WEBVTT - First Appeals Court ’Flips’ Control Under Trump

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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<v Speaker 1>and on Bloomberg dot com slash podcasts. For the first time,

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<v Speaker 1>a federal appeals court under President Trump was flipped to

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<v Speaker 1>a majority of Republican appointees, a big step in the

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<v Speaker 1>drive by the President and his Senate allies to remake

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<v Speaker 1>the judiciary with conservatives. The Third Circuit Court of Appeals

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<v Speaker 1>in Philadelphia was the first circuit to flip with the

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<v Speaker 1>addition of Paul Madie, who was a top league aid

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<v Speaker 1>to Chris Christie when he was New Jersey's governor, joining

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<v Speaker 1>me as Carl Tobias, sup Perfessor at the University of

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<v Speaker 1>Richmond School of Law. Carl, the Third Circuit has had

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<v Speaker 1>a centrist reputation until now. Tell us about that and

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<v Speaker 1>whether it's likely to retain that reputation with the addition

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<v Speaker 1>of these three conservative judges by Trump. Well, it has

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<v Speaker 1>had relatively moderate reputation over time, and that reflects partly

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<v Speaker 1>the senators from those states and the local legal culture

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<v Speaker 1>and the culture of the States. But it may be

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<v Speaker 1>that the people who were confirmed who the president nominated

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<v Speaker 1>their three now and there's a fourth. There's another vacancy,

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<v Speaker 1>and that may well be filled soon. Uh, though there's

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<v Speaker 1>not a nominee yet. UM mean that the court will

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<v Speaker 1>move from a moderate position to probably a more conservative one. Um.

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<v Speaker 1>And I think that's true of the most recent nominee,

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<v Speaker 1>as well as David Porter from Philadelphia. Less clear about

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<v Speaker 1>the third nominee, who was teaching at the Pen Law School. Now,

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<v Speaker 1>circuit courts work in panels of three judges except for

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<v Speaker 1>the rare and bank hearings, So it's basically a flip

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<v Speaker 1>of the coin which judges you get on your panel.

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<v Speaker 1>Will the odds of getting conservative panel really changed that

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<v Speaker 1>much in the third circuit where you have seven judges

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<v Speaker 1>appointed by Republicans and six by Democrats. I don't know

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<v Speaker 1>the statistics, do you. Well, I think it will make

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<v Speaker 1>some difference. Um, for sure. Um, there'll be a draw

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<v Speaker 1>that has more Republicans on. It depends on the issue. Uh.

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<v Speaker 1>And it's a bit of a crude measure to talk

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<v Speaker 1>about the appointing president, but by and large, the Republicans

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<v Speaker 1>presidents tend to uh nominate a point more conservative people,

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<v Speaker 1>and it's certainly true of President Trump. So maybe was

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<v Speaker 1>confirmed by a vote of fifty four to forty five

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<v Speaker 1>despite opposition from both home state Democratic senators from New Jersey.

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<v Speaker 1>That's the second time that's happened in the Trump era.

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<v Speaker 1>Is this a new trend that will take away the

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<v Speaker 1>little power the Democrats have to stop these nominations, Well,

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<v Speaker 1>so far it is. And Senator Graham, who has taken

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<v Speaker 1>over from Senator Grassley chair of Judiciary, has agreed to

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<v Speaker 1>follow the policy that grasply used, and that is make

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<v Speaker 1>an exception for circuit nominees. And it's especially unconventional and

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<v Speaker 1>goes back a hundred years to uh nominate and appoint

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<v Speaker 1>someone over the opposition of to home state senators, which

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<v Speaker 1>as you said, happened in Washington State, now has happened

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<v Speaker 1>in New Jersey and could well happen in other states.

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<v Speaker 1>Which is a big mistake because the blue slips protect

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<v Speaker 1>minority senators rights as well as the senator's home state constituents,

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<v Speaker 1>so as to ensure that the judges is sit in

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<v Speaker 1>their states reflect the culture and legal culture of the state.

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<v Speaker 1>So you might have the same kind of situation happening

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<v Speaker 1>if there's a democratic president. Well, Um Senator Horrono from

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<v Speaker 1>Hawaii said that if a Democrat is elected in the future,

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<v Speaker 1>that the Democrats are likely to follow what the Republicans

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<v Speaker 1>have done. And that's the problem. All of the customs

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<v Speaker 1>of the Institution of the Senate have been eroded or

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<v Speaker 1>viscerated recently, and so that means the home state protections

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<v Speaker 1>for senators and constituents are undermined. Are there any other

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<v Speaker 1>circuits now in danger of flipping? Well, the eleventh Circuit,

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<v Speaker 1>which is Florida, Georgia and Alabama, is six six in

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<v Speaker 1>terms of appointing presidents, but there's no vacancy now. If

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<v Speaker 1>there were one and the president nominating confirmed someone, then

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<v Speaker 1>it would change the composition of that court. But that's

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<v Speaker 1>the only one. I believe. There are a couple of

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<v Speaker 1>others that are maybe one more Democratic appointed judge than Republican,

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<v Speaker 1>and so there are a few others around the country. So, Carl,

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<v Speaker 1>when you look at history, is this part for the

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<v Speaker 1>core that the circuits flipped back and forth depending on

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<v Speaker 1>the party holding the presidency and how long it holds

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<v Speaker 1>the presidency. Yes, I think to some extent. That's really true.

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<v Speaker 1>As I said earlier, it's a bit of a crude measure,

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<v Speaker 1>but it's a measure that many rely on who observed

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<v Speaker 1>the courts, and so I think it does change over

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<v Speaker 1>time depending on how many appointments the president gets and

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<v Speaker 1>how much the president emphasizes that, and whether the president's

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<v Speaker 1>party has control of the Senate. What people are worried

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<v Speaker 1>about is that no one will be confirmed when there's

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<v Speaker 1>divided government. Um. And that's a fairly serious concern. Uh

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<v Speaker 1>So that only uh people will only be confirmed when

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<v Speaker 1>the president and the Senate majority are of the same party.

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<v Speaker 1>That would certainly pose a problem for the courts, which

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<v Speaker 1>are understaffed already. Had there been any nominations that the

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<v Speaker 1>Democrats really worked to oppose that went through anyway, Because

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<v Speaker 1>you don't hear them really causing UH stint, well, I

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<v Speaker 1>think they do if you watch them in committee meetings

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<v Speaker 1>and committee discussions, um as people are voted out of committee,

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<v Speaker 1>they've been very critical, uh and in hearings of some

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<v Speaker 1>of the nominees, for example raw Um, who recently was

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<v Speaker 1>confirmed to the DC Circuit this week, and others, certainly

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<v Speaker 1>the Washington Senators were outraged, as was Senator Booker and

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<v Speaker 1>Senator Menendez. When you watched them on the floor in

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<v Speaker 1>the committee, they were vociferously opposed really to the process.

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<v Speaker 1>Not so much to Madie though Um. Senator Booker said

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<v Speaker 1>he never even met made Um, and the White House

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<v Speaker 1>just completely ignored the Senators in terms of consultation. So

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<v Speaker 1>that's unfortunate and that should stop um. But I think

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<v Speaker 1>Democrats have and they've been voting party line on the

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<v Speaker 1>floor for example. I think both were confirmed this week

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<v Speaker 1>on party line votes. Does Senator fine Stein have any

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<v Speaker 1>power as the ranking member, Well, some, and she works

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<v Speaker 1>very closely with Senator Graham, and he shown some signs

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<v Speaker 1>of working very closely with her. I don't want to

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<v Speaker 1>forget the hundred twenty nine district vacancies nationwide that are

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<v Speaker 1>really pressing the trial courts all over the country. All right, well,

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<v Speaker 1>we will continue to monitor this. Thanks so much, Carl.

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<v Speaker 1>That's Carl Tobias. He's a professor at the University of

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<v Speaker 1>Richmond School of Law. Thanks for listening to the Bloomberg

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<v Speaker 1>Law Podcast. You can subscribe and listen to the show

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<v Speaker 1>on Apple Podcasts, SoundCloud, and on Bloomberg dot com. Slash Podcast.

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<v Speaker 1>I'm June Bolso, this is Bloomberg