WEBVTT - Judge Shopping & Sean 'Diddy' Combs' Raids 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:10.640 --> 0:00:14.600 Judge shopping. The term is pretty much self explanatory, and 0:00:14.640 --> 0:00:18.079 it's come up repeatedly in recent years. In Texas As, 0:00:18.120 --> 0:00:22.680 Republican attorneys general and conservative litigants have filed challenges to 0:00:22.760 --> 0:00:27.640 Biden administration actions in divisions where one judge who's sympathetic 0:00:27.680 --> 0:00:32.440 to their causes is automatically assigned all cases. A lot 0:00:32.479 --> 0:00:36.920 of attention has focused on Federal Judge Matthew Kesmark, a 0:00:37.000 --> 0:00:42.280 Trump appointee and former conservative Christian legal activist who hears 0:00:42.400 --> 0:00:46.879 all civil matters filed at his Amarillo, Texas courthouse. His 0:00:47.040 --> 0:00:51.280 decision to issue a nationwide injunction suspending approval of the 0:00:51.320 --> 0:00:55.600 abortion pilm if A pristone merited disapproval from many of 0:00:55.640 --> 0:01:00.080 the justices at oral arguments last week, including Conservative of 0:01:00.360 --> 0:01:01.480 Justice Neil Gorsuch. 0:01:02.120 --> 0:01:05.920 We've had one might call it a rash of universal 0:01:05.959 --> 0:01:11.319 injunctions or vacatures in this case seems like a prime 0:01:11.400 --> 0:01:15.240 example of turning what could be a small lawsuit into 0:01:15.280 --> 0:01:23.600 a nationwide legislative assembly on an FDA rule or any 0:01:23.640 --> 0:01:24.840 other federal government action. 0:01:25.959 --> 0:01:30.319 The federal judiciary's Administrative Arm approved a new policy last 0:01:30.360 --> 0:01:34.600 month aimed at curbing judge shopping by litigants who file 0:01:34.720 --> 0:01:40.680 lawsuits that have nationwide or statewide implications in single judge divisions, 0:01:41.040 --> 0:01:45.800 but just two days later, after a backlash from conservative senators, 0:01:46.160 --> 0:01:49.720 the conference issued a revision making it clear that the 0:01:49.760 --> 0:01:53.560 policy is just a recommendation and that they can't force 0:01:53.640 --> 0:01:56.760 district courts to follow it. Joining me is Alan Trammel, 0:01:56.880 --> 0:02:00.120 a law professor at Washington and Lee Law School, tell 0:02:00.200 --> 0:02:01.800 us about judge shopping. 0:02:01.880 --> 0:02:06.400 There's a difference between court shopping and judge shopping. So 0:02:07.080 --> 0:02:10.920 court shopping forum shopping more generally, is something that happens 0:02:10.960 --> 0:02:14.639 a lot. Lawyers and judges will often question whether that 0:02:14.960 --> 0:02:18.399 is a good practice, but in essence, it is part 0:02:18.400 --> 0:02:22.280 of a lawyer's responsibility to identify the court that is 0:02:22.360 --> 0:02:25.920 going to be most beneficial for a particular client's position 0:02:26.560 --> 0:02:28.919 that has been going on for a very very long time. 0:02:29.080 --> 0:02:32.959 And usually when you're thinking about that, you're thinking about 0:02:33.080 --> 0:02:35.960 whether there is going to be circuit law that is 0:02:36.000 --> 0:02:38.880 going to be most favorable to a particular person's client. 0:02:39.840 --> 0:02:43.240 It's a really different beast when you're thinking about actually 0:02:43.280 --> 0:02:47.000 picking the specific judge, not just the court and the 0:02:47.000 --> 0:02:48.880 body of the law that are going to govern a 0:02:48.880 --> 0:02:51.600 particular issue. And so we see this in a number 0:02:51.639 --> 0:02:55.080 of high profile situations. The myth of pristone litigation that 0:02:55.560 --> 0:02:58.639 ultimately led to oral arguments in the Supreme Court last 0:02:58.680 --> 0:03:02.160 week is really good example of that. You have challengers 0:03:02.160 --> 0:03:05.280 who are going not just to one specific circuit, not 0:03:05.360 --> 0:03:08.200 just to one specific district, but in essence choosing the 0:03:08.440 --> 0:03:11.600 very specific judge who at least in the first instance, 0:03:11.800 --> 0:03:14.720 is going to hear a challenge to a particular piece 0:03:14.720 --> 0:03:19.080 of legislation or a governmental policy. And that again strikes 0:03:19.120 --> 0:03:21.560 a lot of people as a very very different beast. 0:03:21.680 --> 0:03:25.320 Also, I mean you mentioned the mifipristone case and that 0:03:25.600 --> 0:03:31.600 Judge Matthew Kesmarrick, a Trump appointee formerly a conservative Christian 0:03:31.720 --> 0:03:36.400 legal activist involved in anti abortion cases, and he has 0:03:36.680 --> 0:03:42.280 issued major rulings blocking Biden administration policies in addition to 0:03:42.560 --> 0:03:43.800 the abortion pill. 0:03:44.240 --> 0:03:48.160 That is correct, and it is no secret that Judge 0:03:48.240 --> 0:03:53.880 Kasmark is the judge whom conservative activists and conservative litigators 0:03:54.400 --> 0:03:57.960 want to get their cases in frontop. I don't think 0:03:57.960 --> 0:04:02.400 that it's any surprise that this policy is in large 0:04:02.440 --> 0:04:07.000 parts stemming from this really aggressive selection of judge Kesmark 0:04:07.080 --> 0:04:10.040 to hear these kinds of challenges. In theory, it applies 0:04:10.080 --> 0:04:13.920 more broadly set a minority leader. Mitch McConnell decribed this 0:04:14.280 --> 0:04:20.320 as targeted ad litigation by conservative causes and conservative activists. 0:04:20.360 --> 0:04:22.839 But I think that there is a much broader problem, 0:04:22.920 --> 0:04:26.719 even if at this very specific snapshot in time, it 0:04:26.839 --> 0:04:30.080 is going to be felt most acutely in districts where 0:04:30.240 --> 0:04:33.720 there is a conservative judge who is hearing challenges by 0:04:33.800 --> 0:04:35.680 conservative litigators and activists. 0:04:36.000 --> 0:04:37.680 Tell us about that broader problem. 0:04:38.200 --> 0:04:42.520 It goes back to the difference between simply selecting the 0:04:42.600 --> 0:04:45.800 courts selecting the specific judge, because it does strike me 0:04:45.839 --> 0:04:49.279 as a difference in kind when you're selecting a court 0:04:49.400 --> 0:04:52.640 versus a judge, and the shoe can always be on 0:04:52.720 --> 0:04:54.960 the other foot. I mean, that's the thing that we 0:04:55.080 --> 0:04:58.400 always have to remember is even if today it is 0:04:58.960 --> 0:05:03.400 conservative activists who are targeting a particular conservative judge and 0:05:03.520 --> 0:05:06.640 bringing their cases in front of that specific judge, if 0:05:06.680 --> 0:05:10.200 there is a Republican president and you have liberal activists 0:05:10.279 --> 0:05:14.640 who are trying to challenge a particular policy by Trump 0:05:14.680 --> 0:05:19.000 administration or another conservative president, then You've got to be 0:05:19.080 --> 0:05:21.960 wary of whether you're going to be in a situation 0:05:22.200 --> 0:05:24.960 where progressives and liberals are going to be able to 0:05:25.000 --> 0:05:28.920 engage in this exact same kind of behavior that, if 0:05:28.960 --> 0:05:32.200 we zoom out, seems antithetical to the rule of law, 0:05:32.400 --> 0:05:36.240 which is supposed to be more neutral and not dependent 0:05:36.360 --> 0:05:39.760 on the specific judge hearing the case. It is true 0:05:39.960 --> 0:05:44.479 that there are not that many single judge districts where 0:05:44.880 --> 0:05:48.440 you have a progressive or a Democratic appointee the way 0:05:48.480 --> 0:05:51.680 that you have with AIG, for example, Judge Psmark right now. 0:05:52.120 --> 0:05:55.760 But that can change. That can change through congressional action 0:05:56.279 --> 0:05:59.080 and just through the evolving nature of the way that 0:05:59.120 --> 0:06:00.800 the judicial vacant these are created. 0:06:01.560 --> 0:06:05.080 What that brings to mind is that during the Trump administration, 0:06:05.880 --> 0:06:09.680 Republicans complained and now say, well, Democrats were doing the 0:06:09.720 --> 0:06:14.159 same thing. They were going to friendly districts in California. 0:06:14.320 --> 0:06:14.919 Is it the same? 0:06:16.000 --> 0:06:19.800 In some ways? It is different, because what you're dealing 0:06:19.880 --> 0:06:25.120 with here is not simply the phenomenon of progressive activists 0:06:25.160 --> 0:06:28.520 going to courts that tend to lean towards the left 0:06:28.839 --> 0:06:32.280 versus conservative activists going to courts that lean to the right. 0:06:32.839 --> 0:06:34.920 When you're thinking about what was going on during the 0:06:34.960 --> 0:06:39.080 Trump administration. Yes, it is absolutely true that you had 0:06:39.360 --> 0:06:43.120 progressive lawyers and progressive clients who are trying to challenge 0:06:43.520 --> 0:06:47.960 various Trump administration policies early on that included the so 0:06:48.040 --> 0:06:52.440 called Muslim Ban, where the Trump administration was essentially denying 0:06:52.680 --> 0:06:56.520 entry into the United States by people from predominantly Muslim countries. 0:06:56.920 --> 0:07:00.960 Having said that, even though progressive activists were going to 0:07:01.000 --> 0:07:04.799 the Ninth Circuit, there wasn't this phenomenon where you would 0:07:04.839 --> 0:07:08.479 have divisions within a particular district where there was a 0:07:08.520 --> 0:07:14.239 single progressive judge whom progressive activists and litigators were trying 0:07:14.280 --> 0:07:18.360 to target. They basically didn't exist. So it is a 0:07:18.400 --> 0:07:21.280 different in kind, and I think that it is much 0:07:21.320 --> 0:07:24.240 more severe when you're looking at what is going on 0:07:24.400 --> 0:07:29.400 right now, where again you have conservatives who can identify 0:07:29.440 --> 0:07:34.520 a very specific judge in a particular division within one district. Again, 0:07:34.600 --> 0:07:36.680 that just doesn't really exist on the left. 0:07:37.400 --> 0:07:41.040 So on March twelfth, the Judicial Conference, which is the 0:07:41.040 --> 0:07:45.200 policymaking body of the federal Judiciary, announced this new policy. 0:07:45.600 --> 0:07:48.800 Two days later, after getting pushed back, they revised it. 0:07:48.840 --> 0:07:52.440 But let's talk first about what the initial policy said 0:07:53.200 --> 0:07:53.600 that is. 0:07:53.560 --> 0:07:57.240 In some point, it's difficult because they announced a policy, 0:07:57.240 --> 0:08:00.000 but they didn't give us really specific language to latch 0:08:00.120 --> 0:08:03.000 onto to figure out whether it in fact was going 0:08:03.040 --> 0:08:07.440 to comply with existing statutes or whether there was going 0:08:07.480 --> 0:08:08.880 to be any room for change. 0:08:09.360 --> 0:08:12.440 Tell us about the broad outlines of the policy then. 0:08:12.880 --> 0:08:17.520 So that was essentially saying that in districts where there 0:08:17.560 --> 0:08:22.480 are these separate divisions, that litigant is not going to 0:08:22.520 --> 0:08:28.880 be able to necessarily select the specific division, that the 0:08:28.960 --> 0:08:31.680 court is going to need to randomize the assignment of 0:08:31.760 --> 0:08:36.360 cases throughout the entire district. And so there's not going 0:08:36.400 --> 0:08:40.120 to be this possibility under the proposal for a litigant 0:08:40.120 --> 0:08:43.160 to go to a specific division within the district and 0:08:43.320 --> 0:08:46.480 essentially handpick the judge. There's going to be some sort 0:08:46.520 --> 0:08:49.960 of random distribution of the cases throughout the district if 0:08:50.000 --> 0:08:54.320 the proposal goes into effect. Again, they are not trying 0:08:54.360 --> 0:08:59.679 to address the broader phenomenon of litigants being able to 0:08:59.760 --> 0:09:04.160 pick the districts and the circuits where they're litigating. So 0:09:04.200 --> 0:09:07.680 a circuit is going to embrace a number of states, 0:09:07.720 --> 0:09:12.640 and each circuit essentially develops its own interpretations of the Constitution. 0:09:13.040 --> 0:09:17.600 And the various federal statutes that they apply, and there 0:09:17.640 --> 0:09:21.160 can be differences between the circuits until the Supreme Court 0:09:21.200 --> 0:09:25.920 resolves those differences. That's been a phenomenon that we've had 0:09:26.160 --> 0:09:30.800 since Congress designed the present organization of the Federal Court 0:09:31.280 --> 0:09:34.640 in eighteen ninety one. So none of this is super new. 0:09:34.960 --> 0:09:38.760 The phenomenon that the Judicial Conference was trying to address 0:09:38.920 --> 0:09:42.880 is when you have not just a district within a state, 0:09:43.000 --> 0:09:46.440 but even divisions within that and there is going to 0:09:46.480 --> 0:09:50.800 be a single judge within that division. Now, that's a 0:09:50.920 --> 0:09:53.960 relatively rare phenomenon, and it's going to be even more 0:09:54.080 --> 0:09:59.120 rare that you can identify a very specific judge with 0:09:59.280 --> 0:10:03.160 a particular political bent who is going to be especially 0:10:03.200 --> 0:10:05.760 receptive to your case. So I don't want to say 0:10:05.760 --> 0:10:08.200 that it is a solution in search of a problem. 0:10:08.280 --> 0:10:11.920 It's not at all. But the very specific problem that 0:10:12.000 --> 0:10:15.720 the Judicial Conference is addressing is pretty narrow. There are 0:10:15.720 --> 0:10:19.599 a whole host of other concerns with forum shopping that 0:10:20.320 --> 0:10:23.360 the Conference essentially said that it's not addressing in this 0:10:23.400 --> 0:10:24.439 particular proposal. 0:10:24.800 --> 0:10:29.000 There was a backlash from conservative senators, including Minority Leader 0:10:29.040 --> 0:10:32.560 Mitch McConnell, who characterized this as an attempt to grab 0:10:32.600 --> 0:10:38.280 power from conservative jurists in isolated jurisdictions, and he said 0:10:38.320 --> 0:10:41.240 that it's up to Congress to decide how cases should 0:10:41.280 --> 0:10:42.960 be assigned to the lower courts. 0:10:43.600 --> 0:10:47.559 Part of this, I think was geared at addressing the 0:10:48.000 --> 0:10:52.040 basic idea that somebody who is a plaintiff should be 0:10:52.080 --> 0:10:54.800 able to sue at home. Now, there are all sorts 0:10:54.800 --> 0:10:57.559 of doctrines that are going to limit that, but one 0:10:57.600 --> 0:11:00.520 of the things that Senator McConnell talked about was the 0:11:01.280 --> 0:11:04.920 Judicial Conferences proposal was going to limit access to justice, 0:11:05.080 --> 0:11:08.720 and that if I'm a plaintiff and I'm suing somebody 0:11:08.760 --> 0:11:12.400 who has harmed me here at home, then it shouldn't 0:11:12.760 --> 0:11:15.319 result in the case being sent to some far flung 0:11:15.400 --> 0:11:18.880 place elsewhere in the district. And that point I think 0:11:19.000 --> 0:11:22.240 is generally well taken. What the Judicial Conference said in 0:11:22.280 --> 0:11:26.400 its clarification is, look, we're trying to train on the 0:11:26.559 --> 0:11:33.359 very specific phenomenon of challenging broadly applicable statutes broadly applicable 0:11:33.440 --> 0:11:39.000 policies by hand selecting a very specific judge. In other words, 0:11:39.600 --> 0:11:45.000 they were trying to identify the very specific problems of 0:11:46.080 --> 0:11:53.120 challenges to nationwide policies or statutes, regulations, or otherwise when 0:11:53.280 --> 0:11:56.680 activists will go to a specific judge in one of 0:11:56.720 --> 0:12:00.680 these single judge divisions. They were trying trying to make 0:12:00.720 --> 0:12:04.240 clear that they were leading alone the normal process of 0:12:04.280 --> 0:12:07.439 litigation where you and I have a breach of contract 0:12:07.480 --> 0:12:10.200 and I'm suing in the place where we had formed 0:12:10.200 --> 0:12:14.000 the contract or where the election breach happened. In other words, 0:12:14.000 --> 0:12:16.240 they were saying, in the mind run of cases, we 0:12:16.280 --> 0:12:19.560 are leaving well enough alone. We're really trying to home 0:12:19.640 --> 0:12:25.280 in on the specific problem of identifying a specific judge 0:12:25.320 --> 0:12:28.680 who's going to give a favorable nationwide ruling. 0:12:28.840 --> 0:12:29.680 Coming up next. 0:12:29.880 --> 0:12:33.600 A Texas district says it's not following the guidance I'm 0:12:33.679 --> 0:12:37.559 June Gross when you're listening to Bloomberg shopping for judges. 0:12:37.640 --> 0:12:41.319 It's come up repeatedly in recent years in Texas As. 0:12:41.360 --> 0:12:45.840 Republican attorneys general and conservative litigants have filed challenges to 0:12:45.920 --> 0:12:51.080 Biden administration policies in divisions where one judge who's sympathetic 0:12:51.080 --> 0:12:55.920 to their cause is automatically assigned all cases. Last month, 0:12:55.960 --> 0:13:00.319 the federal judiciary's administrative arm approved a new policy aimed 0:13:00.320 --> 0:13:04.520 at curbing judge shopping by litigants. But two days later, 0:13:04.679 --> 0:13:10.040 after a backlash from Senate Republicans, the conference clarified that 0:13:10.120 --> 0:13:13.839 the new policy was just a recommendation. I've been talking 0:13:13.840 --> 0:13:17.319 to Professor Alan Trammell of the Washington and Lee Law School, 0:13:18.040 --> 0:13:21.920 So basically, in its revision, the conference said that this 0:13:21.960 --> 0:13:23.760 new policy was discretionary. 0:13:24.320 --> 0:13:26.360 They did say that it was discretionary, and I think 0:13:26.400 --> 0:13:29.720 that that is in part to make sure that their 0:13:29.840 --> 0:13:33.680 policy is going to be consistent with the federal statute 0:13:33.720 --> 0:13:36.040 that says that the chief judge of a district is 0:13:36.080 --> 0:13:40.160 in charge of distributing cases to the judges within that district. 0:13:40.640 --> 0:13:42.200 That was going to be my next question. 0:13:42.280 --> 0:13:45.360 I was wondering whether you thought that the initial policy 0:13:46.120 --> 0:13:50.079 was within federal statutes or whether they were violating that 0:13:50.200 --> 0:13:51.400 statue you just mentioned. 0:13:52.400 --> 0:13:56.400 There is a decent textual argument that the policy could 0:13:56.440 --> 0:13:59.120 have violated a federal statute. It could have worked an 0:13:59.200 --> 0:14:03.719 incursion on the chief judge's ability to assign cases as 0:14:03.760 --> 0:14:06.439 the chief judge does fit. I think that there is 0:14:06.480 --> 0:14:09.480 a better argument, which is that the policy and the 0:14:09.480 --> 0:14:14.120 federal statute are consistent. And again we need to see 0:14:14.600 --> 0:14:17.199 how the policy is actually crafted. We need to get 0:14:17.280 --> 0:14:19.480 language in front of us. But I think that if 0:14:19.640 --> 0:14:22.720 the Judicial Conference is careful, they will craft the policy 0:14:22.760 --> 0:14:27.160 in a way that is not going to be inconsistent 0:14:27.240 --> 0:14:31.640 with the governing statutes. It's going to essentially find a 0:14:31.680 --> 0:14:36.560 way to address this particular problem without again working an 0:14:36.600 --> 0:14:40.520 in persion on the statutory authority that a chief judge 0:14:40.600 --> 0:14:44.560 has to assign cases. My view is that a chief 0:14:44.640 --> 0:14:47.280 judge is going to ignore this policy at his or 0:14:47.320 --> 0:14:50.080 her own peril. I think that there is a good 0:14:50.120 --> 0:14:53.000 way of viewing this policy again, if it's put in 0:14:53.080 --> 0:14:56.680 the correct language as being consistent with the federal statute. 0:14:56.800 --> 0:14:59.160 In a letter on Friday, the chief Judge of the 0:14:59.200 --> 0:15:02.880 Northern District of Texas said that the judges in his 0:15:03.000 --> 0:15:06.520 district met on Wednesday, quote, the consensus was not to 0:15:06.560 --> 0:15:10.040 make any change to our case assignment process at this time, 0:15:10.840 --> 0:15:14.560 so they decided not to follow the policy. 0:15:14.600 --> 0:15:18.800 I don't know that they are not following the policy, 0:15:18.880 --> 0:15:23.480 because again, we don't really have hard and fast language 0:15:23.480 --> 0:15:26.120 in front of us. I think that there's going to 0:15:26.120 --> 0:15:28.840 be a lot of give and take, and I guess 0:15:28.840 --> 0:15:31.640 it is true that the Northern District seems to be 0:15:31.760 --> 0:15:35.200 conveyed that they are not interested in altering their behavior 0:15:35.240 --> 0:15:38.560 in any way whatsoever with respect to the assignment of cases. 0:15:39.000 --> 0:15:42.280 But this is an iterative process. I suspect that the 0:15:42.400 --> 0:15:45.680 Judicial Conference is going to come back with more specific language, 0:15:46.080 --> 0:15:49.320 and at that point we will see whether courts are 0:15:49.400 --> 0:15:53.080 essentially coming their noses at the conference or if they 0:15:53.080 --> 0:15:56.640 are trying to find some sort of accommodation. Again, I 0:15:56.680 --> 0:16:00.160 think that there is a genuine concern here. It is 0:16:00.640 --> 0:16:03.760 small board. It is a small piece of a much 0:16:03.880 --> 0:16:09.600 larger puzzle with respect to access to justice and perceptions 0:16:09.640 --> 0:16:13.520 of cherry picking particular courts or judges. But I don't 0:16:13.560 --> 0:16:16.800 think that the Judicial Conference has gone out too far 0:16:16.840 --> 0:16:17.480 on a limb here. 0:16:18.000 --> 0:16:23.359 This judge Shopping didn't address patent litigation or bankruptcy cases exactly. 0:16:23.440 --> 0:16:26.560 So Judge Hoe on the Fifth Circuit, which includes Texas, 0:16:27.360 --> 0:16:31.800 was essentially saying, look, you've addressed one tiny piece of 0:16:31.840 --> 0:16:36.400 the puzzle, But the bigger problem is not a single 0:16:36.920 --> 0:16:41.080 judge division such as Judge Kesmark. It's the fact that 0:16:41.560 --> 0:16:46.080 you've got certain districts that have become magnets for patent litigation, 0:16:46.320 --> 0:16:50.320 bankruptcy litigation, and the light So the Eastern District of Texas, 0:16:50.320 --> 0:16:55.040 for example, has developed its own law on patent litigation, 0:16:55.240 --> 0:16:58.600 and so called patent trolls often flocked to the Eastern 0:16:58.600 --> 0:17:02.840 District of Texas because of the unique rules that have 0:17:02.920 --> 0:17:06.919 developed around patent litigation. I would agree that that is 0:17:06.960 --> 0:17:12.000 a much bigger concern in the broader scheme. But just 0:17:12.080 --> 0:17:15.520 because the Judicial Conference has focused on one aspect of 0:17:15.560 --> 0:17:19.399 the problem, namely single judge divisions, doesn't mean that it 0:17:19.440 --> 0:17:22.280 can't also address some of these other problems. I can 0:17:22.320 --> 0:17:26.359 see the point from the perspective of the conservative blowback 0:17:26.520 --> 0:17:29.800 that this looks a little bit too cherry picked, that 0:17:30.200 --> 0:17:35.040 if you're concerned about access to justice the impartial administration 0:17:35.160 --> 0:17:37.960 of the law, then you should be focused on all 0:17:38.000 --> 0:17:40.679 of this. Again, I agree with that. I think that 0:17:41.280 --> 0:17:44.000 certainly the Judicial Conference should be looking at the extent 0:17:44.040 --> 0:17:47.280 to which particular districts within the country have become magnets 0:17:47.280 --> 0:17:51.919 for patent and bankruptcy litigation. But that's a slightly different 0:17:51.920 --> 0:17:54.880 issue and I think more complex. It's a little bit 0:17:54.920 --> 0:17:59.120 more complicated to resolve than trying to address the problem 0:17:59.200 --> 0:18:03.040 of single judge divisions that have attracted some of these 0:18:03.119 --> 0:18:07.160 cases seeking nationwide injunctions against the current administration. 0:18:07.760 --> 0:18:13.359 So you mentioned nationwide injunctions, and when Judge Jeffrey Sutton, 0:18:13.359 --> 0:18:17.040 who's the chair of the Judicial Conference as Executive Committee, 0:18:17.200 --> 0:18:19.600 announced the change, he said it was prompted by the 0:18:19.600 --> 0:18:23.080 plethora of national, statewide injunctions being. 0:18:22.920 --> 0:18:25.080 Issued by judges in such cases. 0:18:25.440 --> 0:18:30.520 And during oral arguments last week we heard from Justice 0:18:30.520 --> 0:18:35.800 Neil Gorsuch complaining about the issuance of these nationwide injunctions 0:18:35.840 --> 0:18:38.879 and how you know during FDR's tenure there were none. 0:18:39.200 --> 0:18:40.920 Is it up to the Supreme Court to put its 0:18:40.920 --> 0:18:44.240 foot down and stop these nationwide injunctions. 0:18:44.920 --> 0:18:49.040 I think that nationwide injunctions are a huge part of 0:18:49.280 --> 0:18:53.840 this problem, but I think that it's a separate conversation. 0:18:54.119 --> 0:18:58.040 That is to say, nationwide injunctions have been with us 0:18:58.080 --> 0:19:02.919 for much longer than justice courses, and some scholars have 0:19:03.000 --> 0:19:06.440 wanted to acknowledge. It is true that there has been 0:19:06.480 --> 0:19:11.320 a proliferation of these nationwide injunctions, particularly starting with the 0:19:11.320 --> 0:19:14.760 Obama administration, and then we really see them explode in 0:19:14.800 --> 0:19:17.960 a lot of ways during the Trump administration. It seemed 0:19:17.960 --> 0:19:23.400 as though every single time you had individuals and organizations 0:19:23.480 --> 0:19:28.000 challenging particular Trump administration policies. The remedies that they would 0:19:28.080 --> 0:19:32.520 seek would be a nationwide injunction, not just an injunction 0:19:32.720 --> 0:19:36.600 limiting the effect of a particular regulation or policy to 0:19:36.720 --> 0:19:40.919 those particular plaintiffs. So, yes, there is a broader conversation 0:19:40.960 --> 0:19:46.600 about whether federal courts are abusing their discretion in the 0:19:46.640 --> 0:19:49.400 types of remedies that they are issuing, whether the remedies 0:19:49.440 --> 0:19:54.320 are are too sweeping, encompassing far too many individuals. I 0:19:54.400 --> 0:19:58.119 don't think that that is necessarily a constitutional problem, but 0:19:58.200 --> 0:20:02.120 I do agree that the Supreme Court should probably provide 0:20:02.119 --> 0:20:07.879 some clarity about the circumstances under which nationwide injunctions are appropriate. Now, 0:20:08.119 --> 0:20:11.480 the way that this ties back into the problem of 0:20:12.240 --> 0:20:16.840 single judge divisions is that if you know the judges 0:20:16.920 --> 0:20:20.520 are willing to issue these really really sweeping at junctions, 0:20:20.840 --> 0:20:23.680 and you can then choose the specific judge you want 0:20:24.040 --> 0:20:27.560 who is going to hear your particular challenge, then that 0:20:27.720 --> 0:20:31.600 just ratchets up the stakes. It means that if you 0:20:31.640 --> 0:20:35.240 are a plaintiff and you can identify one single judge 0:20:35.280 --> 0:20:38.719 in the country, then you might be able to undermine 0:20:38.880 --> 0:20:42.919 an entire policy nationwide in less than until the Supreme 0:20:42.960 --> 0:20:45.480 Court steps in and as we've seen with the the 0:20:45.480 --> 0:20:49.760 Pristone litigation, that can take time even when there's been 0:20:49.920 --> 0:20:51.760 expedited briefing an argument. 0:20:52.520 --> 0:20:57.000 Does this all show, I mean, has the federal judiciary 0:20:57.119 --> 0:20:58.240 become more. 0:20:58.040 --> 0:21:00.000 Polarized in recent. 0:20:59.760 --> 0:21:03.560 Years with the confirmation of a lot of Trump appointees 0:21:03.600 --> 0:21:07.240 who were not just conservative but ideologues. 0:21:07.800 --> 0:21:10.520 I certainly think that that is true. I think that 0:21:11.440 --> 0:21:15.359 it's always been true that different judges bring their backgrounds 0:21:15.400 --> 0:21:18.640 and experiences to bear on the cases that they hear. 0:21:19.200 --> 0:21:24.520 But there's really been a conservative effort by the conservative 0:21:24.560 --> 0:21:30.600 legal movement to, as you say, not just place conservatives 0:21:30.640 --> 0:21:33.800 on the various federal courts, but to place the ideologue. 0:21:34.119 --> 0:21:36.840 That is not to say that every single judge appointed 0:21:36.840 --> 0:21:39.959 by President Trump is an ideologue, but I think that 0:21:40.440 --> 0:21:45.240 some of the most ideologically motivated judges were indeed placed 0:21:45.280 --> 0:21:46.960 on these courts by President Trump. 0:21:47.200 --> 0:21:52.080 Could Congress solve this by passing legislation to curtailed judge. 0:21:51.800 --> 0:21:55.560 Shopping, absolutely, and that's been part of the debate and 0:21:55.600 --> 0:22:00.159 part of the pushback. After the Judicial Conference announced its policy, 0:22:00.560 --> 0:22:04.880 you had a number of members of Congress saying, this 0:22:04.960 --> 0:22:08.080 is not really the province of the Judicial Conference, This 0:22:08.200 --> 0:22:11.159 is something that Congress should be doing. I agree with 0:22:11.200 --> 0:22:14.840 the second part of that. This is absolutely within Congress's 0:22:14.880 --> 0:22:19.399 power to regulate the federal judiciary, to design the shape 0:22:19.400 --> 0:22:22.080 of the judiciary, the shape of the districts, the circuit, 0:22:22.200 --> 0:22:24.879 so on and so forth. All of that I think 0:22:25.080 --> 0:22:30.760 is unquestionably within Congress's palace. The open question, though, is 0:22:31.560 --> 0:22:34.560 what happens if Congress doesn't act. Is there any other 0:22:34.600 --> 0:22:37.520 body that could act on its own? I think that 0:22:37.720 --> 0:22:40.800 the court system, on its own could act. And then 0:22:40.920 --> 0:22:44.200 the question as well, is the Judicial Conference a step 0:22:44.240 --> 0:22:48.520 too far removed from, say, the office of the Chief Justice. 0:22:48.680 --> 0:22:50.720 I don't think that it is. I think that the Judicial 0:22:50.720 --> 0:22:54.040 Conference is there to provide guidance in exactly these kinds 0:22:54.040 --> 0:22:57.160 of situations. They obviously need to make sure that they're 0:22:57.200 --> 0:23:00.120 not running a foule of statutes that are on the books. 0:23:00.359 --> 0:23:05.679 But there's always been a cooperative interaction between Congress and 0:23:05.720 --> 0:23:08.920 the judiciary itself with respect to managing some of these 0:23:09.000 --> 0:23:10.880 questions of judicial administration. 0:23:11.320 --> 0:23:15.080 Finally, a lot has been said about how an outside 0:23:15.200 --> 0:23:19.760 share of the Supreme Court's biggest cases come from the 0:23:19.800 --> 0:23:23.320 most conservative Court of Appeals in the country, the Fifth 0:23:23.359 --> 0:23:28.199 Circuit because its far reaching rulings are proving difficult for 0:23:28.240 --> 0:23:31.879 the justices to ignore what I'll call judge shopping because 0:23:31.920 --> 0:23:34.680 those cases, a lot of those cases come from Texas. 0:23:35.520 --> 0:23:39.119 I think that that is absolutely right. You have the 0:23:39.160 --> 0:23:44.240 Fifth Circuit, which has become increasingly ideological, you have one 0:23:44.280 --> 0:23:49.160 of these single judge divisions in Texas, namely Judge Casmark, 0:23:50.040 --> 0:23:54.719 and you have a Fifth Circuit that is really pushing 0:23:54.720 --> 0:23:58.520 the boundary. So the Supreme Court, even a very conservative 0:23:58.560 --> 0:24:03.480 Supreme Court with a supermajority of conservative justices, is policing 0:24:03.520 --> 0:24:07.159 some of these more I will say adventurous ruins by 0:24:07.200 --> 0:24:09.120 the Fifth Circuit, and we'll just. 0:24:09.160 --> 0:24:12.879 Have to wait and see whether the Judicial Conference actually 0:24:12.960 --> 0:24:16.680 manages to get anything done with regard to judge shopping. 0:24:17.119 --> 0:24:20.880 Thanks so much, Alan. That's Professor Alan Trammel of Washington 0:24:20.880 --> 0:24:23.840 and Lee Law School. Coming up next on the Bloomberg 0:24:23.920 --> 0:24:28.720 Lawn Show. Why Homeland Security agents raided Shawn didty Combe's 0:24:28.760 --> 0:24:32.640 homes in LA and Miami. I'm June Grosso and. 0:24:32.600 --> 0:24:34.000 You're listening to Bloomberg. 0:24:36.520 --> 0:24:41.200 Heavily armed Homeland Security agents rated Seawan didty Combe's homes 0:24:41.200 --> 0:24:44.520 in La and Miami last week, handcuffing some of the 0:24:44.520 --> 0:24:47.320 people inside the home as they carried out their search 0:24:47.440 --> 0:24:51.280 for hours. The raids are reportedly part of an ongoing 0:24:51.359 --> 0:24:56.320 investigation into sex trafficking. According to the Associated Press, these 0:24:56.440 --> 0:25:00.680 raids follow multiple lawsuits filed against Combs in Reces months 0:25:00.920 --> 0:25:05.320 with allegations of sexual assault and sex trafficking. Joining me 0:25:05.400 --> 0:25:10.040 is Albert Soler, chair of the Entertainment department at Scarncy Hollindbeck. 0:25:10.680 --> 0:25:14.200 These raids were very visible, conducted with search larrants. 0:25:14.480 --> 0:25:15.440 What does that tell you? 0:25:16.040 --> 0:25:18.320 What it tells me is that they have a very 0:25:18.359 --> 0:25:21.879 solid basis for wanting to obtain additional evidence and just 0:25:21.880 --> 0:25:24.720 just a little bit of background this all started, and 0:25:24.800 --> 0:25:27.080 of course their allegations, right, I always like to say 0:25:27.119 --> 0:25:30.080 that because everybody has their day in court. But this 0:25:30.240 --> 0:25:35.040 was prompted by the lawsuit by Cassie Ventura and that 0:25:35.160 --> 0:25:39.040 was a former longtime partner of Ditty's Sean Comb's, and 0:25:40.280 --> 0:25:43.520 there are worthy initial allegations came out about the sexual 0:25:43.520 --> 0:25:48.400