A MARTÍNEZ, HOST:
There is some tension between the courts and the Trump administration. The chief justice of the United States, John Roberts, issued a statement this week warning that impeaching a judge is not the right way to deal with disagreements over rulings. Now, that's after President Trump called for the impeachment of the judge handling the case of migrants deported to El Salvador. Here's a sampling of the reaction from the administration, starting with White House Deputy Chief of Staff Stephen Miller.
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STEPHEN MILLER: It is the most outrageous thing I've seen from a district court judge in my lifetime, but frankly, going back multiple lifetimes.
TOM HOMAN: We're not stopping. I don't care what the judges think. I don't care what the left thinks. We're coming.
PRESIDENT DONALD TRUMP: These are judges that shouldn't be allowed. I think they - I think at a certain point you have to start looking at, what do you do when you have a rogue judge?
MARTÍNEZ: You also heard there from Trump's border czar, Tom Homan, and the president himself, both speaking on Fox News. So let's discuss this with two people with different perspectives. Margot Cleveland is with the New Civil Liberties Alliance, an organization that says its mission is to protect against what it calls the administrative state's overreach. She also spent 25 years as a clerk to a judge on the Seventh Circuit Court of Appeals. Hello, Margot.
MARGOT CLEVELAND: Hello.
MARTÍNEZ: And also with us is Michael Gerhardt, a constitutional law professor at UNC Chapel Hill. So, Michael, let's start with you. One point that Republicans make is that a single judge should not have the power to issue restraining orders or injunctions that stop a president's actions nationwide. So are judges here improperly making it difficult for President Trump to carry out his policies?
MICHAEL GERHARDT: Well, let's clarify two things at the outset. I mean, the first is that that is a fair question. It's an important question. But it's a phenomenon that happened under President Biden, and nobody heard anything from any Republicans in Congress or, for that matter, from conservatives elsewhere. So it's a little late now for the administration to be worrying about that, but it is a fair question. I think it's hypocritical for some administration officials to claim that that's a problem now when they had no problem when it affected President Biden. But, again, to be sure, it's a fair question that the Supreme Court will have to deal with at some point.
MARTÍNEZ: So, Margot, Michael mentions the Biden administration. Republican attorneys general used the courts to win several national injunctions against the Biden administration. Were those injunctions improper?
CLEVELAND: So, again, on the question of nationwide injunctions, I've had a problem with them under both administrations. And I think you have to look at a couple of things. The difference is, in two months, we have had more TROs and injunctions entered under the Trump administration than under four years under the Biden administration. But there is a problem with nationwide injunctions, and the Supreme Court is likely to put a halt to that.
MARTÍNEZ: Now, when it comes to chief justice, we mentioned the rare statement from him that impeachment is not a cure for disagreements on court rulings. Margot, you say that that was imprudent. What is wrong with stressing normal appellate procedure?
CLEVELAND: Actually, I don't think I've ever said that his statement was imprudent. I think that the chief justice has taken the position and tries to defend his branch of government, which makes sense for him to do. And when we speak of impeachment, I think that we have to keep in mind that oftentimes disagreements with the president call for the president's impeachment. I do think that, in this case, that we haven't gotten to the level where any of these justices have done anything with their rulings that require an impeachment. Although, they have entered rulings that have been clearly unconstitutional, and in many cases, that have vastly exceeded their jurisdiction that Congress actually limited.
MARTÍNEZ: Michael, where do you stand on that when it comes to what the chief justice said?
GERHARDT: Well, I agree that the chief justice of the United States - and that's his official title - has as a primary obligation and duty to try to protect the integrity of the federal judiciary more generally. I think that statement is quite consistent with that duty. At the same time, I think the chief justice believed it was time to try and help educate the American people about a very basic point of constitutional law. It never hurts to clarify that point or to repeat it. The point being, as the chief justice said, throughout our history, no judge has ever been impeached, convicted and removed on the basis of their decisions.
There is a constitutional process for dealing with any errors by lower court judges, and that is to appeal them. The decisions have been appealed, and that's the proper process. The only other thing I would say is that to the extent that there are more TROs or injunctions now, that is because the president has been much more active in pushing the boundaries of his powers, if not exceeding the boundaries of his powers. And that's why we've got so many lawsuits.
MARTÍNEZ: Margot, do you have more of a problem with injunctions as opposed to temporary restraining orders?
CLEVELAND: Actually, it would be the opposite.
MARTÍNEZ: Yeah.
CLEVELAND: The bigger concern is the temporary restraining orders because those can be done ex parte, and there is no appeal process if they are generally a TRO - a temporary restraining order. But in many of these cases, the judges have not done restraining orders. They've actually done injunctions where they've ordered the court to do something. But, again, you have to look at each of the cases and say, was the order appropriate? And in many of the cases, they haven't been. We've already had cases where the appellate courts have stayed what the lower court did. So using this process, and I think we're going to see several more of the appellate cases - excuse me, the appellate courts that are going to be reversing these injunctions and restraining orders that have gone beyond the powers of these lower court judges.
MARTÍNEZ: How do each of you feel about the rhetoric around judges right now and how that maybe affects their ability to do their jobs? Michael, let's start with you on that.
GERHARDT: Well, I'm concerned about the rhetoric. And that's, I think, one reason why the chief justice issued his statement. I think he's concerned about the rhetoric because the rhetoric can lapse into violence against judges, and that's not appropriate. We also ought to keep in mind that the rhetoric that's directed against these judges is really driven by political sort of agendas, so it's a political critique of judges trying to do their jobs. And I think we shouldn't confuse the two things. Politics is one thing. Judges, generally speaking, should not be doing any kind of politics. They're doing law. They're trying to interpret the law and apply it as best they can to the circumstances that they're facing.
MARTÍNEZ: Margot, you have the last word on that. You got about 30 seconds.
CLEVELAND: Sure. So, unfortunately, the rhetoric was probably no higher than when the Dobbs decision was before the Supreme Court and we saw that coming out. And it was a very large problem. But I think we also have to keep in mind that a lot of these judges are actually doing politics. And that is what is, in some ways, pushing the disagreement. But the disagreement, that type of speech, is completely appropriate.
MARTÍNEZ: Margot Cleveland of the New Civil Liberties Alliance and Michael Gerhardt, UNC-Chapel Hill Law School professor. Michael, Margot, thanks a lot.
GERHARDT: Thank you.
CLEVELAND: Thank you so much.
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