other for things they don't like that are being said by lawyers again I'm not I really don't know that the facts of the the case and judicial temperaments suggest I not weigh in but the way you framed it yeah that's counts that sounds crazy you know that that doesn't sound like again I think I think he comes back to does it do any good and I don't I don't know what good that it does because I I tell you as as I don't remember being on the DC Circuit and getting an amicus brief filed by former judges but I can tell you that wouldn't do much for me you know I mean how about you David? Sir I you know I read about that case and I know there have been other cases I am confident that the sitting judges who are presiding over this cases they're the ones who are in the best position to manage their courtrooms and discipline the lawyers and I have tremendous confidence in these district judges ability to manage that they don't need me sitting out here in Castleton telling them what I think about a case I'm not involved in now I would now here's where I might if a district judge took an action against the lawyer for what he thought was unethical behavior and that issue came up on appeal you know I might consider whether an amicus brief from former judges might be helpful to the court of appeals I'm not sure it would be but that's to me very different than initiating a bunch of retired judges initiating a complaint against the lawyer in a courtroom where they haven't been yeah I'm I'm I'm more comfortable with us again staying in the lane that David French described at the at the exit the lifting the veil to teach people that's where they're real good work can come you know I saw some of the DC circuit for 15 years and I wish the American people could have sat by my side because when you get on the inside of this and you see how it works it is really inspiring you get these really smart people aren't working people coming from different backgrounds different political perspectives working really hard to get the right answer you know I in my stump speech I say in 15 years on the DC circuit I only once saw a case in which I thought that any of my colleagues rendered a decision that was tainted by their partisan priors. And I did see that, that did have it. But it was once, it was once, and I think, I think, pundits and politicians and the American public think that that's standard fare. And it's not, and if they could see the way things really work, I think they'd be inspired. Now, you could say, oh, that's just Griffith, he's naive, you know, he likes people, he's not seeing the boogie man out there. Well, what I say about my time, my 15 years on the DC Circuit, Stephen Breyer says the same thing about his 28 years on the Supreme Court, and just as Breyer was writing a lot of dissents, right? He was in dissent a lot, and yet he says the same thing about his time there. There's not, this isn't, we're not partisans and robes. We have different approaches to how you read a statute, how you interpret a regulation, how you read the Constitution. Yeah, there are differences of opinion about that. But no one on this court, no one on my court is sitting there trying to win one for Trump or stick it to the Democrat, that's just not how judges think. And I just wish more people saw that. And so for, to that end, that's what I like to hear judges out there doing is, as you say, lifting the veil so people can see how this thing works because it's really amazing. And I think people underestimate how important that is. I had this really interesting conversation a couple of years ago with a Polish law professor who was talking about, now Poland has a much more ancient country slash civilization than ours. But it's constitutional history is much more recent than ours. And so Poland, like many European countries, has been really wrestling with what it means to be governed by the rule of law versus strong man governance, et cetera. And law professors fanned out across the country and judges with law professors fanned out across the country just to teach what the rule of law is. What is constitutional law? And it was remarkably effective at informing the public. And I've thought about that a lot because we have so much civic ignorance about just a very basics of what constitutional governance is. And I'm just raising this because I feel like people listen and they hear, well, that sounds like safe advocacy. That sounds like you're not really reaching out there. You're not really pushing yourself out there. But it feels to me like more foundational advocacy. In other words, what are the rules under which we govern this republic? And I think the listeners to advisory opinions would be surprised at the level of broader civic ignorance on those very basic points. Okay. We get to the breaking news portion of this advisory opinions episode. Judge Tadal has been known for having his dog Vixen by his side for many years now. But I am here with breaking news to tell you, Vixen has retired. Judge Tadal, please tell us all about this development and what you can share. I was hoping you would ask me that question. I mean, you had a sign right on your desk in Chambers that said, please ask me about my dog. Yes. And I still have that sign. It's right here. Yeah. So, Vixen, my first guy, dog, was Vixen, a wonderful German shepherd. She was with me for seven years. The last chapter in my book is called The Dog That Changed My Life, and that is not an overstatement. The guide dog human relationship is miraculous. But unfortunately, like humans, dogs retire. And Vixen has made it very clear in the past year that she's worked really hard, and she don't want to do it anymore. And that's true of all guide dogs. And it took me a long time to accept that. But I did, and we've done the right thing, Vixen has retired. She's still in our family. She was with our daughter Stephanie in Charlottesville, and she has a wonderful home there, and she'll be visiting us regularly. And I have a new guide dog. She's been with me for three months. She's also a German shepherd. She's a two-year-old German shepherd named Zyra, X-Y-R-A-H, and she's just as magnificent as Vixen. I'm still learning to work with her. It's going to take a while. But I know blind people who have had six or seven guide dogs in their lives. This is my first transition from an original daughter. It was very hard. She was an important part of my life. And I actually miss her every day, but I'm comforted by the fact that she's happy and still in our family, and that I have a wonderful replacement for her. Well, welcome to the family, Zyra. We're thrilled to have you, and look forward to her chapter in your next book. There is not going to be a next book, too. You are looking at a one book author. Well, Judge Tadal, Judge Griffith, thank you so much for joining us in Zyra. We know you're there, too. Thank you. Thank you very much. Thank you. Enjoy the conversation. Yeah. Thank you, David. I thought ending with the breaking news was pretty important. But that, Julie, I think that was a really interesting conversation. I was really interested what they said about sort of the role of former judges. But I was interested in the answer that you got on friendship being upstream or downstream of judicial collegiality. I don't know. I don't know that it's upstream. I don't think you become friends with someone and then our collegial. I actually think if you try to be collegial with someone, you almost can't help but forming, not necessarily as you say, like going to the movie's friendship, but a mutual admiration society friendship. And I agree with that completely that when you're trying to be kind to somebody, when you're trying to be considerate, when you attribute best motives to them and not worst motives and the absence of compelling evidence, friendships kind of can spring up pretty organically with that mindset. And it struck me that so much of this is mindset, Sarah. So you go back and you judge Griffith very eloquently talked about humility. Well, I think of it like this. When you're talking about the extremely conservative or the extremely liberal or the passionate conservative or passionate liberal is the way I think you said it, a lot of that passion is tied to certainty. And with certainty comes a lot of ferocity. And with certainty comes a lot of lack of understanding because when you are certain, when you are certain, it is very difficult for you to see somebody else's dissenting or disagreeing opinion as being arrived at in good faith or within any sort of knowledge. So you'll often ascribe when you're certain about something that somebody is disagreeing with you out of malice or ignorance or some combination of the two. And a lot of, I think, growing up, and this is me reflecting on my own transition from a lot of certainty on a lot of issues to learning more about it and being, oh, oh, there's this that I hadn't thought about and this that I hadn't thought about. I think a lot of our lives is about disrupting certainty. A lot of our, the growth of humility is about disrupting certainty. And so the certainty breeds ferocity, how do you deal with unjustified certainty? I think it's one of our biggest issues, not just in law, but in politics as well. You know, I had someone advise me and talk to me before I joined the times and they were saying, you know what? What you're going to find is like readers are really open to a lot of dissenting points of view, you know, your media and times reader, except in the issue A, B, or C. And then you're going to run into this sort of brick wall of this is what people all right thinking people agree on. And those are the zones, those are the areas where that ferocity then rears its head. It's very hard to be ferocious when you're not sure you're right. And that's sort of the chicken or egg problem is the, how do you disrupt certainty and the face of ferocity when the entire point of ferocity is to destroy any sort of uncertainty? Well, David, having moved to, you know, a new city and put my kids in a new school, I am in adult friend making mode. And it is like a whole thing, right, like a different way of being than when you're just hanging out with like your people. And I think overall it brings out kind of a better version of yourself in some ways at least. You know, you're infinitely curious about other people here asking questions. You're thinking, what would make this person feel most welcome in my home that, by the way, has no furniture. But that's all the more reason to have some lemonade available, you know, things like this. Well, in some people when they go into adult friend finer mode, they do it like a heat seeking missile, like I'm looking for the people who completely agree with me. And which I think is a pretty sad way to do it, honestly, as opposed to, I'm looking for people who are good and decent people. But again, that goes to that certainty ferocity. The good and decent people are they the people who agree with me. And that's, that's honestly, I think one of the central problems in our culture right now is an enormous number of people. Certainly not everybody, certainly not a majority, not the so-called exhaustive majority, but an enormous number of people center all of their friendships and relationships around that heat seeking missile approach, looking for finding that person who's going to vibe with me politically, vibe with me culturally, vibe with me in every way that matters to me. And it's a very narrow approach, and it's over time replicated by the millions a very destructive approach. Well, I have set up five play dates, and I don't think I've talked about politics in any one of them. Excellent. Wow. Which is also, by the way, a pretty good thing to have to work on because, you know, with like my friends in DC, like, yeah, politics comes up all the time. We may disagree about them, but like, it's still sort of the topic of conversation in a company town like DC, but to have to hold a two-hour conversation with someone and never get to talk about sort of politics and all of that again, a muscle I am exercising. Well, Sarah, I've got a Houston question unrelated to friendship. Okay. Okay. So you've lived in Chicago at Northwestern. You're back at Houston. Uh-huh. If push comes to shove, what do you prefer? Eighteen degrees or 108? Well, this isn't even a close call, David. Absolutely. Oh, no. Seven days a week and twice on Sunday, I pick Houston, Texas over Chicago, Illinois, purely on weather, but added almost anything else. And I pick Houston too. Last night, it's a show we've been here for 10 days. Last night, we were sitting outside and I was like, wow, this is like really lovely out here tonight. I wonder what the temperature is. And I looked up the temperature. David, it was 88 degrees. And I was like, boy, any colder and I think I'd need a sweater. No way. Yes. That is so funny. I have evolved to the total opposite. I get if it once it hits, for example, September one, I'm like, I'm done. I'm over it. I am over the really hot temperatures. I am sick of it. And you know, one thing that made me one thing about Tennessee and Tennessee is not Houston. Houston is its own deal compared to Nashville. No question. Like it'd be about like comparing Columbus, Ohio to Chicago, not the same deal in temperature. But when we had, I think, 25 of 30 days in September were more than 90. And not just any 90, but that humid Southern 90. I was thinking, I'm honestly more miserable than I am in February where it's really cold. I'm honestly just more miserable. David, I haven't taken you to Typhoon, Texas. A premier water park of Houston out in Katie, Texas. And I don't know, we did all the rides this weekend. And like, there's one where you swoop, you'd like have a deep drop. And then it swoops up onto an enormous, I don't even know how to describe how enormous this Texas flag is. And the goal is to get your raft, you know, sort of high enough with a gravity to and momentum to hit the lone star. So come to Typhoon, Texas. You won't feel hot. Although they did dump, they did dump 2,000 pounds of ice into the wave pool at two o'clock. And I was like, my back of the envelope calculation is that that will make no difference to the temperature of the water in the wave pool. So actually did some math, David, do you want to know how much 2,000 pounds of ice lowered the temperature of that wave pool? I'm going to say less than a degree, but you tell me one tenth of a degree. Okay. So is it just stabilizing the temperature more than anything else? Yeah. No, it's just like for the morale of the people. It's morale. And you feel like you're sort of bobbing in some lemonade, you know, and well, that makes it sound like everyone peed in the wave pool. But you know, like you're, you're bobbing in some nice cold ice water. So, so listeners, you tell us 18 or 108, would you rather be watching a football game in 108 or 18? Neither. I stay home in that. I'm not doing it. I'm, I'm, I'm 18, 100 days out of 100. You could offer me premier tickets to any sporting event. And in either of those temperatures, I will turn it down. Yeah. I was in soldier field when the bears beat the packers. And I think it was about 18 degrees. And it was one of the best evenings, both funny, but that was a bucket list thing. I wanted to freeze, didn't nearly freeze to death in an NFL playoff game once in my life. And Chicago delivered on that night. All right, David. Next on advisory opinions. We have Congressman Auchenklaus joining us to talk about why Congress isn't doing its job. It's going to be an amazing episode. I cannot wait.