WEBVTT - Trump Judge Approvals Outpace Predecessors (Audio)

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<v Speaker 1>Bloomberg Laws brought to you by USCF invest In. What's

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<v Speaker 1>real Visit USCF investments dot com. That's USCF Investments dot Com.

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<v Speaker 1>While there's been constant comment over the personnel changes in

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<v Speaker 1>the Trump White House, unnoticed are the personnel changes he

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<v Speaker 1>is succeeding in making on the federal bench. Trump is

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<v Speaker 1>outpacing both his predecessors in confirming federal judges who have

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<v Speaker 1>lifetime tenures. This week, Alabama lawyer Kevin Newsome was confirmed

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<v Speaker 1>to a seat on the eleventh Circuit Court of Appeals

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<v Speaker 1>on a sixty six to thirty one vote. Trump's fifth

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<v Speaker 1>federal judge to be confirmed, including Supreme Court Justice Neil

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<v Speaker 1>Gorst's joining me is Carl Tobias, professor at the University

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<v Speaker 1>of Richmond Law School, who is an expert in the

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<v Speaker 1>federal judiciary. Carl Senate Majority Leader Mitch McConnell's tactic to

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<v Speaker 1>keep the late Justice Anton Scalia's seat open was widely

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<v Speaker 1>discussed and much criticized, But we didn't hear as much

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<v Speaker 1>about McConnell's campaign to stop President Obama from filling vacancies

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<v Speaker 1>on the federal bench. How did he do that when

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<v Speaker 1>we had Chief Justice John Roberts complaining for years about

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<v Speaker 1>the number of judicial vacancies and calling it a crisis. Well,

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<v Speaker 1>for the last two years of the Obama administration, the

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<v Speaker 1>Majority leaders simply refused to allow floor votes on many

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<v Speaker 1>of President Obama's nominees UM, and only confirmed the fewest

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<v Speaker 1>circuit judges too during that period since the nineteenth century. Uh.

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<v Speaker 1>But what that meant was uh, and today we're still

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<v Speaker 1>at a point where they're almost one thirty circuit and

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<v Speaker 1>district court vacancies around the country. Now, Trump is outpacing

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<v Speaker 1>both his predecessors. President Obama had no judges confirmed during

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<v Speaker 1>his first six months at the White House, and President

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<v Speaker 1>Bush didn't have three judges confirmed until August of his

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<v Speaker 1>first term. How else do you compare Trump's record with

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<v Speaker 1>his predecessors, Well, you you look at all a number

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<v Speaker 1>of different factors. I think one concern for Democrats has

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<v Speaker 1>been that some of the circuit nominees especially are quite conservative.

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<v Speaker 1>But of course the president ran on that as an

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<v Speaker 1>important part of his campaign and platform. Uh. And so

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<v Speaker 1>he's delivering on his promise. Um, And so uh, we'll

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<v Speaker 1>have to see. Um. Both of the other administrations did

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<v Speaker 1>begin slowly, and Trump has been very quick by way

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<v Speaker 1>of nominating UM, and the question is whether the Senate

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<v Speaker 1>can keep up UH and UH follow through by confirming

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<v Speaker 1>all of the nominees he has named so far, and

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<v Speaker 1>we'll continue to nominate, so we'll have to see how

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<v Speaker 1>it plays out. UM. I think the White House is

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<v Speaker 1>not very realistic about how quickly you can move someone

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<v Speaker 1>from nomination to confirmation. UM, even though Senator Grassley, chair

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<v Speaker 1>of Judiciary, has been doing all that he can to

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<v Speaker 1>schedule UH nominees for hearings and then votes in the

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<v Speaker 1>committee before they moved to the floor. Tell us about

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<v Speaker 1>the so called blue slip that Democrats may be trying

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<v Speaker 1>to use well in the lad In all eight years

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<v Speaker 1>of the Obama administration, UM, both Senator Grassley when he

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<v Speaker 1>was chaired the last two years and Senatorly he was

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<v Speaker 1>chaired the first six years, honored the blue slip policy

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<v Speaker 1>in the sense that they would not move on a

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<v Speaker 1>nominee and provide a hearing unless both home state senators

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<v Speaker 1>had submitted the blue slips and UH. So Democrats, of

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<v Speaker 1>course believe in fairness that the same policy should now

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<v Speaker 1>apply and so unless Senator Grassley receives those two blue

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<v Speaker 1>slips from the home state senators he ought not to

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<v Speaker 1>schedule a hearing. He hasn't scheduled hearing for anyone yet,

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<v Speaker 1>but there's been enormous pressure from commentators and groups who

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<v Speaker 1>are mostly conservative UH to abolish that procedure that's a

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<v Speaker 1>hundred years old, first adopted in the teens UM and

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<v Speaker 1>some people say as early as UM, and especially was

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<v Speaker 1>practiced this way in the last eight years. UH. And

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<v Speaker 1>so we'll see. Senator Grassley has mentioned that there might

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<v Speaker 1>be exceptions UH, and the one prominent one is perhaps

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<v Speaker 1>differentiating circuit from district UH nominees. But that seems unfair

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<v Speaker 1>and inappropriate to me because Republicans and Democrats alike treat

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<v Speaker 1>the circuit nominees as more important than the district nominees.

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<v Speaker 1>Have Democrats been using that blue slip to stall or

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<v Speaker 1>block nominees? Well, I think it's too early to tell. UH. Certainly,

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<v Speaker 1>Republicans held onto blue slips, sometimes for as long as

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<v Speaker 1>a year UM during the Obama years, and some people,

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<v Speaker 1>certainly in sixteen at the appellate level, never received hearings UM.

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<v Speaker 1>And it's so early in the administration it's difficult to tell.

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<v Speaker 1>It does seem like the Democratic senators are doing their

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<v Speaker 1>due diligence by way of investigating home state um nominees.

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<v Speaker 1>And uh, there at least from the Democratic perspective, has

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<v Speaker 1>been concerned about nominations without consultation from the White House.

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<v Speaker 1>That's a disputed matter. Uh. I think the nominations just

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<v Speaker 1>go more smoothly when the White House consults, and President

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<v Speaker 1>Obama always did that by way of talking with the

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<v Speaker 1>home state senators and not even nominating people for whom

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<v Speaker 1>there was not home state senator support. What is the

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<v Speaker 1>likelihood that President Trump will be able to considerably move

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<v Speaker 1>the federal judiciary to the right. Well, if I mentioned earlier,

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<v Speaker 1>some of and especially the appellate nominees are quite conservative politically,

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<v Speaker 1>and so if he enjoys success at that level, they're

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<v Speaker 1>twenty vacancies now, and he's nonated for a number of

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<v Speaker 1>those seats. Uh, it could change the complexion, certainly in

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<v Speaker 1>specific circuits and uh perhaps nationwide. So I think we'll

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<v Speaker 1>just have to see how that works out. But twenty

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<v Speaker 1>vacancies is quite a few out of hundred and seventy nine.

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<v Speaker 1>The percentages is high in about thirty seconds are the

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<v Speaker 1>bulk of his nominations, the ones that were handpicked and

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<v Speaker 1>vetted by the conservative legal thing tanks such as the

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<v Speaker 1>Heritage Foundation. Well, I think the Federals Society has had

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<v Speaker 1>the most to do with suggesting names for the appellate bench,

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<v Speaker 1>and so I think that's true, probably less so at

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<v Speaker 1>the district court level. Thanks so much, as always for

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<v Speaker 1>being on Bloomberg Law. That's Carl Tobias. He is a

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<v Speaker 1>professor at the Richmond University College of Law.