Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: I'm gonna shake up the bag, draw the lottery tickets,
Speaker 2: and you'll be called up accordingly. We're gonna line you
Speaker 2: up that's right where this gentleman is standing, and we'll
Speaker 2: bring you into the building. There was a lottery to
Speaker 2: get the hottest ticket in town entry to the Los
Speaker 2: Angeles Courthouse for the Menendez brothers' first court appearance in decades.
Speaker 2: People lined up more than five hours before the hearing
Speaker 2: to get one of the coveted sixteen seats available to
Speaker 2: the public.
Speaker 1: Okay, last four numbers of six nine three two.
Speaker 2: Eric and Lyle Menendez have been in prison since nineteen
Speaker 2: eighty nine, sentenced to life without parole for the murders
Speaker 2: of their parents. The case captivated the country in the
Speaker 2: nineteen nineties and is doing so once again thanks to
Speaker 2: the recent releases of the Netflix dram Up Monsters and
Speaker 2: a documentary Lost the discovery of new evidence which could
Speaker 2: support Eric's claims that he was sexually abused by his father.
Speaker 2: Technical problems prevented the brothers from appearing virtually from prison,
Speaker 2: and the hearing lasted only an hour because The judge
Speaker 2: said he needed time to review seventeen boxes of evidence
Speaker 2: and also wanted to give the newly elected DA time
Speaker 2: to weigh in on the case, but he did allow
Speaker 2: the brothers two elderly aunts to take the stand, and
Speaker 2: they made an impassioned plea for their nephews for lease.
Speaker 2: Ninety three year old Joan Anderson vander Mullen Kiddymanendez. His sister,
Speaker 2: spoke outside the courthouse, Ben said.
Speaker 1: She give situation, what can a kin do when.
Speaker 3: I can't stand it?
Speaker 2: A wrinkle in their case could be the election of
Speaker 2: the new La County District Attorney Nathan Hockman. He's not
Speaker 2: adopting Gascon's recommendation and told ABC News he wants to
Speaker 2: review the case and the law and decide for himself.
Speaker 2: There's a cloud over that credibility. Is it a just
Speaker 2: decision or was it just a political ploy? Joining me
Speaker 2: is Palm Beach County State Attorney Dave Ahrenberg Dave. The
Speaker 2: hearing yesterday was over a habeas corpus petition the Menendez
Speaker 2: brothers filed in May of twenty twenty three. That's basically
Speaker 2: a request for the court to consider whether someone is
Speaker 2: being lawfully held tell us about the Menendez brothers Habeas
Speaker 2: corpus petition.
Speaker 3: The Habeas corpus petition will focus on the new evidence
Speaker 3: that came out about sexual abuse from Menendez brother's father. Remember,
Speaker 3: there was evidence that the Menendez brother's father had molested
Speaker 3: a member of the boy band Menudo. And there's also
Speaker 3: a letter that actually written by them. Men and his
Speaker 3: brothers too irrelative about their sexual abuse. None of this
Speaker 3: was admitted into evidence in their second trial, which led
Speaker 3: to a guilty verdict. So they rid of habeas corpuses,
Speaker 3: tried to get a court to consider this new evidence
Speaker 3: and to reverse the conviction or to set them free.
Speaker 2: So this is separate and apart from the resentencing recommendation
Speaker 2: that the then LA District Attorney made last month. The
Speaker 2: judge here will take different factors into consideration.
Speaker 3: Right, there are three channels the men and his brothers
Speaker 3: will pursue to get their release. One is the habeas
Speaker 3: corpus petition. So the number two would be the resentencing.
Speaker 3: That's what the former DA, the one who's outgoing, recommended.
Speaker 3: He wanted them to re sentence because of good behavior
Speaker 3: in prison to fifty years and then based on the
Speaker 3: parole rules at the time, they'd be out already, but
Speaker 3: it's still would have to go to the Parle Board.
Speaker 3: So that's number two. And the third would be clemency
Speaker 3: by the governor, which would still involve the Parole Board,
Speaker 3: but Governor Gavin Newsom has not said web he would
Speaker 3: agree to it. So there are three ways that Menendez
Speaker 3: brothers could be released early, and at this point it's
Speaker 3: hard to say which one they will pursue the most aggressively.
Speaker 3: They would probably have the best chance, I think inclemency
Speaker 3: from the governor because of all the attention that's been paid,
Speaker 3: because the new DA does not seem as keen on
Speaker 3: resentencing or letting them out early as the outgoing DA.
Speaker 2: Yeah, the new DA said that he's going to review
Speaker 2: the extensive prison records, transcripts of the two trials, and
Speaker 2: voluminous exhibits, as well as consult with prosecutors, law enforcement,
Speaker 2: defense counsel, and victim family members. So at the very least,
Speaker 2: that sounds like a long process. Can he just reverse
Speaker 2: what the former DA recommended?
Speaker 3: Yes, Because the DA that is outgoing Gasson was just
Speaker 3: recommending that there be a resentencing. It's not a binding decision,
Speaker 3: because that's up to the court to make the decision.
Speaker 3: The new DA can come in and say I reject
Speaker 3: that recommendation. We do not support an early release, we
Speaker 3: do not support a new trial, and so that would
Speaker 3: be very powerful because the court takes into account what
Speaker 3: the DA's office thinks. And that's why I think perhaps
Speaker 3: of the three options habeas corpus petition are resentencing by
Speaker 3: way of the DA, and clemency, that it's clemency through
Speaker 3: the governor that may be the best route for the
Speaker 3: Menendez brothers to get out early.
Speaker 2: The Governor apparently is taking a weight and see attitude.
Speaker 2: Here's what he said on his podcast.
Speaker 1: Last week, the Menendez file, which is now a little
Speaker 1: thicker because we did deeper research in the last ten days.
Speaker 1: That's all on my desk. I think it's the right
Speaker 1: thing to do to hear from the new DA before
Speaker 1: I make any decisions.
Speaker 2: That doesn't sound particularly promising either.
Speaker 3: Well, he is giving the right amount of deference to
Speaker 3: the new DA, And if the new DA comes out
Speaker 3: and says I don't support resentencing, the Governor can still
Speaker 3: say I'm going to grant clemency. But it would really
Speaker 3: be big footing the new DA who was just elected
Speaker 3: by the people overwhelmingly to say, it doesn't matter what
Speaker 3: you think, I'm going to let him out through clemency.
Speaker 3: So I think that Governors's doing the right thing in
Speaker 3: saying that no matter what I do, at least I
Speaker 3: owe the new DA and the voters who elected him
Speaker 3: the respect to hear what they say first.
Speaker 2: I mean, the Menandez Brothers case wasn't really one of
Speaker 2: the election issues, was it.
Speaker 3: Well, yeah, well you can't avoid it. It's a high
Speaker 3: profile case. So I think one of the reasons why
Speaker 3: the outgoing DA did what he did was that he
Speaker 3: knew he had an election around the corner. I mean,
Speaker 3: the timing would tell you that that had to be
Speaker 3: a consideration, right. He could have waited until after the
Speaker 3: election to announce the decision, but announced it just shortly
Speaker 3: before the election. And similarly, I think the voters took
Speaker 3: that into consideration. Even though it seems like there's a
Speaker 3: lot of momentum to release the brothers early, I do
Speaker 3: think that this was one of the issues. Now, the
Speaker 3: clear issue though that we're hearing from the voters in
Speaker 3: that area where they were thick of the loose policies
Speaker 3: of the DA were seen that he was favoring defendants
Speaker 3: over victims in many cases, and they wanted a more
Speaker 3: tough on crime district attorney, and they got it.
Speaker 2: Let's return to the habeas corpus petition. The hearing has
Speaker 2: been adjourned until January thirtieth. Dave, you're a prosecutor, does
Speaker 2: it seem as if there is enough evidence new evidence
Speaker 2: for the judge to grant the petition?
Speaker 3: I don't think so. As a prosecutor, I think that
Speaker 3: there may be grounds for a new trial based on
Speaker 3: the new evidence when it comes to the murder of Jose,
Speaker 3: the father, But when it comes to murder of the mother,
Speaker 3: there's nothing that would change that the mother, Kitty was
Speaker 3: not credibly accused at the trial of sexual abuse or
Speaker 3: there's not even evidence that's come out that shows that
Speaker 3: that's what motivate that they were being victimized by both parents.
Speaker 3: And so even if you make the case that Jose
Speaker 3: was a bad guy who molested his children, then how
Speaker 3: do you still explain Kitty. People say, well, she knew
Speaker 3: of the abuse and let it happen. But even that,
Speaker 3: even if you could show that which is not clear,
Speaker 3: then at best. Maybe that warrants a new trial, not
Speaker 3: an early release. You remember, the way they massacred the
Speaker 3: two parents was that they went over their parents' house.
Speaker 3: The parents were sitting with their backs turned watching TV,
Speaker 3: eating ice cream, and the two brothers, who planned this
Speaker 3: extensively blew them away with shotguns. But Kitty did not
Speaker 3: die right away. She was crawling away, trying to get
Speaker 3: away when Lyle went back outside to reload the shotgun
Speaker 3: and then returned to do the final act. And there
Speaker 3: was so much blood, so much violence, that police thought
Speaker 3: it was a mob hit. So I'm not moved on
Speaker 3: getting an early release for these brothers based on what
Speaker 3: they did to Kitty. Maybe a new trial, but nothing
Speaker 3: more than that.
Speaker 2: So the judge handling the havieous petition could order a
Speaker 2: new trial.
Speaker 3: Yeah, the judge and the habeas could say that the
Speaker 3: tenant's rights were violated. There was evidence that should have
Speaker 3: been introduced that wasn't introduced a trial. Remember, the judge
Speaker 3: at the time refused to introduce this evidence of abuse.
Speaker 3: And now there's new evidence. So the judge couldn't say, yes,
Speaker 3: we're going to reverse the conviction, overturn it and set
Speaker 3: up for a new trial. The judge could actually even
Speaker 3: go further and say he's going to let the brothers out,
Speaker 3: so we'll see what happens. But even if that doesn't work,
Speaker 3: they could go to the other two routes as we mentioned,
Speaker 3: the resentencing by way of the local DA and perhaps
Speaker 3: clemency from the governor.
Speaker 2: The resentencing by way of the local DA. That would
Speaker 2: also have to be approved by a judge, a different
Speaker 2: judge from the court Miss judge.
Speaker 3: It gets a little complicated, so which judge these motions
Speaker 3: are filed in front of, But the resentencing first goes
Speaker 3: through the local DA to make a recommendation, and then
Speaker 3: it's up to the judge. And I'm not sure if
Speaker 3: it is it seem judge or if it a different
Speaker 3: judge that would hear the resentencing requests. But the reason
Speaker 3: why the DA, the outgoing DA, made the decision to
Speaker 3: seek a resentencing was not because of the new evidence
Speaker 3: of sexual abuse, but because the two brothers were model prisoners.
Speaker 3: They were on good behavior, and to me, that's not
Speaker 3: a good enough reason to set aside to life in
Speaker 3: prison sentences. Sentence to life in prison should not get
Speaker 3: set aside because the inmates decided to be in good
Speaker 3: behavior while in prison. That should get them privileges in prison,
Speaker 3: but not early release.
Speaker 2: But what district Attorney George Gascoon was going to do
Speaker 2: is legal.
Speaker 3: Right, Well, the districttorney can recommend anything, but remember this
Speaker 3: district attorney got voted out of office largely because he
Speaker 3: was seen as soft on crime. So when he goes
Speaker 3: in front of a court and says, your honor, let
Speaker 3: these brothers out early because they behaved well in prison,
Speaker 3: I think that is something that a judge will reject,
Speaker 3: especially because the community has let their voice be known
Speaker 3: that they don't want soft on crime prosecutors. They shouldn't
Speaker 3: have people who were sentenced for grizzly murders given life
Speaker 3: sentences to get out years early because they were acting
Speaker 3: nicely while they're in prison.
Speaker 2: Dave, most of the family members of the Menendez brothers
Speaker 2: support their release. Where does that fit into the decisions
Speaker 2: that are being made by judges and state officials about
Speaker 2: their release.
Speaker 3: Well, the victims' families will be heard, and that is
Speaker 3: a consideration. The fact that most family members support the
Speaker 3: brother's release will be a factor in the judge's decision.
Speaker 3: In the DA's recommendation and in the governor's decision on clemency,
Speaker 3: but it's not unanimous. There's at least one family member
Speaker 3: who does not want them released, so it's not unanimous,
Speaker 3: but it is a factor that most do support their release.
Speaker 2: The next hearing before the judge and the Habeas Corpus
Speaker 2: petition will be on January thirtieth and thirty first, and
Speaker 2: their attorney, Mark Garrigo said, we hope that by the
Speaker 2: end of that hearing or sometime sooner, they'll be released.
Speaker 2: Is that too optimistic?
Speaker 3: Yes, They're not going to be released before the Habeas
Speaker 3: Corpus hearing. The only way that could happen is if
Speaker 3: Ditgomery gives clemency and then it goes before the pro bore.
Speaker 3: That's not going to happen. And the fact that we
Speaker 3: have a new DA and we have a delay and
Speaker 3: now it's going to slow things down. So the momentum
Speaker 3: that was there to release the Menandez brothers asap is
Speaker 3: now slowed because of the election of the new DA.
Speaker 3: And I think it's a good thing because before we
Speaker 3: let the passions of the community who's seen movies and
Speaker 3: TikTok videos about these brothers rule the day. Maybe we
Speaker 3: need to take a step back and reassess what they
Speaker 3: actually did and why they did it, and how after
Speaker 3: they did it they went on a shopping spree and
Speaker 3: went to NBA games, sitting in the front row and
Speaker 3: live the life they've always wanted to live. It seemed
Speaker 3: like at the time, and I stand by it, that
Speaker 3: this was more financial crime. They wanted to inherit the wealth.
Speaker 3: They thought they were going to be written out of
Speaker 3: the will. They wanted their money, and they got what
Speaker 3: they wanted and lied about it until they were caught,
Speaker 3: and now they've been in prison ever since.
Speaker 2: So the next thing to happen in the case will
Speaker 2: either be the full hearings on January thirtieth and thirty
Speaker 2: first on the Habeas Corpus petition, or a decision by
Speaker 2: the New DA about how to handle the case and
Speaker 2: whether to recommend resentencing and release. So let's turn out
Speaker 2: to other legal matters. I wanted to get your reaction
Speaker 2: to the Special Council yesterday dropping charges against Donald Trump
Speaker 2: in both the election interference case and the classified documents case.
Speaker 2: I mean, he really had no choice because it was
Speaker 2: going to happen once tru gotten off as anyway, what's
Speaker 2: the downside and what's the upside if any.
Speaker 3: Well, it was inevitable once Trump won the election that
Speaker 3: they would have to dismiss the charges, but the keywords
Speaker 3: in the dismissal were without prejudice. That means you can
Speaker 3: still refile it, and that would take perhaps January twenty
Speaker 3: twenty nine, So who knows what will happen then. But
Speaker 3: even if they do refile it, the former president and
Speaker 3: soon to be president could still try to pardon himself,
Speaker 3: or he could also claim that under the statute of limitations,
Speaker 3: you can't refile the charges this many years later. Then
Speaker 3: the question is whether the course would allow a postponement
Speaker 3: of the charges because of the internal Department of Justice
Speaker 3: rule that says you cannot diet a sitting president. There
Speaker 3: are a lot of moving parts here, but it does
Speaker 3: seem like Trump is above the law to them because
Speaker 3: these cases I think are very unlikely to ever amount anything. Now.
Speaker 3: The only thing left will be his sentencing in New York,
Speaker 3: which will still be set after he leaves office. And
Speaker 3: then there's a Georgia case, which who knows what's going
Speaker 3: to happen there.
Speaker 2: That seems really stuck and who knows if that will
Speaker 2: go forward at all. So there is on record now
Speaker 2: a decision by a federal judge, Eileen Cannon that the
Speaker 2: appointment of the Special Council was unconstitutional, and the Special
Speaker 2: Council is trying to move forward with the appeal of
Speaker 2: that in the case against Trump's two co defendants. Do
Speaker 2: you think that will work because once Trump comes into office,
Speaker 2: I assume he's going to have that case against the
Speaker 2: co defendants dismissed.
Speaker 3: Well, the case against the two co defendants are allowed
Speaker 3: to is allowed to continue because the Department of Justice
Speaker 3: policy just says, you cannot indict a sitting president. You
Speaker 3: can go after the co defendants, and that is a
Speaker 3: way a vehicle for Jack Smith to overturn the egregious
Speaker 3: ruling by Judge Cannon that the Special Council appointment of
Speaker 3: Jack Smith was unconstitutional. I think he will win on
Speaker 3: appeal going after Trump. I don't think it's going to matter. Also,
Speaker 3: the next Attorney General, Pam Bondi, is going to want
Speaker 3: to use special counsels, and so I think she will
Speaker 3: go ahead and just move forward with special counsels like that.
Speaker 3: Judge Canon ruly didn't happen.
Speaker 2: As you mentioned. Trump has nominated Pam Bondi, the former
Speaker 2: Attorney general for Florida, to be the next attorney general.
Speaker 2: And I know you know her, so tell us about her.
Speaker 3: Well. I worked with her first. I ran against her
Speaker 3: in twenty ten for attorney general. She won, I lost.
Speaker 3: She hired me as her drugs Are afterwards, and it
Speaker 3: does tell you about her that she would reach across
Speaker 3: party lines to appoint a Democrat and got a lot
Speaker 3: of criticism from Republican leaders for doing that. I was
Speaker 3: her drugs Are. I went after the opioid epidemic, the
Speaker 3: pill mills, and we were able to shut them down
Speaker 3: and save lives in Florida. So I have a lot
Speaker 3: of respect for her for that. And as far as
Speaker 3: a person, she's very well liked. She's a very likable,
Speaker 3: outgoing person. She will tether her to say, to the
Speaker 3: rule of law. She has no Matt Gates. She's not
Speaker 3: going in there to walk out Anthony Fausti and Adam
Speaker 3: Shift and handcuffs. Although I do think she will start
Speaker 3: investigations into the investigators, but got to be careful when
Speaker 3: you do that. Remember what happened to John Durham. He
Speaker 3: was humiliated when he investigated the investigators, he came up
Speaker 3: with small ball, low level charges and got quick acquittaled
Speaker 3: and embarrassment for it. So that's a lesson learned.
Speaker 2: She has publicly championed Trump's baseless claims of voter fraud,
Speaker 2: that there was voter fraud in a twenty twenty presidential election.
Speaker 2: She said this on Fox News last August because the
Speaker 2: deep state during the last term for President Trump, they
Speaker 2: were hiding in the shadows. But now they have a
Speaker 2: spotlight on them and they can all be investigated. The
Speaker 2: house needs to be cleaned out. That sounds a little
Speaker 2: conspiratorial and perhaps indicates a witch hunt maybe coming up.
Speaker 3: Yeah, that's news rhetoric, that's political rhetoric. But I've seen
Speaker 3: her up close the prosecutor, and there's a difference between
Speaker 3: what you see on Fox News as a political commentator
Speaker 3: in what you see as a lawyer's a prosecutor. She's
Speaker 3: a twenty year prosecutor. She's an eight year attorney general
Speaker 3: in the state of Florida. I do not expect her
Speaker 3: to trump up to use the term charges against the
Speaker 3: president elect's enemies just to please him. I think that
Speaker 3: she will investigate the investigators, which will open up a
Speaker 3: can of worms. She'll do things that will be controversial
Speaker 3: on that front, but overall, I do think she will
Speaker 3: be tethered to the rule of law, and she'll do
Speaker 3: things that are popular, like cracking down on illicted fentanyl
Speaker 3: at the border and going after prohamas supporters on college campuses.
Speaker 3: I think that hopefully she will stay closer to that
Speaker 3: in her role as prosecutor and left into revenge for
Speaker 3: Donald Trump. The person who was going to be Trump's
Speaker 3: restribution is Matt Gates, and he's no longer at the appointee.
Speaker 2: When she was Florida AG, she tried to dismantle Obamacare,
Speaker 2: the provision that's very popular that bans health insurance companies
Speaker 2: from charging more to customers with pre existing conditions. I mean,
Speaker 2: it's hard for me to understand the Republicans continuing efforts
Speaker 2: to dismantle Obamacare, which is so popular, including among their supporters,
Speaker 2: But that is something she could get involved with.
Speaker 3: You know, I don't remember exactly what was done then.
Speaker 3: I think she joined with other attorneys general to try
Speaker 3: to overturn all of Obamacare, and at the time Obamacare
Speaker 3: was not as popular as as today today. If they
Speaker 3: try to do it, it will be a severe backlash. But yes,
Speaker 3: if you're going to try to overturn our system of healthcare,
Speaker 3: you got to have something to replace it with. And
Speaker 3: Trump says he'll have a replacement in two weeks at least.
Speaker 3: He's been saying that for the last eight years.
Speaker 2: The confirmation process sounds like it will be much easier.
Speaker 3: Yeah. I know her, and you know I know what
Speaker 3: kind of person she is. And although we disagree with politics,
Speaker 3: we do we have different ideologies. He's always been fair
Speaker 3: to me. She's always been selling. I have worked well
Speaker 3: with and she's worked well with Democrats. She's never been
Speaker 3: a big partisan. She is loyal to Donald Trump. It's
Speaker 3: clear she is loyal to Donald Trump. I'm not going
Speaker 3: in this with rose colored glasses. But if you're a Democrat,
Speaker 3: Tally Yates is not walking through that door. If you're
Speaker 3: a Democrat, I think this is the best nominee that
Speaker 3: you're going to get from Donald Trump. And if she's
Speaker 3: not the nominee, then yeah, maybe you'll get Rurie Giuliani
Speaker 3: or the MyPillow guy with a law degree.
Speaker 2: You don't want that, No, you don't, Thanks so much.
Speaker 2: Dave always a pleasure. That's bomb Beach County State Attorney
Speaker 2: Dave Ehrenberg coming up next on the Bloomberg Law Show.
Speaker 2: Senate Democrats are being criticized for making a deal with
Speaker 2: Republicans to abandon appellate judicial nominees in favor of trial
Speaker 2: court nominees. I'm June gross when you're listening to Bloomberg.
Speaker 2: Senate and Democrats have struck a deal with Republicans to
Speaker 2: abandon four of President Biden's nominees for appellate courts in
Speaker 2: order to advance his nominees for trial courts. The deal
Speaker 2: comes after Republicans had employed stalling tactics this week to
Speaker 2: complicate Democratic efforts to confirm as many of Biden's judicial
Speaker 2: picks as possible before Republicans gained control of the White
Speaker 2: House and Senate in January. Many including progressives and a
Speaker 2: Senator on the Judiciary Committee, are critical of the deal
Speaker 2: because the appellate courts are one step away from the
Speaker 2: Supreme Court and policy decisions are made by them For
Speaker 2: many states. The agreement derails Biden's efforts to place judges
Speaker 2: on four federal circuit courts before President elect Donald Trump
Speaker 2: returns to the White House. Joining me is an expert
Speaker 2: in the federal judiciary. Carl Tobias, a professor at the
Speaker 2: University of Richmond Law School, tell us about this agreement
Speaker 2: that Senate Democrats made with Senate Republicans.
Speaker 4: Carl, Well, it looks like Democrats promised that they would
Speaker 4: not move on the four Appellate Court nominees who are
Speaker 4: out of committee and on the floor and awaiting confirmation
Speaker 4: debates and votes. In return, Republicans agreed not to obstruct
Speaker 4: a number of district nominees. That number looks like at
Speaker 4: least seven, but maybe more like a dozen, and so
Speaker 4: those are the contours of the deal. So that's where
Speaker 4: things stand right now and are not likely to change
Speaker 4: because both sides have agreed to this. But of course
Speaker 4: there's been a lot of criticism from especially the Washington
Speaker 4: DC public interest groups of the deal because people are
Speaker 4: saying that just wasn't a very good deal, and many
Speaker 4: observers believe that the nominees are entitled to, or deserve
Speaker 4: or warrant or merit an up or down vote. So
Speaker 4: we'll see what happens. But most of those four people
Speaker 4: are well qualified and relatively mainstream, and so it seems
Speaker 4: as if at least three of them would have been confirmed,
Speaker 4: and maybe all four of them.
Speaker 2: It doesn't make much sense to me, considering that the
Speaker 2: circuit courts are one step away from the Supreme Court
Speaker 2: and are so much more important than the trial courts.
Speaker 4: That's exactly right. I mean, both sides, Republicans and Democrats,
Speaker 4: act that way, so it must be true because of
Speaker 4: course they cover multiple states, they make more policy, they're
Speaker 4: fewer of those judges, and as you suggest, they're one
Speaker 4: level below the US Supreme Court, and so both sides
Speaker 4: know how critical those are. And we saw that in
Speaker 4: Trump's years with fifty four, which I think was a
Speaker 4: record for one term of a presidency. And then Biden
Speaker 4: has confirmed forty five and was hoping to eclipse Trump,
Speaker 4: but that isn't possible, though he could have come quite
Speaker 4: close with forty nine if the four on the floor
Speaker 4: now had received votes.
Speaker 2: Senator Mazie Herona, who's a Judiciary Committee member, said these
Speaker 2: nominees emerged from hours long hearings where many have faced
Speaker 2: unfounded personal and professional tax from Republicans on the Judiciary Committee.
Speaker 2: The circuit courts are one step removed from the Supreme Court,
Speaker 2: which makes these nominees especially critical. She's a member of
Speaker 2: the Judiciary Committee who makes these deals.
Speaker 4: Well, it sounds like this was a deal made by
Speaker 4: Senator Schumer with Minority Leader to be soon on Thursday,
Speaker 4: I believe after the obstruction by the Republicans of the
Speaker 4: nominee at the district level. I think it was Schumer's decision,
Speaker 4: perhaps in consultation with Senator Durbin the Charity Sherry Committee,
Speaker 4: But that's not entirely clear, and there are not many
Speaker 4: details about it. The most I think telling is a
Speaker 4: quote from a spokesperson for him saying the trade was
Speaker 4: four circuit nominees all lacking the votes to get confirmed,
Speaker 4: which is contested by many for more than triple the
Speaker 4: number of additional district judges moving forward. That summarizes what
Speaker 4: the Shumer staffers and I think Schumern himself thought. But
Speaker 4: many people have criticized that it's unfortunate, especially personally and
Speaker 4: professionally for the nominees who had ruling hearings, and Senator
Speaker 4: Rono is forret when she describes it that way and
Speaker 4: had waited a long time, and the courts need their judges.
Speaker 4: It's very unfortunate. Did that happen.
Speaker 2: I understand that judges James Winn of the Fourth Circuit
Speaker 2: and Jane Brend's letter Stranch of the Sixth Circuit could
Speaker 2: still walk back theirs. I mean they were only going
Speaker 2: to semi retire. They weren't going to stop hearing cases.
Speaker 4: That's correct. They were saying that they would take senior
Speaker 4: status and have probably a half case loads, and they
Speaker 4: satisfied the rule of eighties that they were sixty five
Speaker 4: and had fifteen years of service and were prepared to
Speaker 4: do that upon the appointment of a successor. But as
Speaker 4: you suggest, it is not set in stone until it
Speaker 4: actually happens. And so there is this sort of custom
Speaker 4: among especially appellate judges, which I think goes back to
Speaker 4: about a decade ago when a number of Republican appointees
Speaker 4: started doing that because they didn't want a Democratic president
Speaker 4: to replace them depending on who was going to win
Speaker 4: the election. And so it's come forward and as the
Speaker 4: process has become increasingly partisan to some extent, the judges
Speaker 4: are more sense to that as well. And so we're
Speaker 4: seeing that with Republican appointees or appointings of Republican president
Speaker 4: wanting to be sure that they're replaced by another Republican
Speaker 4: president and pretty much the same for Democrats. And that's
Speaker 4: where we are. And so that's what happened. So I
Speaker 4: don't know what those two judges are likely to do,
Speaker 4: but it's possible. And there's already a district judge in
Speaker 4: Ohio who has done the same thing, But it is
Speaker 4: certainly possible. And the deal then looks, as a number
Speaker 4: of people have said, like a better deal. In fact,
Speaker 4: that was the trade to the main seat for Judge Kayata,
Speaker 4: who originally took senior status, just as the two other judges,
Speaker 4: the six Circuit and Fourth Circuit judges did with a
Speaker 4: to be determined designation but then converted to a current vacancy.
Speaker 4: And then, of course the third Circuit seat was Judge Greenway,
Speaker 4: and his vacancy is a current vacancy and so will
Speaker 4: fall to Trump as well as a Kyata one in Maine,
Speaker 4: the first Circuit, in the third circuit.
Speaker 2: Let's talk about the ones that are definite, the third
Speaker 2: Circuit and the first Circuit. What would that do if
Speaker 2: Trump gets to appoint another judge to those circuits. I mean,
Speaker 2: the first Circuit is basically all Democrat appointed judges right now.
Speaker 4: So will there be any flipping, Well, it certainly won't
Speaker 4: in the first because I think Biden has named just
Speaker 4: about the entire cohort of active judges. Is the smallest
Speaker 4: appeals court in the country. It only has six authorized
Speaker 4: judge ships who are active status, and I believe he's
Speaker 4: appointed five or four that will not flip. The third circuit,
Speaker 4: I believe is closer, and it might be that if
Speaker 4: it's all to Trump to fill Greenway's vacancy, that would
Speaker 4: mean that I think they would be tied. That's an
Speaker 4: important court, of course, and of course the nominee a deal.
Speaker 4: Mungu was extremely well qualified but also belified by Republican
Speaker 4: senators in his hearing, and it took fifteen months to
Speaker 4: get to this point.
Speaker 2: What were their claims against him? Was it that he
Speaker 2: was anti Semitic?
Speaker 4: There were questions about that, questions about whether he celebrated
Speaker 4: nine to eleven in other pretty disgusting questions that were
Speaker 4: asked of him. Also, he sat on a committee that
Speaker 4: advised students at Rutgers Law School, and he said that
Speaker 4: you know, there were hardly any meetings of that group
Speaker 4: and he had very little to do with the group
Speaker 4: he agreed to be a board member. They staged some
Speaker 4: programs that Republicans thought were anti American, if you will,
Speaker 4: but much of that was not really very well validated.
Speaker 4: He did get out of the midtee on a party
Speaker 4: line vote, but never had a four vote, and neither
Speaker 4: did the others.
Speaker 2: Trump made fifty four appellate appointments forty five. How many
Speaker 2: more appellet appointments do you think besides these four that
Speaker 2: we're talking about now, how many more do you think
Speaker 2: can come up in Trump's term that he could flip
Speaker 2: more circuits?
Speaker 4: Well, that's a really good question. The way I see
Speaker 4: it right now, if you're counting the numbers, there is
Speaker 4: a Delaware vacancy that will come open on January fifteen.
Speaker 4: Judge Kent Jordan is retiring, and so there's that, and
Speaker 4: then the four we've been talking about, so right now
Speaker 4: it looks like five. But you should know that there
Speaker 4: are I believe, at least three dozen appointees of Republican
Speaker 4: president on the appeals courts who are eligible for senior
Speaker 4: status and could take it. Some of those go back
Speaker 4: quite a distance, and so it's not clear that they
Speaker 4: will do that. But you know, I would expect some
Speaker 4: of that to happen during Trump's time, but it's hard
Speaker 4: to estimate how many of those three dozen or so
Speaker 4: will actually do.
Speaker 2: So what about district court nominations. How has Biden done?
Speaker 4: He's done very well. I mean, he has one hundred
Speaker 4: and seventy three now on the floor. I think Republicans
Speaker 4: have agreed to seven who will get votes and they
Speaker 4: will be confirmed pretty certain. And then they are five
Speaker 4: more who were voted at a committee just last week
Speaker 4: and they are likely to be confirmed, which would bring
Speaker 4: his total to something like one hundred and eighty five
Speaker 4: at the district level. And then his total number of
Speaker 4: appointees would look something like two thirty or two thirty
Speaker 4: one to thirty two, depending on how you count it.
Speaker 4: And then there are two California nominees who had a
Speaker 4: hearing last Wednesday, and they might come forward and be
Speaker 4: confirmed because their mainstream judges they had a relatively good
Speaker 4: hearing and they're quite moderate. So then I think the
Speaker 4: estimate of the number that Trump will have on the
Speaker 4: district bench when he comes in on twenty is somewhere
Speaker 4: in the thirties. So that's what it looks like.
Speaker 2: Well, this time, Trump won't have the build up of
Speaker 2: vacancies that Mitch McConnell was able to give him by
Speaker 2: withholding confirmations of President Obama's nominees, including his Supreme Court nominee.
Speaker 2: Thanks so much, Carl. That's Professor Carl Tobias of the
Speaker 2: University of Richmond Law School. And that's it for this
Speaker 2: edition of The Bloomberg Law Show. Remember you can always
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Speaker 2: June Grosso and you're listening to Bloomberg