WEBVTT - Trump’s Judicial Picks Could Flip Circuits

0:00:03.480 --> 0:00:07.560
<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

0:00:07.640 --> 0:00:10.440
<v Speaker 1>day we bring you insight and analysis into the most

0:00:10.480 --> 0:00:13.399
<v Speaker 1>important legal news of the day. You can find more

0:00:13.480 --> 0:00:18.040
<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

0:00:18.320 --> 0:00:22.800
<v Speaker 1>and on Bloomberg dot com slash podcasts. President Trump is

0:00:22.840 --> 0:00:26.520
<v Speaker 1>on a record pace for judicial nominations, nominating more judges

0:00:26.520 --> 0:00:28.960
<v Speaker 1>than any of his five predecessors. In the first two

0:00:29.040 --> 0:00:33.280
<v Speaker 1>years in office. Eighty five judges, including two Supreme Court justices,

0:00:33.320 --> 0:00:35.839
<v Speaker 1>have taken the bench in Trump's quest to turn the

0:00:35.840 --> 0:00:40.559
<v Speaker 1>federal courts conservative, something he's bragged about repeatedly, including at

0:00:40.560 --> 0:00:45.280
<v Speaker 1>the Congressional ball last Saturday. We've almost reached the one

0:00:45.320 --> 0:00:51.320
<v Speaker 1>mark of federal judges. That's a big, big mark. Trump

0:00:51.400 --> 0:00:54.720
<v Speaker 1>is within in striking distance of flipping several federal circuit

0:00:54.760 --> 0:00:57.720
<v Speaker 1>courts of Appeals, that is, tipping the balance of judges

0:00:57.760 --> 0:01:01.720
<v Speaker 1>from Democratic appointees to Republican appointees. Joining me as an

0:01:01.720 --> 0:01:04.800
<v Speaker 1>expert in the area, Carl Tobias, professor at the University

0:01:04.800 --> 0:01:08.160
<v Speaker 1>of Richmond School of Law. Carl even the circuit that

0:01:08.240 --> 0:01:12.080
<v Speaker 1>Trump often complains about as being too liberal, the Ninth Circuit,

0:01:12.520 --> 0:01:16.120
<v Speaker 1>is within striking distance of flipping. Tell us more about

0:01:16.160 --> 0:01:20.200
<v Speaker 1>which circuits are at risk. Well, the ones that are

0:01:20.280 --> 0:01:23.800
<v Speaker 1>most at risk are the third circuit, which includes New Jersey,

0:01:23.840 --> 0:01:29.319
<v Speaker 1>Pennsylvania at Delaware, in the eleventh Circuit, which includes Alabama, Florida,

0:01:29.400 --> 0:01:32.759
<v Speaker 1>and Georgia, because those are evenly divided right now if

0:01:32.760 --> 0:01:37.480
<v Speaker 1>you take appointing presidents of those UH Court members, they're

0:01:37.480 --> 0:01:42.680
<v Speaker 1>both have six Democratic and six Republican appointed judges, and

0:01:42.800 --> 0:01:46.399
<v Speaker 1>so they're very close. And there's an nominee in the

0:01:46.600 --> 0:01:50.840
<v Speaker 1>third circuit named Mayde who would flip it, and the

0:01:50.960 --> 0:01:54.480
<v Speaker 1>eleventh I think doesn't have any vacancies now but quit

0:01:54.560 --> 0:01:57.760
<v Speaker 1>in the near future. And so those are the ones

0:01:57.800 --> 0:02:01.880
<v Speaker 1>that are very close but also within striking distance, or

0:02:01.920 --> 0:02:05.360
<v Speaker 1>the second where you are in New York, Connecticut, Vermont,

0:02:05.520 --> 0:02:08.160
<v Speaker 1>as well as the fourth where I am the five

0:02:08.280 --> 0:02:13.560
<v Speaker 1>mid Atlantic states. And so yes, um, there are real

0:02:13.600 --> 0:02:17.880
<v Speaker 1>possibilities of flipping in the next two years. So the

0:02:17.919 --> 0:02:20.880
<v Speaker 1>makeup of a court hasn't been thought of as red

0:02:21.000 --> 0:02:24.520
<v Speaker 1>or blue, but in recent years the nomination process and

0:02:24.560 --> 0:02:29.440
<v Speaker 1>the results have become more politicized. Explain how the current

0:02:29.480 --> 0:02:35.200
<v Speaker 1>selection process may lead to more ideological nominees. That's especially

0:02:35.240 --> 0:02:38.239
<v Speaker 1>true on the appeals courts. And you opened with President

0:02:38.240 --> 0:02:44.359
<v Speaker 1>Trump's uh claim to his own campaign promise and one

0:02:44.639 --> 0:02:47.920
<v Speaker 1>on which he's made good. He's been extremely successful at

0:02:47.960 --> 0:02:50.880
<v Speaker 1>the appellate level, though at the expense of the district

0:02:50.919 --> 0:02:54.160
<v Speaker 1>court level, where the eighteen vacancies are only twelve. On

0:02:54.200 --> 0:02:59.280
<v Speaker 1>the appellate courts, but his promises to make the courts

0:02:59.480 --> 0:03:04.640
<v Speaker 1>very concerned with ideological conservative nominees and appointees, and he's

0:03:04.760 --> 0:03:08.760
<v Speaker 1>carried through on that at the appellate level. And so, uh,

0:03:09.160 --> 0:03:13.079
<v Speaker 1>that's what I think you're talking about. And you see

0:03:13.080 --> 0:03:16.360
<v Speaker 1>it to some extent among the judges. Um. And I

0:03:16.400 --> 0:03:19.280
<v Speaker 1>know it's a crude measure, but many people use it

0:03:20.160 --> 0:03:23.160
<v Speaker 1>also address what some people say, which is, you know,

0:03:23.400 --> 0:03:26.720
<v Speaker 1>judges follow the law and so there's no difference between

0:03:27.120 --> 0:03:31.040
<v Speaker 1>conservative and liberal. Well, that's true to some extent in

0:03:31.120 --> 0:03:36.320
<v Speaker 1>the vast majority of cases there are three oh panel

0:03:36.440 --> 0:03:39.960
<v Speaker 1>decisions when they sit in panels. But on the highly

0:03:40.000 --> 0:03:45.000
<v Speaker 1>controversial cases, especially the cultural war cases involving abortion or

0:03:45.360 --> 0:03:51.640
<v Speaker 1>immigration or other hot button issues, UM, it often does

0:03:51.680 --> 0:03:55.839
<v Speaker 1>make a difference what the judge's perspective is. And so

0:03:55.960 --> 0:04:01.720
<v Speaker 1>that's where we see some differences. And that's what receives publicity,

0:04:02.120 --> 0:04:05.960
<v Speaker 1>not the ordinary case, if you will. Now, research by

0:04:05.960 --> 0:04:10.040
<v Speaker 1>Bloomberg Lass shows that more of Trump's judicial picks have

0:04:10.160 --> 0:04:14.400
<v Speaker 1>received not qualified ratings from the American Bar Association than

0:04:14.440 --> 0:04:17.840
<v Speaker 1>those nominated by his foremost recent predecessors in the first

0:04:17.880 --> 0:04:22.200
<v Speaker 1>two years of their presidencies. Are the qualifications of these

0:04:22.240 --> 0:04:27.520
<v Speaker 1>Trump nominees a concern well? Uh? And they also have

0:04:27.640 --> 0:04:30.560
<v Speaker 1>cut out the A B A. And every president except

0:04:30.640 --> 0:04:35.920
<v Speaker 1>Bush in Trump since Eisenhower have relied very heavily on

0:04:36.200 --> 0:04:39.760
<v Speaker 1>the expert professional ratings that the A B A does.

0:04:40.120 --> 0:04:44.240
<v Speaker 1>There's six nominees who were rated not qualified, Four have

0:04:44.320 --> 0:04:47.240
<v Speaker 1>been confirmed to for the a Circuit uh in, two

0:04:47.320 --> 0:04:52.719
<v Speaker 1>for district courts, one whidrew in a second one may withdraw. UM.

0:04:53.440 --> 0:04:57.719
<v Speaker 1>Those numbers are concerning, And of course Obama didn't UH

0:04:57.839 --> 0:05:02.520
<v Speaker 1>nominate anybody who received a non qualquified rating UM because

0:05:02.560 --> 0:05:06.640
<v Speaker 1>he thought that it wasn't worth the trouble and UM

0:05:06.880 --> 0:05:11.720
<v Speaker 1>it can be extremely controversial. Uh. And so the Republicans

0:05:11.880 --> 0:05:16.720
<v Speaker 1>complaint is that UM, the A b as a political organization,

0:05:17.200 --> 0:05:20.800
<v Speaker 1>and so they attacked the a BA for its ratings

0:05:20.920 --> 0:05:25.240
<v Speaker 1>and disregard them. Basically, Trump has also nominated more white

0:05:25.279 --> 0:05:28.680
<v Speaker 1>federal judges than any other president since Ronald Reagan more

0:05:28.720 --> 0:05:32.760
<v Speaker 1>than of his picks are white. Should the judiciary mirror

0:05:32.800 --> 0:05:36.640
<v Speaker 1>the population more than it currently does. Well, I think

0:05:36.839 --> 0:05:40.279
<v Speaker 1>more than Trump for sure. And as you suggest, you

0:05:40.320 --> 0:05:42.240
<v Speaker 1>have to go back to Ronald Reagan, which was the

0:05:42.279 --> 0:05:50.560
<v Speaker 1>nineteen eighties, UM, when there were fewer UM, well qualified minority,

0:05:51.160 --> 0:05:58.039
<v Speaker 1>female and lgbt Q on nominee possibilities. Um, because there

0:05:58.040 --> 0:06:00.520
<v Speaker 1>were a few of them in the profession. That's just

0:06:00.640 --> 0:06:05.680
<v Speaker 1>not true today. Uh. And so there are many many

0:06:06.080 --> 0:06:11.080
<v Speaker 1>qualified and conservative people who could serve, and so it's

0:06:11.160 --> 0:06:15.880
<v Speaker 1>valuable to have different perspectives on the federal bench. Um.

0:06:16.040 --> 0:06:20.400
<v Speaker 1>It also reduces bias to have a diverse bench. Uh.

0:06:20.440 --> 0:06:23.480
<v Speaker 1>And so cases come out more fairly and the public

0:06:23.480 --> 0:06:27.640
<v Speaker 1>has greater confidence in a judiciary that reflects the nation.

0:06:28.279 --> 0:06:33.480
<v Speaker 1>Majority Leader Mitch McConnell is one of the reasons that

0:06:33.560 --> 0:06:36.839
<v Speaker 1>Trump has been able to move these numbers so fast,

0:06:36.880 --> 0:06:40.719
<v Speaker 1>the nominations through, and he vows to keep up the pace.

0:06:40.920 --> 0:06:44.160
<v Speaker 1>Do you see anything ahead in the coming year that

0:06:44.240 --> 0:06:49.520
<v Speaker 1>may slow him down, Well, not very much, though. UM.

0:06:49.600 --> 0:06:55.919
<v Speaker 1>The Democrats have gone on record just yesterday, UM Schumer,

0:06:56.000 --> 0:06:59.400
<v Speaker 1>the minority leaders said that there would not be an

0:06:59.480 --> 0:07:05.040
<v Speaker 1>end of the package as is usual and customary. UM.

0:07:05.240 --> 0:07:08.640
<v Speaker 1>So that makes a difference because there's thirty people on

0:07:08.720 --> 0:07:10.520
<v Speaker 1>the floor waiting a vote, and none of them will

0:07:10.520 --> 0:07:12.400
<v Speaker 1>get a vote to have to be renominated go through

0:07:12.400 --> 0:07:18.520
<v Speaker 1>the process again. Um. But they are being jammed through

0:07:18.720 --> 0:07:22.640
<v Speaker 1>and rubber stamped, often by the Senate Judiciary Committee. Many

0:07:22.680 --> 0:07:26.200
<v Speaker 1>come out of committee with eleven ten party line votes

0:07:26.400 --> 0:07:31.480
<v Speaker 1>and then went on the floor with something very small margin. UM.

0:07:31.720 --> 0:07:34.640
<v Speaker 1>And so that is a problem. It's not clear that

0:07:34.680 --> 0:07:37.480
<v Speaker 1>they're getting a kind of rigorous attention that you would want,

0:07:38.280 --> 0:07:42.360
<v Speaker 1>uh from someone who's going to have life tenures sitting

0:07:42.560 --> 0:07:46.840
<v Speaker 1>on the lower federal courts. And so that's a real problem.

0:07:46.880 --> 0:07:50.640
<v Speaker 1>What's happened is the institutional structures like blue slips and

0:07:50.840 --> 0:07:54.480
<v Speaker 1>other measures have not been followed and have to leave it.

0:07:54.520 --> 0:07:57.520
<v Speaker 1>They're called Carl Tobias, Professor at the University of Richmond

0:07:57.720 --> 0:08:02.520
<v Speaker 1>School of Law. Thanks for listening to the Bloomberg Law Podcast.

0:08:02.880 --> 0:08:06.960
<v Speaker 1>You can subscribe and listen to the show on Apple Podcasts, SoundCloud,

0:08:07.000 --> 0:08:10.920
<v Speaker 1>and on Bloomberg dot com slash podcast. I am June Brosso.

0:08:11.360 --> 0:08:12.680
<v Speaker 1>This is Bloomberg