1 00:00:00,160 --> 00:00:04,160 Speaker 1: This is Bloomberg Law with June Grasso. There's one real 2 00:00:04,280 --> 00:00:07,400 Speaker 1: vacancy on the federal appeals courts, and President Trump is 3 00:00:07,440 --> 00:00:12,320 Speaker 1: nominating a controversial Mississippi judge for that position after Republican 4 00:00:12,360 --> 00:00:16,480 Speaker 1: opposition derailed the last nominee. Joining me as Carl Tobias, 5 00:00:16,480 --> 00:00:19,840 Speaker 1: Professor at the University of Richmond School of Law. So 6 00:00:20,000 --> 00:00:23,759 Speaker 1: Carl tell us a little bit about Corey Wilson, the nominee. 7 00:00:23,960 --> 00:00:28,680 Speaker 1: Wilson is a state judge in Mississippi and was a 8 00:00:28,800 --> 00:00:32,520 Speaker 1: nominee for a district court position in the Southern District 9 00:00:32,560 --> 00:00:38,600 Speaker 1: of Mississippi, and then when the other nomination was withdrawn, 10 00:00:39,320 --> 00:00:44,120 Speaker 1: the President turned to Wilson and nominated him on Monday. 11 00:00:44,280 --> 00:00:48,760 Speaker 1: And his background is that he was I think uh 12 00:00:49,000 --> 00:00:53,600 Speaker 1: member of the legislature and then was elected to the 13 00:00:53,640 --> 00:00:56,960 Speaker 1: state bench and has served for a period of time. 14 00:00:58,120 --> 00:01:00,960 Speaker 1: He did have a hearing for the district court, and 15 00:01:01,000 --> 00:01:05,040 Speaker 1: I think it's fair to say that Democrats were not 16 00:01:05,280 --> 00:01:09,640 Speaker 1: very satisfied with his responses to their questions, especially about 17 00:01:09,840 --> 00:01:13,600 Speaker 1: comments he had made as an elected official. His response was, 18 00:01:14,160 --> 00:01:16,600 Speaker 1: it's different to be a judge, and I understand the 19 00:01:16,680 --> 00:01:21,959 Speaker 1: difference to be an impartial arbiter as opposed to a politician. 20 00:01:22,840 --> 00:01:28,000 Speaker 1: And so, uh, we'll see how receptive the Democrats are 21 00:01:28,920 --> 00:01:33,200 Speaker 1: to this nomination for the appellate bench. I don't know 22 00:01:33,240 --> 00:01:36,560 Speaker 1: that they'll ask for a second hearing, but they might 23 00:01:36,800 --> 00:01:39,320 Speaker 1: just because of the difference in serving on an appeals 24 00:01:39,360 --> 00:01:42,560 Speaker 1: court and a district court. Uh. So we'll have to 25 00:01:42,680 --> 00:01:47,000 Speaker 1: see how that plays. Uh. The President also nominated for 26 00:01:47,600 --> 00:01:52,280 Speaker 1: uh the seat that Wilson would have filled with, uh, 27 00:01:52,360 --> 00:01:56,320 Speaker 1: someone from Mississippi for that seat. Let's talk about that 28 00:01:56,480 --> 00:01:59,920 Speaker 1: first nomination to put this into context. The nominee was 29 00:02:00,120 --> 00:02:05,680 Speaker 1: not considered conservative enough by Senators Ted Cruz and Josh Holly. 30 00:02:05,720 --> 00:02:09,880 Speaker 1: What were their objections to the last nominee? Well, what 31 00:02:10,160 --> 00:02:15,480 Speaker 1: exactly you just said? The concern by both of them 32 00:02:15,560 --> 00:02:21,959 Speaker 1: basically was he wasn't sufficiently conservative. There were some rulings 33 00:02:22,000 --> 00:02:27,360 Speaker 1: that he made, uh that they asked him about during 34 00:02:27,400 --> 00:02:33,160 Speaker 1: the hearing, uh, and the senators from Missouri and Texas 35 00:02:33,240 --> 00:02:41,200 Speaker 1: were just not satisfied. They said that he was insufficiently conservative. Um. 36 00:02:41,360 --> 00:02:46,480 Speaker 1: In fairness, the rulings they mentioned, he suggested the nominee 37 00:02:47,080 --> 00:02:53,399 Speaker 1: were binding president of the Fifth Circuit and so um, 38 00:02:53,520 --> 00:02:58,880 Speaker 1: that's what I think led to ultimately withdrawal because if 39 00:02:58,919 --> 00:03:01,760 Speaker 1: you don't have those two senators votes and committee, his 40 00:03:01,840 --> 00:03:07,160 Speaker 1: nomination couldn't move to the floor, and so Judge Ozerden 41 00:03:07,200 --> 00:03:12,320 Speaker 1: will remain on the Southern District of Mississippi. Though many 42 00:03:12,680 --> 00:03:16,320 Speaker 1: um and I think some Democrats felt that he wasn't 43 00:03:16,320 --> 00:03:21,520 Speaker 1: treated fairly in that situation. So now liberal health and 44 00:03:21,639 --> 00:03:27,520 Speaker 1: advocacy groups are urging Senators to reject Judge Wilson, and 45 00:03:27,720 --> 00:03:31,080 Speaker 1: a lot of it is based on their belief that 46 00:03:31,160 --> 00:03:34,880 Speaker 1: he would try to undermine Obamacare. Explain a little more 47 00:03:35,200 --> 00:03:39,920 Speaker 1: what they're talking about. Well, I think, as Bloomberg Law 48 00:03:39,960 --> 00:03:45,360 Speaker 1: has reported, he made statements when he was an elected 49 00:03:45,400 --> 00:03:50,120 Speaker 1: official in the legislature. Uh, and I believe in campaigning 50 00:03:50,600 --> 00:03:56,640 Speaker 1: that we're very much opposed to Obamacare, and so I 51 00:03:56,640 --> 00:04:00,800 Speaker 1: think some Democrats probably are concerned that he might carry 52 00:04:00,840 --> 00:04:04,760 Speaker 1: those forward to the bench. And of course challenges have 53 00:04:04,880 --> 00:04:10,320 Speaker 1: been lodged across the Fifth Circuit jurisdictions to Obamacare, and 54 00:04:10,360 --> 00:04:12,800 Speaker 1: I think one is at the Supreme Court right now, 55 00:04:13,560 --> 00:04:17,680 Speaker 1: and so that's what's on the mind I think of Democrats. 56 00:04:17,760 --> 00:04:21,560 Speaker 1: Given the present circumstances and the need for Obamacare and 57 00:04:21,680 --> 00:04:27,920 Speaker 1: healthcare presently, so Wilson has said that statements and op 58 00:04:28,080 --> 00:04:31,839 Speaker 1: eds won't impact his decision making on the bench. He 59 00:04:31,960 --> 00:04:36,880 Speaker 1: called Obamacare illegitimate and perverse in those op eds. So 60 00:04:37,000 --> 00:04:39,839 Speaker 1: if he meant that just six years ago, does it 61 00:04:39,880 --> 00:04:43,680 Speaker 1: seem logical that he would rule against what he considers 62 00:04:43,720 --> 00:04:49,400 Speaker 1: an illegitimate law? Well, he said, of course, he'll shed 63 00:04:49,720 --> 00:04:54,840 Speaker 1: his political views when he's a judge once he's confirmed, 64 00:04:55,360 --> 00:04:59,720 Speaker 1: And I think Democrats have legitimately asked whether that's possible 65 00:05:00,080 --> 00:05:05,839 Speaker 1: that would actually happen, And so that's the problem. Though, 66 00:05:05,880 --> 00:05:10,679 Speaker 1: I would say many nominees now sitting on appellate benches 67 00:05:10,720 --> 00:05:14,839 Speaker 1: and district courts named by this president and confirmed by 68 00:05:14,880 --> 00:05:18,840 Speaker 1: the Senate have um said the very same thing about 69 00:05:19,680 --> 00:05:26,080 Speaker 1: their political statements that Democrats found defensive and questioned in 70 00:05:26,320 --> 00:05:30,799 Speaker 1: very similar terms. So it's a question of trust and 71 00:05:31,360 --> 00:05:34,240 Speaker 1: that type of thing that that worries that Democrats, once 72 00:05:34,279 --> 00:05:38,680 Speaker 1: people become judges, will they really be neutral arbiters And 73 00:05:39,040 --> 00:05:41,680 Speaker 1: that's really the question at issue. But they don't have 74 00:05:41,720 --> 00:05:45,800 Speaker 1: the votes, and so this would be a test. They've 75 00:05:45,800 --> 00:05:51,200 Speaker 1: already been five quite conservative nominees confirmed for the Fifth 76 00:05:51,200 --> 00:05:56,400 Speaker 1: Circuit and so we'll have to see. But I think 77 00:05:56,839 --> 00:05:59,880 Speaker 1: the Republicans are very much committed to filling that that see. 78 00:06:00,120 --> 00:06:03,000 Speaker 1: I've been talking to Professor Carl Tobias of the University 79 00:06:03,000 --> 00:06:07,800 Speaker 1: of Richmond Law School about President Trump's latest nomination to 80 00:06:07,880 --> 00:06:12,000 Speaker 1: a federal appellate court, the Fifth Circuit Court of Appeals. Carl, 81 00:06:12,240 --> 00:06:16,640 Speaker 1: the Fifth Circuit is one of the most conservative circuits 82 00:06:16,720 --> 00:06:20,480 Speaker 1: as it is, and as you alluded to, it's been 83 00:06:20,520 --> 00:06:25,479 Speaker 1: a key stop for challenges to Obamacare already. I don't 84 00:06:25,480 --> 00:06:29,080 Speaker 1: think there's much question that it's the most conservative court 85 00:06:29,240 --> 00:06:33,160 Speaker 1: in the country at the appellate level, though it would 86 00:06:33,160 --> 00:06:37,520 Speaker 1: depend on the particular issue. Certainly in the area of 87 00:06:37,600 --> 00:06:43,440 Speaker 1: Obamacare it's quite conservative, but also in other areas involving, 88 00:06:43,440 --> 00:06:49,240 Speaker 1: for example, immigration, reproductive freedom, a number of culture war issues. 89 00:06:49,880 --> 00:06:53,920 Speaker 1: And it was probably the most conservative court at the 90 00:06:53,920 --> 00:06:57,600 Speaker 1: appellate level at the time of the inauguration of President Trump, 91 00:06:57,960 --> 00:07:02,600 Speaker 1: and with the addition of five more conservative judges, it's 92 00:07:02,680 --> 00:07:06,400 Speaker 1: clearly the most conservative in the country. And so on 93 00:07:06,440 --> 00:07:11,640 Speaker 1: this issue and others, that's a favored venue, and people 94 00:07:11,760 --> 00:07:15,200 Speaker 1: like this list of General of Texas often go to 95 00:07:15,360 --> 00:07:18,080 Speaker 1: the lower courts there and then appeal to the Fifth 96 00:07:18,080 --> 00:07:21,800 Speaker 1: Circuit if they lose, and so it shouldn't be surprising 97 00:07:22,000 --> 00:07:25,320 Speaker 1: that the Court has become even more conservative than it was. 98 00:07:26,000 --> 00:07:29,160 Speaker 1: And I believe the Fifth Circuit's recent decision upholding a 99 00:07:29,200 --> 00:07:34,920 Speaker 1: Louisiana anti abortion law despite the Supreme Court precedent in 100 00:07:35,160 --> 00:07:39,000 Speaker 1: a Texas case is not before the Supreme Court. Well, 101 00:07:39,040 --> 00:07:43,080 Speaker 1: that's another great example of what I was just talking about. 102 00:07:43,560 --> 00:07:47,480 Speaker 1: Whole women's health only three or four years ago struck 103 00:07:47,560 --> 00:07:54,480 Speaker 1: down virtually identical strictures that Louisiana is imposing, and the 104 00:07:54,480 --> 00:07:58,880 Speaker 1: Fifth Circuit basically said that those could go into effect, 105 00:07:59,280 --> 00:08:02,880 Speaker 1: and so is now before the Supreme Court. As you mentioned, 106 00:08:03,000 --> 00:08:08,920 Speaker 1: Democrats objections to Trump nominees are usually swiftly overruled by 107 00:08:08,960 --> 00:08:13,360 Speaker 1: Republican senators. But could the pandemic put the importance of 108 00:08:13,440 --> 00:08:19,000 Speaker 1: Obamacare in this particular nominees case in focus for these senators. 109 00:08:19,080 --> 00:08:22,280 Speaker 1: Could it put more pressure on them? Well, certainly, I 110 00:08:22,520 --> 00:08:24,920 Speaker 1: expect those kinds of arguments would be made by the 111 00:08:24,960 --> 00:08:27,760 Speaker 1: Democrats if they have the opportunity to do that. We 112 00:08:27,800 --> 00:08:30,160 Speaker 1: don't know when the Senate will return. Their schedule to 113 00:08:30,200 --> 00:08:33,439 Speaker 1: return on the twenty of this month, but the pandemic 114 00:08:33,480 --> 00:08:36,760 Speaker 1: may delay that, and we don't know exactly what kind 115 00:08:36,760 --> 00:08:39,880 Speaker 1: of procedures might be followed if the Senate doesn't come 116 00:08:39,920 --> 00:08:43,600 Speaker 1: into session. But my sense is from what Leader McConnell 117 00:08:43,640 --> 00:08:47,400 Speaker 1: has said, is that they're going to move along. He 118 00:08:47,960 --> 00:08:52,160 Speaker 1: said just recently this week actually that his motto is 119 00:08:52,240 --> 00:08:56,360 Speaker 1: leave no vacancy behind, and he's determined to start up 120 00:08:56,360 --> 00:09:01,920 Speaker 1: the confirmation machinery as soon as possible once the Senate returns. 121 00:09:02,520 --> 00:09:05,280 Speaker 1: Do you think they might have chosen Wilson for this 122 00:09:05,360 --> 00:09:09,079 Speaker 1: appellate spot because he already had a confirmation hearing for 123 00:09:09,160 --> 00:09:12,560 Speaker 1: the district court spot. Well, yes, possibly, And that's why 124 00:09:12,600 --> 00:09:15,560 Speaker 1: I was saying the Democrats might request that there will 125 00:09:15,559 --> 00:09:19,120 Speaker 1: be another hearing for him at the appellate level, just 126 00:09:19,200 --> 00:09:22,520 Speaker 1: because that kind of position is much more powerful and 127 00:09:23,000 --> 00:09:27,400 Speaker 1: requires different skills. So it would make some sense to 128 00:09:27,400 --> 00:09:32,439 Speaker 1: to then question him on that and those issues and 129 00:09:32,760 --> 00:09:37,080 Speaker 1: see how he does and whether there's some reconsideration by 130 00:09:37,240 --> 00:09:40,880 Speaker 1: other members of the panel. What was his rating from 131 00:09:40,960 --> 00:09:44,840 Speaker 1: the A B A American Bar Association. I think it 132 00:09:45,000 --> 00:09:48,840 Speaker 1: was at least qualified in so let's return to the 133 00:09:48,920 --> 00:09:52,160 Speaker 1: question of timing. Have there been any confirmation so far 134 00:09:52,240 --> 00:09:56,200 Speaker 1: this year? Any judicial confirmation so far this year? Yes, 135 00:09:56,559 --> 00:10:00,760 Speaker 1: there was one to the eleventh Circuit, Andrew Brash, who 136 00:10:00,880 --> 00:10:05,200 Speaker 1: was elevated from the district court there in Alabama, and 137 00:10:05,480 --> 00:10:11,280 Speaker 1: five district nominees. But that's a tiny number compared to 138 00:10:11,800 --> 00:10:16,160 Speaker 1: what's happened in prior periods. But of course there hasn't 139 00:10:16,200 --> 00:10:21,040 Speaker 1: been much activity, partly because of the impeachment going on 140 00:10:21,160 --> 00:10:25,199 Speaker 1: in the Senate, the trial there, and now this three 141 00:10:25,240 --> 00:10:28,640 Speaker 1: week hiatus coming up. And in the two weeks they 142 00:10:28,720 --> 00:10:34,000 Speaker 1: worked on the package of relief measures for COVID nineteen. 143 00:10:34,800 --> 00:10:40,640 Speaker 1: So might this actually slow down Mitch McConnell what already 144 00:10:40,720 --> 00:10:43,640 Speaker 1: has in terms of the plans. And you know, of 145 00:10:43,679 --> 00:10:47,800 Speaker 1: course there's the Therman rule, which says during a presidential 146 00:10:47,840 --> 00:10:55,360 Speaker 1: election year that nominations and confirmations slow and halt early 147 00:10:55,440 --> 00:11:00,440 Speaker 1: in anticipation of the election. And so we'll see how 148 00:11:00,480 --> 00:11:06,520 Speaker 1: he addresses that. Of course, in one circuit judge and 149 00:11:06,640 --> 00:11:11,480 Speaker 1: only eight district judges were confirmed by the Republican Senate majority. 150 00:11:11,880 --> 00:11:15,160 Speaker 1: And we'll see if if he believes that the Thurman 151 00:11:15,280 --> 00:11:19,360 Speaker 1: rules should apply when there's a Republican president and a 152 00:11:19,400 --> 00:11:25,280 Speaker 1: Republican Senate majority. This brings up another matter with Mitch McConnell. 153 00:11:25,559 --> 00:11:29,680 Speaker 1: There'll be another federal opening if Judge Thomas Griffith retires 154 00:11:29,760 --> 00:11:33,360 Speaker 1: from the d C Circuit as planned, but a watchdog 155 00:11:33,400 --> 00:11:37,320 Speaker 1: group is asking the DC Circuit to investigate whether his 156 00:11:37,440 --> 00:11:44,319 Speaker 1: retirement decision violates ethics rules, and that involves Mitch McConnell. Yes, 157 00:11:44,559 --> 00:11:49,120 Speaker 1: there have been many, uh confirmed media reports that Senator 158 00:11:49,200 --> 00:11:55,640 Speaker 1: McConnell has approached a number of judges who are Republican 159 00:11:55,760 --> 00:12:02,120 Speaker 1: appointees the appellate level, asked them to take senior status 160 00:12:02,200 --> 00:12:06,479 Speaker 1: or retire so that President Trump can fill their vacancies. 161 00:12:07,320 --> 00:12:11,880 Speaker 1: And the question asked is whether something like that happened 162 00:12:11,920 --> 00:12:16,760 Speaker 1: with Griffith, because it raises all kinds of problematic issues. 163 00:12:17,360 --> 00:12:20,440 Speaker 1: And I think that's what Demand Justice in its letter 164 00:12:20,760 --> 00:12:24,079 Speaker 1: was requesting of the chief Judge of the d C 165 00:12:24,280 --> 00:12:28,280 Speaker 1: Circuit in terms of the investigation. So I've heard the 166 00:12:28,320 --> 00:12:32,520 Speaker 1: response to that from some Republicans that this happens all 167 00:12:32,559 --> 00:12:37,280 Speaker 1: the time, so they see it as not really a problem. Well, 168 00:12:37,600 --> 00:12:42,040 Speaker 1: depends on who's making the appointments, I suppose from their perspective, 169 00:12:42,840 --> 00:12:47,199 Speaker 1: but it does seem that it is inappropriate to approach 170 00:12:47,240 --> 00:12:50,120 Speaker 1: a federal judge and suggest that that person change his 171 00:12:50,280 --> 00:12:53,920 Speaker 1: or her status because of who is in the White House, 172 00:12:54,760 --> 00:12:57,920 Speaker 1: and there are ethics rules that do apply to judges 173 00:12:58,000 --> 00:13:02,160 Speaker 1: in terms of whether they might be somehow offered a 174 00:13:02,200 --> 00:13:05,920 Speaker 1: different position if they were to take senior status or retire. 175 00:13:06,440 --> 00:13:09,920 Speaker 1: The letter alludes to that possibility. But these are all 176 00:13:10,000 --> 00:13:14,400 Speaker 1: factual kinds of disputes. But there's nothing more important to 177 00:13:14,640 --> 00:13:18,439 Speaker 1: a federal judge or to anybody in terms of their 178 00:13:18,480 --> 00:13:21,959 Speaker 1: lives and careers to decide when they want to make 179 00:13:22,000 --> 00:13:26,640 Speaker 1: decisions about changing status and so on a personal level 180 00:13:27,080 --> 00:13:32,120 Speaker 1: and on a professional level. It seems completely inappropriate. All right, 181 00:13:32,160 --> 00:13:35,560 Speaker 1: Thank you so much, Carl Azowey's. That's Professor Carl Tobias 182 00:13:35,559 --> 00:13:38,839 Speaker 1: at the University of Richmond Law School. Thanks for listening 183 00:13:38,880 --> 00:13:42,160 Speaker 1: to the Bloomberg Law Podcast. You can subscribe and listen 184 00:13:42,160 --> 00:13:45,760 Speaker 1: to the show on Apple Podcasts, SoundCloud, and on Bloomberg 185 00:13:45,800 --> 00:13:50,520 Speaker 1: dot com slash podcast. I'm June Brasso. This is Bloomberg 186 00:13:52,960 --> 00:13:53,080 Speaker 1: Ye