1
00:00:03,200 --> 00:00:08,000
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.

2
00:00:10,039 --> 00:00:12,879
Speaker 2: Welcome to the Bloomberg Law Show. I'm June Grosso. The

3
00:00:12,920 --> 00:00:18,360
Speaker 2: House impeaches Homeland Security Secretary Alejandro Majorcis on its second try.

4
00:00:18,720 --> 00:00:22,400
Speaker 2: What will the Senate do? And the country's oldest judge

5
00:00:22,520 --> 00:00:24,640
Speaker 2: loses her fight to be reinstated.

6
00:00:27,200 --> 00:00:30,080
Speaker 1: On this vote the Yaser two fourteen and the NASER

7
00:00:30,160 --> 00:00:33,080
Speaker 1: two thirteen, the resolution is adopted.

8
00:00:34,159 --> 00:00:38,479
Speaker 2: House Republicans finally got that one vote margin necessary to

9
00:00:38,560 --> 00:00:43,360
Speaker 2: impeach Homeland Security Secretary Alejandro Majorcis in a redo of

10
00:00:43,400 --> 00:00:47,320
Speaker 2: their failed attempt last week. Majorcis, the first Latino and

11
00:00:47,479 --> 00:00:50,760
Speaker 2: immigrant to head the department, is only the second cabinet

12
00:00:50,800 --> 00:00:54,040
Speaker 2: member in US history and the first in almost one

13
00:00:54,080 --> 00:00:57,880
Speaker 2: hundred and fifty years to be impeached. The impeachment articles

14
00:00:57,960 --> 00:01:02,600
Speaker 2: charged Majorcis with failing to US immigration law. The allegations

15
00:01:02,600 --> 00:01:06,000
Speaker 2: are baseless and I'm focused on the work. There's virtually

16
00:01:06,040 --> 00:01:08,959
Speaker 2: no chance the Senate will have the necessary two thirds

17
00:01:09,040 --> 00:01:13,280
Speaker 2: majority to convict Majorcis and remove him from office. Despite that,

18
00:01:13,440 --> 00:01:16,960
Speaker 2: the House went forward with impeachment, succeeding with the vote

19
00:01:16,959 --> 00:01:21,080
Speaker 2: of Republican Majority Leader Steve Scalice who returned to Washington

20
00:01:21,200 --> 00:01:23,400
Speaker 2: after being away for cancer treatments.

21
00:01:23,959 --> 00:01:27,920
Speaker 3: And if they ignore this, then there will be accountability

22
00:01:27,959 --> 00:01:29,640
Speaker 3: and consequences to that action.

23
00:01:29,760 --> 00:01:30,759
Speaker 1: So it's on the Senate.

24
00:01:30,959 --> 00:01:35,760
Speaker 2: Several leading conservative scholars, along with former Homeland Security secretaries

25
00:01:35,880 --> 00:01:40,080
Speaker 2: from both Republican and Democratic administrations, have dismissed the Majorcis

26
00:01:40,160 --> 00:01:43,960
Speaker 2: impeachment as unwarranted or a waste of time, as has

27
00:01:44,000 --> 00:01:46,280
Speaker 2: House Minority Leader HACKEM Jeffreys.

28
00:01:47,120 --> 00:01:48,400
Speaker 1: This is extraordinary.

29
00:01:48,560 --> 00:01:52,480
Speaker 3: This is the height of cynicism. Once again, they are

30
00:01:52,560 --> 00:01:56,559
Speaker 3: embracing chaos and walking away from common sense.

31
00:01:56,800 --> 00:01:59,360
Speaker 2: Joining me is an expert in impeachment, Frank Bowman, a

32
00:01:59,400 --> 00:02:02,200
Speaker 2: professor of the u University of Missouri Law School, who

33
00:02:02,320 --> 00:02:06,800
Speaker 2: justified before the Homeland Security Committee in January. They voted

34
00:02:06,840 --> 00:02:10,720
Speaker 2: to impeach him on accounts of wilful and systemic refusal

35
00:02:10,800 --> 00:02:13,880
Speaker 2: to comply with the law and reach of public trust

36
00:02:14,480 --> 00:02:17,600
Speaker 2: relating to his handling of immigration and security at the border.

37
00:02:18,040 --> 00:02:20,639
Speaker 2: Even if proved, does that rise to the level of

38
00:02:20,720 --> 00:02:22,200
Speaker 2: high crimes and misdemeanors?

39
00:02:23,280 --> 00:02:25,440
Speaker 3: Well, with respect to the first claim that he actually

40
00:02:25,440 --> 00:02:28,799
Speaker 3: willfully violated the law on a matter that was real

41
00:02:28,840 --> 00:02:31,840
Speaker 3: seriousness I mean, I suppose if it were true, we

42
00:02:31,919 --> 00:02:34,160
Speaker 3: could have a conversation. But it's not true. It's name

43
00:02:34,240 --> 00:02:37,160
Speaker 3: close to true. The best they can say is that

44
00:02:37,360 --> 00:02:41,239
Speaker 3: he used the discretion conferred on him by law to

45
00:02:41,280 --> 00:02:45,160
Speaker 3: interpret and apply a series of immigrasion laws which are

46
00:02:45,600 --> 00:02:49,400
Speaker 3: both contradictory and confusing, and he did that in conformity

47
00:02:49,440 --> 00:02:52,520
Speaker 3: with the directives of the President. There simply is no

48
00:02:53,000 --> 00:02:55,720
Speaker 3: indication at all that he's violating the law. I mean,

49
00:02:55,760 --> 00:02:58,280
Speaker 3: the primary thing that they claim he's violating the law

50
00:02:58,280 --> 00:03:01,200
Speaker 3: on is the claim that the law a choirs that

51
00:03:01,360 --> 00:03:04,560
Speaker 3: people who are in the country illegally must be detained

52
00:03:04,680 --> 00:03:07,040
Speaker 3: and that they cannot be be paroled. Well, it's just

53
00:03:07,080 --> 00:03:09,720
Speaker 3: not true. I mean, the law itself has plenty of

54
00:03:09,720 --> 00:03:12,680
Speaker 3: parole provisions, And in fact, on that particular point, the

55
00:03:12,720 --> 00:03:15,320
Speaker 3: United States Supreme Court has actually held any one of

56
00:03:15,320 --> 00:03:18,440
Speaker 3: the series of lawsuits brought against the Department and Secretary

57
00:03:18,480 --> 00:03:20,919
Speaker 3: of America's by some state for public coustrians general, the

58
00:03:20,919 --> 00:03:24,200
Speaker 3: Supreme Court's actually held that detention is not mandatory. So

59
00:03:24,320 --> 00:03:27,520
Speaker 3: the thing that they are claiming he's violating the law

60
00:03:27,600 --> 00:03:31,480
Speaker 3: on the Supreme Court has basically said, no, that's not true.

61
00:03:31,680 --> 00:03:34,840
Speaker 3: It's really quite remarkable. So we don't even need to

62
00:03:34,840 --> 00:03:38,080
Speaker 3: get to the question of whether or not, in some

63
00:03:38,240 --> 00:03:42,960
Speaker 3: hypothetical case, a sufficiently serious and plain violation of law

64
00:03:43,000 --> 00:03:46,920
Speaker 3: would in itself be impeachable. The answer, I suppose, in theory,

65
00:03:46,920 --> 00:03:49,800
Speaker 3: in the right case might be yes. But he hasn't

66
00:03:49,840 --> 00:03:52,600
Speaker 3: violated the law. What they've got is a series of

67
00:03:52,640 --> 00:03:55,520
Speaker 3: lawsuits against him in which, you know, in the lower

68
00:03:55,560 --> 00:03:57,400
Speaker 3: courts they've won some and they've lost them, and the

69
00:03:57,440 --> 00:03:59,280
Speaker 3: only two that made it up to the Supreme Court,

70
00:03:59,360 --> 00:04:02,320
Speaker 3: the Republicans have lost. They don't have a final judgment

71
00:04:02,360 --> 00:04:06,080
Speaker 3: against him suggesting that he's violated the law. It's all

72
00:04:06,160 --> 00:04:06,880
Speaker 3: it's all made up.

73
00:04:07,200 --> 00:04:10,440
Speaker 2: What about this breach of public trust? That's pretty broad?

74
00:04:11,280 --> 00:04:15,400
Speaker 3: Well, that is in a piece I wrote on my blog,

75
00:04:15,440 --> 00:04:19,080
Speaker 3: I refer to that count as a ragpicker's bizarre because

76
00:04:19,160 --> 00:04:22,520
Speaker 3: it's just got a bunch of stuff in it. For example,

77
00:04:22,600 --> 00:04:25,719
Speaker 3: they claim he made false statements to the committee. No

78
00:04:25,800 --> 00:04:29,800
Speaker 3: he didn't. The claimed false statements that they are alleging

79
00:04:29,839 --> 00:04:32,880
Speaker 3: he made are cases in which they're basically disagreeing with

80
00:04:33,000 --> 00:04:36,120
Speaker 3: his use of adjectives and adverbs. In other words, they

81
00:04:36,160 --> 00:04:39,640
Speaker 3: claim that he falsely claimed that apprehended aliens of no

82
00:04:39,760 --> 00:04:42,680
Speaker 3: legal basis from in the United States were being quickly removed.

83
00:04:42,920 --> 00:04:45,240
Speaker 3: The only thing to disagree with that is the word quickly.

84
00:04:45,400 --> 00:04:48,320
Speaker 3: They're impeaching him because they don't like his use of

85
00:04:48,400 --> 00:04:51,960
Speaker 3: the adjective quickly to modify removed. In other cases, he

86
00:04:52,400 --> 00:04:55,719
Speaker 3: described the border as being secure or no less secure

87
00:04:55,760 --> 00:04:59,960
Speaker 3: than it was previously. They claim that's a false statement.

88
00:05:00,520 --> 00:05:04,520
Speaker 3: At most, it's an opinion about the efficiency of his

89
00:05:04,880 --> 00:05:09,279
Speaker 3: administration and his agency. And we know, first of all,

90
00:05:09,279 --> 00:05:11,280
Speaker 3: from the very time of the framing that matters of

91
00:05:11,320 --> 00:05:14,719
Speaker 3: opinion are not matters appropriate for impeachment. But in any case,

92
00:05:14,880 --> 00:05:17,440
Speaker 3: if it were an impeachable offense for someone to go

93
00:05:17,520 --> 00:05:21,599
Speaker 3: into Congress and provide a generous and even optimistic assessment

94
00:05:21,600 --> 00:05:24,200
Speaker 3: of the performance of our an agency, or for example,

95
00:05:24,200 --> 00:05:27,640
Speaker 3: a congressman to provide a generous spin on some matter

96
00:05:27,680 --> 00:05:30,080
Speaker 3: of public policy, everybody would be impeachable. There is not

97
00:05:30,160 --> 00:05:33,520
Speaker 3: a single instance of an actual false statement if they

98
00:05:33,600 --> 00:05:36,360
Speaker 3: allege in this article. So that's one thing they claim.

99
00:05:36,600 --> 00:05:38,600
Speaker 3: In that second article, they claim that there was an

100
00:05:38,640 --> 00:05:42,599
Speaker 3: obstruction of congressional oversight. Well for Republicans who defended Donald

101
00:05:42,640 --> 00:05:45,120
Speaker 3: Trump to claim that anybody else to be impeachable for

102
00:05:45,240 --> 00:05:48,040
Speaker 3: obstruction of congressional oversight would make a dog to laugh.

103
00:05:48,320 --> 00:05:51,920
Speaker 3: And it's simply not true that my ARC has substructed

104
00:05:52,000 --> 00:05:57,200
Speaker 3: congressional oversight. He has testified somebody twenty seven times before

105
00:05:57,279 --> 00:06:00,440
Speaker 3: various congressional committees. Multiple times before this committee, he've made

106
00:06:00,560 --> 00:06:04,159
Speaker 3: like ninety witnesses available to Congress. And the question about

107
00:06:04,160 --> 00:06:07,400
Speaker 3: the operations, the department provided tens of thousands of pages

108
00:06:07,440 --> 00:06:11,720
Speaker 3: of documents. And when I learned when the committee wanted

109
00:06:11,760 --> 00:06:14,799
Speaker 3: to examine him him testify one more time, he responded

110
00:06:14,800 --> 00:06:16,880
Speaker 3: by saying, well, a particular day you've asked me to come,

111
00:06:17,040 --> 00:06:20,360
Speaker 3: I'm actually meeting with Mexican officials to talk about border issues.

112
00:06:20,360 --> 00:06:22,800
Speaker 3: Can we reschedule it? And they refused and went ahead.

113
00:06:22,800 --> 00:06:25,320
Speaker 3: An impeached in p obstruction. I mean, it's a joke.

114
00:06:26,040 --> 00:06:28,599
Speaker 3: There is absolutely nothing in either of these articles. And

115
00:06:28,640 --> 00:06:33,280
Speaker 3: I think that fact that that is so is indicated

116
00:06:33,320 --> 00:06:36,080
Speaker 3: by the fact that they could not find a single

117
00:06:36,600 --> 00:06:40,960
Speaker 3: legal expert of any kind, not a legal historian, not

118
00:06:41,040 --> 00:06:43,960
Speaker 3: a constitutional scholar, not a judge, not a lawyer, not

119
00:06:44,040 --> 00:06:46,120
Speaker 3: a single person could they find to come down to

120
00:06:46,200 --> 00:06:48,800
Speaker 3: Congress and say, yes, does a constitutional matter what you're

121
00:06:48,839 --> 00:06:50,720
Speaker 3: alleging is impeachable because not.

122
00:06:50,760 --> 00:06:55,039
Speaker 2: There Also, just hours before the vote, the US Border

123
00:06:55,080 --> 00:06:58,800
Speaker 2: Patrol released new data showing that the number of migrants

124
00:06:58,839 --> 00:07:03,040
Speaker 2: illegally crossing the southern border with Mexico plummeted by fifty

125
00:07:03,040 --> 00:07:07,839
Speaker 2: percent in January compared with December. Who knows why, But

126
00:07:08,279 --> 00:07:11,520
Speaker 2: does that mitigate against them impeaching him?

127
00:07:12,240 --> 00:07:16,920
Speaker 3: Well, performance numbers shouldn't be a matter of impeachability, right,

128
00:07:16,920 --> 00:07:21,400
Speaker 3: I mean, that's the key here. Impeachment is a constitutional

129
00:07:21,440 --> 00:07:25,880
Speaker 3: mechanism that is reserved for the most serious kinds of offenses.

130
00:07:26,080 --> 00:07:29,040
Speaker 3: That's why if you can only bepeached for treason, bibrary

131
00:07:29,080 --> 00:07:32,760
Speaker 3: or other high crimes and misdemeanors. Is a grave constitutional

132
00:07:32,880 --> 00:07:36,240
Speaker 3: tool for the most serious of matters. It is not

133
00:07:36,840 --> 00:07:40,440
Speaker 3: something that you trot out simply because you disagree with

134
00:07:40,840 --> 00:07:44,400
Speaker 3: administration policy or you find the performance of a particular

135
00:07:44,640 --> 00:07:47,440
Speaker 3: cabinet officer to be below your standards. I mean, does

136
00:07:47,480 --> 00:07:51,560
Speaker 3: there reason that myorcis is only the second CABT officer

137
00:07:51,640 --> 00:07:54,080
Speaker 3: ever to be impeached. It's because for two hundred and

138
00:07:54,080 --> 00:07:57,720
Speaker 3: thirty five years, everybody understood that's the case, that you

139
00:07:57,800 --> 00:08:00,600
Speaker 3: don't impeach people for policy differences. If you do, why

140
00:08:00,640 --> 00:08:03,200
Speaker 3: you'd be impeaching people left right sideways. The only Capint

141
00:08:03,200 --> 00:08:05,720
Speaker 3: officer who's ever been impeached was a guy who flagrantly

142
00:08:05,720 --> 00:08:09,600
Speaker 3: committed bribery. The Republicans are stepping into dangerous new ground

143
00:08:09,640 --> 00:08:12,320
Speaker 3: here where they're simply saying, well, anytime we don't like

144
00:08:12,600 --> 00:08:16,640
Speaker 3: something the administration is doing, we can simply impeach the

145
00:08:16,680 --> 00:08:19,280
Speaker 3: person who happens to be the head of the department

146
00:08:19,320 --> 00:08:21,680
Speaker 3: who's doing most of it. So I don't think that

147
00:08:22,080 --> 00:08:25,600
Speaker 3: it matters at all what the particular numbers are for

148
00:08:25,640 --> 00:08:30,320
Speaker 3: impeachment purposes. However, that does take us into the larger

149
00:08:30,400 --> 00:08:33,960
Speaker 3: picture here, which is, even if your theory is I

150
00:08:33,960 --> 00:08:38,760
Speaker 3: can impeach an officer because I'm really really upset about

151
00:08:38,960 --> 00:08:42,080
Speaker 3: the conduct of a particular policy area by the administration,

152
00:08:42,679 --> 00:08:44,920
Speaker 3: the real thing you should be doing, actually is you

153
00:08:44,960 --> 00:08:48,199
Speaker 3: should be passing legislation to address the problem that you're

154
00:08:48,200 --> 00:08:51,160
Speaker 3: so upset about. But of course, as we know, within

155
00:08:51,200 --> 00:08:55,240
Speaker 3: the last ten days or so, a bipartisan group of

156
00:08:55,480 --> 00:09:00,640
Speaker 3: senators negotiated a real piece of legislation would have made

157
00:09:00,800 --> 00:09:04,800
Speaker 3: very significant changes to immigration enforcement in this country. And

158
00:09:04,840 --> 00:09:08,080
Speaker 3: then the very same people who want to impeachment arca

159
00:09:08,120 --> 00:09:11,040
Speaker 3: is basically squashed it at the behest of the Donald

160
00:09:11,040 --> 00:09:14,160
Speaker 3: Trump because they don't want to solve the problem, they

161
00:09:14,200 --> 00:09:16,600
Speaker 3: want to run on it. And that's all this is.

162
00:09:17,320 --> 00:09:21,720
Speaker 2: The House has appointed eleven Republicans to serve as impeachment managers,

163
00:09:22,440 --> 00:09:25,160
Speaker 2: so then this goes over to the Senate. Does the

164
00:09:25,200 --> 00:09:26,960
Speaker 2: Senate have to hold a trial?

165
00:09:27,400 --> 00:09:32,400
Speaker 3: An interesting question constitutionally, It's one we talked about in

166
00:09:32,440 --> 00:09:35,480
Speaker 3: the first Trump case. I don't know the answer. Nobody

167
00:09:35,520 --> 00:09:39,120
Speaker 3: really knows the answer, but certainly it appears that the

168
00:09:39,160 --> 00:09:42,560
Speaker 3: Senate has concluded that the majority leader has concluded that

169
00:09:42,640 --> 00:09:45,440
Speaker 3: something has to happen, that the Senate has to address it,

170
00:09:45,559 --> 00:09:47,840
Speaker 3: because I gather that they're going to commence something on

171
00:09:48,240 --> 00:09:49,240
Speaker 3: the twenty sixth.

172
00:09:49,559 --> 00:09:53,440
Speaker 2: Well, he said that the appointed House Republican impeachment managers

173
00:09:53,440 --> 00:09:56,800
Speaker 2: will present the articles to the Senate when Senators return

174
00:09:56,880 --> 00:09:59,319
Speaker 2: to Washington at the end of the month, and then

175
00:09:59,360 --> 00:10:02,559
Speaker 2: the Senate Press in pro tam Patty Murray will preside

176
00:10:02,600 --> 00:10:05,400
Speaker 2: over a trial. But I'm wondering if there is any

177
00:10:05,400 --> 00:10:06,400
Speaker 2: way around that.

178
00:10:06,559 --> 00:10:09,640
Speaker 3: There is a mechanism by which one could avoid holding

179
00:10:09,760 --> 00:10:13,360
Speaker 3: this full trial. Commonly for the last several decades, at

180
00:10:13,440 --> 00:10:17,200
Speaker 3: least for lesser officers people other than presidents. They've created

181
00:10:17,200 --> 00:10:20,920
Speaker 3: a trial committee that will simply hold hearings, present a

182
00:10:21,000 --> 00:10:22,760
Speaker 3: report to the full Senate, and the full Senate votes.

183
00:10:22,880 --> 00:10:25,040
Speaker 3: I don't even think that will happen here. My best

184
00:10:25,080 --> 00:10:28,599
Speaker 3: guess is that some sort of trial will be convened,

185
00:10:28,960 --> 00:10:32,480
Speaker 3: and that the presiding officer will probably entertain a motion

186
00:10:32,600 --> 00:10:35,920
Speaker 3: to dismiss the case upfront without the presentation of evidence,

187
00:10:36,000 --> 00:10:38,200
Speaker 3: and that will be taken, and my guess the whole

188
00:10:38,200 --> 00:10:40,880
Speaker 3: thing will be dismissed without any evidence being presented. I

189
00:10:40,920 --> 00:10:43,600
Speaker 3: don't know that, no inside information on that point, but

190
00:10:43,880 --> 00:10:47,520
Speaker 3: something like that email, remember, actually was attempted in certainly

191
00:10:47,559 --> 00:10:50,160
Speaker 3: I think the second Trump case, where there's an emotion

192
00:10:50,320 --> 00:10:54,679
Speaker 3: to dismiss based on the alleged lack of jurisdiction, and

193
00:10:55,080 --> 00:10:57,640
Speaker 3: that motion failed and they went forward with something the

194
00:10:57,720 --> 00:10:59,640
Speaker 3: nature of trial. I think in this case the emotion

195
00:10:59,679 --> 00:11:01,800
Speaker 3: will be a very probably and that will be the

196
00:11:01,840 --> 00:11:02,800
Speaker 3: end of it. Now.

197
00:11:03,080 --> 00:11:07,000
Speaker 2: Majorcis is not the only Biden administration official that House

198
00:11:07,040 --> 00:11:10,280
Speaker 2: Republicans want to impeach. They're of course looking into impeaching

199
00:11:10,320 --> 00:11:14,880
Speaker 2: President Biden. They file legislation to impeach a list including

200
00:11:15,080 --> 00:11:19,800
Speaker 2: Vice President Kamala Harris, Attorney General Merrick Garland, FBI Director

201
00:11:19,880 --> 00:11:24,240
Speaker 2: Christopher Ray, and Defense Secretary Lloyd Austin. What is wrong

202
00:11:24,280 --> 00:11:25,040
Speaker 2: with this picture?

203
00:11:25,840 --> 00:11:28,559
Speaker 3: I mean one has to avoid overreacting a little bit

204
00:11:28,600 --> 00:11:33,360
Speaker 3: in the sense that individual outlying members of the House

205
00:11:33,400 --> 00:11:38,160
Speaker 3: that both parties have over time sometimes introduced resolutions to

206
00:11:38,200 --> 00:11:40,480
Speaker 3: try to impeach this person or that person because they

207
00:11:40,480 --> 00:11:43,960
Speaker 3: were ticked off. What's different here, obviously, is that what

208
00:11:44,000 --> 00:11:46,080
Speaker 3: we have here is not simply the actions of one

209
00:11:46,160 --> 00:11:49,439
Speaker 3: or two eccentrics. What we have here is a concerted

210
00:11:49,480 --> 00:11:53,040
Speaker 3: effort by House Republicans to impeach people from the President

211
00:11:53,120 --> 00:11:56,840
Speaker 3: on down without any grounds. And that is very very bad.

212
00:11:56,920 --> 00:12:01,080
Speaker 3: I mean, first, it terribly devalues the institute of impeachment itself,

213
00:12:01,120 --> 00:12:04,240
Speaker 3: which is supposed to be reserved for the most serious

214
00:12:04,280 --> 00:12:09,920
Speaker 3: instances of very grave official misconduct. If you are taking seriously,

215
00:12:10,559 --> 00:12:13,880
Speaker 3: completely non serious allegations on a regular basis, then when

216
00:12:13,880 --> 00:12:16,920
Speaker 3: something really serious comes along, it's too easy to dismiss it.

217
00:12:17,000 --> 00:12:20,640
Speaker 3: So that's problem number one. And the other problem, of course,

218
00:12:20,760 --> 00:12:23,679
Speaker 3: is that they're very likely to lead us down a

219
00:12:23,720 --> 00:12:28,920
Speaker 3: path of sort of endless taliatory impeachment or impeachment investigations.

220
00:12:28,960 --> 00:12:31,559
Speaker 3: And at this point the phenomenon is limited to Republican

221
00:12:31,720 --> 00:12:35,320
Speaker 3: but you know, Democrats are not saints, and should control

222
00:12:35,360 --> 00:12:39,280
Speaker 3: of the House shift and Democrats be based with a

223
00:12:39,360 --> 00:12:41,720
Speaker 3: Republican president, I think there's leasting to be a temptation

224
00:12:42,080 --> 00:12:45,120
Speaker 3: for them doesn't start doing the same sort of performantive foolishness,

225
00:12:45,160 --> 00:12:48,560
Speaker 3: and that not only devalues impeachment, but it devalues the

226
00:12:48,600 --> 00:12:53,439
Speaker 3: seriousness of the entire institution. It makes the House look silly,

227
00:12:53,520 --> 00:12:57,800
Speaker 3: It wastes their time. It means that people looking on

228
00:12:58,320 --> 00:13:02,240
Speaker 3: from afar are likely think that anytime anybody raises impeachment,

229
00:13:02,320 --> 00:13:06,280
Speaker 3: this isn't serious. This is just people being fools. And

230
00:13:06,480 --> 00:13:10,120
Speaker 3: that's terrible. It's terribly dangerous. It removes one of the

231
00:13:10,600 --> 00:13:16,160
Speaker 3: important constitutional protections against really's serious misconduct, and it just

232
00:13:16,240 --> 00:13:19,520
Speaker 3: wastes the country time, it wastes the House's time. Republicans

233
00:13:19,520 --> 00:13:23,480
Speaker 3: are doing something remarkably dangerous and remarkably wish well.

234
00:13:23,320 --> 00:13:26,240
Speaker 2: We'll see what happens in this case. On February twenty sixth,

235
00:13:26,360 --> 00:13:29,000
Speaker 2: Thanks so much, Frank. That's Professor Frank Bowman of the

236
00:13:29,080 --> 00:13:32,600
Speaker 2: University of Missouri Law School. Coming up next, a ninety

237
00:13:32,640 --> 00:13:36,079
Speaker 2: six year old judge loses her fight to be reinstated.

238
00:13:36,280 --> 00:13:40,640
Speaker 2: This is Bloomberg. Ninety six year old judge Pauline Newman,

239
00:13:41,040 --> 00:13:44,400
Speaker 2: known for her descents and expertise in patent law, has

240
00:13:44,400 --> 00:13:47,120
Speaker 2: set on the Federal Circuit Court of Appeals for almost

241
00:13:47,160 --> 00:13:50,360
Speaker 2: forty years, but for the last year she's been fighting

242
00:13:50,360 --> 00:13:53,959
Speaker 2: her suspension from the bench for refusing to undergo medical

243
00:13:54,000 --> 00:13:57,480
Speaker 2: testing as part of an investigation into her fitness.

244
00:13:58,160 --> 00:14:03,520
Speaker 1: I think nation needs my voice. I think that if

245
00:14:03,559 --> 00:14:08,080
Speaker 1: the judges on this court are willing and more than

246
00:14:08,080 --> 00:14:13,320
Speaker 1: willing to push me out in order to get me

247
00:14:13,400 --> 00:14:16,439
Speaker 1: out of the way so that no one says that

248
00:14:16,440 --> 00:14:20,320
Speaker 1: they've made a mistake, that I need to be here

249
00:14:20,840 --> 00:14:22,880
Speaker 1: to countermand that.

250
00:14:24,160 --> 00:14:28,360
Speaker 2: Her prospects for reinstatement appeared dim after most of her

251
00:14:28,440 --> 00:14:32,520
Speaker 2: lawsuit challenging her suspension was dismissed on Monday by a

252
00:14:32,600 --> 00:14:36,720
Speaker 2: DC federal judge, and the US Judicial Conference's Committee on

253
00:14:36,880 --> 00:14:41,320
Speaker 2: Conduct and Disability upheld the suspension last week. Joining me

254
00:14:41,400 --> 00:14:44,400
Speaker 2: is Arthur Hellman, a professor at the University of Pittsburgh

255
00:14:44,480 --> 00:14:47,720
Speaker 2: Law School who helped draft the laws courts use to

256
00:14:47,760 --> 00:14:50,760
Speaker 2: Police Judges Arthur. This case has gone off in so

257
00:14:50,840 --> 00:14:54,640
Speaker 2: many different directions, so perhaps we should start at the beginning.

258
00:14:55,160 --> 00:14:58,600
Speaker 2: Her fellow jurists on the US Court of Appeals for

259
00:14:58,640 --> 00:15:02,800
Speaker 2: the Federal Circuit voted unanimously in September to bar her

260
00:15:02,880 --> 00:15:05,640
Speaker 2: from getting new case assignments for at least a year,

261
00:15:06,080 --> 00:15:10,320
Speaker 2: or until she sat for court ordered medical examinations. How

262
00:15:10,360 --> 00:15:12,440
Speaker 2: did we get to that point.

263
00:15:12,520 --> 00:15:15,480
Speaker 4: Well, it's been a rather twisted path, and as you

264
00:15:15,560 --> 00:15:19,680
Speaker 4: point out, it started back actually, I think in February

265
00:15:19,800 --> 00:15:23,760
Speaker 4: or March of last year, so we're now one year

266
00:15:23,880 --> 00:15:28,760
Speaker 4: into this very lengthy proceeding. But the Chief Judge of

267
00:15:28,760 --> 00:15:34,440
Speaker 4: the Circuit, Chief Judge Kimberly Moore, received reports from primarily

268
00:15:34,640 --> 00:15:40,160
Speaker 4: staff employees of the Federal Circuit that Judge Newman seemed

269
00:15:40,160 --> 00:15:46,400
Speaker 4: to be having cognitive or behavioral problems, and that led

270
00:15:47,040 --> 00:15:53,560
Speaker 4: Chief Judge Moore initially to deny Judge Newman the opportunity

271
00:15:53,640 --> 00:15:58,600
Speaker 4: to sit on the monthly panels for April and May

272
00:15:58,960 --> 00:16:05,360
Speaker 4: of last year. And Judge Moore also identified a complaint

273
00:16:05,920 --> 00:16:10,440
Speaker 4: against Judge Newman under the Judicial Conduct and Disability Act

274
00:16:10,520 --> 00:16:15,560
Speaker 4: of nineteen eighty that started an investigation which was carried

275
00:16:15,600 --> 00:16:21,040
Speaker 4: out by a special committee of the Federal Circuit Judges,

276
00:16:21,120 --> 00:16:26,920
Speaker 4: three judges, including Judge Moore, that was to investigate the

277
00:16:27,160 --> 00:16:32,920
Speaker 4: complaints primarily of disability, but that included a request or

278
00:16:33,000 --> 00:16:37,800
Speaker 4: really an order, to Judge Newman to undergo some neurological

279
00:16:37,880 --> 00:16:43,440
Speaker 4: testing submit some medical reports. Judge Newman refused to do

280
00:16:43,560 --> 00:16:47,320
Speaker 4: any of those things, and that led Chief Judge Moore

281
00:16:47,520 --> 00:16:53,480
Speaker 4: to add a complaint of judicial misconduct against Judge Newman.

282
00:16:54,200 --> 00:16:58,160
Speaker 4: And that is what we're dealing with now. The underlying

283
00:16:58,200 --> 00:17:02,400
Speaker 4: concern is about disability, but for almost the last year,

284
00:17:02,880 --> 00:17:07,360
Speaker 4: the entire focus has been on this conduct, specifically failure

285
00:17:07,400 --> 00:17:09,959
Speaker 4: to cooperate with the special committee.

286
00:17:10,920 --> 00:17:15,080
Speaker 2: And it's very unusual for the public to have a

287
00:17:15,160 --> 00:17:19,119
Speaker 2: window into these kinds of proceedings, and it seemed to

288
00:17:19,160 --> 00:17:21,240
Speaker 2: get very personal, very fast.

289
00:17:21,840 --> 00:17:24,919
Speaker 4: Well, it's not only unusual, it's unprecedent that nothing like

290
00:17:25,000 --> 00:17:28,000
Speaker 4: this has ever happened. I mean, ordinarily, all of this

291
00:17:28,600 --> 00:17:33,520
Speaker 4: would be going on in private, and in almost all

292
00:17:33,640 --> 00:17:38,240
Speaker 4: other cases it would have been resolved privately, and all

293
00:17:38,240 --> 00:17:42,040
Speaker 4: we would have known was the ultimate resolution. And yes,

294
00:17:42,119 --> 00:17:44,280
Speaker 4: you know, I'm speaking as an outsider. I have no

295
00:17:44,400 --> 00:17:49,320
Speaker 4: personal knowledge any of the individuals involved. But my sense,

296
00:17:49,560 --> 00:17:52,320
Speaker 4: you know, from talking to people and from reading some

297
00:17:52,400 --> 00:17:57,040
Speaker 4: of the blog commentaries, is that it does appear to

298
00:17:57,680 --> 00:18:03,040
Speaker 4: be somewhat personal, which makes it especially regrettable. Chief Judge

299
00:18:03,119 --> 00:18:07,720
Speaker 4: Moor did not take the opportunity to request Chief Justice

300
00:18:07,840 --> 00:18:12,280
Speaker 4: Roberts to transfer this proceeding to another circuit. He could

301
00:18:12,320 --> 00:18:16,000
Speaker 4: have done that under the rules, and I think if

302
00:18:16,040 --> 00:18:18,560
Speaker 4: she had done that, we would be looking at a

303
00:18:18,680 --> 00:18:22,080
Speaker 4: very different sort of proceeding at this point, which perhaps

304
00:18:22,440 --> 00:18:23,680
Speaker 4: a happier outcome.

305
00:18:24,080 --> 00:18:27,040
Speaker 2: A seven judge panel of the Judicial Conference of the

306
00:18:27,119 --> 00:18:31,159
Speaker 2: United States Committee on Judicial Conduct and Disability, which I

307
00:18:31,240 --> 00:18:34,439
Speaker 2: hadn't heard of until this case, said in a written

308
00:18:34,440 --> 00:18:37,840
Speaker 2: decision that Newman didn't have good cause to refuse to

309
00:18:37,880 --> 00:18:42,280
Speaker 2: cooperate with the Appeals Court investigation. Tell us about the decision.

310
00:18:42,640 --> 00:18:47,359
Speaker 4: Yes, as you've mentioned, this is a committee, a standing

311
00:18:47,400 --> 00:18:51,239
Speaker 4: committee of the Judicial Conference of the United States, and

312
00:18:51,280 --> 00:18:54,240
Speaker 4: that's a little known body, but it's a very important

313
00:18:54,240 --> 00:18:59,440
Speaker 4: one because it's the administrative policymaking body of the national

314
00:18:59,480 --> 00:19:07,160
Speaker 4: federal Judiciary. And the statute that established the Judicial Conduct

315
00:19:07,280 --> 00:19:13,560
Speaker 4: and Disability Proceeding authorizes the Judicial Conference to delegate its

316
00:19:13,600 --> 00:19:17,280
Speaker 4: responsibilities under the Act to a standing Committee, which it

317
00:19:17,320 --> 00:19:22,399
Speaker 4: has done. So, this standing Committee reviewed the order of

318
00:19:22,480 --> 00:19:27,720
Speaker 4: these Circuit councils suspending Judge Newman, and went through each

319
00:19:27,720 --> 00:19:31,840
Speaker 4: of Judge Newman's objections to the preceding, rejected each of

320
00:19:31,920 --> 00:19:36,240
Speaker 4: them and affirmed the order. I think it's pretty important

321
00:19:36,280 --> 00:19:43,199
Speaker 4: to emphasize that throughout the Judicial Conference Committee adopted a

322
00:19:43,320 --> 00:19:49,800
Speaker 4: standard of deferential reviews that basically, the Committee decided that

323
00:19:49,880 --> 00:19:55,359
Speaker 4: it would reverse or reject the Council's conclusions only if

324
00:19:55,400 --> 00:19:59,600
Speaker 4: the Council abused its discretion. And that's a hard standard

325
00:19:59,640 --> 00:20:03,199
Speaker 4: to me, and in my view, one that was not

326
00:20:03,560 --> 00:20:08,080
Speaker 4: entirely appropriate here where you have a body of judges

327
00:20:08,320 --> 00:20:13,080
Speaker 4: suspending an article free judge from hearing cases for a

328
00:20:13,119 --> 00:20:14,920
Speaker 4: substantial period of time.

329
00:20:15,520 --> 00:20:18,560
Speaker 2: And this is unusual, right. It was just the third

330
00:20:18,600 --> 00:20:23,120
Speaker 2: written decision issued by the Panel in more than three years.

331
00:20:23,320 --> 00:20:29,160
Speaker 4: Yes, the Panel does not issue very many decisions. That assumes,

332
00:20:29,200 --> 00:20:33,000
Speaker 4: of course, that all of their decisions are public. It

333
00:20:33,040 --> 00:20:37,120
Speaker 4: may be that they do some work behind the scenes.

334
00:20:37,160 --> 00:20:41,200
Speaker 4: For example, there's a reference in the opinion just issued

335
00:20:41,880 --> 00:20:47,880
Speaker 4: to the fact that Judge Newman's council asked for interlocutory

336
00:20:48,000 --> 00:20:53,000
Speaker 4: or immediate review of some of the Judicial Council orders

337
00:20:53,600 --> 00:20:59,560
Speaker 4: the Conduct Committee. The Judicial Conference Committee rejected that request,

338
00:21:00,240 --> 00:21:05,919
Speaker 4: but there is no published order separately reflecting that. So

339
00:21:06,320 --> 00:21:08,479
Speaker 4: there may be some other things that the Committee has

340
00:21:08,520 --> 00:21:12,360
Speaker 4: done behind the scenes. But you're right, the formal orders

341
00:21:12,680 --> 00:21:16,360
Speaker 4: are very rare. It's unusual to have more than one

342
00:21:16,480 --> 00:21:16,920
Speaker 4: or two a.

343
00:21:16,920 --> 00:21:19,400
Speaker 2: Year as far as this, because there are a lot

344
00:21:19,400 --> 00:21:24,600
Speaker 2: of moving pieces here. As far as the Judicial Conference's decision,

345
00:21:25,119 --> 00:21:27,080
Speaker 2: is there an appeal from that possible?

346
00:21:27,680 --> 00:21:33,320
Speaker 4: That's a very interesting question because under the rules that

347
00:21:33,359 --> 00:21:37,280
Speaker 4: were adopted by the Judicial Conference to govern these proceedings,

348
00:21:37,640 --> 00:21:43,000
Speaker 4: the full Judicial Conference does have the power to review

349
00:21:43,640 --> 00:21:48,240
Speaker 4: a decision by the Standing Committee. There is no right

350
00:21:48,359 --> 00:21:53,399
Speaker 4: to review by Judge Newman or anyone else, but the

351
00:21:53,440 --> 00:21:58,359
Speaker 4: Full Conference does have the authority to do so, and

352
00:21:58,840 --> 00:22:01,680
Speaker 4: I think there would be a appropriate to do so here.

353
00:22:01,720 --> 00:22:05,800
Speaker 4: There was actually a very interesting and little notice proceeding

354
00:22:06,000 --> 00:22:11,080
Speaker 4: just last year in another case proceeding under the Act,

355
00:22:11,520 --> 00:22:16,119
Speaker 4: where the Judicial Council had affirmed a decision by a

356
00:22:16,240 --> 00:22:20,200
Speaker 4: Chief Judge which dismissed a complaint. This was a complaint

357
00:22:20,480 --> 00:22:25,720
Speaker 4: involving an assertion that two judges had hired a law

358
00:22:25,720 --> 00:22:31,000
Speaker 4: clerk who engaged in some allegedly racist behavior, and the

359
00:22:31,080 --> 00:22:34,720
Speaker 4: Council was the case that had been transferred to another circuit.

360
00:22:35,040 --> 00:22:41,320
Speaker 4: The Council dismissed that complaint. The complainant appealed to the

361
00:22:41,400 --> 00:22:46,920
Speaker 4: Judicial Conference Standing Committee. The Standing Committee directed the Judicial

362
00:22:46,960 --> 00:22:52,040
Speaker 4: Council to reopen the investigation, and the two judges then

363
00:22:52,520 --> 00:22:59,119
Speaker 4: argued that that order, the order requiring reopening, is contrary

364
00:22:59,160 --> 00:23:03,919
Speaker 4: to the statute and the Judicial Council the second circuit.

365
00:23:04,280 --> 00:23:08,800
Speaker 4: The Judicial Council asked the Full Judicial Conference to give

366
00:23:08,840 --> 00:23:12,200
Speaker 4: an opinion on that question, and to my great surprise,

367
00:23:12,720 --> 00:23:18,320
Speaker 4: the Judicial Conference said that the rule authorizing that reopening,

368
00:23:18,600 --> 00:23:22,080
Speaker 4: which has been promulgated by his Judicial Conference, was contrary

369
00:23:22,119 --> 00:23:25,080
Speaker 4: to statue, which indeed it is. And I will just

370
00:23:25,200 --> 00:23:28,320
Speaker 4: say that I made that argument many years ago when

371
00:23:28,320 --> 00:23:31,760
Speaker 4: the rule was first adopted. So we have a very

372
00:23:31,800 --> 00:23:36,840
Speaker 4: recent episode in which the Full Judicial Conference has in

373
00:23:36,880 --> 00:23:42,679
Speaker 4: effect overruled the Standing Committee. So that could happen here also,

374
00:23:42,880 --> 00:23:45,320
Speaker 4: I don't expect it, but it could happen, and I

375
00:23:45,400 --> 00:23:46,760
Speaker 4: have the power to do that.

376
00:23:47,440 --> 00:23:51,000
Speaker 2: Let me just get one thing straight. If she agrees

377
00:23:51,080 --> 00:23:55,720
Speaker 2: to go for medical examinations, can she lift her suspension.

378
00:23:56,560 --> 00:23:59,480
Speaker 4: It's possible, but it is all in the hands of

379
00:23:59,520 --> 00:24:03,360
Speaker 4: the Judicial Counsel. I think the Judicial Council orders are

380
00:24:03,480 --> 00:24:08,200
Speaker 4: very clear that they will not allow her to hear

381
00:24:08,320 --> 00:24:15,200
Speaker 4: cases again unless she complies with the Special Committee's various orders.

382
00:24:15,760 --> 00:24:19,440
Speaker 4: But as I read their orders, they are not guaranteeing

383
00:24:20,160 --> 00:24:23,960
Speaker 4: that if she does, they will let her rehear cases.

384
00:24:24,320 --> 00:24:26,840
Speaker 4: And I think she is now what ninety six years old,

385
00:24:27,520 --> 00:24:31,960
Speaker 4: so time is against her ever hearing cases again.

386
00:24:32,160 --> 00:24:35,520
Speaker 2: I have to say, so this is proceeding on one track.

387
00:24:35,960 --> 00:24:40,760
Speaker 2: Then she sued the Judicial Council, which includes the Chief

388
00:24:40,840 --> 00:24:44,760
Speaker 2: Judge Kimberly Moore and the Federal Circuit's other active judges

389
00:24:45,040 --> 00:24:48,399
Speaker 2: in the DC Federal District Court, and on Monday, the

390
00:24:48,440 --> 00:24:51,359
Speaker 2: District Court judge dismissed most of her suit.

391
00:24:51,840 --> 00:24:54,560
Speaker 4: Yes, allowed a little bit of it to go forward

392
00:24:54,600 --> 00:24:58,399
Speaker 4: a low as I read the order, it's allowing it

393
00:24:58,480 --> 00:25:03,000
Speaker 4: to go forward, not really leaving much of a chance

394
00:25:03,119 --> 00:25:06,040
Speaker 4: for Judge Newman. It's allowing it to go forward on

395
00:25:06,080 --> 00:25:10,520
Speaker 4: what is called facial challenges to the Act. In other words,

396
00:25:10,640 --> 00:25:15,399
Speaker 4: arguments that the Act itself is unconstitutional on its face

397
00:25:15,720 --> 00:25:18,760
Speaker 4: in authorizing some of the things it did. Well. A

398
00:25:18,840 --> 00:25:22,120
Speaker 4: facial challenge to an act of Congress is a very

399
00:25:22,320 --> 00:25:26,520
Speaker 4: very hard challenge to succeed in, which is why I

400
00:25:26,600 --> 00:25:29,879
Speaker 4: say that I don't think it leaves much room for

401
00:25:30,000 --> 00:25:33,359
Speaker 4: Judge Newman to prevail. The Government will now make a

402
00:25:33,400 --> 00:25:36,040
Speaker 4: motion to get rid of the rest of the case,

403
00:25:36,320 --> 00:25:40,320
Speaker 4: and I suspect that the District Court will do that.

404
00:25:40,400 --> 00:25:43,520
Speaker 4: It's a very thorough and careful opinion, but I don't

405
00:25:43,520 --> 00:25:45,760
Speaker 4: think it holds out much hope for Judge Newman.

406
00:25:46,000 --> 00:25:49,600
Speaker 2: Coming up next, I'll continue this conversation with Professor Arthur

407
00:25:49,680 --> 00:25:53,240
Speaker 2: Hellman and we'll talk about whether the federal judiciary is

408
00:25:53,280 --> 00:25:57,080
Speaker 2: facing the problem of aging judges. A Law Review article

409
00:25:57,119 --> 00:26:00,600
Speaker 2: in twenty twenty found that seventy five percent to federal

410
00:26:00,680 --> 00:26:04,480
Speaker 2: judges die while still serving on the bench. Remember you

411
00:26:04,480 --> 00:26:06,639
Speaker 2: can always get the latest legal news by listening to

412
00:26:06,680 --> 00:26:10,040
Speaker 2: our Bloomberg Law podcast. You can find them on Apple Podcasts,

413
00:26:10,080 --> 00:26:13,920
Speaker 2: Spotify and at Bloomberg dot com Slash podcast Slash Law.

414
00:26:14,240 --> 00:26:18,240
Speaker 2: I'm June Grosso, and you're listening to Bloomberg. Ninety six

415
00:26:18,359 --> 00:26:20,920
Speaker 2: year old Judge Pauline Newman has sat on the Federal

416
00:26:20,960 --> 00:26:24,760
Speaker 2: Circuit Court of Appeals for almost forty years and refuse

417
00:26:24,840 --> 00:26:27,680
Speaker 2: to retire or even take senior status.

418
00:26:28,000 --> 00:26:31,280
Speaker 1: I thought, what what will I do now. I don't

419
00:26:31,320 --> 00:26:34,399
Speaker 1: want to be a litigator. I don't want to be

420
00:26:34,440 --> 00:26:38,720
Speaker 1: a mediator. I'd rather decide rather than mediate, as many

421
00:26:38,840 --> 00:26:42,560
Speaker 1: judges do. If I had her family by that time,

422
00:26:42,600 --> 00:26:47,879
Speaker 1: I would have had those great grandchildren, I suppose. But

423
00:26:48,840 --> 00:26:52,119
Speaker 1: I didn't take that path. I don't know why, but

424
00:26:52,200 --> 00:26:52,679
Speaker 1: I didn't.

425
00:26:53,280 --> 00:26:56,000
Speaker 2: But she was suspended from the bench for refusing to

426
00:26:56,119 --> 00:26:59,720
Speaker 2: undergo medical testing as part of an investigation into her

427
00:26:59,760 --> 00:27:02,960
Speaker 2: fit witness, and she's been fighting that suspension for the

428
00:27:03,080 --> 00:27:07,960
Speaker 2: last year. Her prospects for reinstatement appeared dim after most

429
00:27:08,000 --> 00:27:12,160
Speaker 2: of her lawsuit challenging her suspension was dismissed on Monday

430
00:27:12,359 --> 00:27:15,520
Speaker 2: by a DC District Court judge. I've been talking to

431
00:27:15,560 --> 00:27:19,040
Speaker 2: ethics expert Arthur Hellman, a professor at the University of

432
00:27:19,040 --> 00:27:22,719
Speaker 2: Pittsburgh Law School. Federal Judge Christopher Cooper said in the

433
00:27:22,800 --> 00:27:27,280
Speaker 2: decision that earlier cases have quote consistently affirmed the judiciary's

434
00:27:27,359 --> 00:27:30,800
Speaker 2: authority to police itself. Arthur explained how that fits in

435
00:27:30,840 --> 00:27:33,840
Speaker 2: with Judge Newman's claims in the lawsuit.

436
00:27:34,119 --> 00:27:38,119
Speaker 4: That's underlying the basic argument here that the Judge Newman

437
00:27:38,240 --> 00:27:42,159
Speaker 4: is making high level is that under the Constitution an

438
00:27:42,240 --> 00:27:47,120
Speaker 4: Article three, judge Judge Newman can be removed from office

439
00:27:47,600 --> 00:27:51,359
Speaker 4: only by the process of impeachment in the House and

440
00:27:51,400 --> 00:27:56,119
Speaker 4: then a trial and the Senate. And this suspension for

441
00:27:56,280 --> 00:27:59,960
Speaker 4: one year, which could be longer, is the functional equivalent

442
00:28:00,400 --> 00:28:05,560
Speaker 4: of removing her from office, and as such is not

443
00:28:05,720 --> 00:28:12,160
Speaker 4: authorized by the Constitution. But the Council argues, and the

444
00:28:12,280 --> 00:28:18,720
Speaker 4: DC Circuit has actually held that some suspensions are permitted

445
00:28:19,000 --> 00:28:24,280
Speaker 4: by the Constitution under the statute that Congress passed. So

446
00:28:24,480 --> 00:28:27,200
Speaker 4: that's why I say it's an uphill battleist and precedent

447
00:28:27,320 --> 00:28:31,640
Speaker 4: in this very circuit against the constitutional argument that Judge

448
00:28:31,720 --> 00:28:32,520
Speaker 4: Newman is making.

449
00:28:33,320 --> 00:28:36,320
Speaker 2: Apparently, this proceeding has led to calls to change the

450
00:28:36,359 --> 00:28:42,280
Speaker 2: statutory framework for evaluating judges for potential disability and misconduct.

451
00:28:42,760 --> 00:28:46,080
Speaker 2: Is there any agreement on what changes should be made,

452
00:28:46,120 --> 00:28:47,920
Speaker 2: and do you think changes should be made?

453
00:28:48,040 --> 00:28:51,920
Speaker 4: I do think this episode has revealed some flaws in

454
00:28:51,960 --> 00:28:56,239
Speaker 4: the system that nobody has seen before. I mean, some

455
00:28:56,320 --> 00:28:59,080
Speaker 4: of them would be pretty easy to correct. You wouldn't

456
00:28:59,080 --> 00:29:01,760
Speaker 4: even need the statute, good example, to put into the

457
00:29:01,840 --> 00:29:05,880
Speaker 4: rules that if you have a complaint against a circuit

458
00:29:05,960 --> 00:29:09,280
Speaker 4: judge and the Chief judge is not going to dismiss it.

459
00:29:09,640 --> 00:29:13,480
Speaker 4: That ought to go to the Chief Justice to decide

460
00:29:13,560 --> 00:29:16,760
Speaker 4: whether to transfer that. That would be a simple change

461
00:29:16,800 --> 00:29:20,320
Speaker 4: in the rule under this statute. Maybe some of this

462
00:29:20,400 --> 00:29:24,160
Speaker 4: could be done by rule. Also, I do think that

463
00:29:24,240 --> 00:29:28,480
Speaker 4: when you have an intrusive order like this one requiring

464
00:29:28,520 --> 00:29:34,480
Speaker 4: a judge to undergo a neuropsychological examination to provide intimate

465
00:29:34,960 --> 00:29:39,160
Speaker 4: medical details, there ought to be a little bit more process.

466
00:29:39,200 --> 00:29:44,400
Speaker 4: For example, that the committee should hold some sort of

467
00:29:44,520 --> 00:29:48,959
Speaker 4: hearing at which the witnesses could be cross examined by

468
00:29:49,040 --> 00:29:52,960
Speaker 4: the judge. And assuming that the Committee goes ahead with

469
00:29:53,080 --> 00:29:57,200
Speaker 4: the request or order, I would like to see immediate

470
00:29:57,320 --> 00:30:01,600
Speaker 4: review available of that. I would also like to see

471
00:30:02,120 --> 00:30:06,120
Speaker 4: situations like this where you have a proceeding that can

472
00:30:06,160 --> 00:30:11,280
Speaker 4: result in an Article three judge being told she can't

473
00:30:11,320 --> 00:30:14,960
Speaker 4: hear cases anymore for a substantial period of time. I

474
00:30:15,000 --> 00:30:18,760
Speaker 4: would like to see the review by the National Committee

475
00:30:19,160 --> 00:30:23,960
Speaker 4: as an independent review, not simply abusive discretion as was

476
00:30:24,000 --> 00:30:27,480
Speaker 4: done here. I don't think those are major changes. Still

477
00:30:27,520 --> 00:30:31,480
Speaker 4: preserves the same framework, but I think you could build

478
00:30:31,520 --> 00:30:36,640
Speaker 4: in some protections that would not greatly extend the process,

479
00:30:37,040 --> 00:30:40,920
Speaker 4: but would assure everybody that a federal judge who has

480
00:30:40,960 --> 00:30:44,240
Speaker 4: been appointed by the President and confirmed by the Senate

481
00:30:44,720 --> 00:30:49,280
Speaker 4: is not being effectively ousted from office by a process

482
00:30:49,560 --> 00:30:51,720
Speaker 4: that people can legitimately question.

483
00:30:52,280 --> 00:30:57,320
Speaker 2: Now, this has also focused the debate on the aging

484
00:30:57,440 --> 00:31:03,360
Speaker 2: judiciary we have and judges who have lifetime appointments. And

485
00:31:03,640 --> 00:31:07,080
Speaker 2: Francis Shen, who's on the faculty at Harvard Medical Schools

486
00:31:07,080 --> 00:31:09,720
Speaker 2: Center for Law, wrote a Law review article in twenty

487
00:31:09,760 --> 00:31:13,000
Speaker 2: twenty that found that seventy five percent of judges die

488
00:31:13,040 --> 00:31:16,880
Speaker 2: while still serving, and the average age of judges in

489
00:31:17,120 --> 00:31:20,600
Speaker 2: federal judges in twenty seventeen was sixty nine. I mean,

490
00:31:20,640 --> 00:31:22,800
Speaker 2: do you see this as a concern.

491
00:31:23,040 --> 00:31:26,760
Speaker 4: Well, it's certainly something that people should be and are

492
00:31:26,800 --> 00:31:29,920
Speaker 4: looking at. One thing. I wonder about those figures. I

493
00:31:29,960 --> 00:31:34,760
Speaker 4: suspect that those figures include senior judges. And it's important

494
00:31:34,760 --> 00:31:38,520
Speaker 4: to emphasize that a senior judge is a judge who

495
00:31:38,880 --> 00:31:43,520
Speaker 4: may well be sitting and hearing cases, but under the statute,

496
00:31:43,920 --> 00:31:47,840
Speaker 4: a senior judge can hear cases only to the extent

497
00:31:47,960 --> 00:31:51,640
Speaker 4: authorized by the chief Judge or the Circuit Council. And

498
00:31:51,680 --> 00:31:53,760
Speaker 4: the one of the things we haven't mentioned in our

499
00:31:54,080 --> 00:31:57,760
Speaker 4: discussion of the very lengthy proceedings here is that at

500
00:31:57,760 --> 00:32:02,880
Speaker 4: the very start Chief Judge Moore was urging Judge Newman

501
00:32:03,000 --> 00:32:07,640
Speaker 4: to take senior status, and Judge Newman refused. And I'm

502
00:32:07,680 --> 00:32:11,280
Speaker 4: sure that a very large part of her refusal reason

503
00:32:11,360 --> 00:32:15,400
Speaker 4: for the refusal was that her ability to hear cases

504
00:32:15,480 --> 00:32:19,800
Speaker 4: would then be entirely dependent on whether the Chief Judge

505
00:32:19,840 --> 00:32:24,360
Speaker 4: allowed it. And that suggests to me that another line

506
00:32:24,560 --> 00:32:29,240
Speaker 4: of possible reform here, and it addresses exactly the problem

507
00:32:29,520 --> 00:32:32,680
Speaker 4: you focused on. It. It's something we need to be

508
00:32:33,000 --> 00:32:39,400
Speaker 4: looking at. One possibility would be again procedural. I'm a proceduralist,

509
00:32:39,480 --> 00:32:44,040
Speaker 4: and I do look for procedural solutions. But if a

510
00:32:44,720 --> 00:32:48,320
Speaker 4: judge who is in a position to take senior status

511
00:32:48,440 --> 00:32:53,040
Speaker 4: could be assured that her ability in the future to

512
00:32:53,200 --> 00:32:57,760
Speaker 4: hear cases was not dependent on a single individual, or

513
00:32:57,800 --> 00:33:02,320
Speaker 4: perhaps even on the members of that circuit's council, the

514
00:33:02,440 --> 00:33:06,200
Speaker 4: judge might be willing to go ahead, confident that it

515
00:33:06,320 --> 00:33:10,280
Speaker 4: will be a different group, perhaps with some channels of review,

516
00:33:11,080 --> 00:33:14,400
Speaker 4: so that the judge's ability to hear cases would not

517
00:33:14,480 --> 00:33:18,560
Speaker 4: be controlled by a single individual or a small group

518
00:33:18,600 --> 00:33:19,480
Speaker 4: of her colleagues.

519
00:33:19,640 --> 00:33:23,720
Speaker 2: So I found this somewhat concerning Eliza Shatzman, founder of

520
00:33:23,800 --> 00:33:26,960
Speaker 2: the Legal Accountability Project, said, we hear from a lot

521
00:33:27,000 --> 00:33:29,840
Speaker 2: of clerks working for judges who are too old to serve.

522
00:33:30,280 --> 00:33:34,480
Speaker 2: In most instances, law clerks and other judicial employees stay

523
00:33:34,560 --> 00:33:38,440
Speaker 2: silent due to potential reputational harms that could result from

524
00:33:38,480 --> 00:33:42,320
Speaker 2: blowing the whistle. And that rings true because the legal

525
00:33:42,360 --> 00:33:47,200
Speaker 2: profession sometimes seems very small and things get around quickly.

526
00:33:47,560 --> 00:33:49,480
Speaker 2: What can be done well?

527
00:33:49,520 --> 00:33:52,760
Speaker 4: I think, first of all, the Judicial Conference has adopted

528
00:33:52,800 --> 00:33:57,280
Speaker 4: some procedures that are designed to deal with that situation.

529
00:33:57,400 --> 00:34:00,320
Speaker 4: This was done in the wake of the allegation of

530
00:34:00,320 --> 00:34:03,160
Speaker 4: sexual harassment, which is a different kind of problem but

531
00:34:03,600 --> 00:34:08,359
Speaker 4: calls for a similar solution, because again, the concern was,

532
00:34:08,960 --> 00:34:13,080
Speaker 4: and there's certainly some reason to recognize that concern. The

533
00:34:13,160 --> 00:34:18,399
Speaker 4: concern was that law clerks and other court employees who

534
00:34:18,400 --> 00:34:22,360
Speaker 4: were in the best position to identify either misconduct or

535
00:34:22,440 --> 00:34:25,600
Speaker 4: disability on the part of the judge, were not reporting

536
00:34:25,600 --> 00:34:28,520
Speaker 4: it because of the sphere of retaliation. As I said,

537
00:34:28,560 --> 00:34:32,080
Speaker 4: the Judicial Conference has taken some steps, they can probably

538
00:34:32,160 --> 00:34:34,719
Speaker 4: do more. I mean, my own thought has been to

539
00:34:34,880 --> 00:34:39,000
Speaker 4: establish a kind of portal through which any employee with

540
00:34:39,160 --> 00:34:42,759
Speaker 4: a concern about a judge, whether it's misconduct or disability,

541
00:34:43,040 --> 00:34:46,799
Speaker 4: could communicate that to the chief judge, and the chief

542
00:34:46,880 --> 00:34:49,879
Speaker 4: judge would then investigate it while at the same time

543
00:34:50,040 --> 00:34:55,120
Speaker 4: protecting the employee from retaliation. There are limits to that, obviously,

544
00:34:55,239 --> 00:34:58,239
Speaker 4: because as you say, it's a small profession, and in

545
00:34:58,320 --> 00:35:02,680
Speaker 4: a small court for example, or a court with only

546
00:35:02,920 --> 00:35:07,359
Speaker 4: a handful of judges, it's very difficult to do that.

547
00:35:07,800 --> 00:35:11,239
Speaker 4: But I think there's probably more, even more that the

548
00:35:11,640 --> 00:35:14,840
Speaker 4: judiciary could do. But I want to emphasize the judiciary

549
00:35:14,960 --> 00:35:18,239
Speaker 4: is at this point quite sensitive to that, and they

550
00:35:18,280 --> 00:35:25,480
Speaker 4: are trying through eder procedures, anonymous reporting, reporting to judiciary

551
00:35:25,520 --> 00:35:29,440
Speaker 4: officials outside the circuit. They're trying a number of things

552
00:35:29,480 --> 00:35:32,440
Speaker 4: to do that. But it is more, as you say,

553
00:35:32,760 --> 00:35:37,240
Speaker 4: the fear of employees is very very real.

554
00:35:37,800 --> 00:35:41,359
Speaker 2: And Arthur, at one point, Judge Newman's attorney said they

555
00:35:41,360 --> 00:35:44,759
Speaker 2: would appeal to the Supreme Court if necessary. Is this

556
00:35:44,840 --> 00:35:47,879
Speaker 2: a case that the Supreme Court would want to take?

557
00:35:48,400 --> 00:35:51,640
Speaker 4: If the District court ruling is affirmed by the Court

558
00:35:51,640 --> 00:35:55,399
Speaker 4: of Appeals, as I expect it would be, that can

559
00:35:55,480 --> 00:36:00,799
Speaker 4: be taken to the Supreme Court discretionary review. I would

560
00:36:00,880 --> 00:36:04,560
Speaker 4: doubt very much that the Court would want to get

561
00:36:04,600 --> 00:36:11,640
Speaker 4: involved in this. The system is in place. The way

562
00:36:11,719 --> 00:36:15,880
Speaker 4: to deal with it, I think is through the Judicial

563
00:36:15,920 --> 00:36:19,799
Speaker 4: Conference and through Congress. I mean, we haven't talked much

564
00:36:19,800 --> 00:36:25,280
Speaker 4: about Congress here. This system was basically established in nineteen eighty.

565
00:36:25,920 --> 00:36:29,200
Speaker 4: There was some tweaks in what was in nineteen ninety

566
00:36:29,400 --> 00:36:32,840
Speaker 4: and two thousand and two in a statute I helped

567
00:36:32,840 --> 00:36:36,640
Speaker 4: to write, but even that's now more than twenty years

568
00:36:36,960 --> 00:36:40,799
Speaker 4: and this is something that Congress might want to take

569
00:36:40,840 --> 00:36:46,800
Speaker 4: another look at. Unfortunately, given the polarization and gridlock in Washington,

570
00:36:47,320 --> 00:36:50,080
Speaker 4: I don't hold out much hope for that, but I

571
00:36:50,080 --> 00:36:52,680
Speaker 4: would not expect the Supreme Court to get involved.

572
00:36:52,960 --> 00:36:55,600
Speaker 2: Are there before I let you go, will you sort

573
00:36:55,600 --> 00:36:58,760
Speaker 2: of recap where Judge Newman can.

574
00:36:58,600 --> 00:37:03,040
Speaker 4: Appeal capitulate Again, we have the two tracks here, and

575
00:37:03,480 --> 00:37:06,239
Speaker 4: it really, as you've mentioned, at the outset, there's just

576
00:37:06,360 --> 00:37:09,359
Speaker 4: so much going on it's sometimes hard to disentangle these.

577
00:37:09,840 --> 00:37:15,359
Speaker 4: But the order of the Judicial Conference Committee can be

578
00:37:15,400 --> 00:37:19,439
Speaker 4: reviewed by the Judicial Conference, so we may yet see that.

579
00:37:19,640 --> 00:37:22,480
Speaker 4: I don't expect it, but we might see it. Turning

580
00:37:22,520 --> 00:37:26,440
Speaker 4: now to the District Court proceeding. The District Court proceeding

581
00:37:26,600 --> 00:37:30,239
Speaker 4: is still going on, because, as you mentioned, not all

582
00:37:30,280 --> 00:37:33,320
Speaker 4: of the claims were dismissed. Not all of accounts and

583
00:37:33,360 --> 00:37:37,880
Speaker 4: the complaint were dismissed, so there will be further briefing

584
00:37:37,920 --> 00:37:41,520
Speaker 4: and perhaps arguments on the rest of the case. Judge

585
00:37:41,520 --> 00:37:45,480
Speaker 4: Cooper will then enter a final judgment, which I expect

586
00:37:45,640 --> 00:37:49,040
Speaker 4: will probably throw out the whole case. And then at

587
00:37:49,040 --> 00:37:52,640
Speaker 4: that point, with a final judgment against her, Judge Newman

588
00:37:52,680 --> 00:37:56,160
Speaker 4: could appeal to the DC Court of Appeals, and given

589
00:37:56,200 --> 00:37:59,000
Speaker 4: the precedent and the DC Court of Appeals, I would

590
00:37:59,040 --> 00:38:03,280
Speaker 4: expect that to be a firm So at this point,

591
00:38:03,560 --> 00:38:06,680
Speaker 4: if somebody asked me, you know, what is the channel

592
00:38:06,840 --> 00:38:11,360
Speaker 4: most likely to give Judge Newman some kind of relief,

593
00:38:12,000 --> 00:38:16,239
Speaker 4: it would probably be the full judicial conference, but I

594
00:38:16,280 --> 00:38:18,520
Speaker 4: think the odds are against that also.

595
00:38:19,239 --> 00:38:24,000
Speaker 2: Well, Judge Newman certainly took every legal path open to

596
00:38:24,080 --> 00:38:27,080
Speaker 2: challenge this suspension. You have to say that thanks so

597
00:38:27,120 --> 00:38:31,239
Speaker 2: much Arthur for helping untangle all this. That's Professor Arthur

598
00:38:31,280 --> 00:38:34,839
Speaker 2: Hellman of the University of Pittsburgh Law School, and that's

599
00:38:34,880 --> 00:38:37,840
Speaker 2: it for this edition of the Bloomberg Law Podcast. Remember

600
00:38:37,840 --> 00:38:40,560
Speaker 2: you can always get the latest legal news by subscribing

601
00:38:40,600 --> 00:38:44,080
Speaker 2: and listening to the show on Apple Podcasts. Spotify and

602
00:38:44,160 --> 00:38:48,160
Speaker 2: at Bloomberg dot com, slash podcast slash Law. I'm June

603
00:38:48,160 --> 00:38:50,320
Speaker 2: Grosso and this is Bloomberg