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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: I'm gonna shake up the bag, draw the lottery tickets,

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Speaker 2: and you'll be called up accordingly. We're gonna line you

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Speaker 2: up that's right where this gentleman is standing, and we'll

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Speaker 2: bring you into the building. There was a lottery to

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Speaker 2: get the hottest ticket in town entry to the Los

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Speaker 2: Angeles Courthouse for the Menendez brothers' first court appearance in decades.

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Speaker 2: People lined up more than five hours before the hearing

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Speaker 2: to get one of the coveted sixteen seats available to

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Speaker 2: the public.

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Speaker 1: Okay, last four numbers of six nine three two.

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Speaker 2: Eric and Lyle Menendez have been in prison since nineteen

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Speaker 2: eighty nine, sentenced to life without parole for the murders

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Speaker 2: of their parents. The case captivated the country in the

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Speaker 2: nineteen nineties and is doing so once again thanks to

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Speaker 2: the recent releases of the Netflix dram Up Monsters and

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Speaker 2: a documentary Lost the discovery of new evidence which could

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Speaker 2: support Eric's claims that he was sexually abused by his father.

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Speaker 2: Technical problems prevented the brothers from appearing virtually from prison,

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Speaker 2: and the hearing lasted only an hour because The judge

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Speaker 2: said he needed time to review seventeen boxes of evidence

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Speaker 2: and also wanted to give the newly elected DA time

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Speaker 2: to weigh in on the case, but he did allow

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Speaker 2: the brothers two elderly aunts to take the stand, and

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Speaker 2: they made an impassioned plea for their nephews for lease.

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Speaker 2: Ninety three year old Joan Anderson vander Mullen Kiddymanendez. His sister,

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Speaker 2: spoke outside the courthouse, Ben said.

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Speaker 1: She give situation, what can a kin do when.

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Speaker 3: I can't stand it?

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Speaker 2: A wrinkle in their case could be the election of

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Speaker 2: the new La County District Attorney Nathan Hockman. He's not

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Speaker 2: adopting Gascon's recommendation and told ABC News he wants to

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Speaker 2: review the case and the law and decide for himself.

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Speaker 2: There's a cloud over that credibility. Is it a just

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Speaker 2: decision or was it just a political ploy? Joining me

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Speaker 2: is Palm Beach County State Attorney Dave Ahrenberg Dave. The

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Speaker 2: hearing yesterday was over a habeas corpus petition the Menendez

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Speaker 2: brothers filed in May of twenty twenty three. That's basically

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Speaker 2: a request for the court to consider whether someone is

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Speaker 2: being lawfully held tell us about the Menendez brothers Habeas

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Speaker 2: corpus petition.

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Speaker 3: The Habeas corpus petition will focus on the new evidence

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Speaker 3: that came out about sexual abuse from Menendez brother's father. Remember,

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Speaker 3: there was evidence that the Menendez brother's father had molested

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Speaker 3: a member of the boy band Menudo. And there's also

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Speaker 3: a letter that actually written by them. Men and his

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Speaker 3: brothers too irrelative about their sexual abuse. None of this

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Speaker 3: was admitted into evidence in their second trial, which led

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Speaker 3: to a guilty verdict. So they rid of habeas corpuses,

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Speaker 3: tried to get a court to consider this new evidence

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Speaker 3: and to reverse the conviction or to set them free.

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Speaker 2: So this is separate and apart from the resentencing recommendation

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Speaker 2: that the then LA District Attorney made last month. The

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Speaker 2: judge here will take different factors into consideration.

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Speaker 3: Right, there are three channels the men and his brothers

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Speaker 3: will pursue to get their release. One is the habeas

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Speaker 3: corpus petition. So the number two would be the resentencing.

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Speaker 3: That's what the former DA, the one who's outgoing, recommended.

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Speaker 3: He wanted them to re sentence because of good behavior

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Speaker 3: in prison to fifty years and then based on the

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Speaker 3: parole rules at the time, they'd be out already, but

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Speaker 3: it's still would have to go to the Parle Board.

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Speaker 3: So that's number two. And the third would be clemency

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Speaker 3: by the governor, which would still involve the Parole Board,

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Speaker 3: but Governor Gavin Newsom has not said web he would

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Speaker 3: agree to it. So there are three ways that Menendez

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Speaker 3: brothers could be released early, and at this point it's

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Speaker 3: hard to say which one they will pursue the most aggressively.

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Speaker 3: They would probably have the best chance, I think inclemency

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Speaker 3: from the governor because of all the attention that's been paid,

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Speaker 3: because the new DA does not seem as keen on

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Speaker 3: resentencing or letting them out early as the outgoing DA.

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Speaker 2: Yeah, the new DA said that he's going to review

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Speaker 2: the extensive prison records, transcripts of the two trials, and

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Speaker 2: voluminous exhibits, as well as consult with prosecutors, law enforcement,

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Speaker 2: defense counsel, and victim family members. So at the very least,

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Speaker 2: that sounds like a long process. Can he just reverse

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Speaker 2: what the former DA recommended?

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Speaker 3: Yes, Because the DA that is outgoing Gasson was just

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Speaker 3: recommending that there be a resentencing. It's not a binding decision,

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Speaker 3: because that's up to the court to make the decision.

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Speaker 3: The new DA can come in and say I reject

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Speaker 3: that recommendation. We do not support an early release, we

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Speaker 3: do not support a new trial, and so that would

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Speaker 3: be very powerful because the court takes into account what

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Speaker 3: the DA's office thinks. And that's why I think perhaps

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Speaker 3: of the three options habeas corpus petition are resentencing by

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Speaker 3: way of the DA, and clemency, that it's clemency through

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Speaker 3: the governor that may be the best route for the

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Speaker 3: Menendez brothers to get out early.

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Speaker 2: The Governor apparently is taking a weight and see attitude.

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Speaker 2: Here's what he said on his podcast.

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Speaker 1: Last week, the Menendez file, which is now a little

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Speaker 1: thicker because we did deeper research in the last ten days.

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Speaker 1: That's all on my desk. I think it's the right

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Speaker 1: thing to do to hear from the new DA before

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Speaker 1: I make any decisions.

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Speaker 2: That doesn't sound particularly promising either.

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Speaker 3: Well, he is giving the right amount of deference to

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Speaker 3: the new DA, And if the new DA comes out

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Speaker 3: and says I don't support resentencing, the Governor can still

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Speaker 3: say I'm going to grant clemency. But it would really

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Speaker 3: be big footing the new DA who was just elected

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Speaker 3: by the people overwhelmingly to say, it doesn't matter what

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Speaker 3: you think, I'm going to let him out through clemency.

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Speaker 3: So I think that Governors's doing the right thing in

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Speaker 3: saying that no matter what I do, at least I

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Speaker 3: owe the new DA and the voters who elected him

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Speaker 3: the respect to hear what they say first.

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Speaker 2: I mean, the Menandez Brothers case wasn't really one of

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Speaker 2: the election issues, was it.

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Speaker 3: Well, yeah, well you can't avoid it. It's a high

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Speaker 3: profile case. So I think one of the reasons why

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Speaker 3: the outgoing DA did what he did was that he

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Speaker 3: knew he had an election around the corner. I mean,

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Speaker 3: the timing would tell you that that had to be

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Speaker 3: a consideration, right. He could have waited until after the

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Speaker 3: election to announce the decision, but announced it just shortly

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Speaker 3: before the election. And similarly, I think the voters took

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Speaker 3: that into consideration. Even though it seems like there's a

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Speaker 3: lot of momentum to release the brothers early, I do

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Speaker 3: think that this was one of the issues. Now, the

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Speaker 3: clear issue though that we're hearing from the voters in

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Speaker 3: that area where they were thick of the loose policies

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Speaker 3: of the DA were seen that he was favoring defendants

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Speaker 3: over victims in many cases, and they wanted a more

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Speaker 3: tough on crime district attorney, and they got it.

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Speaker 2: Let's return to the habeas corpus petition. The hearing has

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Speaker 2: been adjourned until January thirtieth. Dave, you're a prosecutor, does

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Speaker 2: it seem as if there is enough evidence new evidence

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Speaker 2: for the judge to grant the petition?

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Speaker 3: I don't think so. As a prosecutor, I think that

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Speaker 3: there may be grounds for a new trial based on

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Speaker 3: the new evidence when it comes to the murder of Jose,

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Speaker 3: the father, But when it comes to murder of the mother,

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Speaker 3: there's nothing that would change that the mother, Kitty was

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Speaker 3: not credibly accused at the trial of sexual abuse or

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Speaker 3: there's not even evidence that's come out that shows that

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Speaker 3: that's what motivate that they were being victimized by both parents.

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Speaker 3: And so even if you make the case that Jose

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Speaker 3: was a bad guy who molested his children, then how

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Speaker 3: do you still explain Kitty. People say, well, she knew

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Speaker 3: of the abuse and let it happen. But even that,

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Speaker 3: even if you could show that which is not clear,

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Speaker 3: then at best. Maybe that warrants a new trial, not

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Speaker 3: an early release. You remember, the way they massacred the

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Speaker 3: two parents was that they went over their parents' house.

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Speaker 3: The parents were sitting with their backs turned watching TV,

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Speaker 3: eating ice cream, and the two brothers, who planned this

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Speaker 3: extensively blew them away with shotguns. But Kitty did not

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Speaker 3: die right away. She was crawling away, trying to get

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Speaker 3: away when Lyle went back outside to reload the shotgun

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Speaker 3: and then returned to do the final act. And there

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Speaker 3: was so much blood, so much violence, that police thought

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Speaker 3: it was a mob hit. So I'm not moved on

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Speaker 3: getting an early release for these brothers based on what

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Speaker 3: they did to Kitty. Maybe a new trial, but nothing

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Speaker 3: more than that.

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Speaker 2: So the judge handling the havieous petition could order a

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Speaker 2: new trial.

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Speaker 3: Yeah, the judge and the habeas could say that the

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Speaker 3: tenant's rights were violated. There was evidence that should have

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Speaker 3: been introduced that wasn't introduced a trial. Remember, the judge

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Speaker 3: at the time refused to introduce this evidence of abuse.

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Speaker 3: And now there's new evidence. So the judge couldn't say, yes,

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Speaker 3: we're going to reverse the conviction, overturn it and set

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Speaker 3: up for a new trial. The judge could actually even

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Speaker 3: go further and say he's going to let the brothers out,

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Speaker 3: so we'll see what happens. But even if that doesn't work,

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Speaker 3: they could go to the other two routes as we mentioned,

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Speaker 3: the resentencing by way of the local DA and perhaps

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Speaker 3: clemency from the governor.

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Speaker 2: The resentencing by way of the local DA. That would

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Speaker 2: also have to be approved by a judge, a different

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Speaker 2: judge from the court Miss judge.

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Speaker 3: It gets a little complicated, so which judge these motions

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Speaker 3: are filed in front of, But the resentencing first goes

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Speaker 3: through the local DA to make a recommendation, and then

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Speaker 3: it's up to the judge. And I'm not sure if

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Speaker 3: it is it seem judge or if it a different

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Speaker 3: judge that would hear the resentencing requests. But the reason

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Speaker 3: why the DA, the outgoing DA, made the decision to

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Speaker 3: seek a resentencing was not because of the new evidence

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Speaker 3: of sexual abuse, but because the two brothers were model prisoners.

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Speaker 3: They were on good behavior, and to me, that's not

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Speaker 3: a good enough reason to set aside to life in

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Speaker 3: prison sentences. Sentence to life in prison should not get

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Speaker 3: set aside because the inmates decided to be in good

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Speaker 3: behavior while in prison. That should get them privileges in prison,

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Speaker 3: but not early release.

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Speaker 2: But what district Attorney George Gascoon was going to do

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Speaker 2: is legal.

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Speaker 3: Right, Well, the districttorney can recommend anything, but remember this

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Speaker 3: district attorney got voted out of office largely because he

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Speaker 3: was seen as soft on crime. So when he goes

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Speaker 3: in front of a court and says, your honor, let

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Speaker 3: these brothers out early because they behaved well in prison,

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Speaker 3: I think that is something that a judge will reject,

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Speaker 3: especially because the community has let their voice be known

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Speaker 3: that they don't want soft on crime prosecutors. They shouldn't

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Speaker 3: have people who were sentenced for grizzly murders given life

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Speaker 3: sentences to get out years early because they were acting

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Speaker 3: nicely while they're in prison.

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Speaker 2: Dave, most of the family members of the Menendez brothers

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Speaker 2: support their release. Where does that fit into the decisions

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Speaker 2: that are being made by judges and state officials about

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Speaker 2: their release.

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Speaker 3: Well, the victims' families will be heard, and that is

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Speaker 3: a consideration. The fact that most family members support the

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Speaker 3: brother's release will be a factor in the judge's decision.

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Speaker 3: In the DA's recommendation and in the governor's decision on clemency,

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Speaker 3: but it's not unanimous. There's at least one family member

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Speaker 3: who does not want them released, so it's not unanimous,

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Speaker 3: but it is a factor that most do support their release.

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Speaker 2: The next hearing before the judge and the Habeas Corpus

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Speaker 2: petition will be on January thirtieth and thirty first, and

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Speaker 2: their attorney, Mark Garrigo said, we hope that by the

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Speaker 2: end of that hearing or sometime sooner, they'll be released.

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Speaker 2: Is that too optimistic?

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Speaker 3: Yes, They're not going to be released before the Habeas

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Speaker 3: Corpus hearing. The only way that could happen is if

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Speaker 3: Ditgomery gives clemency and then it goes before the pro bore.

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Speaker 3: That's not going to happen. And the fact that we

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Speaker 3: have a new DA and we have a delay and

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Speaker 3: now it's going to slow things down. So the momentum

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Speaker 3: that was there to release the Menandez brothers asap is

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Speaker 3: now slowed because of the election of the new DA.

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Speaker 3: And I think it's a good thing because before we

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Speaker 3: let the passions of the community who's seen movies and

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Speaker 3: TikTok videos about these brothers rule the day. Maybe we

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Speaker 3: need to take a step back and reassess what they

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Speaker 3: actually did and why they did it, and how after

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Speaker 3: they did it they went on a shopping spree and

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Speaker 3: went to NBA games, sitting in the front row and

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Speaker 3: live the life they've always wanted to live. It seemed

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Speaker 3: like at the time, and I stand by it, that

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Speaker 3: this was more financial crime. They wanted to inherit the wealth.

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Speaker 3: They thought they were going to be written out of

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Speaker 3: the will. They wanted their money, and they got what

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Speaker 3: they wanted and lied about it until they were caught,

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Speaker 3: and now they've been in prison ever since.

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Speaker 2: So the next thing to happen in the case will

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Speaker 2: either be the full hearings on January thirtieth and thirty

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Speaker 2: first on the Habeas Corpus petition, or a decision by

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Speaker 2: the New DA about how to handle the case and

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Speaker 2: whether to recommend resentencing and release. So let's turn out

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Speaker 2: to other legal matters. I wanted to get your reaction

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Speaker 2: to the Special Council yesterday dropping charges against Donald Trump

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Speaker 2: in both the election interference case and the classified documents case.

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Speaker 2: I mean, he really had no choice because it was

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Speaker 2: going to happen once tru gotten off as anyway, what's

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Speaker 2: the downside and what's the upside if any.

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Speaker 3: Well, it was inevitable once Trump won the election that

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Speaker 3: they would have to dismiss the charges, but the keywords

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Speaker 3: in the dismissal were without prejudice. That means you can

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Speaker 3: still refile it, and that would take perhaps January twenty

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Speaker 3: twenty nine, So who knows what will happen then. But

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Speaker 3: even if they do refile it, the former president and

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Speaker 3: soon to be president could still try to pardon himself,

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Speaker 3: or he could also claim that under the statute of limitations,

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Speaker 3: you can't refile the charges this many years later. Then

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Speaker 3: the question is whether the course would allow a postponement

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Speaker 3: of the charges because of the internal Department of Justice

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Speaker 3: rule that says you cannot diet a sitting president. There

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Speaker 3: are a lot of moving parts here, but it does

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Speaker 3: seem like Trump is above the law to them because

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Speaker 3: these cases I think are very unlikely to ever amount anything. Now.

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Speaker 3: The only thing left will be his sentencing in New York,

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Speaker 3: which will still be set after he leaves office. And

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Speaker 3: then there's a Georgia case, which who knows what's going

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Speaker 3: to happen there.

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Speaker 2: That seems really stuck and who knows if that will

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Speaker 2: go forward at all. So there is on record now

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Speaker 2: a decision by a federal judge, Eileen Cannon that the

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Speaker 2: appointment of the Special Council was unconstitutional, and the Special

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Speaker 2: Council is trying to move forward with the appeal of

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Speaker 2: that in the case against Trump's two co defendants. Do

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Speaker 2: you think that will work because once Trump comes into office,

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Speaker 2: I assume he's going to have that case against the

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Speaker 2: co defendants dismissed.

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Speaker 3: Well, the case against the two co defendants are allowed

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Speaker 3: to is allowed to continue because the Department of Justice

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Speaker 3: policy just says, you cannot indict a sitting president. You

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Speaker 3: can go after the co defendants, and that is a

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Speaker 3: way a vehicle for Jack Smith to overturn the egregious

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Speaker 3: ruling by Judge Cannon that the Special Council appointment of

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Speaker 3: Jack Smith was unconstitutional. I think he will win on

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Speaker 3: appeal going after Trump. I don't think it's going to matter. Also,

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Speaker 3: the next Attorney General, Pam Bondi, is going to want

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Speaker 3: to use special counsels, and so I think she will

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Speaker 3: go ahead and just move forward with special counsels like that.

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Speaker 3: Judge Canon ruly didn't happen.

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Speaker 2: As you mentioned. Trump has nominated Pam Bondi, the former

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Speaker 2: Attorney general for Florida, to be the next attorney general.

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Speaker 2: And I know you know her, so tell us about her.

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Speaker 3: Well. I worked with her first. I ran against her

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Speaker 3: in twenty ten for attorney general. She won, I lost.

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Speaker 3: She hired me as her drugs Are afterwards, and it

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Speaker 3: does tell you about her that she would reach across

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Speaker 3: party lines to appoint a Democrat and got a lot

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Speaker 3: of criticism from Republican leaders for doing that. I was

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Speaker 3: her drugs Are. I went after the opioid epidemic, the

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Speaker 3: pill mills, and we were able to shut them down

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Speaker 3: and save lives in Florida. So I have a lot

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Speaker 3: of respect for her for that. And as far as

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Speaker 3: a person, she's very well liked. She's a very likable,

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Speaker 3: outgoing person. She will tether her to say, to the

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Speaker 3: rule of law. She has no Matt Gates. She's not

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Speaker 3: going in there to walk out Anthony Fausti and Adam

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Speaker 3: Shift and handcuffs. Although I do think she will start

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Speaker 3: investigations into the investigators, but got to be careful when

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Speaker 3: you do that. Remember what happened to John Durham. He

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Speaker 3: was humiliated when he investigated the investigators, he came up

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Speaker 3: with small ball, low level charges and got quick acquittaled

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Speaker 3: and embarrassment for it. So that's a lesson learned.

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Speaker 2: She has publicly championed Trump's baseless claims of voter fraud,

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Speaker 2: that there was voter fraud in a twenty twenty presidential election.

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Speaker 2: She said this on Fox News last August because the

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Speaker 2: deep state during the last term for President Trump, they

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Speaker 2: were hiding in the shadows. But now they have a

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Speaker 2: spotlight on them and they can all be investigated. The

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Speaker 2: house needs to be cleaned out. That sounds a little

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Speaker 2: conspiratorial and perhaps indicates a witch hunt maybe coming up.

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Speaker 3: Yeah, that's news rhetoric, that's political rhetoric. But I've seen

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Speaker 3: her up close the prosecutor, and there's a difference between

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Speaker 3: what you see on Fox News as a political commentator

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Speaker 3: in what you see as a lawyer's a prosecutor. She's

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Speaker 3: a twenty year prosecutor. She's an eight year attorney general

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Speaker 3: in the state of Florida. I do not expect her

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Speaker 3: to trump up to use the term charges against the

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Speaker 3: president elect's enemies just to please him. I think that

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Speaker 3: she will investigate the investigators, which will open up a

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Speaker 3: can of worms. She'll do things that will be controversial

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Speaker 3: on that front, but overall, I do think she will

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Speaker 3: be tethered to the rule of law, and she'll do

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Speaker 3: things that are popular, like cracking down on illicted fentanyl

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Speaker 3: at the border and going after prohamas supporters on college campuses.

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Speaker 3: I think that hopefully she will stay closer to that

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Speaker 3: in her role as prosecutor and left into revenge for

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Speaker 3: Donald Trump. The person who was going to be Trump's

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Speaker 3: restribution is Matt Gates, and he's no longer at the appointee.

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Speaker 2: When she was Florida AG, she tried to dismantle Obamacare,

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Speaker 2: the provision that's very popular that bans health insurance companies

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Speaker 2: from charging more to customers with pre existing conditions. I mean,

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Speaker 2: it's hard for me to understand the Republicans continuing efforts

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Speaker 2: to dismantle Obamacare, which is so popular, including among their supporters,

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Speaker 2: But that is something she could get involved with.

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Speaker 3: You know, I don't remember exactly what was done then.

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Speaker 3: I think she joined with other attorneys general to try

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Speaker 3: to overturn all of Obamacare, and at the time Obamacare

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Speaker 3: was not as popular as as today today. If they

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Speaker 3: try to do it, it will be a severe backlash. But yes,

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Speaker 3: if you're going to try to overturn our system of healthcare,

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Speaker 3: you got to have something to replace it with. And

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Speaker 3: Trump says he'll have a replacement in two weeks at least.

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Speaker 3: He's been saying that for the last eight years.

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Speaker 2: The confirmation process sounds like it will be much easier.

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Speaker 3: Yeah. I know her, and you know I know what

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Speaker 3: kind of person she is. And although we disagree with politics,

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Speaker 3: we do we have different ideologies. He's always been fair

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Speaker 3: to me. She's always been selling. I have worked well

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Speaker 3: with and she's worked well with Democrats. She's never been

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Speaker 3: a big partisan. She is loyal to Donald Trump. It's

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Speaker 3: clear she is loyal to Donald Trump. I'm not going

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Speaker 3: in this with rose colored glasses. But if you're a Democrat,

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Speaker 3: Tally Yates is not walking through that door. If you're

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Speaker 3: a Democrat, I think this is the best nominee that

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Speaker 3: you're going to get from Donald Trump. And if she's

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Speaker 3: not the nominee, then yeah, maybe you'll get Rurie Giuliani

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Speaker 3: or the MyPillow guy with a law degree.

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Speaker 2: You don't want that, No, you don't, Thanks so much.

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Speaker 2: Dave always a pleasure. That's bomb Beach County State Attorney

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Speaker 2: Dave Ehrenberg coming up next on the Bloomberg Law Show.

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Speaker 2: Senate Democrats are being criticized for making a deal with

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Speaker 2: Republicans to abandon appellate judicial nominees in favor of trial

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Speaker 2: court nominees. I'm June gross when you're listening to Bloomberg.

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Speaker 2: Senate and Democrats have struck a deal with Republicans to

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Speaker 2: abandon four of President Biden's nominees for appellate courts in

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Speaker 2: order to advance his nominees for trial courts. The deal

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Speaker 2: comes after Republicans had employed stalling tactics this week to

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Speaker 2: complicate Democratic efforts to confirm as many of Biden's judicial

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Speaker 2: picks as possible before Republicans gained control of the White

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Speaker 2: House and Senate in January. Many including progressives and a

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Speaker 2: Senator on the Judiciary Committee, are critical of the deal

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Speaker 2: because the appellate courts are one step away from the

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Speaker 2: Supreme Court and policy decisions are made by them For

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Speaker 2: many states. The agreement derails Biden's efforts to place judges

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Speaker 2: on four federal circuit courts before President elect Donald Trump

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Speaker 2: returns to the White House. Joining me is an expert

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Speaker 2: in the federal judiciary. Carl Tobias, a professor at the

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Speaker 2: University of Richmond Law School, tell us about this agreement

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Speaker 2: that Senate Democrats made with Senate Republicans.

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Speaker 4: Carl, Well, it looks like Democrats promised that they would

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Speaker 4: not move on the four Appellate Court nominees who are

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Speaker 4: out of committee and on the floor and awaiting confirmation

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Speaker 4: debates and votes. In return, Republicans agreed not to obstruct

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Speaker 4: a number of district nominees. That number looks like at

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Speaker 4: least seven, but maybe more like a dozen, and so

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Speaker 4: those are the contours of the deal. So that's where

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Speaker 4: things stand right now and are not likely to change

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Speaker 4: because both sides have agreed to this. But of course

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Speaker 4: there's been a lot of criticism from especially the Washington

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Speaker 4: DC public interest groups of the deal because people are

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Speaker 4: saying that just wasn't a very good deal, and many

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Speaker 4: observers believe that the nominees are entitled to, or deserve

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Speaker 4: or warrant or merit an up or down vote. So

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Speaker 4: we'll see what happens. But most of those four people

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Speaker 4: are well qualified and relatively mainstream, and so it seems

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Speaker 4: as if at least three of them would have been confirmed,

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Speaker 4: and maybe all four of them.

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Speaker 2: It doesn't make much sense to me, considering that the

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Speaker 2: circuit courts are one step away from the Supreme Court

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Speaker 2: and are so much more important than the trial courts.

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Speaker 4: That's exactly right. I mean, both sides, Republicans and Democrats,

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Speaker 4: act that way, so it must be true because of

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Speaker 4: course they cover multiple states, they make more policy, they're

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Speaker 4: fewer of those judges, and as you suggest, they're one

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Speaker 4: level below the US Supreme Court, and so both sides

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Speaker 4: know how critical those are. And we saw that in

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Speaker 4: Trump's years with fifty four, which I think was a

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Speaker 4: record for one term of a presidency. And then Biden

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Speaker 4: has confirmed forty five and was hoping to eclipse Trump,

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Speaker 4: but that isn't possible, though he could have come quite

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Speaker 4: close with forty nine if the four on the floor

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Speaker 4: now had received votes.

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Speaker 2: Senator Mazie Herona, who's a Judiciary Committee member, said these

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Speaker 2: nominees emerged from hours long hearings where many have faced

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Speaker 2: unfounded personal and professional tax from Republicans on the Judiciary Committee.

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Speaker 2: The circuit courts are one step removed from the Supreme Court,

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Speaker 2: which makes these nominees especially critical. She's a member of

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Speaker 2: the Judiciary Committee who makes these deals.

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Speaker 4: Well, it sounds like this was a deal made by

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Speaker 4: Senator Schumer with Minority Leader to be soon on Thursday,

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Speaker 4: I believe after the obstruction by the Republicans of the

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Speaker 4: nominee at the district level. I think it was Schumer's decision,

436
00:24:56,920 --> 00:25:00,960
Speaker 4: perhaps in consultation with Senator Durbin the Charity Sherry Committee,

437
00:25:01,240 --> 00:25:03,880
Speaker 4: But that's not entirely clear, and there are not many

438
00:25:03,960 --> 00:25:07,520
Speaker 4: details about it. The most I think telling is a

439
00:25:07,640 --> 00:25:11,280
Speaker 4: quote from a spokesperson for him saying the trade was

440
00:25:11,320 --> 00:25:15,359
Speaker 4: four circuit nominees all lacking the votes to get confirmed,

441
00:25:15,480 --> 00:25:18,720
Speaker 4: which is contested by many for more than triple the

442
00:25:18,800 --> 00:25:24,280
Speaker 4: number of additional district judges moving forward. That summarizes what

443
00:25:24,680 --> 00:25:29,520
Speaker 4: the Shumer staffers and I think Schumern himself thought. But

444
00:25:29,800 --> 00:25:34,600
Speaker 4: many people have criticized that it's unfortunate, especially personally and

445
00:25:34,640 --> 00:25:39,399
Speaker 4: professionally for the nominees who had ruling hearings, and Senator

446
00:25:39,560 --> 00:25:42,359
Speaker 4: Rono is forret when she describes it that way and

447
00:25:42,400 --> 00:25:46,720
Speaker 4: had waited a long time, and the courts need their judges.

448
00:25:46,880 --> 00:25:48,600
Speaker 4: It's very unfortunate. Did that happen.

449
00:25:49,200 --> 00:25:53,560
Speaker 2: I understand that judges James Winn of the Fourth Circuit

450
00:25:53,720 --> 00:25:58,320
Speaker 2: and Jane Brend's letter Stranch of the Sixth Circuit could

451
00:25:58,359 --> 00:26:02,200
Speaker 2: still walk back theirs. I mean they were only going

452
00:26:02,200 --> 00:26:06,240
Speaker 2: to semi retire. They weren't going to stop hearing cases.

453
00:26:06,720 --> 00:26:12,320
Speaker 4: That's correct. They were saying that they would take senior

454
00:26:12,400 --> 00:26:15,120
Speaker 4: status and have probably a half case loads, and they

455
00:26:15,160 --> 00:26:18,160
Speaker 4: satisfied the rule of eighties that they were sixty five

456
00:26:18,240 --> 00:26:21,639
Speaker 4: and had fifteen years of service and were prepared to

457
00:26:21,720 --> 00:26:24,680
Speaker 4: do that upon the appointment of a successor. But as

458
00:26:24,680 --> 00:26:29,040
Speaker 4: you suggest, it is not set in stone until it

459
00:26:29,200 --> 00:26:32,960
Speaker 4: actually happens. And so there is this sort of custom

460
00:26:33,280 --> 00:26:37,399
Speaker 4: among especially appellate judges, which I think goes back to

461
00:26:38,040 --> 00:26:42,119
Speaker 4: about a decade ago when a number of Republican appointees

462
00:26:42,240 --> 00:26:46,240
Speaker 4: started doing that because they didn't want a Democratic president

463
00:26:46,280 --> 00:26:49,160
Speaker 4: to replace them depending on who was going to win

464
00:26:49,200 --> 00:26:53,359
Speaker 4: the election. And so it's come forward and as the

465
00:26:53,760 --> 00:26:58,240
Speaker 4: process has become increasingly partisan to some extent, the judges

466
00:26:58,680 --> 00:27:02,680
Speaker 4: are more sense to that as well. And so we're

467
00:27:02,680 --> 00:27:08,000
Speaker 4: seeing that with Republican appointees or appointings of Republican president

468
00:27:08,240 --> 00:27:12,440
Speaker 4: wanting to be sure that they're replaced by another Republican

469
00:27:12,480 --> 00:27:16,400
Speaker 4: president and pretty much the same for Democrats. And that's

470
00:27:16,440 --> 00:27:19,040
Speaker 4: where we are. And so that's what happened. So I

471
00:27:19,080 --> 00:27:22,400
Speaker 4: don't know what those two judges are likely to do,

472
00:27:22,520 --> 00:27:25,760
Speaker 4: but it's possible. And there's already a district judge in

473
00:27:25,880 --> 00:27:29,040
Speaker 4: Ohio who has done the same thing, But it is

474
00:27:29,080 --> 00:27:32,960
Speaker 4: certainly possible. And the deal then looks, as a number

475
00:27:32,960 --> 00:27:35,880
Speaker 4: of people have said, like a better deal. In fact,

476
00:27:35,960 --> 00:27:41,160
Speaker 4: that was the trade to the main seat for Judge Kayata,

477
00:27:41,640 --> 00:27:46,040
Speaker 4: who originally took senior status, just as the two other judges,

478
00:27:46,040 --> 00:27:48,879
Speaker 4: the six Circuit and Fourth Circuit judges did with a

479
00:27:48,960 --> 00:27:53,639
Speaker 4: to be determined designation but then converted to a current vacancy.

480
00:27:53,840 --> 00:27:57,800
Speaker 4: And then, of course the third Circuit seat was Judge Greenway,

481
00:27:57,880 --> 00:28:01,240
Speaker 4: and his vacancy is a current vacancy and so will

482
00:28:01,240 --> 00:28:04,240
Speaker 4: fall to Trump as well as a Kyata one in Maine,

483
00:28:04,280 --> 00:28:06,200
Speaker 4: the first Circuit, in the third circuit.

484
00:28:06,480 --> 00:28:09,680
Speaker 2: Let's talk about the ones that are definite, the third

485
00:28:09,800 --> 00:28:13,280
Speaker 2: Circuit and the first Circuit. What would that do if

486
00:28:13,280 --> 00:28:18,240
Speaker 2: Trump gets to appoint another judge to those circuits. I mean,

487
00:28:18,280 --> 00:28:22,720
Speaker 2: the first Circuit is basically all Democrat appointed judges right now.

488
00:28:23,160 --> 00:28:26,800
Speaker 4: So will there be any flipping, Well, it certainly won't

489
00:28:26,840 --> 00:28:29,959
Speaker 4: in the first because I think Biden has named just

490
00:28:30,000 --> 00:28:33,919
Speaker 4: about the entire cohort of active judges. Is the smallest

491
00:28:34,160 --> 00:28:37,200
Speaker 4: appeals court in the country. It only has six authorized

492
00:28:37,240 --> 00:28:40,360
Speaker 4: judge ships who are active status, and I believe he's

493
00:28:40,400 --> 00:28:45,760
Speaker 4: appointed five or four that will not flip. The third circuit,

494
00:28:45,800 --> 00:28:48,520
Speaker 4: I believe is closer, and it might be that if

495
00:28:48,560 --> 00:28:52,680
Speaker 4: it's all to Trump to fill Greenway's vacancy, that would

496
00:28:52,840 --> 00:28:55,560
Speaker 4: mean that I think they would be tied. That's an

497
00:28:55,560 --> 00:28:58,640
Speaker 4: important court, of course, and of course the nominee a deal.

498
00:28:58,720 --> 00:29:04,040
Speaker 4: Mungu was extremely well qualified but also belified by Republican

499
00:29:04,120 --> 00:29:07,320
Speaker 4: senators in his hearing, and it took fifteen months to

500
00:29:07,360 --> 00:29:08,360
Speaker 4: get to this point.

501
00:29:08,520 --> 00:29:11,280
Speaker 2: What were their claims against him? Was it that he

502
00:29:11,360 --> 00:29:12,280
Speaker 2: was anti Semitic?

503
00:29:12,760 --> 00:29:18,760
Speaker 4: There were questions about that, questions about whether he celebrated

504
00:29:19,120 --> 00:29:23,920
Speaker 4: nine to eleven in other pretty disgusting questions that were

505
00:29:23,960 --> 00:29:27,320
Speaker 4: asked of him. Also, he sat on a committee that

506
00:29:27,440 --> 00:29:31,920
Speaker 4: advised students at Rutgers Law School, and he said that

507
00:29:32,000 --> 00:29:34,120
Speaker 4: you know, there were hardly any meetings of that group

508
00:29:34,160 --> 00:29:36,200
Speaker 4: and he had very little to do with the group

509
00:29:36,240 --> 00:29:39,520
Speaker 4: he agreed to be a board member. They staged some

510
00:29:40,000 --> 00:29:44,640
Speaker 4: programs that Republicans thought were anti American, if you will,

511
00:29:44,800 --> 00:29:49,320
Speaker 4: but much of that was not really very well validated.

512
00:29:49,720 --> 00:29:51,520
Speaker 4: He did get out of the midtee on a party

513
00:29:51,560 --> 00:29:55,200
Speaker 4: line vote, but never had a four vote, and neither

514
00:29:55,240 --> 00:29:56,240
Speaker 4: did the others.

515
00:29:56,400 --> 00:30:02,480
Speaker 2: Trump made fifty four appellate appointments forty five. How many

516
00:30:02,520 --> 00:30:05,480
Speaker 2: more appellet appointments do you think besides these four that

517
00:30:05,520 --> 00:30:08,040
Speaker 2: we're talking about now, how many more do you think

518
00:30:08,200 --> 00:30:12,320
Speaker 2: can come up in Trump's term that he could flip

519
00:30:12,560 --> 00:30:13,600
Speaker 2: more circuits?

520
00:30:13,880 --> 00:30:16,040
Speaker 4: Well, that's a really good question. The way I see

521
00:30:16,080 --> 00:30:19,320
Speaker 4: it right now, if you're counting the numbers, there is

522
00:30:19,360 --> 00:30:23,680
Speaker 4: a Delaware vacancy that will come open on January fifteen.

523
00:30:24,320 --> 00:30:28,000
Speaker 4: Judge Kent Jordan is retiring, and so there's that, and

524
00:30:28,040 --> 00:30:31,640
Speaker 4: then the four we've been talking about, so right now

525
00:30:31,720 --> 00:30:34,920
Speaker 4: it looks like five. But you should know that there

526
00:30:34,960 --> 00:30:39,640
Speaker 4: are I believe, at least three dozen appointees of Republican

527
00:30:39,760 --> 00:30:43,120
Speaker 4: president on the appeals courts who are eligible for senior

528
00:30:43,160 --> 00:30:46,160
Speaker 4: status and could take it. Some of those go back

529
00:30:46,240 --> 00:30:49,040
Speaker 4: quite a distance, and so it's not clear that they

530
00:30:49,080 --> 00:30:51,240
Speaker 4: will do that. But you know, I would expect some

531
00:30:51,280 --> 00:30:54,800
Speaker 4: of that to happen during Trump's time, but it's hard

532
00:30:54,840 --> 00:30:57,480
Speaker 4: to estimate how many of those three dozen or so

533
00:30:58,080 --> 00:30:59,440
Speaker 4: will actually do.

534
00:30:59,600 --> 00:31:03,840
Speaker 2: So what about district court nominations. How has Biden done?

535
00:31:04,200 --> 00:31:06,800
Speaker 4: He's done very well. I mean, he has one hundred

536
00:31:06,800 --> 00:31:10,880
Speaker 4: and seventy three now on the floor. I think Republicans

537
00:31:10,920 --> 00:31:13,600
Speaker 4: have agreed to seven who will get votes and they

538
00:31:13,600 --> 00:31:16,840
Speaker 4: will be confirmed pretty certain. And then they are five

539
00:31:17,120 --> 00:31:20,120
Speaker 4: more who were voted at a committee just last week

540
00:31:20,680 --> 00:31:24,240
Speaker 4: and they are likely to be confirmed, which would bring

541
00:31:24,480 --> 00:31:27,640
Speaker 4: his total to something like one hundred and eighty five

542
00:31:27,760 --> 00:31:30,640
Speaker 4: at the district level. And then his total number of

543
00:31:30,640 --> 00:31:34,200
Speaker 4: appointees would look something like two thirty or two thirty

544
00:31:34,240 --> 00:31:36,800
Speaker 4: one to thirty two, depending on how you count it.

545
00:31:37,080 --> 00:31:40,920
Speaker 4: And then there are two California nominees who had a

546
00:31:41,000 --> 00:31:45,640
Speaker 4: hearing last Wednesday, and they might come forward and be

547
00:31:45,760 --> 00:31:51,640
Speaker 4: confirmed because their mainstream judges they had a relatively good

548
00:31:51,680 --> 00:31:54,680
Speaker 4: hearing and they're quite moderate. So then I think the

549
00:31:54,840 --> 00:31:58,120
Speaker 4: estimate of the number that Trump will have on the

550
00:31:58,160 --> 00:32:03,000
Speaker 4: district bench when he comes in on twenty is somewhere

551
00:32:03,160 --> 00:32:05,680
Speaker 4: in the thirties. So that's what it looks like.

552
00:32:06,200 --> 00:32:08,920
Speaker 2: Well, this time, Trump won't have the build up of

553
00:32:09,400 --> 00:32:14,320
Speaker 2: vacancies that Mitch McConnell was able to give him by

554
00:32:14,320 --> 00:32:21,840
Speaker 2: withholding confirmations of President Obama's nominees, including his Supreme Court nominee.

555
00:32:22,000 --> 00:32:24,960
Speaker 2: Thanks so much, Carl. That's Professor Carl Tobias of the

556
00:32:25,040 --> 00:32:28,160
Speaker 2: University of Richmond Law School. And that's it for this

557
00:32:28,280 --> 00:32:31,000
Speaker 2: edition of The Bloomberg Law Show. Remember you can always

558
00:32:31,040 --> 00:32:33,960
Speaker 2: get the latest legal news on our Bloomberg Law Podcast.

559
00:32:34,240 --> 00:32:37,280
Speaker 2: You can find them on Apple Podcasts, Spotify, and at

560
00:32:37,440 --> 00:32:42,440
Speaker 2: www dot bloomberg dot com slash podcast Slash Law. I'm

561
00:32:42,520 --> 00:32:44,960
Speaker 2: June Grosso and you're listening to Bloomberg