Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcasts. For the first time,
Speaker 1: a federal appeals court under President Trump was flipped to
Speaker 1: a majority of Republican appointees, a big step in the
Speaker 1: drive by the President and his Senate allies to remake
Speaker 1: the judiciary with conservatives. The Third Circuit Court of Appeals
Speaker 1: in Philadelphia was the first circuit to flip with the
Speaker 1: addition of Paul Madie, who was a top league aid
Speaker 1: to Chris Christie when he was New Jersey's governor, joining
Speaker 1: me as Carl Tobias, sup Perfessor at the University of
Speaker 1: Richmond School of Law. Carl, the Third Circuit has had
Speaker 1: a centrist reputation until now. Tell us about that and
Speaker 1: whether it's likely to retain that reputation with the addition
Speaker 1: of these three conservative judges by Trump. Well, it has
Speaker 1: had relatively moderate reputation over time, and that reflects partly
Speaker 1: the senators from those states and the local legal culture
Speaker 1: and the culture of the States. But it may be
Speaker 1: that the people who were confirmed who the president nominated
Speaker 1: their three now and there's a fourth. There's another vacancy,
Speaker 1: and that may well be filled soon. Uh, though there's
Speaker 1: not a nominee yet. UM mean that the court will
Speaker 1: move from a moderate position to probably a more conservative one. Um.
Speaker 1: And I think that's true of the most recent nominee,
Speaker 1: as well as David Porter from Philadelphia. Less clear about
Speaker 1: the third nominee, who was teaching at the Pen Law School. Now,
Speaker 1: circuit courts work in panels of three judges except for
Speaker 1: the rare and bank hearings, So it's basically a flip
Speaker 1: of the coin which judges you get on your panel.
Speaker 1: Will the odds of getting conservative panel really changed that
Speaker 1: much in the third circuit where you have seven judges
Speaker 1: appointed by Republicans and six by Democrats. I don't know
Speaker 1: the statistics, do you. Well, I think it will make
Speaker 1: some difference. Um, for sure. Um, there'll be a draw
Speaker 1: that has more Republicans on. It depends on the issue. Uh.
Speaker 1: And it's a bit of a crude measure to talk
Speaker 1: about the appointing president, but by and large, the Republicans
Speaker 1: presidents tend to uh nominate a point more conservative people,
Speaker 1: and it's certainly true of President Trump. So maybe was
Speaker 1: confirmed by a vote of fifty four to forty five
Speaker 1: despite opposition from both home state Democratic senators from New Jersey.
Speaker 1: That's the second time that's happened in the Trump era.
Speaker 1: Is this a new trend that will take away the
Speaker 1: little power the Democrats have to stop these nominations, Well,
Speaker 1: so far it is. And Senator Graham, who has taken
Speaker 1: over from Senator Grassley chair of Judiciary, has agreed to
Speaker 1: follow the policy that grasply used, and that is make
Speaker 1: an exception for circuit nominees. And it's especially unconventional and
Speaker 1: goes back a hundred years to uh nominate and appoint
Speaker 1: someone over the opposition of to home state senators, which
Speaker 1: as you said, happened in Washington State, now has happened
Speaker 1: in New Jersey and could well happen in other states.
Speaker 1: Which is a big mistake because the blue slips protect
Speaker 1: minority senators rights as well as the senator's home state constituents,
Speaker 1: so as to ensure that the judges is sit in
Speaker 1: their states reflect the culture and legal culture of the state.
Speaker 1: So you might have the same kind of situation happening
Speaker 1: if there's a democratic president. Well, Um Senator Horrono from
Speaker 1: Hawaii said that if a Democrat is elected in the future,
Speaker 1: that the Democrats are likely to follow what the Republicans
Speaker 1: have done. And that's the problem. All of the customs
Speaker 1: of the Institution of the Senate have been eroded or
Speaker 1: viscerated recently, and so that means the home state protections
Speaker 1: for senators and constituents are undermined. Are there any other
Speaker 1: circuits now in danger of flipping? Well, the eleventh Circuit,
Speaker 1: which is Florida, Georgia and Alabama, is six six in
Speaker 1: terms of appointing presidents, but there's no vacancy now. If
Speaker 1: there were one and the president nominating confirmed someone, then
Speaker 1: it would change the composition of that court. But that's
Speaker 1: the only one. I believe. There are a couple of
Speaker 1: others that are maybe one more Democratic appointed judge than Republican,
Speaker 1: and so there are a few others around the country. So, Carl,
Speaker 1: when you look at history, is this part for the
Speaker 1: core that the circuits flipped back and forth depending on
Speaker 1: the party holding the presidency and how long it holds
Speaker 1: the presidency. Yes, I think to some extent. That's really true.
Speaker 1: As I said earlier, it's a bit of a crude measure,
Speaker 1: but it's a measure that many rely on who observed
Speaker 1: the courts, and so I think it does change over
Speaker 1: time depending on how many appointments the president gets and
Speaker 1: how much the president emphasizes that, and whether the president's
Speaker 1: party has control of the Senate. What people are worried
Speaker 1: about is that no one will be confirmed when there's
Speaker 1: divided government. Um. And that's a fairly serious concern. Uh
Speaker 1: So that only uh people will only be confirmed when
Speaker 1: the president and the Senate majority are of the same party.
Speaker 1: That would certainly pose a problem for the courts, which
Speaker 1: are understaffed already. Had there been any nominations that the
Speaker 1: Democrats really worked to oppose that went through anyway, Because
Speaker 1: you don't hear them really causing UH stint, well, I
Speaker 1: think they do if you watch them in committee meetings
Speaker 1: and committee discussions, um as people are voted out of committee,
Speaker 1: they've been very critical, uh and in hearings of some
Speaker 1: of the nominees, for example raw Um, who recently was
Speaker 1: confirmed to the DC Circuit this week, and others, certainly
Speaker 1: the Washington Senators were outraged, as was Senator Booker and
Speaker 1: Senator Menendez. When you watched them on the floor in
Speaker 1: the committee, they were vociferously opposed really to the process.
Speaker 1: Not so much to Madie though Um. Senator Booker said
Speaker 1: he never even met made Um, and the White House
Speaker 1: just completely ignored the Senators in terms of consultation. So
Speaker 1: that's unfortunate and that should stop um. But I think
Speaker 1: Democrats have and they've been voting party line on the
Speaker 1: floor for example. I think both were confirmed this week
Speaker 1: on party line votes. Does Senator fine Stein have any
Speaker 1: power as the ranking member, Well, some, and she works
Speaker 1: very closely with Senator Graham, and he shown some signs
Speaker 1: of working very closely with her. I don't want to
Speaker 1: forget the hundred twenty nine district vacancies nationwide that are
Speaker 1: really pressing the trial courts all over the country. All right, well,
Speaker 1: we will continue to monitor this. Thanks so much, Carl.
Speaker 1: That's Carl Tobias. He's a professor at the University of
Speaker 1: Richmond School of Law. Thanks for listening to the Bloomberg
Speaker 1: Law Podcast. You can subscribe and listen to the show
Speaker 1: on Apple Podcasts, SoundCloud, and on Bloomberg dot com. Slash Podcast.
Speaker 1: I'm June Bolso, this is Bloomberg