Speaker 1: Donald Trump's attacks on the judiciary have become a central
Speaker 1: issue in the confirmation battle over his Supreme Court nominee,
Speaker 1: Neil Gorcich. Earlier this week, Trump lashed out at what
Speaker 1: he called a so called judge who halted his travel
Speaker 1: band against seven mostly Muslim countries. Then yesterday Trump took
Speaker 1: a preemptive swipe at the federal Appeals Court that is
Speaker 1: now considering that case. Meanwhile, Gorstch is making the rounds
Speaker 1: and meetings with the senators who will be considering his nomination.
Speaker 1: He has told them he is quote disheartened and quote
Speaker 1: demoralized by the President's comments. That's according to both lawmakers
Speaker 1: who met with him and the nominee's spokesman. Here's Nebraska's
Speaker 1: Republican Senator Ben Sass speaking on MSNBC. This is a
Speaker 1: guy who kind of welled up with some energy, and
Speaker 1: he said any attack on any of I think it's
Speaker 1: termed to me was brothers or sisters of the robe,
Speaker 1: is an attack on all judges. And he believes that
Speaker 1: an independent judiciary. Are gorsages comments strong enough and how
Speaker 1: will the controversy over Trump's attacks on the judiciary effect
Speaker 1: his confirmation prospects? Our guests to discuss this are Caroline Frederickson,
Speaker 1: president of the Progressive American Constitution Society, and Jonathan Adler,
Speaker 1: law professor at Case Western Reserve Law School. Caroline, when
Speaker 1: I heard the news yesterday that Gorcers had said he
Speaker 1: was disheartened and demoralized, my first reaction was to shout out,
Speaker 1: in pretty a pretty loud voice, WHOA. What was your
Speaker 1: first reaction when you heard him say that? Well, yeah,
Speaker 1: you know, I guess I've been in d C too long.
Speaker 1: It was a little cynical. Um, I I must say
Speaker 1: to think that that perhaps he was, uh, that there
Speaker 1: was an effort to distance himself a little bit from
Speaker 1: Trump and the attacks on judges in order to ensure
Speaker 1: that his confirmation battle would go more smoothly. Um. But
Speaker 1: of course, you know, he is a sitting federal judge
Speaker 1: and so UM, you know, I think it is a
Speaker 1: very uncomfortable position for him to be in, uh, to
Speaker 1: hear the President saying things that I think are completely
Speaker 1: out of the norm of what we year from politicians, typically,
Speaker 1: at least about federal judges. Um, well, he's in the
Speaker 1: process of trying to get confirmed, Jonathan, is he being
Speaker 1: strategic knowing these questions will be asked in confirmation hearings.
Speaker 1: The a Democratic National Committee spokesman said today, this is
Speaker 1: clearly a meaningless White House orchestrated attempt to help Judge
Speaker 1: gorse It's pretend he won't be a rubber stamp for
Speaker 1: the Trump administration. Well, I mean, look, I think the
Speaker 1: comments he made are certainly appropriate. I think they're what
Speaker 1: you would expect from a federal judge who takes his
Speaker 1: or her responsibilities seriously and who has concerned for the
Speaker 1: independence of the judicial branch. Um, you know, based on
Speaker 1: what I believe we know about Judge gorsuch As record,
Speaker 1: those sorts of comments coming from the sort of judge
Speaker 1: that he has been that has shown the independence he
Speaker 1: has shown throughout his career, is what we would expect.
Speaker 1: And um, you know, whether or not the White House knew,
Speaker 1: who knew who was going to say that or not,
Speaker 1: it's the sort of thing we would should want and
Speaker 1: expect a judge in his position to say. And I'm
Speaker 1: glad that he said those things. But what about the
Speaker 1: timing of his saying it? You know, when he's seeing
Speaker 1: when he's seeing senators and before his confirmation hearings. Well, look,
Speaker 1: my assumption is that senators have asked these questions in
Speaker 1: those meetings, and UM, I think it would be unreasonable
Speaker 1: to expect a judicial nominee to refuse to answer such
Speaker 1: questions in private meetings. There's nothing inappropriate with the questions,
Speaker 1: at least as far as what we know of the
Speaker 1: Given what we know about what was asked, there's nothing
Speaker 1: there that seems inappropriate to me. Uh. And you know,
Speaker 1: senators asked those questions. I can't see how it would
Speaker 1: be inappropriate for the nominee uh to give the sorts
Speaker 1: of responses that Judge Corset's reportedly made. Caroline, since you're
Speaker 1: a little cynical about the comments, is there something more
Speaker 1: you want you want to hear Judge Corsets say exactly,
Speaker 1: you know, as Jonathan said, exactly what people want to hear, UM,
Speaker 1: what they expect from a sitting judge. But what I
Speaker 1: think has to happen and is going to happen in
Speaker 1: the process, is he's going to be expected to speak
Speaker 1: more um directly about how independent he is. UM. And Uh,
Speaker 1: you know, apart from his nomination, the President himself has
Speaker 1: created a situation in which, UM, there is a real
Speaker 1: need for him to clarify, and we'll go back over
Speaker 1: the you know, the sort of the circumstances. But I
Speaker 1: think certainly the president himself has repeatedly attacked federal judges. UM.
Speaker 1: He attempts to, you know, not just use the bully pulpit,
Speaker 1: he actually attempts to just bully. And it seems that
Speaker 1: he thinks he can get his way in the court
Speaker 1: um by um intimidating judges UM. And you know, most recently,
Speaker 1: as you mentioned, uh with the Ninth Circuit and expected ruling, UM,
Speaker 1: you know, already sort of uh sort of attacking uh
Speaker 1: the judges in that case there was Judge Curiel because
Speaker 1: he was a Mexican Mexican uh origin or from his
Speaker 1: his parents were Mexican um. And that was the camp
Speaker 1: during the camp pay in the case about Trump University exactly.
Speaker 1: And so I think all of that, um, you know,
Speaker 1: plus is very explicit um statement multiple times during the
Speaker 1: campaign and more recently that he has a litmus test um. Uh.
Speaker 1: You know, I think we'll make the Democratic senators particularly,
Speaker 1: but I think some of the Republicans will want to
Speaker 1: push him um to say, you know, how do you
Speaker 1: feel about those statements repeatedly, the ones that you know
Speaker 1: they're sort of trying to extract certain outcomes in certain
Speaker 1: cases as well as the litmus test, And they're gonna
Speaker 1: want to know that he hasn't sort of made up
Speaker 1: his mind um on particular cases, that he has the
Speaker 1: ability to rule against the president if necessary. They're gonna
Speaker 1: be a lot of lawsuits against this president. They're already
Speaker 1: many making their way through the court system, um. And
Speaker 1: I think they're gonna want to see that he truly
Speaker 1: is an independent UH judge and will be an independent justice.
Speaker 1: So does that mean, Jonathan, that there will be so
Speaker 1: much UH concentration on his independence from the presidency that
Speaker 1: other things might get lost? Well, certainly, there is a
Speaker 1: limited amount of time that UH senators have. The committee
Speaker 1: hearings will not go on forever um, and it's certainly
Speaker 1: likely that these questions will be a take up a
Speaker 1: larger proportion of the discussion in the Judiciary Committee hearings
Speaker 1: as well as in Judge Gorst's remaining courtesy calls. And
Speaker 1: that's what I think we should expect. As Caroline noted,
Speaker 1: the President has put Judge Gorsch and any future judicial
Speaker 1: nominees the President has UH in a difficult situation because
Speaker 1: the President has made comments that suggests that the president's
Speaker 1: view of the role of the judiciary and the degree
Speaker 1: of independence that the judicial branch would have is quite
Speaker 1: different from what we usually expect and demand of our judici.
Speaker 1: Shire Senator Jeff Sessions is now Attorney General Jeff Sessions.
Speaker 1: He was sworn in today after getting Senate confirmation last
Speaker 1: night on a virtually party line vote. He vowed to
Speaker 1: make crime fighting and illegal immigration his priorities. Meanwhile, President
Speaker 1: Trump signed three executive actions directing the Justice Department to
Speaker 1: intensify its efforts to fight drug related crime and violence
Speaker 1: against police officers. We're talking with Caroline Frederickson, president of
Speaker 1: the American Constitution Society, and Jonathan Adler of Case Western
Speaker 1: Reserve Law School. Jonathan, this is a very controversial nomination. Um.
Speaker 1: What are you most interested in seeing UH from Jeff
Speaker 1: Sessions in the Justice Department? What should we be watching
Speaker 1: for in the next few weeks and months. Well, there's
Speaker 1: there's a lot in there. I mean, certainly, what we
Speaker 1: should be watching for first and foremost is the extent
Speaker 1: to which he upholds the commitments he made in the
Speaker 1: confirmation process UH to basically execute the laws, and to
Speaker 1: be to run the Justice Department in an independent way
Speaker 1: in accord with federal laws. Some things that I think
Speaker 1: we should be paying particular attention to is how he
Speaker 1: resolves some conflicts between his obligations and perhaps some of
Speaker 1: his personal views. UM. One issue that's been the Justice
Speaker 1: Department is dealt with in some respects struggled with over
Speaker 1: the last several years is how to deal with the
Speaker 1: fact that quite a number of states have either partially
Speaker 1: or completely legalized the position and use of marijuana within
Speaker 1: their states. UM, while marijuana remains illegal under federal law.
Speaker 1: Just Sessions has been a supporter of the drug war generally,
Speaker 1: UH supported the probation of marijuana, but has also, especially
Speaker 1: as Attorney General of Alabama, was was a big advocate
Speaker 1: of getting states greater flexibility UH and and endorsing federals
Speaker 1: and principles more broadly. UH areas like what to do
Speaker 1: about marijuana put those two preferences in conflict, and it's
Speaker 1: an example of the sort of thing I think we
Speaker 1: should be watching because we're not quite sure what direction
Speaker 1: he's going to go. In Caroline, federal judges granted a
Speaker 1: Justice Department request to delay an initially hearing on a
Speaker 1: police reformer Green meant with the Baltimore Police Department that
Speaker 1: was made by the former Attorney general, and during his hearing,
Speaker 1: Sessions would only say that deals that had been accepted
Speaker 1: by judges would have to be ended by the judge.
Speaker 1: What with the law and order stance that Trump and
Speaker 1: Sessions are known for, what is likely to happen to
Speaker 1: that agreement? Could it be scuffled? Well, I mean, it
Speaker 1: certainly seems like that's what they're trying to do. Uh,
Speaker 1: you know, I think it's very unfortunate because when you
Speaker 1: have something like the Baltimore agreement, which was the product
Speaker 1: of a long long process, uh back and forth with
Speaker 1: the police department, with the Justice Department. UM, the community
Speaker 1: is obviously very much affected by how this works out.
Speaker 1: I think it's very unfortunate that all of that work
Speaker 1: is going to be potentially thrown out. Um. You know,
Speaker 1: I think, you know, and would hope that, uh, you know,
Speaker 1: where where there has been you know, deep engagement by
Speaker 1: the community, we don't have this UM federal agency sort
Speaker 1: of deciding to reconsider all that input and go back
Speaker 1: to square one. Jonathan Donald Trump's approach towards things involving
Speaker 1: the law have been UH. Chaotic might be a good word, UM.
Speaker 1: And you know, in terms of things like the rollout
Speaker 1: of the UM, the the travel ban, UM and various
Speaker 1: other things. Would you imagine that Jeff Sessions will his
Speaker 1: confirmation will impose a little more order in terms of
Speaker 1: how the administration goes about legal issues. I certainly hope so.
Speaker 1: And if one looks at the people that have been
Speaker 1: identified for some of the other positions in the Justice Department,
Speaker 1: I do think there is cause for some optimism. UM.
Speaker 1: Folks like Rachel Brandon Rod Rosenstein, who have been identified
Speaker 1: for the number two and number three spots at the
Speaker 1: Justice Department UM are very well regarded UH and I
Speaker 1: think will certainly help or should certainly help some some
Speaker 1: more order to what the Justice Department does. And I
Speaker 1: would hope to the way legal questions are dealt with
Speaker 1: more broadly in the administration. It's always hard at the
Speaker 1: beginning of a new administration UH to to keep everything
Speaker 1: UH running and to deal with the necessary cast of transition,
Speaker 1: because you don't have your people in place, you don't
Speaker 1: have the people in position to make your decisions folks
Speaker 1: that are holdovers from the prior administration might not agree
Speaker 1: with your agenda. The career UH folks might not agree
Speaker 1: with your agenda or might not really understand what it is.
Speaker 1: And so generally, as you you can put your people
Speaker 1: in place, you have greater ability to to bring some
Speaker 1: consistency and focus to your administration's operations. I want to
Speaker 1: thank our guests. That was Jonathan Adler, professor at Case
Speaker 1: Western Reserve Law School, and Caroline Frederickson, who is the
Speaker 1: president of the Progressive American Constitution Society. Coming up, one
Speaker 1: of the things Donald Trump has done is an executive
Speaker 1: order that says agencies have to eliminate two regulations for
Speaker 1: every new one they put in place. And there's now
Speaker 1: a legal challenge to that. We'll talk about that on
Speaker 1: Bloomberg Law. This is Bloomberg h