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So Mitch McConnell has been packing the federal courts with judges, including judges who have been raided by the American Bar Association as not qualified to seratedrve. You know what we're going to do beginning in January? We're going to unpack the courts.

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Let's talk about that, because justice matters. Hail Glenn Kershner here. Welcome to episode two of my podcast, Justice Matters. Every week we try to take on a big, consequential legal issue of the day.

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Often those legal issues involve misconduct by our high federal government officials. And what we try to do is we try to not only identify, discuss and analyze the issue, but I also try to put the issue in the larger context so we can really see what's going on, what the impact is to our government and our people. And then we try to talk about proposed solutions because identifying problems is great, but trying to propose solutions, you know, real world steps that we can take to try to attack governmental misconduct and try to set things right.

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So analyze context and solutions is the goal of each and every Justice Matters episode.

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Today, we are going to take on Mitch McConnell packing the courts with a number of not qualified judges. And I say not qualified as opposed to unqualified, which they're they're also unqualified, but I say not qualified because that is the rating given to so many of these Mitch McConnell judges by the American Bar Association, the ABA, they review they do a complete deep dive into the background, into the experience of these judges that Donald Trump nominates. And they have often rated these people not qualified to serve on the federal bench, not qualified to don that black robe and decide cases that impact litigants that impact us, that impact our lives, not qualified.

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Now, that doesn't matter to Mitch McConnell. Certainly doesn't matter to Donald Trump. And let's be clear, Donald Trump technically nominates federal judges, but Mitch McConnell is the power and the brains behind Donald Trump's judicial picks.

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Mitch McConnell tries to identify the most the farthest right, the most conservative judges will talk about ideology and judicial philosophies in a few minutes. He tries to identify these people. And these are the people that he tells Donald Trump to nominate. And Donald Trump falls in line because Donald Trump has never been one to think for himself.

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So we're going to talk about a three point plan to unpack the courts now that Mitch McConnell has packed the courts. And you know what? He's packed the courts with two hundred federal judges. That's about 25 percent of the entire Kadry of federal judges, the entire federal bench. And of those 200 judges, 53 are appellate court judges.

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And I'm going to talk about why that's important in a minute. But let me give you a little bit of background about my experience appearing before presidentially appointed judges. So I was a federal prosecutor for 30 years, first as an Army JAG prosecuting court martial cases and arguing criminal appeals as sort of a prosecutor in the appellate courts starting in the 80s. I did that for a little over six years. And then I transitioned to the United States Attorney's Office for the District of Columbia.

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That is one of the ninety four U.S. attorney's offices in the country. And we are all part of the Department of Justice. And I spent nearly a quarter century of my life as a federal prosecutor in Washington, D.C..

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Now, I don't want to do a whole deep dive on the organizational or jurisdictional breakdown of the Department of Justice. But give me two minutes to kind of set this up.

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There are 94 U.S. attorneys offices around the country, all part of the Department of Justice. And some of those offices are in the Virgin Islands and Puerto Rico and Guam. Of those 94 U.S. attorneys offices, ninety three of them do nothing but federal cases. They prosecute exclusively violations of the federal crime in federal courts. D.C. is different.

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We are the only office of the 94 U.S. attorneys offices, the D.C. U.S. attorney's offices that prosecute not only all of the federal crimes.

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In federal court, which is what enabled me to try massive RICO cases and, you know, do do some really exciting federal court prosecution, but because the District of Columbia was chartered as a federal city, there's no district attorney's office, there's no local prosecutor's office. So guess what? We as assistant U.S. attorneys for the District of Columbia, federal prosecutors, we did it all. We did all of the local prosecutions in the superior court for the District of Columbia and all of the federal prosecutions, which is why federal prosecutors in D.C. end up trying so many more cases than all of the other federal prosecutors around the country.

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That's not I'm not boasting. I'm not bragging. I'm just saying it's a fact that we are in court trying cases day after day after day.

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And that is not the standard practice for federal prosecutors offices around the country.

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So as a result of that, I've appeared before so many judges and federal court judges, as you probably know, are appointed by the president.

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But what's interesting about D.C. in the local court, the superior court for the District of Columbia, which is a great court, I loved practicing trying homicide cases in that court.

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There are about between 60 and 65 judges on the superior court for the District of Columbia, the local D.C. court, and they're all presidentially appointed. So I've appeared before I put the estimate at perhaps around 200 judges, give or take. So I have seen judges across the spectrum. When you say the good, the bad and the ugly, the the bench has got it. The judges, you know, range from the very good to the really bad and everywhere in between.

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Most of them are really good.

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But I have been before so many presidentially appointed judges that I think I have an informed impression about what it takes to be a good judge and when a judge is not good or not qualified to serve.

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So that informs my opinion regarding packing and unpacking of the courts, as we'll discuss in a minute.

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And I don't want to bury the lead because I do have a three part plan to unpack the courts.

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And we're going to talk about that in a few minutes.

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But let me talk about the breakdown between the different federal court judges, because it really is important to know where these two hundred Mitch McConnell judges have landed in our federal judiciary. So there are three levels of federal court, right? There's the trial court, the federal district court, where cases get tried. There are the appellate courts, the federal circuit courts of appeal, where appeals get decided. And then, of course, there is the Supreme Court with the nine justices.

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So the trial court, that first level of court where cases get tried, those courts don't make law. Those courts just decide cases. They can issue written opinions. But those opinions don't have the force of law. They're not what we call precedent. Nobody else has to follow an opinion that a trial court judge issues as part of her resolution of a trial. They can be interesting. They can be informative, they can be persuasive, those opinions.

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But when a judge is put in a federal district court slot, that person doesn't make law. That person just decides cases. However, the Federal Circuit Courts of Appeal, where 53 of these Mitch McConnell judges have landed, those courts make law.

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They make case law. Now, why do I say they make law? Because when a case is appealed and appellate court judges decide a legal issue and they publish an opinion, that opinion is what we call case law. And it is an opinion that generally needs to be followed. The legal principles set out in those opinions need to be followed. Now, here's the tricky part. They don't necessarily need to be followed. By the whole country, because there are nine federal circuit courts of appeal and if like, let's say, the Fourth Circuit Court of Appeal issues a legal opinion, it becomes case law that governs cases that are tried in the Fourth Judicial Circuit.

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But if a case is in the Ninth Judicial Circuit out west, well, they can look at that Fourth Judicial Circuit opinion, but they don't necessarily have to follow it. It's called persuasive law, but not binding law. I don't want to get bogged down in the details.

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But here's the thing with Mitch McConnell putting 53 judges, including not qualified judges on the appellate courts, those people are going to be making law. And when you're appointed as a federal court judge, regardless of at what level you set for life, so that is and you're almost beyond reach, but we're going to talk about how we can reach these not qualified judges in a few minutes. But you're almost beyond reach. So these people have a dramatic impact on the direction that our federal courts take.

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That's why the stakes are so high. So, of course, after the appellate court issues an opinion, then it can be appealed up to the Supreme Court and the Supreme Court is the law of the land.

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Once an opinion is handed down, all of the federal courts have to follow and abide by legal opinions issued by the Supreme Court.

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And the federal government writ large has to abide by opinions handed down by the Supreme Court. Unless we want a constitutional crisis, which we have thus far averted a true constitutional crisis. But we've come really close with Donald Trump's recklessness and lawlessness. And frankly, we may be creeping closer every day, but that's a topic for another episode.

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So now that we've sort of surveyed some of the the breakdown of the federal judiciary and the responsibility of the different federal court judges, let's turn to one example of a federal court judge that Mitch McConnell has crammed down the throats of the American people.

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And his name is Judge Justin Walker.

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And we're going to talk a good bit about Judge Justin Walker as an example of the problem and the challenge that we, the people are going to face as a result of Mitch McConnell's judges not qualified and otherwise that we are now having to live with in our federal courts, at least until we can dig in come January and begin to unpack the courts.

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So, as I said, Mitch McConnell has crammed 200 judges down our throats. And I'm going to keep saying that. Why?

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Because these are people who are voted in on a straight party line vote in the Senate.

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These are people who are either expressly rated as not qualified or not particularly qualified because it's all about their ideology, their conservative judicial philosophy and their conservative political philosophy that, you know, that brings them to Mitch McConnell's attention. And I will compare. Just for a moment, how Barack Obama's administration went about nominating judges, because I think it's instructive. So the American Bar Association is a, I would say, nonpartisan organization. There are some people who want to argue that one way or another.

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But, you know, when they are asked to rate judges or judicial nominees, I think they go about it fully and fairly in a largely nonpartisan way. They try to give a president the best advice they can on whether this person is qualified to be a lifetime federal court judge or not. So during the Obama administration, here is how the process went. And President Obama, I think, ended up nominating and maybe confirming or having confirmed about one hundred and eighty five judges over his eight years, his process involved identifying a possible federal court nominee and then giving that name to the American Bar Association.

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And the ABA would rate the person would do an investigation and would rate the person with respect to whether they were qualified or not to be nominated as a federal court judge.

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Fourteen fourteen of the names given to the ABA by President Obama, people he was considering nominating 14 times. The ABA came back with not qualified ratings of those 14 judges or of those 14 people who were being considered for a judicial nomination. Do you know how many President Barack Obama went on to nominate to the federal bench? Yeah, zero. Zero. Why? Well, I contend it's because President Obama and his administration really cared about the qualifications of the people they were going to put in these lifetime appointments as federal court judges.

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And frankly, isn't that kind of what we want? Isn't that kind of what we expect from our president? And let's be clear, when presidents are trying to identify potential federal judges, people to nominate presidents have every right to, you know, seek out.

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Future judges who share the president's priorities, world view, ideology, even political philosophy, you know, liberal presidents are more likely all things being equal to seek out and nominate liberal judges, judges who have a somewhat liberal judicial philosophy or worldview.

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Conservative presidents are likely to seek out and want to nominate potential judges who have a conservative worldview and judicial philosophy that not only makes sense that sort of the way of the world, that's the way it is.

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And there's nothing wrong with that, right. Elections have consequences. Boy, have we ever learned that the hard way. Elections have consequences and that that's one of the consequences, but you shouldn't. Be so determined to put ideologues on the federal bench that you're willing to find people who are so hard right or so hard left, that even though they're not qualified in the estimation of the American Bar Association and others, you're going to go ahead and cram them through anyway.

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But that is what Donald Trump and Mitch McConnell do. They do it to the federal bench. They do it. And in the process, they degrade the quality of our federal judiciary in a very real sense, folks.

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They do it to we, the people. So that is the difference between how the Obama administration went about dealing with federal judicial nominations and how McConnell and Trump deal with it. So let's get back to Justin Walker and you're going to hear me rustling papers, folks. And if you listen to episode one, what you learned is that one, I am something of a Neanderthal because I don't use computers. I use legal pads and pens. I don't carry computers, laptops around with me.

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I carry pads of paper. And because of that, you're going to hear me rustling my paper. And but instead of calling that a screw up in the podcast, we call that a behind the scenes glimpse. So when you hear paper rustling, that's a behind the scenes glimpse. Thank you for indulging me, folks. All right, let's talk about Justin Walker, who is Judge Justin Walker, and then we're going to move on to the three point plan to unpack the courts, to rebuild the quality of our federal bench.

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So Justin Walker graduated from law school in 2009.

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He then taught legal writing in a law school in Kentucky for a few years. And he distinguished himself as being so far right that Mitch McConnell plucked him out, made him a protege. At the tender age of 30 something and nominated him to be a federal court judge in Kentucky, now that this is the federal district court, that first level of federal court that we discussed where cases get tried.

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He was reviewed fully and fairly by the American Bar Association, and he was rated not qualified to be a federal judge, so had it been the Obama administration, that would have been the end of the story.

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But now the rest of the story he was nominated by Donald Trump, notwithstanding the fact that he was not qualified to serve as a federal court judge. And, of course, he was crammed down America's throats on a straight party line vote by none other than Mitch McConnell.

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So here is the part that I will never get over and I find so alarming that I'm going to read it to you, it's just a brief passage.

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I'm going to read it to you so you get the actual words that came out of the mouth of this not qualified judge Justin Walker, after Justin Walker was confirmed and as he was being sworn in as a federal court judge in Kentucky, he went through what's called an investiture ceremony. And if you all are not familiar with that term, it's a fancy term for the swearing in of a new judge.

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I have attended countless investiture ceremonies. Why? Because I practiced in lots of courts, both military and civilian. And I had the good fortune of being invited to investiture ceremonies for lots of my former colleagues and my friends who went from being a prosecutor to being nominated as a judge, being confirmed and then having an investiture ceremony or being a defense attorney. I have lots and lots of friends who are defense attorneys, even the ones that I would bump heads with in court.

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I'm pounding my fists together now, bump heads with in court day in and day out, and then we would shake hands. And at the end of the trial, we would sit down for a beer together. Lots of defense attorneys who were nominated to become judges were confirmed and then had investiture ceremony swearing in ceremony.

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So I had the really good fortune of attending a lot of investiture ceremonies. I was even the keynote speaker for a prosecutor who went on to be nominated by President Obama to be a judge. I got to speak at her investiture ceremony, and that was a great, great honor for me.

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So investiture ceremonies, folks, if you've never been to one or never seen one, it's a glorious event. Why? Because it's usually the pinnacle of somebody who has spent a lifetime generally practicing criminal law as a defense attorney or a prosecutor. Not necessarily, but often those are the folks who get tapped to be judges because they have lots of experience that qualifies them to be a judge.

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And it's you know, after you've gained experience and you've distinguished yourself, you are nominated, you're confirmed, and now you are being sworn in and you're donning the black robe for the first time that is done as part of the ceremony at an investiture ceremony. So as you can imagine, these are big affairs, all of the judges of the court that this new judge is about to join, they're all there. There's a long procession. It almost looks like a graduation ceremony.

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There are family members and friends and colleagues and members of the community usually set up in a big atrium in the courthouse. These are really great affairs. They're heartwarming and they're genuine and they're often inspirational. And after the judge is sworn in and after usually family members or close friends literally put the black robe on the judge, they assist the new judge in robing. For the first time. The judge gives a speech. And these speeches I've seen so many, they are moving, so many of them are moving because the judge gets to talk about his or her career.

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That brought them to the point where they are in a position to now take on the weightiest of responsibilities in our criminal justice system.

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Presiding over the criminal cases, the civil cases of members of our community and trying to dispense justice fairly and honorably and impartially and hopefully with great civility and decorum. Here's what Judge Justin Walker said after he was sworn in and he put on that black robe for the first time. He, quote, thanked the American Bar Association and others who opposed his nomination. Obviously, as a, you know, tongue in cheek backhanded, thank you, oh, I want to thank the people who opposed my nomination.

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And then he said to the audience, and this is a quote that his, quote, Legal principles have not yet prevailed, noting that although we are winning, we have not yet won, close quote.

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So now he's like a little General MacArthur. And I guess his position as a judge is like stepping on to the battlefield to fight a war against a perceived enemy. He said, although our legal principles have not yet prevailed, you know, we are winning, but we have not yet won. And then he went on Fox, he said something that I found not just. Brazenly partisan, but disqualifying.

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OK, this is just me, somebody who's appeared before a couple of hundred judges, he said, quote, Although we celebrate today, we can not take for granted tomorrow or we will lose our courts and our country to critics who call us terrifying and describe us as deplorable, close quote.

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Where have we heard that word before used in the political arena? Can I just repeat that line again?

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This was a new judge. Who was supposed to be fair, apolitical, nonpartisan, have, you know, be be chock full of civility and decorum and judicial temperament, welcoming of all people. He said that. We celebrate today, but we cannot take for granted tomorrow or we will lose our courts and our country to critics who call us terrifying and who describe us as deplorable. I mean, that sounds more like a speech that could be given in Charlottesville with somebody holding a torch.

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Then it does a speech that should be given by a newly minted federal court judge. So that was Justin Walker's first moments as a federal court judge, a Mitch McConnell protege, a Donald Trump nominee. Can you believe that it gets worse?

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I hope you're sitting down, folks.

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So after that, after he served literally just a few months as a not qualified federal district court judge in Kentucky, you know what Mitch McConnell did? He elevated him. He told Donald Trump to nominate him again for an even higher court.

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He convinced Donald Trump to nominate this not qualified judge in the first go round to sit on the D.C. Federal Circuit Court of Appeals as a federal court judge, making law that will affect not only litigants, but all of us. And can I tell you that that the D.C. Federal Circuit Court of Appeals is a a storied court, it is chock full of history.

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It involved and it was the home of federal court judges like Chief Justice John Roberts, Chief Justice Warren Burger, Justice Ruth Bader Ginsburg, Justice Antonin Scalia. These men and women were and are lions, lions of our federal judiciary. Now they are lions with very different judicial philosophies. Notice that I said both, you know, Antonin Scalia and Ruth Bader Ginsburg. Right. But, you know, you can disagree with their judicial philosophies or their political beliefs or their ideologies.

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But these people were and are lions of our federal judiciary.

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And typically, before somebody is nominated by a president of the United States to sit as an appellate court judge in the D.C. Federal Circuit Court of Appeals, people have earned that nomination with a lifetime of experience distinguishing themselves as remarkable jurists, smart, accomplished, fair, having tried case after case after case as either prosecutors or defense attorneys or presiding over cases as judges fully qualified.

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To sit in that prestigious court and here comes young Justin Walker, Mitch McConnell convinces Donald Trump to elevate him, nominate him again to the storied court. And, of course, he gets crammed down our throats again on a straight party line vote. And now he's sitting. In the federal the D.C. Federal Circuit Court of Appeals, a court where I will tell you, I argued many cases back in the 90s as a federal prosecutor. It's a it's a wonderful court, a wonderful appellate court to appear before it's a behind the scenes glimpse.

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So when he was confirmed and he took that position, what did he go about doing, Justin Walker?

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Well, recently, I think it was about a week ago or two weeks ago now, he issued an opinion, a twenty seven page opinion. And it's an opinion involving a woman by the name of Chelsea Nelson, who's a photographer in Louisville, Kentucky.

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And Chelsea Nelson didn't like the fact that Louisville had an ordinance on the books that had been there for 20 years. And get this, it's called the Fairness Ordinance, and it's designed to prohibit discrimination of folks in the LGBTQ community.

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It's an anti-discrimination ordinance. It's the fairness ordinance. And Chelsea Nelson decided that she wanted to discriminate against members of the LGBTQ community because her religious beliefs demanded it. So she brought suit. To try to strike down that fairness ordinance to allow her and I'm not criticizing religion or religious practices.

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Because I believe in the separation of wall, the separation of church and state, I believe that wall needs to remain high and impenetrable because people have the right to practice any religion of their choosing and they have the right to decline to practice religion.

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That's not the state or the governments business. And I will fight tooth and nail for somebody's right to practice their religion or to practice no religion at all. So this is not a comment on religion, but this photographer. Said, I don't want to have to photograph or provide services as a business person to a gay couple that seeks to marry, so she brought suit to strike down the fairness ordinance in Louisville so she could discriminate against gay couples. And Judge Justin Walker got a hold of that case and was asked to decide whether an injunction should be granted.

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Basically, I don't want to get into the legal procedural details, but he was asked to decide if she should be able to strike down that ordinance so that she could refuse to provide services to people that offended her religious sensibilities.

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And as you can probably imagine from where I'm going here, Judge Justin Walker decided in favor of Chelsea Nelson's desire to not provide services for a gay couple.

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And you know, some of what he said, he tried to put some flowery language in there.

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It was a 27 page opinion that I will not read to you if you want to see a contorted, twisting legal opinion trying to justify discrimination, claiming it's OK because it's born of religious beliefs. You know, it's a legal opinion that has more twists and turns than Lombard Street in San Francisco.

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Then I urge you to read the opinion. He says things in there like, while the Constitution does not require a choice, a choice between gay rights and freedom of speech, it demands both. Well, that sounds good, right? Sounds all fair and equal. Sounds all hunky dory. And yet when Chelsea Nelson's desire to discriminate against a gay couple because of her religious beliefs and all bump up against a gay couples fundamental right to marry who they choose and seek fair services from the community whose rights went out.

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In Justin Walker's mind. Well, the right of Chelsea Nelson to discriminate because, you know, religion and all, that's what religion requires. So I will say that there are also some choice passages in there where Justin Walker writes things like, quote, Chelsea Nelson believes that marriage is a gift from God to be treated. I'm sorry to be treasured and celebrated and can only be between one man and one woman. So, you know that that was good enough for Justin Walker to justify discrimination in violation of Louisville's fairness ordinance designed to combat discrimination of the LGBTQ community.

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That was good enough for Justin Walker to give that particular kind of discrimination his stamp of approval because, you know, religion. So Justin Walker is now sitting in the D.C. Federal Circuit Court of Appeals handing down opinions like that.

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How do we go about unpacking the court's folks, because we are headed in the wrong direction and please don't mistake my criticism or concern about the direction in which we are heading.

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As political commentary because you can be a conservative judge or a liberal judge, you can have one judicial philosophy or another, but you ought to be qualified.

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You shouldn't be rated, not qualified, and then rake in our taxpayer dollars by putting that black robe on every day and doling out opinions that encourage and allow and judicially endorse discrimination. Not against the LGBTQ community or anybody else, because what if Chelsea Nelson's religion said, well, not only. Do I need to discriminate against a couple same sex couple that wants to get married, maybe I want to discriminate against a biracial couple. You know, maybe I want to discriminate against a Muslim couple.

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Or Jewish couple. We're an African-American couple. With Justin Walker, give that his judicial stamp of approval as well. You ought to be qualified. You know, that is that is sort of the bare minimum, you ought to be qualified for the judge. Would you hire a brain surgeon who wasn't qualified, you know?

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Well, it was probably was a podiatrist. So, you know, he's got the whole thing covered. Let's you know, he's not qualified to head up neurosurgery in the hospital. But, you know, Mitch McConnell wants him to.

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So let's go ahead. Get him in the water. Let's open up that cranium. Yeah, it's a little now, it's a lot it's a lot infuriating because, you know, qualifications matter.

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Why do we need to see the death of qualifications of judges, people whose salary we pay? How do we unpack the courts, folks, what do we do? We've certainly identified the problem and oh, what a problem it is. We've tried to put it in some context.

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Let's talk about solutions, because they're there. They are. They're.

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And they are doable, so three things that we can do, three things that we must do beginning in January 1st, every single judge, including all the not qualified judges, every single judge that has been crammed down our throats.

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Yes, I'll say it again by Mitch McConnell and Donald Trump went through a confirmation hearing at which they were placed under oath.

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They answered questions not just from their friendly forces on the right, but the Dems on the left who wanted to get to the bottom of their qualifications or lack of qualifications. And they testified and they testified under oath. And if you lie under oath in a confirmation hearing before the United States Senate, that is a federal felony and it carries five years in prison. Up to five years is the statutory max.

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And it's what we call a 1001 violation. Why do we call it a 1001 violation? Because that kind of perjury, to use the more common term is it violates 18 United States Code USC Section 1001. So we call it a 1001 violation.

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So if these judges, particularly the not qualified judges, in their zeal to get that coveted lifetime appointment, make them untouchable, nearly untouchable, going to talk about how we can touch them in a minute. They may have lied. They may have shaded the truth. They may have fudged. They may have engaged in some deception because they were trying to cover up whatever it is they were trying to cover up so they could grab their confirmation, go to their investiture ceremony, put on that black robe, climb atop a bench and look down on people.

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And if they lied, guess what, they could be charged with perjury, they can be dislodged from the federal bench. Let's talk about one instance of how that might play out. How many of you all watched Brett Kavanaugh's testimony? I did. Watched it on an endless loop, I think, in the days and weeks after he testified it was a spectacle, you know, that was almost like no other when it came to judicial confirmation hearings. And did you see Brett Kavanaugh say things that didn't seem truthful, honest, candid, accurate, responsive to the questions I did?

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I did, and, you know, when, for example, you know, I don't cuss on air and I don't like to talk about things that are vulgar on air, I'm not a Puritan.

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But when I heard him asked questions about his victimization of Dr. Christine Blazey, Ford and I heard him testify about things like he would sign letters to friends FNF because a friend of his suffered from a stutter.

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Did that make sense to you folks? Did that sound truthful, you know, and some people might say, well, that's not really it's not really perjury because it's kind of a side issue. And I will say in order to be perjury, you have to knowingly lie and it has to be about a material matter. What does that mean? Well, if he was asked what he had for breakfast that day and he for some reason didn't want to say he had sugar pops, so he said he had eggs, that would be a lie.

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But would it be a material lie, would it be important to the substance of his testimony? Maybe not. Maybe not. I mean, you know, somebody wanting to be a Supreme Court justice probably shouldn't lie about anything under oath, but that might not be perjury because the lie might not be material. But when you're being questioned about sexual assault allegations against you. And you're saying f f f f f as a sign off in your letters. Is because a friend of yours stuttered, come on, I didn't know what FF meant until this hearing and then I looked it up.

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I don't know if it was the Urban Dictionary or elsewhere, but a lot of my. Agents and officers and detectives told me what it meant, they knew and it was a vulgarity that that dealt with how people treat women and I'm going to leave it at that. So. Did did did Brett Kavanaugh lie under oath during his confirmation hearing?

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There's one easy way to find out, and this is where we go in January and this is fixed, number one, to unpack the courts where we go in January as we let the FBI do what the FBI does.

[00:44:11]

We give them a transcript of Brett Kavanaugh's testimony and we let them do a full investigation to see whether Brett Kavanaugh lied. We all know that the FBI got shut down from doing a complete investigation the first time around by Mitch McConnell and Donald Trump. So that's how Brett Kavanaugh managed to squeak through the confirmation hearing, but now we let the FBI do what the FBI does, a full, fair, nonpartisan, apolitical, professional investigation. Of Brett Kavanaugh's confirmation testimony and the confirmation testimony of all the other Mitch McConnell judges, we don't go on a witch hunt.

[00:44:58]

And if you know what, if these judges testified completely truthfully, they have nothing to be concerned about because the FBI, I trust, will come to the conclusion that they that they testified truthfully, they did nothing wrong. Let's move on to something else. But if they lied, shouldn't they be held accountable, folks? If you or I lied under those circumstances, we surely would be held accountable. Shouldn't they be held accountable? That's the first way we unpack the courts of unqualified judges, because I am convinced that some of these Mitch McConnell not qualified judges.

[00:45:39]

Lied during their confirmation hearings, and we don't turn the other cheek. We don't let bygones be bygones when it comes to those consequential crimes by people who are now serving in, you know, life appointments, raking in our tax dollars as their salary, not punitive, just justice. Number two. Some of these judges will self select what do I mean by self select, they will engage in misconduct. Either in court or out of court, in their professional lives, in their personal lives, because you know what?

[00:46:23]

You don't get rated not qualified for nothing. Some of these judges will engage in misconduct, and when they do. There's a process for that. There is a judicial misconduct and disability process, so if a judge engages in misconduct, there is a mechanism, an office, a committee that handles that.

[00:46:55]

So here is what we need to do. And if you take nothing else away from this hour that we get to spend together, this conversation we get to have about justice and why it matters. Please take this away from it. What we need to do is create a citizens brigade, we need to be in these federal courts and the good news is there aren't that many of them as compared to state courts and local courts and county courts. You know, they are actually relatively few in number, the federal courts around the country.

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And we as the citizenry need to be in these courts all day, every day. And we actually have a project that we're working on to to put this together, to make this happen. And we need to keep an eye on these judges and not just the litigants, not just the parties, not just the attorneys in the case that are actually sitting in court litigating their their their cases, their matters, their trials.

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But we need spectators in the courts. Why? Because we're going to see judges engage in misconduct. How can I say that? Remember I said that I appeared before 200 judges give or take. I've seen it. I've seen it firsthand. I've seen judges do things that were darn near near darn near Miss Kuala Lumpur. Let me try that again.

[00:48:27]

Darn near dis qualifying.

[00:48:31]

You know, I'm a Jersey guy. I don't always talk. Good. I guess I could edit that out, right? Yeah. I've seen things that I brought to the attention of the higher ups in the Department of Justice. I said, I think this is something that needs to be addressed because a judge shouldn't and can't behave this way.

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If we have a citizens brigade that actually eyeballs these judges every day, they're going to engage in misconduct. And when they do, they need to be referred to the Judicial Misconduct and Disability Commission. And I'm going to tell you how to do that in a minute, so we need a citizens brigade because the attorneys in the case or the few people who are sitting in court when these things happen that seem like judicial misconduct, that doesn't often get reported out, there are no literally no reporters who bring it to the attention of the public at large.

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Sometimes there are never transcripts of it because there's only a transcript made of typically if somebody gets convicted and it goes up on appeal. But most things that happen in court every day never end up in a written transcript. So people don't see what's going on. But if we have a citizens brigade deployed to just eyeball these judges fairly, right. Honorably, honestly, ethically, apolitically butt, eyeball them, you're going to see misconduct. And it's misconduct that should be referred to the appropriate committee.

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And it could be that these judges will be sanctioned or removed if the misconduct is significant enough. Why do I say we need a citizens brigade? Well, I think what we've learned is that we can't rely on government to police itself, can we? We can't rely on one branch of government to police, another branch of government. How's that worked out for us with Congress policing the executive branch? Not so good, right? We can't rely on checks and balances.

[00:50:28]

We can't rely on coequal branches of government or the balance of power, as I think we were able to rely on a little bit more with with with greater confidence. Pre Trump post Trump, everything's changed. And we have lots of responsibilities as citizens, and we used to rely on government to police itself on, you know, certain government officials to keep other government officials in check if they ran amok or became corrupt or abusive or lawless.

[00:51:03]

But that doesn't seem to be working these days, so we all need to get more engaged in policing our government, holding them accountable, hold their feet to the fire, keep them honest, keep them ethical, keep them law abiding, keep them spending our tax dollars in a way that actually honors. The citizens who pay those tax dollars, who pay those salaries of those judges, a citizens brigade, if we could deploy a citizens brigade to the federal courts to watch these judges and when they engage in misconduct, whether professional, personal or otherwise, you report them.

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We report them. How do you report them? Here's how you report them. You go to their website and I think it's U.S. courts dot gov.

[00:52:00]

And there is a very simple two page form. It is called and I'm looking at it right now. And I mean, it's big old font that I can even see without my reading glasses almost. But it really is simple and straightforward. It's not complex. It's not confusing. If you need help filling one out, give me a call. I'll be happy to help.

[00:52:26]

And it is it's captioned Judicial Council of the District of Columbia Circuit, which is where these complaints come in centralized in the D.C. Judicial Circuit Court complaint of judicial misconduct or disability. Period. Plain and simple, straightforward. And if you come across a an instance of judicial misconduct, you report it and we need a citizens brigade to stay on top of these judges because government ain't going to police itself, at least not in the era of Donald J.

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Trump. That is the second it's U.S. courts dot gov. I think I said it before U.S. courts dot gov to page complaint form complaint of judicial misconduct or disability. Let's get let's get on it. Let's get after it.

[00:53:26]

And then one other remedy. Right. This would be number three in our three part plan. And it's doable, folks. We can do this together. Here's number three, we in January can. Put more federal court judges on the bench. How can we do that? There's no magic number of federal court judges. So, for example, let's take the most famous court, the United States Supreme Court. Right. SCOTUS, as they call it, it has nine justices.

[00:54:06]

However, over the course of our country's history, the number has fluctuated. We've had as few as five Supreme Court judge, judges, justices at a time. We've had as many as 10 in recent years. We've settled on nine. But nine is not a magic number. Nine is not a constitutional mandate or requirement. So we can go about seeking to add federal court judges to the various courts.

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Why might we want to do that? Well, let's assume there is. Let's just take the Second Federal Circuit Court of Appeals as an example. They hear appeals from, among others, courts in New York. Let's assume Mitch McConnell put to unqualified. This is hypothetical because I haven't broken down the numbers where all of these unqualified, not qualified judges landed. Let's just say hypothetically, he put two not qualified judges on the Second Circuit Federal Court of Appeals.

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You know what we do? We raise the number of judges allocated to that court by two. What does that do? And we put qualified to qualified judges. Well, it tends to neutralize the the not qualified judges because there are now more judges to decide cases. Appellate court cases are decided by three judge panels. So you're more likely to get a qualified judge on a panel with a not qualified judge. So we increase the numbers and that will help neutralize the not qualified judges.

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Mitch McConnell has put in place. How about the Supreme Court, should we add justices? Well, we certainly can, as I say, it's fluctuated between five and 10 over our nation's history.

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You know, maybe we dial it up to 11 with a hat tip to Spinal Tap.

[00:56:04]

Maybe we add two justices so we no longer have a nine court, a nine judge court. We have an 11 judge court. I'm not saying that that is the the be all and end all of remedies, but it's something we should consider.

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You know, now, am I somewhat heartened or comforted by the fact that I think it's seven of the nine justices recently announced no man is above the law, no woman is above the law in the Donald Trump tax and financial documents case?

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I mean, I guess I'm pleased, but we all knew no man is above the law. We know that Donald Trump and Bill Barr are trying to move our country in the direction where Trump is above the law.

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But the Supreme Court has really always maintained that no man, no woman is above the law.

[00:57:06]

Right. That was really the main thrust of the Clinton Jones Supreme Court opinion. It was really the main thrust of the Nixon court opinion. It was no man is above the law. Nixon and Clinton had to comply with the processes of the system, the justice system, the legal system. So I didn't find this to be surprising. It was what I was expecting. No man is above the law. We got it again in the Donald Trump tax litigation.

[00:57:36]

Here's the disheartening part for me, because in one breath, the Supreme Court told us no man is above the law. And in the next breath they said, so we're sending these cases back to the trial courts in New York and in Washington, D.C. for more litigation. And what does that mean? While that only inspires Donald Trump's lawyers to litigate some more, delay some more, Donald Trump's lawyers are experts at weapon izing, the delay built into the criminal justice system for their own nefarious purposes.

[00:58:13]

They don't litigate these things endlessly because they think they're going to win in front of any judge or any court. At the end of the day, they're running out the clock. They've weaponized the delay built into the criminal justice system so they can run out the clock and by losing court battle after court battle after court battle, they lose and they lose and they lose and thereby they win.

[00:58:41]

Because they run out the clock, so in a Future podcast, I will talk about how we remedy that problem, the weaponization of the court system by nefarious litigants like Donald Trump. And to tip my hand a little bit the way we addressed it and we tackle it and I've talked to so many of my friends who are judges and they say this is doable. We just have to have the will to take it on. Is you is you create a specialized court, a specialized docket, one specialized judge.

[00:59:17]

To deal with, for example, interbranch disputes between Congress and the executive branch, so Congress issues a subpoena for testimony in an impeachment hearing, the executive branch says, nope, you can't have that witness. Well, you know what you do? You go to the interbranch dispute, caught the eye, BDC and you get 72 hours to file your brief. You get another 72 hours to prepare and conduct your oral argument, and then you're going to have a court opinion in another 72 hours.

[00:59:52]

Was that nine days? If I can count, I don't have my calculator. You want to appeal that decision? 72, 72, 72. Now, in less than a month, you've got an appellate court opinion and it's been all but definitively resolved because you could still go to the Supreme Court. But what you have done is you've taken out the endless Don Meghann year and a half delay to run out the clock. The interbranch dispute caught folks it's imminently doable.

[01:00:19]

Donald Trump has opened our eyes to all of the problems, all of the deficiencies, all of the areas for abuse, right where they've wiggled into the cracks in our system and they've engaged in their abuse in those cracks and they've just blown them out into chasms, chasms of abuse and corruption and crime. By Donald Trump and his cabinet members and his family, and they've exposed they've exposed the weaknesses in our government, in our republic, in our democracy and our institutions.

[01:00:55]

But the good news is that once they're exposed. We know what needs to be repaired once he's blown that crack wide open, we've got to get a big old can of spackle and take care of it or maybe pour some concrete in there and shore it up.

[01:01:10]

We know what needs to be fixed. And now, come January, it's our time and our responsibility and our obligation and our honor to fix it. To fix it. Why? Because justice matters. It matters. Folks, please stay safe. As you all probably know, I'm on Twitter, Glenn Kershner, to I would love to connect with you on Twitter. I try to answer legal questions every day that my friends on Twitter posts about what's going on in this corrupt administration.

[01:01:50]

I put a YouTube video up every day, and I would be thrilled if you would go and subscribe to my YouTube YouTube channel and watch the daily videos. They're free. They run about 10, 12 minutes. I take on a legal issue of the day, you know, abuse dejour by Donald Trump or Bill Barr. And I've recently started a Patriot Page. So if you're not familiar with Patrón, that is a place you can go and support my efforts, my content, what it is I'm trying to do here, trying to again, analyze, put in context and propose solutions and trying to create a citizen's brigade that beginning in January will make our country so much better, so much better, and we can do it together.

[01:02:37]

So if you want to support my efforts and my content, please feel free to go to my Patreon page and you can, you know, pledge a dollar. Five dollars are different tiers, different levels. So I thank you all for joining me for having this conversation with me for the past hour. And I look forward to talking with you again next Saturday when we post our next episode of Justice Matters.