Ashley Moody Questions Witness About Combating Perceptions Of 'Partisan Agendas Among Our Judges'

2 days ago

At Wednesday's Senate Judiciary Committee hearing, Sen. Ashley Moody (R-FL) questioned witnesses about universal injunctions and distrust of federal judges.

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00:00Oh, I allowed you to go way over your time in order to make up and I wrote it down.

00:06No ma'am, I just wanted to let you know that I did give you extra time and over what was

00:12taken up.

00:13So thank you so much.

00:14I appreciate it.

00:15Okay.

00:16A lot of times when senators are still here and there is no one else here, they let them

00:21have a second round.

00:22Absolutely.

00:23I've just like one moment to ask about an issue that came up.

00:27That is regarding TROs and I just want to make sure that the committee as a whole has

00:34an understanding of TROs, how they are used so that they can take this into account in

00:39the proposed legislation.

00:41TROs have been used historically by judges and they haven't been immediately appealable.

00:50And it is in the proposed legislation that we change that practice through law and make

00:57sure that TROs are appealable.

01:01Do you think that would remedy some of what is happening today and some of the distrust

01:07that certain judges are making partisan rulings?

01:11Mr. Panuccio.

01:12Thank you, Senator Moody.

01:14I do think that when a TRO, well let me step back, TROs now are starting to look a lot

01:20like preliminary injunctions and preliminary injunctions are immediately appealable.

01:24And so it really shouldn't matter what label the court puts on it, whether they call it

01:28an administrative stay, a TRO, or a preliminary injunction.

01:31If the court is enjoining preliminarily before a party has proven before a jury or a judge

01:37entitlement to relief, if they're getting that injunction, it should be immediately

01:42appealable no matter what the label is.

01:45And that would make a significant change in court procedure as it has, in comparison to

01:51how it's been applied historically.

01:54It would.

01:55There is some very recent scholarship out about how exactly it came to be that TROs

01:59are not appealable.

02:01But given what's happening, yes, legislation to address it would probably be the most expeditious

02:06way.

02:07The court seeks to expedite review of some of these cases where judges are issuing nationwide

02:14orders.

02:15And I want to go back to something that we've heard pretty much on both sides of the aisle

02:19today, questions pertaining to executive authority, Article II authority, and whether or not that

02:29should even be reviewable in some instances, especially as it relates to national security

02:33matters.

02:34Are there instances to alleviate partisan concerns?

02:39And I'm sure as a lawyer, it causes you great concern for the stability of this nation and

02:45our separation of powers that there would be a suspicion of partisan agendas among our

02:51judges.

02:52That's concerning, correct?

02:54We want our judges to be seen as nonpartisan and applying the rule of law only.

02:59And would there be an instance where utilizing a three-judge panel might alleviate those

03:03concerns?

03:04Thank you, Senator.

03:06We have instances of that.

03:08There are numerous different kinds of cases where a three-judge panel, the statutes require

03:14that a three-judge panel is convened, and sometimes it is because the cases are of significant

03:19national importance or have some kind of, I don't want to say partisan, but important

03:23valence to them in terms of the policy.

03:28So we see this in redistricting cases, for example, there are three-judge panels.

03:31So there are, there is a place for three-judge panels, I think.

03:36I will say that I don't, I personally don't believe that we should say if someone seeks

03:42a nationwide injunction or non-party relief, it goes to a three-judge panel because that

03:46would give the imprimatur of validity to non-party injunctions, and I don't think they're valid

03:51if one district judge does it, or three, or 17.

03:54I don't think district courts have that power.

03:56But certainly in some instances that might be indicative that the public may prefer a

04:01three-judge panel for assurance of impartiality, that might be preferable.

04:05Right, or another way to put it is just to make sure that there is greater deliberation

04:09among intelligent judicial minds about major issues.

04:12So for example, you could have, in substantive areas, you could say, look, if it's a case

04:17about the President's wartime powers, it's not going to go to a single district judge,

04:22it's going to go to three judges, because we'll get the benefit of, you know, three

04:25times the benefit of judicial reasoning.

04:27And even if there were a three-judge panel, the need for expeditious review would still

04:32be important if it is a matter of great national concern or interest.

04:37I think expeditious appellate review of cases implicating policies of significant national

04:43concern is important.

04:44Senator Brett.

04:46Thank you, Madam Chairwoman.

04:47I want to go ahead and jump in.

04:49I know that you all have talked about a lot of the issues that I wanted to bring up, but

Ashley Moody Questions Witness About Combating Perceptions Of 'Partisan Agendas Among Our Judges'

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