From WXXI news.

This is connections.

I'm Evan Dawson.

Our connection this hour was made at the U.S. Supreme Court in an opinion about the issue of birthright citizenship, one of the first moves made by the new Trump administration this past January was to seek to eliminate birthright citizenship, even though it has been enshrined in law.

Their order was quickly struck down in court, not by the Supreme Court.

In fact, Justice Amy Coney Barrett's opinion chastised lower courts for wading in on this matter.

And we're still waiting for a final word on the matter from the top nine justices.

But that opinion from Justice Coney Barrett encapsulates why the critics are so concerned.

The Supreme Court has time and again sided with President Trump as he has sought to consolidate power.

It has given enormous leeway to what constitutes official presidential duty, and whether that insulates the president from legal action.

It has sent notice to lower courts about their power to have a say or not.

Meanwhile, the Trump administration has routinely said that the courts should not be an obstacle to their priorities, whatever they are.

Take the recent issue of tariffs as an example.

Here's David from writing on the matter.

Quote.

Last week I paid $26.05 on a tariff on a small purchase from the United Kingdom.

On August 29th, a federal appeals court ruled that the U.S. government had no right to take that money.

It allowed the tariff to remain in place until October, pending further litigation.

But the Trump administration has lost every round of this fight to date.

If it keeps losing in court, the question will sooner or later arise.

What happens to my $26.05?

In a filing with the Court of Appeals, Treasury Secretary Scott Bezzant said that overturning Donald Trump's tariffs would count as a dangerous diplomatic embarrassment, and Commerce Secretary Howard Lutton warned that striking down tariffs in court would have devastating and dire consequences.

He cautioned the courts not to go down that road, end quote.

What exactly does that mean?

Devastating and dire consequences for adjudicating whether an economic action is simply constitutional.

Does that mean that the Trump administration would simply ignore the courts and dare the system to try to stop them?

That is, by the way, what Vice President JD Vance has recommended a number of occasions.

Six months ago, we welcomed a pair of retired judges to join us, sharing their concerns about what happens if the three branches of government are no longer truly equal, if the courts are ignored or run over?

Today, we welcome three retired judges from both major political parties, by the way.

And before I introduce them, let me just say something else.

Some of our audience reached out to me in the last day asking whether we're going to address the assassination of Charlie Kirk.

And the answer is yes, in time, of course.

And I want to find a way to try to contribute to a productive conversation about this.

When I heard the news yesterday, I was driving to pick up my older son, and I had to sit in the car and pull over and just breathe.

I mean, I was moved to tears.

I fear for this country.

I felt ill yesterday.

And somehow we have to bring the temperature down and reject violence of all kinds, all kinds.

And that's what the majority of Americans do.

We can't assume that our political opponents want violence.

There are a few people in this country who do.

The vast majority of Americans, no matter your political ideology, reject violence.

Period.

And I'm concerned that some prominent people are now calling for this government to pursue a kind of authoritarian response to what happened yesterday, and that would be the wrong way to go.

But let's talk about that this hour.

There's a lot to talk about.

Let me welcome our guests in studio.

First to Honorable Rick Dellinger.

Judge Dellinger is retired from the New York Court of Claims.

Welcome back to the program.

Thank you for being here, judge.

Thanks for having us.

Evan.

Across from Honorable Judge Dellinger is the Honorable Joseph Valentino.

Judge Valentino retired from the New York state supreme Court.

Welcome back to the program.

Thanks for being here.

Good morning.

Evan.

And next to Joe is the honorable Thomas Van Stratten.

Tom is a New York State Supreme Court justice.

Retired judge.

Welcome.

Thank you for being with us in studio.

Thank you for having us.

I'm going to start, in.

Well, let's start with yesterday because I don't want I can't spend the hour on yesterday.

We need more time to turn of digest.

And there's still a lot happening.

And I promised to our audience we're not going to avoid this topic.

We have to.

We really have to grapple with what it means to see political violence becoming more common as it was.

Unfortunately, yesterday is not an outlier.

I mean, we saw an assassination in Minnesota.

We saw January 6th.

We saw what happened with Congressman Steve Scalise.

I mean, these kinds of things are way too common, and we should not accept that.

But there's something that stood out to me yesterday.

One of the close advisors to President Trump is Chris Rufo, and he works for high ranking institutions.

Here's what he said in response to the Kirk assassination, quote, the last time the radical left orchestrated a wave of violence and terror.

J. Edgar Hoover shut it all down within a few years.

It is time within the confines of the law to infiltrate, disrupt, arrest, and incarcerate all of those who are responsible and support this chaos.

End quote.

Judge Dellinger, what do you what do you hear there?

Well, the critical question there is who the they are.

Who's the they?

Well, we don't even know.

We don't have any idea who did this.

And I would suggest that before anybody jump to any conclusions, we figure out who did it, why did it, and then figure out whether he or she is affiliated with any group or organization.

And to the extent that the law requires or permits the Justice Department or local officials to investigate and determine that others were culpable in this, they ought to be prosecuted to the full extent of the law.

This is, I agree with you, Evan.

This is part of what is becoming, unfortunately, that, a tradition of violent action by people in the political process.

It's not only unseemly.

It's incredibly dangerous to the rule of law because it suggests that, anyone can pick up a weapon or pick up a tool or use some form of justification and inflict harm and and murder on others.

And this is a terrible, terrible notion.

You bring up the, the individuals in Minnesota, the public officials in Minnesota who were assassinated.

This this is an assassination.

And quite frankly, it's intolerable.

But from my point of view, the best thing we can do is just lower the temperature.

Let's do this.

Consistent with law and consistent with our tradition.

Find out who did it.

Prosecute them to the fullest.

Anyone who collaborated ought to be held accountable as well.

Period.

Judge Van Stratten, what do you think?

Well, I find it interesting that many of the people who are now claiming that we have to lower the rhetorical climates of and bring the temperature down, are responsible early on with being the people who have raised the temperature and used extreme language, when they referred to the courts and other institutions.

So, who are you talking about specifically?

Well, I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released a whirlwind.

I mean, we're all familiar with those quotes from Schumer, and he's not alone.

There are others who, you can go and see the record, and they've called and, or use language that is really inappropriate then and now they're saying they shouldn't use that language.

I think they got to look in the mirror and figure out who really is responsible for raising the temperature of this.

This time.

And judge Van Valentino.

Well, it's interesting to me, and I agree with, Judge Dellinger that first of all, we have to find out who the who is.

And that statement from the Trump staffer that, you indicated, reeks of McCarthyism.

To me, in other words, every anybody that's against us is the enemy.

We have to say that somebody is the enemy, and we're going to make them all, prosecuted.

And, and that that disturbs me.

Also using J. Edgar Hoover is, I don't think that's the best model of, justice, to use.

Well, listen, if you want to weigh in on that, you can, I think there will be a lot to be said as we learn more about this.

I'm also.

I'm not naive.

I mean, I don't want anybody.

You do not need to send me an email and say, come on up and don't.

Can't you figure out who.

Everybody has a suspicion.

Everybody has an idea.

But there are a million different possibilities here.

And let's just breathe.

Let's just wait.

Let's let law enforcement do their job here.

Correct.

And, Evan, I just point out in the assassinations in Minnesota, I believe it was the state of Minnesota.

It was it was good.

There were there was an investigation done.

And they found who the shooter was.

And I believe he took his own life.

Yeah, but there was no suggestion that that individual had acted on behalf of any organization, even though his victim was an outspoken Democratic state senator.

So it just seems to me that we need to focus.

I'm a crime and the perpetrator and do an investigation.

I agree with, with Joe Valentino, let law enforcement do their job and figure this out before we jump to a conclusion that this is part of a cabal or it's, a liberal coup, or it's an attempt to take over, the country, I would point out that even when Trump was shot, he was done by no one, at least to my knowledge.

No, no one has been able to suggest that that was done under any liberal cabal or any, any liberal organization or democratic organization was involved in that solo act.

So let's, let's become and concise and let justice do the job.

That's the first thing we can do, pouring, gasoline in, from the point of view of judges or public officials, pouring, fuel on this fire is a huge mistake.

Yeah.

And I don't want to get into who has said what and play a point scoring game.

I think Judge Van Stratten makes an important point, that when you are a high ranking elected official, your words matter.

There are thousands, if not millions of people who may be taking a cue from you.

And I think we need not imply that the big parts of political parties are going to celebrate this, whether you're a Democrat or a Republican.

I think that's dangerous.

I mean, Senator Mike Lee from Oklahoma, after the Minnesota assassination three months ago, tweeted a sarcastic remark, a joke about it called it Nightmare on Wall Street.

Tim Walz, the governor of Minnesota, was, you know, thought he could get a laugh out of it.

That's after an assassination, a act of political that the flags were not flown at half staff at the white House for that.

So there has to be kind of condemnation on all sides.

That's just where it is.

I feel sick, I felt sick yesterday.

I feel sick today.

I want to get back to where we why we're here in the first place.

And, you know, I want to bring in Judge Vance right on first on this because six months ago, the other two Co panels were here, and Judge Van Stratten was not here is this is the first time we get a chance to hear from you about this.

Your colleagues have expressed concern that this administration does not view the courts as either legitimate or an equal branch of government that that they are to be ignored if their actions are not favorable to the administration.

Are you concerned about that?

Well, we have some concern, but it's not new.

Judges have been criticized and probably should be criticized.

We shouldn't avoid criticism them, because it's uncomfortable.

But you go back to the, Franklin Roosevelt time with the New Deal.

And in 1937, his New Deal was probably an equivalent of the big, beautiful bill that Trump is putting through.

And he didn't like what the Supreme Court did to his New Deal, and tried to pass legislation which would pack the courts.

So criticism isn't to be avoided.

I think criticism makes all of us better.

It's just a language that's used sometimes.

Is inflammatory and I think should be avoided.

Yeah.

It's one thing to have inflammatory language.

It's another to say, what?

What does it look like when it goes beyond just language into action?

So what would constitute for you a step that says, okay, no matter the presidential administration, this is not just an administration that is critical of the courts.

This is an administration that is now trying to flout their authority and dare the system to stop them, to ignore judicial orders.

What would that look like?

Well, there's been some talk about impeaching judges whose decisions they didn't like, simply for the fact that they didn't like their decisions.

And I think that's a step too far.

The judges cannot be concerned that their future depends on pleasing politicians on one side or the other.

Judges have to make their decisions free of that concern.

That's one reason why they have ten year, 14 year and lifetime appointments.

Okay, judge Valentino, we talked six months ago roughly here we are today.

Are you more or less concerned about this administration's disposition towards the judiciary?

I'm more concerned.

Why?

Well, when the judge being strident is correct, judges should be criticized, in certain events and certain decisions.

But the manner in which they're criticized can undermine the public confidence in the judiciary.

And that's the thing that concerns me, because this administration, when criticizing judges, often say things like this judge should be impeached.

They say, the vice president uses profanity sometimes in criticizing the courts.

And what you said, Evan, is correct.

People have high, office when they say something.

It does make a difference, and it does determine things.

One of my pet peeves in in, destroying public confidence is when the judges are identified now as well.

This judge was appointed by Obama this judge was appointed by appointed by Bush or Trump, that I never heard that in my whole life until recently.

Where now, there identified as who appointed them.

So they must be liberal because Obama appointed them or they must be conservative because Reagan appointed them.

And I think that makes that makes the public feel that they're not fair and impartial, which we take an oath to the Constitution and also to be fair and impartial.

Judge Dellinger, are you more or less concerned six months later?

I'm I'm more concerned.

And it's largely because of what Tom mentioned, which is the rhetoric has, been inflated and, it's more strident, it's more, personal.

It's more, I'm more political.

But do you see anything beyond rhetoric?

Do you see actual action that concerns you?

Well, here's here's the critical thing, even from my point of view, I'm tempted to go back to, Andrew Jackson.

When the Cherokee Indian dispute arose in Georgia in the 1830s and the Supreme Court said, we're going to recognize the power of the tribes and the president can't interfere with them.

And you can't do this.

You can't do that.

I believe it's Andrew Jackson who was quoted.

Okay, they've decided the case.

Let them enforce it.

The one thing that's interesting about our court system is that none of if the three of us sitting here ever had the power of enforcement, what we did is we could issue orders that required the enforcement agencies, the police to go out and rest, somebody to detain somebody, the sheriff to hold somebody in jail.

We could issue those orders.

But none of the three of us walked out and put handcuffs on people and escorted them to the jail.

And I take your point.

Your concern is if the courts can issue opinions or orders that are ignored, then we're in a very different place.

But do you feel like we're on the precipice?

I do, I do when when the vice president of the United States, who got a degree from some obscure law school in in New Haven, Connecticut, you know, I don't remember the name of it, but it's associated with a big university that's now paying millions of dollars to the federal government for some reason.

Anyway, he got a degree.

And when he started off his career, he had no doubt he told everybody that he was a graduate of this famous law school.

The name again escapes me that.

That's cool.

Yeah.

Well, yeah, that's right.

But my point is, when someone with a Yale law degree says, oh, maybe we won't enforce that order, that order from the federal courts.

Or maybe we should consider not enforcing it or not abiding by it.

I see the door opening to chaos.

Judge Van Stratten, do you feel that?

That's hyperbole to some degree, yeah, I don't think.

I mean, this country's been around for a couple hundred years.

We've gone through some trying times, both, in the judicial system and otherwise.

I think that the, the legislative body is the body that I see is lacking, equal, being equal, they really, bowed to the executive branch a great deal, not just the Trump and, the current legislature, but even, when the Democrats have the presidential power, the executive seems to have trumped, to use that term, the legislative process and not much comes out of Congress these days, which is difficult.

Congress is very weak right now, but but weak by choice.

That's the difference.

I think the judiciary is trying to do its job at different levels.

I think Congress you're right.

If if it's a supermajority for the Democrats, if it's a majority for the Republicans, there seems to be marching orders that come from the white House, which is not historically how the system was set up here.

What's the consequence of that, judge?

Well, the consequences is what we see right now.

We got, 25 executive orders that are under emergency situations, which really should have required legislative approval.

And those executive orders are what goes to the shadow docket, the Supreme Court.

And, you really eliminate our legislative process altogether.

You know, it's interesting.

You bring up the executive orders, the white House just on all of their social media platforms this week.

On Monday, they posted an image of President Trump victoriously celebrating his 200th executive order and said that, his number of executive orders is dwarfing the number of the executive orders of those who came before him, proving that he knows how to get things done and get it done quickly.

And I think for those of us who, you know, haven't recently taken a civics class, you might go, oh, he's getting things done.

However, what I hear in this room is there is a legislative process for a reason and declare to declare everything an emergency, everything worthy of an executive order and circumventing the legislative process is a way of concentrating power in one.

In one branch.

Yes, well, they're doing more.

They're, using the executive authority and asking the Supreme Court to take up their executive orders or their their palaces, if you will.

Skipping the trial courts and the appellate courts.

They go to the Supreme Court right away.

There's, I think, 25 executive orders or emergency.

Requests to the Supreme Court, which they've accepted.

And I think out of the 25 that they've accepted, they've ruled in favor of, the president about 21 of those cases, and they are the Supreme Court for the first time that I can remember is being criticized by a federal trial judges for issuing the shadow opinions, which are not spelled out in detail, which are not subject of, some sort of, adversarial hearing someplace.

And, a judge says, reminded the federal, district judges that these opinions are precedent and they have to follow them.

And the problem that the trial judges have is there's not a lot of guidance in it.

And so I think it's, it may very well be proven to be an abuse of the executive power and a judicial power.

Interesting.

And as I mentioned at the outset here, furthering the the tension, perhaps, between the Supreme Court and lower courts was the words of Justice Coney Barrett about birthright citizenship essentially chastising lower courts for even wading in, saying like, this is not your territory here.

This is up to us.

We'll get there.

What did you make of that?

Judge Vance?

Right.

Okay.

Well, I think that's part of the reason that the trial judges, district judges, are now being heard objecting to some of what the Supreme Court's, doing it.

You you didn't see that before that I recall.

Okay, what do you make of that, Judge Valentino?

Well, through the years, we all looked to higher courts, to give us guidance.

And, the shadow decisions by the Supreme Court are no guide to the lower courts.

And I agree with with Judge Van Stride.

I said also, these, shadow decisions have no, body.

There's no, indication as to how they reached it.

It if there is an indication it's very, very, sparse.

So consequently, going back to what we said right in the beginning, this really erodes and undermines, public, confidence in the judiciary because the average person says, okay, that that was a decision.

Why why was that decision reached?

And there's no if you look to social media, you'll get all kinds of reasons why the decision was reached.

But it's not a legal decision.

And I think that's erodes a public confidence.

Judge Dellinger, too many executive orders.

What do you think?

Well, I think it's it's an unprecedented number.

And what it's designed to do is to bypass Congress.

We all know that Congress is incapacitated because the party in power in the House has a two vote majority.

And under those circumstances, you can't expect the House to really do anything.

And without the House doing something, the the legislative branch is incapacitated.

Trump knows that Trump, as the president, has the power to use whatever prior statutes there are to claim an emergency basis.

He has not encountered any, opposition, significant opposition, either in the Senate or the House.

And under those circumstances, because the legislative branch is incapacitated, the executive branch has filled the gap.

And I agree with you.

I mean, the notion is that you get things done quickly, the at least the lead.

But the lesson that I got was that democracies don't work quickly.

They work slowly and deliberately and with consideration of all points of view before the legislature acts and hopefully some transparency.

Correct.

And that doesn't exist in a world filled with executive orders, just doesn't.

And I would add, I think Obama use them.

I certainly think Biden use them because of frustration with the legislative process.

I think it's a bad idea.

And, it does slow down the process, but it requires that someone who's thinking about bringing change has to convince elected officials that it's the right thing to do.

When you have an executive order, there's only one person who needs to be convinced of it, and that's the president.

And you bypass the 435, 235 members of the legislature.

I think that's a serious mistake.

Well, related to that, I just have one more issue.

I'd like our guest to talk about, and then we'll turn it over to listeners.

And that's what happens when I think the pillars of a healthy government start to get eroded in either very partizan, a very tit for tat dangerous ways.

And there's two ways that I think about.

Number one is executive orders.

Number one says that, well, if Trump's going to have 200 executive orders in a year and brag about it, if we get power, we'll do 300.

Executive will overturn everything.

And it becomes a game where the party that wins the presidency immediately seeks to bypass whatever Congress is doing.

And I'm not saying that's exactly where we're going.

I'm I think there's a risk of that.

But then, I also think about what constitutes activist courts, and that's such a sort of, subjective term.

But go back to so go back to 1935 and the case goes to the Supreme Court, and the Supreme Court rules that the Democratic Party of Texas can exclude black voters and voters of color from the primary, because the court in 1935 says the state cannot discriminate based on race, but a country club can, a restaurant can, and a political party is a private institution, and it can.

Nine years later, Thurgood Marshall, as an attorney, takes a case to the court on the same subject.

It's the Texas Democratic Party.

They want an all white primary.

And this time the court, 8 to 1, says no, you can't do that.

Owen Roberts, the justice who was still there in 1944, the one vote against it, his dissent didn't say, I don't think black voters should vote in primaries.

He said.

We've got to be really careful before we become a court where every five years, every four years, every ten years, we flip a ruling just because there's somebody new in there and there's there's new political winds that we should respect precedent more, and we're going to be viewed as just an activist court that is just a political arm as opposed to its own entity.

Now, you can make of that what you like about Justice Roberts dissenting in 1944 on the all week primaries.

But that was his concern.

And that's 81 years ago.

Are you concerned, Judge Dellinger, that I mean, what is an activist court versus a court with prudence?

I mean, what's the line for you?

Well, here's here's the thing is, as everybody knows, in 1973, when the court issued, Roe against Wade, there was a huge objection issued by virtually everybody that this is a legislative issue, that the Supreme Court has stepped in and served as a super legislator, on what was at the time sort of an equal protection due process ground.

And it was probably the most expansive interpretation of those constitutional principles.

So I agree with all my colleagues.

The the criticism of the court.

I mean, Earl Warren, remember the impeach Earl Warren movement because of the, the liberal decisions that came down from the court in the early 1960s involving, due process and the right to counsel in Gideon versus Wainwright and other things.

So that's the criticism of the court that the concern about the court stepping into the legislative environment.

Remember, as I've told everybody in my whole career, if you don't like a judge's decision, there's one thing you can do go to the legislature and get them to change it.

We have the courts recognize the power of the federal legislature and the state legislature within their own jurisdiction to control legislative matters, and it's usually only when there's a default that the courts intervene.

So I think, I think we've gone too far with executive orders.

I think it started early on 30 years ago.

I worry that, I hope that the, midterm elections proved decisive in that one of the two parties has more than a two person majority.

So the House will actually start to do something, and we can have the legislature intervene.

And to set the public policy of the United States instead of a single executive doing it.

Judge Van Stratten, what does an activist judiciary look like?

What you're going activist judge is probably one who, decides cases based on their own personal point of view rather than, the matters that are placed in front of them.

All of the judges, feel that they have judicial independence, and that protects them somewhat from, decisions that are unpopular.

But it also, protects them somewhat because they, they will, feel free to.

But some judges will feel free to make their own decisions based on their own policy rather than what's in front of them.

So, but, you know, judges have been criticized forever.

Every time you make a decision, you get a criticism.

Every time, every time someone appeals, they're basically criticizing the decision that they're appealing from.

So that's part of the process that we, have.

And as far as following precedent, if we held precedent as being sacrosanct, we still be following Plessy versus Ferguson, which is, separate but equal would be.

Okay.

But times change, and, we need to look at the cases before us and decide the cases as best we understand it and not be influenced by outside forces.

Yeah.

I always thought it'd be tough to be a judge because, you know, if, you know Judge Valentino, if you make a decision I like that's just, made with careful, thoughtful, prudential mind if you make one I don't like?

Well, now you're an activist, and now you're outside the bounds here.

I mean, I've been a little flippant, but what for you is the boundary of an activist judge?

Well, I think, the quote that you got, that you gave us from that Judge Roberts in the 1944 case, he defined, an activist court.

I believe he did that one.

Every time a new court comes in, if they decide to change it, according to their whim, I think our United States Supreme Court began to be perceived as an activist court.

As Judge Dillinger said right after the, the decision where they reversed Roe versus Wade, reversed Roe v Wade.

Yeah.

2022.

You're not talking about the original row.

No.

The recent the most recent decision.

Do you think the original row was activist?

Yes I do.

I think it was an activist opinion.

This this, also, both of you talked about the three branches of government, and, and Judge Dellinger is correct that there should be checks and balances.

We learned that in civics class years and years ago, but unfortunately, the courts now seem to me to be the only ones.

And I'm talking about lower courts, not the Supreme Court, but the courts are the only branch that are standing up to follow the Constitution at this time.

The, Congress is doing nothing and the president is going out on his own.

Making, these, motions to, to the Supreme Court foreshadowed decisions which they're not, written.

You, you talked about, judges, you and Judge Van Strike when they get reversed or, affirmed or whatever.

When I was applying to the Appellate Division, I was asked a question, by, in a panel by the, dean of the Buffalo Law School.

And he asked me, what do you think of the present Appellate Division?

Well, I initially thought it was a trick question, and I asked him to ask again, and he said, well, what do you think?

And I said, well, when I write a decision and they affirm it, I think it's great, but if they reverse it, I don't think they're so good.

Yeah.

And basically that follows in line with what we've been saying.

Some people when you write a decision, you're the greatest judge in the world.

But if it's against them, you're the worst.

So we're all up for criticism.

We're talking to three retired judges, the Honorable Joseph Valentino.

You just heard Thomas Van Dike, Rick Dellinger all joining us to talk about their perspective.

Having worked at various levels, of the courts over the years as they as they look at this administration and its, disposition toward an interaction with the federal judiciary and what that portends for all of us.

So let's take our early break.

I've got plenty of your feedback, and we're going to read some of your emails, connections and talk on the other side of this break.

Coming up in our second hour, we continue our series in public media this week on HBCUs, historically Black Colleges and Universities, HBCU issues came to be at a time when black students were shut out of higher education, and now HBCUs fill a vital need.

Today, thousands of students still attend HBCUs for a wide range of reasons.

You're going to hear from some graduates.

We'll talk about what's going on with HBCUs now and in the future.

Next, our.

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This is connections.

I'm Evan Dawson, Charles writes to say the courts are not losing power because the Supreme Court ruled in Trump v Casa that district courts do not have the authority to issue nationwide injunctions that block the authority of the executive branch.

If a nationwide injunction is going to be issued, then it ought to be issued at the same level.

A nationwide opinion would be.

Deep down, your listeners know this to be correct.

We all know how much they would freak out if a judge in Texas or Florida issued a nationwide injunction that they disapprove of.

That's from Charles.

Okay.

Judge Van Stratten, what do you think?

Well, the nationwide injunction have been stopped now.

Yeah, but he's saying that's appropriate.

He's saying why should some district court in some individual state decide on birthright citizenship?

He's saying Justice Coney Barrett is right, saying, look, that's not your authority.

That's got to come to us.

It's not just that their authority.

It creates confusion.

I believe, because you do have one district court ruling one way and one district court ruling the other way, and the matter of citizenship, where would that person be?

A citizen?

And if they moved, would they be a non-citizen someplace else?

So there are, I suspect you could conjure up, a case in which a nationwide injunction would be necessary, but not in that kind of case that, there's no real need for it right there.

So I think that nationwide injunctions.

I've always thought that federal district courts had an awful lot of power.

Individual.

Lee.

Just one judge.

And that's what I think Judge Barrett was talking about.

Okay, Judge Valentino, I concur with what he said.

And, I don't necessarily disagree with that decision.

I don't think a judge in Texas should indicate what we citizens of New York should follow.

And just for the record, Valentino and Van Stratten agreed on something.

All right.

Rick, Rick Dellinger, I dissent, and the reason why I dissent is purely a matter of procedure.

When the caption on the complaint says Thomas Van strident against the center for Disease Control and that lawsuit is brought in Texas, a district court judge has the issue to has the ability to take the defendant wherever they may be and tell that defendant what to do based on the facts and the law before that judge, because the defend it is not the Texas branch of the center for Dispute Control or the center for Disease Control.

It's the federal center for Disease Control.

And if that's the party that's before the court, the court can issue an injunction that binds that party wherever they may be.

An injunction granted in Rochester, New York, against Eastman Kodak Company that says you violated the antitrust laws has to be enforceable.

Any place in the United States that Eastman Kodak is located.

Wait a second.

You can only bind Kodak in Rochester, New York, and in New York State.

You can't bind them in Texas or at of Eastman Chemical in Tennessee.

My response is, if that's who the defendant is, you have the power to adjudicate the right of the defendant and the plaintiff, and you have to be able to enforce it wherever the defendant is.

All right.

Judge Van Stratten, what do you think?

Well, I think he loses.

It was 2 to 1 as I counted it.

So said he's on the wrong side of the issue.

There's the first time I know there are cases in which the injunction we're talking about is appropriate.

When you got Eastman Kodak, of course, you have to enforce it across the country.

But your initial, observation was about the birthright citizenship.

And I think there's no need for an injunction at that point in time.

So a judicial restraint should come into play.

And let the case, work its way through the courts.

And if the Supreme Court decides, one way or the other than the Supreme Court decides it, and it's the law of the land, but to enforce an injunction and something like birthright citizenship, from district to district, from Appellate Division to Appellate Division is more confusing and does nothing to enhance, the judiciary to the public.

Go ahead.

Can I just respond quickly?

Yeah.

The two gentlemen across from me know the rule.

And that is when the district courts disagree.

When the appellate courts, the circuits disagree.

It's the Supreme Court's job to resolve disputes between the circuits and between the district courts.

That's the way it's worked.

And and the other thing I would just say is, if you get a decision that says, I'm entitled to birthright citizenship in the state of Texas, and you get a district court judgment that says you have birthright citizenship based on the United States Constitution in Texas.

You can't go to Louisiana and have someone say, you don't have birthright citizenship, but tell me if I'm wrong.

What I think I'm hearing you say is justice Barrett shouldn't say, hey, lower courts, this ain't your game to to adjudicate.

Leave that to us.

What they should say is, yes, you can weighed in on this, but if there's disagreement, we're going to take it.

My, the only thing I would change in your statement is whether there's a disagreement or not.

Yeah.

They ought to take you there because it's an important constitutional issue for the 14th amendment.

Okay.

It deserves Supreme Court attention.

But I wouldn't suggest that you say to your district court judges, you can't do this.

And here's the other thing.

I still don't know how procedurally it gets to the United States Supreme Court.

If there isn't a lower court decision somewhere that would suggest that you either have it or you don't, I don't, I don't know, but that's different than saying that the case should work its way to the Supreme Court to issue a nationwide injunction in that place that would put that one judges in Texas opinion across the nation and would cause confusion.

So I think that judicial restraint is make your decision.

Don't necessarily enforce it across the nation.

Wait till it works its way to the Supreme Court.

Well, I, I agree with that.

Except what happens if it's an individual plaintiff?

In what respect?

Tom van strident against the United States of America.

I'm entitled to birthright citizenship.

I win, you've got it.

You were born in the United States.

Does that is that enforceable throughout the country?

They prevent to prevent the United States government from declaring you to be an alien or a an an unnatural citizen, and that would be the law.

And unless and until it's appealed and some appellate court overturns it.

But it wouldn't apply to Joel Valentino.

No, no, I agree with that.

But it applies no matter where Tom finds strident or Joe Valentino is in the United States of America.

But I think you're you're boosting his argument as to the confusion.

There would be a lot of confusion, as if it did apply to Joseph Valentino.

And the ear, example of Eastman Kodak is, is a there's a distinction.

There's a distinction between that and birthright citizen, because Eastman Kodak is a company, a worldwide company where there would be no confusion.

I, I agree with that.

And I agree that district courts, we've talked about this.

It's entirely possible the two district courts would sit down with almost the exact same set of facts and reach a different conclusion, based on their view of the Constitution.

Those are the kinds of of, differences between the district courts that have to work their way up to the federal appeals courts and then go to the Supreme Court.

That's the way it's always worked.

All right, let me get back to some feedback from listeners.

Dallas says legislators legislators are mainly YouTubers now, and I wish Dallas were wrong.

Dalton says this administration has seem remarkably comfortable with flouting court rulings and attempting to intimidate judges who make decisions they do not agree with.

A local example of this I found pretty concerning is from under a county executive below, who filed a formal complaint and publicized a recent bail decision by a Rochester City Court judge releasing someone from custody, which he had lawful discretion to do.

This is after arguing ardently that the recent bail laws do not give judges enough discretion on custody matters.

I'm concerned that this may have a chilling effect on any judge who uses that same discretion to not put someone in jail, and I worry that may have been the point.

Have you all followed that story, Judge Sandra, if you follow that story, well, I have not seen with Judge Lopez and the county executive.

I'm familiar with the fact that, Adam Bellow filed a complaint with the Judicial Conduct Commission against, Judge Lopez.

Michael Lopez?

Yes, because of, and this is the part that I'm not clear of because of his practices in, dealing with bail and dealing with release of defendants.

But I'm not sure about any specific case.

I haven't seen the complaint be inappropriate for me to comment for Judge Valentino.

I know a little bit, concerned, concerning what I read, he is my understanding he does have the right to, set the bail, because once the camp judge, arrange the defendant, it goes to him because the jurisdiction of this case is Rochester City.

So it goes Rochester City Court.

So he does have the, right to do that, to change the bail.

The thing that's, puzzling to many people is there was no motion, by any attorney to lower the bail or whatever.

He did this on his own, I see.

Okay.

And Judge Van Stratten, can you follow this?

Well, we're all kind of in the blank as to what actually the facts are on it, but Judge Lopez clearly would have the discretion to make a decision on bail.

Particularly if it's it's made within five days when the bail was set.

The issue really becomes if he has a policy that he's going to release everybody.

No matter what.

That's not appropriate.

Judges shouldn't have policies that are, impenetrable by by the facts.

And there is some question of whether he should have some respect for the decision that a judge of equal jurisdiction made the day before in setting bail and setting bail the day before.

And I guess there's a conflict between the tip part court, some of the judges like it and some of them don't, and that might influence it somewhat.

But I don't see where, Adam Bellow has, A right or he is correct in saying that he should go to the grievance committee because the judge made his decision.

And he's got the authority to make the decision if he's wrong.

Of course not on bail, but most of the time of the judge is wrong.

In city court, you can appeal it.

And that's the way it should go.

But a judge shouldn't be concerned that every time they make a decision that's, the executive or someone disagrees with that, they're going to be before the grievance committee.

That sounds to me like it's a, a hammer heavier than it need be.

Well, I think the county executive is saying he's waiting in because he sees a judge consistently acting to remove all bail and is endangering the public.

What do you think?

Well, that's his position.

And I think the mayor is, chimed in on it, too.

And the mayor said he's not going to file a grievance because he thinks the, Mr. Bello's grievance would be sufficient, and that's fine.

But I still believe that if the judge is making his decision based on the facts and reviews, the record of the defendant, and it is of a different decision than the court part, he should be releasing them.

But it shouldn't be automatic that if you come before Judge Lopez the next day, you're getting out.

And from what I've been reading, it appears that that's what Mr. Bello is asserting is that Judge Lopez has some sort of order that if someone who going to come to him the next day has been, has bail placed on him, that it should be on his docket the next day, and then he himself will, free that person with no bail.

I think Judge Valentino correctly points out that, that you shouldn't be doing that as a judge.

That should be a motion brought by the defense attorney and subject to a hearing.

Got to keep it tight.

Go ahead.

Yeah, here's here's the point.

We agreed on this earlier.

It would be inappropriate for a judge to have a practice that everyone that appeared in front of them should be released, irrespective of nobody, primary respect of the charge.

Likewise, it would be inappropriate for a judge to sit down and say, we're going to require bail in every single case, irrespective of the facts and circumstances and the law that I think we all agree, either one of those scenarios, if that was your practice, that's inappropriate.

You have to judge based on the facts, the circumstances.

I don't know enough about what, happened in, Judge Lopez's case, but you can't you can't have a blanket system one way or the other.

Justice requires that it be based on the law and the facts as you know them, and you reach those decisions.

All right, but 40s apiece to close here, we've talked a lot about in the federal level about whether our guests, three retired judges and they've got some agreement, some disagreement, our concern about this administration's disposition toward respecting the judiciary.

Judge Van Stratten But 40s final thoughts from you, what are you looking for going forward that would convince you all right, this is appropriate or not?

You know what?

What will you be watching for with the Trump administration and courts going forward?

Well, I'm not concerned that, what this administration is going to do is going to put a chilling effect on our judiciary.

Our judiciary has survived a lot, other attacks, and they'll survive whatever attack is perceived here.

I think that, our judges have demonstrated that they're independent.

And, the, the big issue, I think, comes with the shadow docket and, the use of executive powers of emergency.

Okay.

Judge Valentino, excuse me.

Some of, Congress, some of the congressmen have, stepped up and, have, criticized the Trump administration for, their, undue criticism of the courts.

I'm looking you asked what we're looking for.

I'm looking for more of this.

I'm looking for the Congress to take their position as an equal branch of the government, so that the courts aren't overburdened.

As I indicated earlier, they're the only ones that are stepping up to uphold the Constitution.

Judge Dellinger, it's very simple.

I want John Roberts, the chief judge of the United States Supreme Court, to go on public and say, I support the judicial process and my district court judges.

I would ask them to continue to do their job consistent with the law, the facts and the Constitution.

And when they do it, I will support them.

And I guarantee that the United States Supreme Court will do the same thing.

Period.

Since you've given me the last 30s, Judge Van Stratten was not here in the last conversation.

So I'll close with this.

What did you make of the Supreme Court's presidential immunity decision?

Well, I think the president needs to have immunity and actions that are taken as president as official actions.

Yes.

Official action using the scope of official action was too broad from this court.

I don't think that they really defined the scope enough to to know, are you concerned that it's too broad?

I'm concerned it could be interpreted as too broad, but I, I have every hope that, the next case will be decided on its merits.

So I suspect you think some of the concern about that particular decision are hyperbolic?

Yes.

Okay.

I want to thank our guests for being here and taking the time to have this conversation.

And it's an ongoing conversation because, we need a system that does function well.

Judge van der, I don't think the court's going to be okay that that we have a system that will hold here.

And Judge Van Stratten, retired from the New York State Supreme Court.

Thank you for making time.

I hope you've come back here.

We certainly will.

And thanks to the honorable Justice Valentino retired from the New York State Supreme Court.

Thank you for being here, judge.

Thank you, Evan, and Judge Rick Dillinger retired from New York State Court of Claims.

Thanks for making time, judge.

Thank you very much for having us, Evan.

We got more connections coming up in just a moment.

Oh.

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