WEBVTT - Trump Judicial Pick Might Undermine Obamacare

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<v Speaker 1>This is Bloomberg Law with June Grasso. There's one real

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<v Speaker 1>vacancy on the federal appeals courts, and President Trump is

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<v Speaker 1>nominating a controversial Mississippi judge for that position after Republican

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<v Speaker 1>opposition derailed the last nominee. Joining me as Carl Tobias,

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<v Speaker 1>Professor at the University of Richmond School of Law. So

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<v Speaker 1>Carl tell us a little bit about Corey Wilson, the nominee.

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<v Speaker 1>Wilson is a state judge in Mississippi and was a

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<v Speaker 1>nominee for a district court position in the Southern District

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<v Speaker 1>of Mississippi, and then when the other nomination was withdrawn,

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<v Speaker 1>the President turned to Wilson and nominated him on Monday.

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<v Speaker 1>And his background is that he was I think uh

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<v Speaker 1>member of the legislature and then was elected to the

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<v Speaker 1>state bench and has served for a period of time.

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<v Speaker 1>He did have a hearing for the district court, and

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<v Speaker 1>I think it's fair to say that Democrats were not

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<v Speaker 1>very satisfied with his responses to their questions, especially about

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<v Speaker 1>comments he had made as an elected official. His response was,

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<v Speaker 1>it's different to be a judge, and I understand the

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<v Speaker 1>difference to be an impartial arbiter as opposed to a politician.

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<v Speaker 1>And so, uh, we'll see how receptive the Democrats are

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<v Speaker 1>to this nomination for the appellate bench. I don't know

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<v Speaker 1>that they'll ask for a second hearing, but they might

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<v Speaker 1>just because of the difference in serving on an appeals

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<v Speaker 1>court and a district court. Uh. So we'll have to

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<v Speaker 1>see how that plays. Uh. The President also nominated for

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<v Speaker 1>uh the seat that Wilson would have filled with, uh,

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<v Speaker 1>someone from Mississippi for that seat. Let's talk about that

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<v Speaker 1>first nomination to put this into context. The nominee was

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<v Speaker 1>not considered conservative enough by Senators Ted Cruz and Josh Holly.

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<v Speaker 1>What were their objections to the last nominee? Well, what

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<v Speaker 1>exactly you just said? The concern by both of them

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<v Speaker 1>basically was he wasn't sufficiently conservative. There were some rulings

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<v Speaker 1>that he made, uh that they asked him about during

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<v Speaker 1>the hearing, uh, and the senators from Missouri and Texas

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<v Speaker 1>were just not satisfied. They said that he was insufficiently conservative. Um.

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<v Speaker 1>In fairness, the rulings they mentioned, he suggested the nominee

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<v Speaker 1>were binding president of the Fifth Circuit and so um,

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<v Speaker 1>that's what I think led to ultimately withdrawal because if

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<v Speaker 1>you don't have those two senators votes and committee, his

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<v Speaker 1>nomination couldn't move to the floor, and so Judge Ozerden

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<v Speaker 1>will remain on the Southern District of Mississippi. Though many

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<v Speaker 1>um and I think some Democrats felt that he wasn't

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<v Speaker 1>treated fairly in that situation. So now liberal health and

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<v Speaker 1>advocacy groups are urging Senators to reject Judge Wilson, and

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<v Speaker 1>a lot of it is based on their belief that

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<v Speaker 1>he would try to undermine Obamacare. Explain a little more

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<v Speaker 1>what they're talking about. Well, I think, as Bloomberg Law

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<v Speaker 1>has reported, he made statements when he was an elected

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<v Speaker 1>official in the legislature. Uh, and I believe in campaigning

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<v Speaker 1>that we're very much opposed to Obamacare, and so I

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<v Speaker 1>think some Democrats probably are concerned that he might carry

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<v Speaker 1>those forward to the bench. And of course challenges have

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<v Speaker 1>been lodged across the Fifth Circuit jurisdictions to Obamacare, and

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<v Speaker 1>I think one is at the Supreme Court right now,

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<v Speaker 1>and so that's what's on the mind I think of Democrats.

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<v Speaker 1>Given the present circumstances and the need for Obamacare and

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<v Speaker 1>healthcare presently, so Wilson has said that statements and op

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<v Speaker 1>eds won't impact his decision making on the bench. He

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<v Speaker 1>called Obamacare illegitimate and perverse in those op eds. So

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<v Speaker 1>if he meant that just six years ago, does it

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<v Speaker 1>seem logical that he would rule against what he considers

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<v Speaker 1>an illegitimate law? Well, he said, of course, he'll shed

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<v Speaker 1>his political views when he's a judge once he's confirmed,

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<v Speaker 1>And I think Democrats have legitimately asked whether that's possible

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<v Speaker 1>that would actually happen, And so that's the problem. Though,

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<v Speaker 1>I would say many nominees now sitting on appellate benches

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<v Speaker 1>and district courts named by this president and confirmed by

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<v Speaker 1>the Senate have um said the very same thing about

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<v Speaker 1>their political statements that Democrats found defensive and questioned in

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<v Speaker 1>very similar terms. So it's a question of trust and

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<v Speaker 1>that type of thing that that worries that Democrats, once

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<v Speaker 1>people become judges, will they really be neutral arbiters And

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<v Speaker 1>that's really the question at issue. But they don't have

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<v Speaker 1>the votes, and so this would be a test. They've

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<v Speaker 1>already been five quite conservative nominees confirmed for the Fifth

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<v Speaker 1>Circuit and so we'll have to see. But I think

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<v Speaker 1>the Republicans are very much committed to filling that that see.

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<v Speaker 1>I've been talking to Professor Carl Tobias of the University

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<v Speaker 1>of Richmond Law School about President Trump's latest nomination to

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<v Speaker 1>a federal appellate court, the Fifth Circuit Court of Appeals. Carl,

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<v Speaker 1>the Fifth Circuit is one of the most conservative circuits

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<v Speaker 1>as it is, and as you alluded to, it's been

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<v Speaker 1>a key stop for challenges to Obamacare already. I don't

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<v Speaker 1>think there's much question that it's the most conservative court

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<v Speaker 1>in the country at the appellate level, though it would

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<v Speaker 1>depend on the particular issue. Certainly in the area of

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<v Speaker 1>Obamacare it's quite conservative, but also in other areas involving,

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<v Speaker 1>for example, immigration, reproductive freedom, a number of culture war issues.

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<v Speaker 1>And it was probably the most conservative court at the

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<v Speaker 1>appellate level at the time of the inauguration of President Trump,

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<v Speaker 1>and with the addition of five more conservative judges, it's

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<v Speaker 1>clearly the most conservative in the country. And so on

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<v Speaker 1>this issue and others, that's a favored venue, and people

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<v Speaker 1>like this list of General of Texas often go to

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<v Speaker 1>the lower courts there and then appeal to the Fifth

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<v Speaker 1>Circuit if they lose, and so it shouldn't be surprising

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<v Speaker 1>that the Court has become even more conservative than it was.

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<v Speaker 1>And I believe the Fifth Circuit's recent decision upholding a

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<v Speaker 1>Louisiana anti abortion law despite the Supreme Court precedent in

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<v Speaker 1>a Texas case is not before the Supreme Court. Well,

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<v Speaker 1>that's another great example of what I was just talking about.

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<v Speaker 1>Whole women's health only three or four years ago struck

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<v Speaker 1>down virtually identical strictures that Louisiana is imposing, and the

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<v Speaker 1>Fifth Circuit basically said that those could go into effect,

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<v Speaker 1>and so is now before the Supreme Court. As you mentioned,

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<v Speaker 1>Democrats objections to Trump nominees are usually swiftly overruled by

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<v Speaker 1>Republican senators. But could the pandemic put the importance of

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<v Speaker 1>Obamacare in this particular nominees case in focus for these senators.

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<v Speaker 1>Could it put more pressure on them? Well, certainly, I

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<v Speaker 1>expect those kinds of arguments would be made by the

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<v Speaker 1>Democrats if they have the opportunity to do that. We

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<v Speaker 1>don't know when the Senate will return. Their schedule to

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<v Speaker 1>return on the twenty of this month, but the pandemic

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<v Speaker 1>may delay that, and we don't know exactly what kind

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<v Speaker 1>of procedures might be followed if the Senate doesn't come

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<v Speaker 1>into session. But my sense is from what Leader McConnell

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<v Speaker 1>has said, is that they're going to move along. He

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<v Speaker 1>said just recently this week actually that his motto is

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<v Speaker 1>leave no vacancy behind, and he's determined to start up

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<v Speaker 1>the confirmation machinery as soon as possible once the Senate returns.

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<v Speaker 1>Do you think they might have chosen Wilson for this

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<v Speaker 1>appellate spot because he already had a confirmation hearing for

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<v Speaker 1>the district court spot. Well, yes, possibly, And that's why

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<v Speaker 1>I was saying the Democrats might request that there will

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<v Speaker 1>be another hearing for him at the appellate level, just

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<v Speaker 1>because that kind of position is much more powerful and

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<v Speaker 1>requires different skills. So it would make some sense to

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<v Speaker 1>to then question him on that and those issues and

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<v Speaker 1>see how he does and whether there's some reconsideration by

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<v Speaker 1>other members of the panel. What was his rating from

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<v Speaker 1>the A B A American Bar Association. I think it

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<v Speaker 1>was at least qualified in so let's return to the

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<v Speaker 1>question of timing. Have there been any confirmation so far

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<v Speaker 1>this year? Any judicial confirmation so far this year? Yes,

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<v Speaker 1>there was one to the eleventh Circuit, Andrew Brash, who

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<v Speaker 1>was elevated from the district court there in Alabama, and

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<v Speaker 1>five district nominees. But that's a tiny number compared to

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<v Speaker 1>what's happened in prior periods. But of course there hasn't

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<v Speaker 1>been much activity, partly because of the impeachment going on

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<v Speaker 1>in the Senate, the trial there, and now this three

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<v Speaker 1>week hiatus coming up. And in the two weeks they

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<v Speaker 1>worked on the package of relief measures for COVID nineteen.

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<v Speaker 1>So might this actually slow down Mitch McConnell what already

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<v Speaker 1>has in terms of the plans. And you know, of

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<v Speaker 1>course there's the Therman rule, which says during a presidential

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<v Speaker 1>election year that nominations and confirmations slow and halt early

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<v Speaker 1>in anticipation of the election. And so we'll see how

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<v Speaker 1>he addresses that. Of course, in one circuit judge and

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<v Speaker 1>only eight district judges were confirmed by the Republican Senate majority.

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<v Speaker 1>And we'll see if if he believes that the Thurman

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<v Speaker 1>rules should apply when there's a Republican president and a

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<v Speaker 1>Republican Senate majority. This brings up another matter with Mitch McConnell.

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<v Speaker 1>There'll be another federal opening if Judge Thomas Griffith retires

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<v Speaker 1>from the d C Circuit as planned, but a watchdog

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<v Speaker 1>group is asking the DC Circuit to investigate whether his

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<v Speaker 1>retirement decision violates ethics rules, and that involves Mitch McConnell. Yes,

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<v Speaker 1>there have been many, uh confirmed media reports that Senator

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<v Speaker 1>McConnell has approached a number of judges who are Republican

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<v Speaker 1>appointees the appellate level, asked them to take senior status

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<v Speaker 1>or retire so that President Trump can fill their vacancies.

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<v Speaker 1>And the question asked is whether something like that happened

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<v Speaker 1>with Griffith, because it raises all kinds of problematic issues.

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<v Speaker 1>And I think that's what Demand Justice in its letter

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<v Speaker 1>was requesting of the chief Judge of the d C

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<v Speaker 1>Circuit in terms of the investigation. So I've heard the

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<v Speaker 1>response to that from some Republicans that this happens all

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<v Speaker 1>the time, so they see it as not really a problem. Well,

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<v Speaker 1>depends on who's making the appointments, I suppose from their perspective,

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<v Speaker 1>but it does seem that it is inappropriate to approach

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<v Speaker 1>a federal judge and suggest that that person change his

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<v Speaker 1>or her status because of who is in the White House,

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<v Speaker 1>and there are ethics rules that do apply to judges

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<v Speaker 1>in terms of whether they might be somehow offered a

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<v Speaker 1>different position if they were to take senior status or retire.

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<v Speaker 1>The letter alludes to that possibility. But these are all

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<v Speaker 1>factual kinds of disputes. But there's nothing more important to

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<v Speaker 1>a federal judge or to anybody in terms of their

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<v Speaker 1>lives and careers to decide when they want to make

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<v Speaker 1>decisions about changing status and so on a personal level

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<v Speaker 1>and on a professional level. It seems completely inappropriate. All right,

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<v Speaker 1>Thank you so much, Carl Azowey's. That's Professor Carl Tobias

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<v Speaker 1>at the University of Richmond Law School. Thanks for listening

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<v Speaker 1>to the Bloomberg Law Podcast. You can subscribe and listen

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<v Speaker 1>to the show on Apple Podcasts, SoundCloud, and on Bloomberg

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<v Speaker 1>dot com slash podcast. I'm June Brasso. This is Bloomberg

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<v Speaker 1>Ye