1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,440 --> 00:00:11,920 Speaker 2: At the end of June, President Trump celebrated the Supreme 3 00:00:12,000 --> 00:00:16,120 Speaker 2: Court's decision limiting the ability of federal judges to issue 4 00:00:16,200 --> 00:00:17,560 Speaker 2: nationwide injunctions. 5 00:00:17,960 --> 00:00:21,920 Speaker 3: Thanks to this decision, we can now promptly file to 6 00:00:22,000 --> 00:00:25,360 Speaker 3: proceed with numerous policies that have been wrongly enjoined on 7 00:00:25,720 --> 00:00:29,480 Speaker 3: a nationwide basis. And some of the cases we're talking 8 00:00:29,520 --> 00:00:34,639 Speaker 3: about would be ending birthright citizenship, which now comes to the. 9 00:00:34,600 --> 00:00:38,920 Speaker 2: Fore but a federal judge stop that from happening. And 10 00:00:39,000 --> 00:00:41,280 Speaker 2: though it's clear the decision was a win for the 11 00:00:41,320 --> 00:00:45,600 Speaker 2: Trump administration, how big a win has yet to be determined. 12 00:00:45,920 --> 00:00:49,000 Speaker 2: In the last few weeks, federal judges have been using 13 00:00:49,040 --> 00:00:53,000 Speaker 2: the alternative options offered by the justices to block the 14 00:00:53,040 --> 00:00:58,600 Speaker 2: Trump agenda nationwide. For example, judges have blocked the enforcement 15 00:00:58,640 --> 00:01:02,880 Speaker 2: of Trump's birthright CIS citizenship order, restored public health data 16 00:01:03,000 --> 00:01:08,039 Speaker 2: to government websites, and struck down Trump's ban on asylum claims. 17 00:01:08,640 --> 00:01:11,680 Speaker 2: Joining me to discuss just how much that Supreme Court 18 00:01:11,760 --> 00:01:16,000 Speaker 2: decision will benefit the Trump administration is Carrie Kolonisi, a 19 00:01:16,040 --> 00:01:19,920 Speaker 2: professor at the University of Pennsylvania. Carrie, Law School and 20 00:01:19,959 --> 00:01:23,600 Speaker 2: director of the Penn Program on Regulation. Carrie, what did 21 00:01:23,600 --> 00:01:28,399 Speaker 2: the majority suggest in the KASA decision as alternative paths 22 00:01:28,440 --> 00:01:30,800 Speaker 2: to getting nationwide injunctions? 23 00:01:31,280 --> 00:01:34,600 Speaker 1: Well, first of all, you still can get nationwide or 24 00:01:34,800 --> 00:01:38,160 Speaker 1: universal injunctions. I mean that people use different language but 25 00:01:38,840 --> 00:01:42,240 Speaker 1: basically the same thing, and you still under KASA can't 26 00:01:42,319 --> 00:01:48,880 Speaker 1: get it when just an injunction confined to the parties 27 00:01:49,000 --> 00:01:53,680 Speaker 1: would not provide the parties with complete relief. So we 28 00:01:53,800 --> 00:01:58,880 Speaker 1: might see, and in fact, the court suggests even that 29 00:01:58,920 --> 00:02:04,640 Speaker 1: the states that were challenging the Birthright Citizenship Order could 30 00:02:04,960 --> 00:02:09,800 Speaker 1: well have a basis for getting a nationwide injunction because 31 00:02:10,560 --> 00:02:14,320 Speaker 1: they need it for complete relief. People move from one 32 00:02:14,360 --> 00:02:16,360 Speaker 1: part of the country to the other, from one state 33 00:02:16,400 --> 00:02:23,280 Speaker 1: to the other states, and without some national uniformity in 34 00:02:23,320 --> 00:02:28,880 Speaker 1: this litigation, states will not know whether they should be 35 00:02:28,919 --> 00:02:33,640 Speaker 1: giving certain people federally funded benefits that apply only for citizens. 36 00:02:33,680 --> 00:02:37,040 Speaker 1: For example, you know, they'll need to probably redo a 37 00:02:37,080 --> 00:02:40,600 Speaker 1: lot of their administrative paperwork or hire more workers to 38 00:02:40,680 --> 00:02:42,200 Speaker 1: handle applications. 39 00:02:42,680 --> 00:02:43,200 Speaker 4: It'd be a. 40 00:02:43,200 --> 00:02:46,200 Speaker 1: Quagmire for a lot of states. So, first of all, 41 00:02:46,240 --> 00:02:49,400 Speaker 1: that's one key thing is that Trump BECAUSA doesn't say, 42 00:02:49,480 --> 00:02:54,280 Speaker 1: like absolutely never a nationwide injunction, but probably you know, 43 00:02:54,400 --> 00:02:58,360 Speaker 1: most cases that won't be possible. But in this case, 44 00:02:58,560 --> 00:03:02,280 Speaker 1: with birthright citizenship and the states that are suing, it 45 00:03:02,680 --> 00:03:06,720 Speaker 1: might be obtainable because anything short of that would not 46 00:03:06,880 --> 00:03:10,200 Speaker 1: give the litigans complete relief. So that's one thing to know. 47 00:03:10,520 --> 00:03:14,160 Speaker 1: But then the court, as you suggest, also says, gee, 48 00:03:14,160 --> 00:03:18,399 Speaker 1: there can be other ways of getting what is essentially 49 00:03:19,080 --> 00:03:23,679 Speaker 1: nationwide injunctive relief. We wouldn't call it a nationwide injunction, 50 00:03:23,840 --> 00:03:26,880 Speaker 1: but it's essentially going to be the same thing, and 51 00:03:26,960 --> 00:03:32,440 Speaker 1: that would be through certifying a class action. So litigants 52 00:03:32,480 --> 00:03:34,640 Speaker 1: come forward all the time, We have the class actions 53 00:03:34,639 --> 00:03:38,640 Speaker 1: all the time, where the court is making a decision 54 00:03:38,680 --> 00:03:43,240 Speaker 1: that applies to anybody within a certified class nationwide, and 55 00:03:43,360 --> 00:03:47,400 Speaker 1: in this birthright citizenship context, that would seem also to 56 00:03:47,560 --> 00:03:50,360 Speaker 1: easily apply. There are some standards for what it takes 57 00:03:50,400 --> 00:03:54,040 Speaker 1: to qualify for a class, but once that's met, then 58 00:03:54,080 --> 00:03:58,360 Speaker 1: you could get nationwide relief. And a third option here 59 00:03:58,720 --> 00:04:02,440 Speaker 1: is something under the Administrative Procedure Act, which is a 60 00:04:02,480 --> 00:04:06,880 Speaker 1: statute that applies to any of the federal government agencies 61 00:04:07,120 --> 00:04:11,680 Speaker 1: actions and there's a provision in the APA as it's 62 00:04:11,760 --> 00:04:17,520 Speaker 1: known that allows courts to set aside unlawful actions. It's 63 00:04:17,520 --> 00:04:19,880 Speaker 1: not just even allows it, but it says the court 64 00:04:20,000 --> 00:04:24,320 Speaker 1: shall set aside unlawful actions, and that's a possibility. The 65 00:04:24,360 --> 00:04:28,760 Speaker 1: Court in the cost case doesn't say much about this 66 00:04:29,000 --> 00:04:32,400 Speaker 1: set aside option under the Administrative Procedure Act, but it 67 00:04:32,400 --> 00:04:35,280 Speaker 1: does acknowledge in a footnote that it's not saying that 68 00:04:35,480 --> 00:04:40,280 Speaker 1: it can't apply, and in fact, in various other contexts 69 00:04:40,279 --> 00:04:43,680 Speaker 1: and Supreme Court oral arguments and the like, for example, 70 00:04:44,320 --> 00:04:50,000 Speaker 1: and actually a longstanding tradition since at least the nineteen sixties, 71 00:04:50,240 --> 00:04:53,480 Speaker 1: the federal courts have used this set aside language to 72 00:04:53,839 --> 00:04:59,279 Speaker 1: hold unlawful a government policy, regulation, guidance that applies nationwide. 73 00:04:59,320 --> 00:05:02,800 Speaker 1: If it's not lawful, it's hard to say how a 74 00:05:02,880 --> 00:05:08,280 Speaker 1: government policy could still apply to folks who just don't 75 00:05:08,360 --> 00:05:10,599 Speaker 1: happen to have the ability to go into court to 76 00:05:10,720 --> 00:05:14,520 Speaker 1: challenge it. If it's unlawful, it's unlawful. And so anyway, 77 00:05:14,960 --> 00:05:19,400 Speaker 1: there's a real possibility that both in the birthright citizenship 78 00:05:19,440 --> 00:05:22,600 Speaker 1: case and in a lot of other cases, litigants are 79 00:05:22,600 --> 00:05:25,720 Speaker 1: going to be able to still get what is essentially 80 00:05:25,880 --> 00:05:30,880 Speaker 1: nationwide relief. Shutting down unlawful policies or at least potentially 81 00:05:30,920 --> 00:05:33,320 Speaker 1: unlawful policies on a preliminary basis. 82 00:05:33,440 --> 00:05:36,440 Speaker 2: On a national level, the New Hampshire Judge and the 83 00:05:36,440 --> 00:05:41,599 Speaker 2: birthright Citizenship case certified a class action lawsuit on behalf 84 00:05:41,640 --> 00:05:46,960 Speaker 2: of US born children or future children whose automatic citizenship 85 00:05:47,000 --> 00:05:51,599 Speaker 2: could be jeopardized by President Trump's executive order, so wherever 86 00:05:51,640 --> 00:05:55,200 Speaker 2: those children may be across the country, So in effect 87 00:05:55,240 --> 00:05:59,480 Speaker 2: it's a nationwide injunction. Was he working within the confines 88 00:05:59,520 --> 00:06:02,599 Speaker 2: of the S'preme Court's decision or was this sort of 89 00:06:03,040 --> 00:06:03,839 Speaker 2: a workaround. 90 00:06:04,560 --> 00:06:08,880 Speaker 1: Well, the New Hampshire Judge just recently says that, you know, 91 00:06:08,960 --> 00:06:12,320 Speaker 1: I'm going to recognize, at least on a putative basis, 92 00:06:12,400 --> 00:06:15,280 Speaker 1: that there's a class here. It meets all the requirements 93 00:06:15,279 --> 00:06:18,760 Speaker 1: for a class action. Rule twenty three are into the 94 00:06:18,839 --> 00:06:23,600 Speaker 1: Federal Rules of Civil Procedure outline for criteria that have 95 00:06:23,680 --> 00:06:27,159 Speaker 1: to be met, and it certainly makes a lot of 96 00:06:27,200 --> 00:06:30,719 Speaker 1: sense that those would be met. In the birthright citizenship context. 97 00:06:30,760 --> 00:06:33,040 Speaker 1: You need a lot of people that would be affected 98 00:06:33,160 --> 00:06:36,080 Speaker 1: such that the courts just wouldn't be able to bring, 99 00:06:36,240 --> 00:06:38,280 Speaker 1: you know, maybe two or three or four or five 100 00:06:38,480 --> 00:06:41,159 Speaker 1: lawsuits and bring them together and try them together. Maybe 101 00:06:41,160 --> 00:06:44,400 Speaker 1: they were talking about thousands and in this case tens 102 00:06:44,400 --> 00:06:49,000 Speaker 1: of thousands maybe right away, perhaps possible lawsuits. So there's 103 00:06:49,120 --> 00:06:54,800 Speaker 1: a numerosity, there's a common factual and legal predicate that. 104 00:06:55,360 --> 00:06:56,120 Speaker 4: Has to be met. 105 00:06:56,160 --> 00:06:59,800 Speaker 1: And again it seems like this is pretty much the 106 00:07:00,360 --> 00:07:03,520 Speaker 1: everybody is going to have the same criteria. Either were 107 00:07:03,520 --> 00:07:07,200 Speaker 1: born in the United States or you weren't. And third, 108 00:07:07,480 --> 00:07:12,600 Speaker 1: there really is an ability to effectively pursue relief for 109 00:07:12,720 --> 00:07:16,080 Speaker 1: everybody by just trying a few people, and that there's 110 00:07:16,360 --> 00:07:20,480 Speaker 1: fourth effective representation for the full class. And the judge 111 00:07:20,480 --> 00:07:22,520 Speaker 1: in New Hampshire says, I think we've got that. I 112 00:07:22,520 --> 00:07:25,680 Speaker 1: think we've got a class action here. So in the 113 00:07:25,680 --> 00:07:29,240 Speaker 1: birthright citizenship case, that seems to be an avenue. And 114 00:07:29,280 --> 00:07:32,320 Speaker 1: we still may also see in some of the state 115 00:07:32,440 --> 00:07:35,600 Speaker 1: challengers coming forward, and a judge is saying we need 116 00:07:35,640 --> 00:07:39,200 Speaker 1: to put in place a nationwide injunction to provide complete relief. 117 00:07:39,280 --> 00:07:40,720 Speaker 1: So that's also still out there. 118 00:07:41,040 --> 00:07:45,280 Speaker 2: A Trump administration spokesperson said the judge was abusing the 119 00:07:45,320 --> 00:07:49,040 Speaker 2: class certification process. What do you think their arguments will 120 00:07:49,080 --> 00:07:52,320 Speaker 2: be against the certification of this class when they appeal. 121 00:07:53,040 --> 00:07:55,440 Speaker 1: Well, I think It's one thing to attack it from 122 00:07:55,480 --> 00:07:58,720 Speaker 1: the podium or on social media and another in a 123 00:07:58,800 --> 00:08:02,240 Speaker 1: court of law. You know, they've put forward some kind 124 00:08:02,280 --> 00:08:05,760 Speaker 1: of contrived argument, but it seems in this particular context 125 00:08:06,000 --> 00:08:10,080 Speaker 1: pretty clear case that a class action would apply. That's 126 00:08:10,120 --> 00:08:12,920 Speaker 1: I think why the Supreme Court in the Acosta case, 127 00:08:13,320 --> 00:08:15,160 Speaker 1: you know, spends a good bit of time talking about 128 00:08:15,160 --> 00:08:19,320 Speaker 1: the class action. I think this made a good vehicle 129 00:08:19,480 --> 00:08:23,720 Speaker 1: for the Court to pamp down on nationwide injunctions because 130 00:08:23,760 --> 00:08:27,480 Speaker 1: it seemed like, in my view, and the Court's recognizing 131 00:08:27,560 --> 00:08:29,960 Speaker 1: that this would have been the proper way of going 132 00:08:30,000 --> 00:08:34,280 Speaker 1: about preceding here in a class action format. There may 133 00:08:34,280 --> 00:08:37,640 Speaker 1: be other situations where it might be stretching it, and 134 00:08:38,000 --> 00:08:39,480 Speaker 1: we'll have to see. I mean, I do know that 135 00:08:39,520 --> 00:08:42,560 Speaker 1: the Supreme Court has been a little bit reining in 136 00:08:42,679 --> 00:08:47,200 Speaker 1: even on how frequently lower court judges are certifying classes. 137 00:08:47,240 --> 00:08:51,520 Speaker 1: But the factual and legal issues here really are the same. 138 00:08:51,880 --> 00:08:54,800 Speaker 1: You know, you have parents that meet the criteria in 139 00:08:54,840 --> 00:08:58,640 Speaker 1: the Executive Order and a child that's born in the 140 00:08:58,760 --> 00:09:02,360 Speaker 1: United States. That's paradigmatic, and that's not a whole lot 141 00:09:02,440 --> 00:09:05,080 Speaker 1: that's going to vary from one person to the next. 142 00:09:05,400 --> 00:09:10,400 Speaker 2: In his concurring opinion, Justice Brett Kavanaugh mentioned the Administrative 143 00:09:10,559 --> 00:09:15,439 Speaker 2: Procedure Act as providing the equivalent of a universal injunction, 144 00:09:16,040 --> 00:09:18,880 Speaker 2: and so a federal judge in New York cited the 145 00:09:18,920 --> 00:09:22,800 Speaker 2: APA when he set aside the administration's decisions to end 146 00:09:22,920 --> 00:09:26,920 Speaker 2: legal protections for Haitian migrants. A Washington judge did the 147 00:09:26,960 --> 00:09:31,160 Speaker 2: same in the case reviving asylum. Would these cases normally 148 00:09:31,240 --> 00:09:35,160 Speaker 2: have been brought under the APA or is this happening 149 00:09:35,280 --> 00:09:37,960 Speaker 2: because of the Supreme Court's cost A decision. 150 00:09:38,559 --> 00:09:42,240 Speaker 1: There's an important difference in what we can say about 151 00:09:42,360 --> 00:09:46,480 Speaker 1: whether these are being brought under the APA, whether the 152 00:09:46,640 --> 00:09:50,400 Speaker 1: relief comes from and is authorized by the APA. So 153 00:09:51,080 --> 00:09:53,720 Speaker 1: it may be that, you know, these are being brought 154 00:09:53,800 --> 00:09:58,160 Speaker 1: under immigration statutes, or they're being brought, you know, in 155 00:09:58,200 --> 00:10:02,840 Speaker 1: the birthright citizenship under a of constitutional law, the fourteenth Amendment. 156 00:10:03,240 --> 00:10:06,600 Speaker 1: But these all are revolving around the questions of what 157 00:10:06,920 --> 00:10:10,360 Speaker 1: the relief is that can be provided. And you're right, 158 00:10:10,480 --> 00:10:14,160 Speaker 1: you're exactly right to say that. You know, these judges 159 00:10:14,240 --> 00:10:17,040 Speaker 1: now are saying, well, there's relief that can be granted, 160 00:10:17,120 --> 00:10:22,439 Speaker 1: not through a preliminary injunction, which is grounded in the 161 00:10:22,559 --> 00:10:26,280 Speaker 1: law of equity. That goes back to even the founding 162 00:10:26,360 --> 00:10:30,560 Speaker 1: of our country and to some of the early statutes 163 00:10:30,600 --> 00:10:34,880 Speaker 1: giving courts authority, like the Judiciary Act of seventeen eighty nine. 164 00:10:35,720 --> 00:10:39,600 Speaker 1: That's what the Costa Court said, Well, no, that doesn't 165 00:10:39,640 --> 00:10:42,920 Speaker 1: give you the ability. Now they're saying, well, we have 166 00:10:42,960 --> 00:10:46,480 Speaker 1: another pathway, and I think you're right to say that 167 00:10:46,760 --> 00:10:50,440 Speaker 1: this is maybe a workaround. One might look at it 168 00:10:50,480 --> 00:10:54,320 Speaker 1: that way, but it's also just another alternative pathway, the 169 00:10:54,400 --> 00:10:57,960 Speaker 1: same way that you know, we all know that if 170 00:10:58,000 --> 00:11:02,880 Speaker 1: someone take a completly different context, if somebody is accused 171 00:11:02,880 --> 00:11:06,839 Speaker 1: of a crime and is found to be, you know, 172 00:11:06,920 --> 00:11:10,160 Speaker 1: not guilty, it just means that the prosecutors haven't met 173 00:11:10,240 --> 00:11:13,320 Speaker 1: the burden of proof beyond a reasonable doubt that the 174 00:11:13,320 --> 00:11:18,000 Speaker 1: person's guilty. It doesn't name that you can't then proceed 175 00:11:18,880 --> 00:11:22,679 Speaker 1: with civil actions against that person. In law, we often 176 00:11:22,840 --> 00:11:27,000 Speaker 1: have these multiple pathways, and as long as you have 177 00:11:27,480 --> 00:11:30,920 Speaker 1: one that's met, well, you know, maybe you don't need 178 00:11:30,960 --> 00:11:35,760 Speaker 1: to use the others. So, yes, the federal courts haven't 179 00:11:35,800 --> 00:11:40,319 Speaker 1: always invoked the Administrative Procedure Act, perhaps in the same 180 00:11:41,400 --> 00:11:45,120 Speaker 1: way that these judges are now right after Costa. But 181 00:11:45,240 --> 00:11:48,240 Speaker 1: you know, they and the litigants who are making arguments 182 00:11:48,240 --> 00:11:51,320 Speaker 1: before them are just doing what lawyers and judges do 183 00:11:51,400 --> 00:11:54,320 Speaker 1: all the time. If you know one pathway or one 184 00:11:54,559 --> 00:11:59,920 Speaker 1: possible means of getting some relief is not permissible, well 185 00:12:00,160 --> 00:12:01,920 Speaker 1: then go with what is permissible. 186 00:12:02,200 --> 00:12:05,520 Speaker 2: Coming up the drawbacks to using the APA, this is 187 00:12:05,520 --> 00:12:09,560 Speaker 2: bloomberg in a lot of a Supreme Court's decision at 188 00:12:09,600 --> 00:12:13,080 Speaker 2: the end of June limiting the ability of federal judges 189 00:12:13,120 --> 00:12:17,200 Speaker 2: to issue nationwide injunctions. Some judges have been blocking the 190 00:12:17,240 --> 00:12:21,600 Speaker 2: Trump agenda by using the alternative pass suggested by the justices. 191 00:12:21,880 --> 00:12:24,880 Speaker 2: I've been talking to Professor Carrie Coliniesi of the University 192 00:12:24,920 --> 00:12:28,880 Speaker 2: of Pennsylvania Carrie Law School. Are there drawbacks to using 193 00:12:28,920 --> 00:12:33,559 Speaker 2: the Administrative Procedure Act Because it has to be used 194 00:12:33,679 --> 00:12:36,800 Speaker 2: to vacate an agency's action, so it can't be used 195 00:12:36,840 --> 00:12:38,640 Speaker 2: to attack an executive order. 196 00:12:38,840 --> 00:12:42,600 Speaker 1: It's a weaker tool. Since a Supreme Court decision in 197 00:12:42,679 --> 00:12:47,080 Speaker 1: nineteen ninety two Franklin versus Massachusetts, it's generally thought that 198 00:12:47,559 --> 00:12:52,280 Speaker 1: the Administrative Procedure Act doesn't really apply to the president. 199 00:12:52,760 --> 00:12:56,040 Speaker 1: You know that we can probably debate how Franklin Vief 200 00:12:56,200 --> 00:13:00,000 Speaker 1: Massachusetts is, But yeah, I think that you would ordinately 201 00:13:00,400 --> 00:13:05,640 Speaker 1: not see these apa set asides against anything other than agencies. 202 00:13:05,960 --> 00:13:12,479 Speaker 1: But you know, executive orders themselves rarely are self implementing, 203 00:13:13,320 --> 00:13:17,640 Speaker 1: so all that executive orders, almost all executive orders are 204 00:13:17,760 --> 00:13:22,720 Speaker 1: just that they're ordering administrative agencies at the federal level 205 00:13:22,760 --> 00:13:27,079 Speaker 1: to do something, and when they do it, they're subject 206 00:13:27,160 --> 00:13:30,040 Speaker 1: to the Administrative Procedure Act. So you know, I think 207 00:13:30,080 --> 00:13:34,400 Speaker 1: it's still quite a feasible pathway to address something that's 208 00:13:34,440 --> 00:13:37,320 Speaker 1: objectionable about an executive order, just you have to wait 209 00:13:37,400 --> 00:13:41,400 Speaker 1: until some agency actually follows that executive order for it 210 00:13:41,440 --> 00:13:41,880 Speaker 1: to apply. 211 00:13:42,320 --> 00:13:46,480 Speaker 2: Some government lawyers in cases are asking judges to pair 212 00:13:46,559 --> 00:13:50,840 Speaker 2: back their injunctions because of the Supreme Court's ruling. Is 213 00:13:50,840 --> 00:13:52,040 Speaker 2: that likely to happen? 214 00:13:52,760 --> 00:13:57,640 Speaker 1: Well, I mean, I think it's probably likely that we'll 215 00:13:57,679 --> 00:14:02,240 Speaker 1: have to have a reassessment of some of these nationwide injunctions, 216 00:14:02,880 --> 00:14:08,280 Speaker 1: but that reassessment is in many cases likely still to 217 00:14:09,240 --> 00:14:14,600 Speaker 1: result in what is effectively some nationwide relief when any 218 00:14:14,640 --> 00:14:19,720 Speaker 1: of the three available still available pathways exist. One is 219 00:14:20,200 --> 00:14:25,680 Speaker 1: an equitable nationwide injunction, when complete relief it can only 220 00:14:25,720 --> 00:14:29,600 Speaker 1: be provided that way. Two is through a class action, 221 00:14:29,800 --> 00:14:33,520 Speaker 1: and three is through the administrative Procedure Act, and it's 222 00:14:34,000 --> 00:14:37,640 Speaker 1: set aside provisions in section seven six. 223 00:14:38,200 --> 00:14:41,000 Speaker 2: Considering all this that, as far as we've seen, a 224 00:14:41,040 --> 00:14:46,760 Speaker 2: lot of plaintiffs are succeeding with these alternative paths. How 225 00:14:46,840 --> 00:14:49,280 Speaker 2: much do you think the Supreme Court ruling is really 226 00:14:49,320 --> 00:14:52,520 Speaker 2: going to help the Trump administration? How big a win 227 00:14:52,640 --> 00:14:54,000 Speaker 2: was this for the Trump administration? 228 00:14:54,840 --> 00:14:56,960 Speaker 1: Well, it's certainly not as big a win as they've 229 00:14:57,000 --> 00:15:01,760 Speaker 1: laid out, you know, and claimed for themselves. That's hardly 230 00:15:01,880 --> 00:15:05,600 Speaker 1: the first time, right, they are quite frankly other politicians 231 00:15:05,680 --> 00:15:09,360 Speaker 1: right exaggerate what they have obtained. You know, I think 232 00:15:09,400 --> 00:15:14,680 Speaker 1: in the birthright citizenship case it's probably not likely to 233 00:15:14,720 --> 00:15:17,520 Speaker 1: be much of a win at all. And then the 234 00:15:17,640 --> 00:15:21,720 Speaker 1: question is, will it, maybe at the margin, make it 235 00:15:21,800 --> 00:15:26,479 Speaker 1: more difficult to obtain what is some kind of nationwide 236 00:15:26,600 --> 00:15:33,160 Speaker 1: relief in other cases? And probably that's true because complete 237 00:15:33,200 --> 00:15:38,600 Speaker 1: relief might not always be evident. It might be harder 238 00:15:38,640 --> 00:15:43,400 Speaker 1: to meet the class certification standards, especially if the Supreme 239 00:15:43,440 --> 00:15:48,680 Speaker 1: Court wants to scrutinize those even more rigorously. And this 240 00:15:48,840 --> 00:15:51,960 Speaker 1: set aside will only apply and you know in some 241 00:15:52,280 --> 00:15:55,440 Speaker 1: proportion of the cases where there might want to be 242 00:15:55,480 --> 00:15:59,440 Speaker 1: some nationwide relief and the Cost Court. By the way, 243 00:15:59,600 --> 00:16:03,400 Speaker 1: also with respect to the set aside under the Administrative 244 00:16:03,440 --> 00:16:06,840 Speaker 1: Procedure Act, it says we're not deciding anything on that, 245 00:16:07,000 --> 00:16:13,680 Speaker 1: so expect more litigation about really the extent to which 246 00:16:13,920 --> 00:16:19,240 Speaker 1: courts can must rely on the set aside provision in 247 00:16:19,560 --> 00:16:24,040 Speaker 1: five USC. Section seven oh six of the Administrative Procedure Act. 248 00:16:24,120 --> 00:16:26,160 Speaker 2: Yeah, that was my next question. How fast do you 249 00:16:26,200 --> 00:16:29,200 Speaker 2: think this is going to return to the Supreme Court? 250 00:16:29,440 --> 00:16:33,840 Speaker 1: Well, Justice Kavanaugh seemed to think in his separate opinion 251 00:16:33,840 --> 00:16:36,840 Speaker 1: in the cost Of case that you know, the Supreme 252 00:16:36,880 --> 00:16:41,720 Speaker 1: Court is going to be at the ready to resolve 253 00:16:41,960 --> 00:16:46,720 Speaker 1: a lot of these preliminary relief questions, and that we're 254 00:16:46,720 --> 00:16:49,480 Speaker 1: going to start to see, you know, even more of 255 00:16:50,040 --> 00:16:53,920 Speaker 1: what we've already been seeing, which is cases going right 256 00:16:53,960 --> 00:16:56,320 Speaker 1: on up to the Supreme Court in a way that 257 00:16:56,760 --> 00:17:01,720 Speaker 1: I think certainly ten years ago, years ago, the Supreme 258 00:17:01,720 --> 00:17:05,160 Speaker 1: Court wouldn't have been weighing in as readily and frequently. 259 00:17:05,280 --> 00:17:09,440 Speaker 1: But yes, definitely expect more Supreme Court action. In some ways, 260 00:17:09,520 --> 00:17:14,280 Speaker 1: that's an important upshot of the Kasa decision is that 261 00:17:14,520 --> 00:17:17,800 Speaker 1: the Supreme Court is still calling a lot of shots 262 00:17:18,280 --> 00:17:22,840 Speaker 1: with respect to how and when the executive branch can 263 00:17:22,880 --> 00:17:27,080 Speaker 1: be held to account for and be constrained by the 264 00:17:27,160 --> 00:17:27,720 Speaker 1: rule of law. 265 00:17:28,320 --> 00:17:31,679 Speaker 2: And why do you think so many people are paying attention, 266 00:17:32,480 --> 00:17:37,720 Speaker 2: even some judges to Justice Alito's concurrence in Kasa, where 267 00:17:37,760 --> 00:17:41,919 Speaker 2: he warns about the court strictly adhering to the requirements 268 00:17:41,960 --> 00:17:44,080 Speaker 2: for class certification, etc. 269 00:17:44,960 --> 00:17:49,119 Speaker 1: Well, this is a Supreme Court that is remaking a 270 00:17:49,200 --> 00:17:52,240 Speaker 1: good bit of what was for a long time fairly 271 00:17:52,320 --> 00:17:57,600 Speaker 1: settled law, especially with respect to the relationship between the 272 00:17:57,600 --> 00:18:01,600 Speaker 1: courts and the executive branch. And on the one hand, 273 00:18:01,680 --> 00:18:05,399 Speaker 1: this court is skeptical of administrative power, but on the 274 00:18:05,400 --> 00:18:10,160 Speaker 1: other hand it seems also to be supportive of presidential 275 00:18:10,240 --> 00:18:14,680 Speaker 1: power to a larger extent than prior courts. And what's 276 00:18:14,760 --> 00:18:17,480 Speaker 1: really an issue? And in some ways with the Alito 277 00:18:17,720 --> 00:18:22,119 Speaker 1: separate opinion, which by the way, only attracted one other justice, 278 00:18:22,280 --> 00:18:25,920 Speaker 1: so maybe that should itself indicate that it's not really 279 00:18:25,920 --> 00:18:28,040 Speaker 1: going to be meaningful. But I think what he raises 280 00:18:28,160 --> 00:18:31,200 Speaker 1: is this really at this heart of this matter is 281 00:18:31,520 --> 00:18:36,240 Speaker 1: how much should the courts be weighing in and providing 282 00:18:36,280 --> 00:18:43,199 Speaker 1: relief when the executive branch is undertaking action that at 283 00:18:43,280 --> 00:18:47,440 Speaker 1: least the litigants think is unlawful. And you know, if 284 00:18:47,480 --> 00:18:51,119 Speaker 1: you think that there's a need for strong presidential power, 285 00:18:51,640 --> 00:18:56,359 Speaker 1: then you might want to have lower courts be more 286 00:18:56,520 --> 00:19:00,800 Speaker 1: limited in when they can issue nationwide injunctions, letting a 287 00:19:00,880 --> 00:19:05,720 Speaker 1: president's administration go forward with action even if it's being 288 00:19:05,840 --> 00:19:09,720 Speaker 1: challenged in court, giving a little bit more leeway to 289 00:19:09,800 --> 00:19:12,080 Speaker 1: the president. On the other hand, if you're skeptical of 290 00:19:12,119 --> 00:19:15,920 Speaker 1: administrative agencies in their power, you might want to see 291 00:19:16,080 --> 00:19:21,240 Speaker 1: the ability for more judicial scrutiny of administrative action. And 292 00:19:21,760 --> 00:19:24,600 Speaker 1: I think goes the opposite of what Alito and Thomas 293 00:19:24,680 --> 00:19:28,960 Speaker 1: were urging, And maybe we should have more liberal use 294 00:19:29,040 --> 00:19:32,400 Speaker 1: of the set aside provision under the APA or under 295 00:19:32,400 --> 00:19:36,119 Speaker 1: class actions. So I mean, I think, really this is 296 00:19:36,160 --> 00:19:41,240 Speaker 1: a fascinating, fascinating case because it's really a pivot point 297 00:19:41,480 --> 00:19:46,919 Speaker 1: in this tension between presidential power and the administrative state. 298 00:19:47,400 --> 00:19:50,359 Speaker 1: And then where do the courts find themselves situate? As 299 00:19:50,440 --> 00:19:53,920 Speaker 1: here in kind of policing the boundaries of the rule 300 00:19:53,960 --> 00:19:57,359 Speaker 1: of law, we're in a realm in which the lower 301 00:19:57,400 --> 00:20:01,960 Speaker 1: courts are faithful agents. I think of a body of 302 00:20:02,080 --> 00:20:06,080 Speaker 1: law that has existed for a long time, and they're 303 00:20:06,119 --> 00:20:09,879 Speaker 1: in a sense in case after case it seems, getting 304 00:20:09,880 --> 00:20:14,120 Speaker 1: the rug pulled out from under them. And so they're 305 00:20:14,480 --> 00:20:20,320 Speaker 1: dutifully when faced with alternative arguments and alternative bases for 306 00:20:20,560 --> 00:20:24,199 Speaker 1: providing relief, calling it like they see it, and that 307 00:20:24,359 --> 00:20:27,080 Speaker 1: is the rule of law. That is what lower court 308 00:20:27,280 --> 00:20:31,760 Speaker 1: judges should be doing. At times, seems like the Supreme 309 00:20:31,760 --> 00:20:36,960 Speaker 1: Court doesn't really have those lower court justices back, if 310 00:20:37,040 --> 00:20:42,160 Speaker 1: you will, And it's a very interesting time to have 311 00:20:42,200 --> 00:20:45,920 Speaker 1: a Supreme Court that, you know, whether it's on presidential 312 00:20:46,119 --> 00:20:50,480 Speaker 1: immunity or other questions here, you know, really kind of 313 00:20:50,680 --> 00:20:55,720 Speaker 1: undermining what the lower courts as dutiful agents of enforcers 314 00:20:55,720 --> 00:20:57,119 Speaker 1: of the law, as they should. 315 00:20:57,280 --> 00:21:00,639 Speaker 2: There are only two justices who have trial court experience. 316 00:21:01,680 --> 00:21:06,040 Speaker 2: Justice is Sonya Sotomayor and Katanji Brown Jackson. And I 317 00:21:06,080 --> 00:21:10,000 Speaker 2: wonder if that plays into the justice's attitudes towards the 318 00:21:10,080 --> 00:21:11,120 Speaker 2: trial court judges. 319 00:21:11,960 --> 00:21:17,320 Speaker 1: Sometimes there's accusations of ideological differences, but I think there's 320 00:21:17,359 --> 00:21:21,000 Speaker 1: another difference here. It's just the Supreme Court is overseeing 321 00:21:21,000 --> 00:21:25,359 Speaker 1: an entire judicial system, and it seems that as of late, 322 00:21:25,640 --> 00:21:29,480 Speaker 1: you know, at least impressionistically, in a lot of important cases, 323 00:21:29,880 --> 00:21:33,560 Speaker 1: the lower courts are calling it like what all the experts, 324 00:21:33,600 --> 00:21:37,600 Speaker 1: even my law students would have said, you know, this 325 00:21:37,720 --> 00:21:39,760 Speaker 1: is the right answer. I mean, just you know, black 326 00:21:39,840 --> 00:21:43,080 Speaker 1: letter law, and yet we're changing things. 327 00:21:43,119 --> 00:21:46,400 Speaker 2: So yeah, it seems like the value of precedent has 328 00:21:46,720 --> 00:21:50,399 Speaker 2: diminished a great deal. Thanks so much Carrie for joining me. 329 00:21:50,840 --> 00:21:55,080 Speaker 2: That's Professor Carry Colinisi of the University of Pennsylvania Carrie 330 00:21:55,160 --> 00:22:00,880 Speaker 2: Law School. This term, the Trump administration is bagging behind 331 00:22:00,920 --> 00:22:06,440 Speaker 2: the Biden administration and the first Trump administration in judicial appointments. 332 00:22:06,880 --> 00:22:09,760 Speaker 2: Joining me is Professor Carl Tobias of the University of 333 00:22:09,880 --> 00:22:14,320 Speaker 2: Richmond Law School. So Carl Whitney Hermanndorffer is going to 334 00:22:14,359 --> 00:22:18,879 Speaker 2: be the first judge confirmed for the Trump administration this 335 00:22:19,040 --> 00:22:22,960 Speaker 2: time around. How does this compare, you know, one judge 336 00:22:22,960 --> 00:22:27,840 Speaker 2: at this point in July, mid July, compared to how 337 00:22:27,880 --> 00:22:32,440 Speaker 2: many judges Biden had confirmed by this point and how 338 00:22:32,440 --> 00:22:34,960 Speaker 2: many judges Trump had confirmed by this point in his 339 00:22:35,040 --> 00:22:35,640 Speaker 2: first term. 340 00:22:36,119 --> 00:22:38,359 Speaker 4: I don't have the right infirm me, but I think 341 00:22:38,400 --> 00:22:42,720 Speaker 4: Biden was somewhere between five and ten, and a couple 342 00:22:42,800 --> 00:22:47,480 Speaker 4: of them were appellate judges, and then Trump, I think 343 00:22:47,880 --> 00:22:53,600 Speaker 4: might have been a little slower than Biden, and he 344 00:22:53,720 --> 00:22:58,440 Speaker 4: had three or four or so maybe five, but all 345 00:22:58,480 --> 00:23:02,360 Speaker 4: of them, you know, started fairly slowly, but I think 346 00:23:02,400 --> 00:23:05,680 Speaker 4: it is much slower than he did in the first term. 347 00:23:05,720 --> 00:23:08,680 Speaker 4: But he has been busy doing lots of other things. 348 00:23:08,840 --> 00:23:12,560 Speaker 2: Well. Is it also that not as many judges are 349 00:23:12,600 --> 00:23:14,399 Speaker 2: taking retirement. 350 00:23:15,119 --> 00:23:19,560 Speaker 4: Yes, of course, because remember a Republican majority in the 351 00:23:19,640 --> 00:23:26,080 Speaker 4: last two years of Obama's presidency did not confirm very 352 00:23:26,080 --> 00:23:29,119 Speaker 4: many people at all, in fact, the fewest since Harry 353 00:23:29,200 --> 00:23:34,480 Speaker 4: Truman was president, and so that meant that more than 354 00:23:34,480 --> 00:23:40,199 Speaker 4: a hundred vacancies appellot and district were available for Trump 355 00:23:41,200 --> 00:23:45,800 Speaker 4: to fill, and so of course he was bound to 356 00:23:45,840 --> 00:23:48,440 Speaker 4: determined to fill all of those, and did fill all 357 00:23:48,480 --> 00:23:52,600 Speaker 4: of the appellate ones, which hadn't happened since nineteen eighty 358 00:23:52,640 --> 00:23:56,960 Speaker 4: four during Reagan's administration. So he was focused like a 359 00:23:57,040 --> 00:24:00,760 Speaker 4: laser on the appeals courts and had many to fill. 360 00:24:01,240 --> 00:24:08,000 Speaker 2: Bloomberg Law reported recently that even Republican judges are hesitant 361 00:24:08,080 --> 00:24:12,800 Speaker 2: right now to retire because of the fact that Trump 362 00:24:13,400 --> 00:24:17,320 Speaker 2: in the second term is looking for Trump loyalists rather 363 00:24:17,400 --> 00:24:19,200 Speaker 2: than just conservatives. 364 00:24:19,840 --> 00:24:23,840 Speaker 4: Yes, as your reporter said, and a number of people 365 00:24:23,880 --> 00:24:29,080 Speaker 4: have pointed out, there have been hardly any judges appointed 366 00:24:29,080 --> 00:24:35,280 Speaker 4: by Democrats or Republicans this year who have chosen to 367 00:24:35,280 --> 00:24:39,000 Speaker 4: take senior status. And I think it's especially compelling at 368 00:24:39,000 --> 00:24:43,320 Speaker 4: the appellate level. I don't believe any appellate judge has 369 00:24:43,440 --> 00:24:47,960 Speaker 4: said that the person has the intention to assume senior status. 370 00:24:48,200 --> 00:24:51,240 Speaker 4: And part of that I think is seeing some of 371 00:24:51,359 --> 00:24:55,920 Speaker 4: Trump's two point zero nominees, at least that's what the 372 00:24:56,080 --> 00:24:57,280 Speaker 4: legal press is saying. 373 00:24:58,000 --> 00:25:01,720 Speaker 2: So speaking of one of his nomine that was controversial 374 00:25:02,240 --> 00:25:06,800 Speaker 2: to start out with, that's Emil Beauvet, and he wouldn't 375 00:25:06,840 --> 00:25:11,239 Speaker 2: answer directly if Trump could serve a third term in 376 00:25:11,320 --> 00:25:16,399 Speaker 2: office under the constitution. A lot of the nominees won't 377 00:25:16,480 --> 00:25:20,400 Speaker 2: say whether Biden really won the election or not. They'll 378 00:25:20,400 --> 00:25:23,400 Speaker 2: say things like, well, he was president, he was sworn in. 379 00:25:23,760 --> 00:25:27,560 Speaker 2: I mean, this takes partisanship to a new level, doesn't it. 380 00:25:28,680 --> 00:25:31,680 Speaker 4: Well, I think it does, which is unfortunate. Of course, 381 00:25:32,440 --> 00:25:36,440 Speaker 4: that's very true, especially of the Department of Justice nominees 382 00:25:36,600 --> 00:25:40,639 Speaker 4: who's been confirmed, especially at the upper echelon level. But 383 00:25:41,240 --> 00:25:48,119 Speaker 4: Bode also declined to say whether he had said something 384 00:25:48,280 --> 00:25:56,159 Speaker 4: very degrading about the district judges and whether court orders 385 00:25:56,160 --> 00:26:01,280 Speaker 4: would be followed by this administration, and he just refused 386 00:26:01,280 --> 00:26:05,679 Speaker 4: to weigh in on whether he had said that and 387 00:26:05,880 --> 00:26:10,680 Speaker 4: used a very bad word to describe that. So it's 388 00:26:10,720 --> 00:26:16,200 Speaker 4: just unclear. But he had very few straightforward answers in 389 00:26:16,240 --> 00:26:22,520 Speaker 4: the hearing, especially from Democrats questioning him and the kind 390 00:26:22,520 --> 00:26:26,360 Speaker 4: of questions that you're asking about January sixth and others, 391 00:26:26,400 --> 00:26:31,040 Speaker 4: and just left I think a number of people wondering 392 00:26:31,280 --> 00:26:34,159 Speaker 4: what exactly he would do, whether he had proper temperament 393 00:26:34,320 --> 00:26:38,000 Speaker 4: for someone to sit on the US Court of Appeals 394 00:26:38,000 --> 00:26:40,800 Speaker 4: for the Third Circuit if his vote. 395 00:26:40,640 --> 00:26:44,400 Speaker 2: Goes down party lines. I mean, is there anyone that 396 00:26:44,760 --> 00:26:48,000 Speaker 2: the Republicans won't push through then? Because there's also, you know, 397 00:26:48,000 --> 00:26:51,840 Speaker 2: as you mentioned, whistleblower allegations, and there have been confirming 398 00:26:52,000 --> 00:26:56,120 Speaker 2: documents about them. So either you believe the whistle blower 399 00:26:56,240 --> 00:26:58,680 Speaker 2: or you believe him you denied the whole thing. 400 00:26:59,240 --> 00:27:03,399 Speaker 4: Well, that's a good question. I think some people thought 401 00:27:03,840 --> 00:27:08,240 Speaker 4: that Senator tell Us from North Carolina might vote know, 402 00:27:08,640 --> 00:27:12,440 Speaker 4: given what he did by way of saying he would 403 00:27:12,440 --> 00:27:18,240 Speaker 4: oppose Ed Martin for DC US Attorney. But he said 404 00:27:18,400 --> 00:27:22,919 Speaker 4: just last week that he probably would vote for bov 405 00:27:23,680 --> 00:27:28,840 Speaker 4: because his staff recommended that he vote yes. I don't 406 00:27:28,880 --> 00:27:33,360 Speaker 4: know what he will do. But it is possible that 407 00:27:33,440 --> 00:27:37,120 Speaker 4: there will be another twelve to ten party line vote 408 00:27:37,440 --> 00:27:41,520 Speaker 4: on this nominee, and then it goes to the floor, 409 00:27:42,240 --> 00:27:47,679 Speaker 4: and the question is whether Democrats can muster enough votes 410 00:27:47,720 --> 00:27:51,199 Speaker 4: from Republicans on the floor, and they are likely to 411 00:27:51,240 --> 00:27:56,520 Speaker 4: be relatively deferential to their Judiciary Committee members and their vote. 412 00:27:56,520 --> 00:27:59,480 Speaker 4: If it turns out that way, he's an eleven eleven vote. 413 00:27:59,480 --> 00:28:00,560 Speaker 4: It gets the closer. 414 00:28:01,160 --> 00:28:05,000 Speaker 2: Trump is nominating Eric Chung, a former federal prosecutor for 415 00:28:05,040 --> 00:28:09,440 Speaker 2: the ninth Circuit, so he's replacing a George W. Bush appointee, 416 00:28:09,480 --> 00:28:13,199 Speaker 2: So that won't shift the balance on that court. 417 00:28:13,520 --> 00:28:17,920 Speaker 4: That's right. It still would be sixteen active judges appointed 418 00:28:17,960 --> 00:28:23,640 Speaker 4: by Democratic presidents and thirteen appointed by Republican presidents. As 419 00:28:23,680 --> 00:28:28,960 Speaker 4: you know. Of course, Trump has appointed ten in one 420 00:28:29,000 --> 00:28:33,080 Speaker 4: point oh to that court, which makes it much closer 421 00:28:33,080 --> 00:28:35,760 Speaker 4: than it used to be in terms of appointing president. 422 00:28:36,240 --> 00:28:38,880 Speaker 2: What about Toung? Is there any opposition to him? 423 00:28:39,480 --> 00:28:41,960 Speaker 4: Not that I've heard of. I mean, he looks more 424 00:28:42,080 --> 00:28:47,080 Speaker 4: to me and others like the one point oh nominees 425 00:28:47,120 --> 00:28:53,320 Speaker 4: who are members of the Federalist Society. He is at 426 00:28:53,360 --> 00:28:56,640 Speaker 4: Don mcgahn's firm, who you know, was the White House 427 00:28:56,680 --> 00:28:59,160 Speaker 4: Council for the first two years of one point zero. 428 00:29:00,240 --> 00:29:04,040 Speaker 4: Has done a lot of commercial litigation and work of 429 00:29:04,040 --> 00:29:07,400 Speaker 4: that sort, but he would be a classic one point 430 00:29:07,520 --> 00:29:11,640 Speaker 4: oh nominee. So there is some levining there may be 431 00:29:11,800 --> 00:29:14,480 Speaker 4: on the part of Trump and the other person for 432 00:29:14,560 --> 00:29:19,880 Speaker 4: the first Circuit in Maine named Joshua Dunlap, a similar 433 00:29:20,040 --> 00:29:23,640 Speaker 4: sort of nominee. That was the seat that was to 434 00:29:23,680 --> 00:29:26,640 Speaker 4: go to the person who's now in the Main Supreme Court, 435 00:29:27,240 --> 00:29:31,200 Speaker 4: Julia Lippez. When the deal was struck with Schumer for 436 00:29:31,320 --> 00:29:34,880 Speaker 4: the four appellate nominees who did not get votes in 437 00:29:34,920 --> 00:29:38,880 Speaker 4: return for the twelve district nominees who did in November 438 00:29:39,040 --> 00:29:41,400 Speaker 4: last year, And is there. 439 00:29:41,240 --> 00:29:45,680 Speaker 2: A hold up for confirmation of the US attorneys in 440 00:29:45,720 --> 00:29:48,320 Speaker 2: the Southern and Eastern districts of New York. 441 00:29:49,560 --> 00:29:52,280 Speaker 4: What I think is going on there is Schumer is 442 00:29:52,320 --> 00:29:56,560 Speaker 4: not returning his blue slip for Clayton on the Southern 443 00:29:56,600 --> 00:30:00,239 Speaker 4: district and the same for the Eastern District nominee, and 444 00:30:00,960 --> 00:30:05,120 Speaker 4: Graftley has said he will honor that. So Trump has 445 00:30:05,160 --> 00:30:08,160 Speaker 4: to come up with another nominee for both of those 446 00:30:08,240 --> 00:30:12,560 Speaker 4: US attorney positions. Is the way I understand it, so 447 00:30:12,960 --> 00:30:15,200 Speaker 4: he hasn't done that, and then it falls to the 448 00:30:15,280 --> 00:30:19,640 Speaker 4: judges of the district. They have the discretion to appoint 449 00:30:19,640 --> 00:30:25,280 Speaker 4: somebody else when the acting or interim's time expires one 450 00:30:25,360 --> 00:30:26,520 Speaker 4: hundred and twenty days. 451 00:30:27,120 --> 00:30:30,520 Speaker 2: And also the federal judges in the Northern District of 452 00:30:30,560 --> 00:30:36,640 Speaker 2: New York decline to appoint John Sarcone, who was Trump's 453 00:30:36,680 --> 00:30:41,720 Speaker 2: temporary US Attorney pick, to permanently serve as the top prosecutor. 454 00:30:41,760 --> 00:30:43,400 Speaker 2: There is that unusual. 455 00:30:44,000 --> 00:30:47,280 Speaker 4: He has very unusual. It's rare that they their judges 456 00:30:47,520 --> 00:30:52,400 Speaker 4: go forward and exercise that discretion, but they do sometimes, 457 00:30:52,840 --> 00:30:59,040 Speaker 4: and in this situation they decline to go forward with him, 458 00:30:59,800 --> 00:31:03,560 Speaker 4: And so now I don't know exactly why it is 459 00:31:03,600 --> 00:31:06,000 Speaker 4: going to happen. I was surprised they didn't then name 460 00:31:06,080 --> 00:31:09,560 Speaker 4: somebody else, which they have the authority to do. But 461 00:31:09,640 --> 00:31:11,280 Speaker 4: maybe they'll do that in the coming days. 462 00:31:11,400 --> 00:31:13,840 Speaker 2: Do you have any hint as to why they didn't 463 00:31:14,120 --> 00:31:17,040 Speaker 2: confirm him. 464 00:31:16,160 --> 00:31:19,200 Speaker 4: Well, there are a number of reports in the newspapers 465 00:31:19,320 --> 00:31:25,120 Speaker 4: in the Northern District, especially Albany Paper, but some others 466 00:31:25,120 --> 00:31:30,600 Speaker 4: that left the impression that the judges were not happy 467 00:31:30,680 --> 00:31:33,800 Speaker 4: with his work during that one hundred and twenty days 468 00:31:34,280 --> 00:31:36,960 Speaker 4: and there were questions about where he lived. He's from 469 00:31:37,000 --> 00:31:41,320 Speaker 4: Westchester County. And also he was said that in the 470 00:31:41,360 --> 00:31:44,480 Speaker 4: first term of Trump he was hoping to be appointed 471 00:31:44,480 --> 00:31:46,760 Speaker 4: at the federal bench, and he also hopes to be 472 00:31:46,800 --> 00:31:49,480 Speaker 4: appointed to the federal bench in this term. And so 473 00:31:49,640 --> 00:31:52,680 Speaker 4: some of that may not have sat well with the 474 00:31:52,840 --> 00:31:55,600 Speaker 4: judges of the Northern District. I don't know, but in 475 00:31:55,680 --> 00:31:58,400 Speaker 4: any event, they've declined to exercise it, even though they 476 00:31:58,440 --> 00:32:00,520 Speaker 4: have that discussion and could do that and could do 477 00:32:00,600 --> 00:32:03,240 Speaker 4: it yet otherwise, I think it's back to the drawing boards, 478 00:32:03,280 --> 00:32:07,000 Speaker 4: and then maybe the president would have some other permanent 479 00:32:07,360 --> 00:32:11,720 Speaker 4: nominee for that position who could be confirmed by the Senate. 480 00:32:12,040 --> 00:32:14,880 Speaker 4: But also if the judges go ahead and appoint someone, 481 00:32:14,960 --> 00:32:18,479 Speaker 4: that person would be acting or interim in that period 482 00:32:18,560 --> 00:32:20,800 Speaker 4: until there was a nominee from the White House who 483 00:32:20,960 --> 00:32:21,680 Speaker 4: was confirmed. 484 00:32:22,000 --> 00:32:27,000 Speaker 2: Istrup also being slow about making nominations for US attorneys. 485 00:32:27,480 --> 00:32:31,160 Speaker 4: Yes, and this is in contrast to one point zero 486 00:32:31,760 --> 00:32:37,040 Speaker 4: where he named eighty five US attorneys who were confirmed 487 00:32:37,520 --> 00:32:41,880 Speaker 4: on bipartisan votes. And so it's troubling that he is 488 00:32:42,280 --> 00:32:46,800 Speaker 4: moving so slowly now. But for some reason he's using 489 00:32:46,840 --> 00:32:50,960 Speaker 4: interims and actings rather than appointing permanent people, and that 490 00:32:51,080 --> 00:32:54,040 Speaker 4: avoids the advice and consent of the Senate, and I 491 00:32:54,080 --> 00:32:57,160 Speaker 4: think the Senate is not happy about that, especially Judiciary 492 00:32:57,160 --> 00:33:00,600 Speaker 4: Committee members, because they're supposed to have that opper that's 493 00:33:00,640 --> 00:33:04,200 Speaker 4: in the Constitution. So it's just unclear what they're doing. 494 00:33:04,760 --> 00:33:08,360 Speaker 4: And so right now we have maybe twenty to twenty 495 00:33:08,400 --> 00:33:12,800 Speaker 4: five whom the President has nominated, but not one has 496 00:33:12,840 --> 00:33:16,720 Speaker 4: been confirmed yet. And the reason for that is Dick Durbin, 497 00:33:17,480 --> 00:33:22,000 Speaker 4: the ranking member on Judiciary, has said that he's holding 498 00:33:22,080 --> 00:33:25,719 Speaker 4: up all of those people on the floor should they 499 00:33:25,760 --> 00:33:30,600 Speaker 4: get there, because Vice President Vance, as a Senator from Ohio, 500 00:33:31,640 --> 00:33:35,600 Speaker 4: refused to confirm Durbin's nominee for the Northern District of Illinois, 501 00:33:35,600 --> 00:33:40,320 Speaker 4: as well as Vance's own person for the Northern District 502 00:33:40,600 --> 00:33:44,840 Speaker 4: of Ohio because he didn't like what was going on 503 00:33:44,920 --> 00:33:47,240 Speaker 4: as the Justice Department. Twenty three, twenty four. 504 00:33:47,600 --> 00:33:50,440 Speaker 2: It's payback. What can I say, Chuck Schumer's holding the 505 00:33:50,640 --> 00:33:54,160 Speaker 2: US attorney nominee because Trump accepted that jet. You can't 506 00:33:54,160 --> 00:33:56,960 Speaker 2: make this stuff up. Hookay, Carl, thanks so much. That's 507 00:33:57,000 --> 00:34:00,440 Speaker 2: Professor Carl Tobias of the University of Richmond Law School, 508 00:34:00,880 --> 00:34:03,200 Speaker 2: and that's it for this edition of The Bloomberg Law Show. 509 00:34:03,520 --> 00:34:05,840 Speaker 2: Remember you can always get the latest legal news on 510 00:34:05,920 --> 00:34:10,200 Speaker 2: our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify, 511 00:34:10,400 --> 00:34:15,440 Speaker 2: and at www dot bloomberg dot com slash podcast Slash Law, 512 00:34:15,840 --> 00:34:18,400 Speaker 2: And remember to tune into The Bloomberg Law Show every 513 00:34:18,480 --> 00:34:22,360 Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso 514 00:34:22,520 --> 00:34:24,120 Speaker 2: and you're listening to Bloomberg