Judge Robert Lasnick (4:31)

My pleasure, Dalia.

Host (Dalia Lithwaite) (4:33)

Let's maybe call this show Two Judges because on this week's episode, Judge Lasnick is going to be joined by a dear mutual friend of us both, Judge Jeremy Fogle. Judge Jeremy Fogle is the first Executive director of the Berkeley Judicial Institute, a center at Berkeley Law School whose mission is to build bridges between judges and academics and to promote an ethical, resilient and independent judiciary. Prior to his appointment at Berkeley, Judge Fogle served as director of the Federal Judicial center in Washington, D.C. and before that as a U.S. district judge for the Northern District of California. Judge Fogel, welcome to it's great to

Judge Jeremy Fogle (5:12)

be here and it's great to see you.

Host (Dalia Lithwaite) (5:14)

I think it might be useful to start by locating us in this moment and by describing what has changed for American judges in the last couple of years. The data's really clear. There has been a pronounced uptick in threats against judges and threats against their families. The doxxing, the swatting, the so called pizza doxxing that at least one of you has now discussed publicly, the impeachment efforts and the insults coming from the highest government officials. Judge Lassnick, your colleague Judge John Kunauer has reported a swatting attack in which someone sent sheriff's deputies to his home just days after he blocked Trump's order ending birthright citizenship last year. This is happening, stipulated in 2020. The 20 year old son of District Judge Esther Salas was shot and killed in her home by a self described anti feminist, disgruntled litigant. But naysayers say that attacks on judges in the judiciary go back to the found. So there's nothing new to see here. And I wanna start by just asking. And maybe we'll start with you, Judge Fogel. What is different in 2026? Is it the scope? Is it the scale? Is it technology? Is it the tone of these threats, the nature of the threats? Can you help us contextualize what is different today?

Judge Jeremy Fogle (6:33)

Well, it's all of the above. You listed several things there. And yes, there have been threats against judges throughout our history. I mean, there have been judges who've been threatened, there have been judges have been assassinated. I mean, it's not like it's never happened before, but the volume, the intensity, the frequency, the effect on judges. I had the privilege of being a judge in the state and federal court systems from 1981 until 2018. That's a long time. 37 years. I don't ever recall there being an environment like the one that we're in now. I had threats. I had a very high profile case when I was on the federal court that I got some threats, I got some nasty letters. I mean, people didn't like my decision, but it was maybe three or four hundred of those. You know, it wasn't millions. It wasn't death threats that were credible enough that the marshals would have to come to your house or they would tell you to go somewhere else. There's a way that it has intensified that is unique. And I think there are several reasons for that. One of them is technology. One of them is social media. When I think about the case I had, it involved capital punishment and method of execution. It was a big deal, but there was no social media then. And so, you know, if people wanted to get mad at me, you know, they could call my chambers or they could write me a nasty letter, you know, or they could send me an email. But there weren't like these viral explosions of things about people. And it wasn't like things that grew on each other and grew exponentially. So I think that environmental change, change has made a big difference. I also think that the surrounding rhetoric, the temper of the times that we live in really matters, you know, that. I mean, judges in general have always been treated with a certain amount of respect. It doesn't mean that they don't get criticized. It doesn't mean people don't get mad at them. Doesn't mean people don't call them names. But in general, in the public arena, judges are respected, and that has really changed. There is a coarseness to the rhetoric, and it's not just judges, it's other people in public life. There's just a coarseness to the rhetoric that's used to describe people with whom one disagrees. And it just permeates our political discourse, unfortunately. So you sort of have that environmental lack of respect for people who disagree with you, lack of appreciation for the work they're doing. The fact that we need judges, we need laws to have a system that, that isn't completely chaotic. So you have that. You also have the amplifying effect of social media. And I think all of that in combination just makes it a very different job from what it used to be. And I'm sure Judge Lesnick will talk about this. I mean, it's just in my current job, I work with judges a lot and I talk to judges and I listen to judges. I mean, they are not happy campers, particularly at the trial level. They're just getting so much incoming flak. And it just makes it a very different job. Makes people wonder, why am I doing this? I mean, I could do something else and I wouldn't have threats against my family and threats against me and people saying all these things. So I think we really are living in a different time than we've had previously.

Judge Robert Lasnick (9:40)

I agree with what Judge Fogle said. And the other thing that's different is the source of some of the threats of impeachment. It's never come from the Attorney General of the United States. It's never come from the President of the United States. And you know, when the Attorney General, the acting Attorney General now says we're at war with the federal judiciary, that's the wrong words to use. You can disagree with us, you can appeal us. As Chief Justice Roberts said, that's fine. But don't threaten us with impeachment. Don't threaten us with violent rhetoric such as war. And it isn't just Democratic appointed judges, whatever that means. It's happened to Justice Kavanaugh, to Justice Alito, to Justice Coney Barrett. And using violent rhetoric and using war and things like that just feeds into this us against them mentality which controls so much of what we hear from places we never heard it before.

Host (Dalia Lithwaite) (10:49)

Judge Lasnick, I would really love for you to help me understand. Judge Fogle noted this. There is a certain vaunted hands off approach to judges in the United States that has been destabilized And I want you to tell me why that isn't just about individual judges. That is about democracy itself. And I just want you to, like, explain to me, as though I'm 7 years old, why authoritarians around the world unfailingly attack their judicial branch. This is a playbook.

Judge Robert Lasnick (11:25)

Well, a lot of people remember the part of Shakespeare play where they said, first we kill all the lawyers. They could have said, first we kill all the judges. It was the same thing is get rid of the rule of law and then we can have a coup or take over, et cetera, et cetera. And you have to remember, I'll get a little bit, bit Abraham Lincoln, esque, here. 12 score and 10 years ago. Do the math. Our fathers brought forth on this continent a new nation conceived in liberty and dedicated to the proposition that all men are created equal. But the reason for the American Revolution was King George was trying to control the judiciary by who he appointed, whether they could be removed at his whim and whether their salaries could be taken away at the royal whim. And that's why in the Constitution, we see lifetime appointments for judges. And no, you can't reduce their salaries, not the kind of thing you'd expect in a Constitution. But it was how King George controlled the judiciary in the United States, what became the United States in the colonies. And so we've seen in other parts of the world, dictators try to do that, kneecap the judiciary, and then we can put our own people in, et cetera, et cetera. So, you know, we've been threatened before. Civil rights movement, red scare, judges threatened with impeachment because they enforced freedom of speech despite the McCarthy committees, et cetera, et cetera. But as I said earlier, it's always been from a particular interest group, not the Department of Justice and not the head of the executive branch. And that's what's different this time around.

Judge Jeremy Fogle (13:19)

Yeah. And if I can just add onto that, I really like telling people, you know, the part of the Declaration of Independence that gets quoted and you learn in school is, you know, the life, liberty and the pursuit of happiness and all that. But if you go down below that there are a bunch of grievances against the King. Jefferson takes a lot of pains to lay out exactly why we can't live with England anymore, why we have to break away. And as Judge Lazig just said, I mean, there's actually several points in there about judges and about the judiciary. And, you know, the king not firing judges he didn't like, and if he didn't like a ruling a judge made, he just ignored it and he just, you know, didn't like a law. He just changed it. And sort of the idea that the king had those powers and that was called out in the Declaration of Independence as one of the reasons for the rebellion. So that's important history, and it doesn't get recited very much. And then I think, you know, the specific examples about what dictators around the world have done of late, three countries, all of which I have been to and worked in in my judicial capacity, Turkey and Hungary, Poland, they were all places where authoritarian governments, with varying degrees of success, you know, tried to expand their power. They all attacked the judiciary. Turkey probably has been the most successful from the authoritarian standpoint. They just fired a bunch of judges and they threw a bunch of judges in jail. And they justified it on the basis of a national emergency. Poland got very close to losing its independent judiciary. It's kind of coming back largely as a result of support from the public, you know, which is something I know we'll talk about. I think the reason the Polish judiciary is still somewhat healthy is because they got a lot of support from outside the judiciary. And then Hungary, interesting story, because that was the first thing that Orban did, is he got the parliament to lower the retirement age for judges so that all the judges that were serving, or the great majority of them, aged out by virtue of this law. And then he just appointed a bunch of his own people, and Orban just, you know, got ousted. So there's still democracy in Hungary, but I mean, it was a tremendous cost. And I think we hear that same rhetoric. Why are these judges resisting what the president wants to do? Or how can a federal judge block a national policy? Or we should go to war against them, or we should just impeach people we don't like. It's very hard to talk about this without sounding partisan. And I've spent 40 plus years of my life really trying to develop the ability to be nonpartisan, because I think it's important for judges to be nonpartisan and to try to take all interests into account. And you can't talk about this stuff without somebody thinking you're being partisan, because what you're talking about is structure. You're talking about the structure of our constitution, the structure of our government, the structure of our democracy, our constitutional values. And you gotta be able to talk about it because that's what's at risk here.

Judge Robert Lasnick (16:18)

And you know, Dalia, a lot of times we hear people defending the judiciary as a co equal branch of Government. I never felt that way. I understood the Constitution to say Article 1 was first and most important because it was closest to the people, and that's Congress. Article two was the next most important, and that's the President. And then Article three, very small part of the Constitution. It talks about a Supreme Court and such other inferior. Oh, how I hate that word. Courts, as Congress may establish. And we're one of those inferior courts. And we were not meant to be a check on the executive power the way the Congress was meant to be, and a check on the executive power. We're not structured to do things with tremendous speed. We're meant to be contemplative, to take our time, to read briefs, to do thoughtful decisions, to have appeals which then take time and ultimately could end up in front of the U.S. supreme Court. And my wife gets so mad at me. Why is it taking so long for the courts to decide this? We're established to take time and not be immediate, reactive to things. But we may be the last branch standing to put any kind of check on the executive power. And that's happened before in our country. I mean, FDR's Japanese internment was an executive order, and it was upheld by a U.S. supreme Court that should have known better. And it constituted a number of his appointments, just like present times with the tariff ruling. And I always respect Justice Robert Jackson because he had been Attorney General of the United States appointed by fdr, but he dissented, rightfully so, on the Japanese internment cases. And to me, that's an example of what we need to have in our federal judiciary.

Host (Dalia Lithwaite) (18:25)

Another thing that is maybe not intuitive. You've both a little bit flicked at this, but let's make it explicit why this is especially tender for judges and that, you know, if the President or the Justice Department or some congressman went off on dentists, let's impeach all the dentists. You know, they're doing a terrible job. The dentists would, as one, rise up, presumably, and defend themselves. Maybe that's a bad example, but there's a really complicated web of ethics opinions. There's a complicated web of norms. There is a whole sort of set of predilections, I think, also characterological, I want to say, about judges, that mean that when you get attacked, you are not apt to punch back and you are very apt to just take the blow. Understand, institutionally, this is what we do. And so I want to maybe just parse this question into two vectors. And one is, I know for a fact from talking to judges that there is a roiling internal debate about how much do we talk about this, how much do we elevate this as an issue? I don't want to draw attention to it. This is not my job, as you have both suggested. This actually diminishes my job if I, you know, bellyache and sound either partisan or self serving. So maybe we'll start with you, Judge Fogle, but I would love for you to talk about the ways in which judges are in a unique posture. It's why we don't get a lot of judges on this show when it comes to talking about being attacked and the vulnerability of feeling like you have to turn a blind eye to those attacks.

Judge Jeremy Fogle (20:23)

Yeah, I'll talk about this in two dimensions. And you said something that I think is true, which is there's sort of a characterological part of this. This is not a good job for people who are partisans. And I'm not even talking about, you know, do you want judges who are partisan? We've said we've had plenty of judges in our history have been partisan. But I think, you know, the people who have sort of partisan leanings when they become judges, if they, they, first of all, a lot of them don't want to be judges because they don't want the ethical restraints I'll talk about in a second. But secondly, they just temperamentally don't want to be doing that. And I've known people who, especially when I was a safer judge, you know, who wanted to be judges, and they got there and they, they felt very constrained. What do you mean I can't campaign for this person? Or, you know, what, what do you mean I can' talk about this issue? It really cramped their style. One of the canards about judges is they move to the middle, you know, that you get on the bench. And whether you were a liberal or conservative when you started, you know, you hear cases, you hear two or more sides of the case, and it kind of makes you more of a centrist over time. And I think that's not true of everybody, but I think it is a tendency. So there's a temperamental side of it. It's a job that discourages partisanship. But then you have these ethical points. You're not allowed to talk about pending cases. Every code of conduct for the states and federal courts say that you can't talk about pending cases. You have to behave with some sobriety and, you know, sort of be somewhat self effacing. You know, you can't draw a lot of attention to yourself. This is all in the canons or in the commentary of the canons. And then. So if you're attacked, a lot of times, people will attack you because of a case. You know, Judge Laznick made a really dumb decision in X case, you know, which he didn't. But let's just say that some. Somebody thought that he did. I mean, he couldn't kind of come back and say, wait a minute. What I did isn't dumb. You know what? I did this because this is what the law told me to do, and this was the right decision. And if that case is still pending, he's the one who's going to get in trouble because he's making a comment on the merits of a pending case. And so I think judges are actually quite. I think overly so. And I know that Judge Lass agrees with me about this. I think judges are. Are too shy about saying what they think. They don't want to get disciplined. They don't want to face ethical inquiries. And so they tend to be very bland in what they say about these things. Doesn't mean they don't feel it. But it's like it's a combination of temperament and kind of what the ethical rules of the game are for judges. But I think that's why they don't talk very much. And then one last thing. You know, it's a tremendous honor to be a judge. I mean, you know, people call you your honor, you know, and there's a. You know, for federal judges, there's a very, very rigorous vetting process. You know, you don't just kind of walk in the door, and so you don't want to complain. You know, you don't want to be seen as complaining. You don't want to be seen as being ungrateful for this great honor that you have, you have tremendous power over people in the courtroom, and you can decide people's liberty, and you can decide matters of their finances and their economics. You can even decide death penalty cases. I mean, there's just tremendous power the judges have. And so for a judge to complain. Oh, you know, I don't. I don't like it that somebody said something nasty about me in the newspaper. You know, that doesn't sit well with most people. They're very reluctant to do it. So I think it's a combination of all that stuff.

Judge Robert Lasnick (23:44)

I totally agree with Jeremy that those are factors out there. But as he indicated, I believe too many judges hide behind those factors and don't say anything when they have the total ability to say something. And even our ethical rules were just clarified earlier this year to make it very clear that as long as you're not commenting on a pending case, you have ability and flexibility to defend the independence of the federal judiciary, the need for an independent federal judiciary and the structural need to have judges not be under threat of impeachment or violence to them or their families. So we need to do a better job of having sitting judges and retired judges speaking to why we really need an independent federal judiciary.

Judge Jeremy Fogle (24:41)

One of the good things that's happened, Judge Lazig knows this. I mean, a lot of retired judges actually are taking this up. And one of them, I mean, there's just a sense of, well, you know, we're too quiet. The coalition I'm part of close to 60 federal judges. And one of the things I love about it is that by design, it's about half and half R and D appointed. I mean, there's actual intentionality there. And you have people going back to President Reagan through President Obama, I think, is the most recent. But we, you know, the idea is we are trying to figure out how to speak up for the judiciary in exactly this environment we were talking about. And we don't have any ethical constraints. I mean, I think we tend to be more cautious in the way we say things just because that's what we learn how to be. But I mean, there's, I think we've gotten engaged in a lot of these disputes because we can. And I think there's a real role for retired judges here. But I also agree that sitting judges can do more. I mean, I think that both are important.

Host (Dalia Lithwaite) (25:41)

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Host (Dalia Lithwaite) (28:56)

So there's a podcast that I think you might really enjoy. It's called Break Fake Change Big Giving for Good. Hosted by Glenn Galich, the show examines the fake rules, the seemingly immutable rules that hold systems in place that then shape the flow of charitable money and thus power and thus change in America. And it really asks which of those rules we must break in order to secure a better future for everyone. So if you care about how extreme wealth shapes or distorts the shape of society, and if you're asking yourself how to fix it, this is the show to listen to. I've checked out yout Can't Fight Autocracy by the Spoonful with my dear friend Sky Perriman going deep on this question of how the international intersection of big money and big change can in fact be revisited. To listen to Break Fake Rules, search for Break Fake Rules in your podcast app. That's Break Fake Rules. Let's return now to my conversation with Judges Robert Lassnick and Jeremy Fogle. You know, when I said there were sort of two vectors here, the one I also I'm really curious about is separate from threats against me, threats against my family, you know, the doxing and the swatting, even the willingness to say the sentence. This is an attack on an independent judiciary, which strikes me as like utterly intuitive and uncontroversial. For all the ways you both laid out, even that feels like it's very hard for judges to say. And so I sort of understand why it's hard for judges to say like, this is about me and my family and my case and my decision. I understand that this is about something that is still pending. I understand that. But I've been really startled by the unwillingness to do the very abstract thing, which is this is just simply bad for the Article 3 Judiciary to have people going after us and threatening to impeach us. So I guess that's sort of just my follow on question is I'm quite stunned by the institutional harms to the judiciary itself and how much silence that has engendered.

Judge Robert Lasnick (31:17)

Dalia, I'll disagree with you a little bit. I mean, the Chief justice of the United States, John Roberts, doesn't speak out a lot, but he has spoken out about both the threats to the judiciary of violence and using impeachment as a threat. If you disagree with the result of a decision, and those were very powerful statements that the Chief justice made. Now, you know, some people are so critical of the Supreme Court now and the Chief justice over this decision or that decision. But I think that Chief Justice Roberts picks his spots and speaks carefully. But he's the head of the judiciary. He needs to be the one to speak in this area. A bunch of judges talking about what you just talked about doesn't have at all the same impact as that one person speaking about it the way he has on a couple of occasions, including the where he said we don't have Obama judges and Bush judges or Trump judges, we have federal judges. Those are very important messages. And if a retired federal judge like Judge Fogle or a sitting federal judge like myself do that, it doesn't carry anywhere near the weight of the Chief justice doing it. So that's the real important thing to me as he spoke up.

Judge Jeremy Fogle (32:38)

I agree, and I think he's done more than his predecessors. I think he does recognize the severity of the threat. And I know him pretty well because I worked with him for seven years. I mean, I just, I mean, for him, and he's a very cautious person. I mean, this is, it's a big deal, the statements that he's made, and I respect him very much for doing that. I mean, it still is indicative of things though, that others don't. And in some ways, like, he can never do it enough. I mean, like the daily reality that people on the line are dealing with is, I mean, I hear this again and I'm sure Judge Lesnick does too, because he's involved in judicial organizations. It's like, how come the Chief isn't doing more, you know, where's the leadership? You know, how come he's not getting into a boxing match with the President? You know, it's like there's only so much he can do, you know, to penetrate. And I think the frustration people feel and the fear, I'll put a name on it, the fear people feel. And they don't talk about it, you know, they would like him to really, you know, be the 800 pound gorilla, you know, and it's like, that's not who the guy is. And I don't think, I don't think we ever had a Chief justice is like that. But I mean, I think there's a disconnect a little bit between this cautious, you know, well spoken, conservative guy, you know, and kind of what people are feeling out on the street. And one of the other things we haven't talked about yet that I think is really part of this is that, you know, the Constitution envisioned three branches of government. And as Judge Lasnick said earlier, you know, Congress was in Article 1 and President's Article II and the Court's Article 3, and that was by design. And Congress has basically disappeared. The regulation of what the executive does, that's up to Congress. The role of the courts was sort of to be a checking and balancing to make sure things lined up with the Constitution. But that was the design of government. Congress can't do anything because they're so hyper polarized. And so you have the courts and the executive butting heads all the time. And you have an executive who's very aggressive about promoting his agenda. And so it's putting the courts in a position that the founders never intended the courts to be in. I mean, that was just not what they were talking about in 1789.

Host (Dalia Lithwaite) (34:51)

That's such a subtle and thoughtful point that if Congress were doing its job here, it wouldn't be that. What surged into the void was, you know, individual judges speaking out about threats to the judiciary. And this is another one of the ways in which a sort of supine Congress has left judges to sort of twist and to have to, you know, at this 11th hour find language and tools to speak in a voice that it's not used to speaking in. I would like to ask you, Judge Lasnick, because you have been very, very out on the husting saying what you were willing to say. You know, you were quoted recently saying there's no need to refer to a judge as a radical left wing lunatic, breeds threats of violence against judges. You've been very clear for quite some time that you are willing to be the guy who says the things. And I just wonder what your colleagues on the bench make of all this. Do they sort of sidle up to you in the elevator and say like, good job. Or do they ignore you in the cafeteria and hope that this passes? Like, how does this play in the world in which you have, I think, unwillingly been a spokesman for a lot of people who don't particularly want to say this, but are maybe glad somebody's saying it.

Judge Robert Lasnick (36:20)

Oh, I feel very welcomed everywhere I go in the federal judiciary. You know, I'm at an event now in Washington, D.C. with judges from all over and, you know, they always treat me with a great deal of gratitude and respect. And I can assure you that Judge Fogle is held in the highest regard by sitting judges across this country, both for what he did as director of the Federal Judicial and what he's been doing at the Berkeley Judicial Institute. So no one's shunning me and even my kids after receiving pizzas in the name of Judge Salas murdered son, which was a pretty chilling event for our family. Said, you know, dad, don't let the bastards get you down. Keep doing what you're doing. So I don't feel any hesitancy about maintaining the path I'm on. And I feel I have full support of the sitting and retired judges.

Judge Jeremy Fogle (37:16)

Yeah. And I know that to be true from mutual people, Judge Lazarus. And I know you can go too far. I think if a judge starts acting like a politician, you know, you hear that, then they lose respect. You know, they kind of abandon their judicial seriousness, you know, And I think one of the reasons that people like Judge Lassenber effective is they don't. I mean, they could be active, but they grounded in judicial principles, and they're defending the judicial institution, you know, and there. There have been judges who. They may as well be members of Congress. You know, they may be. May as well be running for office. Thankfully, in the federal judiciary, not that many. That's really the exception. And, you know, there have been some very strong statements by sitting judges. Well, Judge Kunaur, Judge Lasnick's colleague, I mean, really, you know, he's not the kind of guy who minces words. He's from central casting, you know, and if he doesn't like you, I'll tell you that, you know, and. And he's been very outspoken. I don't think anybody has lost respect for him. And I think he's gained respect because he's told the truth things. You know, Judge Young in Boston, you know, was appointed by Ronald Reagan and is in his 80s. He's not holding back at all, you know, and, you know, somebody might raise an eyebrow and say, well, maybe he should tone it down a little bit. But, I mean, if you know him, you know, he doesn't. He's never toned anything down. But there's nobody who has more respect for the judicial institution and the judicial process. And, you know, and that's. That's what comes through. And I think that's how you do it. I mean, you have to. To be respected as a judge. But then if you are, I think you can be very, very forthright.

Host (Dalia Lithwaite) (38:51)

There have been some changes, right? We've seen efforts to ramp up judicial security. We've seen, you know, judges getting enhanced protection. Congress passed a law that allowed judges to sue Internet sites to take down identifying information. One of you mentioned. I can't remember who, you know, an easing of the ethics restrictions would allow judges to speak out if it's not about a case. Like, we've seen efforts both within Congress and within the judiciary to bolster the ability of judges to do their jobs free of interference. But I would love to hear from you. And we can start with you, Judge Fogel. What is your wish list? What more could happen either from Congress or within the judiciary to make sure that there is really a firewall that allows judges to do their work free of not just the threats, but threats of impeachment and threats of defunding and all the stuff that we are seeing right now.

Judge Jeremy Fogle (39:58)

The ethics rules were changed by the judiciary, and I think it was a long overdue thing, and I was very happy to see it. Congress has stepped up to some degree on the security. It took a while. You mentioned Judge Salas, and she literally heard her. I don't think she would mind my saying this. I mean, her way of dealing with the loss of her son and the near death of her husband was to commit herself to dealing with what allowed this to happen. You know, that really building privacy and the security and then firewalls. As you said, she's dedicated her life to it and she's an incredibly effective advocate and she's been successful. It took her a long time. I mean, it took her several years to get these things done. You know, it's not easy. And I don't mean to say that Congress hasn't been responsive at all, because they have been responsive in those areas. The biggest problem that I see is that they can't get their act together on major matters of policy. What should our immigration policy be? You know, what should, what should our welfare policy be? What should our public benefits policy? What should we, you know, what should be. And so you then you see the president issuing executive orders in areas where Congress has not acted. And I want to be fair here. I mean, President Obama issued pretty sweeping executive orders in the last couple years of his term because he couldn't get anything through Congress. And he actually said, congress isn't acting, so I'm going to act. I mean, that's pretty much a direct quote. President Trump is different in the sense that there have been so many more of them and that he usually adds a dose of rhetoric to the soup. But the idea of Congress not, not legislating and then expecting the judiciary to deal with these things and then getting mad at the judiciary for not doing what they would have done legislatively. To me, that's the problem. I mean, you know, the Senate does have the ability to remove judges. The House does have the ability to impeach judges. There have been judges who've been impeached. There have been, I think, eight impeachments where the judges ended up being removed. And I think there were a total of 15 altogether. They're, of course, none of them were for bad decisions, you know, bad in the eyes of the impeachers. And they were all people committed crimes or, you know, did things like that. So the rhetoric we're going to initiate impeachment proceedings against a judge for giving a sentence we think is too light or for, you know, initiating a contempt proceeding we don't like, I mean, that's very unusual. There's not a historical precedent for that. And in fact, there is historical precedent the other way. And with justice chase back in 1804, you know, and, you know, I think this was an area the chief actually was Chief justice was very good about. I mean, he said we don't impeach judges for making decisions that members of Congress don't like. And he talked about Justice Chase. So I think we just have to keep saying the constitutional order, the frame in which all these things are supposed to happen. Judges were never supposed to be policymakers. People don't like it when judges are asked to be policymakers. It's not fair to put them in that position and then you put them in that position and then you criticize them for making policy because the branches that are supposed to make policy aren't making it. And I hope that's not too geeky an answer, but I mean, I really think it's kind of getting back to basic civics. It's like, how is this thing supposed to work?

Judge Robert Lasnick (43:16)

The only thing I want to add is one of those judges who was impeached in our lifetime, later ran for Congress and was elected to Congress, was in the House and insisted that everyone address him as judge.

Judge Jeremy Fogle (43:34)

Not the best example, but he was impeached for committing a crime. He was impeached for committing a felony. I mean, it was not like people didn't like his decisions.

Host (Dalia Lithwaite) (43:41)

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Judge Robert Lasnick (48:23)

There's a reason that Judge Fogel and I enjoyed being trial judges. We were one out of one in making our decisions. We didn't have to convince our colleagues to go along with us as they do in three judge panels on the circuit court, or in boncs of even more or nine justices on the U.S. supreme Court. So it's easier for us to be civil when we get the vote. But to me, Dalia, the real issue about civility isn't just judge to judge. It's judge to lawyers, judge to parties, judges to their own law clerks. And you've seen some horrible examples of how judges have treated their law clerk and other staff. And that's awful. And we need to be even more vigilant about dealing with some of those issues than we have been. And you know that I have the position that if a judge is facing accusations of abuse and then that judge retires, the judiciary should not drop it and say, well, we don't have any issue anymore because that person's gone. So that's a big issue that I don't want to let go by the side of the road here. We have to be civil, not just with each other, but how we treat our staff, our law clerks, et cetera. But judges have different personalities. They have different styles. You can't expect all judges to be as nice as Jeremy Fogle. But we can still get along. And in my experience in my court in the Western District of Washington, we have always gotten along, regardless of whether we were Reagan appointees, Bush appointees, Clinton appointees. So there is a way to do it. And I think our court and Northern District of California that Judge Fogle was on both have a reputation for being those kinds of civil courts in terms of how they treat each other, how they treat their staff, et Cetera.

Judge Jeremy Fogle (50:21)

Yeah, I think that's true. And I think many, many judges try very hard to be civil. It's one of the pillars of being a judge is that you treat people with respect. I think you can have serious disagreements with people, deep disagreements with people, and still be civil. I mean, let me give you two little anecdotes. One of my best friends in the judiciary, and he's retired now, but we got to know each other. We did patent cases and we were, you know, it's a small group of people who do a lot of patent cases. And I was in a district that had a lot of. And he was originally from district court that had a lot of them. And we disagreed about everything. Everything. I mean, just you could list almost any political issue or cultural issue you want to identify. We probably would have a different viewpoint and have always been really good friends. And sort of the core of it is respect for each other's integrity. And I may disagree with you, but I know you're coming from. From deeply held values. You live your life in accordance with those values. You're not a hypocrite. You know, you're somebody who really tries to do the right thing. And we may see things differently, but I don't doubt that about you. So this is one of the reasons I really respect this person, and I know that it's mutual, but I think it's like we have this common sense of what, why we're here on this earth, you know, and so that's one example. Another one is something that Judge Lasnick can't talk about about even under the current ethical rules, because it's a pending case. But I'll talk about it, and you probably know where I'm going to go. So there is a case that originated in the Western District of Washington recently that ended up becoming the subject of a very highly publicized en banc. And en banc is when all the judges of the court hear in the Ninth Circuit. And it was a contentious case having to do with the rights of trans people and the rights of the owners of a spa. And. And it was a two to one panel decision. And then there was an en banc. And it was. The panel decision was affirmed by the en banc panel. But in the course of this, there were many, many different, separate opinions. In the original panel decision, which was 2 to 1, the dissenting judge ruled in favor of. Wanted to rule in favor of the spa, not in favor of the person who was invoking the Washington civil rights statute. I thought his opinion was Very strong. It was very strongly reasoned. He made it very clear that he disagreed profoundly with the majority. But it was all done in a way that was the way a judge would do things. You know, I think you're wrong. Here's why I think you're wrong. You know, you didn't think about this. You didn't think about that. Here's what the downstream collateral consequences are going to be. Was a good opinion, you know, and it made me stop and think, well, you know, maybe he's right. You know, it's like, but that's what should happen. So you have this split of opinion, but people are giving it their best, and they're really giving it their best reasoning. So then in the en banc, the whole court is looking at it, and one of the judges decided to go rogue, if I could use that term, and just bash the people who were supporting the majority in very kind of vulgar ways. And everybody else, including the people who agreed with them on the merits, was kind of horrified because judges just can't act like that. I mean, it's like one of the things that we believe in as a profession is you got to treat each other with respect, and if you don't, or if you treat somebody else with disrespect. And this was the thing with the clerk misconduct that Judge Lesnick was talking about earlier. When you see somebody who goes outside of the lines, that makes all of us look bad. And so in the en bak decisions, there was a concurrence by two judges, one of whom was appointed by President Obama, and one of them was appointed by President Trump.

Host (Dalia Lithwaite) (54:11)

Trump.

Judge Jeremy Fogle (54:11)

The two of them wrote a concurrence together. The concurrence had one line, exactly one sentence. He said, we're better than this. It was so pithy, and it was so right, because that is our remit. We gotta be better than this. We can't sink to that level. And so I think I'm more optimistic, Dalia, than I think you are about judicial civility. I think, at least in the federal judiciary, most judges get it. And we're all imperfect. We all make mistakes. We all, well, veer offline. But I think the kind of thing that happened in that case doesn't happen very often, and I think that's something to build on.

Host (Dalia Lithwaite) (54:45)

We'd be remiss if we didn't end by talking about the part of this. We've talked so much about language and threats, but I want to talk about structural attacks, which are another kind of attack on judicial independence and Whether it's the Supreme Court, you know, inscrutable decisions, possibly on the shadow docket, then scolding judges for not applying them correctly, limiting injunctive powers. You know, we could go on and on about structural attacks, and I think I want to add to the bucket of structural attacks what happens when you have lawyers who are before a court who just decline to follow judicial commands. And maybe we can sort of end on this note of I think the language is a part of it, and it is certainly the part of it that gives rise to the kinds of threats that we're talking about today. That sense of you've both used the word fear, but there is this other really, I think, salient part of this conversation, which is just refusing to see that I'm gonna use the word inferior courts right now just to provoke Judge Lassnaik. But that courts have autonomy, they have power, they have authority. And that we are seeing from all sorts of different directions an erosion of that, too, in our. And that's not a trivial thing, even if it's maybe a little bit outside the scope of where we started. So maybe we'll start with you, Judge Lasnick, and just give me some sense, again, of this isn't just rhetoric. This moves into actual structural harm.

Judge Robert Lasnick (56:32)

I see where you're coming from, Dalia, but I'm not willing to say we're in a crisis there yet. I think that because we have been left, as Judge Fogle said, as the only branch to go to to solve issues, you see judges sometimes making sweeping injunctive rulings. And, you know, this happened during the Biden years and the Obama years, and the courts seemed to not be very deferential to the executive branch. And now in this term, with the present administration, they seem to be more deferential and use issues such as the major question doctrine, et cetera, et cetera. But again, I don't want to get into criticizing the Supreme Court any more than I want people to attack the trial courts. I think it's important for the media to look into these things. The article in the New York Times by Adam Liptak and Jody Cantor was superb. I don't know how they got the material, but it reveals a little bit of what's happening. But when you. You cut through to the end result, the court, the justices on the Supreme Court were disagreeing with one another and suggesting ways forward, and then they took a certain vote, and it was five to four to go a certain way. That's not necessarily evil or wrong. So I'm not willing to say we have a major structural issue. I'll leave that to Jeremy.

Judge Jeremy Fogle (58:02)

Well, I have said, in other words, other places, that one of the things that really does concern me is the status of the Justice Department. You know, I don't know if Judge Lesnick had this experience, but, you know, in my two decades as a federal judge, I don't ever remember doubting the honesty of DOJ lawyers. I mean, I would disagree with them sometimes. I mean, it wasn't like I did whatever they asked me to do. They could ask for a sentence in a criminal case, and I could say that's too high or that's too low or whatever the facts of the situation were. And, you know, there were other times we might disagree about something about discovery in a case. But, you know, I never had reason to think that they weren't being truthful with me. And I think that that's changed. I think we are in a period right now where judges really do have some serious questions about that. And again, and I want to just. This is so important to emphasize this. This is across the political spectrum. I mean, some of the. The most outspoken criticisms of DOJ's conduct have come from very conservative Republican appointed judges. This is not just people who don't like President Trump. I mean, it's people who do like President Trump, but don't like the way that the DOJ is dealing with them in the courtroom, that they're withholding information, or they're telling them things that aren't true, or they're not making a diligent, good faith effort to comply with orders. So I think that is a structural problem, because, know, prosecutors. Prosecutors are really important people. You know, I mean, however they're portrayed in the media or whatever they are, they're representing the state, they have the power of the state behind them, and they have ethical responsibilities that go with that. And one of them is they need to be truthful with the judges they appear before. I think that that's really something that's

Judge Robert Lasnick (59:52)

very much in question, and I say amen to that.

Host (Dalia Lithwaite) (59:56)

I think I want to end on optimism because so many of my podcasts of late have driven people to the bourbon pretty quickly. I think I asked Judge Ludig this question, too. Recently, I have come to think more and more that our job in the public is to figure out how to be a voice for an independent judiciary. And that is a very inscrutable task. And I would really appreciate each of you telling me what that looks like, what it is that you ask us the people to do to put a little skin in the game defending an independent judiciary when, as you've both said, it seems both abstract and also so lofty that it's really hard to take seriously that y' all are worried about anything. Maybe we'll start with you, Judge Fogle. What can we do to make it easier for you to go back, back to your day job and not have to worry about judicial independence?

Judge Jeremy Fogle (61:05)

Well, I think one of the things that we, the judiciary, both active and retired, need to do is we need to be more transparent. We need to be more out in the community. We need to talk to people where they are, and I think we have a hard time doing that. You know, we're a bit of a mystified, you know, guild kind of. You know, there's the judges and, you know, there's this sense of mystery, and you go in the courtroom and there's a bench and there's a robe and there's, you know, we don't have wigs anymore, but we may as well. You know, there's just a sense of separateness, and there's. There's some. Some value in that. But I mean, I think basically what. What makes this whole project of judicial independence hard is that you. You have to use language that means something to people. And. And if you say judicial independence, a lot of people think what you mean is the judge could do whatever he or she wants to do, which is the last thing in the world that it means. But, I mean, that's what people hear.

Host (Dalia Lithwaite) (61:57)

So.

Judge Jeremy Fogle (61:58)

So my elevator speech on this is that there's three things. So one of them is that you have decisions that are based on law and evidence, not whose side is advocating for what, not whose side you're on, you know, not who appointed you, nothing. You know, you decide a case based on the evidence and based on the law that applies to the case. I mean, two of the very best opinions that I can think of in this area were by judges in Pennsylvania who did election cases in 2020 and went of them's a district judge, and one of them's on the third Circuit, but they were both really conservative judges, and they just said there's no evidence to support these election challenges. You may think the election's been challenged, but you haven't introduced any evidence to support that. And I can't rule in your favor. And they just said this in a very pithy way. And I think that's really important, that judicial independence means you decide the case based on the record and the law, and not who the parties are, you know, not how the government wants the case to turn out. And that's not how it works in many countries around the world. Right. That's one. Secondly is the right to be heard. You know, it's due process, but, you know, we have to explain what due process is. I mean, you have a right to have your side of the case heard and actually listened to and taken seriously. I mean, judge doesn't have to agree with you, but they have to at least hear from you. And I think that's another pillar of our system. And then, and then the last one is that the courts have to be accountable so that if a judge does go over, you know, there's an appellate court that can rein them in or there's an ethics complaint that can be brought. So you have to find a way to talk about those things in ways that actually resonate with people who are not trained as lawyer, you know, who may not have spent all their time thinking about this stuff. If you had a case, if you had to go to court, what would you want? You wouldn't want a judge to decide the case based on, you know, who your mom or dad was, you know, or, you know, what part of the country you came from. I mean, you'd want to want the case to be decided based on the merits of the case. And, and you'd want a chance to be heard. You'd want a chance to tell your story and not just be ignored. And you'd want the judge to be honest. And, you know, you want to know that if the judge was dishonest, there would be consequences. And so, I mean, I think, can you kind of explain it that way? It's a little easier for people to grasp, and then you can talk about the ways it's under attack, you know, and like this, as I mentioned, you know, the war comment that AG made, essentially what he said, and I've written about this, and so I'm not going out of my own lanes. I mean, essentially what that means is if the court rules against us, we're going to do everything we can to take them down because they're getting in our way. That's essentially what he said, and that is a threat to judicial independence. That is not what the independent judiciary is about. So I just think trying to find ways to explain to people who care this is what's at stake, and we could really use people who aren't judges is speaking up on our behalf.

Judge Robert Lasnick (64:51)

Talia, in the state of Washington, we're so fortunate to have lawyers who are putting together a private nonprofit called Protect Our Judges, where they're putting media together to reach the public. And Judge Kunauer and I have been going around the state to local bar associations in the rural areas to speak to them them. And I've sat on panels with state court judges who are suffering the same kind of threats, even worse, because they don't have the security that we have, and it's affecting them. But we have to be able to get this message out to people who are not lawyers, who are not judges, who are not law trained. And so I tell the lawyers who come to these things, don't talk to each other. When you go to church, talk to your fellow parishioners. When you belong to a rifle and hunting club, talk to them. A fishing club, talk to them. Break out of this. And the truth of the matter is, and I'm sure that Jeremy will back this up, when we do jury trials and the jurors actually get to deliberate and finish the case, and then you go back and talk to them. They are all so energized about the justice system and so much believe that it opened their eyes about what this is all about. And then they go out and as proselytizers to their neighbors to talk about. You know, I sat on this jury and it was really interesting. And the lawyers, they weren't great, but the judge gave us really great instructions and we deliberated. And, you know, I'm 32, and I had a fellow juror who was 80. You know, I live in a rural area. There were people who live in the city. There was a lady with blue hair and another one with a nose ring. But we really got to talk about the issues. And, you know, that's what we need to do. We need to relate to the people out there in a way that they can see. This justice system is the envy of the rest of the world. And part of it is the independence and integrity of judges. And the men and women who are doing this job now deserve our complete and utter support.

Host (Dalia Lithwaite) (67:08)

I just want to, first of all, thank both of you for doing just that, for painting a picture and drawing us in. And I also want to, as a point of utterly personal privilege, thank both of you. Have been, you know, friends and colleagues and mentors for a long time and have really, I think, done yeoman's work to make the work of the judiciary real and salient and urgent to people who really sometimes do think. It all happens, you know, up on Olympus where none of us can tread. So I want to thank both of you so much, not just for this conversation, which has been illuminating, but for all of your work over many, many years and for friendship on both of your parts. So thank you, take good care, be safe, and we'll talk to you again. Maybe we'll have three judges next time. I don't know. It could be very dramatic. Thank you both.

Judge Jeremy Fogle (68:00)

Thank you both. Thank you.

Judge Robert Lasnick (68:01)

My pleasure, Dalia.

Host (Dalia Lithwaite) (68:04)

That's all for this episode and Amicus members. I cannot wait to see you in the bonus where Madiba Denny will join me to unpack all the legal news we couldn't cram into the main show. In our Amicus bonus episode, we're going to talk about the continuing fallout from the Supreme Court's fatal blow to the Voting Rights Act. This week, SCOTUS issued an unusual decision that would clear the way for Louisiana to redraw their congressional map immediately. Then the FBI raided the offices of Virginia State Senator L. Louise Lucas. Meanwhile, Chief Justice John Roberts asserted this week that judges are not political actors and are, quote, simply not part of the political process. Okay, Chief justice, whatever you say. Visit slate.com amicusplus to join the joyful ranks of the Plusketeers. By joining, you support our work and you get loads of extras and ad free listening and paywall free reading@slate.com you can also subscribe to Slate+ directly from the Amicus show page on Apple Podcasts and Spotify. Our bonus episode is available for you to listen to right now. We'll see you there. Thank you so much for listening and thank you so much for your letters and your questions. Keep them coming. We are reachable by email@amicuslate.com you can find us@facebook.com Amicus Podcast. You can also leave a comment if you're listening on Spotify or on YouTube. Or you can rate us and review us on Apple Podcasts. Sara Burningham is Amicus's supervising producer. Our producer is Sophie Summergrad. This week we had additional help from Patrick Fort. Hilary Fry is Slate's Editor in chief, Susan Matthews is executive editor, Mia Lobel is executive producer of Slate Podcasts, and Ben Richmond is our senior Director of operations. We'll be back with another episode of Amicus next week. Hey honey, it's Mom. Did you know if we switch to Verizon, we can get four phones for $0 plus four lines for $25 a line. Call me back me again. That's just $100 a month for four lines on unlimited welcome plus four phones. No trade in needed call me. It's mom. America's best network. Verizon. That's the one we're talking about. I'll send you text.

Judge Jeremy Fogle (70:38)

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Host (Dalia Lithwaite) (70:47)

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Judge Jeremy Fogle (71:00)

Exactly.

Host (Dalia Lithwaite) (71:00)

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