Sarah and David dig into “barfare” – a coinage for filing partisan bar complaints against lawyers – after 128 retired judges filed a complaint with the Florida Bar against James Percival, general counsel of the Department of Homeland Security, over a “Worst of the Worst, District Judge Edition” tweet thread. They also check back in on the White House ballroom fight now that Chief Justice John Roberts issued an administrative stay. Then, retired U.S. Court of Appeals for the D.C. Circuit Judges Tom Griffith and David Tatel – a President George W. Bush appointee and a President Bill Clinton appointee who spent 15 years on the bench together – join for a rare joint conversation on judicial independence, civility, and what holds a divided court together.
The interview includes breaking news that Judge Tatel’s longtime guide dog, Vixen, has retired, plus Sarah’s dispatches from adult-friend-making in Houston and a very serious debate over whether 18 or 108 degrees is the more bearable football-watching temperature.
Agenda
- [2:22] The “Worst of the Worst, District Judge Edition.”
- [9:11] Someone file a bar complaint!
- [15:20] We’re the least surprised when the White House injunction came down
- [19:49] Disagreeing respectfully
- [32:41] Civility vs. collegiality
- [42:32] Roberts Court
- [50:24] What’s next for judges after they retire?
- [1:00:36] Breaking news
Episode Takeaways
- Warfare? More like “barfare”: 128 retired judges filed a Florida Bar ethics complaint against James Percival, general counsel of DHS, over his “Worst of the Worst, District Judge Edition” tweet thread, which named four sitting judges over rulings against the administration. David called the complaint a worrying end-run around the judge whose court was actually implicated – his view is that “the judge is the first responder” when a lawyer’s conduct crosses a line. Sarah says Percival’s tweets were factually accurate criticism rather than the false statements the Florida Bar rule actually prohibits, and warning that a coalition of former judges wielding their titles to punish partisan critics is a habit that will boomerang the moment administrations change.
- President Donald Trump can move forward on the ballroom: Roberts, acting alone, issued an administrative stay freezing the district court's injunction against construction for the White House ballroom while the full Court weighs the administration’s emergency application – the same move Justice Samuel Alito used in the Texas abortion case, where the full Court ultimately blocked those restrictions from taking effect. Sarah flagged it as another example of “interim dockets all the way down,” and both hosts still find the underlying standing theory – an aesthetic objection to how a building looks – hard to swallow.
- Judicial collegiality, not friendship, is the real ingredient: Griffith and Tatel argued that what makes an appellate court function isn’t personal friendship but “judicial collegiality”: judges genuinely listening to, and sometimes being persuaded by, colleagues they may not even personally like. Tatel: Liking your colleagues helps, but it isn’t absolutely necessary – what matters is a shared respect for precedent, text, and restraint.
- Narrow-plus-unanimous beats broad-plus-divided: Both judges agreed that opinions decided narrowly and unanimously serve the rule of law better than broad, divided ones, even when a broader ruling might feel more “correct,” because a court seen splitting along predictable lines erodes public trust. Their case study was Shelby County v. Holder, where Griffith, Tatel, and Judge Stephen Williams traded many memos before reaching a respectful resolution on the Voting Rights Act’s preclearance provisions – a line from one of Griffith’s memos, “close calls go to Congress,” ended up as the final sentence of Tatel’s opinion.
- A split verdict on the Roberts Court: Asked to grade the current Court, Griffith gave it high marks, crediting its separation-of-powers focus and the fact that eight justices came up through the appeals courts. Tatel disagreed sharply, pointing to Louisiana v. Callais (which he says wrongly cabined Congress’ 15th Amendment power) and Trump v. Slaughter, which overruled Humphrey’s Executor despite decades of government reliance on it, as evidence the Court isn’t practicing the restraint it preaches.
- Where retired judges should draw the line: Both judges said their comfort zone is public education – “lifting the veil” on how courts actually work – rather than weighing in on live disputes or piling onto lawyers via amicus briefs or bar complaints. Tatel’s view: Sitting judges “don’t need me…telling them what I think about a case I’m not involved in.” Asked directly about the Percival bar complaint, Griffith declined to weigh in on the facts but allowed that, as Sarah framed it, it “sounds crazy.”
- Breaking news – Vixen has retired: Tatel’s longtime guide dog, a German shepherd who inspired the closing chapter of his memoir, has retired after seven years of service and now lives with his daughter in Charlottesville. Her successor, a two-year-old German shepherd named Xyrah, has been on the job for three months.