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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcasts. President Trump is

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Speaker 1: on a record pace for judicial nominations, nominating more judges

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Speaker 1: than any of his five predecessors. In the first two

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Speaker 1: years in office. Eighty five judges, including two Supreme Court justices,

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Speaker 1: have taken the bench in Trump's quest to turn the

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Speaker 1: federal courts conservative, something he's bragged about repeatedly, including at

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Speaker 1: the Congressional ball last Saturday. We've almost reached the one

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Speaker 1: mark of federal judges. That's a big, big mark. Trump

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Speaker 1: is within in striking distance of flipping several federal circuit

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Speaker 1: courts of Appeals, that is, tipping the balance of judges

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Speaker 1: from Democratic appointees to Republican appointees. Joining me as an

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Speaker 1: expert in the area, Carl Tobias, professor at the University

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Speaker 1: of Richmond School of Law. Carl even the circuit that

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Speaker 1: Trump often complains about as being too liberal, the Ninth Circuit,

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Speaker 1: is within striking distance of flipping. Tell us more about

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Speaker 1: which circuits are at risk. Well, the ones that are

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Speaker 1: most at risk are the third circuit, which includes New Jersey,

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Speaker 1: Pennsylvania at Delaware, in the eleventh Circuit, which includes Alabama, Florida,

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Speaker 1: and Georgia, because those are evenly divided right now if

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Speaker 1: you take appointing presidents of those UH Court members, they're

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Speaker 1: both have six Democratic and six Republican appointed judges, and

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Speaker 1: so they're very close. And there's an nominee in the

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Speaker 1: third circuit named Mayde who would flip it, and the

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Speaker 1: eleventh I think doesn't have any vacancies now but quit

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Speaker 1: in the near future. And so those are the ones

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Speaker 1: that are very close but also within striking distance, or

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Speaker 1: the second where you are in New York, Connecticut, Vermont,

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Speaker 1: as well as the fourth where I am the five

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Speaker 1: mid Atlantic states. And so yes, um, there are real

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Speaker 1: possibilities of flipping in the next two years. So the

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Speaker 1: makeup of a court hasn't been thought of as red

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Speaker 1: or blue, but in recent years the nomination process and

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Speaker 1: the results have become more politicized. Explain how the current

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Speaker 1: selection process may lead to more ideological nominees. That's especially

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Speaker 1: true on the appeals courts. And you opened with President

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Speaker 1: Trump's uh claim to his own campaign promise and one

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Speaker 1: on which he's made good. He's been extremely successful at

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Speaker 1: the appellate level, though at the expense of the district

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Speaker 1: court level, where the eighteen vacancies are only twelve. On

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Speaker 1: the appellate courts, but his promises to make the courts

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Speaker 1: very concerned with ideological conservative nominees and appointees, and he's

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Speaker 1: carried through on that at the appellate level. And so, uh,

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Speaker 1: that's what I think you're talking about. And you see

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Speaker 1: it to some extent among the judges. Um. And I

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Speaker 1: know it's a crude measure, but many people use it

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Speaker 1: also address what some people say, which is, you know,

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Speaker 1: judges follow the law and so there's no difference between

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Speaker 1: conservative and liberal. Well, that's true to some extent in

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Speaker 1: the vast majority of cases there are three oh panel

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Speaker 1: decisions when they sit in panels. But on the highly

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Speaker 1: controversial cases, especially the cultural war cases involving abortion or

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Speaker 1: immigration or other hot button issues, UM, it often does

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Speaker 1: make a difference what the judge's perspective is. And so

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Speaker 1: that's where we see some differences. And that's what receives publicity,

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Speaker 1: not the ordinary case, if you will. Now, research by

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Speaker 1: Bloomberg Lass shows that more of Trump's judicial picks have

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Speaker 1: received not qualified ratings from the American Bar Association than

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Speaker 1: those nominated by his foremost recent predecessors in the first

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Speaker 1: two years of their presidencies. Are the qualifications of these

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Speaker 1: Trump nominees a concern well? Uh? And they also have

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Speaker 1: cut out the A B A. And every president except

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Speaker 1: Bush in Trump since Eisenhower have relied very heavily on

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Speaker 1: the expert professional ratings that the A B A does.

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Speaker 1: There's six nominees who were rated not qualified, Four have

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Speaker 1: been confirmed to for the a Circuit uh in, two

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Speaker 1: for district courts, one whidrew in a second one may withdraw. UM.

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Speaker 1: Those numbers are concerning, And of course Obama didn't UH

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Speaker 1: nominate anybody who received a non qualquified rating UM because

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Speaker 1: he thought that it wasn't worth the trouble and UM

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Speaker 1: it can be extremely controversial. Uh. And so the Republicans

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Speaker 1: complaint is that UM, the A b as a political organization,

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Speaker 1: and so they attacked the a BA for its ratings

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Speaker 1: and disregard them. Basically, Trump has also nominated more white

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Speaker 1: federal judges than any other president since Ronald Reagan more

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Speaker 1: than of his picks are white. Should the judiciary mirror

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Speaker 1: the population more than it currently does. Well, I think

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Speaker 1: more than Trump for sure. And as you suggest, you

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Speaker 1: have to go back to Ronald Reagan, which was the

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Speaker 1: nineteen eighties, UM, when there were fewer UM, well qualified minority,

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Speaker 1: female and lgbt Q on nominee possibilities. Um, because there

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Speaker 1: were a few of them in the profession. That's just

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Speaker 1: not true today. Uh. And so there are many many

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Speaker 1: qualified and conservative people who could serve, and so it's

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Speaker 1: valuable to have different perspectives on the federal bench. Um.

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Speaker 1: It also reduces bias to have a diverse bench. Uh.

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Speaker 1: And so cases come out more fairly and the public

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Speaker 1: has greater confidence in a judiciary that reflects the nation.

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Speaker 1: Majority Leader Mitch McConnell is one of the reasons that

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Speaker 1: Trump has been able to move these numbers so fast,

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Speaker 1: the nominations through, and he vows to keep up the pace.

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Speaker 1: Do you see anything ahead in the coming year that

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Speaker 1: may slow him down, Well, not very much, though. UM.

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Speaker 1: The Democrats have gone on record just yesterday, UM Schumer,

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Speaker 1: the minority leaders said that there would not be an

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Speaker 1: end of the package as is usual and customary. UM.

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Speaker 1: So that makes a difference because there's thirty people on

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Speaker 1: the floor waiting a vote, and none of them will

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Speaker 1: get a vote to have to be renominated go through

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Speaker 1: the process again. Um. But they are being jammed through

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Speaker 1: and rubber stamped, often by the Senate Judiciary Committee. Many

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Speaker 1: come out of committee with eleven ten party line votes

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Speaker 1: and then went on the floor with something very small margin. UM.

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Speaker 1: And so that is a problem. It's not clear that

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Speaker 1: they're getting a kind of rigorous attention that you would want,

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Speaker 1: uh from someone who's going to have life tenures sitting

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Speaker 1: on the lower federal courts. And so that's a real problem.

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Speaker 1: What's happened is the institutional structures like blue slips and

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Speaker 1: other measures have not been followed and have to leave it.

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Speaker 1: They're called Carl Tobias, Professor at the University of Richmond

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Speaker 1: School of Law. Thanks for listening to the Bloomberg Law Podcast.

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Speaker 1: You can subscribe and listen to the show on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcast. I am June Brosso.

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Speaker 1: This is Bloomberg