We Dissent welcomes back Alison Gill as co-host! Alison shares what she’s been up to since leaving the pod, and then walks Rebecca and Liz through the state of our federal bench. We discuss federal judicial nominations from the recent presidential administrations and what it has meant or means for religious liberty and other civil rights.
Show Notes
Rebecca Markert: Welcome to We Dissent, the podcast with secular women attorneys discussing religious liberty issues in our federal and state courts and our work to keep religion and government separate. I'm Rebecca Markert with Americans United for the Separation of Church and State.
Liz Cavell: And I'm Liz Cavell with the Freedom From Religion Foundation.
Alison Gill: And I'm Alison Gill with the National Women's Law Center.
Liz Cavell: Welcome back, Alison.
Alison Gill: Thank you so much. I'm so excited to be back.
Rebecca Markert: We are so excited to have you back as a co-host. We've missed you so much.
Liz Cavell: We've missed you so much. The doom and gloom has not been the same without you.
Alison Gill: Oh, well, I appreciate that. Although I think you guys are already great at the doom and gloom on your own, but I'm excited to doom and gloom with you and to resist and fight back, right? That's right. Exactly. That's why we're really here.
Rebecca Markert: Exactly, exactly. For sure. As our listeners know, you were at American Atheists back when we started this podcast. You are one of the original co-hosts, and then when you left American Atheists, you left the pod. Can you tell us a little bit about what you've been up to since you left We Dissent?
Alison Gill: Sure. So I joined National Women's Law Center as the Director for Nominations and Democracy, so working to oppose some of the terrible nominations we've seen from this administration on all different issues including, especially the courts, which I'm sure we're going to talk a lot about today, and also democracy. And our democracy has been having a bit of a rough patch over the last year or so, and even before that, but especially over the last year or so. And it's really critical that we're fighting back and resisting. And so I'm really glad to be at the center of engaging on that. I'm happy to talk a little bit more about National Women's Law Center, if that makes sense.
Rebecca Markert: Yeah. We would love to hear about National Women's Law Center and especially why National Women's Law Center would be interested in some of the issues that we cover on the podcast, like secular democracy, the separation of church and state and religious freedom overall.
Alison Gill: Absolutely. So National Women's Law Center is an organization that fights for gender justice, and we do that in the courts and public policy. And throughout our society we work on a number of different issues that are critical to achieving gender justice and protecting working families such as reproductive rights and healthcare, LGBTQ equality, education and workplace justice and addressing income inequality, poverty and lack of childcare. But all these important policies, all these changes so necessary for our society and our families are predicated on us making democratic change through a functional political system. Democracy and gender justice are inseparable and really history has shown that everywhere and as we've seen over decades and accelerating just this past year, our democratic systems are not just at risk but really under siege in so many ways. The principles they're built on including separation of religion and government, including equal representation, free speech, all of that is under threat.
And autocrats like Trump seeking to consolidate power who believe they should have control over others' lives and their bodies rely on and propagate anti-democratic anti-gender justice ideologies like white Christian nationalism, religious pronatalism and others to manipulate their base and justify their own power grabs. And that's the reason I went to National Women's Law Center, to work on nominations and democracy issues. We have to protect our democratic systems, our fair courts, and the rule of law in order to achieve the society we want to build. And as I joked, I think many times in this podcast previously, if we want to have a real impact on so many of the issues that we care about, whether it be church state separation, gender justice, or any of these other issues, we need to reform the courts. We need to care about court reform, and as well, we need to have a democracy that is responsive and accountable to the people and the constitution, not one where power is concentrated in the hands of people who are wealthy or have a particular set of religious beliefs.
Liz Cavell: Amen.
Rebecca Markert: We are so excited to have National Women's Law Center be a co-sponsor of this podcast. We all share the same vision for true religious freedom and have talked about this on the podcast relentlessly, how the separation of church and state, as you said, is really foundational to our secular democracy. And this issue touches on all of these other issues that we care about, like gender justice. Our organizations have partnered with National Women's Law Center many times before on reproductive rights issues and gender justice issues, and we really think that this is a good fit for the podcast moving forward.
Liz Cavell: Yeah, I'm just going to echo that and say it's awesome to welcome Alison back to the pod also because you have a ton of experience in your legal career working for secularism and also just kind of bringing always that lens of minority rights and equal protection and how all of these different civil rights and constitutional rights intersect. And I think it's so important that we're bringing you back on now at this moment where truly, it's not an exaggeration to say that we are working to preserve our secular democracy and we enter the world in the secularism space and protecting that part of what's so unique about our democracy. But I think having the lens of the work that you're doing as it centers on the courts and true democratic representation, I think has never been more vital to the project of ensuring that secular democracy endure.
So I'm really excited to kind of bring that lens back to everything that we're talking about, which has been hard, especially over the past year, is to kind of keep in the frame always the democracy lens, the courts obviously so important to everything that we're talking about, the legitimacy of the courts, the responsiveness of the courts to the democratic process and the Constitution. And so it's going to be a great addition to just the moment that we're in and talking about the issues that we care about to really also be thinking about the broader impact on democracy and always having in mind the courts. I'm excited to have you back. I'm so excited that you're bringing your perspective on the work that you're doing at NWLC, and we know that there's so much to talk about as we go into 2026 on all these fronts, so this is so exciting.
Alison Gill: I agree. Thank you so much. Thank you both. I'm really excited too. And this is going to be great. I can already think of amazing topics we can touch on in the coming months, so I'm excited to work with you both.
Rebecca Markert: Well, the first episode back, I really wanted you to talk about judicial nominations because as we mentioned, we used to joke all the time that our podcast was sponsored by court reform, and you took that to heart and went and actually worked on judicial nominations. And to be honest, we haven't really talked a lot about the federal bench, only cursory, I think, since you left the podcast. And so I want to really devote the rest of this episode to finding out what does the federal bench look like? How did judicial nominations go under Biden after Trump won, and how has that tied, turned or not for the second Trump administration? So let's get started on talking about what the federal bench looks like.
Alison Gill: Sure. Well, I think it's important to do a little bit of history here and go back even before Biden, before Trump won to President Obama, under President Obama, the Republican Senate did everything possible to stall his judicial nominees. And on many different issues, it's been well reported that the Republican Congress tried to not let him have any sort of achievements, but they especially tried to stall his judicial nominees. And this was a real focus of McConnell, Senator McConnell. This was sort of his grand plan, if you will, for the courts. They focused especially on circuit courts, so trying to hold open seats. And also famously, the nomination of Merrick Garland for the Supreme Court who is nominated, I think it was 11 months before President Obama's term ended, and he never got a vote in the Senate, which is not typical, let's say. I mean under Trump 1, they managed to fill Amy Coney Barrett within what, a few weeks?
Rebecca Markert: A few weeks before the election? Yeah, I don't remember the exact timing for Garland, but they had plenty of time to have hearings and vote on him. I will always say that as one of the things that I would put on my tombstone, "Merrick Garland should have gotten a hearing." It was awful.
Alison Gill: Yeah, it was pretty bad. Well, I mean that got a lot of attention, but what got less attention is all these circuit court positions that were left unfilled, not because President Obama didn't nominate people, because they weren't getting moved through the Republican Senate. And just so folks understand the difference between district courts and circuit courts, so district courts, they're trial courts. When you bring sue on an issue, we're talking about federal courts, you bring it into district court, whatever it might be, that's where trials occur. That's where people spend most of their time. So circuit courts are where you appeal to. So if you don't like your decision in the district court, whether it be the ultimate resolution of the case or just like a preliminary injunction for example, you can appeal that to a circuit court. And there are 13 circuit courts, well plus the federal circuit, so I guess 14 circuit courts, and they each have a region.
So the third circuit covers Delaware, New Jersey, and Pennsylvania for example. So they each have several states, so they oversee several different districts, and so they have a widespread influence compared to district courts. So seats on circuit courts are really important. Also, they have much fewer circuit court judges and they tend to hear cases in tribunals. I know this is sort of an old hat for Rebecca and Liz, but I'm just trying to fill in everybody else so that you have a shared understanding. When you do an appeal, there's three judges usually that hear the appeal on the circuit court. They make a decision, it can come out three to zero or one to two or et cetera. And so that's an overview of circuit courts. But they're very, very, very influential because basically they have oversight of district courts, so they can really put an impact on the law. And what happened was under Obama, he left open all these circuit court seats so that when Trump came in in his first term, he was able to rapidly fill circuit court seats. And he did, he filled 54 circuit court seats during his first term 54, which is about a third.
Liz Cavell: That's so many.
Alison Gill: It's about a third of all circuit court seats, about a third. And they flipped a bunch of different circuits. So when I say flipped, I mean judges are supposed to be nonpartisan, but on a lot of different circuits, the majority of justices have been nominated by Democrats, for example, or Republicans, but he basically nominated so many people that there were now significantly more Republican nominated judges, circuit court judges, then democrat ones, and they shifted a lot of longstanding rulings because they now had a majority to sort of go the other way on important issues in circuit courts, and that affects the entire law of the circuit. It makes a huge difference. And that was sort of McConnell's evil plan, if you will.
Liz Cavell: This was huge at the time, and we covered this. It's shameful to say because there's been so much going on in the past year during the second term here, but the last time we really covered judicial appointments was talking about the crazy impact that was being made so quickly into the first Trump term, FFRF, we did a report on Trump appointed judges in the first term, basically showing how rapid and ideologically extreme and young, unqualified and homogenous and all of these things that are so bad for the federal bench, just kind of showing in one report what the impact was. And this was all during the first term. And I'll link that in the show notes so people can check it out. But Alison, as you're building to now, here we are a year into a second Trump term, and the impact on the courts is kind of the sleeper story, I think of the whole Trump era.
Alison Gill: Absolutely. It's an incredible impact on the courts, especially his first term, and I'll go into why it's especially the first term in a bit. But so I think that moves us to Biden, President Biden, and President Biden made incredibly significant efforts to diversify the bench so that it more resembles the population of our country. He nominated many more women, many more people of color, and also really critically lawyers with diverse professional backgrounds because so many lawyers nominated come from attorney general's offices, prosecutors, or they worked in big law firms or in corporate law, and the number of judges that were public defenders that worked for civil rights nonprofits that were legal services people, there was very, very few. And so President Biden made an extra effort to nominate those people so that we have more diversity on the bench because it really does benefit when you have a diversity of experiences and lawyers from different professional backgrounds so that they don't just see things in one way. They have experience actually defending people who are accused of crimes, not just prosecuting them. You can imagine how much of a difference that makes. Another stat that I find remarkable is basically he tripled the number of women of color on the bench from about 4% to 12%.
Liz Cavell: Wow.
Alison Gill: Which is incredible, right? It's just amazing. Surprisingly, there's been none whatsoever under Trump. Now I think about it.
Liz Cavell: You don't say,
Alison Gill: Yeah, but that is a really significant gain. So both professional diversity, racial, gender, all types of diversity really increased and had just an incredible number of very qualified candidates. In fact, there were 235 seats nuts, both district court and circuit court filled under the Biden administration 235, which is a huge number, and it's actually one more than Trump filled during his term, which is 234.
Rebecca Markert: That is so interesting. I don't think I knew the numbers, but one more than Trump's first administration.
Alison Gill: One more.
Liz Cavell: Also not as many circuit seats though, not as many circuit seats.
Alison Gill: That is true. Not as many circuit seats, which makes a significant difference. So that's the sad part. But there's many, many more judges, and those district court judges often are moved later to circuit courts. So now the pipeline is much stronger as well. But as for Trump too, the good news is there were so many seats filled that there are significantly fewer vacancies than there were in 2016, significantly fewer thanks to the work of all the advocates for the Biden administration, for the Dem Senators actually prioritized moving these people forward. Many advocates and organizations that worked in this, including National Women's Law Center and FFRF and others supported really focusing on getting these judges on the bench. So they made a significant achievement there. At the beginning of this term, there were 60 ish vacancies, open seats that Trump could fill, and some judges, as is typical when you have a new president takeover, some judges have announced vacancies since he took office because they want him to replace the next judge, replace them. So right now there are 47 vacancies. There are about 10 pending nominees, and about 27 of Trump's nominees were confirmed last year. So 27,
Rebecca Markert: This is just in one year, so that still seems really
Alison Gill: High. It is, but if you multiply 27 times four, it's a lot less than 234. True.
Liz Cavell: The pace is way slower and just the landscape, at least at this moment in time, there's only so many vacancies. It's way different.
Alison Gill: That is exactly right. Yeah. There's only, and he only pushed forward, I think six circuit court judges last year, and that's for people making way for him too as well. So there were only six, although there is an eighth circuit, one that's now going to be in play that Erin Hawley is sort of positioning herself to try to claim She's sort of auditioning, getting in the media, trying to get Trump to pick her. It's pretty clear. Yeah, she's the worst. I remember there was a Supreme Court episode, we were discussing a Supreme Court testimony argument maybe before I left, and we were talking about how she didn't do a great job. Yeah. What was that case? It was that, I don't remember. I'm
Rebecca Markert: Trying to remember what the case
Liz Cavell: Was. Wasn't it one of the reproductive cases? Was it the FDA versus Alliance for Hippocratic Medicine? It was like case,
Alison Gill: A mifepristone case. I bet you it was. Yes.
Rebecca Markert: I'm looking it up right now. Yeah, it was mifepristone
Liz Cavell: This was the case that originated in Kacsmaryk's courtroom. The whole thing was a con job from soup to nuts.
Alison Gill:Yeah, absolutely.
Liz Cavell: And so Erin Hawley was the perfect person to be arguing that at the Supreme Court because it's all these concocted cases from Alliance Defending Freedom and all these other religious right nonprofits. And that's where she comes out of, she comes out of the Alliance Defending Freedom Pipeline, and that's exactly the type of person that the Trump administration is trying to elevate to these federal courts.
Alison Gill: And the good news is she lost. Right. That's the good news on that one, at least that's true. Yeah, that's true.
Rebecca Markert: She was involved in a lot of these cases, though I have on this list, Dobb's versus Jackson Women's Health, 303 Creative, the Ryton case, Burwell v. Hobby Lobby, and then did Amicus briefs in Espinoza.
Alison Gill: Yeah. Well, I'm sure we'll talk more about her. So let's get back to the courts and hopefully she will not be on them, but so currently, seven of the 13 circuits have Republican nominated majorities, the 5th, the 8th, the 6th, the 11th, the DC circuit, the 3rd and the 7th. And we all know the status of the Supreme Court unfortunately. So what's notable is that despite his gains the first time around, Trump feels kind of let down by the Federalist Society.
Been all these attacks like fighting publicly. He's done with Leonard Leo, who's their big sort of face and fundraising person. And I think that comes from the fact that some of the judges ruled against him when he tried to steal the election in 2020. There could be other reasons, but that seems like a pretty major one.
Liz Cavell: And I think too, there are Trump appointed judges, and most of them, I think from term one, came from the Federalist Society wishlist that are, even though they're extremely ideologically conservative, and they were a Federalist Society dream judges, they are pushing back in district courts against many of the authoritarian things that the Trump administration is doing in the second term. And again, any judge that rules against anything that the Trump administration is trying to do is in the administration's mind, like a failed judge.
Alison Gill: Yeah, yeah. I mean, I guess they don't want independence. He thought that they should always rule for him.
Liz Cavell: No, the independent judiciary was apparently not what they had in mind.
Alison Gill: So in this administration, instead, Trump has really prioritized personal loyalty over everything else. And it's not to say that some of these people aren't affiliated with the Federal Society, many are, right, but they haven't put that front and center as to why they should get their role. Really, it's been about personal loyalty to Trump or his inner circle. For example, he put his personal attorney, Bove, Emil Bove, the one who defended him against Jack Smith's case on the 3rd Circuit that really is
Liz Cavell: So infuriating
Alison Gill: Along with, as well as several judges who were explicitly defended his actions or backed his false claims about 2020 election with legal reasoning or backed the fact that the Supreme Court gave him immunity and said, that's the right call. Basically anything like that saying Trump is right about everything is a great way to signal that you should be on the court apparently. So all these folks are being nominated for the court, and Bove was especially noticeable because he's so clearly corrupt
Liz Cavell: And unqualified.
Alison Gill: Well, that too, none of the candidates nominated have been willing to plainly say, for example, that Biden won the 2020 election. They all claim that, well, Biden was the one certified as the winner. They were very careful to parse their words, to not contradict anything Trump has said, which is it's a demonstration of fealty to Trump. I mean, if you're not even willing to say reality and who won the election, how are you ever going to stand up against the administration in a court? It's really amazing and a show for how these judges are going to be on the bench.
Liz Cavell: And honestly, I just want to pause to just take a moment to reflect on how different this is from the first term, judges, as bad as they were for secularism and reproductive rights and minority rights and civil rights, this is why the administration has turned against all these Federalist Society judges and they've been so let down by the Federalist Society. It's because in the first term, for whatever you could say about the nominees, and we were not fans, they weren't having to make personal loyalty tests to the president about his bogus election lie. That hadn't happened yet in 2016. Obviously we are so far down a different path compared to where we were in 2016 and 2017, and because it's all just kind of been linear, it's easy to lose sight of how abnormal what's happening now is even compared to what was going on in the first term.
Alison Gill: Yeah. Many of these judges, they're identified as they were being involved or working for very activist state attorneys generals or solicitors generals offices. So that seems to be a prime recruiting ground instead of the Federalist. Not that they're not Federalist Society members, many are, but instead of the Federalist Society providing a list explicitly happened during the first administration, they seem to be looking at really activist state attorney general or solicitor general offices, states like Missouri, Kentucky, Tennessee, they created special offices to fight culture, war issues in the courts, whether it be abortion, whether it be trans equality, whatever. And also
Rebecca Markert: To is there are states you're talking about,
Alison Gill: These are state attorney general's offices. Exactly.
And also to oppose Biden's offices. So anytime Biden put out a rule or anything like that, they immediately brought suit. For example, the Missouri one was very, very involved in pushing back on the debt relief, the student debt relief, for example. And so that's why they exist. They were created and funded just to fight culture, war issues, and these are the activists that they are now trying to put on the court as judges. So these are not like, oh, I worked for the state and was a typical attorney general and did all sorts of attorney general things that they normally do for No, no, no, no. These people that selected into fighting activist battles and then are being put on the courts to further those issues from the bench. So it's pretty disturbing.
Liz Cavell: Yeah. They're literally activist judges that are being specifically recruited because of they're radical ideology and their activist nature.
Alison Gill: And I mentioned this earlier with regards to Holly, but we're also seeing judges basically auditioning for higher positions, especially because we very might well see a Supreme Court vacancy soon. My favorite sort of, I don't know favorite, I use it loosely. I think James Ho is the most obvious person. He's just so out there, he writes these ridiculous dissents or concurrences that just have these, bring in all these Trumpian narratives. He recently published a law review article that's just like, I don't know, a list of grievance politics with citations and trumpisms with citations. It's ridiculous. It's not even readable talking about how judges are wrong and arrogant and they shouldn't stop lawmakers and doing what they want. Basically, he does talk about the ideal qualifications for a judicial nominee,
Liz Cavell: Just saying, and
Alison Gill: Surprisingly he fits those qualifications.
Liz Cavell: Yeah,
Alison Gill: It's just a coincidence. A lot of it's based in religion, so a lot of harping on religion, and you have to apparently know Jesus to be a good judge. So very close.
Liz Cavell: This is James Ho of the Fifth Circuit, who you probably have heard us mentioned many times negatively in passing. It's been involved in all of the cases that have come from the Fifth Circuit to the Supreme Court, which is kind of teeing up so many of the cases that the Supreme Court is taking.
Alison Gill: We'll put the article in the show notes if folks can read this nonsense.
Rebecca Markert: Yeah, that'd be great. We're also going to put the website for National Women's Law Center also in the show notes so you can find out more about the organization if you didn't know about it before. Today I want to talk about the impact of the judges on what's happening in our country. But before we shift to that, I kind of want to pick your brain on something that you just brought up, which is the possibility of a Supreme Court nomination very soon as you just said. And I'm really curious about that because obviously this has come up numerous times since the new year began, and I want to know from you working in this space for the last year or more, what are you hearing about that? And it sounds like you think that's a definite possibility, and do you think it's going to be someone like Justice Alito or Justice Thomas, or, I mean, who else could it be?
Alison Gill: Yeah, well, okay, so we don't know for sure. We don't know. They hold it very tightly, and we're not going to until it's announced. However, to be safe, there's a potential that the Republicans could lose the Senate
In the upcoming elections this November. And if that happens, then Trump is going to have a very difficult time getting an extreme candidate confirmed, and that will lock him out for the second half of his term, and therefore to be safest if they want to have a vacancy and fill it, it would have to happen this year. Typically, Supreme Court Justices announced their vacancies shortly prior to the end of the term or just after the end of the term. So that would be anywhere from May to the end of June, I'd guess. And two of the justices that have been on the court the longest and that are the oldest are Justice Alito and Thomas. Now, Thomas is super close to having a record for the longest serving Justice on the Supreme Court, so I think he might try to stick it out and get that. So my money is on Alito, but who knows?
Rebecca Markert: A girl can dream. Here's where I get stuck because hear what you're saying, and I understand all of that, and it seems like that's the chess move to make, right. But I can't imagine that Alito wants to leave, especially now that they have this majority on the court and it's go time for him and his extreme views. I just don't see him leaving or wanting to leave. And I wonder what is the enticement for him?
Liz Cavell: He's an ideologue and he wants to be by another ideologue.
Rebecca Markert: Is that enough over his ego though, I guess? Yeah, that's a good
Liz Cavell: Question,
Alison Gill: Rebecca. I dunno the answer to that. I mean, I hope not. I hope you're right, because frankly, if we can have this go until after, hopefully the Senate changes hands, then we might be in a whole different situation,
Rebecca Markert: I mean regardless. I think we should be prepared for it, but a lot of people have brought it up, and I just keep wondering really. I just feel like both of these guys, they've been espousing such extremist views, especially on religion and the Establishment Clause in particular. And I find it hard to believe that they would want to step down. I feel like they are like Ginsburg, they're just going to stick it out from their hospital beds even. But I mean the ideology and how President Trump reacts to things, I mean, maybe they will be persuaded to leave.
Alison Gill: Well, regardless, we're getting prepared, right? Exactly. So we're lining up preparation. Organizations are getting involved with we co-chair the Fair Courts Coalition, which is part of the Leadership Conference for Civil and Human Rights. So we have a group of over 150 organizations that work on fair courts issues. So we're ramping up and getting ready, because it's important. This announcement happens that we are ready to go.
Rebecca Markert: 100%. Yep. Yep. Well, so let's shift and talk about the impact of these judges and what is happening in our country. As we mentioned at the top of the show, a lot has happened in this last year and recently there was an analysis by the New York Times detailing how lockstep his judges seem to be in defending his agenda. The headline was this Trump's superstar appellate judges have voted 133 to 12 in his favor. So it feels like the deck is stacked against us. And I'm curious to hear from you, Alison, how this is playing out in the courts. Is it as bleak as the New York Times headline makes it out to be, or are we feeling a little more optimistic because Biden was able to also push through a bunch of judges? And I also do want to point out the fact that even though we had said seven of the 13 circuit courts are Republican nominated majorities, some of those Republicans are not Trump appointees, and a lot of them have also been voting against him. I mean, just because you're a Republican doesn't necessarily mean that you're going to vote in favor of Trump's agenda. And so I just want to talk a little bit about what does that look like for some of these cases that are coming out? And if you could talk about the New York Times article, I just threw a lot of questions at you.
Alison Gill: No, that's okay. Well, the New York Times article is important to note focuses on appellate judges. So these are the circuit court judges. The 54 I mentioned from President Trump's first term mostly, although there have been some recent appointees as well, but this is mostly from his first term, 54 appellate court judges. And I will say this, the district courts are another story. It's not that they are all voting against Trump all the time, but there have been numerous district court decisions that have gone against the administration when it overreaches. And many of them have come from Republican appointed judges. Many of them have come from Trump appointed judges. So all across the country, they have not just been in DC or in liberal states or whatever. They've been all across the country in different states, and they've been judges appointed by every president. District. Courts are also, like I said, they're the places where the trials take place.
It's where the battle actually happens and people actually hear the facts on the ground. So I think it's really critical that when these issues are examined for actual truthfulness, when people's arguments are actually being weighed, the district courts are often ruling against the Trump administration. The issue is the appellate courts, the circuit courts, the Supreme Court are not backing up the district courts in the ways they should. And I think that's what this article shows. And now not every case is appealed, and sometimes these judges lose, like I said, it's a tribunal. So just because they vote negative does not mean that this goes for the administration. I think it's important to note that this is a problem. It shows a real bias, but at the same time, it doesn't mean that the circuit courts have unanimously held for Trump.
Liz Cavell: So much of that bias, I guess, is happening at the Supreme Court. The Supreme Court itself is so often viewing ruling in favor of the administration. And so
Alison Gill: Yes, but this fraction of cases that goes Supreme Court is minuscule, right?
Liz Cavell: We're just looking at the number of appeals that happen there and not putting it in the context of all the cases that end at the district court level
Alison Gill: That have gone against administration, especially if you include immigration cases, because there's been hundreds of immigration cases and many, many, many of them have gone against the administration, and most of these numbers aren't even taking that into account. So I don't want to mean think that the courts, especially the lower courts, especially district courts, are doing their job and upholding the law. And I'm not saying every decision is good. I'm not saying that. I'm saying judges take their role very seriously and they're doing what they can to uphold the law in a system that is sometimes biased against them. I'm reminded not only are they not being supported sometimes by the higher courts, but they're also under attack. Last week for example, there was a hearing the Senate Judiciary Committee called, I forgot the exact title, but something about impeachment of rogue judges or impeachment as a solution of rogue judges or something like that.
So basically, of course, the Senate cannot impeach judges. That's the house if anyone knows civics here. But regardless, they're saying basically, oh, well these judges that rule against President Trump, they're so outrageous that we should start impeaching them because of their decisions. And they held out, two in particular, Judge Boasberg, who's pretty famous for the Trump administration defying him and sending a plane full of immigrants to El Salvador prisons against his court orders. And now there's investigation about whether to hold those officials in contempt or not. And this is obviously a ploy to sort of blunt that sort of contempt hearing and also Judge Boardman, and it's really not even worth going into. But apparently she had a sentence of someone and the Justice Department did like the length of a sentence, and it's being appealed, but at the same time they're threatening her with impeachment.
So it's just trying to create this image that anybody that rules against Trump and anyone who rules against administration is a rogue judge, is not doing their job, is acting in some way wrong. And that's what their overall reinforcement is. And whenever Trump or his allies, the Vice President, Bondi, they're focusing all this negative attention on judges that rule against them. They are directing their followers to harass people and their court clerks and their families, they are just releasing all this sort of hatred on these judges for doing their jobs and upholding the law. It's really pretty disgusting. Attacks on judges and harassment judges has increased dramatically over the last year because of all this
Liz Cavell: So sick.
Alison Gill: Okay. There's this thing called the presumption of regularity. And I think we've discussed this in the podcast before where it's just the idea that government attorneys are going to perform their role as civil servants and act in ways that act in methods that are truthful and uphold this dignity of the court and the public and the law. And so therefore, if a government attorney says something, you can take it at face value, and the shorthand for that is presumption of regularity. And there has never been so much damage done to that concept under this administration because there's just been so many examples of government lawyers lying to courts, misrepresenting not doing things that the court orders them to do directly defying courts in some instances when they're directed to, for example, with Judge Fosberg. There's just over and over again, we've just seen this behavior, which is just, I can't express to you how atypical this is from Department of Justice. Trump has really tried to turn this public agency that's supposed to be America's into his private enforcement arm to go have through his enemies and to basically lie to courts to make it happen. And it's utterly disgusting and so dangerous
Liz Cavell: Just as lawyers, any lawyers anywhere, practicing anywhere, it's such an affront to just the profession because you have lawyers going into court and all the bedrock rules of professional conduct and ethics that are literally drilled into us from the time that we conceive of a career in the legal profession are just cast aside routinely in case after case by the nation's highest lawyers, the DOJ, the literal attorney general. I mean, it's wild, the damage being done not just to the DOJ, and that's massive, the independence of the DOJ and also just the regularity, but the profession, it's such a mockery of the profession. We all are out in whatever context we're in, practicing law by a certain agreed upon set of rules and professional standards. And especially when you're appearing in court in front of a tribunal, that matters a lot. If we're not all agreeing to the rules, then the whole system is just undermined. And so that is the part that is just surreal as we go through this period of time. I think you can hear it kind of in judges how they're trying to grapple with what's going on. Judges too are like, am I taking crazy pills? You can't lie. That is the agreed upon standard of this profession, but it's just shamelessness by the administration and the DOJ. And it's something that just has just been surreal.
Rebecca Markert: Isn't it stalling some of the work because you have, on the one hand, this Department of Justice where there are career lawyers who are leaving the Department of Justice in droves. In
Alison Gill: Droves, yeah,
Rebecca Markert: In droves. And at the same time, on the other side of things, you have all of these organizations suing the federal government over actions. And so it's placing a real strain on our legal system because we don't have lawyers to defend the laws, and we have all these lawsuits coming up. It's crazy. But I do want to say that the lawyers who are leaving are doing it for very principled ways. I mean, as we're recording this episode, I read this morning that there were, what, five or six prosecutors in Minnesota who left after being pressured to look into Renee Good, the woman who was shot and killed in Minneapolis recently looking into her and her widow,
Alison Gill: God and others were left after they said there was going to be no investigation into the shooter as well. That's
Rebecca Markert: Right. That's right. Yeah. It feels like it's just frustrating our entire legal system. But isn't that sort of like the point for the Trump administration and also favorable to the Trump administration?
Alison Gill: Well, they need lawyers to defend themselves in court. I mean, they're being challenged in so many ways, and it's pretty clear that the Department of Justice is overburdened, and they're more so as all these, the good lawyers who know what they're doing and have been there as career lawyers for years are leaving under this administration. And so they're left with people that have very little experience. I've heard that they've sort of are combing conservative law schools to try to recruit people who is it Blanche who made a statement about Come join DOJ and fight against these corrupt judges, or something like that. So they're really pitting an US fee, them sort of attitude among people. They're recruiting as basically like a legal army for Trump. And it's absurd, but it's part of the reason that the standards have declined so much. They have no idea what they're doing. Right.
Liz Cavell: That's the thing. There's always been, and always will be, lawyers in the profession who are dishonest. They are greedy. They don't follow the rules of professional conduct. They are crappy lawyers. They cut corners. Remember going back and reading all the OLR cases of lawyers being disciplined, and it's always, you're like, oh, those lawyers are out there. They're doing bad stuff. They're just unethical and they're just giving lawyers a bad name. Used to be the best of the profession. Were what our government could expect to recruit the Attorney General and the Deputy Attorney General and the people high up in all of the career civil service legal jobs. These were the best and the brightest. Now it's like all the lawyers from the OLR opinions, it's the people with no standards of professional conduct who are unethical, who are shameless, who have no problem lying and who aren't particularly interested in doing a good job or valuing experience. So it's just that is who is populating the DOJ and more and more as time goes on, they're losing their career good, solid legal professionals, and it's all just, this is what's left.
Alison Gill: And it's sad too, because the DOJ does so many important things, right? Totally. They've really stopped doing some of their most critical things. The DOJ has important enforcement responsibilities under the Voting Rights Act that basically nobody else can do. But the DOJ, because it's built into the law that's not been done at all. It just stopped enforcing basically the thing for civil rights. Unless you want to go after trans people or dare to have DEI, which by the way is completely legal, then they're not going to open a civil rights investigation into you about police, misconduct enforcement. They had all these notices of consent when there was police brutality and racist policing and that sort of thing that they investigated, found cause had aligned a way to fix it and had that stamped by the court, and now they're just withdrawing and saying, do whatever. So it's just amazing in so many ways.
Liz Cavell: It is. It's sad.
Alison Gill: But let's go back to the courts for a second. I just want to say I think what we've seen from the lower courts shows the importance of courts as a bulwark against authoritarianism and the breakdown of the rule of law. And the courts are holding these DOJ attorneys responsible when they appear before them, right? They are. And so it's why organizations and everyone should advocate for fair courts that serve everyone that are unbiased and that protects civil rights because they really are the frontline and they make a huge difference. And we're seeing that as unfortunately as they are tested under this administration, I think everyone can advocate for fair courts. Most importantly, speak to your senators, tell them that courts matter to you and that you're watching what they do on these issues. Ask your senator to oppose nominees that put loyalty to Trump above the rule of law and the Constitution and civil rights, and only support nominees that will be fair-minded and uphold civil rights and pay attention to who's nominated, especially in your state. Raise awareness about bad nominees with locally and if it's possible, if you're involved with local organizations or international organizations, get them to speak out about nominees who should not be on the courts. And unfortunately, we're just seeing too many of them from this administration.
Rebecca Markert: I just have a quick question. Do you focus on state courts at all?
Alison Gill: So that's a great question. We do a little bit of state courts work. I'd say it's an area that we partner with orgs more than we directly work on it. I know that Alliance for Justice, for example, they do a lot of state courts work and some of our other close partners. I think it's an area that we watch and we're thinking about getting more involved in, but there's enough going on at the federal level that we,
Rebecca Markert: I was just curious. Obviously being based here in Wisconsin, we have another big Supreme Court race coming up in our state and state courts are also important and they matter as well. So a
Alison Gill: Hundred percent
Rebecca Markert: Getting to know what's happening at the federal level and the state level. And it's hard these days because there's so much to be informed about, and sometimes it feels like it's overwhelming and I can't doom scroll anymore. But it's really, really important not to let that fatigue drag you down, stay in the fight. And also, whenever we talk about calling your senators and telling them what matters to you and why, I always have to throw in that it does not matter if that representative, your senator, doesn't agree with you. I think it's important to still call Absolutely. And let him or her know where you stand on these issues. It's important for them to hear the opposition as well.
Alison Gill: For sure. I agree. Absolutely. Yeah. And if you're interested in working more on this, there's lots of organizations like National Women's Law Center, I know FFRF and others, that when these nominees come up, we send out alerts. We let you know how to get involved, so please do sign up if you're interested in following this issue more, and we'll let you know when we are posing really terrible nominees, we're selective in our opposition. We don't oppose every nominee. We find that ones we think are the worst and oppose those because there's a lot of them. And we have to focus on the ones that are not just a conservative corporate lawyer. That's pretty standard. But the ones that are like, this person has spent their entire career attacking civil rights, and now they want to be a judge and try to proclaim, they're going to treat people equally when they're so dedicated against that. So that's what we're opposing. Right?
Liz Cavell: Yep. Well, this was good. We really needed to take a minute to reflect, I think, on what's been going on in the courts and also in the world of judicial nominations. And also this has just been the perfect entree into welcoming Alison back into the fold. So this has been great.
Rebecca Markert: Again, welcome back, Alison. We're really looking forward to this new year with a new slash old. I know it's great to have you part of the pod. Again,
Liz Cavell: I can't believe we're already deep into the Supreme Court term, but we are, the Supreme Court is hearing oral arguments in cases right now. As we covered today, things are happening in the world of judicial nominations, and so we're going to be covering all of the things courts and bringing Allison's perspective to all of that. So stay tuned.
Alison Gill: Thank you both so much. I'm looking forward to this.
Liz Cavell: Alright, before we close today, I need to give a special shout out to FFRF undergraduate intern Lalitha Viswanathan. She has been instrumental in post-production and promoting the show and all of the behind the scenes work that goes into bringing these episodes to our listeners every month. So thank you, Lalitha.
Rebecca Markert: Yes, thank you so much. That is it for today's episode. I'm Rebecca Markert.
Alison Gill: I'm Alison Gill.
Liz Cavell: And I'm Liz Cavell. If you haven't already, please follow us on our socials Facebook, Instagram, Bluesky, X. Please also remember to let us know how you're liking the show by leaving us a review. You can also find us at we-dissent.org. Thanks for listening.
Rebecca Markert: We Dissent is a joint production of the Freedom From Religion Foundation, National Women's Law Center, and Americans United for Separation of Church and State. It is hosted by attorneys Liz Cavell, Alison Gill, and me, Rebecca Markert. Other production support comes from Greta Martens, audio engineering provided by Audio for the Arts based in Madison, Wisconsin. Thanks for listening.
