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Speaker 1: While there's been constant comment over the personnel changes in
Speaker 1: the Trump White House, unnoticed are the personnel changes he
Speaker 1: is succeeding in making on the federal bench. Trump is
Speaker 1: outpacing both his predecessors in confirming federal judges who have
Speaker 1: lifetime tenures. This week, Alabama lawyer Kevin Newsome was confirmed
Speaker 1: to a seat on the eleventh Circuit Court of Appeals
Speaker 1: on a sixty six to thirty one vote. Trump's fifth
Speaker 1: federal judge to be confirmed, including Supreme Court Justice Neil
Speaker 1: Gorst's joining me is Carl Tobias, professor at the University
Speaker 1: of Richmond Law School, who is an expert in the
Speaker 1: federal judiciary. Carl Senate Majority Leader Mitch McConnell's tactic to
Speaker 1: keep the late Justice Anton Scalia's seat open was widely
Speaker 1: discussed and much criticized, But we didn't hear as much
Speaker 1: about McConnell's campaign to stop President Obama from filling vacancies
Speaker 1: on the federal bench. How did he do that when
Speaker 1: we had Chief Justice John Roberts complaining for years about
Speaker 1: the number of judicial vacancies and calling it a crisis. Well,
Speaker 1: for the last two years of the Obama administration, the
Speaker 1: Majority leaders simply refused to allow floor votes on many
Speaker 1: of President Obama's nominees UM, and only confirmed the fewest
Speaker 1: circuit judges too during that period since the nineteenth century. Uh.
Speaker 1: But what that meant was uh, and today we're still
Speaker 1: at a point where they're almost one thirty circuit and
Speaker 1: district court vacancies around the country. Now, Trump is outpacing
Speaker 1: both his predecessors. President Obama had no judges confirmed during
Speaker 1: his first six months at the White House, and President
Speaker 1: Bush didn't have three judges confirmed until August of his
Speaker 1: first term. How else do you compare Trump's record with
Speaker 1: his predecessors, Well, you you look at all a number
Speaker 1: of different factors. I think one concern for Democrats has
Speaker 1: been that some of the circuit nominees especially are quite conservative.
Speaker 1: But of course the president ran on that as an
Speaker 1: important part of his campaign and platform. Uh. And so
Speaker 1: he's delivering on his promise. Um, And so uh, we'll
Speaker 1: have to see. Um. Both of the other administrations did
Speaker 1: begin slowly, and Trump has been very quick by way
Speaker 1: of nominating UM, and the question is whether the Senate
Speaker 1: can keep up UH and UH follow through by confirming
Speaker 1: all of the nominees he has named so far, and
Speaker 1: we'll continue to nominate, so we'll have to see how
Speaker 1: it plays out. UM. I think the White House is
Speaker 1: not very realistic about how quickly you can move someone
Speaker 1: from nomination to confirmation. UM, even though Senator Grassley, chair
Speaker 1: of Judiciary, has been doing all that he can to
Speaker 1: schedule UH nominees for hearings and then votes in the
Speaker 1: committee before they moved to the floor. Tell us about
Speaker 1: the so called blue slip that Democrats may be trying
Speaker 1: to use well in the lad In all eight years
Speaker 1: of the Obama administration, UM, both Senator Grassley when he
Speaker 1: was chaired the last two years and Senatorly he was
Speaker 1: chaired the first six years, honored the blue slip policy
Speaker 1: in the sense that they would not move on a
Speaker 1: nominee and provide a hearing unless both home state senators
Speaker 1: had submitted the blue slips and UH. So Democrats, of
Speaker 1: course believe in fairness that the same policy should now
Speaker 1: apply and so unless Senator Grassley receives those two blue
Speaker 1: slips from the home state senators he ought not to
Speaker 1: schedule a hearing. He hasn't scheduled hearing for anyone yet,
Speaker 1: but there's been enormous pressure from commentators and groups who
Speaker 1: are mostly conservative UH to abolish that procedure that's a
Speaker 1: hundred years old, first adopted in the teens UM and
Speaker 1: some people say as early as UM, and especially was
Speaker 1: practiced this way in the last eight years. UH. And
Speaker 1: so we'll see. Senator Grassley has mentioned that there might
Speaker 1: be exceptions UH, and the one prominent one is perhaps
Speaker 1: differentiating circuit from district UH nominees. But that seems unfair
Speaker 1: and inappropriate to me because Republicans and Democrats alike treat
Speaker 1: the circuit nominees as more important than the district nominees.
Speaker 1: Have Democrats been using that blue slip to stall or
Speaker 1: block nominees? Well, I think it's too early to tell. UH. Certainly,
Speaker 1: Republicans held onto blue slips, sometimes for as long as
Speaker 1: a year UM during the Obama years, and some people,
Speaker 1: certainly in sixteen at the appellate level, never received hearings UM.
Speaker 1: And it's so early in the administration it's difficult to tell.
Speaker 1: It does seem like the Democratic senators are doing their
Speaker 1: due diligence by way of investigating home state um nominees.
Speaker 1: And uh, there at least from the Democratic perspective, has
Speaker 1: been concerned about nominations without consultation from the White House.
Speaker 1: That's a disputed matter. Uh. I think the nominations just
Speaker 1: go more smoothly when the White House consults, and President
Speaker 1: Obama always did that by way of talking with the
Speaker 1: home state senators and not even nominating people for whom
Speaker 1: there was not home state senator support. What is the
Speaker 1: likelihood that President Trump will be able to considerably move
Speaker 1: the federal judiciary to the right. Well, if I mentioned earlier,
Speaker 1: some of and especially the appellate nominees are quite conservative politically,
Speaker 1: and so if he enjoys success at that level, they're
Speaker 1: twenty vacancies now, and he's nonated for a number of
Speaker 1: those seats. Uh, it could change the complexion, certainly in
Speaker 1: specific circuits and uh perhaps nationwide. So I think we'll
Speaker 1: just have to see how that works out. But twenty
Speaker 1: vacancies is quite a few out of hundred and seventy nine.
Speaker 1: The percentages is high in about thirty seconds are the
Speaker 1: bulk of his nominations, the ones that were handpicked and
Speaker 1: vetted by the conservative legal thing tanks such as the
Speaker 1: Heritage Foundation. Well, I think the Federals Society has had
Speaker 1: the most to do with suggesting names for the appellate bench,
Speaker 1: and so I think that's true, probably less so at
Speaker 1: the district court level. Thanks so much, as always for
Speaker 1: being on Bloomberg Law. That's Carl Tobias. He is a
Speaker 1: professor at the Richmond University College of Law.