[00:00:00] Speaker 00: Case number 20-5183, Ed Al. [00:00:03] Speaker 00: Lisa Guffey and Kristen Smith versus Roslyn R. Moscoff in her official capacity as Director of the Administrative Office of the United States Courts of Balance. [00:00:13] Speaker 00: Mr. Shaw for the balance. [00:00:15] Speaker 00: Mr. Michael Mann for the appellees. [00:00:19] Speaker 01: Mr. Shaw, good morning. [00:00:21] Speaker 04: Good morning. [00:00:24] Speaker 04: May it please the court, Whaley Shaw for the AO. [00:00:28] Speaker 04: The revised AO code extends to AO employees the same restrictions on partisan political activity that have applied for a quarter of a century to their colleagues who work in federal courthouses. [00:00:40] Speaker 04: If we were in this court's courthouse today, every employee in the building would be subject to the same restrictions. [00:00:46] Speaker 04: In fact, the judicial clerks in the courtroom would be further subject to additional restrictions on nonpartisan political activity that do not apply to the plaintiffs in this case. [00:00:55] Speaker 04: As far as I'm aware, [00:00:57] Speaker 04: Those restrictions have never been challenged in court until now, and for good reason. [00:01:01] Speaker 04: Dozens of judges have reviewed and signed off on the courthouse code in the course of drafting and amending it over the last 25 years. [00:01:10] Speaker 04: Those restrictions plainly address what the Supreme Court has said is a state interest of the highest order protecting [00:01:19] Speaker 02: Regulations not of the sort that govern our employees in the courthouse have been in existence governing the AO for decades and no one has ever challenged them and no one has suggested they were inappropriate or that more was necessary. [00:01:35] Speaker 02: You're assuming, you have the underlying premise of your starting argument is that those of us who work in a courthouse can be easily compared with folks like the AO who do not work in a courthouse. [00:01:47] Speaker 02: That's an obviously questionable [00:01:49] Speaker 02: assumption and the years and years of our history and how we've operated, I think, prove the point. [00:02:00] Speaker 04: Well, I would just I would certainly agree, for example, that obviously, staff in the AO are not performing the same roles as judicial clerks, but they are performing very similar roles, or even more prominent roles than many other staff who work in federal courthouses. [00:02:16] Speaker 04: So in terms of [00:02:19] Speaker 04: You know, they're in courthouses there are obviously staff who are less high level than who have no direct connection to the adjudication of individual cases, yet those employees are nonetheless subject to all of the restrictions in the courthouse code there's no exception, there's no exception for mailroom staff or it support staff or anything of that nature. [00:02:43] Speaker 04: for the same reasons that those employees are subject to the code, the AO should also be permitted to impose the same restrictions on its employees in the interest of protecting the impartiality of the judicial branch as a whole. [00:03:02] Speaker 05: Mr. Shaw, I have a couple factual questions and some legal questions. [00:03:08] Speaker 05: And I'll start with the factual questions. [00:03:11] Speaker 05: I'm going to read a list of several statements. [00:03:15] Speaker 05: And in the end, I'm going to ask you if you think any of them are inaccurate as a factual matter. [00:03:23] Speaker 05: The plaintiffs in this case, Guffey and Smith, do not help judges adjudicate cases. [00:03:30] Speaker 05: Guffey and Smith do not provide substantive legal guidance to federal judges. [00:03:35] Speaker 05: Guffey and Smith do not make final decision on court policy. [00:03:40] Speaker 05: Cuffee and Smith do not make the final decision on even whether to publicly propose a new court policy. [00:03:47] Speaker 05: Guffey and Smith do not make the final decision on what to propose to Congress. [00:03:53] Speaker 05: Guffey and Smith do not make public statements on behalf of the judiciary. [00:03:58] Speaker 05: And finally, there's nothing in the record to suggest that anyone has ever used the private speech of employees with responsibilities like Guffey and Smith's to attack the integrity of the judiciary. [00:04:14] Speaker 04: Those are a lot of propositions and I'll just try to keep them straight. [00:04:18] Speaker 04: I mean, I think in the main, to the extent that you're suggesting that the plaintiffs in this case don't have [00:04:26] Speaker 04: ultimate decision-making authority on behalf of the judicial branch, I think that's correct. [00:04:30] Speaker 04: But I think it certainly is also the case that they do have interaction with federal judges. [00:04:36] Speaker 04: Their declarations make clear that they make recommendations to judges, to judicial conference committees on a variety of policy-making issues. [00:04:47] Speaker 04: The Guffey and Smith specifically make those recommendations? [00:04:51] Speaker 04: Yes. [00:04:52] Speaker 04: So for example, I think [00:04:54] Speaker 04: I think plaintiff Smith's declaration says that two to three times a year, she meets with judges to make recommendations regarding IT related matters. [00:05:05] Speaker 04: And I think plaintiff Guffey said something similar with respect to issues relating to defenders offices. [00:05:15] Speaker 05: Was there any of my statements that was incorrect? [00:05:19] Speaker 04: I think in the main, they are correct. [00:05:23] Speaker 04: I mean, I'm not sure about some of the details, for example. [00:05:25] Speaker 04: I don't know whether their advice ever includes any sort of legal aspect, for example. [00:05:30] Speaker 04: I think it's also correct that, you know, I'm not disputing that we don't have evidence of a particular past harm that has arisen based on the types of activities at issue here. [00:05:44] Speaker 04: But I don't, first, I don't think that's necessary. [00:05:46] Speaker 04: And what we do have, [00:05:48] Speaker 04: is examples from other government agencies in which employees who are not senior decision makers do not have ultimate authority to make recommendations to Congress or anything of that nature. [00:06:02] Speaker 04: Their partisan political activities are actively being used to paint their employers as partisan and politicized and to attack the legitimacy of those institutions. [00:06:13] Speaker 05: I appreciate that, Mr. Shaw. [00:06:16] Speaker 05: Let me ask a legal question. [00:06:19] Speaker 01: Before you do that, Judge Walker, let me just follow up on your list of questions. [00:06:24] Speaker 01: Mr. Shaw, wouldn't all of those questions be answered the same way with respect to law clerks, with the exception of working side by side with a judge? [00:06:37] Speaker 04: Yes, I think that's correct. [00:06:40] Speaker 04: Certainly, law clerks also lack ultimate decision-making authority. [00:06:43] Speaker 04: And to the extent that they have any influence, it's only indirect through their interactions with federal judges, which many employees in the AO also have. [00:06:56] Speaker 01: All right, Judge Walker, go ahead. [00:06:59] Speaker 05: Thanks. [00:07:00] Speaker 05: So this question is about Supreme Court precedents. [00:07:04] Speaker 05: I want you to exclude cases that have been overturned for the purposes of this question. [00:07:09] Speaker 05: Other than Williams-Ewley, when is the last time the Supreme Court allowed the government to adopt a domestic perspective content-based ban on political speech? [00:07:25] Speaker 04: I have to admit, I haven't sort of canvassed the case law on this, but. [00:07:29] Speaker 02: I'm sure you have counsel. [00:07:33] Speaker 02: You don't want to damn yourself like. [00:07:35] Speaker 04: But I mean, certainly, I mean, we know that letter carriers is an example. [00:07:40] Speaker 04: And unfortunately, I just don't have another off the top of my head at this moment. [00:07:46] Speaker 05: And that's there. [00:07:47] Speaker 05: I'm not sure I could find one more more recent than letter carriers either. [00:07:50] Speaker 05: Let me ask one hypothetical and then I'll try to get out of my colleague's way while there's still some time. [00:07:55] Speaker 05: Judges sometimes get accused of allowing their religion to influence their decision making unfairly accused of that. [00:08:03] Speaker 05: And we saw that perhaps most famously with Justice Barrett's nomination to the Seventh Circuit. [00:08:11] Speaker 05: Do you think that the AO under your reasoning could prohibit [00:08:16] Speaker 05: AO employees from making public statements with regard to their religious beliefs or even prohibit AO employees from going to church, synagogue or mosque? [00:08:27] Speaker 04: No, I think that that obviously would not be permissible. [00:08:30] Speaker 04: And I think the reason is that we're we're talking about a balancing test, right? [00:08:34] Speaker 04: Certainly we have a state interest of the highest order in protecting the impartiality of the judicial branch. [00:08:40] Speaker 04: But at the same time, we are balancing that against the balancing test. [00:08:44] Speaker 05: Why is political speech [00:08:46] Speaker 05: less important than religious speech? [00:08:49] Speaker 04: Well, I think it's been recognized for a long, for over a century at least, that in some cases the partisan political activities of government employees may be restricted to serve the, to protect the efficiency of the government service. [00:09:09] Speaker 04: and to protect compelling government interests. [00:09:11] Speaker 04: So I don't think that there's any, there's never been any suggestion that, for example, there could be, you know, someone could be prohibited from going to church to serve those same interests. [00:09:22] Speaker 04: I think that would be a far greater. [00:09:24] Speaker 02: It's fair to say it is a balancing test. [00:09:28] Speaker 02: If depending upon how you'd mean to use that word, you're trying to ride William Zhu Li in the Supreme court pronounced a very tough test there. [00:09:40] Speaker 02: even if they allowed a certain prohibition, the majority was very, very clear in saying, narrowly paralleled to serve a compelling state interest. [00:09:50] Speaker 02: That's not a balance. [00:09:52] Speaker 02: The presumption is in favor of the speech. [00:09:55] Speaker 02: I don't think that the- That's a heavy burden to show exactly what the Supreme Court said was required. [00:10:01] Speaker 02: And if you read that case very carefully, despite how they came out on one issue, the court's test is tough. [00:10:07] Speaker 02: And that's why my colleague started out [00:10:10] Speaker 02: with the question, have you found any other case other than? [00:10:13] Speaker 02: There hasn't been any. [00:10:15] Speaker 04: Well, I think it's incorrect to characterize the Williams-Eulie analytical framework as the one that governs in this case. [00:10:26] Speaker 04: I think both the plaintiffs and the government agree that actually the governing framework is NTEU. [00:10:32] Speaker 04: So it's not strict scrutiny. [00:10:34] Speaker 04: And what NTEU said is that the government must show that the interests [00:10:38] Speaker 04: of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression's necessary impact on the actual operation of the government. [00:10:50] Speaker 04: So I think that is the governing standard. [00:10:52] Speaker 04: Williams Ulee applied a stricter standard because that case concerned the speech of a candidate for political office and not a government employee speech. [00:11:06] Speaker 04: It did not. [00:11:07] Speaker 04: So to the extent that there was a heightened standard applied there that doesn't govern in this case. [00:11:15] Speaker 04: I just, I also just want to point out that I think what the district court and plaintiffs would like to do is [00:11:24] Speaker 04: They want to propose this lengthy chain of events that has to happen before. [00:11:29] Speaker 04: I'm sorry, I realized that I'm over my time. [00:11:32] Speaker 01: That's okay, go ahead. [00:11:33] Speaker 01: Let me ask you a couple questions that go off the record I guess first of all I did a [00:11:40] Speaker 01: sort of informal survey of some of my colleagues, not my two colleagues today. [00:11:46] Speaker 01: And not one of us, and I include myself, had any idea that AO employees could engage in the type of political activity that was allowed before 2018. [00:11:59] Speaker 01: Now, what concerns me is not so much the public perception interest that does concern me, [00:12:09] Speaker 01: the inter-branch, that does concern me, but the intra-branch. [00:12:14] Speaker 01: And what I haven't been able to answer is this. [00:12:19] Speaker 01: If I had known that all this political activity was allowed, how would it have affected, if at all, my relationship with AO employees and [00:12:35] Speaker 01: I ask that again going outside the record, but in the last, I'd say less than a month, three Supreme Court justices have publicly warned against politicizing the judicial branch. [00:12:53] Speaker 01: And I've always believed that political activity is of any kind is toxic to the entire judicial branch. [00:13:08] Speaker 01: And I guess my question is this. [00:13:11] Speaker 01: The district judge said that there was no evidence of any judge in the record or whatever. [00:13:20] Speaker 01: I don't know how we can, on the one hand, disabuse ourselves of our own personal knowledge and role in this question. [00:13:31] Speaker 01: I think we have to. [00:13:33] Speaker 01: But on the other hand, [00:13:36] Speaker 01: how we ignore it. [00:13:40] Speaker 04: I think that's entirely right. [00:13:42] Speaker 04: I think there is a significant risk. [00:13:45] Speaker 04: Judges must be impartial and nonpartisan by constitutional design. [00:13:49] Speaker 04: And in doing so, they have to be able to rely on having advice that they can count on as impartial and nonpartisan. [00:13:58] Speaker 04: And I would just point out that this is a very... Wait a minute. [00:14:02] Speaker 02: The existing regulations, things that are in place, [00:14:06] Speaker 02: prohibit AO employees from engaging in nonpartisan activity in their work. [00:14:13] Speaker 02: Right. [00:14:13] Speaker 02: That's right. [00:14:14] Speaker 02: But you can't ignore that. [00:14:15] Speaker 02: And that explains the past 40 years. [00:14:17] Speaker 02: The AO employees are responsible professionals. [00:14:21] Speaker 02: They have been over the past 40 or whatever decades it's been, they have been prohibited from putting partisanship [00:14:29] Speaker 02: in their work, they have followed that regulation and therefore we have never been adversely affected by it. [00:14:35] Speaker 02: It never crossed my mind that the politics of an AO employee would somehow adversely affect me because my interactions with them about business, they know do not involve politics and I trust that and it's never been an issue, never. [00:14:50] Speaker 04: Judge Edwards, I would also point out that actually that the prior AO code [00:14:55] Speaker 04: actually included restrictions on partisan political activity. [00:14:58] Speaker 04: It actually included six of the nine restrictions that are challenged here, although there were some minor differences. [00:15:04] Speaker 04: For example, some of them only applied to elections at the federal level, but not at the state level. [00:15:10] Speaker 04: So the fact that you have not perceived partisan political activity may be in part due to these restrictions. [00:15:18] Speaker 04: And I also wanted to point out that the very reason the AO exists is that many of the functions that the AO now performs were once performed by the executive branch. [00:15:29] Speaker 04: And it was perceived that that was unacceptable because it created an unacceptable risk of having partisan political influence on the judiciary. [00:15:38] Speaker 04: And that's exactly why these functions were moved to the AO so that they could be performed in a manner that is not only [00:15:45] Speaker 04: unbiased and impartial, but also perceived to be such. [00:15:50] Speaker 04: And I don't think it's, you know, we explained in our briefs that it's, you know, we certainly believe in the professionalism of AO employees. [00:16:00] Speaker 04: Nonetheless, it is only human nature that if a judge receives advice on a politically charged topic and is aware that the employee giving that advice has [00:16:10] Speaker 04: indicated a strong partisan commitment to one side of the issue or the other, it is hard to believe that the judge will not at least question. [00:16:18] Speaker 02: They are prohibited from pursuing political activities in their work. [00:16:23] Speaker 02: How am I going to know the politics of a NAO employee? [00:16:26] Speaker 02: They're going to send me a postcard? [00:16:28] Speaker 02: I don't understand what you're talking about. [00:16:30] Speaker 02: I really don't. [00:16:31] Speaker 02: They are prohibited in their work from engaging in partisan activity, always have been. [00:16:37] Speaker 04: I think we discussed a number of ways that this might happen in our brief. [00:16:43] Speaker 04: So for example. [00:16:44] Speaker 02: They're all unconvincing to me, given my 40 plus years of history in interacting. [00:16:51] Speaker 02: I don't see it. [00:16:52] Speaker 02: It's bogus. [00:16:52] Speaker 02: I mean, I've dealt with contractors who serve the judiciary, who come in when I was chief judge. [00:16:58] Speaker 02: It were very important decisions to be made. [00:17:00] Speaker 02: I didn't know what their politics were, and it never crossed my mind that we could in any way limit their political activities. [00:17:07] Speaker 02: their politics may or may not have been in their mind when they were interacting with me as chief judge. [00:17:13] Speaker 02: It just seems to me a bogus issue and history has proven it and you haven't been able to suggest other than a couple of things that the district court found. [00:17:23] Speaker 01: Let me ask you a question, Judge Edwards, and that is you're savvy about social media. [00:17:28] Speaker 01: I'm not, but what if you were to see [00:17:31] Speaker 01: some blatantly political back and forth between AO employees and other members of the public or whatever? [00:17:43] Speaker 02: If it's outside of their work context, my feeling is that's not my business. [00:17:53] Speaker 02: If it has to do with their work, that's an entirely different question. [00:17:58] Speaker 01: All right, well, let's hear from Mr. Michaelman. [00:18:06] Speaker 03: Thank you, Judge Henderson. [00:18:08] Speaker 03: Scott Michaelman of the ACLU of the District of Columbia for plaintiffs, Guffey and Smith. [00:18:13] Speaker 03: May it please the court. [00:18:15] Speaker 03: The government has banned 1,100 employees from nine core political activities without meeting its heavy burden to justify an ex-ante speech restriction. [00:18:24] Speaker 02: Under the code. [00:18:27] Speaker 03: Excuse me, Judge Edwards. [00:18:29] Speaker 02: Do you want us to apply? [00:18:31] Speaker 03: NTEU, Judge Edwards. [00:18:33] Speaker 03: There needs to be the balancing, as Mr. Shaw said, we agree on this, a balancing of the interests of both potential audiences and the vast group of present and future employees in the broad range of their present and future expression. [00:18:48] Speaker 03: must be outweighed by the necessary impact on the actual operation of the government. [00:18:53] Speaker 03: And I think all those words are important. [00:18:54] Speaker 05: Are you challenging the aspects of the code that have changed only? [00:19:00] Speaker 03: Uh, no, Judge Walker. [00:19:02] Speaker 03: There are a few aspects of the code that have been broadened as Mr Shaw noted where there was there was a restriction in part and now there's a broader restriction. [00:19:12] Speaker 03: We think the whole restriction as to political activities with both both federal and state level are problematic because these are just such core aspects of political participation. [00:19:24] Speaker 05: Do you agree with what I what I think was the premise of some of Judge Edwards questions that [00:19:29] Speaker 05: on the grounds of the AOs building, and I would suggest even the parking lot of the AO, that there's no place for political bumper stickers, political buttons, political speech. [00:19:44] Speaker 03: Absolutely. [00:19:45] Speaker 03: And I think Judge Walker, that shows why the AO's new code is not appropriately tailored. [00:19:52] Speaker 03: And that is an independent ground on which we win, even if, you know, even accepting the government's interests. [00:19:59] Speaker 03: They have plenty of alternative means that they've already put into place, either in this code or in the prior code. [00:20:05] Speaker 05: Do you have a sense, and maybe Mr. Shaw will know on rebuttal, if you're not sure, what's the rule for soldiers when they're off base, off duty, and out of the uniform? [00:20:19] Speaker 05: Do you know if they're allowed to express political opinions? [00:20:24] Speaker 03: I don't, Judge Walker. [00:20:27] Speaker 03: But I will say that we already know. [00:20:31] Speaker 01: But we know they can't when they're on duty, on the job. [00:20:35] Speaker 03: I would be astonished if they could, Judge Henderson. [00:20:39] Speaker 03: And I think similar prohibitions already have been in effect either in the current code that we haven't challenged for the AO or in the prior code banning the use of the conduct of political activities on duty with government resources or while identifying as AO employees. [00:20:58] Speaker 03: That was on the 2016 code at JA 84. [00:21:02] Speaker 01: Let me ask you that also under the, as I read that chart in the record, under the old code for the AO employees, they weren't supposed to get on social media for national offices. [00:21:18] Speaker 01: And yet these two declarations say they want to be able to continue to do that. [00:21:23] Speaker 01: Now, they didn't specify the time period in which they use social media, but one of them's a 10 year [00:21:31] Speaker 01: employee and it seems apparent that she was using social media even under the old code. [00:21:43] Speaker 03: I'm not sure. [00:21:45] Speaker 03: I'm not sure at all that that's clear from the declaration. [00:21:49] Speaker 01: Or she said she wants to continue to do these things, including social media, which she wasn't allowed to do with respect to national offices ever. [00:22:00] Speaker 01: under the old code? [00:22:01] Speaker 03: Right. [00:22:01] Speaker 03: Well, she had only worked for the AO since 2010. [00:22:07] Speaker 03: So that was a period of eight years. [00:22:09] Speaker 03: So she could resume, as could Plaintiff Smith, her prior practice. [00:22:14] Speaker 03: I think to the extent there's any suggestion that AO employees weren't aware of and were using social media when the code would have prohibited, [00:22:23] Speaker 03: prohibited it, that only further shows how innocuous this private off-duty core political speech was to the functioning of the AO. [00:22:37] Speaker 03: I think it's also important to recognize, to highlight something that Judge Walker posited about the breadth of the government's authority that it's claiming here. [00:22:46] Speaker 03: Judge Walker mentioned church attendance. [00:22:48] Speaker 03: I think we could also think about religious expression. [00:22:52] Speaker 03: I mean, under the rationale that certain types of political speech will undermine the perception of the judiciary as an impartial institution, you could imagine the AO saying, well, we don't want expressions of religious devotion. [00:23:07] Speaker 03: We don't want ichthis fish bumper stickers on our employees' cars because then they're gonna think that [00:23:13] Speaker 03: The judiciary has a religious agenda and people are going to question decisions in, you know, everything from COVID restrictions to abortion. [00:23:21] Speaker 03: And I don't think there's any difference in terms of either the level of protection these are core First Amendment rights, or the government's open ended thought that [00:23:30] Speaker 03: the least informed people among us could misunderstand and believe that one AO's private expression of speech of a number of kinds could somehow undermine the impartiality of the AO. [00:23:44] Speaker 03: So I think there's a very, we go down a dangerous road. [00:23:48] Speaker 03: when we permit so much speech to be restricted based on so little evidence as as judge Edwards noted there is no history of problems for the 80 years of the AOs existence, including for the last three. [00:24:03] Speaker 03: during which this injunction was in place and we had the election of 2020, which was incredibly contentious, fought hard on social media in a very partisan climate, and yet the government, with every incentive to identify trouble, does not point to any instances, to come back to one of Judge Walker's questions, in which the private speech of an AO employee was used as a basis to undermine the confidence in the judiciary. [00:24:33] Speaker 01: Let me just say, just wait, because we have all seen how social media has polluted this entire country. [00:24:49] Speaker 01: If there's one segment that ought to be in this, particularly in this city, which is such a hotbed of politics, if there's one segment that ought to appear to be apolitical, it is the judiciary. [00:25:13] Speaker 01: Judge Walker mentioned the military. [00:25:14] Speaker 01: The military is apolitical because its business is war. [00:25:19] Speaker 01: We should be apolitical because our business is law. [00:25:23] Speaker 01: And when we get a political question, we don't answer it. [00:25:27] Speaker 01: We don't have the jurisdiction to answer it. [00:25:30] Speaker 02: For what it's worth, I scoured the internet for regulations and apparently military are not prohibited from engaging in political activities off duty. [00:25:43] Speaker 02: I don't know what the breadth of that is, but that there seems to be a division there. [00:25:47] Speaker 02: Off duty, it's different from on duty. [00:25:49] Speaker 02: On duty, they're absolutely prohibited. [00:25:51] Speaker 02: So for what it's worth. [00:25:54] Speaker 03: Which I think underscores the anomalous nature of this prohibition, which goes beyond what is banned for even the most restricted employees under the Hatch Act. [00:26:08] Speaker 03: And of course, Judge Henderson, we agree that [00:26:13] Speaker 03: that the judiciary should be apolitical. [00:26:15] Speaker 03: But I think the question is whether the off-duty private political speech, ordinary political speech that many, many, many Americans engage in will give the impression, the mistaken impression, and even the government doesn't think is a correct impression, that the AO professionals are not checking politics at the door and instead using what they do outside of the office to color their work inside the office. [00:26:40] Speaker 03: And we have no evidence that [00:26:41] Speaker 02: How do you deal with the other side's argument that they are saying you can't really distinguish those of us who are in the courthouse, including, for example, law clerks. [00:26:56] Speaker 02: My law clerks know that they are prohibited from engaging in political activities during the term of their work with me on the court, I think, for good reasons. [00:27:12] Speaker 02: including using social media and the whole bit because people can be confused about how to connect that to me. [00:27:19] Speaker 02: Well, how do you distinguish or can you distinguish the two groups of workers in terms of regulations? [00:27:26] Speaker 03: Two answers, Judge Edwards. [00:27:27] Speaker 03: First, with respect to the specific question you asked about clerks, and I was a clerk once upon a time too, and remember the restriction as well, clerks are just much, much, much, much closer to the business of adjudicating cases in terms of what they assist judges with than AO employees. [00:27:46] Speaker 03: And as Williams-Uly makes clear, the special impartiality of judges, the special interest [00:27:52] Speaker 03: in that is about the adjudication of cases. [00:27:55] Speaker 03: The Williams yearly decision is replete with references to the deciding of cases. [00:28:01] Speaker 03: There's a fear that the person who signs the fundraising letter is also the person who will one day sign the judgment. [00:28:07] Speaker 03: It's very specific to that interest. [00:28:09] Speaker 03: More broadly, I think the problem for the government with the analogy to the courthouse code, and this is my second point, is that [00:28:15] Speaker 03: They just haven't made a record on the entire range of functions for courthouse employees versus AO employees. [00:28:23] Speaker 03: They haven't shown which ones are comparable and which ones are not. [00:28:26] Speaker 03: And they haven't shown that it's ever been upheld with respect to the sort of least visible, least influential members of court staff. [00:28:38] Speaker 03: And so that's really an unformed analogy. [00:28:41] Speaker 03: There's just not enough there. [00:28:42] Speaker 03: for the court to make, I think, a meaningful comparison, particularly when it's the government's burden that the court and Janice referred to as close to exacting scrutiny to me to justify this code. [00:28:57] Speaker 03: And I see that I'm out of time, but if I could just briefly address the cross appeal to issues with the court's permission. [00:29:06] Speaker 03: Go ahead. [00:29:06] Speaker 01: Go ahead. [00:29:07] Speaker 03: Thank you, Your Honor. [00:29:08] Speaker 03: On the driving and organizing restrictions, I think it's notable that Mr. Shaw has not attempted to distinguish them in any way, and neither did Director Duff in his declaration. [00:29:18] Speaker 03: So we think those should fall with the rest. [00:29:20] Speaker 03: And we also think the district court's excellent analysis of the seven it struck down ran into some trouble on the driving and organizing restrictions because of an error of law, an incorrect reading of the Hatch Act. [00:29:37] Speaker 03: as well as a failure to apply the same skepticism and scrutiny to the government's assumptions as it did in the other seven. [00:29:46] Speaker 03: For instance, I mean, just to take one example, and then I'll wrap up if the court has no questions, the notion that a person who is driving voters to the polls on behalf of a partisan organization could be recognized as doing that and known to be an AO employee and that an observer would [00:30:05] Speaker 03: would conjure up the image of this person going into the Thurgood Marshall building the next day and wrecking havoc with the judiciary's impartiality is hard to believe when the person who is driving may not be seen, may not be recognized, may be driving friends, may be driving family, may be driving on behalf of a nonpartisan voter assistance organization, which would be permitted. [00:30:29] Speaker 03: So I just think the district court's logic on these two does not hold up and notably neither the government nor anything it's put into the record had suggested the driving and organizing restrictions are somehow especially important or those activities are especially bad such that they should be upheld when the other seven fall. [00:30:51] Speaker 03: And so in sum, I would urge the court to remember the burden, the strict burden under NTEU, the huge swath of ordinary political activity that the AO seeks to ban and recall that the government has no actual examples of harm coming from the sort of everyday political activity that we invite in and even expect from the people in this country. [00:31:18] Speaker 01: Well, let me just say, I think you need to reread Director Duff's declaration. [00:31:27] Speaker 01: I found it compelling. [00:31:29] Speaker 01: But anyway, let's hear from Mr. Shaw. [00:31:32] Speaker 01: Why don't you take two minutes? [00:31:36] Speaker 04: Thank you very much. [00:31:37] Speaker 04: I'd like to begin where my colleague left off with the cross appeal. [00:31:45] Speaker 04: The two restrictions that were [00:31:48] Speaker 04: affirmed by the district court are also present in the Hatch Act. [00:31:52] Speaker 04: And those restrictions were upheld as to all federal government employees by the Supreme Court twice in Mitchell and then again in letter carriers. [00:32:02] Speaker 04: And since then, the Supreme Court has never suggested that any of its later holdings have called Mitchell and letter carriers into question. [00:32:12] Speaker 04: In NTEU itself, [00:32:14] Speaker 04: the Supreme Court cited the Hatch Act with approval. [00:32:18] Speaker 04: It said that Congress effectively designed the Hatch Act to combat demonstrated ill effects of government employees' partisan political activities. [00:32:28] Speaker 04: We cite a host of circuit court precedent in our brief in recent years, continuing to affirm the validity of letter carriers in Mitchell. [00:32:40] Speaker 04: So I think it's unquestioned that [00:32:43] Speaker 04: though that the Hatch Act is still valid, those restrictions in the Hatch Act are still valid. [00:32:48] Speaker 04: And if those restrictions are still valid with respect to executive branch employees, they certainly have all the more force for employees of the judicial branch. [00:32:58] Speaker 04: I also wanted to point out that... Go ahead. [00:33:02] Speaker 05: I don't want to take away the time for your last point, so please go ahead. [00:33:04] Speaker 05: That's fine. [00:33:05] Speaker 05: Please go ahead. [00:33:06] Speaker 05: I have a question about remedy, Mr. Shaw. [00:33:09] Speaker 05: If we disagree with you about the merits with regard to Guthrie and Smith, [00:33:13] Speaker 05: Can you give me an argument for why we should only enjoin this policy with regard to Guffey and Smith and not beyond the two plaintiffs? [00:33:25] Speaker 04: Yes, absolutely. [00:33:25] Speaker 04: And I think we fully fleshed that out in our district court summary judgment brief. [00:33:31] Speaker 04: I probably don't have the time to recap that now, but that was our position in the district court. [00:33:37] Speaker 04: We have not renewed that argument on appeal, but certainly [00:33:40] Speaker 04: if this court thinks it appropriate, we think that it would be appropriate to confine the injunction to the two plaintiffs. [00:33:48] Speaker 02: You keep saying the Hatch Act applies to all federal employees. [00:33:52] Speaker 02: That's not correct, is it? [00:33:54] Speaker 04: Yes, you're absolutely right. [00:33:55] Speaker 04: And I'm sorry, I did not have time to clarify that the Hatch Act at the time it was appell did apply to all federal government employees. [00:34:02] Speaker 04: Now, some of those restrictions only apply to [00:34:07] Speaker 04: a certain category of further restricted employees. [00:34:10] Speaker 04: So those include employees of agencies like the FEC, the FBI, the CIA. [00:34:17] Speaker 04: And yet nonetheless, there's not been any suggestion that those further restrictions are unconstitutional as applied to those agencies. [00:34:29] Speaker 04: And I think the judicial branch, which uniquely by constitutional design must be impartial and perceived as impartial, has [00:34:36] Speaker 04: has an even stronger claim to need for those kinds of restrictions than the agencies that I just said were further restricted. [00:34:45] Speaker 01: All right, if there are no more questions. [00:34:48] Speaker 01: Thank you, gentlemen. [00:34:49] Speaker 01: Madam Clerk, if you'd call the next case.