1 00:00:00,000 --> 00:00:03,480 Speaker 1: Bloomberg Laws brought to you by USCF invest In. What's 2 00:00:03,520 --> 00:00:10,080 Speaker 1: real Visit USCF investments dot com. That's USCF Investments dot Com. 3 00:00:10,200 --> 00:00:13,440 Speaker 1: While there's been constant comment over the personnel changes in 4 00:00:13,440 --> 00:00:16,880 Speaker 1: the Trump White House, unnoticed are the personnel changes he 5 00:00:17,000 --> 00:00:20,159 Speaker 1: is succeeding in making on the federal bench. Trump is 6 00:00:20,160 --> 00:00:24,240 Speaker 1: outpacing both his predecessors in confirming federal judges who have 7 00:00:24,360 --> 00:00:28,920 Speaker 1: lifetime tenures. This week, Alabama lawyer Kevin Newsome was confirmed 8 00:00:28,960 --> 00:00:31,560 Speaker 1: to a seat on the eleventh Circuit Court of Appeals 9 00:00:31,680 --> 00:00:34,800 Speaker 1: on a sixty six to thirty one vote. Trump's fifth 10 00:00:34,800 --> 00:00:38,520 Speaker 1: federal judge to be confirmed, including Supreme Court Justice Neil 11 00:00:38,560 --> 00:00:42,480 Speaker 1: Gorst's joining me is Carl Tobias, professor at the University 12 00:00:42,520 --> 00:00:45,479 Speaker 1: of Richmond Law School, who is an expert in the 13 00:00:45,520 --> 00:00:50,720 Speaker 1: federal judiciary. Carl Senate Majority Leader Mitch McConnell's tactic to 14 00:00:50,840 --> 00:00:55,000 Speaker 1: keep the late Justice Anton Scalia's seat open was widely 15 00:00:55,040 --> 00:00:58,800 Speaker 1: discussed and much criticized, But we didn't hear as much 16 00:00:58,840 --> 00:01:03,960 Speaker 1: about McConnell's campaign to stop President Obama from filling vacancies 17 00:01:04,120 --> 00:01:07,759 Speaker 1: on the federal bench. How did he do that when 18 00:01:07,760 --> 00:01:11,800 Speaker 1: we had Chief Justice John Roberts complaining for years about 19 00:01:11,920 --> 00:01:17,280 Speaker 1: the number of judicial vacancies and calling it a crisis. Well, 20 00:01:17,360 --> 00:01:20,480 Speaker 1: for the last two years of the Obama administration, the 21 00:01:20,560 --> 00:01:27,160 Speaker 1: Majority leaders simply refused to allow floor votes on many 22 00:01:27,360 --> 00:01:33,600 Speaker 1: of President Obama's nominees UM, and only confirmed the fewest 23 00:01:33,680 --> 00:01:40,720 Speaker 1: circuit judges too during that period since the nineteenth century. Uh. 24 00:01:40,760 --> 00:01:46,080 Speaker 1: But what that meant was uh, and today we're still 25 00:01:46,120 --> 00:01:50,760 Speaker 1: at a point where they're almost one thirty circuit and 26 00:01:50,920 --> 00:01:57,440 Speaker 1: district court vacancies around the country. Now, Trump is outpacing 27 00:01:57,480 --> 00:02:01,400 Speaker 1: both his predecessors. President Obama had no judges confirmed during 28 00:02:01,440 --> 00:02:04,240 Speaker 1: his first six months at the White House, and President 29 00:02:04,240 --> 00:02:07,840 Speaker 1: Bush didn't have three judges confirmed until August of his 30 00:02:08,080 --> 00:02:13,120 Speaker 1: first term. How else do you compare Trump's record with 31 00:02:13,200 --> 00:02:18,040 Speaker 1: his predecessors, Well, you you look at all a number 32 00:02:18,040 --> 00:02:22,919 Speaker 1: of different factors. I think one concern for Democrats has 33 00:02:23,040 --> 00:02:29,079 Speaker 1: been that some of the circuit nominees especially are quite conservative. 34 00:02:29,240 --> 00:02:32,880 Speaker 1: But of course the president ran on that as an 35 00:02:32,919 --> 00:02:37,520 Speaker 1: important part of his campaign and platform. Uh. And so 36 00:02:37,600 --> 00:02:43,120 Speaker 1: he's delivering on his promise. Um, And so uh, we'll 37 00:02:43,160 --> 00:02:47,200 Speaker 1: have to see. Um. Both of the other administrations did 38 00:02:47,480 --> 00:02:51,840 Speaker 1: begin slowly, and Trump has been very quick by way 39 00:02:51,840 --> 00:02:56,720 Speaker 1: of nominating UM, and the question is whether the Senate 40 00:02:56,960 --> 00:03:02,440 Speaker 1: can keep up UH and UH follow through by confirming 41 00:03:03,160 --> 00:03:07,200 Speaker 1: all of the nominees he has named so far, and 42 00:03:07,960 --> 00:03:11,040 Speaker 1: we'll continue to nominate, so we'll have to see how 43 00:03:11,120 --> 00:03:13,960 Speaker 1: it plays out. UM. I think the White House is 44 00:03:14,000 --> 00:03:17,240 Speaker 1: not very realistic about how quickly you can move someone 45 00:03:17,440 --> 00:03:22,280 Speaker 1: from nomination to confirmation. UM, even though Senator Grassley, chair 46 00:03:22,280 --> 00:03:25,560 Speaker 1: of Judiciary, has been doing all that he can to 47 00:03:25,680 --> 00:03:31,120 Speaker 1: schedule UH nominees for hearings and then votes in the 48 00:03:31,120 --> 00:03:35,400 Speaker 1: committee before they moved to the floor. Tell us about 49 00:03:35,440 --> 00:03:40,280 Speaker 1: the so called blue slip that Democrats may be trying 50 00:03:40,320 --> 00:03:44,840 Speaker 1: to use well in the lad In all eight years 51 00:03:44,880 --> 00:03:49,800 Speaker 1: of the Obama administration, UM, both Senator Grassley when he 52 00:03:49,840 --> 00:03:52,600 Speaker 1: was chaired the last two years and Senatorly he was 53 00:03:52,720 --> 00:03:57,480 Speaker 1: chaired the first six years, honored the blue slip policy 54 00:03:57,560 --> 00:04:01,280 Speaker 1: in the sense that they would not move on a 55 00:04:01,400 --> 00:04:06,800 Speaker 1: nominee and provide a hearing unless both home state senators 56 00:04:06,840 --> 00:04:12,840 Speaker 1: had submitted the blue slips and UH. So Democrats, of 57 00:04:12,880 --> 00:04:17,799 Speaker 1: course believe in fairness that the same policy should now 58 00:04:17,920 --> 00:04:23,279 Speaker 1: apply and so unless Senator Grassley receives those two blue 59 00:04:23,279 --> 00:04:25,479 Speaker 1: slips from the home state senators he ought not to 60 00:04:25,560 --> 00:04:29,280 Speaker 1: schedule a hearing. He hasn't scheduled hearing for anyone yet, 61 00:04:30,000 --> 00:04:36,719 Speaker 1: but there's been enormous pressure from commentators and groups who 62 00:04:36,720 --> 00:04:42,919 Speaker 1: are mostly conservative UH to abolish that procedure that's a 63 00:04:43,000 --> 00:04:49,159 Speaker 1: hundred years old, first adopted in the teens UM and 64 00:04:49,160 --> 00:04:54,400 Speaker 1: some people say as early as UM, and especially was 65 00:04:54,440 --> 00:04:58,880 Speaker 1: practiced this way in the last eight years. UH. And 66 00:04:58,920 --> 00:05:02,760 Speaker 1: so we'll see. Senator Grassley has mentioned that there might 67 00:05:02,839 --> 00:05:06,880 Speaker 1: be exceptions UH, and the one prominent one is perhaps 68 00:05:07,240 --> 00:05:14,320 Speaker 1: differentiating circuit from district UH nominees. But that seems unfair 69 00:05:14,400 --> 00:05:19,719 Speaker 1: and inappropriate to me because Republicans and Democrats alike treat 70 00:05:19,800 --> 00:05:24,200 Speaker 1: the circuit nominees as more important than the district nominees. 71 00:05:27,040 --> 00:05:32,000 Speaker 1: Have Democrats been using that blue slip to stall or 72 00:05:32,160 --> 00:05:37,960 Speaker 1: block nominees? Well, I think it's too early to tell. UH. Certainly, 73 00:05:37,960 --> 00:05:42,040 Speaker 1: Republicans held onto blue slips, sometimes for as long as 74 00:05:42,080 --> 00:05:46,400 Speaker 1: a year UM during the Obama years, and some people, 75 00:05:46,640 --> 00:05:52,320 Speaker 1: certainly in sixteen at the appellate level, never received hearings UM. 76 00:05:52,400 --> 00:05:55,520 Speaker 1: And it's so early in the administration it's difficult to tell. 77 00:05:55,600 --> 00:05:59,120 Speaker 1: It does seem like the Democratic senators are doing their 78 00:05:59,200 --> 00:06:05,039 Speaker 1: due diligence by way of investigating home state um nominees. 79 00:06:06,000 --> 00:06:10,159 Speaker 1: And uh, there at least from the Democratic perspective, has 80 00:06:10,200 --> 00:06:14,599 Speaker 1: been concerned about nominations without consultation from the White House. 81 00:06:15,160 --> 00:06:20,359 Speaker 1: That's a disputed matter. Uh. I think the nominations just 82 00:06:20,400 --> 00:06:23,640 Speaker 1: go more smoothly when the White House consults, and President 83 00:06:23,680 --> 00:06:27,040 Speaker 1: Obama always did that by way of talking with the 84 00:06:27,080 --> 00:06:31,799 Speaker 1: home state senators and not even nominating people for whom 85 00:06:31,839 --> 00:06:35,680 Speaker 1: there was not home state senator support. What is the 86 00:06:35,839 --> 00:06:42,239 Speaker 1: likelihood that President Trump will be able to considerably move 87 00:06:42,480 --> 00:06:48,520 Speaker 1: the federal judiciary to the right. Well, if I mentioned earlier, 88 00:06:48,640 --> 00:06:54,040 Speaker 1: some of and especially the appellate nominees are quite conservative politically, 89 00:06:54,839 --> 00:06:57,599 Speaker 1: and so if he enjoys success at that level, they're 90 00:06:57,680 --> 00:07:01,160 Speaker 1: twenty vacancies now, and he's nonated for a number of 91 00:07:01,160 --> 00:07:05,280 Speaker 1: those seats. Uh, it could change the complexion, certainly in 92 00:07:05,560 --> 00:07:11,000 Speaker 1: specific circuits and uh perhaps nationwide. So I think we'll 93 00:07:11,080 --> 00:07:15,480 Speaker 1: just have to see how that works out. But twenty 94 00:07:15,960 --> 00:07:19,680 Speaker 1: vacancies is quite a few out of hundred and seventy nine. 95 00:07:20,120 --> 00:07:26,480 Speaker 1: The percentages is high in about thirty seconds are the 96 00:07:26,520 --> 00:07:31,360 Speaker 1: bulk of his nominations, the ones that were handpicked and 97 00:07:31,440 --> 00:07:35,200 Speaker 1: vetted by the conservative legal thing tanks such as the 98 00:07:35,240 --> 00:07:39,200 Speaker 1: Heritage Foundation. Well, I think the Federals Society has had 99 00:07:39,560 --> 00:07:43,680 Speaker 1: the most to do with suggesting names for the appellate bench, 100 00:07:44,400 --> 00:07:48,040 Speaker 1: and so I think that's true, probably less so at 101 00:07:48,080 --> 00:07:51,200 Speaker 1: the district court level. Thanks so much, as always for 102 00:07:51,320 --> 00:07:54,880 Speaker 1: being on Bloomberg Law. That's Carl Tobias. He is a 103 00:07:54,880 --> 00:07:59,560 Speaker 1: professor at the Richmond University College of Law.