1 00:00:00,560 --> 00:00:05,320 Speaker 1: This is Bloomberg Law with June Grasso from Bloomberg Radio. 2 00:00:05,600 --> 00:00:08,640 Speaker 1: President Trump has reached a milestone in his attempt to 3 00:00:08,680 --> 00:00:13,280 Speaker 1: turn the federal judiciary more conservative. The Senate has confirmed 4 00:00:13,400 --> 00:00:16,920 Speaker 1: likely the last appellate nominee of Trump's first term, bringing 5 00:00:17,000 --> 00:00:20,360 Speaker 1: to two hundred the total number of judicial confirmation since 6 00:00:20,360 --> 00:00:23,720 Speaker 1: he took office. Joining me is Carl Tobias, professor at 7 00:00:23,720 --> 00:00:27,160 Speaker 1: the University of Richmond Law School. How significant are these 8 00:00:27,160 --> 00:00:30,440 Speaker 1: appellate appointments, which consists of about a third of all 9 00:00:30,600 --> 00:00:33,640 Speaker 1: seats on the Circuit Court of Appeals, the largest proportion 10 00:00:33,760 --> 00:00:38,279 Speaker 1: by any president in the past forty years. Well, it's 11 00:00:38,400 --> 00:00:42,040 Speaker 1: very significant that we had to go back four decades 12 00:00:42,120 --> 00:00:45,839 Speaker 1: the regular administration to find all one hundred and seventy 13 00:00:45,920 --> 00:00:51,320 Speaker 1: nine Appellate Court seats filled. So it is valuable because 14 00:00:51,520 --> 00:00:56,160 Speaker 1: those courts are the courts of last resort in of 15 00:00:56,280 --> 00:00:59,880 Speaker 1: cases because so few appeals are taken by the US 16 00:01:00,000 --> 00:01:03,760 Speaker 1: Supreme Court. So that's your Supreme Court in New York 17 00:01:03,800 --> 00:01:07,880 Speaker 1: if you're living the second Circuit, and so it's critically important. 18 00:01:07,920 --> 00:01:11,800 Speaker 1: And the courts in many of the appeals courts are 19 00:01:12,520 --> 00:01:17,320 Speaker 1: overloaded with cases and they need to have all of 20 00:01:17,400 --> 00:01:21,760 Speaker 1: their judges, and so it's valuable in that sense that 21 00:01:22,480 --> 00:01:27,440 Speaker 1: number is nearly as many as former presidents Barack Obama 22 00:01:27,520 --> 00:01:31,480 Speaker 1: and George W. Bush appointed in two terms. Why so 23 00:01:31,560 --> 00:01:35,600 Speaker 1: many vacancies In the first term, in the last two 24 00:01:35,640 --> 00:01:40,839 Speaker 1: years of Barack Obama's administration, Majority Leader McConnell only allowed 25 00:01:41,080 --> 00:01:45,960 Speaker 1: two Appellate Court nominees to have votes, and that was 26 00:01:46,040 --> 00:01:52,120 Speaker 1: the fewest number of appellate judges confirmed since eight So 27 00:01:52,280 --> 00:01:57,200 Speaker 1: that that is what allowed there to be so many vacancies. 28 00:01:57,240 --> 00:02:00,280 Speaker 1: And then of course other judges assumed senior to ad 29 00:02:00,360 --> 00:02:05,720 Speaker 1: us or retired or died in Trump's administration, and so 30 00:02:05,960 --> 00:02:11,080 Speaker 1: he was able to fill many many vacancies fifty three 31 00:02:11,560 --> 00:02:16,519 Speaker 1: and so now the courts are full. President Trump is 32 00:02:16,560 --> 00:02:20,080 Speaker 1: taking credit for this, but is more credit deserved by 33 00:02:20,280 --> 00:02:25,840 Speaker 1: Mitch McConnell than President Trump and perhaps the Federalist Society. Well, yes, 34 00:02:25,960 --> 00:02:29,359 Speaker 1: I mean they were the prime movers. I think President 35 00:02:29,400 --> 00:02:33,720 Speaker 1: Trump just signed the papers, but they were focused in 36 00:02:33,760 --> 00:02:37,840 Speaker 1: the Senate like a laser on the appeals court vacancies 37 00:02:37,840 --> 00:02:41,720 Speaker 1: and filling them so much so that they had fifteen 38 00:02:41,800 --> 00:02:46,520 Speaker 1: doubled up hearings where they had to appellate nominees and 39 00:02:46,680 --> 00:02:49,160 Speaker 1: four or five district nominees at one time, so it 40 00:02:49,200 --> 00:02:52,680 Speaker 1: was very difficult to conduct those hearings. And for example, 41 00:02:52,720 --> 00:02:55,400 Speaker 1: in eight years of the Obama administration, that happened only 42 00:02:55,520 --> 00:02:59,480 Speaker 1: three times, and so they were pushing, and of course 43 00:02:59,520 --> 00:03:04,200 Speaker 1: there were men the other problems that arose, for example, 44 00:03:04,280 --> 00:03:07,400 Speaker 1: the seventy one district vacancies which were as highs a 45 00:03:07,480 --> 00:03:11,840 Speaker 1: hundred and fifty, and the many emergencies which were as 46 00:03:11,960 --> 00:03:15,880 Speaker 1: high as eighties SI the chaiffs in a Judiciary committee. 47 00:03:15,919 --> 00:03:23,119 Speaker 1: Lindsay Graham is encouraging senior Republican judges to retire. Has 48 00:03:23,160 --> 00:03:28,120 Speaker 1: that been done so openly before? No. I think he 49 00:03:28,240 --> 00:03:36,160 Speaker 1: and McConnell, both UH have been publicly encouraging judges to 50 00:03:36,320 --> 00:03:40,280 Speaker 1: do that, and what's striking is the lack of response. 51 00:03:40,880 --> 00:03:45,200 Speaker 1: In fact, we now have only four future vacancies, and 52 00:03:45,560 --> 00:03:48,800 Speaker 1: none of those is at the appellate level. So there's 53 00:03:48,840 --> 00:03:52,680 Speaker 1: been a resounding lack of interest from both Democratic and 54 00:03:52,720 --> 00:03:57,680 Speaker 1: Republican appointees to their please for them to retire. And 55 00:03:57,680 --> 00:04:01,880 Speaker 1: of course that's an important personal decision that each judge makes, 56 00:04:02,720 --> 00:04:05,760 Speaker 1: and I don't think they need any assistance from Lindsey 57 00:04:05,840 --> 00:04:12,560 Speaker 1: Graham or Leader McConnell on that issue, and so, um, 58 00:04:13,560 --> 00:04:19,839 Speaker 1: it is unfortunate and seems improper, but doesn't seem that 59 00:04:19,920 --> 00:04:25,680 Speaker 1: it's necessarily illegal. Isn't there a question about whether McConnell 60 00:04:26,279 --> 00:04:31,520 Speaker 1: called up Judge Griffith and UM and got him to retire, 61 00:04:31,600 --> 00:04:34,560 Speaker 1: And if there's no problem with doing that, why was 62 00:04:34,600 --> 00:04:39,479 Speaker 1: there an ethical question raised there? Well, there was a 63 00:04:39,560 --> 00:04:45,920 Speaker 1: question raised, uh, and the DC Circuit Chief Judge considered 64 00:04:46,000 --> 00:04:48,720 Speaker 1: it and then sent it on to the judicial conference 65 00:04:48,760 --> 00:04:52,560 Speaker 1: because he felt there was a conflict of interest on 66 00:04:53,320 --> 00:04:57,359 Speaker 1: the court uh, the DC Circuit, And I think that 67 00:04:57,560 --> 00:05:02,640 Speaker 1: was the right call. But then the Chief Justice essentially 68 00:05:02,720 --> 00:05:08,360 Speaker 1: decided that UM, there wasn't really an issue because Judge 69 00:05:08,400 --> 00:05:12,760 Speaker 1: Griffith had an NPR interview in which he vehemently and 70 00:05:13,080 --> 00:05:20,800 Speaker 1: clearly denied that he had been influenced by McConnell and said, essentially, 71 00:05:20,960 --> 00:05:24,200 Speaker 1: his spots had been sick for a dozen years and 72 00:05:24,400 --> 00:05:29,720 Speaker 1: he needed to retire at the earliest moment, in September 73 00:05:29,800 --> 00:05:33,479 Speaker 1: so that he could care for her. And so that 74 00:05:33,720 --> 00:05:37,640 Speaker 1: was I think the end of that inquiry. I've been 75 00:05:37,680 --> 00:05:40,360 Speaker 1: talking to Carl Tobias at a University of Richmond law 76 00:05:40,400 --> 00:05:45,479 Speaker 1: school about President Trump hitting two hundred judicial confirmations, a 77 00:05:45,560 --> 00:05:49,719 Speaker 1: cornerstone campaign theme for Trump and his Republican conservative allies. 78 00:05:50,240 --> 00:05:52,760 Speaker 1: But Trump is also on track to be the first 79 00:05:52,839 --> 00:05:55,960 Speaker 1: president since Richard Nixon to go a full first term 80 00:05:56,000 --> 00:05:59,760 Speaker 1: without selecting one black nominee for a federal appeals court. 81 00:06:00,600 --> 00:06:02,960 Speaker 1: Suppose they did get a vacancy. Right now, there's not 82 00:06:03,000 --> 00:06:06,320 Speaker 1: a single circuit court vacancy, and we're talking only about 83 00:06:06,480 --> 00:06:09,640 Speaker 1: circuit courts appellate courts here. Suppose they did get one, 84 00:06:09,839 --> 00:06:15,760 Speaker 1: is there enough time before the election to push someone through? Well, 85 00:06:17,080 --> 00:06:20,920 Speaker 1: if it weren't so apparent from all that they've done, 86 00:06:21,839 --> 00:06:26,159 Speaker 1: uh that they will fill vacancy, I would say no, 87 00:06:26,400 --> 00:06:28,919 Speaker 1: because usually it takes a couple of months to do 88 00:06:28,960 --> 00:06:33,479 Speaker 1: the background checks by the FBI to investigate the nominee 89 00:06:33,600 --> 00:06:37,960 Speaker 1: and move forward to nomination, and then have the confirmation 90 00:06:38,080 --> 00:06:42,320 Speaker 1: process goes through, which it takes a couple of months typically. Um, 91 00:06:42,360 --> 00:06:47,200 Speaker 1: so there wouldn't be time. But I think all indications 92 00:06:47,240 --> 00:06:51,560 Speaker 1: from the GOP leadership are that they would move and 93 00:06:51,640 --> 00:06:54,920 Speaker 1: certainly on a Supreme Court vacancy, but also I think 94 00:06:55,000 --> 00:06:58,760 Speaker 1: on any appellate vacancy, And Mitch McConnell has constantly said 95 00:06:59,640 --> 00:07:03,920 Speaker 1: is my motto is leave no vacancies behind. That's not 96 00:07:04,000 --> 00:07:07,560 Speaker 1: realistic given the calendar and given the number of vacancies, 97 00:07:07,600 --> 00:07:12,040 Speaker 1: because there will be many dozens of district vacancies, because 98 00:07:12,080 --> 00:07:16,640 Speaker 1: the calendar just doesn't allow enough time to move all 99 00:07:16,720 --> 00:07:21,280 Speaker 1: those UH nominees even if they had them through the system. 100 00:07:21,320 --> 00:07:26,840 Speaker 1: About half of those vacancies have nominees now, and so 101 00:07:27,080 --> 00:07:30,600 Speaker 1: that other half, unless the President moves very quickly and 102 00:07:30,760 --> 00:07:34,080 Speaker 1: they move quickly to the system, will not be filled 103 00:07:34,080 --> 00:07:39,960 Speaker 1: by November and probably not by January. So now let's 104 00:07:40,000 --> 00:07:43,680 Speaker 1: turn to the composition of the courts. Trump is the 105 00:07:43,760 --> 00:07:47,720 Speaker 1: first president since Nixon to go a full term without 106 00:07:47,800 --> 00:07:52,400 Speaker 1: selecting a black nominee for a federal appeals court. How 107 00:07:52,440 --> 00:07:57,040 Speaker 1: significant is that, Well, it's extremely significant. Every president after 108 00:07:57,160 --> 00:08:02,040 Speaker 1: Nixon has done more by way of diversity generally and 109 00:08:02,080 --> 00:08:07,080 Speaker 1: then as the African American nominees and judges specifically. So 110 00:08:07,360 --> 00:08:10,920 Speaker 1: he is troubling that Trump could not find one of 111 00:08:10,960 --> 00:08:15,680 Speaker 1: the fifty three vacancies could be filled by an African American. 112 00:08:16,520 --> 00:08:20,600 Speaker 1: And of course President Obama just finished eight years of 113 00:08:20,720 --> 00:08:25,320 Speaker 1: breaking all records for diversity, and so it isn't as 114 00:08:25,360 --> 00:08:28,560 Speaker 1: if there were no African Americans on the district bench 115 00:08:28,600 --> 00:08:32,600 Speaker 1: who could quickly be elevated. And by the way, there 116 00:08:32,600 --> 00:08:37,480 Speaker 1: were no nominations from African American females for the district bench, 117 00:08:38,000 --> 00:08:41,079 Speaker 1: and so out of a hundred and fifty three people confirmed, 118 00:08:41,120 --> 00:08:45,719 Speaker 1: not one African American FEMA. Some are saying that if 119 00:08:45,720 --> 00:08:49,040 Speaker 1: you're looking for real conservatives, it's most likely going to 120 00:08:49,080 --> 00:08:53,800 Speaker 1: be white men. Do you buy that, No, because if 121 00:08:53,840 --> 00:08:58,840 Speaker 1: you look at his nominees and appointees, many of them, 122 00:08:59,360 --> 00:09:05,920 Speaker 1: who are diverse nominees and appointees are quite conservative looking. 123 00:09:06,000 --> 00:09:09,720 Speaker 1: The only Rouse opinion just last week, and many of 124 00:09:09,720 --> 00:09:13,600 Speaker 1: our other opinions as well as a number of other 125 00:09:14,400 --> 00:09:18,760 Speaker 1: appellates and district court nominees and compromies of this president. 126 00:09:19,440 --> 00:09:26,199 Speaker 1: And so there are many others who would bring extra 127 00:09:26,320 --> 00:09:31,320 Speaker 1: qualifications and are conservatives, So they just need to be 128 00:09:31,400 --> 00:09:37,000 Speaker 1: nominated and confront Many conservatives just outright reject the idea 129 00:09:37,320 --> 00:09:42,359 Speaker 1: that race should be a part of consideration for appellate 130 00:09:42,360 --> 00:09:45,600 Speaker 1: court judges, So they don't believe that you need that 131 00:09:45,720 --> 00:09:49,360 Speaker 1: diversity on the appellate bench that you see in the 132 00:09:49,480 --> 00:09:54,600 Speaker 1: population of the country. Well, I think there's plenty of 133 00:09:54,640 --> 00:09:59,880 Speaker 1: opinion and much data that supports the idea that there's 134 00:10:00,000 --> 00:10:03,160 Speaker 1: more public respect for the courts when those courts reflect 135 00:10:04,040 --> 00:10:08,599 Speaker 1: the people who appear in those courts and the population 136 00:10:08,720 --> 00:10:12,960 Speaker 1: of the United States, and so I think it's valuable 137 00:10:13,000 --> 00:10:16,520 Speaker 1: in that way. It also is better for the quality 138 00:10:16,559 --> 00:10:22,080 Speaker 1: of decision making when you have diverse in different perspectives 139 00:10:22,240 --> 00:10:28,160 Speaker 1: on issues that the federal courts address. And I think 140 00:10:28,240 --> 00:10:33,040 Speaker 1: that you do see bias and prejudice in the federal 141 00:10:33,080 --> 00:10:38,560 Speaker 1: court system, and I think diverse the judges are sensitive 142 00:10:38,640 --> 00:10:41,400 Speaker 1: to those kinds of issues, perhaps more so than some 143 00:10:41,440 --> 00:10:44,120 Speaker 1: of their colleagues. And so for all those reasons, I 144 00:10:44,240 --> 00:10:47,480 Speaker 1: think that a diversity is valuable on the federal courts. 145 00:10:47,920 --> 00:10:51,800 Speaker 1: What I find stunning is that out of fifty three 146 00:10:51,800 --> 00:10:57,240 Speaker 1: Appellate Court judges, he only appointed two women. And there 147 00:10:57,240 --> 00:11:02,680 Speaker 1: are certainly lots of conservative women available across the country 148 00:11:02,760 --> 00:11:08,200 Speaker 1: on different levels and different courts. Absolutely, and of course, 149 00:11:08,760 --> 00:11:11,360 Speaker 1: even if it must be a Republican appointee, there are 150 00:11:11,360 --> 00:11:16,559 Speaker 1: plenty of George W. Bush female appointees who are very qualified. 151 00:11:17,280 --> 00:11:20,040 Speaker 1: Amy Steve is one of those two women you're talking about. 152 00:11:20,120 --> 00:11:23,400 Speaker 1: She was elevated from Northern District of Illinois and is 153 00:11:23,440 --> 00:11:27,760 Speaker 1: on the seventh circuit. She's very highly respected and quite conservative, 154 00:11:28,320 --> 00:11:32,920 Speaker 1: and so there really is no excuse for that, given 155 00:11:33,200 --> 00:11:37,000 Speaker 1: how long many women have been in the profession, how 156 00:11:37,040 --> 00:11:42,160 Speaker 1: experienced and well qualified they are, and so it should 157 00:11:42,160 --> 00:11:47,760 Speaker 1: be very easy for the administration to find those qualified people, 158 00:11:47,880 --> 00:11:51,200 Speaker 1: not to mention the state Supreme courts UM, many of 159 00:11:51,240 --> 00:11:56,520 Speaker 1: which have numbers of highly qualified conservative women sitting on 160 00:11:56,559 --> 00:11:59,160 Speaker 1: the bench. Now, one thing that he can be credited 161 00:11:59,160 --> 00:12:03,200 Speaker 1: with is that he exceeded both Obama and Bush in 162 00:12:03,240 --> 00:12:06,840 Speaker 1: appointing Asian Americans. Of the fifty three appellate judges, there 163 00:12:06,880 --> 00:12:11,120 Speaker 1: were eight people of color, one Hispanic, and seven Asian Americans. 164 00:12:11,600 --> 00:12:15,280 Speaker 1: Do they stand out more than other candidates, Well, I 165 00:12:15,360 --> 00:12:20,480 Speaker 1: don't know. I think that's hard to gauge. Uh, certainly 166 00:12:20,520 --> 00:12:24,720 Speaker 1: there are many well qualified Asian Americans who could serve, 167 00:12:25,559 --> 00:12:31,280 Speaker 1: but the disproportioned, for example, African Americans or Latinos at 168 00:12:31,320 --> 00:12:36,160 Speaker 1: the appellate level. He is concerning UM and I think 169 00:12:36,200 --> 00:12:40,840 Speaker 1: they're the administration just UM needed to make more of 170 00:12:40,880 --> 00:12:45,840 Speaker 1: an effort UM to find diverse people. That's not because 171 00:12:45,960 --> 00:12:49,080 Speaker 1: criticism of the people appointed. Many of them are very qualified. 172 00:12:50,000 --> 00:12:55,400 Speaker 1: Among the Asian American UM nominees and appointees to the 173 00:12:55,440 --> 00:12:58,800 Speaker 1: federal bench. You know, when you look at this and 174 00:12:59,240 --> 00:13:03,280 Speaker 1: you see the lack of diversity, is it because the 175 00:13:03,880 --> 00:13:08,640 Speaker 1: a CP told Bloomberg Law that they tried to reach 176 00:13:08,679 --> 00:13:12,800 Speaker 1: out but that President Trump's administration wasn't interested in working 177 00:13:12,800 --> 00:13:19,120 Speaker 1: with them as prior administrations have. Well, that's probably true, 178 00:13:19,640 --> 00:13:25,559 Speaker 1: UM and the problem but UM, there are many UM 179 00:13:25,679 --> 00:13:31,520 Speaker 1: I expect people who um are fine lawyers, who are 180 00:13:32,280 --> 00:13:38,160 Speaker 1: UM Latinos and African Americans who may or may not 181 00:13:38,240 --> 00:13:40,439 Speaker 1: be members of the Federalist Society. There clearly as a 182 00:13:40,480 --> 00:13:44,800 Speaker 1: pipeline for the appellate courts, very high percentage of of 183 00:13:45,800 --> 00:13:51,920 Speaker 1: compromise were uh Federalists or are Federal Society members. Um. 184 00:13:52,000 --> 00:13:56,320 Speaker 1: And that group has had inordinate impact on a selection 185 00:13:56,360 --> 00:14:00,840 Speaker 1: of appellate nominees and judges in this administration. UH. And 186 00:14:00,920 --> 00:14:04,040 Speaker 1: there's a real question in many people's minds whether an 187 00:14:04,080 --> 00:14:07,880 Speaker 1: outside group should have that kind of influence on selection. 188 00:14:08,559 --> 00:14:12,719 Speaker 1: I wanted to discuss something else which I found very interesting. UM. 189 00:14:12,880 --> 00:14:18,079 Speaker 1: So there's been this backlash since Justice Neil Gorsuch authored 190 00:14:18,080 --> 00:14:24,080 Speaker 1: the opinion in the lgbt Q decision on job discrimination, 191 00:14:24,800 --> 00:14:30,600 Speaker 1: and apparently at one of the confirmation hearings. Two senators 192 00:14:30,760 --> 00:14:38,600 Speaker 1: were going into detail with the nominees about textualism and originalism, 193 00:14:38,600 --> 00:14:44,240 Speaker 1: into real detail. Explain what that was about. Well, I 194 00:14:44,280 --> 00:14:48,200 Speaker 1: think Senator Holly from Missouri is one of them, and 195 00:14:48,360 --> 00:14:51,240 Speaker 1: he's threatened to the White House by saying, we'll be 196 00:14:51,240 --> 00:14:57,600 Speaker 1: watching closely to make sure that UM, any Spring Court vacancy, 197 00:14:57,640 --> 00:15:01,160 Speaker 1: and I think by derivation any other a vacancy be 198 00:15:01,280 --> 00:15:05,480 Speaker 1: filled with people who are UM in agreement with our 199 00:15:05,600 --> 00:15:12,800 Speaker 1: views on how to interpret the constitution. Um, they're entitled, 200 00:15:12,800 --> 00:15:15,960 Speaker 1: they ask the questions. UM. They don't like it when 201 00:15:15,960 --> 00:15:21,920 Speaker 1: Democrats ask questions like that. UM. But I think that 202 00:15:22,200 --> 00:15:26,920 Speaker 1: will see what happens into the future. UM. But I 203 00:15:27,000 --> 00:15:32,080 Speaker 1: do agree that that there's a feeling that the Republicans 204 00:15:32,120 --> 00:15:37,520 Speaker 1: have appointed people and they expect them to share their views. UM. 205 00:15:37,560 --> 00:15:41,040 Speaker 1: And if they don't, as Chief Justice Roberts did this 206 00:15:41,120 --> 00:15:45,800 Speaker 1: morning in the abortion case of Louisiana, UM, and in 207 00:15:45,880 --> 00:15:50,200 Speaker 1: other cases, then I think you will hear criticism from 208 00:15:50,600 --> 00:15:55,920 Speaker 1: the GOP. So does that show that you can't absolutely 209 00:15:58,040 --> 00:16:01,960 Speaker 1: get a judge who goes your way every time? Yes? 210 00:16:02,080 --> 00:16:07,120 Speaker 1: Of course. And UM. The hope, of course is that everyone, 211 00:16:07,280 --> 00:16:09,800 Speaker 1: no matter who appoints them to the Supreme Court and 212 00:16:09,840 --> 00:16:14,680 Speaker 1: the other federal courts will shed their political views and 213 00:16:14,800 --> 00:16:19,360 Speaker 1: personal views when they take on the road, and that uh, 214 00:16:19,400 --> 00:16:22,320 Speaker 1: they'll be open minded and fair minded and try to 215 00:16:22,400 --> 00:16:26,440 Speaker 1: decide each case on the law. And thanks Carl. That's 216 00:16:26,480 --> 00:16:29,520 Speaker 1: Carl Tobias at the University of Richmond Law School. And 217 00:16:29,600 --> 00:16:32,560 Speaker 1: that's it for this edition of Bloomberg Long. I'm June Brasso. 218 00:16:32,760 --> 00:16:35,120 Speaker 1: Thanks so much for listening, and remember to tune in 219 00:16:35,120 --> 00:16:37,360 Speaker 1: to the Bloomberg Law Show weeknights at ten p m. 220 00:16:37,400 --> 00:16:39,280 Speaker 1: Eastern right here on Bloomberg Radio.