Speaker 1: This is Bloomberg Law with June Grasso. There's one real
Speaker 1: vacancy on the federal appeals courts, and President Trump is
Speaker 1: nominating a controversial Mississippi judge for that position after Republican
Speaker 1: opposition derailed the last nominee. Joining me as Carl Tobias,
Speaker 1: Professor at the University of Richmond School of Law. So
Speaker 1: Carl tell us a little bit about Corey Wilson, the nominee.
Speaker 1: Wilson is a state judge in Mississippi and was a
Speaker 1: nominee for a district court position in the Southern District
Speaker 1: of Mississippi, and then when the other nomination was withdrawn,
Speaker 1: the President turned to Wilson and nominated him on Monday.
Speaker 1: And his background is that he was I think uh
Speaker 1: member of the legislature and then was elected to the
Speaker 1: state bench and has served for a period of time.
Speaker 1: He did have a hearing for the district court, and
Speaker 1: I think it's fair to say that Democrats were not
Speaker 1: very satisfied with his responses to their questions, especially about
Speaker 1: comments he had made as an elected official. His response was,
Speaker 1: it's different to be a judge, and I understand the
Speaker 1: difference to be an impartial arbiter as opposed to a politician.
Speaker 1: And so, uh, we'll see how receptive the Democrats are
Speaker 1: to this nomination for the appellate bench. I don't know
Speaker 1: that they'll ask for a second hearing, but they might
Speaker 1: just because of the difference in serving on an appeals
Speaker 1: court and a district court. Uh. So we'll have to
Speaker 1: see how that plays. Uh. The President also nominated for
Speaker 1: uh the seat that Wilson would have filled with, uh,
Speaker 1: someone from Mississippi for that seat. Let's talk about that
Speaker 1: first nomination to put this into context. The nominee was
Speaker 1: not considered conservative enough by Senators Ted Cruz and Josh Holly.
Speaker 1: What were their objections to the last nominee? Well, what
Speaker 1: exactly you just said? The concern by both of them
Speaker 1: basically was he wasn't sufficiently conservative. There were some rulings
Speaker 1: that he made, uh that they asked him about during
Speaker 1: the hearing, uh, and the senators from Missouri and Texas
Speaker 1: were just not satisfied. They said that he was insufficiently conservative. Um.
Speaker 1: In fairness, the rulings they mentioned, he suggested the nominee
Speaker 1: were binding president of the Fifth Circuit and so um,
Speaker 1: that's what I think led to ultimately withdrawal because if
Speaker 1: you don't have those two senators votes and committee, his
Speaker 1: nomination couldn't move to the floor, and so Judge Ozerden
Speaker 1: will remain on the Southern District of Mississippi. Though many
Speaker 1: um and I think some Democrats felt that he wasn't
Speaker 1: treated fairly in that situation. So now liberal health and
Speaker 1: advocacy groups are urging Senators to reject Judge Wilson, and
Speaker 1: a lot of it is based on their belief that
Speaker 1: he would try to undermine Obamacare. Explain a little more
Speaker 1: what they're talking about. Well, I think, as Bloomberg Law
Speaker 1: has reported, he made statements when he was an elected
Speaker 1: official in the legislature. Uh, and I believe in campaigning
Speaker 1: that we're very much opposed to Obamacare, and so I
Speaker 1: think some Democrats probably are concerned that he might carry
Speaker 1: those forward to the bench. And of course challenges have
Speaker 1: been lodged across the Fifth Circuit jurisdictions to Obamacare, and
Speaker 1: I think one is at the Supreme Court right now,
Speaker 1: and so that's what's on the mind I think of Democrats.
Speaker 1: Given the present circumstances and the need for Obamacare and
Speaker 1: healthcare presently, so Wilson has said that statements and op
Speaker 1: eds won't impact his decision making on the bench. He
Speaker 1: called Obamacare illegitimate and perverse in those op eds. So
Speaker 1: if he meant that just six years ago, does it
Speaker 1: seem logical that he would rule against what he considers
Speaker 1: an illegitimate law? Well, he said, of course, he'll shed
Speaker 1: his political views when he's a judge once he's confirmed,
Speaker 1: And I think Democrats have legitimately asked whether that's possible
Speaker 1: that would actually happen, And so that's the problem. Though,
Speaker 1: I would say many nominees now sitting on appellate benches
Speaker 1: and district courts named by this president and confirmed by
Speaker 1: the Senate have um said the very same thing about
Speaker 1: their political statements that Democrats found defensive and questioned in
Speaker 1: very similar terms. So it's a question of trust and
Speaker 1: that type of thing that that worries that Democrats, once
Speaker 1: people become judges, will they really be neutral arbiters And
Speaker 1: that's really the question at issue. But they don't have
Speaker 1: the votes, and so this would be a test. They've
Speaker 1: already been five quite conservative nominees confirmed for the Fifth
Speaker 1: Circuit and so we'll have to see. But I think
Speaker 1: the Republicans are very much committed to filling that that see.
Speaker 1: I've been talking to Professor Carl Tobias of the University
Speaker 1: of Richmond Law School about President Trump's latest nomination to
Speaker 1: a federal appellate court, the Fifth Circuit Court of Appeals. Carl,
Speaker 1: the Fifth Circuit is one of the most conservative circuits
Speaker 1: as it is, and as you alluded to, it's been
Speaker 1: a key stop for challenges to Obamacare already. I don't
Speaker 1: think there's much question that it's the most conservative court
Speaker 1: in the country at the appellate level, though it would
Speaker 1: depend on the particular issue. Certainly in the area of
Speaker 1: Obamacare it's quite conservative, but also in other areas involving,
Speaker 1: for example, immigration, reproductive freedom, a number of culture war issues.
Speaker 1: And it was probably the most conservative court at the
Speaker 1: appellate level at the time of the inauguration of President Trump,
Speaker 1: and with the addition of five more conservative judges, it's
Speaker 1: clearly the most conservative in the country. And so on
Speaker 1: this issue and others, that's a favored venue, and people
Speaker 1: like this list of General of Texas often go to
Speaker 1: the lower courts there and then appeal to the Fifth
Speaker 1: Circuit if they lose, and so it shouldn't be surprising
Speaker 1: that the Court has become even more conservative than it was.
Speaker 1: And I believe the Fifth Circuit's recent decision upholding a
Speaker 1: Louisiana anti abortion law despite the Supreme Court precedent in
Speaker 1: a Texas case is not before the Supreme Court. Well,
Speaker 1: that's another great example of what I was just talking about.
Speaker 1: Whole women's health only three or four years ago struck
Speaker 1: down virtually identical strictures that Louisiana is imposing, and the
Speaker 1: Fifth Circuit basically said that those could go into effect,
Speaker 1: and so is now before the Supreme Court. As you mentioned,
Speaker 1: Democrats objections to Trump nominees are usually swiftly overruled by
Speaker 1: Republican senators. But could the pandemic put the importance of
Speaker 1: Obamacare in this particular nominees case in focus for these senators.
Speaker 1: Could it put more pressure on them? Well, certainly, I
Speaker 1: expect those kinds of arguments would be made by the
Speaker 1: Democrats if they have the opportunity to do that. We
Speaker 1: don't know when the Senate will return. Their schedule to
Speaker 1: return on the twenty of this month, but the pandemic
Speaker 1: may delay that, and we don't know exactly what kind
Speaker 1: of procedures might be followed if the Senate doesn't come
Speaker 1: into session. But my sense is from what Leader McConnell
Speaker 1: has said, is that they're going to move along. He
Speaker 1: said just recently this week actually that his motto is
Speaker 1: leave no vacancy behind, and he's determined to start up
Speaker 1: the confirmation machinery as soon as possible once the Senate returns.
Speaker 1: Do you think they might have chosen Wilson for this
Speaker 1: appellate spot because he already had a confirmation hearing for
Speaker 1: the district court spot. Well, yes, possibly, And that's why
Speaker 1: I was saying the Democrats might request that there will
Speaker 1: be another hearing for him at the appellate level, just
Speaker 1: because that kind of position is much more powerful and
Speaker 1: requires different skills. So it would make some sense to
Speaker 1: to then question him on that and those issues and
Speaker 1: see how he does and whether there's some reconsideration by
Speaker 1: other members of the panel. What was his rating from
Speaker 1: the A B A American Bar Association. I think it
Speaker 1: was at least qualified in so let's return to the
Speaker 1: question of timing. Have there been any confirmation so far
Speaker 1: this year? Any judicial confirmation so far this year? Yes,
Speaker 1: there was one to the eleventh Circuit, Andrew Brash, who
Speaker 1: was elevated from the district court there in Alabama, and
Speaker 1: five district nominees. But that's a tiny number compared to
Speaker 1: what's happened in prior periods. But of course there hasn't
Speaker 1: been much activity, partly because of the impeachment going on
Speaker 1: in the Senate, the trial there, and now this three
Speaker 1: week hiatus coming up. And in the two weeks they
Speaker 1: worked on the package of relief measures for COVID nineteen.
Speaker 1: So might this actually slow down Mitch McConnell what already
Speaker 1: has in terms of the plans. And you know, of
Speaker 1: course there's the Therman rule, which says during a presidential
Speaker 1: election year that nominations and confirmations slow and halt early
Speaker 1: in anticipation of the election. And so we'll see how
Speaker 1: he addresses that. Of course, in one circuit judge and
Speaker 1: only eight district judges were confirmed by the Republican Senate majority.
Speaker 1: And we'll see if if he believes that the Thurman
Speaker 1: rules should apply when there's a Republican president and a
Speaker 1: Republican Senate majority. This brings up another matter with Mitch McConnell.
Speaker 1: There'll be another federal opening if Judge Thomas Griffith retires
Speaker 1: from the d C Circuit as planned, but a watchdog
Speaker 1: group is asking the DC Circuit to investigate whether his
Speaker 1: retirement decision violates ethics rules, and that involves Mitch McConnell. Yes,
Speaker 1: there have been many, uh confirmed media reports that Senator
Speaker 1: McConnell has approached a number of judges who are Republican
Speaker 1: appointees the appellate level, asked them to take senior status
Speaker 1: or retire so that President Trump can fill their vacancies.
Speaker 1: And the question asked is whether something like that happened
Speaker 1: with Griffith, because it raises all kinds of problematic issues.
Speaker 1: And I think that's what Demand Justice in its letter
Speaker 1: was requesting of the chief Judge of the d C
Speaker 1: Circuit in terms of the investigation. So I've heard the
Speaker 1: response to that from some Republicans that this happens all
Speaker 1: the time, so they see it as not really a problem. Well,
Speaker 1: depends on who's making the appointments, I suppose from their perspective,
Speaker 1: but it does seem that it is inappropriate to approach
Speaker 1: a federal judge and suggest that that person change his
Speaker 1: or her status because of who is in the White House,
Speaker 1: and there are ethics rules that do apply to judges
Speaker 1: in terms of whether they might be somehow offered a
Speaker 1: different position if they were to take senior status or retire.
Speaker 1: The letter alludes to that possibility. But these are all
Speaker 1: factual kinds of disputes. But there's nothing more important to
Speaker 1: a federal judge or to anybody in terms of their
Speaker 1: lives and careers to decide when they want to make
Speaker 1: decisions about changing status and so on a personal level
Speaker 1: and on a professional level. It seems completely inappropriate. All right,
Speaker 1: Thank you so much, Carl Azowey's. That's Professor Carl Tobias
Speaker 1: at the University of Richmond Law School. Thanks for listening
Speaker 1: to the Bloomberg Law Podcast. You can subscribe and listen
Speaker 1: to the show on Apple Podcasts, SoundCloud, and on Bloomberg
Speaker 1: dot com slash podcast. I'm June Brasso. This is Bloomberg
Speaker 1: Ye